By an order, dated the 25th March, 1948, this Court dismissed an application on behalf of the petitioner under section 491, Criminal Procedure Code. The petitioner has now filed this civil miscellaneous petition on the civil side praying for grant of a certificate for filing an appeal to the Federal Court of India.

Section 3 of the Federal Court (Enlargement of Jurisdiction) Act, 1947 (Act I of 1948) gives a right of appeal to the Federal Court from any judgment to which this Act applies; and section 2(b) defines the expression “judgment to which this Act applies” as meaning “any judgment, decree or final order of the High Court in a civil case.....”

The preliminary question arises whether the order passed by us was in a civil case.

Section 491 empowers any High Court whenever it thinks fit, to direct,

“(a) that a person within the limits of its appellate criminal jurisdiction be brought up before the Court to be dealt with according to law; and (b) that a person illegally or improperly detained in public or private custody within such limits be set at liberty;......”

The words “within such limits” clearly apply to the limits of its appellate criminal jurisdiction, as set out in section 491(1) (a). Despite the wording of section 491, which indicates that the powers of this Court are limited to its appellate criminal’ jurisdiction, it is argued on the authority of certain decisions to which we have been referred that the order passed by this Court was an order in a civil case. In Mahomedalli Allabux v. Ismailji Abdulla 1, the question that arose was whether an appeal lay from an order directing the issue of a writ of Habeas Corpus; and the learned Judges held that an appeal did lie under section 15 of the Charter. The learned Chief Justice who delivered the leading judgment, did not think that an order directing the issue of a writ of Habeas Corpus was in the exercise of its criminal jurisdiction; but he expressed no opinion with regard to an order under section 491 of the Criminal Procedure Code. The learned Chief Justice, after setting out the facts, said:

“By the Charter of 1823 there was given to the Chief Justice and the Puisne Justices of the Supreme Court such jurisdiction and authority as Justices of the Court of King’s Bench had, and might lawfully exercise, within that part of Great Britain called England as far as circumstances would permit. The High Court still retains such powers as were granted by the Supreme Court Charter of 1823, as were not inconsistent with the Charter of 1865 or have not been taken away by subsequent legislation.”

The learned Chief Justice then went on to say that section 491 of the Criminal Procedure Code did not take away the powers that the High Court had as the successor of the old Supreme Court. The learned Judges based their decision on the assumption that they had this inherent power beyond any jurisdiction conferred under section 491, Criminal Procedure Code. It is conceded that in view of the Privy Council decision in Ryots of Garabando v. Zamindar of Parlakimedi1, the High Court had no such inherent jurisdiction. We are unable, therefore, to find in this decision any authority for the position that the order passed by this Court in Crl.M.P. No. 439 of 1948 is a civil order. For the position that an order passed under section 491, Criminal Procedure Code, is a civil order, the learned advocate for the petitioner relies on a dictum, of Mitter, J., in a case decided by a Full Bench of the Calcutta High Court in Niharendu Dutt Majumdar v. A.E. Porter2. At page 520, Mitter, J., said:

“A Habeas Corpus proceeding (and a proceeding under section 491, Criminal Procedure Code, is of the same nature) is in essence a civil proceeding, for it is concerned with the private right of a citizen, namely, the right of personal liberty. The true nature of a proceeding by Habeas Corpus should be determined by its object, which is not to punish, but to give relief from a civil wrong.”

We would, howev