This is an application by a person who has been sentenced to three months rigorous imprisonment by Mudie, J., for an order that he may be set at liberty under section 363 (b) of the Criminal Procedure Code.

The applicant was convicted of the offence of bringing a false charge. The magistrate ordered that he be bound over to keep the peace by a bond for a period of 6 months or in default to undergo 6 months simple imprisonment. The applicant appealed against the conviction to the Court of a Judge. Mudie, J., dismissed the appeal against the conviction but set aside the order requiring the appellant to give security, and in lieu of that he sentenced the appellant to three months rigorous imprisonment.

Section 363 (b) of the Criminal Procedure Code, under which the application is made, reads as follows:--

"The Court of a Judge may whenever it thinks fit direct

(1) that any person who...

(b) is alleged to be illegally or improperly detained in public

or private custody within the limits of the Federated Malay

States be set at liberty."

The petitioner is detained under the order of Mudie, J., a judge of the Supreme Court, who sentenced him to three months rigorous imprisonment. It is to my mind impossible to say that the petitioner is either illegally or improperly detained. The order of Mudie, J., is the order of a judge in a case properly brought before him and until it is set aside by a Court of competent jurisdiction, must be taken to be valid. It follows that the applicant is not improperly or illegally detained and that section 363 does not apply.

I am confirmed in this view by the Indian decision of Rameswar Khiroriwalla v The King Emperor (1928) 32 CWN 889. In that case a High Court Judge refused to admit an accused person to bail in the course of a trial. The accused person then applied to the Criminal Bench of the High Court for an order of release under section 491 of the Indian Criminal Procedure Code which corresponds to section 363 of the Federated Malay States Code. Rankin, C.J., in dismissing the application said:--

"This bench is in no way a Court of Appeal from the learned Judge

exercising the ordinary original criminal jurisdiction and grave

inconvenience would arise if the same High Court should make an order

for arrest and also for an order for release upon divergent views upon

a question of jurisdiction. If this be possible so far as the Statute

is concerned, it would be possible for a single judge to make an order

overriding and nullifying an order of a Division Bench. A judge or a

Bench which exercises powers under section 491 has no claim to any

particular procedure so as to require that the Sheriff should execute

no order made by another Judge or Bench inconsistent therewith. It

would introduce an incurable confusion into practice and theory if it

were laid down that a considered judgment of the High Court upon a

question of its jurisdiction could be challenged before the same High

Court under Section 491. In my judgment the circumstances that certain

orders of this Court in its ordinary Original Criminal Jurisdiction are

not appealable do not affect this matter. It appears to me that a case

such as the present should be viewed on the principle that it would be

good return to a writ in the nature of Habeas Corpus to show that

the applicant during his trial at Sessions was being detained under an

order of this High Court which has not been set aside or varied. These

considerations do not apply to orders made by Courts other than the

High Court."

It will be noticed that in Rameswars case no appeal lay from the order of the judge, a condition which is also applicable to the present case.

There are also several English cases which decide that a writ of Habeas Corpus will not be issued wh