Choor Singh J:

[1] This is an application under paragraphs (b) and (c) of s 375 of the Criminal Procedure Code (Ca p 132) for a writ of habeas corpus.

[2] The facts according to the applicant's affidavit, are that the applicant, who is a foreigner, was arrested in Singapore at his hotel by the police on 17 July 1969 at 3 am without a warrant of arrest, for an offence alleged to have been committed in Kuala Lumpur. He was produced before the ninth magistrate's court in Singapore on the same day and there he learnt that a warrant for his arrest purportedly issued by the Kuala Lumpur sessions court had arrived in Singapore at 8.30 am that day. It is alleged that a little later this warrant was endorsed by a Singapore magistrate and that the said warrant bears no authentication of any shape or form. At 4 pm. the same day the applicant was released on cash bail in the sum of $5,000 and the proceedings were adjourned until 3 pm. the following day. On 18 July 1969 at 3 pm the applicant appeared in the ninth magistrate's court where the Deputy Public Prosecutor made an application to the court to order the return of the applicant to Malaysia under the provisions of s 54 of the Criminal Procedure Code. This application was opposed by counsel for the applicant on several grounds whereupon the ninth magistrate's court adjourned the proceedings to 1 August 1969 to enable the applicant to apply for habeas corpus.

[3] The application is "for an order that a writ of habeas corpus be issued against the respondent [9th Magistrate, Singapore.] to produce before this honourable court the applicant being taken and detained under custody of the respondent and thereafter released on bail, together with the day and cause of his being taken and detained, to undergo and receive all and singular such matters and things as the honourable court shall then and there consider of concerning him in his behalf, on the grounds following", and there are set out six grounds on which it is alleged that "the continued detention" of the applicant is unlawful. It is however not in dispute that the applicant is now on bail.

[4]Section 375 under which the application is made reads as follows:

"375. Any person:-

(a) who is detained in any prison within the limits of Singapore on a warrant of extradition under any law for the time being in force in Singapore relating to the extradition of fugitive offenders; or

(b) who is alleged to be illegally or improperly detained in public or private custody within such limits; or

(c) who claims to be brought before the court to be dealt with according to law,may apply to the court for a writ of habeas corpus."

[5] The contention of Mr David Marshall, learned counsel for the applicant, before me, is that as the affidavit of the applicant discloses that the entire proceedings in the ninth magistrate's court are void and without jurisdiction the applicant is entitled to an order nisi. What is alleged by the applicant in his affidavit may or may not be true. As this is an application for an order nisi, I am at this moment not concerned with the merits of the application. The only issue before me, at this stage, is whether or not this court has jurisdiction to make the order asked for when the applicant is on bail and is not in actual custody.

[6] Mr Marshall submits that this court has jurisdiction to make an order nisi even when an applicant is on bail and has cited two cases in support of his submission. The first one is a decision of the Allahabad High court in Zahir Ahmad v. Ganga Prasad & Ors AIR 1963 allahabad 4 in which it was held that the fact that a person has been granted bail does not amount to his being set at liberty and that although on bail he can present an application for a writ of habeas corpus. Jagdish Sahai J. who delivered the judgment of the court, observed at page 9:-

"... The law as to cases in which a writ of habeas corpus can be moved has been stated in paras 41, vol. XI, Halsbury's Laws of England, Simonds Edn