Abdul Hamid J:

This is a motion by the first and third respondents asking for an order that the whole of the application for an order that a writ of habeas corpus be issued requiring the body of Murugammah Rajammah alias Rajammah d/o Arumugam to be brought by her mother Karthaie or her brother Subramaniam s/o Arumugam, or her father Arumugam, or her brother Shanmugam s/o Arumugam, or any other member of their family, or by their servants or agents before the Judge in chambers and set at liberty (to enable her to choose a person of her own choice as her husband), be struck out on the grounds that it discloses no reasonable cause of action and is frivolous and vexatious and an abuse of the process of the Court.

At the hearing of this motion, Counsel for the respondents raised an issue which to my mind is of some considerable importance, i.e. whether the application for the writ can be proceeded with by way of originating summons, in the absence of any provision governing the same in the Rules of the Supreme Court and also in view of the legislative provisions under Chapter XXXVI of the Criminal Procedure Code (Cap. 6).

Counsel for the applicant concedes that there is no provision in the Rules of the Supreme Court governing applications of this nature, however, he argued that by virtue of O. 72 r. 2 application may be made by way of originating summons. He further submitted that in view of article 5(2) of the Federal Constitution, the Court has jurisdiction to hear the application.

Counsel for the respondents submitted that s. 365 of the Criminal Procedure Code is somewhat similar to s. 491 of the Indian Criminal Procedure Code, and the application may perhaps be properly made under this section. He further submitted that the provisions of the English common law as exercised by the King's Bench Division of the High Court of Justice in England do not apply. He cited the following cases to support his argument: (a) District Magistrate, Trivandrum v. Mappillai & Ors. AIR 1939 Mad 120 (b) Matthen & Ors. v. District Magistrate, Trivandrum LR 66 IA 222; AIR 1939 PC 213.

In District Magistrate, Trivandrum v. Mappillai & Ors the matter referred for consideration of the Full Bench was whether the High Court or any Judge of it can issue a common law writ of habeas corpus in any of the cases covered by s. 491 of the Criminal Procedure Code. It was held in that case that.

By Acts of the Legislature lawfully passed in 1875 and subsequent years the Legislature has taken away the power to issue the prerogative writ of habeas corpus in matters contemplated by s. 491 of the Criminal Procedure Code. Hence, the High Court or any Judge of it cannot issue the common law writ of habeas corpus in any of the cases covered by s. 491 of the Criminal Procedure Code.

In delivering the judgment of the Full Bench, Leach CJ traced the history, relating to the powers of the High Court back to 1861 when Parliament passed an Act authorising the establishment of High Courts of Judicature in India by Letters Patent under the Great Seal of the United Kingdom, to erect and establish High Courts at Fort William in Bengal, Madras and Bombay for the respective Presidencies. In 1875 the Criminal Procedure Code made provision empowering the High Courts to issue directions of the nature of a habeas corpus.

The judgment of the Full Bench was affirmed in Matthen & Ors v. District Magistrate, Trivandrum, where the facts were that: -

Warrants issued against the appellants, subjects of Travancore, resident in Madras, by the British Resident in Travancore for the Madras States under s. 7 of the Indian Extradition Act, 1903, to the Chief Presidency Magistrate of Madras, stated that the appellants stood charged with offences punishable under specified sections of the Travancore Penal Code and corresponding sections of the Indian Penal Code committed in the Travancore State, and directed the Chief Presidency Magistrate to apprehend them and surrender