JUDGMENT

Sharma J (delivering oral judgment):

This suit is fixed for hearing today. At the very commencement of the hearing the learned Senior Federal Counsel appearing for the defendants rose to make a preliminary objection to the jurisdiction of the Court to entertain this suit and he referred to the provisions of Art. 128(2) of the Federal Constitution which reads:

Without prejudice to any appellate jurisdiction of the Federal Court. where in any proceedings before another Court a question arises as to the effect of any provision of this Constitution, the Federal Court shall have jurisdiction (subject to any rules of Court regulating the exercise of that jurisdiction) to determine the question and remit the case to the other Court to be disposed of in accordance with the determination." (emphasis supplied).

The opening words of s. 23(1) of the Courts of Judicature Act, 1964 are:

Subject to the limitation contained in Article 128 of the Constitution the High Court shall have jurisdiction to try all civil proceedings ... (emphasis supplied).

There is no doubt that the rights claimed by the plaintiff in the present suit are civil rights and these are civil proceedings. He is only claiming damages in respect of what he alleges was a false and wrongful arrest made by the first defendant who according to the admission on pleadings was an Inspector of Police in the employ of the second defendant.

Section 48(1) of the Courts of Judicature Act, before its amendment in 1964, read as follows:

Where in any proceedings in any High Court a question arises as to the effect of any provision of the Constitution the Judge hearing such proceedings shall stay the same on such terms as may be just to await the decision of such question by the Federal Court.

It is obvious from the pleadings that one of the "fundamental liberties" guaranteed under Part II of the Constitution is going to be relied upon by the plaintiff in this suit and the relevant Article which is going to come up for discussion and argument is Art. 5(3) of the Constitution. This Article reads:

Where a person is arrested he shall be informed as soon as may be of the grounds of his arrest and shall be allowed to consult and be defended by a legal practitioner of his choice.

Section 25(1) of the Courts of Judicature Act enumerates the powers exercisable by the High Court and those powers include all those powers which are vested in it by any written law in force in the country.

Section 48(1) of the Courts of Judicature Act, 1964 was amended in 1964 itself by Act No. 35 of 1964 and the word "shall" appearing in s. 48(1) was substituted by the word "may". The explanatory statement to the Bill to the amending Act reads:

This Bill is intended to bring the provisions of s. 30 and 48 of the Courts of judicature Act into conformity with Art. 128 of the Constitution.

As these sections at present stand, it is thought that they have the effect of extending the exclusive jurisdiction of the Federal Court to decide constitutional questions beyond the limits of that exclusive jurisdiction prescribed by the Constitution.

I might have been in entire agreement with the arguments put forward by the learned Senior Federal Counsel if the provisions of s. 48(1) of the Courts of Judicature Act had remained unamended. Section 48(1) of the Courts of Judicature Act, as it now stands, confers a discretion on the High Court whether to refer the constitutional question to the Federal Court or not. The relevant words in Art. 128(2) of the Constitution conferring this discretion are the words appearing within brackets in that sub-Article, and those words qualify the jurisdiction of the Federal Court. The effect of those words in brackets is that if in any proceedings before the High Court a question arises as to the effect of any provision of the Constitution the Federal Court has the jurisdiction to determine that question, but that jurisdiction is also subject to the rules of Court which regulat