Mahajan J.
1. This Full Bench has been constituted to answer the following questions of law:
(1) When an amended petition under Section 491, Criminal P. C , is presented on behalf of a, person in detention, does the presentation of the amended or fresh petition make the original petition infructuous, in a case where of the amended petition cognizance has been taken by a Judge and notice on it issued Whether in these circumstances has an Hon'ble Judge before whom the original petition Is laid power to deal with it ?
(2) When a petition under Section 491, Criminal P. C., is already pending in the High Court, whether a petition presented substantially on the same facts subsequently can be dealt with by the Court before the first petition is disposed of ?
(3) Whether any petition under Section 491, Criminal P. C., or under any other section can be preheated direst to an Hon'ble Judge and entertained by him In other words, can ft petition Under Section 491, Criminal P. C, be made to a Judge of this Court direct ?
(4) If a petition under Section 491, Criminal P. C, is disposed of on merits, can a fresh petition he on the same facts and with the same object (i) when all the questions raised in the said petition were disposed of in the first, and (ii) when some of the points raised in the second petition were disposed of in the first petition but the rest were left undecided ?
2. These questions arise in two separate references made to us. The first three questions were referred to the Pull Bench by the Hon'ble the Chief Justice in Criminal Miscellaneous No. 289 of 1948. The fourth question along with the third was referred to the Pull Bench by my brother Teja Singh in criminal Miscellaneous no. 290 of 1948. The third question is common to both the references. All these questions involve within their scope the determination of the point whether the rule of English common law in respect of writs of habeas corpus prevails in India and has been substantially enacted in the statutory provisions of Section 491, Criminal P, C, and whether that rule is the one that should be followed under the provisions of that section? It was not denied that the common law writ of habeas corpus cannot be issued by this Court, but the contention raised is that in the absence of any statutory prohibition the common law practice relating to writs of habeas corpus should be followed in the analogous proceedings under Section 491 of the Code on the ground that this is a salutary and reasonable practice. It was said that as the powers to be exercised are similar, so the procedure to be followed should also be similar. Baron Parke in the case of Ex parte Partington, 1845-14 L, J. Ex. 122 : 13 M. & w. 679) made the following observations about the procedure to be followed under the common law in such matters:
This case has already been before the Court of Queen's Bench on the return of a habeas corpus and before my Lord Chief Baron at Chambers on a subsequent application for a similar writ. In both Instances the discharge wag refused. The defendant, however, has n. right to the opinion of every Court as to the propriety of his imprisonment and, therefore, we have thought it proper to examine attentively the provisions of the statute without considering ourselves as concluded by these decisions.
3. If every Judge has jurisdiction to order the writ to issue then each Judge is a tribunal to which application can be made within the mean-ing of the rule and every Judge must hear the application on the merits.
4. The circumstances in which these references have been made may cow be shortly stated.
5. The first reference arises out of a petition made by one Ramji Lal Aggarwal of Kashmiri Gate, Delhi, for the release of L. Harmman Par. shad, proprietor of Parshad Brothers, Automobile Dealers Cannaught Circus, New Delhi. It was alleged in the petition that the said L. Hanuman Parshad was arrested on 7th June 1H8 under B. 3, Punjab Public Safety Act and that he was being illegally and improperly detained in Police custody, within the appellate criminal jurisdiction of this Court. It wag also contended that the arrest was mala fide. This petition was presented in the office of the High Court on 14th June 1948 through Mr, Harbans Singh Gujral, Advocate. The petition was duly registered by the Deputy Registrar. The same evening the counsel requested the Deputy Registrar for permission to recast the petition and to amend it on the ground that certain important fact had heed omitted and certain other facts had been unnecessarily mentioned in the petition. The Deputy Registrar declined to accede to the request on the ground that the petition had already been registered, The counsel then informed the Deputy Registrar that he would present an amended petition which should be consolidated with the original one and both should be disposed of together. The amended petition, however, was not presented to the Deputy Registrar by n. 30 a. m. next morning with the result that he on 15th June 1948 marked the petition for hearing on 16th by the Hon'ble the Chief Justice.
6. On 15th June 1948 though the counsel did not go to the Deputy Registrar as he had promised, he did present the amended petition to the Court of the Hon'ble Bhandari J., who took cognizance of it and issued notice on it. This petition was presented to the Hon'ble Judge direct without the intervention of the office and was also signed by Mr. Mela Ram, another Advocate of this Court. At the time when this petition was presented to the learned Judge it was not properly stamped. It, however, bore a note to the following effect:
(i) This is an amended application as in the first application put in yesterday some facts were left out. As the clients are in haste and have to leave for Delhi and your Lordship is available to deal with it to-day, it 3a pot up in this Court today.
(ii) As the court-fee stamp in not available with stamp vendor to-day, it will be put in when available.
7. After Bhandari J. had issued notice on the amended application, the counsel went to the Deputy Registrar and requested that the original petition should be either returned to them or be attached to the second petition, They contended that in view of the fact that the amended petition had been entertained by Bhandari J. and orders made thereon, the original petition had become infructuous. The Deputy Registrar, however, did not entertain this request. He thought that as the original petition had been marked for the Hon'ble the Chief Justice, it should be placed before his Lordship, When the matter was laid before the Hon'ble the Chief Justice on 16th June 1948, his Lordship thought that question of sufficient importance arose in the case and needed authoritative decision. Accordingly this Full Bench was constituted for the disposal and determination of the first three points of law stated above.
8. The second reference arises out of four petitions nos. 221, 222, 223 and 225 of 1948. These petitions were made by one Jagdish Mittar under Section 491, Criminal P. C, for the release of four different persons who according to him had bean illegally arrested under Section 3, Punjab Public Safety Act, and were detained fur different periods. These petitions were presented direct to my brother Teja Singh and were entertained by him on 26th May 1918 and notices were issued to the District Magistrate, Delhi, for the production of the original orders of arrest and detention relating to the detenus. This rule was issued for 8th June 1943 on which date the petitioners' counsel absented himself. My brother, however, after hearing the learned Advocate-General dismissed the petitions. An application for restoration of these applications was made the next day on the ground that sufficient cause existed for the absence of the counsel on 8th June 1948. These applications for reconsideration of the matter were dismissed on the 18th on the ground that the petitions originally filed bad not been dismissed in default but on the merits, and that no power vested in the High Court to set aside the orders already passed. During the pendency of the restoration application four other petitions Nos. 290 to 293 under Section 491, Criminal P. C, were made direct to my brother on 14th June 1948 on identical facts as the original petitions. Those petitions were op. posed by the Advocate-General on two grounds : i) that they could not have been presented direct to the Judge and no notice should be taken of them, and (ii) that the previous petitions having been dismissed on the merits, it was not open to the petitioners to agitate the same questions by means of fresh petitions. In view of the first reference these questions were also referred to this Full Bench.
9. Before proceeding on a detailed examination of this matter, it is necessary to mention that it is no longer an open question that this Court has jurisdiction to issue the common law writ of habeas corpus. The matter has been set at rest by the decision of their Lordships of the Privy Council in Matthen and Ors. v. The District Magistrate of Trivandrum, 1, L. B. (1939) Mad. 744 : A.I.R. (26) 1939 P. C. 213: 40 Cr. L. J. 675). Their Lordships expressed their entire agreement with the opinion of Rankin, C. J. in Girindra Nath Banerjee v. Birendra Nath Pal, 54 Cal. 727 : A.I.R. (14) 1927 cal. 496) to the effect that the relief by a writ of habeas corpus was not available under the English Common law in India but was solely governed by the provisions of Section 491, Criminal P. 0, In view of this decision it is necessary to determine the scope of the powers that have been conferred on the High Courts by Section 491, Criminal P.O. To ascertain this matter a reference to the state of law before the enactment of this section as regards the jurisdiction of this Court on this point may be made.
10. In the Code of Criminal Procedure of 1861 there was no section corresponding to Section 491 of the present Code. The High Court of Calcutta had taken the view that the Supreme Courts in India had the powers to issue writs of habeas corpus in the same manner as they were issued in England and that the same powers were con-ceded to the High Courts under their respective Charters. The same view was taken by the other Presidency High Courts. In 1872 the Code of Criminal Procedure, Act X [10] of 1872, was enacted. Section 82 of this 'Code provided that
neither the High Courts nor any Judge of such High Courts shall issue any writ of habeas corpus, Main praise, De homine replegiando, nor any other writ of the like nature beyond the Presidency towns.
The Legislature by this provision prohibited the High Courts in India, excepting the Presidency High Courts, from issuing a writ of habeas corpus. The next Code, Act x [10] of 1876, enacted that
neither the High Court nor any Judge thereof shall hereafter issue any writ of habeas corpus for any of the above purposes.
This provision was contained in B. 148 of that Code and did not affect the jurisdiction of the Presidency High Courts. The Code was amended in 1882, but it provided that the amendment would not restore any jurisdiction or form of procedure not existing or followed. The Code of 1898 enacted Section 491 on this subject but it did not confer any power to issue a writ of habeas corpus on the other High Courts excepting the Presidency Courts. The matter remained in this state till 1923 when a right was given to everybody within the criminal appellate jurisdiction of each High Court to make an application under Section 491 of the present Criminal Procedure Code. By the Criminal Law Amendment Act, 1923, Section 491 was amended and was enacted in the following terms:
(1) Any High Court may, whenever it thinks fit, 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;
(b) that a person illegally or improperly detained in public or private custody within such limits be set at liberty;
(c) * * * *(d) * * * *(e) * * * *(f) * * * *(2) The High Court may, from time to time, frame rules to regulate the procedure in oases under this section.
(3) Nothing in this section applies to persons detained under the Bengal State Prisoners Regulation, 1818,...
11. The prohibition contained in the earlier Code that no other High Court excepting the Presidency High Courts and no Judge of any such Court could issue a writ of habeas corpus was removed. It is, however, significant that the jurisdiction was conferred on the Court as such and was not given to each Judge of that Court. Section 491, as it reads now, only says that any High Court may, when it thinks fit, issue a writ. It does not say that any Judge of that Court can also issue the writ. In various statutes of the British Parliament it baa been expressly pro-vided that the Court as well as each Judge of the Court has jurisdiction to issue the writ and similar is the rule of Common law on the subject. This section though differently drafted has been otherwise widely worded and the power granted thereby is to be exercised to protect the liberty of the subject whatever may be the occasion for-the deprivation of it.
12. The expression 'High Court' is defined in s. i (j), Criminal P. C, in these terms:
'High Court' means, in reference to proceedings against European British subjects, or persons jointly charged with European British subjects, the High Court of' Judicature at Fort William, Madras, Bombay, Allahabad, Patna, Lahore and Nagpur, the Chief Courts of Oudh and Sind: in other eases 'High Court' means the highest Court of Criminal appeal or revision for any local areas or. where no such Court is established under tiny law for the time being in force, such officer as the Provincial Government may appoint in this behalf.
13. Section 220, Constitution Act of 1935 states-that every High Court shall be a Court of record and shall consist of a Chief Justice and such other Judges as His Majesty may from time to' time deem it necessary to appoint. This High Court is constituted of the Hon'ble the Chief Justice and six other Judges. The powers conferred, by Section 491, Criminal P. C, are, therefore, exercisable by this Court as constituted under Section 2-20, Government of India Act, 1935, within its criminal appellate jurisdiction.
14. How the Court has to function in the exercise of its powers has been laid down in Clause 26, Letters Patent in these terms:
And we do hereby declare that any function which is hereby directed to be performed by the High Court of Judicature at Lahore, in the exercise of its original or appellate jurisdiction, may be performed by any Judge, or by any Division Court thereof, appointed or constituted for such purpose in pursuance of section one hundred and eight of the Government of India Act, 1915;...
15. From this provision it in quite clear that when a Judge sitting singly exorcises any func- tion on the original or appellate side, he is the High Court for the purposes of that function. Section 108, Government of India Act, 1915, en-acts as follows:
(1) Each High Court may, by its own rules, provide as it thinks fit lot the exercise, by one or more judges, or by division Courts constituted by two or mote judges, of the High Court, of the original and appellate jurisdiction vested in the Court.
(2) The Chief Justice of each High Court shall determine what judge in each High Court shall determine what judge in each case in to sit alone, and what judges of the Court, whether with or without the Chief Justice, are to constitute these seral division Courts.
16. Under tins section by rules the Court hag to lay down the jurisdiction to be exercised by Single Judges and by Division Courts. The nomination of the Judges for the Single or Division Courts has to be done by the Chief Justice. Once that is done, then each Judge nominated to sit in Single Bench and similarly the Judge constituting a Division Bench are the High Court for the purposes of the exercise of the respective functions. It is also clear from a perusal of Section 108 that the Chief Justice has jurisdiction to determine whether a Judge would exercise original jurisdiction or appellate jurisdiction and further whether he would sit on the civil or the criminal side or exercise matrimonial or other jurisdiction. In pursuance of this section, rules have been framed by the High Court determining what type of case will be heard by a Single Judge and what typo of case will be beard by a Division Bench. These rules are contained in Vol. 6 of the Rules and Orders of the High Court, Chap. 3-B, and give a list of the cases that can be heard and disposed of by a Judge sitting alone and they also give a list of cases which can be beard by a Division Court. Clause 10 of these rules states that an appeal, petition or. reference under the Code of Criminal Procedure, 1898, other than a petition for enhancement of sentence can be heard by a Judge sitting singly. Petitions under Section 491, Criminal P. C., can, therefore, be heard by Judges sitting in Single Bench and nominated to exercise criminal original jurisdiction of this High Court. At one moment there may be a number of Judges sitting in Single Bench exercising this jurisdiction. In that event all these Judges will have the powers of the Court to deal with applications under Section 401, Criminal P.O.
17. For regulating the practice, and procedure of the Court, the Government of India Act, 1935, in Section 223 enacted that the respective powers of . the Judges thereof in relation to the administration of justice in the Court, including any power to make rules of Court and to regulate the sittings of the Court and of ?member thereof sitting alone or in Division Courts, shall be the same as immediately before the commencement of part 3 of this Act. The power had previously been given by Section 106, Government of India Act, 1915, which enacted that:
the several High. Courts are Courts of record and have such jurisdiction, original and appellate, including admiralty jurisdiction in respect of offences committed on this high seas, and all such powers and authority over or in relation to the administration of justice, including power to appoint clerks and other ministerial officers of the Court, and power to make rules for regulating the practice of the Courts as are vetted in them by Letters Patent, and, subject to the provisions of any such Letters Patent, all such jurisdiction, powers and authority as are vested in those Courts respectively at the commencement of this Act.
It cannot be gainsaid that the High Court by its own rules can regulate the practice of the Court, though it cannot by such rules which relate to matters of practice deprive any Judge of the jurisdiction which he is authorized to exercise by virtue of the provisions of Section 108 read with Clause 26, Letters Patent. The rules framed under Section 106 are merely rules of practice for regulating the work of the Court; they do not affect the jurisdiction of the Single Benches or Division Benches constituted under the provisions of Section 108, Government of India Act, 1915. Clause 35, Letters Patent, also empowers the High Court from time to time to make rules for delegating to any .Registrar, Prothonotary or Master or other official of the Court any judicial, quasi-judicial and non-judicial duties. By virtue of this power the High Court has delegated certain ministerial functions to the Deputy Registrar and has made rules for the regulation of its work, the sittings of the Court and for the translation and preparation of printed records. These rules are contained in Vol. 5 in various chapters, Reference may, however, be made to chapter 3. a of this volume. The first rule says that the Court will be open daily, except on authorized holidays, for the transaction of judicial business, between the hours of 10 a. m. and 4 p. m. and that no fresh case will ordinarily be called on for bearing by a Single or Division Bench after 4 p. m., but the hearing of a part-hoard case may be continued so long as the Bench hearing it may deem necessary. In E. 2 it is said that, the Judge will sit singly or in Benches of two or more Judges in accordance with a roster to be prepared monthly by the Deputy Registrar with the approval of the Chief Justice. In B. 3 it is said that plaints, appeals, applications and petitions for a preliminary hearing will be distributed by the Deputy Registrar two days previously, The distribution lists will be initialled by the Deputy Registrar, and no change in them will be made without his authorization and initials, A copy of the list will be supplied to the Judges' Readers and to the Bar Room, and the Judges' Readers will bring to the notice of the Judges and the Deputy Registrar any alterations that appear unauthorized. In B. 4 it is stated that ordinary and urgent petitions shall be set down for hearing by the Deputy Registrar before Single and Division Benches in accordance with the rotter for the time being prescribed under B, 2 above. la Rule 1 of Chapter I-A of this volume it is and that all ordinary appeals and applications for review or revision shall be presented by litigants or their Advocates by depositing them in the petition box of too Court outside the room of the Deputy Registrar between the hours of 10 a, m. to 4 p. in. on every day which is not a Court holiday, and that petitions sent by litigants through pt)3t for taking some judicial action shall not be entertained by this Court but re-turned per bearing post. Various other rules are contained in this Chapter regulating the procedure and the practice of the Court and indicating the duties to be performed by the ministerial officers of this Court. A distinction, however, hag to be drawn between the powers that a Judge sitting in Single Bench, whether on the criminal or civil side, possesses, from the mode and manner in which he is to discharge those functions. The Deputy Registrar no doubt has to distribute the work of the Court amongst the 'various Judges whether exercising Single Bench or Division Bench jurisdiction, but by reason of this delegated authority it cannot be said that the jurisdiction that a Judge exercises while sitting in Single Bench on the criminal or civil side, original or appellate, or the jurisdiction that a Division Bench exercises doing any type of work is in the least affected. The rules of procedure cannot affect the jurisdiction of the Court or of the Judges who are discharging the functions of the High Court. By way of illustration, it may be pointed out that the Deputy Registrar cannot deprive a Judge of jurisdiction by declining to take an appeal or an application that lies to the High Court. It would be open to a litigant or to an applicant to walk into open Court and make an application or present an appeal to the Judge exercising particular kind of jurisdiction if the matter relates to the functions of the High Court that are being exercised by that Judge, If a dole, gate can exercise that authority, it is obvious that the Court itself functioning through its different Judges nominated for the purpose can exercise that function. Moreover, it is an admitted proposition of law that the Court cannot by its own rules deprive itself of the jurisdiction that has been conferred on it by a statute or by statutory rules.
18. From the provisions of law cited above the following conclusions can safely be drawn : 1) That the High Court of Judicature of East Punjab ha3 no power outside the provisions of Section 491, Criminal P. C, to issue a writ of habeas corpus. Its practice and procedure in issuing the writ can be determined by rules which it is empowered to make under Section 491 (a). In absence of any rule on any particular matter its own old practice may furnish the guide, otherwise the Judge will have to determine the matter according to his own discretion. (2) That the rules of English Common law about the writ of habeas corpus have no application in this Province, However, in cases where no rule of practice is available as a guide then the Judge exercising the functions of the Court under Section 491 may uses a guide any rule prevailing in England, whether under the Common law or under the statute law, which he regards reasonable and proper, but no rule can be used which in any way enlarges or extends the jurisdiction conferred on the High Court by the statutory provisions of Section 491, Criminal P, C. (3) That the power conferred by Section 491, Criminal P. C, has been conferred on the High Court and not any individual Judge of that Court. In England both under the common law and under various statutes passed from time to time since the time of Charles II the power has been vested in the Court as well as in every individual Judge of the Court. (4) That in view of Section 491 (2), Criminal P. C, the general rules, whether framed under Section 554, Criminal P. C, or under the other powers of the Court, will not necessarily be considered binding as regulating the procedure of the Court in the exercise of its functions under Section 491. (5) That the High Court for the purposes of the exercise of its functions and its jurisdiction under Section 491, Criminal P.C., means any Judge or Judges of the Court who has or have been nominated by the Chief Justice to sit in Single Bench on the criminal side.
19. In view of these propositions of law the rule of English Common law to the effect that an application for writ of habeas corpus can be taken to every Judge of the Court in spite of the fact that it may have been dealt with and finally disposed of by several Judges can have no application in this Province, but the point needs consideration whether successive applications cannot be made to Judges sitting in Single Bench on criminal side, even if they have been disposed of on the merits by these or other Judges nominated to exercise this function of the Court.
20. It was contended by Mr, Sethi on behalf of the petitioner that the Statute of Charles n, 31, Chapter II, was in force in India and by virtue of Section 9 of that enactment an application for a writ of habeas corpus could be made to every Judge of the Court. Section 9 of this Statute runs thus:
Provided also and be it further enacted by the authorities aforesaid that it shall and may be lawful to and for any prisoner and prisoners as aforesaid to move and obtain his or their habeas corpus unwell out of the High Court of Chancery or Court of .Exchequer out of Kings Courts of Kings Bench or Common Pleas or either Of them and it the said Lord chancellor or Lord keeper or Judge or any Judges baron or barons for the nine being of the degree of the coife of any of the courts aforesaid in the vacation time upon view of the copy or copies of the warrant or warrants of commitment or detainer or upon oath made that such copy or copies Were denied as aforesaid shall deny any writ of habeas corpus by this Act required to be granted cuing moved for as aforesaid they shall severally forfeit to the prisoner or parties grieved the sum of five hundred pounds to be recovered in manner aforesaid.
21. This section on penalty of a fine of 500 commanded the various Courts and every Judge of those Courts to entertain an application for a writ of habeas corpus during vacation. No authority was cited by Mr. Sethi for his proposition that this statutory rule had been extends; to India or was applicable here at any time. The history of the writ as examined in an earlier portion of this judgment in this country negatives the assertion of the learned Counsel. Suction 491, Criminal P. C, for the first time in the year 1923 conferred jurisdiction on this Court to issue directions in the nature of a writ of habeas corpus. But for this section there was no jurisdiction in this Court to issue such a writ. On the other hand, in express terms by the Rules of 1872 and 1875 it had been stated that High Courts in India, excepting the Presidency High Courts had no power to 'issue the writ and each individual Judge of those Courts similarly possessed no such power. In the case that went up to their Lordships of the Privy Council though a contention was raised that the common law rule in spite of the provisions of Section 491 prevailed in India and the jurisdiction conferred by that section was similar to the one that prevailed in England, it was, however, cot argued that the provisions of various English statutes which Were of a penal character and which made the Judges in England liable for fines in case they declined to exercise that jurisdiction during vacation or other period, wore applicable to this country. It must be presumed that the learned Judges of the Pull Bench which dealt with that ease and their Lordships of the Privy Council were fully aware of the provisions Of Section 9 of Charles II Statute and of similar pro-visions contained in the statutes of 1808, 1804, 1816 and 1862 00 this subject ' For the reasons given above the contention of Mr. Sethi is repelled.
22. The learned Advocate-General referred to certain rules of English law known as the Crown Office Rules. He also drew our attention to a number of sections contained in the statutes mentioned above for the proposition that a Judge could only be moved by an application or on a motion when accompanied by an affidavit for the issue of writ of habeas corpus, but that he had no jurisdiction to issue the' writ suo motu. The question does not arise directly in the present case and it is not necessary to pronounce any final opinion on it. But as at present adviser 1 am not prepared to accused to that contention. The rules referred to do not take away the jurisdiction of the Courts or Judges in England to issue the writ. At one time the writ was being issued there by Judge on a verbal request and without an affidavit Later on, it was insisted upon that the writ should not be issued unless there was an application by the prisoner himself or by a relation of his in that behalf and further that such an application should be accompanied by an affidavit. This rule is one of sound practice and helps the Judge in satisfying himself whether in a particular case a writ should be issued. It, however, does not affect the jurisdiction of the Judge to issue the writ suo motu, if he is otherwise satisfied. So far as I can see, it was the prerogative of the Crown to issue the writ and to set at liberty all subjects who had been un-lawfully detained. This prerogative of the Crown is now being exercised through the King's Courts or by the Judges of His Majesty, it was not argued that if the Crown wanted to exercise its prerogative to issue the writ and to set free a subject who had been illegally detained an application in writing was necessary. By the very nature of the jurisdiction and the purpose for which it exists it is apparent that a writ could be issued whenever it became necessary to set at liberty a person who had been illegally detained and in exercising this jurisdiction the Judge could not be hampered by rules of practice however sound and salutary they may be. Whatever may be the state of English law on the subject so far as Section 491, Criminal P. C, is concerned it has been very widely worded and confers jurisdiction on the Court to issue directions whenever it thinks fit. The Court may be moved by the prisoner or by some relation of his, or it may act suo motu if it acquires knowledge that a certain person has been illegally detained. The mode and manner in which the Judge has to be satisfied cannot affect the jurisdiction conferred on him under Section 491, Criminal P. C. The learned Advocate-General contended that if it was intended that under Section 491 a Judge could act on his own initiative then language analogous to Section 626, Criminal P. C, or Section 439 of that Code would have been employed but that similar language was not employed in S 491 as a different intention had to be expressed. I am not impressed with this argument. The phraseology employed in 88. 526 and 439 of the Code is no guide in interpreting the language employed in Section 491. The words used in Section 526 are 'whenever it is made to appear to the High Court', while the words used in Section 491 are 'Any High Court may, whenever it thinks fit, direct'. The phrase 'made to appear' and the phrase 'whenever it thinks fit' do not connote the same meaning in the English language, The draftsman of Section 526 in view of the opening words of the section thought it necessary to mention, specially that the Court could also act on its own initiative, while it was not necessary to say so when the phraseology employed was 'the Court may, whenever it thinks fit, direct.' Section 439 of the Code has been drafted differently and hence the language employed in that section cannot be used as a guide in interpreting Section 491, Criminal P. C.
23. It is also interesting to observe that the rules framed under Section 491 (2) by this Court completely negative the contention raised by the learned Counsel. These rules are printed in Vol 5, Ch. 4-P and the first rule runs thus:
All applications for an order under Section 491 shall be made on sin affidavit setting forth the circumstances under which the order is Bought: Provided that all communications addressed to the High Court by a person in the custody of a public officer complaining of his detention or the conditions of, his detention, whether supported by affidavit or not shall be laid before a Judge (or orders as applications under this rule.
This rule is clear departure from the practice of the English Courts. If a Judge can take notice of this matter on a mere communication addressed or gent to him, I cannot see why on information received by himself he cannot act and issue the directions which he is authorized to issue under Section 491. Criminal P. C.
24. The rules framed under Section 491 (2) do not lay down any prohibition regarding the making of successive applications to the Court, They do not insist that these applications must necessarily be put in the box of the Deputy Registrar, or that the procedure for making these applications is regulated by the general rules of practice framed by this Court. There does not exist even a general rule which prohibits the making of successive applications to this Court on identical matters and for an identical relief even when a previous application for a similar purpose-and object has been dismissed. In the Allahabad High Court a general rule of practice has been framed and it is to the following effect:
No application to the same effect or with the same object as a previous application upon which a Judge hag passed any order, other than an order of reference to another Judge or Judges, shall, except by way of appeal, be presented to any other Judge or Judges on behalf of any person on whose behalf alone of with others such previous application was presented.
25. In Madras a rule has been framed under sub-a. (2) of Section 491 to the following effect:
2. The following matters may be heard and determined by a Bench of two Judge's provided that if both Judges agree that the determination involves a question of law they may order that the matter, or the question of law, be referred to a Full Bench:
(4) (c) for issue of a writ of habeas corpus. 2-A. All applications for writ of habeas corpus shall go before a Bench of Judges dealing with criminal work.
26. This rule supersedes an earlier rule which was to the effect that ''all applications for writ of habeas corpus shall go before a Bench of three Judges, of which the Chief Justice, unless otherwise ordered, shall be one.'
27. Having examined the relevant provisions of law and the rules on the subject under reference, I now proceed to answer the questions referred to the Full Bench.
28. The first question that falls for determination is whether in the circumstances narrated above the petition presented by Mr. Gujral to the Deputy Registrar, on 14th June had become infructuous by reason of the amended petition having been presented before Bhandari J. on the 15th and also by reason of the fact that the counsel intimated to the Deputy Registrar that they did not want to proceed with the original application as it needed re-drafting and prayed that it be returned to them or consolidated with the later petition. It seems to me tat in a sense this petition had become infructuous because it had been superseded and substituted by an amended petition. When the petitioner wanted to amend his original application and to substitute another one for it and when he prayed also for its return, I do not see why his prayer should not have been granted. The Deputy Registrar may have been justified in saying 'I have registered the application and marked it and therefore it must go before a Judge,' but it was open to the petitioner when it was laid before a Judge to pray that no orders be made on this application, that it be returned to him or that it be consolidated with the amended application. It was the choice of the petitioner to proceed with the original application or with the amended one and he exercised that choice. The mere registration of the petition could not deprive him of that choice. He had every right to abandon it. In the situation that arose in the present case, in my opinion, the first application had become infructuous by reason of the prayer of the applicant that no order should be made on it and that it should be returned to him or attached to the amended application. He had substituted for it another application and it was the substituted application alone that needed determination and not the original one. The learned Chief Justice had certainly power to deal with the application but the jurisdiction was a limited one exercisable for passing an order for its return or consolidation. The general rule of law is that the effect of an amendment is that it relates back to the date of the application originally filed. It takes the place of the original application and in such a situation it could not be said that in the eye of law there were two applications pending before the Court. The only application that could be treated as pending was the amended one and not the original one, as its place had been taken by the other one.
29. The learned Advocate-General suggested that the first question should be answered is the negative and that the original application could still be decided on the merits. I am afraid I cannot accept the suggestion. In the second application, it had been made quite clear in the note that it had been put in by way of an amend, moat to the original application and us a substitute for it. There would be no point in such a situation to deal with the original petition on the merits particularly when a Judge has taken cognizance of it and has issued notice on it. For the reasons given above my answer to the first part of the question is in the affirmative. Ac the same time I would say that the learned Chief Justice bad power to deal with it to the limited extent indicated above.
30. It wa3 conceded by the learned Advocate. General that the answer to the second question should be in the affirmative. The order of presentation of successive applications is not necessarily the order in which they should be determined or heard by a Judge. The jurisdiction of Bhandari J., to entertain the second application, which he was competent to receive, could not be affected by reason of the pendency of an application presented earlier and marked for hearing by the Deputy Registrar by the Hon'ble the Chief Justice. It was not denied that Hon'ble the Chief Justice functioning as High Court on the criminal side could not acquire jurisdiction to hear the first application from the mere fact that the Deputy Registrar had marked the application before his Lordship. The jurisdiction would have been acquired if the application was presented to his Lordship or was laid before his Lordship when sitting as a tribunal. That how-over did not happen and the application was laid before his Lordship after the amended application had been dealt with. I am further of the opinion that even if the first petition had been laid before his Lordship the Chief Justice and his Lordship had passed orders, that would not have in any way affected the jurisdiction of Bhandari J. to entertain an identical application under Section 491, Criminal P. C, and pass orders thereon. There is no bar for the making of interlocutory orders by two different Judges exercising the functions of the High Court and sitting in Single Bench criminal. The question whether such a bar arises where one application has been finally disposed of will, however, be dismissed when dealing with the fourth question. In the present case neither Bhandari J, made any final order nor did the Hon'ble the Chief Justice pass any order on the application. My answer to the second question, therefore, is that the pendency of the first application in this Court, of which cognizance had not been taken by any Judge, did not in any way affect the jurisdiction of Bhandari J. to pass orders on the amended application presented later on.
31. The third question as indicated already is common to the two references. In my opinion, the answer to this question should be returned in- the affirmative. I have already pointed out that once a Judge has been nominated under Section 108 to exercise the functions of this Court on the criminal side, then his jurisdiction cannot be affected by any rules of procedure. In the rules framed under Section 491 (2) there is no rule which prohibits the making of an application to a Judge direct in his Chambers or in open Court. On the other hand, the rule says that if any communication is addressed to the Court, the office has to lay it before the Judge. The office is merely the machinery or the hand which physically lays a certain application or a certain communication before the Judge and therefore any rule to the effect that the communications addressed to the High Court are to be received in the offence cannot affect the jurisdiction of a Judge and his power to receive applications direct from a prisoner or any person on his behalf. It is not possible to hold that this Court cannot act and exercise its functions except in conformity with the rules of practice. Even the rules framed under Section 491 (2) do not say that the applications under this section have to be presented to the Deputy Registrar and are to be put in his box and all communications should be made to him. Under the general rules of the Court, ordinarily all applications have to be put in the box kept at the office of the Deputy Registrar, but from this rule it does not follow that if an application is not put in the box of the Deputy Registrar it cannot be taken by the Deputy Registrar himself if ho so chooses, or if the Deputy Registrar refuses to take the application it cannot be received by the Judge or entertained by him provided the subject-matter is within his jurisdiction. A function that has been delegated by the Court can always be exercised by the Court itself if the Court so thinks tit. It is only in very rare and emergent cases that applications whether under Section 491, Criminal P. 0., or under other provisions of the Code, or under the Code of Civil Procedure are taken direct by the Judges, but it has never been contested that a Judge has jurisdiction to receive applications direct if he is SO inclined when he has jurisdiction to deal with a particular matter..
32. The joint under reference relates to a question of procedure and it is relevant to enquire about the practice that prevails in the High Courts in India on this subject. In the case that went up to their Lordships of the Privy Council and if report' d in Haithen v. District Magistrate of Trivendum, I. L. R. (1939) Mad, 744 : A.I.R. (26) 198'J 1'. C. 213; 40 Cr. L. J 675 P. C.) the petition was presented at the residence of Pandrang Row J. and he entertained it and passed an order on it. Though the jurisdiction of the learned Judge was questioned on the ground that because of Rule 2-A, Madras High Court Rules that petition could only be heard by a Division Bench and not by a Single Judge, no objection was taken on the ground that the application had been entertained by bun at his residence direct and not through the channel of the High Court Office. Very eminent Judges dealt with it and eminent lawyers argued the matter and in spite of this it was not even suggested that the learned Judge could not have taken that application direct at his house.
33. The practice in the Lahore High Court through not uniform has been to a similar effect. Applications have been entertained direct by Judges without the agency of the High Court office and without any objection. I can speak from personal experience both as a member of the Bar and as a Judge that the jurisdiction of a Judge to take any application direct has never been questioned except perhaps recently. My brother Teja Singh himself has received and entertained such applications direct without any objection being raised at any time. When we were hearing this matter, a considerable number of member of the Bar were present including the President of the High Court Bar. A large number of instances were cited where without objection petitions had been presented to and entertained by Judges direct. The Hon'ble the Chief Justice has pointed out in the referring order that he was aware of this practice but that it was not uniform. That observation, I speak with respect, is quite correct. Judges do not usually receive applications direct and insist that they should come through the office of the Deputy Registrar. It is only in rare eases that they entertain them direct and therefore the practice cannot be uniform on the subject. In other Courts in India, be far as my knowledge goes, an objection has never been taken that if any Judge entertains a petition direct his action is ultra vires when he is exercising jurisdiction in a particular matter. For the reasons given above the answer to this question is as indicated above.
34. The learned Advocate-General at first half-heartedly argued that the rules contained in Vol. V of the Rules and Orders, chap. 3-A, about the method of making applications to the Court by putting them in the box of the Deputy Registrar were of a mandatory nature and this Court could not exercise jurisdiction except in cases where all appeals or petitions etc. had first been deposited in the box of the Deputy Registrar, This contention, however, was not pressed. He, however, laid emphasis on the opening line of Rule 1, chap. 3 B, vol. v. This rule reads as follows:
Subject to the provisos hereinafter set forth the following classes of cases shall ordinarily be heard and disposed of by a Judge sitting alone ...
35. It was argued that jurisdiction had been conferred on Single Judges only to hear and dispose of cases and that they had no jurisdiction to receive applications, appeals, or petitions themselves. It was contended that in the determination of a cause there were five stages, the first stage being of presentation, the second of issuing a process, the third of the hearing of evidence, the fourth of arguments and the fifth of a decision, and that the function of bearing and deciding a case had been conferred on Judges while the function of receiving the applications and of issuing the process had been left to the Deputy Registrar and that in these circumstances a Judge could not directly receive any application and none could be presented to him direct. I am not at all impressed with this argument. In the first place, it has to be pointed out that the words used in the rule 'heard and disposed of' are not the words of 8 108 (l), Government of India Act, 1915. They seem to have been loosely employed to indicate what jurisdiction will be exercised by a Single Judge and what jurisdiction will be exercised by a Division Bench. The heading of the Chapter is 'Jurisdiction of a Single Judge and of Benches of the Court,' The words 'heard and disposed of' seem to be loosely employed and are quite redundant to the rule and are outside the phraseology employed in Section 108(l) and on the basis of such loose phraseology no substantial argument could be based. I am further of the opinion that the words 'heard and disposed of' should be widely construed and should be deemed to include within their scope all the functions that the Court has to perform from the date of initiation of the proceedings to the stage of the judgment. It is not contemplated by the rules that the Judges' jurisdiction at any stage of legal procedure would be ousted. For the reasons given above I repel the contention-raised by the learned Advocate-General.
36. The real question involved in these references is, however, the fourth one. This question can be sub-divided into two parts : l) whether successive applications under Section 491 on identical grounds can be made to the High Court which may be dealt with by the same Judge exercising the functions of the Court, or if there be more than one Judge exercising those functions then by any one of those Judges irrespective of the fact that the High Court has already finally disposed of an application on identical facts? (2) whether successive applications can be made from Judge to Judge till all the Judges of the High Court are exhausted In other words, whether the rules of English common law still prevails in this country 1 have already indicated that so far as the second question is concerned, my answer is that the rule of English common law does not prevail in this country. On the other hand, it has been clearly excluded by reason of the phraseology of Section 491 read with Section 108, Government of India Act, 1915, and Clause 20, Letters Patent. I therefore repel the contention of Mr, Sethi that an application under Section 491, Criminal P. C, can be taken from Judge to Judge till it has been presented to all the Judges of the Court irrespective of the fact that it has previously been dealt with by the Judges nominated under Section 108 to discharge the functions of the High Court on the criminal side. I am, therefore, quite clear that successive applications, if at all, can only be made either to the Judge who is sitting singly on the criminal side or to those Judges, if more than one, who are exercising those functions, but not to all the Judges of the Court.
37. The next question for determination in whether successive applications on identical facts can be made under Section 491 to the Court in spite of a decision already given on the point. Before attempting an answer to this question it is necessary to examine the provisions of the Criminal Procedure Code in order to discover whether the making of such successive applications, and their determination by different Judges or by the same Judge.- is prohibited by any provision contained in the Code or is repugnant to 'any rule of practice or is contrary to general principles of public policy.
38. It was not very seriously contended that there is any statutory bar prohibiting the making of a number of applications in succession on identical grounds under Section 491, Criminal P. C. ,to the High Court or to the Judges performing the functions of the High Court on the criminal side, in spite of a final decision of the matter on an earlier petition. Section 369, Criminal P. C. has, however, betn treated as such a bar in a Bench decision of the Lahore High Court in the case of Kishan Lal v. Crown, I. L. R. (1945) 26 Lab.. 573 In this case the following observations occur:
Coming to the second point, i. e., the right of successive applications to different Judge the same principles appear to me to apply. It in must now be held that the common law is no longer applicable and that therefore the Nigerian case cited by Mr. Gauba has no bearing on the matter. As remarked by Rankin J, the relief claimed is solely available under the Criminal procedure Code and the matters at issue must be decided According to the provisions of this Code. It was nut and could not be denied thatMmtoe J 's decision was judgment of the Court, and the entertaining of a second application on the same facts, whether by him or by any other Bench of the Court would clearly he a review Of that judgment Such a review is barred by Section 369, Criminal P. C. The petition, therefore, appears to me to he incompetent also as a second application on the same facts.
This judgment cannot be supported by reason of the decision of their Lordships of the Federal Court in Hori Bam Singh v Crown, l. L. B. (1940) 21 Lah. 400 : ALB. (26) Ib39 P.C 43). The word 'judgment' have not been defined in the Criminal Procedure Code Their Lordships in this judgment gave a definition of that expression so far as the Cole of Criminal Procedure is con-corned. The following quotation from the decision may be appositely cited:
In view of the observation made by their Lordships of the Privy Council the word 'judgment' cannot now be taken in its widest possible sense be as to include every order which terminates a proceeding pending in a High Court so far as that Court is contemn In criminal cases the position in still stronger. In England judgment is equivalent to a judgment of conviction or acquittal and is distinct from other orders in a criminal case. This will appear from an examination of paragraphs 260-4 in Vol 9, Halhury's Laws at England (Hailsham Editinn). In the Indian Code of Criminal Procedure, judgment is rot defined, but various sections suggest what it means. Sections 404 and 415A no doubt refer to appeal from judgment or appealble judgment respectively. But under sa. 263' and 264 the judgment in a summary trial has to contain thee finding and sentence or other final Order. Under S 305, in a jury the order of conviction or acquittal ii. ace -id nice with the opinion of the jury is the judgment Under S 309, in a case tried with assessois, the final order which is followed by the sentence, is the judgment.. Section 367 suggests what contents of a judgment should be, and what it should comprise of when ii be a judgment of conviction and what if it he a judgment of acquitial. Section 370 also requires a record of the offence complained of or proved that plea, of the accused and the final order As final orders like those under Ss 144 and 145 could not be judgments, a special provision baa been made in Section 367 (6) that certain orders should be deemed to be a judgment The Code provides appeals from certain appeal orders, and M 4'2H provides appeals from conviction and sentence. Thus judgment in the Code means a judgment of convict On or acquittal. Even in Madras, in Chinna Kalapyti Goundain In re, 29 Mad. 126 : 3 Cr L J. 274 F.B) White C. J. at p. 131 held that an order of dismissal of a complaint under S 203 is nut a judgment, within in morning of S 360 and this was the opinion of the majority This opinion was later followed by another Division Bench of 'be Mad ran High Court in Emperor Maheshwara Kondaya, 31 Mad 543 at p. 545 : 9 Cr. L J. 80)where it was held that an order of discharge not a judgment. as a judgment is intended to indicate the final order in a trial terminating in either the conviction or acquittal of the accused.
39. The decision of an application under Section 491 by its dismissal on the merits cannot, therefore, be held to be a judgment in the sense in which that expression ha3 been used in Section 369, Criminal P. G, That section, therefore, cannot be used as a bar to the determination of successive applications under Section 491, Criminal P. C, even if previous applications have been dismissed. The Bench ruling above cited cannot, in view of this authority, be said to lay down the law on this subject correctly. Besides Section 389 of the Code reliance was not placed on any other section of the Code for this contention.
40. No rule has been framed under Section 491. (2) by this Court on the lines of Allahabad High Court k. 8 prohibiting the making of successive applications on identical matters, once an earlier application has been decided. There is not even a general rule in the rules of this Court to that effect. The result, therefore, is that there is no express prohibition either in the statute or in the rules of Court against the making of successive applications to the Court on identical grounds in any criminal matters or under Section 491 of the Code. This question was raised recently in S. Dilbagh Singh v. Emperor A. l. ii. (3i) 1944 Lah. 373 : 46 Cr. L. J. 203). The following quotation from that decision may be cited with advantage:
In the case of Bakhshish Singh and his two sons, the Crown contends that no fresh facts are before this Court and that the Court has no jurisdiction to hear their petition by reason of the fact that a precisely similar petition was dismissed by Blacker J. and that decision must be regarded a3 final. On the other hand it was contended on behalf Bakhshish Singh and his two eons by Mr. K. M. Mnnshi that the decision o Blacker J. was not final and that it was always open to the present petitioner to prefer a fresh petition on behalf of these three detained men. The Crown placed reliance upon a Bench decision of this Court in Cr. M. No. 38R of 1942 Kishori Lal v. Emperor (I.L Ii. (1945) Lab (573). In that ease the learned Judges considered whether successive applications under Section 401, Criminal P. C, could be made to different Judges in respect, of the same detained persons. The Bench held that in India the only right to nitiku an implication for release from unlawful detention was under Section 491, Criminal ]' C. and that there was no common law right in this country similar to that in England. It followed therefore that whether sucessive applications for release of a detained man could be made depended on that provisions of the- Criminal P. C. The Bench was of opinion that entertaining a second application on the t-arne facts, whether by the same Judge or by any other Judge, would l;e a review of the first judgment and that such a review was barred by Section 309, Criminal P. C. That being so, no second application under Section 491 could be made if the application was based on the (same facts as the first. Mr. K M. Munshi submitted that this case wag wrongly decided and that a decision on a second application by a different Judge could not amount to a review or an alteration of the judgment of the Judge who delivered judgment in the first application and therefore the matter was not gov- erned by Section 369, Criminal P. C. This Bench decision is, however( binding on and we must either follow it or refer the matter for consideration by a larger Bench. In my judgment, however, it is unnecessary to discuss this matter further because in the second application made on behalf of Bakhshish Singh fresh facts have emerged which were never before Blacker J. and which were never considered by him. Further Blacker J. did not intend that his order should have finality because be gave the petitioner leave to file a frosh application in certain circumstances.
41. It was not-denied by the learned Advocate General that on fresh facts or on fresh material or in a new situation arising in connection with the same detenu a fresh application could certainly be maintained and I do not think that any dispute can be raised on that point.
42. The result, therefore, is that in absence of any provisions of statute law and in the absence of any rule on the subject framed under Section 491 (2), the matter has to be determined on general principles of law. This leads me to the examination of I he question whether on grounds of public policy or on the principles of res judicata the maintainability of successive applications under Section 491 in spite of a final decision on an earlier application is prohibited. In Nara Appayyav. Darsi Venkatappayya A.I.R. (1) 1923 Mad. 276 (l) : 23 Cr. L. J. 746) Wallace J. in a case that arose under Section 439, Criminal P. C, when an application in revision had been dismissed in default held that it could not be restored. In support of his view be made the following observations:
It is a universal principle of law in the absence of direct statutory provision, that when a matter has been finally disposed of by a Court, the Court is functus officio and cannot entertain a fresh prayer for the same relief, unless and until the previous order of final disposal has been set aside.
43. If the rule laid down by Wallace J. is sound then the matter can be easily disposed of and it can be held that once an order has been made on an earlier application that decision governs all subsequent applications and bars them. I have not, however, been able to find any authority for the proposition enunciated by Wallace J. and the authorities are against the view that he expressed. It seems to me that so far as criminal proceedings are concerned, neither the rule of functus officio nor the rule of res judicata has any application. The rule of res judicata obviously does not apply because there is no question of vexing an adverse party twice. No question of the harassment of the opposite party arise in the case of an application under Section 491, Criminal P. C, It has been laid down in a number of case that there is nothing like res judicata in a criminal trial as long as it does not terminate in either acquittal or conviction so as to attract the provisions of Section 403, Criminal P. C., and there is nothing to stop an accused person from showing that the act with which he is charged a penal did not constitute an offence and that on a right interpretation of the enactment under which he is sought to be penalised, it should be held that the Legislature never intended that any one placed in his position should be criminally liable, Reference in this connection may be made to Diwan Singh v. Emperor A.I.R. (23) 193G Nag. 65 : 37 cr L. J. ill) and to cases cited at p, 2171 of Chitaley's Code of Criminal Procedure, 2nd (I94l) edition, in the commentary under 8,403. In the Nagpur case it was observed as follows:
It is in limine contended on behalf of the, complainant that the issue was already heard and determined by a learned Judge of this Court and the accused is estopped from canvassing the same contention again in the same Court. The learned Judge who decided the revision petition quashed to previous proceedings and Ordered a de novo trial. Under the law, it is perfectly open to an accused person to raise any plea of law or fact which may make for his acquittal. This Bench in unquestionably bound by the order which directed the retrial, but it cannot be held bound by any reasons given in the previous case to sustain it. There is nothing like res judicata in a criminal trial as Ion',' as it does not terminate in either acquittal or conviction so as to attract the provisions of Section 403, Criminal P. C. Apart from this, which has no bearing on the issue fn debate, I am not a worn of any law, authority or principle which would stop an accused person from showing that the not with which he is charged as penal did not constitute an offence and that on a right interpretation of the enactment under which he is sought to he penalised, it should be held that the Legislature never intended that anyone placed in his position should be criminally liable. To debar him from this defence would be nothing short of a prohibition from proving his innosence and would amount to a clear denial of justice. Much a course is manifestly repugnant to the basic principle of all criminal jurisprudence.
44. The observation made above finds support from the explanation appended to Section 403, Criminal P. C. and hag an apposite application to any matter arising under Section 491 of the Code. The section is intended for preserving the liberty of the subject, and if on a certain reasoning an application for a writ has been refused, it may be that on a different reasoning, though on identical facts, the application may succeed. It may be that a point of it was not urged before the Judge previously deciding an application, or a matter through raised was not properly argued. In such circumstances the subject can again show to the satisfaction of the Court that he should be set at liberty. I cannot see that any principle of res judicata or any doctrine of the Court being functus officio can be pressed in service for declining to set at liberty a person who has been illegally confined even if at the moment when the second application is made the' Court is differently constituted and is not presided over by the same Judge who dealt with the matter earlier, Another Judge may be satisfied that the applicant is in illegal detention and in that situation I see be violation of any principle of law in a matter arising under Section 491, Criminal P. C. On an examination of the variou3 provisions of the Code it appears that a complaint once dismissed on identical facts by a Magistrate can be entertained on the same facts by another Magistrate. There is no rule similar to the rule of civil law of res judicata debarring the hearing of it on any principle of functus office with can be made applicable to such a case. The matter was considered in a Full Bench judgment by Sir Arnold White Chief Justice in In re Chinna-ktdiappa Goundan, 29 Mad. 120 ; (3 cr. L. J. 274 (P.B.)). The learned Chief Justice held that the dismissal of a complaint under Section 203, Criminal P. C, does not operate as a bar to the rehearing of the complaint by the same Magistrate, even when such order of dismissal has not been set aside by a competent authority. At p. 131 the following observations occur:
It was further argued, in support of the view that the Magistrate bad no jurisdiction to rehear, that even if the order made under Section 203, were not a judgment within the meaning of Section 369, the general principle was applicable and the order was final unless and until set aside by a superior tribunal. What general principle 1 know of no general principle which can be said to be applicable. It cannot be the principle on which the right to plead autrcfois acquit is based, because Section 403 says that for the purpose of the exercise of tub right the order is not an acquittal. The argument ab inconvenient is of little weight, A Magistrate who allowed the rehearing of complaints which he had purported to dispose of, to develop into a habit would, no doubt, attract the attention of the higher authorities. The question of jurisdiction, as I have already said, is to be determined by an examination of the provisions of the Code which confer and regulate the jurisdiction. There is no express provision of the Code which in express terms either gives or takes away the jurisdiction to enquire into an alleged offence with regard to which a complaint has been brought and has been dismissed. But in my opinion the Code implicitly, though not directly, gives the jurisdiction. The explanation to Section 403 enacts that the dismissal of a complaint is not an acquittal for the purposes of that section. The purpose of the section is to protect the person who has been acquitted from liability to be tried for the same offence. The explanation says that in the case of a dismissal be is not so protected. No doubt the section only applies to the case of a person who has been tried, and in the case of dismissal here hits been no trial. Strictly speaking neither the prosecution nor the explanation apply to a dismissal; but it seems to me clear, that what the Legislature meant to lay down was that a dismissal is not a bar to further proceedings in respect of the alleged offence, and that the right to take further proceeding8 is not dependent upon the exercise by the higher Court of the potfera of revision conferred by the Code. If there is no bar to further proceedings, there is jurisdiction to entertain these further proceedings, and if there is this jurisdiction there is nothing in the Code which deprives a Magistrate of jurisdiction by reason of the fact that he has made an order dismissing the complaint.
This view has been approved by their Lordships of the Federal Court in the case cited above.
45. In another Pull Bench decision, In re Ponnuswami Goundan and Anr., 55 Mad. 622 : A.I.R (19) 1932 Mad 869 ; 33 Cr. L. J. 454 F B.) it was held by the Madras High Court that when a complaint is dismissed under Section 203, Criminal P. C. any Magistrate having co-ordinate jurisdiction can take cognizance of a subsequent complaint on the same facts, notwithstanding that the order of dismissal has not been set aside. The cases on this subject will be found collected in Cmtaley's Code of Criminal Procedure, latest edition, at pp. 2032 to 2031. It is unnecessary to mention all of them. The practice in English Courts under the common law as well as under the statute is the same. This rule prevails in Canada and some other countries. It was urged that though on the statute law or on general principles the maintainability of successive applications under Section 491 may not be prohibited, yet such a practice should be held contrary to principles of public policy and unreasonable and therefore it should be ruled that such applications are not maintainable. This view was sought to be supported by a decision of the Allahabad High Court in the case of Mt. Haidari Begum v. Jawad Ali Shah, 56 all. 271:(A.I.R. (21) 1934 ALL. 23: 35 Cr. L J 493). Stress was laid on the following observations made in this case:1
Even if we worn at liberty to disregard it. S of the Rules of Court, on, the ground that it was never intended to apply to applications made under Section 491, we should hesitate to adopt the rule of common law relating to writs of habeas corpus, permitting successive identical applications, as being a rule be obviously reasonable and durable that it ought to be extended to the exercise of statutory powers conferred by Section 491. To adopt, such a, rule would amount to making a very striking exception to Rule 8 which governs the procedure relating lo nil other kinds of applications, and which is merely an application of the salutary principle at res judicata. A single Judge of this Court has authority to grant or to reject an application under Section 491 and his order is an order of the High Court. If he rejects it and another single Judge, upon the same facts, conies to a different conclusion and grants the application, we should (hen have two contradictory and inconsistent orders of the same High Court, If on the other hand each of the eleven Judges successively and independently rejects the application, the much public time and money would have been wasted. Procedure leading to such consequences does not seem so unquestionably reasonable and desirable that we should feel inclined to adopt it as a special rule of procedure for cases under S 491. Although the High Courts in India are empowered to umke rules governing the procedure in eases under Section 491, and although it is therefore apparently open to the to make special rules permitting successive identical applications, it has not been shown to us that any High Court in India has made any such rule.
46. With great respect, I regret, I cannot subscribe to the proposition enunciated in the above quotation. The argument as regards waste of time and money is an argument of expediency and can hardly be considered by a Judge exercising judicial functions. The argument of unreasonableness about the maintainability of successive applications under Section 491 to the Court in absence of any prohibition contained in the law of criminal procedure or in the rules does not appeal to me. On the other hand, it seems to me that in view of the practice prevailing in all countries like England, Canada, Nigeria etc., there would be nothing unreasonable and unjust if it is held that such applications can be-maintained. If in a place like Nigeria such practice is not unreasonable and does not lead to waste of time and money, it can hardly be argued that in a free country like India this practice would be unreasonable and would lead-to waste of time. The writ of habeas corpus is a very valuable writ to the subject as it concerns his liberty and the High Court has been given jurisdiction to issue the writ whenever it thinks fit and if at any time it can be satisfied that the writ should issue then no technicality of law should stand in the way of setting at liberty the detenu. A review by the same Judge or by a, different Judge on a question of this kind cannot, in my view, be deemed to be unreasonable when, the subject is of such importance from a constitutional point of view, I find it difficult to hold that in India at the present stage a subject's liberty should be handicapped by having resort to any of such considerations as were mentioned by the Judges in Mt. Haitian Begum v. Jawad Ali Shah, 56 ALL. 271 : A.I.R. (21) 1934 ALL. 22: 35 Cr L. j. 493). It may be that the Parliament of India may amend Section 491 and incorporate the rule of common law in this country, but till that is done, to the limited extent that relief is available under Section 491 of the Code it should be granted to the subject unless the granting of it is prohibited by any statute or any rules framed thereunder. General principles, when pressed in service, should be in support of the granting of the relief and in favour of the liberty of the subject than against it. Considerations of convenience should not be resorted to in such cases. It may be that in cases of successive applications the rule laid down by Rankin C. J. in Bameswar Khiroriwalla v. Emperor 56 cal 32 I (A.I.R. (15) 1928 Cal. 867 -. 30 Cr. L. J. '254) may be the proper one in mo3t cases to follow. His Lordship after pointing out the various-difficulties and inconsistencies that arise in different Judges hearing any such applications or their sometimes being heard by one Bench and another time by another Bench, observed as follows:
It is sufficient for purposes of the present ease to Bay that it seems to me to be wrong that this Bench should think fit under Section 491 to retry for itself the question which has already been determined by this Court in its Ordinary Original Criminal Jurisdiction or to pass an order overriding an order already made by this High Court.
Under the phraseology used in the section 'think fit,' the danger of successive applications flooding the Court with business or leading to waste of time or money can easily be avoided.
47. My answer, therefore, to the fourth question i3 that successive applications on identical grounds do not lie to every Judge of the Court, They, however lie to the Court, i. e., only to those Judges who are sitting on the Criminal Side Single Bench and there is no bar to the maintainability of those applications, because of the final decision made by the Court on a former application on identical facts.
48. As regards the reference made by my . brother Teja Singh to the Full Bench, our attention was drawn by the learned Advocate General to the fact, that the learned Judge was not sitting on the Criminal Side in Single Bench during- the whole of the period during which those applications wore entertained and were dealt with. In the roster framed on 5th April 1948, my brother was nominated to sit in Division Bench with Khosla J. on the civil side. He, therefore, was not functioning as a High Court on the criminal side and could not, therefore, hoar criminal cases, whether original or appellate. The applications which are the subject of the second reference were presented direct to my brother on 26tb May 1948, They were dismissed on 8th Juno 1918 On 9th June an application was made for their restoration and on 14th June 1948 the second set of applications was made on identical grounds direct to my brother. He dismissed the application asking for the restoration of the earlier applications of 8th June 1948. During all this period my brother had no jurisdiction either to entertain or to adjudicate upon these applications as he had not been nominated to sit on the Criminal Side Single Bench. The result is the decisions given by my learned brother on these applications are without jurisdiction and in this situation the proper course would be to return all these applications to the petitioner. Us can present these in the office or before a Judge or Judges who have jurisdiction to entertain them. It is a pity that my brother's attention was not drawn by any of the counsel to this matter, and this has resulted in unnecessary waste of the Court's time. Therefore, as far as the second reference is concerned, we have to direct that all those applications be returned to the petitioners or be laid before a Judge who ban jurisdiction to hear them.
49. Having answered all the questions referred to us I would like to suggest that in view of the state of the law discussed in this judgment, it will be meet and proper for this Court to frame rules of practice under Section 491(2), Criminal P. C. For the present I would suggest a rule on the lines of the Madras B. 2-A. This lays down that all applications under Section 491 should be heard by the Criminal Division Bench or Benches if more than one. What other rules may be framed it will be for the meeting of the Judge3 to consider and decide.
Khosla, J.
50. I agree entirely with my learned brother Mahajan J. find have nothing further to add.
Teja Singh, J.
51. I agree with my learned brother Mehr Chand Mahajan J. in the answers proposed by him to questions Nos. 2 and 3 referred to the Full Bench.
52. I also agree with him in the answer proposed by him to the fourth question. When the . question was argued before me when I was sitting in Single Bench the various aspects of the mutter were not brought to my notice. In my order of reference I expressed my concurrence with the observations made by King J. in Mt. Haydari Begum, v. Jawad Ali Shah, A. I. a.(21) 1934 ALL. 22 : 56 ALL, 271: 35 Cr. L.J. 193) and remarked that it would be contrary to the principles of procedure to allow a fresh petition to be made on the same facts and for the same object as those of a previous application when that application has been disposed of on merits. I am still inclined to think that on general principles when all the points raised in a petition under Section 491 have been disposed of by a Judge exercising jurisdiction as a High Court it is not proper to entertain a fresh petition on the same points, but, as has been pointed out by my learned brother, there being no express prohibition against the entertainment of such an application and principles of res judicata not being applicable to criminal cases the Court cannot refuse to entertain a fresh petition merely on the ground that it is based on identically the same facts upon which a previous petition had already been decided. It is, of course, open to the Court to refuse to issue a writ either for the production of the prisoner or for his release holding that since the matter baa already been considered in the previous application it sees no reason to take a different view, but this is entirely a different matter. I am aware that the view taken by us may result in institution of petitions over and over again when the points raised in them have already been disposed of in other petitions, but this difficulty, I suppose, can be overcome by making proper rules.
53. My learned brother has taken the view that a writ under Section 491 can be issued suo motu by a Judge who is sitting on the Criminal Side in Single Bench. This is not one of the matters which was referred to the Full Bench and consequently full arguments thereon were not addrea- sed before us. So I refrain from expressing my considered opinion on this point. I wish, however, to add that prima facie the words of Section 491 and the rules framed thereunder by the High Court, Lahore, which lay down that communications addressed to the High Court must be submitted to it, make me think that the Court can move only in two cases, (l) when there is a petition before it supported by an affidavit, and (2) when there is a communication addressed and forwarded to it in accordance with the rules, and that it has no jurisdiction to take any action suo motu.
54. As regards question No. 1, with extreme regret I find it difficult to ahare my learned brother's view and would answer the question in the negative. The facts which led to the institution of the amended petition by Mr. Gujral are stated in the referring order of the Hon'ble the Chief Justice, Alter the first petition had been registered Mr. Gujral approached the Deputy Registrar with a request that he be allowed to insert certain additional facts or grounds in the petition. The Deputy Registrar did not accede to Mr. Gujral's wishes and did not return the original petition to him for amendment. Mr. Gujral then stated that he would bring no amended petition and both that petition and the original petition could be disposed of together. Later on Mr. Gujral made another petition which he regarded as the amended petition, before Bhandari J. A note appended to the second petition mentioned this fact. After Bhandari J. had passed an order on the second petition Mr. Gujral went to the Deputy Registrar and requested him either to return the original petition to him or to attach it to the second petition on the ground that it had become infructuous because a fresh petition had been personally presented to another Judge. It is not denied that there is no provision either under a. 491, Criminal P. C, or in the rules framed thereunder for amendment of a petition. In fact, there is no provision in the Criminal Procedure Code for the amendment of any com. plaint, appeal or petition that can be made under the Code, The Civil Procedure Code allows amendments to be made in pleadings, including plaints and memorandum of appeals, etc, but for this permission of the Court is necessary. In the absence of any express provision bearing on the point in the Criminal Procedure Code all that can be urged is that there can be no bar to the amendment of complaints and petitions, etc, but I do not think that any amendment can be made without the permission of the Court, In this ease Mr. Gujral did not make any effort to obtain the permission of the learned Judge who was to hear the first petition. Accordingly held no right to amend that petition. Of course, there wag nothing to prevent him from making a second petition, and the fact that some of the point a taken by him in that petition were common to both the petitions was no bar to the second petition, but the first petition could not become infructuous merely because of the second petition, and both petitions, could proceed simultaneously. This was the view taken by the Calcutta High Court in Hari Satva Bishnu v.. Emperor 50 cal, 482 : R. I. R. do) 1923 Cal,. 652: 24 cr. L. J. 710) while dealing with two case arising out of the same offence and it was-held that a Magistrate is not debarred by any provision in the Criminal Procedure Code from: taking cognizance of an offence only because another Magistrate has already taken cognizance of the same and is in session of the case. It was pointed out in that case that a multiplicity of trials could be avoided by transfer of the eases to one of the Magistrates. I should think that the same principles should govern different petitions made under Section 491, Criminal P. C. when they relate to the same prisoner. As regards the contention that the first petition was withdrawn by Mr. Gujral, I have already shown by referring to the facts mentioned in the order of the Hon'ble the Chief Justice that there was no withdrawal at all. Mr, Gujral never made a statement expressing his intention to withdraw the first petition. Moreover, a prayer for withdrawal, if it was Mr. Gujral's intention to make one, should have been made in Court and to the Judge hearing the petition when the same came up before him, and when S3 made it could only take effect if allowed by the Court. In support of my view I refer to a Full Bench decision of the Lahore High Court in Emperor v. Ghulam Mohammad A.I.R. (29) 1942 Lab. 296 : 44 Cr. L. J, 14 (F B)). That was a case of an appeal by the Crown and it was held that once an appeal has been lodged and admitted it is not in the power of any Court nor in the power of the appellant to allow the appeal to be withdrawn. It was urged before their Lordships that an appellant had an absolute right to with, draw the appeal at any time before judgment was pronounced, but they rejected this contention and referred to S3. 421, 422 and 423 which lay down the procedure that the Code prescribes relating to appeals. While emphasising the fact that no provisions existed in the Code for withdrawal of appeals Dalip Singh J. who wrote the judgment of the Full Bench made the following observation:
It is curious that no provision hag been made for the withdrawal of the appeal; and this of course might be explained on the ground that the Legislature could never have contemplated that the Executive Government ... would, after making up its mind to appeal and without the discovery of any new facts, sub- sequently come to a contrary conclusion and decide not to appeal. But be that as It may, the fact remains that while provision is made for withdrawal of trials ... no provision is made for the withdrawal of appeals. In each of these actions except Section 833 the consent of the Court is necessary before a withdrawal is allowed.
55. My own opinion is that there being no provision in the Code for the withdrawal of a petition under Section 491, Criminal P. C., it must be decided on merits, even though the petitioner is not prepared to proceed with it or wishes to withdraw it, In any ease, consent of the Court is necessary before a withdrawal is allowed, and since in this case no consent was given by the Hon'ble the Chief Justice who was seized of the first petition the same did not become infructuous.