Amir Singh Vs. Emperor - Court Judgment

Excerpt:
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. the legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. it is well settled that the definition of judgment in section 2(9) of c.p.c., is much wider and more liberal, intermediary or interlocutory judgment fall in the category of orders referred to clause (a) to (w) of order 43, rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. amended section 100-a of the code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a single judge of a high court, no further appeal shall lie. even otherwise, the word judgment as defined under section 2(9) means a statement given by a judge on the grounds of a decree or order. thus the contention that against an order passed by a single judge in an appeal filed under section 104 c.p.c., a further appeal lies to a division bench cannot be accepted. the newly incorporated section 100a in clear and specific terms prohibits further appeal against the decree and judgment or order of a single judge to a division bench notwithstanding anything contained in the letters patent. the letters patent which provides for further appeal to a division bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a single judge. it has to be kept in mind that the special statute only provide for an appeal to the high court. it has not made any provision for filing appeal to a division bench against the judgment or decree or order of a single judge. no letters patent appeal shall lie against a judgment/order passed by a single judge in an appeal arising out of a proceeding under a special act. sections 100-a [as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - it is now well settled that the justification of a particular arrest is a matter which the authority directing or making the arrest has to decide, and provided the provisions of the act regarding the arrest and detention are strictly complied with the courts cannot go into it. the provincial government, the district magistrate or any servant of the crown authorised in this behalf by general or special order of the provincial government if satisfied with respect to any particular person that with a view to preventing him from acting in any manner prejudicial to the public safety or the maintenance of public order it is necessary so to do, may arrest such person without warrant, or may direct the arrest without warrant of such person and in making such arrest any means that may be necessary may be used.orderteja singh, j.1. this is a habeas corpus petition by one amir singh in respect of l. ram saran das, an advocate of bhiwani, who was arrested under section 3, punjab public safety act, on 5-2-1948. originally l. ram saran das was ordered to be detained for a period of one month, but subsequently the provincial government extended his detention to six months. the order extending the period of detention which has been placed on record is dated 4-3-1948 and is signed by the home secretary to the east punjab government. a number of questions, both of fact and law, have been raised by the petitioner, and it has been contended on his behalf that the orders both of arrest and detention of l. ram saran das were illegal and accordingly l. ram saran das must be released. it has also been asserted that there were no grounds for the arrest of l. ram saran das, since he was a peaceful citizen and had never taken any part in any kind of subversive activities and the provisions of the punjab public safety act did not justify his arrest.2. as regards the justification of the arrest and the question, namely, whether or not l. ram saran das was a person against whom action could be taken under section 3, punjab public safety act, i am afraid, this court has no jurisdiction to go into them. it is now well settled that the justification of a particular arrest is a matter which the authority directing or making the arrest has to decide, and provided the provisions of the act regarding the arrest and detention are strictly complied with the courts cannot go into it. i shall, therefore, confine myself to the question whether the arrest and the detention in question were legal and were in conformity with what is laid down in sub-sections (1) and (2) of section 3. sub-section (1) reads as follows:the provincial government, the district magistrate or any servant of the crown authorised in this behalf by general or special order of the provincial government if satisfied with respect to any particular person that with a view to preventing him from acting in any manner prejudicial to the public safety or the maintenance of public order it is necessary so to do, may arrest such person without warrant, or may direct the arrest without warrant of such person and in making such arrest any means that may be necessary may be used.the arrest in this case was made by l. harish chander sethi who was then acting as a temporary magistrate exercising first class powers and was posted at bhiwani as a resident magistrate. according to one of the notifications issued previously all magistrates of first class in the province were empowered to make or direct arrests under this sub-section and without doubt they could be regarded as persons 'authorised in this behalf by general or special order etc.' that notification was, however, superseded by notification no. 4264-h. g-47/40770 dated 2nd july 1947, and the authority to make arrests was given only to district magistrate and superintendent of police. in the original order of detention passed by l. harish chander sethi, which has been produced before me, it is mentioned that he was duly authorised by the provincial government to make the arrest. this statement is wrong, and as the notification in force at the time l. ram saran das's arrest was made was that of 2nd july 1947. l. harish chander sethi had no power to make the arrest.3. this does not, however, afford any> difficulty, because in the evidence that l. harish chander sethi gave before me on 23rd march 1948, and it may here be mentioned that his statement was taken at the instance of the petitioner's counsel, he stated' that he merely acted under the orders of the superintendent of police and it was the latter who ordered l. ram saran das's arrest. there is no reason whatsoever to disbelieve l. harish chander sethi on this point. it being clear from the notification of 2nd july 1947, that the superintendent of police was a person authorised to direct or make arrest i hold that l. ram saran das was properly arrested.4. the provision relating to the detention of a person arrested under sub-section (1) of section 3 is contained in sub-section (2). the words of the subsection are:any arrest made by or on the direction of any authority under this section other than the provincial government, shall be reported forthwith to the provincial government, by the authority so making or so directing the arrest as the case may be, and the authority making the report may by order in writing commit any person so arrested to such custody as the provincial government may by general or special order specify in this behalf.5. as i read the sub-section it lays down the following: (1) that an arrest made under sub-section (1) shall be reported to the provincial government forthwith; (2) that the report could be made either by the authority who makes the arrest or who directs the arrest; (3) that it is the authority who reports the arrest to the provincial government that can make an order committing the person arrested to such custody as the provincial government may specify; (4) that the order of detention must be in writing. since the arrest in this case was made by l. harish chander sethi under the directions of the superintendent of police it was open to either of them to report it to the provincial government. l. harish chander sethi's statement is that no report was made by him. this means that the superintendent of police must have made the report and so he alone could make the order of detention. in any case l. harish chander sethi, who did not report the arrest, could not make such order. the order produced before me, however, shows that it was made by l. harish chander sethi. for the real sons given above it is clear that the order was not made by the proper person and is illegal. as regards the order of the provincial government extending the period of detention, all that i wish to say is that when the original order of detention is illegal extension of period of detention cannot legalise it.6. in the result, i accept the petition, set aside the order of l. ram saran das's detention and set him at liberty. l. ram saran das was released by me on bail on one of the previous dates. i direct that his bail bond shall stand discharged.

Judgment:
ORDER

Teja Singh, J.

1. This is a habeas corpus petition by one Amir Singh in respect of L. Ram Saran Das, an advocate of Bhiwani, who was arrested under Section 3, Punjab Public Safety Act, on 5-2-1948. Originally L. Ram Saran Das was ordered to be detained for a period of one month, but subsequently the Provincial Government extended his detention to six months. The order extending the period of detention which has been placed on record is dated 4-3-1948 and is signed by the Home Secretary to the East Punjab Government. A number of questions, both of fact and law, have been raised by the petitioner, and it has been contended on his behalf that the orders both of arrest and detention of L. Ram Saran Das were illegal and accordingly L. Ram Saran Das must be released. It has also been asserted that there were no grounds for the arrest of L. Ram Saran Das, since he was a peaceful citizen and had never taken any part in any kind of subversive activities and the provisions of the Punjab Public Safety Act did not justify his arrest.

2. As regards the justification of the arrest and the question, namely, whether or not L. Ram Saran Das was a person against whom action could be taken under Section 3, Punjab Public Safety Act, I am afraid, this Court has no jurisdiction to go into them. It is now well settled that the justification of a particular arrest is a matter which the authority directing or making the arrest has to decide, and provided the provisions of the Act regarding the arrest and detention are strictly complied with the Courts cannot go into it. I shall, therefore, confine myself to the question whether the arrest and the detention in question were legal and were in conformity with what is laid down in Sub-sections (1) and (2) of Section 3. Sub-section (1) reads as follows:

The Provincial Government, the District Magistrate or any servant of the Crown authorised in this behalf by general or special order of the Provincial Government if satisfied with respect to any particular person that with a view to preventing him from acting in any manner prejudicial to the public safety or the maintenance of public order it is necessary so to do, may arrest such person without warrant, or may direct the arrest without warrant of such person and in making such arrest any means that may be necessary may be used.

The arrest in this case was made by L. Harish Chander Sethi who was then acting as a temporary Magistrate exercising first class powers and was posted at Bhiwani as a Resident Magistrate. According to one of the notifications issued previously all Magistrates of first class in the Province were empowered to make or direct arrests under this sub-section and without doubt they could be regarded as persons 'authorised in this behalf by general or special order etc.' That notification was, however, superseded by notification No. 4264-H. G-47/40770 dated 2nd July 1947, and the authority to make arrests was given only to District Magistrate and Superintendent of Police. In the original order of detention passed by L. Harish Chander Sethi, which has been produced before me, it is mentioned that he was duly authorised by the Provincial Government to make the arrest. This statement is wrong, and as the notification in force at the time L. Ram Saran Das's arrest was made was that of 2nd July 1947. L. Harish Chander Sethi had no power to make the arrest.

3. This does not, however, afford any> difficulty, because in the evidence that L. Harish Chander Sethi gave before me on 23rd March 1948, and it may here be mentioned that his statement was taken at the instance of the petitioner's counsel, he stated' that he merely acted under the orders of the Superintendent of Police and it was the latter who ordered L. Ram Saran Das's arrest. There is no reason whatsoever to disbelieve L. Harish Chander Sethi on this point. It being clear from the notification of 2nd July 1947, that the Superintendent of Police was a person authorised to direct or make arrest I hold that L. Ram Saran Das was properly arrested.

4. The provision relating to the detention of a person arrested under Sub-section (1) of Section 3 is contained in Sub-section (2). The words of the subsection are:

Any arrest made by or on the direction of any authority under this section other than the Provincial Government, shall be reported forthwith to the Provincial Government, by the authority so making or so directing the arrest as the case may be, and the authority making the report may by order in writing commit any person so arrested to such custody as the Provincial Government may by general or special order specify in this behalf.

5. As I read the sub-section it lays down the following: (1) That an arrest made under Sub-section (1) shall be reported to the Provincial Government forthwith; (2) that the report could be made either by the authority who makes the arrest or who directs the arrest; (3) that it is the authority who reports the arrest to the Provincial Government that can make an order committing the person arrested to such custody as the Provincial Government may specify; (4) that the order of detention must be in writing. Since the arrest in this case was made by L. Harish Chander Sethi under the directions of the Superintendent of Police it was open to either of them to report it to the Provincial Government. L. Harish Chander Sethi's statement is that no report was made by him. This means that the Superintendent of Police must have made the report and so he alone could make the order of detention. In any case L. Harish Chander Sethi, who did not report the arrest, could not make such order. The order produced before me, however, shows that it was made by L. Harish Chander Sethi. For the real sons given above it is clear that the order was not made by the proper person and is illegal. As regards the order of the Provincial Government extending the period of detention, all that I wish to say is that when the original order of detention is illegal extension of period of detention cannot legalise it.

6. In the result, I accept the petition, set aside the order of L. Ram Saran Das's detention and set him at liberty. L. Ram Saran Das was released by me on bail on one of the previous dates. I direct that his bail bond shall stand discharged.