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Report No. 40

28. Suggestions to retain power considered.- One of the comments1 received by us suggests that, the position under section 491(c) should be preserved. We think, however, that there is no need to do so. The position that exists in this respect appears to be fortuitous and not the result of any policy deliberately adopted in the matter. In another comment2, it is stated:-

"The ordinary power of requiring the attendance of a prisoner for the purpose of giving evidence in a pending proceeding is a power shared in common by all inferior and superior courts; but the power of requiring the production of a prisoner by a writ of habeas corpus belongs to the superior courts alone. In the language of the English law, the first is the power of issuing ordinary judicial writs, and the second is the power of issuing high prerogative writs.

The superior courts have both the powers, and they use the one normally and the other on extraordinary occasions, when it becomes necessary to bring out the most potent weapon in their armoury. The two powers are certainly not the same, and if provisions for the exercise of the power of the first kind by all courts are made in a certain statute and provisions for the exercise of power of the second kind by superior Courts are made in another Statute, it is a clear mistake to say that there is a discrepancy between the two sets of provisions.".

It is difficult to understand why it is a clear mistake to call a spade a spade. The above comment recognises the patent fact that the power conferred on the High Courts by section 491(1)(c) of the Code is not exactly the same as the power conferred on all criminal courts (including the High Courts when they exercise criminal jurisdiction) by the 1955-Act. We have consequently to consider whether the existence side by side of two such slightly different powers in regard to the same matter should be allowed to continue.

The direction of a High Court is equally potent to achieve its object from whichever part of its armoury of powers, whether it be the part labelled "High Prerogative" or the one marked "Statutory", it takes out the weapon. Since it is declared in Article 226 of the Constitution that every High Court shall have power to issue to any authority directions, orders or writs, including writs in the nature of habeas corpus, for any purpose, the special gleam, if any, on the power derived from the Code provisions-a gleam perhaps attributable to its chapter heading which reads "directions of the nature of a habeas corpus"-has practically faded away.

In fact, the question arises whether section 491 of the Code serves any purpose at all and whether in view of the comprehensive wording of Article 226, there is any longer any justification of keeping the said section in the Code3. While leaving this question for further consideration, we need only mention that the power under clause (c) of section 491(1) is no less statutory than the power under the 1955-Act, and when the provisions of this Act are transferred to the Code the said clause will have to be omitted.

1. Comment of the Bar Association of India.

2. Comment of the West Bengal Law Commission.

3. See Basu's Commentary on the Consitution of India, 5th Edn., Vol. 3, pp. 443-444.

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