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Report No. 40

29. Power of High Courts under section 491(1)(d).- Clause (d) of section 451(1) empowers a High Court to direct1 that a prisoner detained in the State or Union territory be brought before a court-martial or any commissioners for trial or to be examined touching any matter before such court-martial or commissioners, respectively. While the reference to a court-martial is readily understandable, the reference to "commissioners" requires explanation. In the Code as enacted in 1898, the reference2 was to any commissioners3 "acting under the authority of any commission from the Governor General-in-Council".

These words were omitted by the Government of India (Adaptation of Indian Laws) Order, 1937, for reasons which are not easy to appreciate. The result was to leave the words "any commissioners" completely unqualified, and to make it impossible to understand what sort of "commissioners" were intended to be benefited by the provision. It is doubtful whether in recent years any High Court had occasion to issue a direction under clause (d) to facilitate a trial or inquiry before "any commissioners". If at all the power is needed for a commission set up under the Commissions of Inquiry Act, 1952, or similar statutory commissions, the matter can be provided for by the relevant Act.

It is unnecessary to retain it in section 491. After omission of this portion of section 491(1)(d), it will apply only to courts-martial, for which section 549 of the Code of Criminal Procedure is the more appropriate place. Therefore, we recommend that clause (d) of section 491(1) may be omitted, and in section 549 of the Code, a sub-section on the lines of section 491(1)(d), modified as above, may be added. We do not consider it necessary from the practical point of view that this clause should apply in relation to persons under preventive detention, or to prisoners detained in prisons outside the jurisdiction of the High Court.

1. This corresponds to the writ known in England as habeas corpus ad respondentum. The original object of this writ was to bring up a prisoner confined by the process of an inferior court and to charge him on any cause of action in the superior court. At present, however, it is used to bring up prisoners who are detained in custody under civil or criminal process, before magistrates or courts of record for trial or examination on any other charge.

2. This was apparently a short and simple adoption for Indian conditions of the provision in the Habeas Corpus Act, 1803 (43 Geo. 3, C. 40), which empowers a court of record to award a writ or writs of habeas corpus for bringing any prisoner or prisoners before any court-martial, or before any commissioners of bankruptcy, commissioners for auditing the public accounts or other, commissioners acting by virtue or under the authority of any commission or warrant from His Majesty, his heirs or successors for trial or to be examined touching any matter pending before such court-martial or commissioners respectively.

3. See para. 6, supra.

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