Hon'ble Judges/Coram:
M.C. Chagla, C.J., P.B. Gajendragadkar and Y.V. Dixit

JUDGMENT

M.C. Chagla, C.J.

1. An application under Section 491, Criminal P. C., made by the petitioner came before Dixit and Shah JJ. and was rejected by them on 12-6-1950. This application is made by the petitioner for a review of that order. It is very fairly conceded by Mr. Sule that in view of the decision of a Full Bench of this Court reported in Emperor v. Malhari 50 Bom. L. R. 188 : A. I. R. 1948 Bom 826: 49 Cri. L. J. 460 , such a review application would not lie. A further application is made bythe petitioner that although a review may not lie it is the right of the petitioner to make an application for a writ of habeas corpus under Article 226 of the Constitution to successive Judges of this Court, and in pursuance of that right he is entitled to be heard by Judges other than Judges who made the order.

2. A very able argument has been advanced before us by Mr. Sule which deserves very careful consideration at our hands. It is argued that although under Section 491 successive applications may not be permissible to a petitioner, Article 226 of the Constitution enhances the rights of the citizen and under that article he has the right in enforcement of his fundamental rights to present successive applications to different Judges of this Court; Article 226 empowers every High Court to issue directions, orders or writs for the enforcement of any of the rights conferred by Part III and for any other purpose. In this category of directions, orders or writs are included writs in the nature of habeas corpus and it is clear that the writs in the nature of habeas corpus are the orders that the High Court makes under Section 491, Criminal P. C. It has now been well settled by a decision of the Privy Council in C. P. Matthen v. District Magistrate, Trivandrum MANU/PR/0033/1939 that on the enactment of Section 491, Criminal P. C., the power of the High Court to issue the common law writ of habeas corpus was taken away and in place of that common law writ the only power that the High Courts had was to pass orders under Section 491. The Privy Council fully approved the considered judgment of the Full Bench of the Madras High Court reported in the same volume at p. 708, District Magistrate, Trivandrum v. Mammen Mappillai I. L. R. 1989 Mad. 708 : A. I. R. 1989 Mad. 120 : 40 Cri. L. J. 320. Therefore, before the Constitution was enacted it is clear that the High Courts had no longer the power to issue the common law writ of habeas corpus. The question that we have to consider is whether Article 226 has made any change in the powers of the High Court. The power of the High Court under Article 226 is no longer confined to issuing writs in the nature of habeas corpus. It has been given the power to issue any direction, any order, or any writ for the purpose of enforcing fundamental rights, and it seems to us that Mr. Sule is right to the extent that the High Court may think it necessary to issue the common law writ of habeas corpus for the enforcement of fundamental rights it has been given that power notwithstanding the fact that that power may be outside Section 491 and may be wider than the power conferred under that section.

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