The Common Law in India - College of Social Sciences and ...

The Rise of the Common Law 89required." i2 The court decided that " The powerof the late Supreme Court to issue writs of habeascorpus to persons in the mofussil has been assertedfrom the time of the promulgation of the Charter tothe present day, and is admitted in the case of ReThe Bombay Justices." The decision referred to bythe court was that of the Judicial Committee of thePrivy Council. The correctness of the view that theSupreme Court had the power to issue the writ outsidethe Presidency Towns was questioned in later casesand was finally set at rest by a decision of the PrivyCouncil as late as the year 1943 that the power ofthe Supreme Court was restricted to persons withinthe Presidency Towns and extended only to theBritish subjects in the mofussil. 43Soon after the decision of Justice Norman camethe enactment of the Criminal Procedure Code of1872 which conferred the right to issue " orders inthe nature of habeas corpus " in the case of detentionof European British subjects both within and outsidethe Presidency Towns. The Code, however, clearlyprovided that the High Court was not otherwise tohave the power to issue the writ of habeas corpusoutside the Presidency Towns. Successive Codes madesome alterations in this provision and finally came theCode of 1898 which by the enactment of section 491empowered the High Courts at Calcutta, Madras andBombay to issue " directions of the nature of a habeascorpus." As the enactment stood it enabled only« In the matter of Ameer Khan (1870) 6 Bengal L.E. 392, 444.« Ryots of Garabandho v. Zamindar of Parlakimedi (1943) 70Ind.App. 129.