ORDER
Yahya Ali, J.
1. In In re Venkataraman, cri. M. P. Nos. 883 and 916 of 1948 which were dismissed by me on 19th May 1948 : A.I.B. (36) 1.949 Mad. 629: 60 cr. L. J, 748) an application was made orally by the learned Counsel for the petitioners for; leave to appeal to the Federal Court, and as it wag then brought to my notice by the Public Prosecutor that it had recently been held by a Bench of this Court that; an appeal did not lie against an Order made under Section 491, Criminal P. C., I posted the matter to be heard on the point to this date with regard to both these applications, In the meantime a written application has been made in cri. M. p, No. 883 of 1948 for leave to appeal to the Federal Court against the Order and judgment in that case.
2. Under Section 3 (a), Federal Court (Enlarge-ment of Jurisdiction) Act, 1947, which came into force on 5th January 1948 it is provided that an appeal shall lie to the Federal Court from any judgment to which this Act applies.” In Section 2 (b) the expression “judgment to which this Act applies” is defined to mean
any judgment, decree Cr final Order of a High Court in a civil ease from which a direct appeal could have been brought to His Majesty in Council either with Cr without special leave, if this Act had not been passed
It has been held by Horwill and Govinda Menon JJ. in In re Sivasankara Thevar, c. M. P. No. 2849 of 1948 : A.I.R. (36) 1949 Mad. 192, which arose out of an Order made in Cri. M. p. No. 489 of 1948 under Section 491, Criminal P.O., that an Order made under Section 491 was in the exercise of criminal jurisdiction of this Court, and that, in any cafe, it was not in the exercise of civil jurisdiction within the meaning of the Federal Court (Enlargement of Jurisdiction) Act, 1947 (Act I of 1948). It was in that view held by the learned Judges that no appeal lay to the Federal Court against an Order made’ under Section 491, Criminal P. C. In the course of that judgment/reference was made to a number of decisions, and adverting to the Privy Council decision in Emperor v. Sibnath Banerjee 1945 M. w. n. cr. 94 : A.I.R. (32) 1945 p. C-. 156, it was pointed out that the Privy Council assumed that the jurisdiction exercised by the High Court under Section 491 was criminal. In the case before the Privy Council the question arose, treating the matter as one falling within the criminal jurisdiction of the High Court, whether an appeal lay against the judgment of the High Court to the Federal Court and in turn against the judgment of the Federal Court to the Privy Council. The conclusion arrived at by their Lordships was that although there is no specific right of appeal provided under the Criminal Procedure Code against Orders passed under 9. 491, Section 205 of the Government of India Act, provides one of the exceptions refer, red to in Section 404, Criminal P. C. and that Section 305, Constitution Act, relates both to criminal and civil jurisdictions of the High Courts. The result of this ruling is that, where questions affecting the interpretation of the Constitution Act Cr of Orders in Council passed thereunder are involved in the disposal of a case under Section 491, Criminal P. C., a right of appeal would arise under Section 205, Government of India Act.
3. A contention now put forward by Mr. A. K. Pillai in In re Venkataraman, Cri. m, p. No, 883 of 1948: 50 Cr. L. J. 748 is that the case falls within the exception pointed out by the Judicial Committed. The argument is that under 6, 59, Government of India Act, 1936, “all executive action of the Government of a Province shall be expressed to be taken in the name of the Governor” and that
Orders and other instruments made and executed in the name of the Governor shall be authenticated in such manner as may be specified in rules to be made by the Governor….
It is argued that the Orders in this case did not conform to the requirements of Section 69, In the present case, however, the Order of detention was passed by the Commissioner of Police under powers duly vested in him on that behalf. No Orders were passed or other instruments made by the Provincial Government. What was done, as required under Madras Act no, I of 1947, was that after the Commissioner of Police communicated to the Provincial Government the Order of detention and the grounds, the Provincial Government sent to the detenu in turn certain grounds and particulars as prescribed under 8. 8 of that Act, It was only a memorandum despatching to the detenu the grounds of the detention which had been Ordered by another authority duly constituted. Clearly, therefore, B. 59 has no application to an instance of this kind.
4. Secondly Section 69 (1), Constitution Act deals with the normal executive activities of Government which are not covered by statute. It does not purport to limit the scope and extent of any special enactment passed by a competent legislature and within its province. Act I of 1947 confers upon the Provincial Government the power of detention and authCrises them to delegate those powers to other officers. No objection has been Cr can be taken to the Order of detention made in this case as having contravened the provisions of 8. 69 (1), Constitution Act.
5. Thirdly no question of the interpretation of Section 69 is involved here; nor was one raised in the affidavits Cr even Orally at the time of the hearing of the petition. The application was first heard on 4th and 6th May when Mr. Mani argued the case. It was subsequently posted for the examination of the Commissioner of Police, Madras, on the 18th and heard again on that date, when Mr. A. K. Pillai further agued the case on behalf of the petitioner. Immediately after the close of the hearing, judgment was pronounced on that day and on the following day, when the judgment was concluded on the 19th, Mr. Ramchandran Orally asked for leave to appeal to the Federal Court against the Order which was then pronounced, and as already stated, the matter was adjourned to this date for bearing. At none of these stages did either Mr. Mani Cr Mr. A, K. Pillai Cr Mr. Ramachandran raise the contention that there was a contravention of Section 59, Government of India Act, Cr invite the Court to apply the provisions of that Act to the memorandum that was sent by the Provincial Government containing the grounds of detention. The only argument that had been raised on 4th by Mr. Mani was that the copy of the grounds that was delivered to the petitioner at the Central Jail, Vellore, was signed by one Mr. M. G. Menon, and a doubt was raised as to who he was and what authority he had to sign on behalf of the Chief Secretary, who was however admitted to be the proper and duly constituted authority for signing such communications on behalf of the Provincial Government. The only doubt was as to the genuineness of the copy of the memorandum that was served. It was that contention that was mentioned by me in my judgment in In re Vencataraman, Cri. M. P. No, 883 of 1948 : A.I.R. (36) 1949 Mad. 529). No questions were raised to the effect that an Order had been passed by the Provincial Government and that it had to be, if it was to be valid, in the name of the Governor, and that since the memorandum did not purport to have been issued by the Chief Secretary in the name of the Governor it involved a question under Section 59, Government of India Act.
6. Mr. A, K. Pillai drew my attention to Sub-section (1) of Section 205 in which it is stated that
it shall be the duty of every High Court to consider in every case whether Cr not any such question is involved and of its own motion to give Cr to withhold a certificate accordingly.
As already stated, there is no question of the ineterpretation of the Constitution Act Cr of any Order in Council made thereunder involved in these proceedings. I am, therefore, of opinion that neither of those two provisions of the Government of India Act has any application to this case and as this is not a case falling within the ambit of Section 205, I am bound by the Bench decision of this Court above referred to. I must hold that since these are Orders passed in the exercise of criminal jurisdiction no appeal lies to the Federal Court under the provisions of the Federal Court (Enlargement of Jurisdiction) Act, 1947.
7. Leave to appeal is refused.