ORDER
Abdur Rahim, Officiating C.J.
1. This petition is under Sections 108 and 107 of the Government of India Act, 5 and 6 George V.C. 61 and Section 435 of the Code of Criminal Procedure asking us to revise the order of the Chief Presidency Magistrate requiring deposit of security from the petitioner. I have already dealt with the contention of Mrs. Annie Besant in the petition under Section 17 of the Press Act and held that the order was made in excess of the power conferred on the Magistrate but that there was no provision in the Press Act itself which would enable us to revise the order.
2. Under Section 105 of the Government of India Act which continues in this High Court all the powers and authority already vested in it we are asked to quash the proceedings of the Magistrate by means of a writ of certiorari. The old Supreme Court of Madras which is now absorbed in the High Court had all the jurisdiction and authority of the Court of the King’s Bench in England which included the power to issue writs of certiorari. (See 39 and 40 George III Chapter 79 and the Letters Patent of 1800). That power has been preserved to the Madras High Court by the High Courts (Charter) Act 1861, the Charter Act of 1865, Letters Patent, Madras 1865 and lastly the Government of India Act 1915. It is not shown that this jurisdiction has been taken away by any act of the legislature which could only be done by express words or by necessary implication.
3. I find nothing in Section 22 of the Press Act which can be said o have deprived the High Court of this power. Section 22 says “every declaration of forfeiture purporting to be made under this Act shall as against all persons be conclusive evidence that the forfeiture therein referred to has taken place, and no proceeding purporting to be taken under this Act shall be called in question by any Court except the High Court on such application as aforesaid….” The first part I have no doubt does not refer to the validity of an order of forfeiture but to the fact that it has been made. And I do not see how it is possible to read the words “and no proceeding purporting to be taken under this Act” as including any order of the Magistrate under Section 3(1), otherwise the passage would run thus “and no proceeding purporting to be taken under this Act including an order of the Magistrate under Section 3(1) shall be called in question by any Court except the High Court on such application as aforesaid.” This would make no meaning. The application referred to there is an application under Section 17, that is to set aside an order of forfeiture and that clearly shows that the proceeding in contemplation of the legislature is a proceeding under Section 4 and under similar sections of the Act and not a proceeding under Section 3 which has nothing to do with forfeitures at all. This may be an omission on the part of the Legislature but we have to give effect to the Act as we find it.
4. There can be no doubt whatever that this High Court has jurisdiction to issue writs of certiorari in order to remove the proceedings of courts or of persons entrusted with Judicial functions out of ordinary course of legal procedure for the purpose of quashing them. It was stated at the bar that no instance of the issue of such writs by this Court is to be found on record. But that would not extinguish the jurisdiction. It is true as pointed out by the Advocate-General that many of the powers which the King’s Bench exercises in England by means of writ of certiorari have been expressly conferred upon the High Courts in India by different legislative enactments such as Section 15 of the Letters Patent, Section 115 of the Civil Procedure Code, Section 25 of the Provincial Small Cause Courts Act and Section 435 of the Criminal Procedure Code, etc.
5. But these powers of revision and control are available only over the proceedings of ordinary Courts; while a writ of certiorari is issued not only to Courts but to tribunals specially constituted and entrusted with duties of a judicial character. For instance in England the proceedings of Censors of the Royal College of Physicians, of the Commissioners of Sewers, of Canal Commissioners, of Sheriffs and of Licensing Justices have been held to be subject to the writ. “Writs of certiorari have also been issued by the Calcutta and Bombay High Courts. In Nundo Lal Bose v. The Corporation for the Town of Calcutta (1885) I.L.R. 11 C. 275 an assessment made by the Commissioners of the town of Calcutta was removed to the High Court by a writ of certiorari and quashed by Chief Justice Garth and Justice Wilson. The learned Judges in that case do not appear to have entertained any doubt whatever that they had jurisdiction to issue the writ. The first and essential question on this application is whether the taking of security by the Magistrate under Section 3(1) of the Press Act was a ministerial or Judicial Act. If the former, it is conceded that we cannot interfere even by a writ of certiorari much less under Section 435, Criminal Procedure Code or under the power of superintendence which we possess over the inferior Courts under Section 107 of the Government of India Act.
6. That the writ lies only with respect to judicial acts is well established (see Halsbury’s Laws of England, Vol. 10, para, 338). Whether an act is judicial or not depends on the nature of the powers conferred by the legislature, the character of the act sought to be quashed and the nature and extent of the discretion vested with the authority and other similar considerations. Our attention has been drawn to many English cases in which writs of certiorari have been issued by the King’s Bench in England. In some of them it looks as if the line of differentiation between a judicial and administrative act was very faint. But whether any particular function was of a judicial character or not in those cases depended on the provisions of the particular statutes concerned and no good purpose would be served by reviewing them.
7. Now what are the functions of the Magistrate under Section 3(1) of the Press Act? Every keeper of a Printing Press is required to deposit security and all that the Magistrate has to do, is to say what should be the amount of security provided it is not less than Rupees 500 or more than Rs. 2,000. The matter is left entirely to his discretion and so is the question whether he should or should not cancel or vary any order that he may make in this connection. He is not required to hear the owner of the printing press or to take any evidence. He is not to conform to any conditions or formality before passing any such order. In fact it cannot be said that there is any “case” “or cause” before him which he has to adjudicate upon. The discretion which is vested in him, such as it is, is absolute; it has all the attributes of an executive and not a judicial discretion. I do not see how it would be possible for any one asked to revise such an order as the Magistrate is empowered to pass, to say whether it is proper or not. No doubt when a Magistrate dispenses with the deposit of security, he can do so only for special reasons to be recorded by him. Having regard however to the whole scheme of the Act, I do not think that those reasons are required in order to enable the High Court to make any pronouncement upon them. They are apparently required for the information of Government. What is also of importance in judging of the intentions of the legislature as to whether the proceedings of the Magistrate under Section 3(1) are to be regarded as judicial in character or not is the provision of Section 11 by which Magistrates purporting to act under the Act are especially exempted from all civil or criminal liability. That would not have been necessary if the Magistrate in exercising his powers under Section 3(1) were acting as a judicial tribunal.
8. The Indian decisions which approach at all near this case are Sivagami Achi v. Subrahmania Ayyar (1908) I.L.R. 27 M. 259, where it was held by a Full Bench of this Court that the proceeding of a Court under Section 287 of the Code of Civil Procedure settling a proclamation of a sale of property in execution is of an administrative and not of a judicial character, Shankar Sarup v. Mejo Mal (1887) I.L.R. 11 M. 26, where an order of distribution under Section 295 of the Code of Civil Procedure was held by the Privy Council to be in the nature of an administrative act, Minakshi v. Subramanya (1887) I.L.R. 11 M. 26, which decides that no appeal lies from an order of a District Judge appointing a member of a Committee of a temple, and Vijiaraghavalu Pillai v. Theagaroya Chetti (1914) I.L.R. 38 M. 581, in which it was held that the High Court has no jurisdiction to revise an order passed by a Presidency Magistrate in an enquiry held by virtue of the rules framed by Government under the Madras City Municipal Act, III of 1904 as to the competency or otherwise of a candidate for a Municipal election.
9. Mr. C.P. Ramaswami Aiyar who argued the case of the petitioner with great ability referred us to a number of decisions of the Calcutta High Court in which they set aside orders of District Judges declaring certain persons to be touts within the meaning of the Legal Practitioners’ Act. It is perfectly clear from Section 36 of that Act that the function to be exercised by the Courts mentioned therein is judicial in nature. They have to hear the persons sought to be proceeded against and to take evidence and their order must conform to certain conditions.
10. The other contention of the Advocate General that proceedings will not be removed into the superior Court by a writ unless they are capable of being determined there is also well established (see Halsbury, Vol. 10, para, 335, page 170 and the cases cited there). None of the matters which are left to the determination of the Chief Presidency Magistrate by Section 3(1) of the Press Act are such that this Court would be in a position to deal with at all satisfactorily. A writ is granted only in respect of matters which but for some especial legislation creating especial tribunals would have been within the ordinary jurisdiction of the superior Court. The Press Act has conferred upon the Presidency Magistrate novel powers which were never known to be exercised by this Court or by any Subordinate Court in the land. He is to take security from every person keeping a Printing Press and it is left entirely to his discretion whether to dispense with the security or not. There need be no question of the likelihood of the owner of the Press committing any offence or doing any acts to the injury of the public or of any individual, as in the cases covered by Chapter 8 of the Criminal Procedure Code.
11. I may also notice here the contention of the Advocate General that the Indian Press Act of 1910 is a self-contained enactment. He points out that it provides for its own rules of procedure and evidence, (see Sections 21, 25 and Section 20) creates a special Court of Appeal for revising certain orders passed under the Act (Section 18) and expressly limits jurisdiction of the ordinary Courts in respect of the principal matters dealt with by the Act (Section 22). None of these provisions however singly or collectively have necessarily the effect of taking away our revisional jurisdiction over the proceedings of the Magistrate if he was acting, judicially.
12. The legislature, however in delegating to the Magistrate the functions under Section 3(1), does not regard him as a Court but as an Executive Officer entrusted with the performance of certain administrative duties. If an executive or an administrative Officer acts in excess of his powers, such acts are not liable to be reviewed by the High Court whether by means of a writ of certiorari or under its ordinary revisional powers. The only remedy open to an aggrieved person in such cases would be by an action.
Ayling, J.
1. This is a petition presented on behalf of Mrs. Annie Besant, Editor of “New India” and keeper of the “New India Printing Works.” It is connected with O.P. No. 122 of 1916. In that petition presented under Section 17 of the Press Act (I of 1910) we were asked to set aside the order of forfeiture of security passed by the Madras Government on 25th August 1916 under Section 4 of the same. The present petition which was presented during the hearing of the other asks for the cancellation of an earlier order of the Chief Presidency Magistrate, dated 22nd May 1916, in which he required petitioner to deposit security to the amount of Rs. 2,000 under Section 3(1) of the Act. This security was duly deposited : and is the security which was declared forfeited by the order of Government dated 25th August 1916.
2. The main ground alleged in the present petition for setting aside the Chief Presidency Magistrate’s order is that it was passed without jurisdiction; but Section 7 of the petition runs
7. That the order of the Magistrate is further invalid because the Press Act or in any event Section 4 thereof is ultra vires of the powers of the Governor-General in the Legislative Council.
3. This was not seriously pressed. We have nothing to do here with Section 4. If, as is suggested, the whole Press Act is ultra vires and of no effect, it is open to petitioner to seek her remedy in the ordinary Courts. It is no possible ground for the exercise of our revisional jurisdiction.
4. The contentions of Mr. C.P. Ramaswami Aiyar, who argued the case very ably and fully for the petitioner, may be summarised as follows:
A. That the order of the Chief Presidency Magistrate, dated 22nd May 1916, was ultra vires, because, by a previous order, dated 2nd December 1914, he had passed an order dispensing with security in respect of this Press, and had thereby exhausted his powers under Section 3. He could not afterwards “cancel or vary” it.
B. That it is open to us to set aside the said order dated 22ad May 1916 in exercise of our powers under Sections 105 and 107 of the Government of India Act of 1915.
Section 435 of the Criminal Procedure Code was also referred to in the petition; but was not relied on in argument as adding anything to the above.
C. That we should exercise our power and set the order aside.
5. It is not suggested that we can order return of the security; but that our order will set petitioner free to pursue her remedy further at Common Law.
6. Each of these positions requires careful examination.
7. The first, A, depends on the proper construction of Section 3(1) of the Press Act, which runs as follows:
Every person keeping a printing-press who is required to make a declaration under Section 4 of the Press and Registration of Books Act, 1867; shall, at the time of making the same, deposit with the Magistrate before whom the declaration is made security to such an amount, not being less than 500 or more than 2,000 Rupees, as the Magistrate may in each case think fit to require, in money or the equivalent thereof in securities of the Government of India.
Provided that the Magistrate may, if he thinks fit, for special reasons to be recorded by him, dispense with the deposit of any security or may from time to time cancel or vary any order under this sub-section.
8. It is beyond dispute that on 2nd December 1914, the Chief Presidency Magistrate passed an order under the first part of the proviso dispensing with the deposit of any security for the petitioner’s press. The contention is that this order is irrevocable : and that, once it is passed, the press is exempt from all possible liability for security under the Act as long as it remains in the same hands.
9. It is argued, (1) that the words “any order under this section” do not cover an order dispensing with security; and (2) that the proviso merely gives the Magistrate an option of two alternatives (a) to dispense, (b) to cancel or vary, of both of which he cannot avail himself.
10. Some argument was also devoted to the question of whether the clause requiring the record of special reasons applied to an order cancelling or varying. I feel no doubt whatever that they do not. Their position, enclosed between the words “may” and “dispense,” to my mind clearly indicates that their operation is limited to an order dispensing with security. If the first “may” followed instead of preceded the words “if he thinks fit, for special reasons to be recorded by him”, it would be different.
11. Now returning to the first argument above recited, it is, I think, clear that the term “proviso” as applied to the second paragraph of Sub-Section 3(1) is a misnomer. As pointed out by the learned Officiating Chief Justice in the course of argument, the effect of the paragraph is simply to give the Magistrate additional powers over and above those conferred by the first paragraph. To quote from Lord Halsbury “The substance, and not the form, must, however, be looked at, and that which is in form a proviso may in substance be a fresh enactment, adding to and not merely qualifying that which gees before.” Halsbury’s Laws of England, Volume 27, page 137.
12. This being so, the sub-section must be treated as a whole; and there is no reason why the words “any order” should not cover an order dispensing with security. As the Advocate General very pertinently argued, had the intention of the framers of the Act been that ascribed to them by Mr. Ramaswami Aiyar, in place of “any order under this sub-section”, we should have “any other order under this sub-section”. There is no reason why we should read into the “proviso” the word “other” as petitioner’s case requires us to.
13. Just as the first argument requires the insertion of the word “other”, so, it seems to me, the second argument requires the insertion of the word “either” after the first “may”. It is hardly necessary to say that where a person is by statute empowered to take a course A or take a course B, the one is not necessarily exclusive of the other and in fact, will not be, unless there is something to suggest a choice between two alternatives. There is nothing of the kind here : and the words “from time to time” are strongly against such an interpretation.
14. The sub-section may not be a triumph of draftsmanship : but its meaning seems to me to be reasonably clear. It is designed to give the Magistrate the fullest discretion both as regards requiring security and determining the amount : and this discretion is to be exercised not once for all, but may be revised from time to time.
15. If this be, as I think, the true construction, then the order of the Chief Presidency Magistrate passed on 22nd May 1916 was perfectly legal.
16. Passing then to the second point B, supposing that the order of the Chief Presidency Magistrate of 22nd May 1916, was bad for want of jurisdiction by reason of his previous order dated 2nd December 1914, what powers of interference do we possess?
17. The petition as originally presented referred us to Section 107, Government of India Act, 1915, which is substantially identical with Section 15 of the Charter Act but at the outset of the hearing petitioner was allowed leave to add Section 1U6 of the same. The object was to include the power of interference by way of certiorari which was said to be covered by the latter section. Neither side were able to refer us to a single instance in which this power has been exercised by this Court, and whether Section 106 really adds anything to the powers of superintendence under Section 107 was the subject of much argument; as also whether this was a case of the class to which writs of certiorari apply. The main difficulty in petitioner’s way is, however, Section 22 of the Press Act. This runs as follows:
Every declaration of forfeiture purporting to be made under this Act shall, as against all persons, be conclusive evidence that the forfeiture therein referred to has taken place, and no proceeding purporting to be taken under this Act shall be called in question by any Court, except the High Court on such application as aforesaid, and no civil or criminal proceeding, except as provided by this Act, shall be instituted against any person for anything done or in good faith intended to be done under this Act.
18. The second clause which I have italicised is the important one, and everything turns on the effect to be given to it. It seems to me to be absolutely comprehensive. To quote the language of Jenkins, C.J. in connection with another section of the Act. “Its language is as wide as human ingenuity could make it.”
19. I cannot for a moment entertain the suggestion that it only applies to proceedings by way of forfeiture. There is nothing to support such a reading. The language is clear – “no proceeding purporting to be taken under this Act” : and it must be held to include the proceedings of a Magistrate under Section 3(1).
20. I must also reject without hesitation the argument that the Chief Presidency Magistrate’s order dated 22nd May 1916 did not purport to be one under Section 3(1). A perusal of this order itself is sufficient.
21. Mr. Ramaswami Aiyar has, however, argued that in spite of this section, the power of the Court to interfere by way of certiorari is left unaffected, provided the proceedings were taken without jurisdiction, The case mainly relied on by him is that of Ex parte Bradlaugh 3 Q.B.D. in which the learned Judges held that a section in an Act of Parliament taking away certiorari did not apply where there was an absence of jurisdiction, or, as Cockburn, C.J. put it, “where the application for the certiorari is on the ground that the inferior tribunal has exceeded the limits of its jurisdiction.”
22. I have very carefully considered this decision, but it seems to me that the principle therein enunciated is not applicable to the present case. Whether the power of interference by certiorari is taken away absolutely or only in respect of proceedings with jurisdiction must depend in each case on the wording of the statute which takes the power away. No one contends that it is not within the competence of the Legislature to take it away altogether; and in cases of a newly constituted offence or liability, it might, without any undue jealousy of the power of the Court, elect to do so. It is in this connection that the greatest importance attaches to the words in Section 22 “proceeding purporting to be taken under this Act”. There is nothing corresponding to this in 2 and 3 Vict. C. 71, the Act which was relied on as taking away the certiorari in Ex parte Bradlaugh 3 Q.B.D. 509. This, as it seems to me, makes all the difference. The reason underlying the decision above quoted and others to the same effect is thus concisely stated by Lord Halsbury : “Although certiorari is taken away, it may be granted even on the application of the defendant where the inferior Court has acted without or in excess of jurisdiction for in such a case the Court has not brought itself within the terms of the statute taking away certiorari”.
23. Here the jurisdiction of this Court is equally barred in respect of proceedings purporting to be taken under the Press Act, as in respect of proceedings taken under the said Act with jurisdiction.
24. There is really nothing very startling in this view of the matter. The Press Act is an entirely new enactment brought into force in the interests of public tranquillity and imposing novel liabilities on the keepers of presses and publishers of newspapers chiefly in the matter of security. As far as can be seen it is self-contained and complete : and reference to the Courts of Law is only left open by Section 23 (which relates to prosecution before a Magistrate for failure to deposit security), and applications to this Court under Section 17. As regards the latter, Sections 17 – 21 limit most carefully the scope of the enquiry; and the nature of the order to be passed : they also provide for the constitution of a special tribunal, and for the enactment of special rules for its procedure together with a special provision as regards evidence (Section 20). Apart from this, Section 22 bars the jurisdiction of all Courts as regards proceedings purporting to be taken under the Act. It is open to any one to argue that the enactment is unnecessary or impolitic : but there is nothing which would justify us in refusing to give effect to what seems to be its plain meaning. I am of opinion that by reason of Section 22 it is not open to us to set aside the Chief Presidency Magistrate’s order.
25. Either of the above points is sufficient to dispose of the petition : and I only add a few words because they are both points on which I have the misfortune to differ from the learned Officiating Chief Justice and from my learned brother, Seshagiri Aiyar, J. There remains the question of whether the order of the Chief Presidency Magistrate is of such a nature that we could interfere with it under Section 106 or 107 of the Government of India Act even if we ware not prevented by Section 22 of the Press Act. This is a matter in which I feel considerable doubt due chiefly to the very wide interpretation given by the English Courts in numerous cases to the expression “Judicial act.” I recognise however the force of the arguments on the other side : and will merely say that if it were in my view necessary to determine this question I should not be prepared to dissent from the conclusion arrived at by the learned Officiating Chief Justice and Seshagiri Aiyar, J. I would however prefer to base my decision on the grounds set forth above.
26. I may add that, even assuming that we possess the power of interference under either section, it would still be, to me, a matter of grave consideration, whether that power should be exercised in this case. (Point C). I am not prepared to accept the Advocate General’s contention that by depositing the security as required by the order, petitioner waived her right to subsequently question its validity. But if the order was illegal, it was open to her to petition this Court the very next day to exercise its powers under Sections 106 and 107. Instead of this she took no action whatever till more than 3 months later when the Government, proceeding on the assumption that the initial order of the Magistrate was valid, took further steps under Section 4 and forefeited the security. In other words, she waited until the matter had reached another stage altogether before questioning the legality of the order.
27. Our exercise of these extraordinary powers is always discretionary : and I doubt whether in such circumstances we should feel called upon to exercise our power.
Seshagiri Aiyar, J.
1. This is an application to revise the order of the Chief Presidency Magistrate calling upon the petitioner to deposit security. Mr. C.P. Ramaswami Aiyar asked the permission of the Court, at the outset, to include Section 106 of the Government of India Act of 1915 among the provisions of law he relied on. The point argued related to the powers of the High Court to call up and revise the proceedings of the learned Chief Presidency Magistrate. Before dealing with the specific questions discussed, a short resume of the history of the jurisdiction of the High Court over such matters may be given.
2. In the Letters Patent establishing the Supreme Court of Judicature at Madras, dated 26th December 1800 (39 and 40 Geo III, Chap. 79), it was stated that the Court “shall have such jurisdiction and authority as our Justices of our Court of King’s Bench have, and may lawfully exercise, within that part of Great Britain, called England, as far as circumstances will admit.” By 24 and 25 Vict. Chap. 104, the High Court was constituted. Under Section 9 of the Act it was provided that “the High Court to be established in each Presidency shall have and exercise all jurisdiction and every power and authority whatsoever in any manner vested in any of the Courts in the same Presidency abolished under this Act at the time of the abolition of such last mentioned Courts”, By Section 8, the Supreme and the Sudder Courts were abolished, and the records of those Courts became “records and documents of the High Court established in the Presidency”, It is thus clear that the High Court inherited all the powers which the old Supreme Court had. Section 10 which deals with the powers exercised over persons living beyond the local limits of the original jurisdiction need not be considered in this connection. The Letters Patent accompanying the chapter distinctly enacts by Section 16 that “the said High Court of Judicature at Madras shall have the like power and authority with respect to the parsons and eatates of infants, idiots and lunatics, whether within or without the Presidency of Madras, as that which is now vested in the said Supreme Court of Madras”. Then came 28 Vict. Chap. 15. The Letters Patent issued with reference to this statute re-enacted by Section 17 the powers given already, and stated that the powers hitherto “exercised before the publication of these presents” shall vest in the High Court. The Consolidating Act of 1915 confirms the said powers by enacting that the High Court shall have such jurisdiction “as are vested in them by Letters Patent, and, subject to the provisions of any such Letters Patent, all such jurisdiction powers and authority as are vested in those Courts respectively at the commencement of this Act”. It is apparent from these recitals that the High Court has the same powers over persons resident within the local limits of its ordinary original jurisdiction as are exercised by the Court of the King’s Bench in England.
3. Mr. Ramaswami Aiyar’s contention was that as the Chief Presidency Magistrate is subject to the appellate jurisdiction of the High Court, his order demanding security should be revised by us. He asked us to issue a writ of certiorari against the Magistrate’s proceedings. The solution of this question involves the determination of the following among other points:
A. Is the writ in form and substance available to the petitioner?
B. Is our jurisdiction taken away by virtue of the provisions of Section 22 of the Press Act?
C. Is the Chief Presidency Magistrate, in performing his duties under the Press Act, amenable to our jurisdiction?
D. Is the action of that functionary illegal or irregular?
4. As regards the first of these questions, the earned Advocate General argued that as the Press Act created a new kind of liability which cannot be said to correlate to any of the common law rights possessed by the subject, this Court inheriting the rights of the Court of the King’s Bench, had no right to interfere. One broad proposition was advanced that the right to keep a press was not an inherent right of every subject. The learned Advocate for the Crown suggested that the right to have a press is analogous to the right to carry on any trade or profession and consequently, a license should be obtained in that behalf. This argument is so opposed to all ideas of free press and of free speech that we asked for some authority for this proposition. The learned Advocate General referred us to what obtained during the Third Republic in France and to the Press Laws passed in Ireland when the Coercion Acts were in force. The pre-amble to the Press Act does not say that this is an emergency measure passed to steer the country during times of apprehended danger. The Act is apparently a permanent addition to the statute book, intended to regulate the conduct of the press during peaceful and normal times. I do not think that the exceptional circumstances which made the authorities in France and Irelaud regard the use of free speech and free writing as exercisable only on licenses obtained thereto have any analogy. In England, the law is clear that the right of free writing is a common law right. The early law on the subject is fully stated by Professor Blake Odgers in his article on, the Liberty of the Press contributed to VIII Encyclopedia of the Laws of England, page 155. At its inception, Kings, Peers and Priests unaccustomed to the sarcasms printed against them resolved that printing presses should be under the King’s supervision. Then a company of certain merchants was given the privilege of keeping a press. Afterwards the universities were each allowed to have one. In the days of Queen Elizabeth, the publications issuing from the press had to be read over by the bishops and the privy councillors. In 1637, the Star Chamber decreed that all printed matter should be submitted to licensers. After the abolition of the Star Chamber, the Long Parliament passed similar decrees. Against this Milton protested, in his famous work “A speech for the Liberty of Unlicensed Printing.” In 1695, when the revision of statutes came up before the House of Commons, the law of the Long Parliament was omitted from the statute book after a conflict with the House of Lords. From that year onwards, the liberty of the press has not been interfered with. This short statement about the legal history of the English Press shows conclusively that the freedom of the press is not a “licensed calling”; but a common law right inherent in every subject, subject to certain limitations. Lord Mansfield in Rex v. Dean of St. Asaph (1879) 3 T.R. 428 at 431, said that “the liberty of the press consists in printing without any previous license, subject to the consequence pi law.” The principle recognised in England is that so long as free writing does not offend the law of libel, the press is unfettered. Lord Ellenborough in Rex v. Cobbett 29 State Trials 41 at p. 49 stated :”The law of England is a law of liberty, and, consistently with this liberty, we have not what is called an imprimatur; there is no such preliminary licanse necessary. But if a man publish a paper, he is exposed to the penal consequences, as he is in every other act, if it be illegal.” “The power of free discussion,” said Lord Kenyan, C.J., in Rex v. Reeves (1796) Peak, Add C. 86 “is the right of every subject of this country.” The latest pronouncement on this subject is that of Lord Russel of Killowen, C.J. in Reg v. Gray (1900) 2 Q.B. 36 atp. 40. He said “the liberty of the Press is no greater and no less than the liberty of every subject of the Queen.” Professor Dicey in commenting upon some of these cases says : “This principle is radically inconsistent with any scheme of license or censorship by which a man is hindered from writing or printing anything which he thinks fit, and is hard to reconcile even with the right on the part of the Courts to restrain the circulation of a libel, until at any rate, the publisher has been convicted of publishing it. “Of course exceptional circumstances connected with the safety of the Empire may demand a departure from these principles, e.g. the appointment of a censor, etc. But I am unable to hold that the law as to freedom of writing in India is not an offshoot of the principles that obtain in England, but has been borrowed from the emergency laws of the Third Republic. I am prepared to hold that even after the Press Act, the right to keep a press and to use it is a common law right and has not the slightest resemblance to the exercise of a trade or calling for which a license should be taken out.
5. Another argument for the Grown was that a writ of certiorari contemplates that the High Court is capable of substituting its own judgment for that of the tribunal whose proceeding is revised, and that as we cannot say what the exact amount of the security should be and whether it should be demanded or not, we have no power to revise the order. I do not think that it is a condition precedent to the issue of the writ that we should be able to place ourselves, in the position of the Court whose order is complained against. The writ may assume various forms. It may be an order to transfer proceedings (see Sections 526 and 528 of the Code of Criminal Procedure and Sections 22 and 25 of the Code of Civil Procedure). It may relate to the stay of proceedings (the Code of Civil Procedure provides for this). It may seek to set aside orders or judgment (Section 115 of the Code of Civil Procedure, Section 435 of the Code of Criminal Procedure and Section 25 of the Provincial Small Cause Courts Act). In short, it is enough that in the exercise of our jurisdiction, we direct the lower Court to reconsider its order or judgment. I am, therefore, of opinion that the fact that we cannot place ourselves in the position of the Chief Presidency Magistrate is not a bar to our entertaining the application.
6. The learned Advocate General also seemed to suggest that as the right to issue the writ has now been engrafted into legislative provisions, the old prerogative need no longer be invoked. The fact that our powers are recognised in legislative provisions is not an argument for holding that that power does not exist aliunde.
7. The next branch of the argument was that by Section 22 of the Press Act, the right, if any, possessed by us has been taken away. As I read the section I am unable to understand it as expressly or even by implication taking away the power of the High Court. All that can be said is that the Act does not provide for the order under Section 3 being revised. It is now well settled that unless the power to issue a writ of Certiorari is expressly taken away, inheres in the Court. It was held in R. v. Reeve (1760) 2 Burr. 1040 that the writ being one for the benefit of the subject, cannot be taken away without express negative words. See also R. v. Jukes (1680) 8 T.R. 542, and R. v. Plowright (1686) 3 Mod. Rep. 94. The English Judges have been so jealous in preserving this right, that they have held that even when the legislature provided that certain matters shall be finally determined by an, inferior Court, the Court of King’s Bench was not powerless. R. v. Reeve (1686) 3 Mod Rep. 94. I am therefore clear that Section 22 has not taken away the right.
8. Moreover, even if the right is taken away, the High Court can interfere, if there has been a want of jurisdiction in the inferior Court. The reason of the rule is that the power prima facie exists in the High Court in all matters which are not within the cognisance of the inferior Court; and when this latter Court acts beyond its powers, it usurps jurisdiction which the High Court can control. The leading authority on the subject is Ex parte Bradlaugh (1878) 3 Q.B.D.509 Mellor, J. stated in that case that “it is well established that the provision taking away the certiorari does not apply when there was an absence of jurisdiction.” The King v. The Justices of Somersetshire (1826) 5 B. and C. 816, The Queen v. Wood (1855) 5 E. and B. 49 are to the same effect. In The Queen v. The South Wales Railway Co. (1849) 13 Q.B. 988, Coleridge, J. stated “where that (want of jurisdiction in the inferior Court) is made out, the statutory prohibition does not apply and the inherent jurisdiction of this Court is unrestrained.”
9. It is on this principle that the High Courts in this country have acted in interfering with orders passed by Magistrates under Section 145 of the Code of Criminal Procedure. Section 435, Clause (3) would seem to suggest that High Courts should not revise orders passed under Chapter XII and Section 176. But there are no positive words affecting the jurisdiction of the High Court. Consequently, there has been a long course of decisions holding that the prohibition did not affect our powers of interference when want of jurisdiction was made out. This absence of jurisdiction “may be founded upon certain proceedings which have been made essential preliminaries to the inquiry or upon facts or facts to be adjudicated upon in the course of the enquiry. “See Colonial Bank of Australasia v. Willan (1874) L.R. 5 P.C. 417 at P. 442, and Rex v. Woodhouse (1906) 2 K.B. 501 at P. 515. A further qualification has been introduced in favour of the interference of the Court of the King’s Bench. Even when jurisdiction to issue the writ was expressly taken away, if fraud has been practised in the procuring of the judgment the writ can issue. R v. Gillyard (1848) 12 Q.B. 527.
10. I shall now consider the third question, I had considerable doubts during the course of the argument upon this subject. Mr. Ramaswami Aiyar and the learned Advocate General placed before us a bewildering array of authorities. The question whether a particular act done by an avowedly judicial tribunal is performed by that tribunal ministerially or judicially is not easy to determine. I concede that prima facie an order passed by an officer who acts ordinarily judicially may be presumed to have been passed by him in that capacity. I shall also grant that the officer need not be sitting as a Court to attach to himself judicial functions. The fact that he may have to take evidence is not a conclusive test of acting judicially. In Rex v. Woodhouse (1906) 2 K.B. 501 at p. 515 Vaughan Williams, Lord Justice doubted “whether the fact that there was no jurisdiction to make an administrative as distinguished from a judicial order would enable the Court to issue certiorari.” Lord Justice Fletcher Moulton, after an elaborate discussion on the meaning of the terms “judicial acts” and “administrative acts” says; “The true view of the limitation would seem to be that the term “judicial act” is used in contrast with purely ministerial acts. To these latter the process of certiorari does not apply, as for instance to the issue of a warrant to enforce a rate, even though the rate is one which could itself be questioned by certiorari. In short, there must be the exercise of some right or duty to decide in order to provide scope for a writ of certiorari at common law.”The position is thus succinctly expressed in 6 American Cyclopedia 753; “It necessarily follows that the writ will not lie to review acts which were not done in the exercise of judicial power or authority, but were merely ministerial, executive, or legislative in their character.” I do not propose to examine the English authorities any further. I am bound, however, to consider a few Indian decisions. The most important of them is that of the Judicial Committee in Shankar Sarup v. Mejo Mal (1900) I.L.R. 23 All. 313. The question related to the construction of Section 295 of the old Code of Civil Procedure. Lord Robertson in delivering the judgment of the Board said: “The scheme of Section 295 is rather to enable the judge as a matter of administrating to distribute the price according to what seem at the time to be the rights of parties without this distribution importing a conclusive adjudication on those rights, which may be subsequently readjusted by a suit such as the present.” In making the distribution, the Court had to hear parties and to decide upon the merits. Mainly relying upon this decision, a Full Bench of our High Court held in Sivagami Achi v. Subramania Ayyar (1903) I.L.R. 27 Mad. 259 that a District Munsif acting under Section 287 of the Code of 1882 was only performing a ministerial duty and that his proceedings were not subject to revision by the High Court. The District Munsif in settling the proclamation under that section was entitled to take evidence and to come to a conclusion on the question. The learned Judges were much influenced by the circumstance that by Section 288 the officer was given the same protection from being proceeded against for damages as Act XVIII of 1850 gave to ordinary Judicial officers. The inference they drew was that in settling the proclamation, he was not acting, judicially. This proposition applies with equal force to the present case. Then there is the decision in Vijiaraghavalu Pillai v. Theagaroya Chetti (1914) I.L.R. 38 Mad. 581 to which I was a party with my learned brother Mr. Justice Ayling. I do not think the present case is stronger than that. In Calcutta, we have Rudolf Stallmann v. Emperor (1911) I.L.R. 38 Cal. 547 and Gnlli Sahu v. Emperor (1914) I.L.R. 42 Cal. 793 which support the view taken in the Madras case. Reference should also be made to Minakshi v. Subramanya (1887) 1 L.R. 11 Mad. 26 in which the Judicial Committee held that a District Judge in appointing a committee member under Section 10 of Act XX of 1863 was performing a ministerial duty. As against these decisions may be put the decision in Nundo Lal Bose v. The Corporation for the Town of Calcutta (1885) I.L.R. 11 Cal. 275. In that case, however, some Judicial authority was given to the tribunal. On the whole, I am inclined to the view that the Chief Presidency Magistrate was not acting judicially when he called upon the petitioner to deposit security. An examination of the provisions of the Press Act leads to the same conclusions, (a) There is nothing in the Act which compels the Magistrate to hold any enquiry, although I do not say that he is debarred from doing so. (6) The nature of the information to be laid before him is not specified – Mr. Ramaswami Aiyar has drawn our attention to the fact that an application was made, as a matter of fact, by Mr. Brightwell. (c) The Magistrate is not bound to state any reasons, (d) He has an unfettered discretion in fixing the amount, (e) A special provision is made in Section 22 of the Act granting the same protection for proceedings passed in good faith as are secured to judicial officers by Act XVIII of 1850. These considerations have influenced me in holding that the action of the Chief Presidency Magistrate was not judicial but only ministerial.
11. The last point for consideration is whether in the exercise of the power given to him by the Act, the Chief Presidency Magistrate acted illegally. Sub-section (1) of Section 3 before it reaches the proviso has two substantive provisions : (1) The keeper of the press shall make a deposit at the time of the declaration, and (2) that the amount of the deposit shall be fixed by the Magistrate between Es. 500 and Rs. 2,000. The first requirement is imperative. The second gives a discretion to the Magistrate. The proviso also consists of two parts : (1) The Magistrate may for special reasons to be recorded by him dispense with any security, and (2) he may from time to time can6el or vary any order under the sub-section. Prom the context it is clear that the power to dispense with the security only qualifies the rule which imposes the security. The first part of the proviso, to my mind, is a conditional avoidance of the antecedent clause to demand the security. It should be regarded as a defeasance clause to the first part of the section. The second proviso naturally would govern the power to vary given in the second portion of the section, When the Legislature gave a discretion to the Magistrate to fix the amount, it also gave him power to vary the amount from time to time. It would, therefore, seem that the second part of the proviso should be read as qualifying the clause which gives discretion to demand a varying security. The learned Advocate General naturally laid stress upon the use of the words “vary any order” under this sub-section. Those words are capable of including orders passed under the proviso; but it has to be noticed that the clause calling upon the Magistrate to record special reasons cannot grammatically be read with the clause beginning with “or may from time to time vary etc” Is it reasonable to hold that an order which necessitated the record of reasons at its inception was intended to be capriciously set at nought the next moment. That would be imputing incongruity to the Legislature. Further the use of the disjunctive participle or seems to suggest that the order contemplated by the second clause of the proviso is different in nature from that which the first part enables the Magistrate to make.
12. I have thus far submitted the section itself to a close analysis. Very able arguments were addressed to us on both sides upon the meaning and office of a proviso. A great deal would depend upon the draftsmen. A proviso may at times serve to introduce an exception. It is often in the nature of a condition precedent to the enforcement of the operative clause. It is doubtful whether it can ever add to the clause itself. The learned Advocate General referred us to Rhondda Urban Council v. Taff Vale Railway (1909) A.C. 253. In that case, the so-called proviso was in a separate section. It was held that this new section created a new liability. I do not think this case helps us much. Nor does Mohammed Bahadoor Khan v. The Collector of Bareilly (1875) L.R. 1 I.A. 167 decide that a proviso can add to the section. On the other hand, Lord Chancellor, Lord Watson and Lord Herschell held in West Derby Union v. Metropolitan Life Assurance Society 3 that a proviso cannot enlarge the scope of the section. In a later case, Lord Justice Fletcher Moulton says : “The fallacy of the proposed method of interpretation is not far to seek. It sins against the fundamental rule of construction that a proviso must be considered with relation to the principal matter to which it stands as a proviso. It treats it as if it were an independent enacting clause instead of being dependent on the main enactment. The Courts, as for instance in such cases as ex parte Partington (1844) 6 Q.B. 649. In re Brockelbank (1889) 23 Q.B.D. 461, and Hill v. East and West India Dock Co. (1884) 9 App. Cas. 448, have frequently pointed out this fallacy, and have refused to be led astray by arguments such as those which have been addressed to us, which depend solely on taking words absolutely in their strict literal sense, disregarding the fundamental consideration that they appear in a proviso”. See Rex v. Dibbin (1910) Probate 57 at p. 125. The preponderance of authority is in favour of the view that a proviso annexed to a section should not be read as enlarging the scope of that section.
13. In the present instance we have first a clause making the deposit absolute, then a proviso which enables it to be dispensed with after recording reasons; and we are asked to add a new power which would allow the Magistrate to cancel the last order without assigning any reasons. I am free to confess that the language of the section is by no means clear. Nor are the authorities as to the construction of a proviso uniform. But I am not prepared to impute to the legislature the want of logic and reasonableness which the construction contended for by the Crown entails. I am therefore of opinion that the Chief Presidency Magistrate had no power to demand security after having dispensed with it at the time of the declaration.
14. But as I have held that the order was passed by the Magistrate in his executive capacity, I am of opinion we have no power to interfere in revision under the Government of India Act. It is hardly necessary to say that the petition has been argued with great ability on both sides.
