JUDGMENT
Reuben, J.
1. This is an application for a certificate under Article 132, Clause (1) and Article 134, Clause (1) (c), Constitution of India. It is directed against an order of Agarwala, J. dismissing a petition in criminal revision directed against an order of the Deputy Magistrate, Aurangabad, under Section 145, Criminal P. C.
2. The constitutional point raised relates to the validity of the appointment of the Hon’ble Judge. Sir C. M. Agarwala retired as Chief Justice of the Patna High Court on 21-1-1950, that is to say, before the commencement of the Constitution of India. He was appointed to sit again as a Judge of this Court, that is to say, of the High Court which came into existence after the commencement of the Constitution of India, under the provisions of Art, 224, Constitution of India, which provides that
” . . . . the Chief Justice of a High Court for any State may at any time…..request any person who has held the office of a Judge of that Court or of any other High Court to sit and act as a Judge of the High Court for that State.”
The contention is that Sir C. M. Agarwala was never a Judge of the High Court of this State or of any other High Court within the meaning of Article 224.
3. The relevant definitions of the term High Court as used in the Constitution of India occur in Article 214, Clause (2) and Article 366, Clause (14) of the Constitution.
4. Article 214, Clause (2), which occurs in the chapter dealing with the High Courts in the States, is as follows :
“For the purposes of this Constitution the Court exercising jurisdiction in relation to any Province immediately before the commencement of this Constitution shall be deemed to be the High Court for the corresponding State.”
The High Court for the Province of Bihar, of which Court bit C. M. Agarwala was a Judge, must under this provision be deemed to be the High Court for the State of Bihar It is contended however, that this clause relates to the period of dime after the commencement of the Constitution of India and that this clause merely provides for the Provincial High Court becoming the State High Court as from that date. Secondly, it is urged that, even if this clause be interpreted as meaning that the Provincial High Court shall be deemed for the purposes of this Constitution to be the State High Court, this will not validate the appointment of Sir C. M. Agarwala under Article 224, because he resigned on 24-1-1950 and, therefore, was not a Judge of the Provincial High Court immediately before the commencement of the Constitution of India.
5. I am unable to accept the first contention. It is Clause (1) of Article 214 which provides that there shall be a High Court for each State. Under Article 216, it shall consist of a Chief Justice and such other Judges as the President may, from time to time, deem it necessary to appoint, the manner of the appointment of such Judges being provided by Article 217. Further, Article 376 provides that the individual Judges of the Provincial High Court, “holding office immediately before the commencement of this Constitution”, shall, in the absence of election otherwise, become on the commencement the Judges of the State High Court. Chapter v of part VI of the Constitution contains other provisions relating to the Stats High Court which is thus brought, into being. Clause (2) of Article 214, therefore, appears unnecessary for converting the Provincial High Court into the State High Court. Rather, if that had been the intention of this clause, it would have provided that the Provincial High Court exercising jurisdiction immediately before the commencement of the Constitution shall be, not merely shall be deemed to be, the High Court for the State. Such a provision by the way, would appear to be a contradiction in terms, for the Provincial High Court and the State High Court are necessarily two different entities.
6. There is also no force in the second contention, namely, that Sir C. M. Agarwala was not a Judge of the Provincial High Court, immediately before the commencement of he Constitution. Article 224 authorises the appointment of any person who ” has held” the office of a Judge of a High Court within the meaning of that Article. Under Clause (2) of Article 214 the Provincial High Court which was exercising jurisdiction immediately prior to the commencement of the Constitution is to be deemed to be a State High, Court. Sir C. M. Agarwala, even though he was not a Judge of the Provincial High Court on 25tb January had held the office of a Judge of the Provincial High Court, and the identity of that Provincial High Court was not changed between 24th January when Sir C. M. Agarwala resigned and 25th January the day immediately preceding the commencement of the Constitution.
7. Clause (14) of Article 366 contains a general definition of the term High Court and is as follows:
” (14) ‘High Court’ means any Court which is deemed for the purposes of this Constitution to be a High Court for any State and includes
(a) any Court in the territory of India constituted or reconstituted under this Constitution as a High Court, and
(b) any other Court in the territory of India which may be declared by Parliament by law to be a High Court for all or any of the purposes of this Constitution. ”
It incorporates Clause (2) of Article 214, which relates only to the position, as regards the Constitution of India, of the Provincial High Courts.
8. The interpretation which I have placed, on the term High Court under the Constitution, namely, that it includes the Provincial High Courts, is supposed, in my opinion, by Article 220, which provides that
‘No person who has held office as a Judge of a High Court after the commencement of this Constitution shall plead or not in any Court or before any authority within the territory of India.”
If this term means a High Court in existence from after the commencement of the Constitution no one could be a Judge of such a High Court previous to the commencement of the Constitution and, therefore, the words “after the commencement of this Constitution” in Article 220 would be unnecessary.
9. Stress has been laid on Article 220 as showing the unconstitutionality of the appointment in question. It is urged that the intention of the Constitution is that a Judge of a High Court holding office subsequent to the commencement of the Constitution shall not practise as a lawyer in India, whereas Sir C. M. Agarwala resigned on 24th January to avoid this bar of practice. Even if this presumed intention of the legislature was admissible as a guide to the proper interpretation of the Statute, I do not think that this argument helps the petitioners. I have two reasons for saying this. First of all, the corresponding provision in Article 128 for the attendance of retired Judges at sittings of the Supreme Court permits the attendance of a person who has held the office of a Judge of the Federal Court, although such a person is not subject to the disability regarding practice contained in Clause (7) of Article 124 of the Constitution. Secondly, both Article 128 and Article 224 provide that the person attending the sittings of the Court by request under these Articles shall, while so sitting and acting, have all the jurisdiction, powers and privileges of a Judge of that Court, but shall not otherwise be deemed to be a Judge of that High Court, an exception which appears to be directed to save the right of practice where the person in question has, previous to the appointment, got such a right.
10. A reference has been made to Expln. I to Clause (3) of Article 154 of the Constitution as being inconsistent with the interpretation which I have placed on the term High Court. This explanation defines the term High Court with reference to the qualifications necessary for the appointment of a person as a Judge of the Supreme Court namely, that he must have been a Judge of a High Court for at least five years or an advocate of a High Court for at least ten years. It provides that in this clause the term High Court means
“a High Court which exercises, or which at any time before the commencement of this Constitution exercised, jurisdiction in any part of the territory of India.”
This is a special definition of the term and does not conflict with the definitions contained in Article 214, Clause (2) and Article 366, Clause (14).
11. A reference has also been made to the corresponding provisions in Article 217 relating to qualifications for appointment as a Judge of a High Court. These provisions, it appears to me do not help the petitioners Sub-clause (b) of Clause (2) of that Article requires that the person in question must have been an Advocate of “a High Court in any State specified in Schedule I or of two or more such Courts in succession.” Reliance is placed on Expln. (b) to this clause, which is as follows :
“In computing the period during which a parson has held judicial office in the territory of India or been an advocate Clause a High Court, there shall be included any period before the commencement of this Constitution during which he has held judicial office in any area which was comprised before 15-8 1947, within India as denned by the Government of India Act, 1935, or has been an advocate of any High Court in any such area, as the case may be.”
It is urged that this explanation was unnecessary if the term High Court in the Constitution includes the Provincial High Court. It is clear, however, from the first portion of this explanation that it is intended to provide for those areas which before 15-8-1947 were included within India as defined by the Government of India Act 1935 but which passed out of the Dominion of India by the separation of Pakistan from India. The explanation is in ended to give the person in question the advantage of any service in a judicial office or as an advocate rendered by him in such an area before the creating of the Dominion. The explanation is, therefore, necessitated by the peculiar circumstances and does not conflict with the definitions in Articles 214 (2) and 366 (14).
12. For the reasons given above, I consider that there is no substantial question of law as to the interpretation of the Constitution and the application under Article 132 (1) must be dismissed.
13. On the merits, three points are urged : (1) that the Magistrate decided the question Clause possession wish reference to title. (2) that the proceedings under Section 145, Criminal P. C. were bad ab inilio for want of a notice to the parties specifying the area in dispute, and (3) that the finding of the Magistrate regarding the land comprised in holding No. 17 is unsupportable.
14. The first point does not seem to have been raised before Agarwals. J., and the petitioners cannot be allowed to raise it at this stage. The second point has been dealt with by Agarwala J., under whose directions as the Chief Justice of the Provincial High Court the Magistrate was required to serve a notice of particular. He found that, instead of serving a notice the Magistrate called upon the parties to specify the lands claimed by them and that the particulars given by the second party were accepted by the first party, so that there was a specific area of land forming the subject-matter of the proceeding and both parties were fully aware of the details of that land. In these circumstances. Agarwala J., held that there had been a substantial compliance with this direction. The defect, if any, therefore, was of a formal nature and curable under Section 537, Criminal P. C. The third point is purely a question of fact, it being contended that the evidence of possession relating to the land comprised in holding No. 17 should not, in the circumstances of the case, have been accepted by the Magistrate. This is not a ground which the petitioners were entitled to urge in the criminal revision, and is still less a ground on which a certificate can be granted.
15. For these reasons, I would refuse the certificate asked for under Article 134 (1) (c).
Sinha, J.
16. I agree.