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Civil Petition for Special Leave to Appeal No. 31‑D of 1970, decided on 22nd June 1970.

(On appeal from the judgment and order of the High Court of East Pakistan, Dacca, dated the 11th March 1969, in Petition No. 211 of 1967).

Art. 98‑Writ‑"Aggrieved person" ‑ Father incarcerated in prison wader a wholly illegal order ‑Son an "aggrieved person" and could move for quashment of proceedings ‑Even otherwise petition could be treated as one for writ of habeas corpus, illegal confinement being challengeable by any person.

Ruhul Islam, Senior Advocate Supreme Court instructed by Md. Nurul Huq, Advocate‑on‑Record for Petitioner.

Date of hearing: 22nd June 1970.

One Durga Prasad Agarwala was convicted by Mr. E. Ali, Magistrate 1st Class, Dinajpur, under section 6 of the East Pakistan Control of Essential Commodities Act I of 1956, who sentenced him to two years' rigorous imprisonment and a fine of Rs. 800 or, in default, three months further rigorous imprisonment. His foodstuffs in large quantity, which were the subject‑matter of the offence, were also forfeited.

Hiralal Agarwala, a son of the aforesaid convict, moved a petition in the High Court of East Pakistan, under Article 98 of the 1962‑Constitution in challenge of the conviction and sentence of his father on the ground that the convicting Magistrate lacked jurisdiction, not being a Special Magistrate appointed under section 4 of the Act, who alone was competent under the law to try the alleged offence. The contention prevailed with the High Court which has quashed the proceedings with the rider that Durga Prasad Agarwala could be tried by a competent Court, if so advised.

In this petition for special leave to appeal by the province of East Pakistan, the learned counsel for the petitioner has not disputed the fact that the trial Magistrate was not vested with powers of a Special Magistrate and was, therefore, incompetent to hold the trial. He has, however, contended that the petition under Article 98 by the convict's son was not maintainable because he was not an "aggrieved person", under the aforesaid Article. The argument, which seems to narrow the meaning and definition of the term "aggrieved person", as judicially interpreted, is fallacious on the face of it. With his father incarcerated in prison, under a wholly illegal order, it is difficult to appreciate that his son, who was naturally afflicted by this tragedy, with an inherent legal right and interest to avert it, was not an aggrieved person within the meaning of Article 98. A writ of certiorari for quashment of the proceedings, which were without jurisdiction, was quite competent, but even otherwise, the application could be treated as one for a writ of habeas corpus for the freedom of the convict, whose illegal confinement and detention could be chal lenged by any person under Article 98 aforesaid. This petition, which is without substance, is dismissed.

S. A. H. Petition dismissed.

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