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PETITIONER: STATE OF U.P.

       Vs.

RESPONDENT: JAIRAM ETC.

DATE OF JUDGMENT01/12/1981

BENCH: CHANDRACHUD, Y.V. ((CJ) BENCH: CHANDRACHUD, Y.V. ((CJ) DESAI, D.A. SEN, AMARENDRA NATH (J)

CITATION:  1982 AIR  942            1982 SCR  (2)  24  1982 SCC  (1) 176        1981 SCALE  (4)1971  CITATOR INFO :  R          1987 SC1383  (9)

ACT:      Practice and  Procedure-High Court-If  could release  a detenu on  bail on  considerations applicable  to  cases  of punitive detention.

HEADNOTE:      After  hearing  the  habeas  corpus  petitions  of  the respondents, who  were detained  under the provisions of the Maintenance of  Supplies of  Essential Commodities Act, 1980 the Division  Bench of  the High  Court  released  the  writ petitions from  their list  since  the  Court  was  to  have holidays for  over ten  days immediately thereafter. Another Division Bench,  which took  up the  petitions for  hearing, also adjourned  the petitions  until the  reopening  of  the Court after holidays.      In the  mean time  a single  Judge of  the High  Court, before whom  the  detenus  made  an  application  for  bail, allowed their  petitions on  the ground  that the Government had  erred   in  forwarding  their  representations  to  the advisory board without considering them for itself.      On reopening  of the  Court, a Division Bench heard the habeas corpus  petitions. It however, allowed the detenus to be on bail till the judgment was pronounced.      In its  petition for  grant of  special leave to appeal the State  challenged the impugned order of the Single Judge releasing the  detenus on  bail  "until  the  next  date  of hearing of the habeas corpus petitions".      Allowing the appeal ^      HELD: 1.  The  single  Judge  erred  in  releasing  the detenus on  bail when  their writ  petitions were listed for hearing before  a Division  Bench.  Neither  was  there  any pressing or particular reason of a unique kind such as grave illness or  pressing and  personal business  justifying  the order of  release on  bail for  a short  period. The detenus cannot be released on bail as a matter of common practice on considerations generally  applicable to  cases  of  punitive detention. [26 F-H]      In the instant case the single Judge took up on himself

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the decision on merits. 25      Although the  Courts would  be anxious  to protect  the individual liberty of the citizen on justiciable grounds and within the  limits of their jurisdiction, it would be unwise to ignore  the object  which the  orders  of  detention  are intended to  serve. The  reluctance of Courts to pass orders of bail  in detention  cases is  based on the fact that they are  fully   conscious   of   the   difficulties-legal   and constitutional-and of  the other  risks involved  in  making such orders.  If an  order of  bail is  made  by  the  Court without a  full trial of the issues involved merely on prima facie opinion  formed by the High Court, such order would be open to challenge that it is the result of improper exercise of jurisdiction.  It  is  essential  to  bear  in  mind  the distinction between  the existence  of jurisdiction  and its proper exercise.  Improper exercise  of jurisdiction in such matters must necessarily be avoided by the courts in dealing with applications of this character. [29 A-F]      State of  Bihar v.  Rambalak Singh and others, [1966] 3 SCR 344 applied.      2.   There is  no force  in the argument of the detenus that by  reason of  the  decision  of  the  Division  Bench, allowing the  detenus to be on bail till the delivery of the judgment by  it in  their writ  petitions, the special leave petition filed  by the  State had become infructuous because the primary  order of  bail was the one passed by the single Judge. The  Division Bench  has allowed that order to remain in operation  only because  the counsel  for the  State  was unable to say whether the Advisory Board had recommended the confirmation  of   detention  or  not.  The  Division  Bench postponed the  delivery of  the judgment for that reason and directed that  the detenus  would be  allowed to continue on bail until further orders. [30 A-C]

JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION: Criminal  Appeal  No. 932-933 of 1981.      Appeals by  special leave  from the  judgment and order dated the  23rd October, 1981 of the Allahabad High Court in CM. Ap.No. 5909 (W) of 1981 in CW No. 8918/81.      R.K. Bhatt for the Appellant.      Shaukat Hussain and Shakil Ahmed for the Respondent.      The Judgment of the Court was delivered by      CHANDRACHUD,  C.J.:   Heard  counsel.   Special   leave granted.      The respondents,  who are detained under the provisions of the  Prevention  of  Blackmarketing  and  Maintenance  of Supplies of  Essential Commodities  Act, 1980  filed  Habeas Corpus petitions  in the High Court of Allahabad challenging the orders of detention passed against them. Those petitions were almost  fully heard  by a  Division Bench on October 19 and 22, 1981. The learned Judges, however, released the writ petitions from their list since the Court had Diwali 26 holidays from  October 24  until November  2, 1981  and they were not  likely to  be available,  perhaps as  a Bench, for concluding the hearing of the writ petitions.      Another Division  Bench took  up the Writ Petitions for hearing on October 23 but they adjourned the petitions until the reopening  of the  Court on  November 3.  Soon after the Division Bench  rose, counsel for the respondents approached a learned  Single Judge  after Court  hours and  applied for

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bail. It  appears that  the Deputy  Government Advocate  was available. He was sent for and after hearing both the sides, the learned  Judge granted  bail to  the respondents  on the ground that the State Government had erred in forwarding the respondents’ representations  to the  Advisory Board without considering them for itself.      The writ petitions were taken up for hearing by another Division Bench  on November  3,  1981.  They  concluded  the hearing on  that date,  reserved their  judgment and allowed the respondents  to continue  on bail till November 10 which was fixed  for judgment.  The judgment is not yet delivered. The learned  Judges directed: "It may however be inquired as to how  file was  sent before  the learned  single Judge for bail when there was no case fixed before him."      These Special  Leave Petitions are directed against the order passed  by the  learned Single  Judge on  October  23, 1981, releasing the respondents on bail "until the next date of hearing of the Habeas Corpus petitions."      We are  unable to  appreciate how  the  learned  Single Judge could  release the  respondents on  bail when,  in the first instance, the writ petitions filed by them were listed for hearing  before a  Division Bench.  Secondly,  and  that involves a  question of  principle, we are unable to see for what special  reason the  learned Judge thought it necessary to release  the respondents on bail. The order passed by the learned Judge  does not  show that there was any pressing or particular  reason  of  a  unique  kind  for  which  it  was imperative to  enlarge the  respondents on  bail. If persons held in detention are released on bail in the manner done by the learned  Judge, the very object and purpose of detention will be  totally frustrated.  Grave illness  or pressing and personal  business  may  justify  an  order  of  release  in detention cases  for a short period suited to the exigencies of the  particular occasion. But a detenu cannot be released on bail  as a  matter of  common practice, on considerations generally appli- 27 cable to  cases of  punitive detention.  The learned  Single Judge virtually  took upon  himself the decision of the writ petitions of  merits. He  found, evidently on an on-the-spot argument,  that  the  State  Government  had  erred  in  not considering the  representations of  the respondents  before forwarding them  to the  Advisory  Board  and  released  the respondents  on   bail  as   their  further  continuance  in detention was "prima facie" vitiated.      In passing  the order  of bail,  the learned  Judge has sought the  support of a decision of a Constitution Bench of this Court  in State  of Bihar v. Rambalak Singh and Others. In that  case, the  State of  Bihar appealed  to this  Court against an  order of  interim bail  passed by the Patna High Court in  a Habeas  Corpus petition  which was  filed by the respondent to  challenge an  order of detention issued under Rule 30  of the Defence of India Rules, 1962. It was held by this Court  that though  the High  Court has jurisdiction to grant bail  in Habeas  Corpus petitions filed against orders of detention  passed under rule 30, the exercise of the said jurisdiction   is    inevitably   circumscribed    by    the considerations which  are special  to such  proceedings  and which have  relevance to  the object which it intended to be served by orders of detention passed under the said Rule. If on proof  of certain conditions or grounds it is open to the High Court  to set  aside the  order of detention made under Rule 30 and direct the release of the detenu, then it cannot be held  that in  a  proper  case  the  High  Court  has  no jurisdiction to  make an interim order giving the detenu the

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relief which the High Court would be entitled to give him at the end  of the proceedings. The Court, however, hastened to emphasize:           "...though we  have no hesitation in affirming the      jurisdiction of  the High  Court  in  granting  interim      relief by way of bail to a detenu who has been detained      under Rule 30 of the Rules there are certain inexorable      considerations which  are relevant  to  proceedings  of      this character  and which  inevitably circumscribe  the      exercise of  the jurisdiction of the High Court to pass      interim orders granting bail to the detenu. There is no      doubt  that   the  facts   on  which   the   subjective      satisfaction of  the detaining  authority is based, are      not justiciable,  and so,  it is  not open  to the High      Court  to   enquire  whether   the  impugned  order  of      detention  is   justified  on   facts   or   not.   The      jurisdiction of the High Court to grant relief to 28      the detenu  in such proceedings is very narrow and very      limited. That  being so,  if the  High Court  takes the      view that prima facie, the allegations made in the writ      petition disclose  a serious  defect in  the  order  of      detention  which  would  justify  the  release  of  the      detenu, the  wiser and the more sensible and reasonable      course to  adopt would  invariably be  to expedite  the      hearing of  the writ  petition and deal with the merits      without any  delay. Take  the case where mala fides are      alleged in  respect of  an order  of detention.  It  is      difficult, if  not impossible, for the Court to come to      any conclusion,  even prima  facie about the mala fides      alleged, unless a return is filed by the State. Just as      it is not unlikely that the High Courts may come across      cases where  orders of detention are passed mala fides,      it is  also not unlikely that allegations of mala fides      are made  light heartedly or without justification; and      so, judicial  approach necessarily  postulates that  no      conclusion can be reached, even prima facie, as to mala      fides unless  the State  is given  a chance to file its      return and  state its  case  in  respect  of  the  said      allegations; and  this emphasises the fact that even in      regard to  a challenge  to the  validity of an order of      detention on the ground that it is passed mala fides it      would not  be safe,  sound or  reasonable  to  make  an      interim order on the prima facie provisional conclusion      that there  may be some substance in the allegations of      mala fides.  What is  true about  mala fides is equally      true about  other infirmities  on  which  an  order  of      detention may  be challenged by the detenu. That is why      the limitation  on the  jurisdiction of  the  Court  to      grant relief  to the  detenus who  have  been  detained      under R.  30  of  the  Rules,  inevitably  introduce  a      corresponding limitation  on the  power of the Court to      grant interim bail."      The Court, speaking through Gajendragadkar, C.J. added:           "It is  no doubt  true that  a detenu  is detained      without a trial; and so, the courts would inevitably be      anxious  to  protect  the  individual  liberty  of  the      citizen on grounds which are justiciable and within the      limits of  their jurisdiction.  But  in  upholding  the      claim  for   individual  liberty   within  the   limits      permitted by  law, it  would be  unwise to  ignore  the      object which the orders of detention are intended 29      to serve.  An unwise  decision granting bail to a party      may lead  to consequences  which are prejudicial to the

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    interests of  the community  at large;  and that  is  a      factor which  must be  duly weighed  by the  High Court      before it  decides to  grant bail  to a  detenu in such      proceedings. We  are free  to confess  that we have not      come across cases where bail has been granted in habeas      corpus proceedings directed against orders of detention      under R.  30 of  the Rules,  and we  apprehend that the      reluctance of the courts to pass orders of bail in such      proceedings is  obviously based  on the  fact that they      are  fully  conscious  of  the  difficulties-legal  and      constitutional, and  of the  other  risks  involved  in      making such  orders. Attempts  are always  made by  the      courts to  deal with  such applications  expeditiously;      and in  actual practice,  it would be very difficult to      come across  a case  where without  a full  enquiry and      trial of  the ground on which the order of detention is      challenged  by  the  detenu,  it  would  be  reasonably      possible or  permissible to  the Court to grant bail on      prima facie  conclusion reached  by it  at  an  earlier      stage of the proceedings.           If an  order of bail is made by that Court without      a full  trial of  the issues  involved merely  on prima      facie opinion  formed by the High Court, the said order      would be open to the challenge that it is the result of      improper exercise  of jurisdiction.  It is essential to      bear in  mind the  distinction between the existence of      jurisdiction and its proper exercise. Improper exercise      of jurisdiction  in such  matters must  necessarily  be      avoided by  the courts  in dealing with applications of      this character." The learned  Single  Judge,  with  respect,  has  failed  to appreciate the  weight of  these observations  while passing the order  of interim  bail. A  Division Bench had heard the petitions for two days but did not think it fit or proper to grant interim  relief to the detenus. Another Division Bench was going  to rehear the petitions after ten days. It is not proper that,  in between,  the learned  Single Judge  should have taken  upon himself the task of examining the merits of the matter  in order to find whether there was a prima facie case for releasing the detenus on bail.      Shri Shaukat  Husain, who  appears  on  behalf  of  the respondents, has  drawn our  attention to an order passed by the Division 30 Bench itself  on November 10, 1981 by which it has permitted the respondents  to continue  on bail  until the delivery of the judgment  by it  in the  writ petitions. Learned counsel says that  the special leave petitions filed by the State of Uttar Pradesh against the order passed by the learned Single Judge have  become infructuous by reason of the order passed by  the  Division  Bench.  We  are  unable  to  accept  this submission because the primary order of bail under which the respondents are  at large  is the  one passed by the learned Single Judge.  The Division  Bench has allowed that order to remain in  operation, only  for the  reason that counsel for the State  was unable  to say whether the Advisory Board had recommended  the  confirmation  of  detention  or  not.  The Division Bench  postponed the  delivery of  the judgment for that reason  and directed  that  the  respondents,  who  are already on  bail, will  be allowed to continue on bail until further orders.      For reasons  aforesaid, we  set aside the order of bail and direct  that the  respondents shall  be taken in custody forthwith.      We hope that the Division Bench which has already heard

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arguments in the Writ Petitions, will be able to deliver its judgment expeditiously, if it has not already done so.      The appeals  will stand  disposed of  in terms  of this judgment. P.B.R.                                       Appeal allowed. 31