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PETITIONER: THE STATE OF BIHAR

       Vs.

RESPONDENT: RAMBALAK SINGH AND OTHERS

DATE OF JUDGMENT: 17/01/1966

BENCH: GAJENDRAGADKAR, P.B. (CJ) BENCH: GAJENDRAGADKAR, P.B. (CJ) SHAH, J.C. SIKRI, S.M. RAMASWAMI, V. SATYANARAYANARAJU, P.

CITATION:  1966 AIR 1441            1966 SCR  (3) 314  CITATOR INFO :  D          1982 SC 942  (7)  R          1987 SC1383  (9)

ACT: Constitution of India, Art. 226,-Habeas Corpus  proceedings- whether  High Court has jurisdiction to grant  interim  bail where  detention  is under R. 30, Defence  of  India  Rules, 1962.

HEADNOTE: The respondent, who was ordered to be detained under Rule 30 of the Defence of India Rules, 1962, filed a petition in the High  Court  for a writ of habeas corpus.  The  High  Court- passed an order releasing the respondent on interim bail. In  the appeal to this Court against the said order, it  was contended, inter alia, on behalf of the appellant state that although ordinarily the High Court may have jurisdiction  to grant  interim bail in habeas corpus proceedings,  this  was not so in cases where a detenu is detained under R.30; the policy underlying the enactment of the Defence of  India Act and the Rules and the object intended to be achieved  by the  detention  which  is authorised under  R.  30,  clearly indicated  that  there were other  valid  considerations  of paramount importance which distinguished the detention  made under  R.  30  and that altered the character  of  the  pro- ceedings initiated by or on behalf of the detenu under  Art. 226; that in such proceedings the Court could not ignore the fact  that the detention is purported to have been  made  in order  to safeguard the Defence of India and Civil  Defence, Public Safety, etc.; that the very object of making an order of  detention  against  a citizen is to put an  end  to  his prejudicial activities which are likely to affect one or the other of the matters of grave public importance specified by R. 30 and it would therefore be illogical to hold that  even before  the Court comes to any decision as to the merits  of the  grounds on which the order of detention is  challenged, it  would be open to the Court to pass an interim  order  of bail;  that  furthermore any order of bail  passed  in  such proceedings would not be interim but would be final and this

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also distinguished cases of this character from other habeas corpus proceedings. HELD  : In dealing with habeas corpus petitions  under  Art. 226  where  orders  of  detention passed  under  R.  30  are challenged  the High Court has jurisdiction to  grant  bail, but  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  is  intended  to be served  by  orders  of  detention properly and validly passed under the Special  Reference No. 1 of 1964 [1965] 1 S.C.R. 413;  State of Orissa V.   Madan Gopal Rungta and others, [1952]  S.C.R. 28; referred to. If  on proof of certain conditions or grounds it is open  to the  High  Court to set aside the order  of  detention  made under  R. 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 relief which the High Court would be entitled to give him at the end of the proceedings. [348 C]                             345 It  cannot  also be said that the jurisdiction of  the  High Court  to  pass interim auxiliary orders under Art.  226  is taken  away by necessary implication when the High Court  is dealing  with habeas corpus petitions in relation to  orders of detention passed under R. 30. [348 G] It is only when the High Court is satisfied that prima facie there  is  something  patently  illegal  in  the  order   of detention  that  an  order for bail would  be  passed.   The jurisdiction of the High Court to pass an interim order does not depend upon the nature of the order but its authority to give  interim  relief to a party which is auxiliary  to  the main  relief  to  which the party would be  entitled  if  he succeeds in- his petition. [349 E] The  jurisdiction of the High Court to grant relief  to  the detenu  in such proceedings is very narrow and very  limited and  that being so, if the Court takes the view  that  prima facie  the  allegations  in a 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. [350 A-B] If an order of bail is made by the High Court without a full trial  of the issues involved merely on prima facie  opinion formed by it, the said order would be open to the  challenge that 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. [351 C]

JUDGMENT: CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 200 of 1965. Appeal  by special leave from the judgment and  order  dated November 24, 1965 of the Patna High Court in Criminal W.J.C. No. 126   of 1965. Lal  Narain Sinha, Advocate-General, Bihar, Bajarang  Sahai, and  S. P. Varma, for the appellant. D.   Goburdhan and G. N. Sinha, for respondent No. 1. C.   K. Daphtary, Attorney-General, and B. R. G. K. Achar

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for intervener. The Judgment of the Court was delivered by Gajendragadkar,  C.  J.  This appeal  by  special  leave  is directed  against the order passed by the Patna  High  Court ordering that the detenu Rambalak Singh be released on  bail of  Rs.  500  with  two sureties of  Rs.  250  each  to  the satisfaction of the Registrar of the High Court.  The  order further  mentions that Mr. Girish Nandan Sinha who  appeared for  the detenu had given an undertaking to the  Court  that during  the pendency of the proceedings when the  petitioner is  on  bail,  the  petitioner  will  not  indulge  in   any prejudicial activity or commit any prejudicial act.  Mr. Lal Narain  Sinha, the Advocate-General of Bihar, has  urged  on behalf of the appellant, the State of Bihar, that the  order under appeal is without 346 jurisdiction,  and that raises an important question of  law as  to whether while entertaining a habeas  corpus  petition under  Art.  226 of the Constitution filed on  behalf  of  a detenu who has been detained under Rule 30 of the Defence of India Rules (hereinafter called the "Rules"), the High Court has  jurisdiction to release the detenu on bail pending  the final disposal of the said habeas corpus petition. The  learned Advocate-General stated at the outset that  the appellant  was  not keen on obtaining the  reversal  of  the order  of  bail  which is under appeal; he  urged  that  the appellant wanted the point of law to be decided, because  it is necessary that the true rue legal position in this matter should  not be in doubt.  That is why we do not  propose  to deal with the facts leading to the habeas corpus petition on behalf   of  Rambalak  Singh  and  will  not  consider   the propriety, or the reasonableness of the order under  appeal. It  is true, as the learned Advocate-General contends,  that one  rarely  comes across a case where the  High  Court  has purported  to exercise its jurisdiction under Art.  226  and released  a detenu on bail where the order of detention  has been  passed under R. 30 of the Rules; but that  by  itself, can  afford no assistance in dealing] with the  question  of jurisdiction raised by the present appeal. The learned Advoate-General has fairly invited our attention to  the observations recently made by this Court in  Special Reference  No.  1 of 1964 (1), which are  relevant  for  the purpose  of dealing with the present appeal.  In that  case, the  Legislative Assembly of the State of Uttar Pradesh  had committed  Keshav Singh, who was not one of its members,  to prison  for its contempt.  Keshav Singh had then  moved  the Allahabad  High Court, Lucknow Bench, under Art. 226 of  the Constitution  and s. 491 of the Code of Criminal  Procedure, challenging  his  committal  as  being  in  breach  of   his fundamental  rights.  He had also prayed for  interim  bail. The learned Judges who entertained his petition admitted him to  bail  and  one of the points which  arose  for  decision before  this Court in the Special Reference was whether  the order  passed  by the High Court admitting Keshav  Singh  to bail was without jurisdiction. Mr.  Seervai,  who had appeared for the U.P.  Assembly,  had strenuously  contended  that the order passed  by  the  High Court   admitting   Keshav  Singh  to   bail   was   without jurisdiction,  and  in  support of his  contention,  he  had relied  upon the English practice which seems  to  recognise that  in  regard  to  habeas  corpus  proceedings  commenced against orders of commitment passed by the House of  Commons on  the  ground  of its contempt, bail  is  not  granted  by courts.  This argument, however, was rejected by this Court, because  this Court took the view that "if Art. 226  confers

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jurisdiction  on the Court to deal with the validity of  the order of commit- (1)  [1965] 1 S.C.R. 413.                             347 ment  even  though the commitment has been  ordered  by  the House, how can it be said that the Court has no jurisdiction to  make  an interim order in such proceedings?"  (p.  498). Reference was also made to an earlier decision of this Court in the State of Orissa v. Madan Gopal Rungta and  Others(1), where  it  was ruled that an interim relief can  be  granted only  in aid of, and as auxiliary to, the main relief  which may be available to the party on final determination of  his rights in a suit or proceeding.  It is clear that this  view proceeded   on  the  well  recognised  principle   that   if jurisdiction  is  conferred by a statute upon a  Court,  the conferment  of  jurisdiction implies the conferment  of  the power  of doing all such acts, ,or employing such means,  as are essentially necessary to its execution(2).  Having  thus rejected  the contention raised by Mr. Seervai,  this  Court took  the precaution of adding that it was not concerned  to enquire whether the order admitting Keshav Singh to bail was proper  and reasonable or not; all that this court was  then concerned to consider was whether the said order was without jurisdiction,  and  on this point the opinion  expressed  by this  Court was that in passing the order of  interim  bail, the  High  Court  cannot  be  said  to  have  exceeded   its jurisdiction. The  learned Advocate-General does not dispute the  correct- ness  of these observations.  He, however, argues that  this principle  cannot  be  invoked in cases where  a  detenu  is detained  under R. 30 of the Rules.  The  policy  underlying the  enactment of the Defence ,of India Act and  the  Rules, and  the  object intended to be achieved  by  the  detention which  is  authorised under R. 30,  clearly  indicate,  that there are other valid considerations of paramount importance which  distinguish the detention made under R. 30  and  that alters  the character of the proceedings initiated by or  on behalf  of the detenu under Art. 226.  It is  conceded  that even in regard to orders of detention passed under R. 30, it would be competent to the High Court to order release of the detenu  if  the High Court is satisfied  that  the  impugned order  has been passed mala fide.  There is also  -no  doubt that  the order of detention can be set aside if it  appears to the High Court that on the face of it, it is Invalid,  as for  instance,  when it appears to the High Court  that  the face  of  the  order shows that it has  been  passed  by  an authority  not  empowered to pass it.  But the  argument  is that  in  dealing with the question as to whether  the  High Court  can grant interim bail to a detenu in  habeas  corpus proceedings  commenced  on his behalf under  Art.  226,  the Court cannot ignore the fact that the detention purports  to have  been made in order to safeguard the defence  of  India and  civil  defence, public safety,  maintenance  of  public order, India’s relations with foreign powers, maintenance of peaceful conditions in any part of India, efficient  conduct of military operations or the maintenance of (1)  [1952] S.C.R. 28. (2)  Maxwell on Interpretation of Statutes 11th ed., p. 350 348 supplies   and  services  essential  to  the  life  of   the community.  The very object of making an order of  detention against  a  citizen  is to put an  end  to  his  prejudicial activities  which are likely to affect one or the  other  of the  matters of grave public importance specified by R.  30, and  so, it would be illogical to hold that even before  the

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Court comes to any decision as to the merits of the  grounds on  which the order of detention is challenged, it would  be open  to  the Court to pass an interim order  of  bail;  and that,  it is urged, distinguishes habeas corpus  proceedings in relation to orders of detention passed under R. 30 of the Rules. We  are  not  impressed by this argument.  If  on  proof  of certain  conditions or grounds it is open to the High  Court to set aside the order of detention made under R. 30 of  the Rules,  and direct the release of the detenu, we do not  see how it would be possible to hold that in a proper case,  the High  Court  has no jurisdiction to make  an  interim  order giving  the detenu the relief which the High Court would  be entitled  to  give him at the end of the  proceedings.   The general  principle on which the observations of  this  Court were  based in the Special Reference would apply as much  to the  habeas  corpus  proceedings commenced on  behalf  of  a detenu  detained  under R. 30 of the Rules as to  any  other habeas corpus proceedings.  If the Court has jurisdiction to give  the  main  relief  to the detenu at  the  end  of  the proceedings,  on principle and in theory, it is not easy  to understand  why the Court cannot give interim relief to  the detenu pending the final disposal of his writ petition.  The interim  relief  which  can  be  granted  in  habeas  corpus proceedings  must no doubt be in aid of, and  auxiliary  to, the main relief.  It cannot be urged that releasing a detenu on  bail is not in aid of, or auxiliary to the  main  relief For  which  a  claim  is made on  his  behalf  in  the  writ petition.   It is true that in dealing with the question  as to  whether interim bail should, be granted to  the  detenu, the.   Court would naturally take into account  the  special objects  which  are  intended to be achieved  by  orders  of detention  passed under R. 30.  But we are dealing with  the bare question of jurisdiction and are not concerned with the propriety   or  the  reasonableness  of  any  given   order. Considering the question as a bare question of jurisdiction, we  are reluctant to hold that the jurisdiction of the  High Court to pass interim auxiliary orders under Art. 226 of the Constitution  can  be  said  to  have  been  taken  away  by necessary  implication when the High Court is  dealing  with habeas  corpus petitions in relation to orders of  detention passed under R. 30 of the Rules. It  is, however, urged by the learned Advocate-General  that the order of bail in the present proceedings and indeed  any order  of  bail  passed in such  proceedings  would  not  be interim  but  would be final; and that, it is  pointed  out, distinguishes  cases of this character from other  cases  of habeas  corpus petitions.  The argument is that if a  person is convicted and he seeks to challenge the legality                             349 of  the conviction by habeas corpus proceedings  under  Art. 226, the interim bail would be interim in the sense that  if the  proceedings  fail, the person concerned  will  have  to return  to  jail and run out the sentence  imposed  on  him. Reverting to the case of Keshav Singh, it was urged that  if the writ petition filed by Keshav Singh had failed, he would have  been  compelled  to return to jail  and  run  out  the sentence pronounced on him by the U.P. Legislative Assembly. The cases in regard to detention effected by R. 30, however, stand on a different footing.  There is no period imposed by the  orders of detention; they can be renewed from  time  to time as authorised by the respective relevant Rules, and the object  of making the order is to prevent the commission  of prejudicial acts of the detenu.  In such a case, if the writ petition ultimately fails, it may be that the detenu returns

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to jails; but his return to jail under such circumstances is not  comparable to the return to jail of the detenu who  was convicted and who was allowed interim bail in proceedings by which he challenged the legality of his conviction. This argument also is not well-founded.  It is obvious  that when  the High Court releases a detenu on bail  pending  the final disposal of his habeas corpus petition, the High Court will  no doubt take all the relevant facts into account  and it  is  only if and when the High Court  is  satisfied  that prima  facie,  there is something patently  illegal  in  the order  of detention that an order for bail would be  passed. The jurisdiction of the High Court to pass an interim  order does  not depend upon the nature of the order, but upon  its authority  to  give  interim  relief to  a  party  which  is auxiliary  to  the main relief to which the party  would  be entitled  if  it  succeeds  in  its  petition.    Therefore, considered as a mere proposition of law, we see no reason to accept the argument of the learned Advocate-General that the principle enunciated by this Court in the Special  Reference has  no application to habeas corpus petitions  filed  under Art. 226 in relation to orders of detention passed under R.   30 of the Rules. Having thus rejected the main argument urged by the  learned Advocate-General, we must hasten to emphasise the fact  that 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 R. 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 not doubt that the facts on which the sub- jective  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 350 not.  The jurisdiction of the High Court to grant relief  to 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  in- variably 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 fide, 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 fide,  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 detentionmay     be

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challenged  by the detenu.  That is why the limitations  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. In dealing with writ petitions of this character, the  Court has  naturally to bear in mind the object which is  intended to  be  served by the orders of detention.  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 jurisdition.  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  to  serve.   An  unwise decision  granting bail to a party may lead to  consequences which  are prejudicial to the 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 351 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 the 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.   Therefore,  on  the point raised by the learned Advocate-General in the  present appeal, our conclusion is that in dealing with habeas corpus petitions under Art. 226 of the Constitution where orders of detention  passed under R. 30 of the Rules  are  challenged, the  High  Court  has jurisdiction to grant  bail,  but  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  is  intended  to be served  by  orders  of  detention properly and validly passed under the said Rules. We have already indicated that the learned  Advocate-General has fairly stated that the appellant has brought the present appeal to this Court not for the purpose of challenging  the correctness, propriety or reasonableness of the order  under appeal  but for the purpose of getting a decision from  this Court  on the important question of jurisdiction  raised  by the  said order.  We do not, therefore propose  to  consider the question as to whether the order under appeal is proper, reasonable or valid.

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The result is, the appeal fails and is dismissed. Appeal dismissed. 352