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2018 DIGILAW 516 (ALL)

CHANDRASHEKHAR @ RAVAN v. STATE OF U. P.

2018-02-27

KRISHNA PRATAP SINGH, RAMESH SINHA

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JUDGMENT : Ramesh Sinha and Krishna Pratap Singh, JJ. Sri Ravi Kiran Jain, learned Senior Advocate appearing on behalf of the petitioner has requested the Court for considering the prayer for bail of the petitioner in the present habeas corpus petition. Thus, the Court proceeds to hear learned counsel for the parties on the prayer for bail of the petitioner. 2. Heard Sri Ravi Kiran Jain, learned Senior Advocate, Sri Gopal S. Chaturvedi, learned Senior Advocate assisted by Ms. Deba Siddiqui, learned counsel for the petitioner, Sri Raghvendra Kumar, learned Advocate General assisted by Sri Ran Vijay Singh learned A.G.A. for the State. 3. Learned counsel for the petitioner tried to demonstrate before the Court through his arguments that the detention order passed by the District Magistrate, Saharanpur respondent no. 2 under section 3 (2) of the National Security Act, 1980 is in contravention with section 3 (3) of the said Act. He raised some other arguments stating that the detention of the petitioner in the present case is illegal one and prayed that the petitioner be enlarged on bail during the pendency of the present habeas corpus petition. 4. Per contra learned Advocate General vehemently refuted the arguments of learned counsel for the petitioner and submitted that the detention of the petitioner under the said Act in view of the detention order passed by respondent no. 2 cannot be said to be an illegal one, hence the petitioner is not entitled to be released on bail during the pendency of the present habeas corpus petition. He further prayed that the State should be provided opportunity for filing a counter affidavit in the matter and the present habeas corpus petition be disposed of by this Court on merits after exchange of pleadings between the parties fixing an early date. Learned counsel for the petitioner as well as learned Advocate General have placed reliance on the judgment of the Apex Court in the case of State of Bihar Attorney General for India v. Rambalak Singh Balak reported in AIR 1966 SC 1441 and LAWS (SC) 1966 122 in support of their arguments. 5. Learned counsel for the petitioner has drawn the attention of the Court towards paras-6 and 9 of the aforesaid judgment which are quoted hereinbelow:- Para-6. We are not impressed by this argument. 5. Learned counsel for the petitioner has drawn the attention of the Court towards paras-6 and 9 of the aforesaid judgment which are quoted hereinbelow:- Para-6. 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. 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 Article 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. Para-9. 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 Article 226 in relation to orders of detention passed under R. 30 of the Rules. 6. On the other hand, learned Advocate General conceded that there remains no room of doubt regarding the jurisdiction of the High Court to grant bail to a detenu in a habeas corpus petition in view of the above judgment of the Apex Court but he has drawn the attention of the Court towards paras-11 and 12 of the aforesaid judgment which are quoted hereinbelow:- Para-11. 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. 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 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 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 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. Para-12. 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. 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 Article 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. 7. Considered the submissions advanced by learned counsel for the parties with respect to the prayer pressed for release of the petitioner on bail during the pendency of present habeas corpus petition and perused the judgment of the Apex Court relied upon by learned counsel for the parties. 8. From a perusal of the aforesaid judgment which has been relied upon by learned counsel for the parties, it is apparent that it has been held in the aforesaid judgment that the High Court is well within its powers to grant interim bail to the detenu in the habeas corpus petition but the same can only be granted if it is satisfied that prima facie there is something patently illegal in the order of detention then an order for bail would be passed. 9. In view of the above, we are of the opinion that at this stage it cannot be said that the said detention of the petitioner is illegal as the State has to be provided opportunity to file its reply to the petition filed by the petitioner and, therefore, we reject the prayer for bail of the petitioner in the present habeas corpus petition and deemed it proper to expedite the hearing of the petition. 10. In order to consider the petition on its merit, the petition is 'Admitted'. 11. Let the petition be listed on 19th March, 2018 for final hearing. 12. In the meanwhile, learned A.G.A. for the State as well as counsel for Union of India may file counter affidavit within two weeks. 10. In order to consider the petition on its merit, the petition is 'Admitted'. 11. Let the petition be listed on 19th March, 2018 for final hearing. 12. In the meanwhile, learned A.G.A. for the State as well as counsel for Union of India may file counter affidavit within two weeks. Rejoinder affidavit, if any, may be filed within one week thereafter. 13. It is made clear that the view expressed by this Court is only for the purpose of considering and disposing of the prayer for bail of the petitioner made in the present habeas corpus petition.