STATE OF U.P. v. JAIRAM ETC

Citation: [1982] 2 S.C.R. 24

Court: Supreme Court of India

Bench: Y.V. CHANDRACHUD, D.A. DESAI, AMARENDRA NATH SEN

Case summary

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....

Judgment text

STA1E OF U. P. v. JAIRAM ETC. December 1, 1981 [Y. V, CHANDRACHUD, C. J. , D. A. DESAI AND AMARENDRA NATH SEN, JJ. ] fractice and Procedure-High Court-lf could release a detenu on bail 011 ·c consideraUons applicable to cases ofpunitive detention. After hearing the habeas corpus petitions of the respondents, who were detained under the provisions cir the Maintenance of Supplies of Essential C~mmodities 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 heating, also adjourned the petitions un'til the reopening of the Court after holidays. In . the mean time a single. Judge of the High Court, before whom the dete. nus . made an application for bail, allowed their petitions on the ground that th~ ,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 "PfOnounce. d. _. 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 'F ·date of hearing of. the habeas corpus petitions''. Allowing ihe appeal HELD : J,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 press- ·c iμg 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 the decision on merits. u . P. STATE v.

JAIRAM (Chandrachud, C. J. ) 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 case~. 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-Fl State ofBihar 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] 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 bad Diwali \ 26 SlJPREME COURT REPORTS (1982) 2 s. C. k holidays from October 24 until November 2, 1981 and they were not likely to be available, perhaps as a Bench, for concluding the I 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 ll of the Court on November 3. Soon after the Division Bench rose, counsel for the respondents approached a learned Single Jt\dge after Court hours and applied for ball. 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 tr. e hearing on that date, reserved their judgment and allowed the respondents to continue on bail till Novmber 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, 198l, 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 p. urpose of detenti on 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 H. of the particular occasion. But a detenu cannot be released on bail as a ~atter of common practice, on . STATE v. iAIRAM (Chandrachud, C. J. ) 29 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 det~nu 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 f(1cie case for releasfog 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 36 SUPREME cot. JR. t RllPOkts {I 982] 2s. c.

R Bench itself on November IO, 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 t. he order passed by the learned Single Judge have become infructuou~ by rea· ·son of the order passed by the Division Bench. We are unable to 8 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 bai) and direct that the respondents shall be taken in custody forthwith. We hope that the Division Bench which has already heard 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. Appeal allowed. P. B. R. -- •