Holding

A single judge cannot grant bail in a habeas corpus petition listed before a Division Bench absent extraordinary circumstances; the bail order was therefore erroneous and set aside.

Summary

The respondents, detained under the Maintenance of Supplies of Essential Commodities Act, 1980, filed habeas corpus petitions in the Allahabad High Court. While the petitions were listed before a Division Bench, a single judge, after hearing counsel, granted them bail on the ground that the State Government had erred in forwarding their representations to the Advisory Board without prior consideration. The Division Bench later allowed the bail to continue until judgment, prompting the State to seek special leave to appeal the single judge's order. The Supreme Court held that the single judge erred in granting bail because the petitions were already scheduled before a Division Bench and there was no pressing or unique reason justifying interim release; bail in punitive detention cases is permissible only in exceptional circumstances. Consequently, the Court set aside the bail order, directed the respondents to be taken into custody, and allowed the appeal.

Issues considered

Whether a single judge of a High Court can grant bail in a habeas corpus petition when the matter is listed before a Division Bench.
What considerations govern the grant of bail in cases of punitive detention under the Maintenance of Supplies of Essential Commodities Act, 1980.

Legislation cited

Subjects

habeas corpusinterim bailpunitive detentionmaintenance of essential commoditiesjurisdictionadvisory boardSupreme Court of India

Judgment

A 24

STA1E OF U.P.
v.
JAIRAM ETC.
B
December 1, 1981

[Y.V, CHANDRACHUD, C.J., D.A. DESAI AND
AMARENDRA NATH SEN, JJ.]

·c fractice and Procedure-High Court-lf could release a detenu on bail 011
consideraUons applicable to cases of punitive 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
D 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.
E
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
'F impugned order of the Single Judge releasing the detenus on bail "until the next
·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
·c any pressing or particular reason of a unique kind such as grave illness or press-
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
H merits.
u .P. STATE v. JAIRAM (Chandrachud, C.J.) 25

Although the Courts would be anxious to protect the individual liberty of A
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 B
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 of Bihar v. Rambalak Singh and others, [1966) 3 SCR 344 applied. C

- 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
D
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. E
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.
F
Shaukat Hussain and Shakil Ahmed for the Respondent.

The Judgment of the Court was delivered by

CHANDRACHUD, C.J. : Heard counsel. Special leave granted.
G
The respondents, who are detained under the provisions of the
Prevention of Blackmarketing and Maintenance of Supplies of Essen-
tial 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 H
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

A holidays from October 24 until November 2, 1981 and they were
not likely to be available, perhaps as a Bench, for concluding
I
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
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 respon-
dents on the ground that the State Government had erred in for-
c warding the respondents' representations to the Advisory Board
without considering them for itself.

The writ petitions were taken up for hearing by another Divi-
sion Bench on November 3, 1981. They concluded tr.e hearing on
that date, reserved their judgment and allowed the respondents to
D 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
E passed by the learned Single Judge on October 23, 198 l, 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
F
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
G
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
H. 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 ~atter of common practice, on <;onsiderations ~enera.lly appli-
u.:P. STATE v. JAIRAM (Chandrachud, C.i.) 27
cable to cases of punitive detention. The learned Single Judge virtu- A
ally 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. 8

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 Other s.(1 ) 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 c
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 pro- D
ceedings 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 E
order giving the detenu the relief which the High Court would be
entitled to give him at the end of the proceedings. The Court, how-
ever, hastened to emphasize :

-
" .. ·though we have no hesitation in affirming the juris-
diction 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 inevi-
tably 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 justi-
ciable, 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
Hi
0) [1966] 3 S.C.R. 344.
SlJPREME COURT REPORTS t1982] :i s.c.R..
A the detenu in such proceedings is very narrow and very limi-
ted. That being so, if the High Court takes tbe 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
8 invariably be to expedite the hearing of the writ petition
and deal with the merits without any delay. Take the
case where ma/a 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 ma/a fides alleged, unless a return is filed by
c the State. Just as it is not unlikely that the High Courts
may come across cases where orders of detention are pass-
ed ma/a fides. it is also not unlikely that allegations of ma/a
fides are made light heartedly .or without justification; and
so, judicial approach necessarily postulates that no conclu-
sion can be reached, even prima facie, as to ma/a fides
-
D 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
ma/a fides it would not be safe, sound or reasonable to
make an interim order on the prima f acie provisional
E conclusion that there may be some substance in the allega-
tions of ma/a fides. What is true about ma/a fides is equally
true about other infirmities on which an order of detention
may be challenged by the detenu. That is why the limita-
tion on the jurisdiction of the Court to grant relief to the

F
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
G
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 jurisdic-
tion. 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
tJ.i>. STATE v. iAIRAM (Chandrachud, C.J.) 29
to serve. An unwise decision granting bail to a party may A
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 B
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 c
-- 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 D
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 E
exercise of jurisdiction. It is essential to bear in mind the
distinction between the existence of jurisdiction and its pro-
per 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
F

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 G
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 respon- H
dents, has drawn our attention to an order passed by the Division
36 SUPREME cot.JR.t RllPOkts {I 982] 2 s.c.R

A 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.
D
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.
E
P.B.R. Appeal allowed.

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