PUBLIC PROSECUTOR Vs. A K GOPALAN

JUDGEMENT

(1.) These are two petitions for leave to appeal to the Supreme Court under Article 134(1)(c) of the Constitution against two orders of release of A.K. Gopalan passed by us on two applications for a writ of 'habeas corpus' presented by the detenu. The second application for the writ became necessary on account of the fact that within just five minutes of our order of release on the earlier 'habeas corpus application and just as the detenu and his legal adviser stepped out of the gates of the High Court, he was arrested again under a fresh order of detention. This fresh order was not brought to our notice at the time of the order of release that we made on the first application for the writ, although by that time it had been got ready to be served, the moment that our order on the first application for the writ should turn out to be favourable to the detenu.

(2.) On the first application for the writ we are satisfied following a decision of the Pepsu Court in -- 'Dr. Teja Singh v. The State', AIR 1951 Pepsu 1, that the non- mention of a time limit in the confirmatory order of detention passed after review under Section 12(2) of the Preventive Detention Act 1950 (IV of 1950) vitiated the order. At the time of our pronouncement of judgments in that case it was represented to us by the then Advocate-General that Act IV of 1951 passed further to amend Act IV of 1950 had just received the assent of the President, and an adjournment was asked for that ground. No authenticated copy of the Act was produced to us of which we could take notice or on which we could act. We pronounced out order of release as we had come to the conclusion that the order of detention was illegal. The second petition for the writ which followed on the re-arrest that took place within about five minutes of the pronouncement of our earlier order was based on the ground that the Government had acted 'mala fide' and in contempt of this Court's order. We ordered the second" petition on the finding that we reached in all the circumstances of the case including the non-production before us at the time of our judgments of the second order of detention which already had become ready, that the conduct of the Government was lacking in 'bona fides'.

(3.) In these petitions for leave the Advocate-General has contended that the cases are fit ones for appeal to the Supreme Court and that we should so certify. He has taken us in the course of the argument through the several provisions of law which have regulated appeals against such orders from time to time. By Article 132 of the Constitution, the appellate jurisdiction of the Supreme Court against any judgment, decree or final order of a High Court whether in a civil, criminal or other proceeding is provided for, if the High Court certifies that the case involves a substantial question of law as to the interpretation of the Constitution. Apart from this, Article 133 deals with the appellate jurisdiction of the Supreme Court in appeals from High Courts in regard to civil matters, while Article 134 provides generally for the appellate jurisdiction of the Supreme Court in regard to Criminal Matters, if the High Court (a) has on appeal reversed an order of acquittal of an accused person and sentenced him to death; or (b) has withdrawn for trial before itself any case from any court subordinate to its authority and has in such trial convicted the accused person and sentenced him to death; or (c) certifies that the case is a fit one for appeal to the Supreme Court. The present petitions for leave to appeal have been argued solely with reference to Clause (c) of Article 134(1) and it has not been suggested for the respondent that the jurisdiction ' involved is anything but criminal.