LAKSHMI Vs. DEPUTY SUPERINTENDENT OF POLICE Ï¿½Q

JUDGEMENT

(1.) PETITIONER-Lakshmi is the mother of Velu alias Boopalan, alleged detenu, for whose production before this Court, for being set at liberty by issue of a habeas, this petition under Art. 226 of the Constitution of India has been preferred. PETITIONER has stated in her affidavit that from 8. 11. 1992 her son has been detained under Secs. 3,4,5 and 6 of TADA Act and is facing his prosecution in C. C. No. 3 of 1993, on the file of designated court no. 2, Madras. According to the petitioner, detention of her son is illegal, for the material placed before the designated court is devoid of substance to connect him with Secs. 3,4, 5 and 6 of the TADA Act. Statement of witness Chinnaswamy and confession of a co-accused without an identification parade, cannot be held to be a sufficient material and even if explosives had been seized from the detenu, if he cannot be connected with Terrorist Act, he will not be liable to be taken to a designated court. If the offences punishable under TADA Act are excluded, the detenu would have had to be released on the expiry of 90 days, since by then, final report had not been laid.

(2.) MR. R. Sankarasubbu, petitioners counsel submitted that refusal of bail by the designated court was an order interlocutory and since no appeal has been provided to challenge the said interlocutory order, petitioner will be justified in invoking the powers of this Court under Art. 226 of the Constitution of India to obtain necessary relief. Petitioners counsel has placed before us certain decided cases in support of his submissions, which include the averments in the writ petition referred to earlier.

(3.) IN Sunil Batra a. Delhi Administration, I97s Crl. L. J. 1741:a. LR. 1978s. C. 1675, reference was made to pronouncement in Coffin v. Rcichard, Substantive Criminal Law, P. 14, which reads as follows: ' When a man possesses a substantial right, the courts will be diligent in finding a way to protect it. The fact that a person is legally in prison does not prevent the use of habeas corpus to protect his other inherent rights. . On this basis, it was contended, that the petitioner has a right to challenge the illegal dismissal of the bail plea of the detenu under art. 226 of the Constitution of INdia, for an appeal has not been provided, under the Act against interlocutory orders. That bail orders are interlocutory in nature, can admit of no doubt, for the Supreme Court has stated in Usmanbhai dawoodbhai Memon v. State of Gujarat, 1988s. C. C 318, that order granting or refusing to grant bail under Sec. 20 (8) of TADA ACT was an interlocutory order, not appealable before Supreme Court. It is not the pronouncement of law that the detenu in such cases has no right whatever to seek relief for under Art. 226 of the Constitution, Supreme Court has exercised its powers though those occasions may be rare and few. The absence of a provision for an appeal against interlocutor) orders does not, as a logical consequence, permit the High court to exercise its constitutional powers, as though it is a routine matter. We cannot lose sight of the observation of the Supreme Court in usmanbhai s case, 1988 S. C. C. 318, that TADA Act being special Act, must prevail in respect of jurisdiction and power of the High court to entertain an application for bail under Sec. 439ofthecodeorby recourse to its inherent powers under Sec. 482, Crl. P. C. Under the scheme of the Act, there is complete exclusion of the jurisdiction of the High Court in any case involving the arrest of any person on an accusation of having committed an offence punishable under the Act or any rule made thereunder. There is contrariety between the provisions of the Act and those contained in the Code. If exercise of jurisdiction to grant bail is prohibited under the TADA Act an indirect approach to obtain the said pro-t. ihited relief in an attempted garb change, cannot be entertained.