NIKHILESH NANDA Vs. STATE

JUDGEMENT

(1.) MR. Somenath chatterjee appearing in support of the rule made submissions as to the scope and nature of the Court's power for granting bail in cases of preventive detention. He pointed out that it would be wrong to proceed on the orthodox line viz. that bail could be granted only when it appeared to the Court, prima facie, that the petition was bound to succeed. He referred to the recent changes in the Criminal Procedure Code whereby the powers of both the High court and the Sessions Court have been considerably enlarged. Mr. Chatterjee argued that no statutory guide lines were there to circumscribe the Court's power which were very wide. The powers of a High Court was not inhibited in any way. In this connection he referred to the recent case of M. A. Rashid v. The State of Kerala, reported in A. I. R. 1974. Supreme Court 2249. In that case Ray, C. J. held that administrative decisions in exercise of powers even if conferred in subjective terms are to be made in good faith on relevant considerations. It was further observed that where powers are conferred on public authorities, to exercise the same when "they are satisfied" or when "it appears to them" or when "in their opinion" a certain state of affairs exists or when powers enable public authorities to take "such action" as they think fit in relation to the subject matter, the Court will not readily defer to the collusiveness of executive authorities' opinion as to the existence of matter of law or fact upon which the validity of the exercises of the power is predicted. According to Mr. Chatterjee this clear pronouncement of the Supreme Court indicates that the court should be on a guard against the conclusiveness of executive authorities' opinion. Mr. Chatterjee also referred to the case of State of Bihar v. Rambalak Singh, reported in A. I. R. 1966, supreme Court 1441 and urged that there was nothing said there that bail could be granted only when the petitioner was bound to succeed. The expressions were "bail could be granted when the orders were patently illegal". According to Mr. Chatterjee the expression "patently illegal" was less restrictive than "bound to succeed". Mr. Chatterjee further urged that things have drastically changed since the time when Rambalak Singh was decided. Today thousands of people were put behind bars without trial and it was idle to expect that the detaining authorities would take ample and adequate care in exercising their powers.

(2.) IT appears that following the cases of State of Orissa v. Madan Gopal, reported in A. I. R. 1965, Supreme Court 12 and Special reference No. 1 of 64 reported in A. I. R. 1965 Supreme Court, 745 (Keshav Singh's case) the Supreme court in the case of State of Bihar v. Rambalak Singh (66 Supreme Court, 1441) held that the power of granting bail flowed from the well recognised principle that when a jurisdiction is conferred by a statute upon the Court, the conferment of jurisdiction implies the conferment of the power of doing all such acts or employing such mean as is essentially necessary for its execution. The interim relief which could be granted in Habeas Corpus proceedings must no doubt be in aid of and auxiliary to the main relief. This seems to be the basis of the jurisdiction of the Court to grant bail. The argument that the Court had no power to enlarge a person on bail in cases of detention under Rule 30 of the Defence of India act was repelled by the Supreme Court in that case. At the same time the supreme Court in that case held that the relief by way of granting bail to a detenue involved certain inexorable consideration relevant to the character of the proceeding and object of the detention. The jurisdiction of the high Court was said to be very narrow and limited. The subjective satisfaction of the detaining authority were said to be not justiciable (para. 10 page 1446 ). The Supreme Court: administered caution that in upholding the claim of 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 in granting bail to a party may lead to consequences which are prejudicial to the existence of the community at large. That factor must be duly weighed by the High Court before granting bail. The limitation, in granting interim bail flows from the limitation on the jurisdiction of the Court to grant relief to a detenu in a preventive custody. We see some force in the argument of Mr. Chatterjee that in view of the wide spread application of the drastic powers conferred on the executive the care and caution required to be devoted before detaining a person of his liberty without trial may not be there. The necessity for vigilance by the Courts have therefore increased in this respect. Yet the considerations which weigh in a criminal case are not the same as would weigh in the case of detention. As the supreme Court has repeatedly stated there is no parallel between prosecution in a court of law and a detention order under the act. The one is punitive action and the other is a preventive act (Haradhan Saha v. The Stale of West bengal and others, reported in A. I. R. 1974 Supreme Court 2145 ). Objective considerations of related facts according to a prescribed procedure which is the characteristic of a criminal trial is not to be expected in preventive detention.

(3.) THUS it would seem that while it is the duty of the Court to protect the liberty of the subject and not to defer to the conclusiveness of orders of the detaining authority as regards either matter of law or fact involved in a detention order, the Court's power, nonetheless, seems to be somewhat circumscribed and fettered. The fetters in the ultimate analysis perhaps flow from the restraints imposed by the Courts themselves in treating the subjective satisfaction of the detaining authority in the light of the object and purpose of the enactment which empowers the executive with the drastic authority. The ambit of exercise of the court's power being generally limited in a preventive detention-its power to grant bail in such a case, is necessarily more limited. The bail is after all an interim relief in aid of the final redress the court may confer.