MANJIT SINGH DHINGRA Vs. UNION OF INDIAN

JUDGEMENT

(1.) THE petitioner, Manjit Singh Dhingra is in this Court challenging the order of detention dated 15th June, 1985 (Annexure P-4) passed by the State of Maharashtra under the provisions of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. He prays for an interim relief in the nature of stay of arrest or operation of the impugned order.

(2.) A similar relief was claimed by the petitioner in Criminal Writ No.978 of 1985 which came up for hearing before me on 11th December, 1985. I had dismissed the petition in limine, for the petitioner then was not categoric as to whether any order had been passed by the State of Maharashtra. It is in those circumstances that I had taken the view that since the petitioner had not produced a copy of the detention order and even had not been detained within the jurisdiction of this Court, no cause of action arose and thus that petition merited dismissal. Now the petitioner has filed a copy of the detention order and apprehensive of his arrest on its being carried out within the jurisdiction of this Court, he has laid challenge thereto.

(3.) THE learned counsel for the petitioner has relied on a Division Bench judgment of the Bombay High Court in N.K. Nayar and others v. The State of Maharashtra and others, 1985(2) Crimes 304. as also two Single Bench decisions of the Delhi and Karnataka High Courts reported as Delhi Development Authority v. Ganga Singh and another, 1980 Cr.L.J. 1175 and Dr. L.R. Naidu v. State of Karnataka, 1984 Cr.L.J. 757 respectively. All these cases relate to the power of the Court under section 438, Code of Criminal Procedure. The Bombay High Court in N.K.Nayar's case (supra) has taken the view that its powers are wide enough to include the power to grant interim anticipatory bail to a person situated within the (its) jurisdiction for an offence allegedly committed outside the State of Maharashtra. The Delhi High Court in Delhi Development authority's case (supra) has gone even further by saying that not only can it grant interim bail but can also confirm it. The Karnataka High Court is, however, in line with the Bombay view. Grant of a limited anticipatory bail was spelled out as within the power of the Court under section 438, Code of Criminal Procedure. On the other hand, there is a Full Bench judgment of the Patna High Court in Syed Zafr-ul-Hassan and another v. State, 1985 Cr.L.J. 605 where the expression "the High Court" or "the Court of Session" in section 438. Code of Criminal Procedure have been held to mean those Courts within whose territorial jurisdiction the accusation of having committed a non-bailable offence arises or is made. The Patna High Court took the view that the apprehension of arrest by such accused is with regard to that particular offence having a particular locale and not generically. In other words, physical presence of the accused in a particular jurisdiction did not confer jurisdiction on that Court to grant him anticipatory bail under Section 438, Code of Criminal Procedure, when the offence was committed in another jurisdiction and accusation lay against him in that jurisdiction. On the strength of these decisions, Mr. Cuccria, learned counsel for the petitioner, says that there is a conflict of opinion and the matter deserves to be heard by a larger Bench.