TMI Blog1966 (1) TMI 82X X X X Extracts X X X X X X X X Extracts X X X X ..... e appellant, the State of Bihar, that the order under appeal is without jurisdiction, and that raises an important question of law as to whether while entertaining a habeas corpus petition under Art. 226 of the Constitution filed on behalf of a detenu who has been detained under Rule 30 of the Defence of India Rules (hereinafter called the Rules ), the High Court has jurisdiction to release the detenu on bail pending the final disposal of the said habeas corpus petition. The learned Advocate-General stated at the outset that the appellant was not keen on obtaining the reversal of the order of bail which is under appeal; he urged that the appellant wanted the point of law to be decided, because it is necessary that the true rue legal position in this matter should not be in doubt. That is why we do not propose to deal with the facts leading to the habeas corpus petition on behalf of Rambalak Singh and will not consider the propriety, or the reasonableness of the order under appeal. It is true, as the learned Advocate-General contends, that one rarely comes across a case where the High Court has purported to exercise its jurisdiction under Art. 226 and released a detenu on bail w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conferment of jurisdiction implies the conferment of the power of doing all such acts, ,or employing such means, as are essentially necessary to its execution(2). Having thus rejected the contention raised by Mr. Seervai, this Court took the precaution of adding that it was not concerned to enquire whether the order admitting Keshav Singh to bail was proper and reasonable or not; all that this court was then concerned to consider was whether the said order was without jurisdiction, and on this point the opinion expressed by this Court was that in passing the order of interim bail, the High Court cannot be said to have exceeded its jurisdiction. The learned Advocate-General does not dispute the correct- ness of these observations. He, however, argues that this principle cannot be invoked in cases where a detenu is detained under R. 30 of the Rules. The policy underlying the enactment of the Defence ,of India Act and the Rules, and the object intended to be achieved by the detention which is authorised under R. 30, clearly indicate, that there are other valid considerations of paramount importance which distinguish the detention made under R. 30 and that alters the character of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of a detenu detained under R. 30 of the Rules as to any other habeas corpus proceedings. If the Court has jurisdiction to give the main relief to the detenu at the end of the proceedings, on principle and in theory, it is not easy to understand why the Court cannot give interim relief to the detenu pending the final disposal of his writ petition. The interim relief which can be granted in habeas corpus proceedings must no doubt be in aid of, and auxiliary to, the main relief. It cannot be urged that releasing a detenu on bail is not in aid of, or auxiliary to the main relief For which a claim is made on his behalf in the writ petition. It is true that in dealing with the question as to whether interim bail should, be granted to the detenu, the. Court would naturally take into account the special objects which are intended to be achieved by orders of detention passed under R. 30. But we are dealing with the bare question of jurisdiction and are not concerned with the propriety or the reasonableness of any given order. Considering the question as a bare question of jurisdiction, we are reluctant to hold that the jurisdiction of the High Court to pass interim auxiliary orders under A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its petition. Therefore, considered as a mere proposition of law, we see no reason to accept the argument of the learned Advocate-General that the principle enunciated by this Court in the Special Reference has no application to habeas corpus petitions filed under Art. 226 in relation to orders of detention passed under R. 30 of the Rules. Having thus rejected the main argument urged by the learned Advocate-General, we must hasten to emphasise the fact that though we have no hesitation in affirming the jurisdiction of the High Court in granting interim relief by way of bail to a detenu who has been detained under R. 30 of the Rules, there are certain inexorable considerations which are relevant to proceedings of this character and which inevitably circumscribe the exercise of the jurisdiction of the High Court to pass interim orders granting bail to the detenu. There is not doubt that the facts on which the sub- jective satisfaction of the detaining authority is based, are not justiciable, 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 the detenu in s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nwise decision granting bail to a party may 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 detenu 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 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 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 earlier stage of the proceedings. If an order of bail is made by the Court without a full trial of the issues ..... X X X X Extracts X X X X X X X X Extracts X X X X
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