TMI Blog1965 (5) TMI 45X X X X Extracts X X X X X X X X Extracts X X X X ..... 8, 1964, one Babu, claiming to be partner in business and pairokar of the detenu, moved an application under Section 491 of the Code of Criminal Procedure for release of the detenu. In that application he alleged that in November 1963 contraband gold having been seized at the Punjab-Pakistan border, the customs authorities on suspicion searched the premises of the detenu. They wanted to search his premises again on November 14, 1963, to which he took exception, whereupon he was taken to the Customs Office for interrogation, and was arrested. He was produced before a Magistrate of the First Class who ordered his release on bail. On March 10, 1964, the detenu went to Pakistan to arrange his marriage and after his return he moved an application on October 29, 1964, before the Sessions Judge of Delhi for reduction of the amount of bail. In that connection he appeared in that Court on November 17, 1964, and when he came out of the Court he was arrested pursuant to the detention order already referred to. The petitioner sought release of the detenu on the ground that the detention is mala fide, with an ulterior purpose and oblique motive without there being any material with the detainin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on arrested for his unlawful activities but released on bail. The respondent further affirmed that the detenu is a notorious smuggler of gold into India from Pakistan and of currency from India and as such is a danger to the economy of India and his connections with bad characters and smugglers of Pakistan have further rendered his activities dangerous to the security of the State as also the maintenance of public order. In this manner, in the affidavit of the respondent, the detenu obtained the material on the basis of which his detention has been ordered, material, which to my mind, he was not entitled to ask from the respondent. 4. The petition was dismissed by my learned brother S. K. Kapur J. on January 8, 1965. The petition had been presented by a counsel for the then petitioner and was argued by him before the learned Judge. He urged two grounds (a) that the order of detention is mala de, and (b) that the petitioner not being in custody on August 6, 1964, when the detention order was reviewed under Rule 30-A, so there was no valid review according to that rule. The learned Judge negatived these two contentions. On the ground of mala fide, the learned Judge considered, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , and the learned Judge has referred these three questions to a Full Bench and this is how the case comes before this Bench. 1. Does a petition for writ in the nature of habeas corpus made under Article 226 of the Constitution or Section 491 of the Code of Criminal Procedure lie when a similar petition in respect of the same detenu and questioning the same order has been earlier dismissed on merits? 2. Can a person, who is neither a friend nor a relation of the detenu, be not permitted to apply for a writ in the nature of habeas corpus under Article 226 of the Constitution or Section 491 of the Code of Criminal Procedure, and if not, is it not open to the Court to issue the necessary writ or order or direction once the invalidity of the detention order is brought to its notice even by a stranger? 3. Can the detention of a person under Rule 30 of the Defence of India Rules, 1962, be ordered on the bare allegation that he is engaged in smuggling, has taken to life of crime, is a dangerous character, or has no ostensible means of livelihood 7. It is the High Court which has power under Article 226 of the Constitution of issuing a writ in the nature of habeas corpus. And a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere were previously three independent courts, the Court of Exchequer, the King's Bench Division, and the Common Pleas, and a writ of habeas corpus could be made successively to each one of those Courts. In vacation it could be made from judge to judge. The petitioner in that case, on that, filed another petition before the Chancery Division and that is reported as In re Hastings (No. 4), (1959) 1 All ER 698, and this is what Harman J. says about the present position of the law in this respect in England emerging out of the previous decision of the Lord Chief Justice: It is always sad to be stripped of any illusion, and I, like, I expect, most lawyers, have grown up in the belief that in cases of habeas corpus the suppliant could go from judge to judge until he could find one more merciful than his brethren. That illusion was stripped from me when I read the report of the decision in the Queen's Bench Divisional Court last year (1958) 3 All ER 625 in this very case. The decision was based on this, I think, that there never had been such a right. There had been a right to go from court to court; there had been right in Vacation to go from judge to judge, for the simple re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e is, however, an anonymous case reported in Carter 222, the date of which is about 1670, where three judges of the Common Pleas against the opinion of Vaughan C. J. granted the writ. From the report it would appear likely that the writ was granted by the Common Pleas because the applicant was a privileged person, presumably an officer of the court or an attorney, who at that time had the privilege of being sued only in the Common Pleas. There is no trace of the writ ever having been granted by the Exchequer before 1679. The practice of going from court to court, therefore, seems to have arisen solely as a consequence of that Act which conferred the power of issuing the writ on the Chancellor and on any of the judges and barons, and obliged them to do so. The writ was always 'of right' but not 'of course', and therefore, the court was only obliged to issue the writ on an affidavit showing some ground for the application. The right to go from court to court was not only where the writ was refused but where on the return the prisoner was remanded. In Cox v. Hakes, (1890) 15 App. Cas 506, Lord Bramwell emphasises that each, court was exercising primary jurisdiction; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that effect in Pender v. Herle, ((1725) 1 ER 1462). The reason for this rule first appears in R. v. Dean and Chapter of Dublin, (1 Stra 536). In those days the Court of King's Bench in England exercised Jurisdiction in Error over Irish Courts. The case was one of Mandamus and the court decided that Error did not lie. It was held that Error could not be brought on a prerogative writ because there was no 'ideo consideratum est'. In other words, technically there was no judgment. That case was cited in Pender v. Herle, ((1725) 1 ER 1462) and to quote the headnote, it was there held that no Writ of Error lay it being merely an award of the Court and not a strict formal judgment. This seems to supply the reason why res judicata could not be raised where a second Court was asked to grant a writ which had been refused by another Court. There was no judgment in the formal sense. There were in those days thus three separate Courts in England having in this matter independent jurisdiction and the reason why an application for a writ of habeas corpus could be filed from Court to Court was because in regard to a decision on an application for a prerogative writ there was n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, that proceedings for a writ of habeas corpus, are criminal proceedings. Again, although the matter was not debated before their Lordships, in Biren Dutta v. Chief Commr. of Tripura, AIR 1965 SC 596, appeals against a decision on a petition for writ of habeas corpus have been referred to as 'criminal appeals'. Those appeals dealt with cases of detention under the Defence of India Rules, 1962. At the same time in Greene v. Secy. of State for Home Affairs, 1942 A. C. 284, the observations of Lord Maugham at page 291, and of Lord Wright at page 203, show that proceedings for a writ of habeas corpus in a case of preventive detention are civil proceedings. In that case the Divisional Court had refused an application for such a writ and the order was affirmed by the Court of Appeal and it was in further appeal that the House of Lords was considering the legality of the detention. The other cases of preventive detention in the same line are R. v. Halliday, 1917 A. C. 260, R. v. Secy. of State for Home Affairs, Ex parte O. Brien, (1923) 2 K. B. 361, R. v. Secy. of State for Home Affairs, Ex parte Budd, (1942) 1 All E. R. 373; and R. v. Bottrill: Ex parte Kuechenmeister, (1946) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... given in a petition for writ of habeas corpus. It has been held in Kuppuswami Rao v. The King, AIR 1949 F. C. 1, that the expression 'final order' must be an order which finally determines the points in dispute and brings the case to an end. Now, when a petition for writ of habeas corpus is either granted allowing release of the detenu or person in illegal custody or is refused after hearing arguments on merits, that determines the right of the detenu or the person in custody to be released from detention or custody. This is a valuable right and one which involves the liberty of the subject. When a decision is given determining; the claim of a party to such a right, obviously it finally determines the right claimed by the party and it is a judgment, but in any case, it is a final order. It must give reasons and the basis of the decision and thus is a speaking order and it must be so because an appeal may be taken to the Supreme Court. In Jamnadas Prabhudas v. Commr. of Income-tax, Bombay City, AIR 1952 Bom. 479. Chagla C. J., with whom Tendolkar J. concurred said- ....In our opinion,--and our opinion is supported by authorities as I shall presently point out--, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pus is open to the Supreme Court and its decision in such a petition is a judgment, or, in any case, a final order in the nature of a judgment. So that here there is no basis for a second petition for writ of habeas corpus on the same ground if a previous petition has been refused. Same view has prevailed with a Special Bench of the Bombay High Court in Malhari Ramaji v. Emperor, AIR 1948 Bom 326 , and In re Prahlad Krishna, AIR 1951 Bom. 25 (FB). The decision of this Court in Ramji Lal v. Rex, AIR 1949 East Punj.. 67 (FB) no longer holds, good because it was a decision under Section 491 of the Code of Criminal Procedure only and by that time there was no question of consideration of a petition for writ, of habeas corpus under Article 226 of the Constitution. Broadly, that decision has proceeded on the consideration that a decision in a petition for writ of habeas corpus is not a Judgment, which opinion can no longer be accepted in regard to a decision in a writ petition under Article 226. The conclusion then is that no second petition for a writ of habeas corpus on the same ground, on which a previous similar petition has been refused by this Court, lies in this Court, for in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nds of justice to give relief in such a petition. Of course the petitioner will have to make out a rather strong case, but this Court is not powerless to provide a remedy even in such circumstances when the ground directly shows the illegality of detention or custody. The learned Judge has framed the questions rather widely. As will be shown presently, only one aspect of the matter arises on the facts of this case and that is the first, the other two do not, but the matter has been considered in view of the broadness of the question. The answer to the question is that no second petition for writ of habeas corpus lies to this Court on a ground on which a similar petition has already been dismissed by this Court, a second such petition will lie when a fresh and a new ground of attack against the legality of detention or custody has arisen after the decision on the first petition, and where for some exceptionable reason a ground has been omitted in an earlier petition, in appropriate circumstances, this Court will hear the second petition on such a ground for ends of justice. In the last case it is only a ground which existed at the time of the earlier petition, and was omitted fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proof that the order of detention was in fact made for ulterior purposes, that is, for purposes outside the needs of prevention, but also when the order is made without taking into consideration any important circumstances which rationally and legitimately arise for consideration, when making an order of detention in a particular case. Now, in both the petitions concerning the present detenu the ground of mala fide has been taken and substantially in either it has been ,said that the detention is made in bad faith because it has been made with an ulterior motive on material not connected with the maintenance of public order as required by Rule 30. So that the factual position is that the second petition by Ram Kumar is on the same ground as the earlier petition by Babu, and, as already stated, such a petition is not competent in this Court. 10. The second question does not present much difficulty because in Charanjit Lal Chowdhury v. Union of India, AIR 1951 SC 41, Mukherjea and Das JJ. have been of the opinion that a writ for a relief under Article 226 of the Constitution, though not at the instance of an utter stranger, is at least available through a friend or relation of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of ostensible means of livelihood. These matters arise in the connected cases and will be considered with regard to them. The present case is confined only to the allegations of smuggling of the type as stated, and this question has to be considered as thus narrowed down. But, as I have already pointed out, the answer to the first question renders the answer to this third question unnecessary, because the petition of the present petitioner is not competent. In Supdt. Central Prison, Fatehgarh v. Dr. Ram Manohar Lohia, AIR 1960 SC 633, their Lordships have held that the expression 'public order' is synonymous with public peace, safety and tranquillity. If it was necessary to go into this question, on the facts of this case the view expressed by Falshaw J. (As his Lordship then was), with which Soni J. concurred, in Bakhtawar Singh v. The State, AIR 1951 Punj 157, that prima facie it is difficult to see any connection whatever between smuggling which is essentially a secret operation, and the maintenance of public order, in which the operative word is 'public', obviously would prevail and it finds support from a similar case of black-marketing, Rex v. Basudeva, AIR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ow, obviously this was a different basis for detention than the one stated in the detention order, and on this ground the order of detention was challenged as illegal. This argument was negatived unless prejudice was shown, which was not, by the Court of Appeal and also by the House of Lords. If the third question had arisen for consideration, as the order of detention refers only to maintenance of public order and not to public safety, and the affidavit of the respondent refers to public safety in view of the decision in Greene's case, 1942 AC 284, I think, it would have been necessary to send the case back to the learned Single Judge to consider the affidavit of the respondent in the light of the decision in Greene's case, 1942 AC 284 and then proceed to dispose of the matter. But it is not now necessary as has already been explained. 12. The learned Single Judge has referred three questions to the Full Bench and, ordinarily, when the questions have been answered, the case goes back for disposal in the normal way, but we do not consider that that course should be adopted in the present case just to enable the learned Single Judge to make a formal order of dismissal of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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