V MATHIALAGAN Vs. GOVERNMENT OF TAMIL NADU

JUDGEMENT

(1.) One Mathialagan who has filed W.P.No.3390 of 1985 under Article 226 of the Constitution of India praying for the issue of a writ of habeascorpus to secure the release of one P.Sivaji, after quashing the order of preventive detention passed against him under the Tamil Nadu Act 14 of 1982, has filed this Writ Miscellaneous Petition praying for interim relief, viz., interim bail for the detenu P.Sivaji for a period of 15 days on the ground that his wife and child are suffering from sickness and his uncle is on the verge of death and that the detenu is anxious to see his uncle before his demise. The learned Counsel for the petitioner contends that even in cases of preventive detention, a detenu is entitled to seek interim bail for short durations for his pressing personal needs, and in such cases, this Court should grant the relief of interim bail.

(2.) Notice of this petition was given to the Public Prosecutor and her counterarguments have been heard.

(3.) In support of his claim for the release of the detenu on interim bail, the petitioner's Counsel places reliance on a decision of the Supreme Court in State of Bihar v.Rambalak Singh, (1966) M.L.J. (Crl.) 819: (1966) 2 S.C.J. 707 (1966) Crl.L.J. 1076: A.I.R. 1966 S.C. 1441. We are afraid that the petitioner's application for grant of interim bail to the detenu had been filed under misconception. The decision of the Supreme Court cited above related to a case of a person detained under rule 30 of the Defence of India Rules. The said rule 30 was of a comprehensive nature and it conferred on the Central Government and the State Government powers of a wide range, viz., (i) directing removal of persons who are non-Indians from the country (ii) directing detention under preventive custody (iii) directing removal of a person from any area or place in India (iv) directing a person to reside or remain at a stipulated place or within a restricted area (v) directing a person to notify his movements and to restrict his movements (vi) imposing restrictions upon a person in respect of matters relating to his employment or business (vii) prohibiting or restricting the possession or use by him of any article or articles specified in the order and (viii) otherwise regulating a person's conduct in any particular manner. Thus it will be seen that the powers exercisable under rule 30, Defence of India Rules fell under a wide range and the restrictions to be imposed were of different degrees. It is with reference to these provisions, rule 155 had been incorporated by way of special provision regarding bail. The said rule 155 is a non obstante provision and it laid down that notwithstanding anything contained in the Code of Criminal Procedure, no person accused or convicted of a contravention of these rules or orders made thereunder shall, if in custody, be released on bail, or, on his own bond, unless (1) the prosecution had been given an opportunity to oppose the application for such release and (2) where the prosecution opposed the application and the contravention was of any such provision of the Defence of India Rules or orders made thereunder as the Central Government or the State Government may notify in that behalf, the Court was satisfied that there were reasonable grounds for believing that he was not guilty of such contravention. This provision did not directly confer powers of granting bail on Courts, but even so the inference to be drawn from the wording of the above provision is that if the procedure was followed and if the Court was prima facie satisfied that the person detained was not guilty of any contravention, the Court may grant him bail.