MALAVIYA, J. - (1.) The Supreme Court, while disposing of the Special Leave Petition No. 1069 of 1985 against an order of the Allahabad High Court dated 4-12-1984 in Habeas Corpus Petition No. 9907 of 1984 of Ram Pravesh Singh, by which an order under Section 3(2) of the National Security Act passed against the petitioenr was challenged, passed the following order :-"Without entering into the merits of the case, as only 10 days are left for the petitioner to complete his period of detention, we direct that the petitioner may be released forthwith.The petition is accordingly disposed of."
(2.) By yet another order dated 9-3-1988 in Criminal Appeal No. 121 of 1988 arising out of SLP (Crl.) 3253 of 1987 the Supreme Court, in the case of Shiv Ratan Damani v. Supdt. Central Jail. Agra, passed the following order :-"Special leave granted. We are informed by counsel for the parties that the period of detention of the appeallant will expire on 22/03/1988. In the circumstances, without expressing any opinion on the merits of the controversy raised in this case, we direct that the appellant be released forthwith. The appeal is disposed of accordingly."
(3.) In view of the above mentioned orders passed by the Supreme Court, in a large number of Habeas Corpus Petitions filed in the High Court challenging the detention under one of the preventive detention laws, a request was made that following the judgments of the Supreme Court in the two cases mentioned above, this Court should direct release of the petitioner forth with if barely 15 days or so were left for the period to expire under the order of detention. This Court accordingly passed orders in a number of habeas corpus petitions directing release of the petitioners in those cases without entering into the merits of the order of detention. Some of the Benches of this Court ultimately granted similar reliefs to the petitioner without entering into the merits of the case, if the period of detention yet to be undergone was less than a month. However when a similar request was made by learned counsel for the petitioner in this case before a Bench of Hon. G. P. Mathur and Hon. S. K. Phaujdar, JJ. it appears the learned counsel for the State raised an objection that the High Court could not pass orders similar to the Supreme Court without entering into the merits of the case as the order, in effect, passed by the High Court amounted to reducing the period of detention of a detenu, which power under the preventive detention laws of this country had been conferred only upon the State Government. After hearing counsel for both the sides the Bench observed as follows :-" In our opinion, the decisions in Ram Pravesh Singh and Shiv Ratan Demani (supra) were given on the facts and circumstances of the particular cases and were rendered by the Supreme Court under Article 142 of the Constitution. We may also mention here that there are some decisions of the Supreme Court where in spite of the fact that the period of detention had almost come to an end, no direction was issued for setting the detenu at liberty. In Smt. Kamla Bai v. Commr. of Police, (1993) 3 JT (SC) 666 : (1993 AIR SCW 2305), the detenu was detained on 1-5-1992 and even after noticing that the period of detention had almost come to an end, the appeal was dismissed on 30-4-1993. For the reasons indicated earlier, we are of the opinion that the view taken by the above mentioned division benches of this Court require reconsideration by a larger bench. We, therefore, refer the following questions of law for decision by a larger bench. 1. Whether a person detained under a preventive law is entitled, as of right, to be set at liberty only on the ground that the unexpired period of his detention is less than a month?2. If the answer to question No. 1 is in affirmative, can the detenue claim such a right in a second or successive petitions even though his earlier petition has already been dismissed on merits thereby upholding his continued detention for the period fixed by the appropriate Government?";