S.S.Sandhawalia, C. J. - (1.) The meaningful question lucidly formulated in the order of reference of the Division Bench is in the following terms: Whether the High Court while admitting a writ of habeas corpus, in which detention of the petitioner is challenged, can enlarge the petitioner on bail, pending the decision of the writ petition or not?
(2.) It is unnecessary to advert to the merits of the individual cases and it suffices to notice the matrix of facts from criminal writ No. 322 of 1982-Harjit Singh v. Punjab State, to provide the requisite foundation for the legal issue involved. Rarjit Singh writ petitioner was convicted on the charge of murder and sentenced to imprisonment for life by the Court of Session at Bhatinda on the 28th of September, 1974. The conviction and sentence were affirmed on appeal. The core of the petitioners case is that taking into consideration the remissions granted for good conduct by the State Government under the statutory rules as also the period during trial in which the petitioner remained in custody he has already qualified for his pre-mature release. However, the State Government notwithstanding the aforesaid factors and the recommendations of the Jail Department has arbitrarily rejected the claim of the petitioner for release and directed the resubmission of the petitioners case after one year. Consequently the petitioner preferred the present writ petition under Articles 226 and 227 of the Constitution praying in terms for a writ of heabeas corpus directing that the petitioner be set at liberty forthwith. The case originally came up for motion hearing before my learned brother Tewatia J., sitting singly and when the same was admitted for hearing the learned counsel for the petitioner strenuously pressed for an interim relief by way of bail till the final disposal of the writ. This prayer was opposed on behalf of the respondent State and primary reliance therefore was placed on the following observations of Punchhi J., in Gurmail Singh v. The State of Punjab. I have expressly ruled in a number of decisions that unless this court is seisin of an appeal or revision on behalf of the convict, it has no power to suspend his sentence. The Concession of bail strictly speaking, is extendable only to under trials. The sentence of a convict can only be suspended by the State Government. Being cognizant of these principles, I do not think that discretions exercised by Honble Single Judges of this Court in granting bail in other cases are binding precedents on me to grant bail to the petitioner, unless there be some legal principles settled. There is none whatsoever on the orders placed before me by Sh. Malik. Thus the prayer for bail is declined. The observations aforesaid were assailed on behalf of the petitioner, owing to the significance of the question involved and expressing a doubt with regard to the correctness thereof the matter has been referred for decision by the Division Bench and that is how it is before us.
(3.) As would be evident from the formulated question quoted above the issue would ordinarily have merited consideration larger principle. However, We are inclined to the view that it seems to be so squarely covered by binding precedent that any dissertation on the matter, on first principles, may well be an, exercise in futility. The point seems to have been expressly raised in the celebrated Presidential reference under Art. 143 in Keshaw Singh's Case. In our view it is categorically concluded by the following observations therein: In the course of his arguments, Mr. Seervai laid considerable emphasis on the fact that in habeas corpus proceedings, the High Court had no jurisdiction to grant interim bail. It may be conceded that in England it appears to be recognized that in regard to habeas corpus proceedings commenced against orders of commitment passed by the House of Commons on the ground of contempt, bail is not granted by Courts. As a matter of course, during the last century and more in such habeas corpus proceedings returns are made according to law by the House of Commons but the general rule is that the parties who stand committed for contempt cannot be admitted to bail. But it is difficult to accept the argument that in India the position is exactly the same in this matter. If Article 226 confers jurisdiction on the court to deal with the validity of the order of commitment even though the commitment has been ordered by the House, how can it be said that the Court has no jurisdiction to make ad interim order in such proceedings? As has been held by this Court in State of Orissa v. Madan Gopal Rungta an interim relief can be granted only in aid of and as ancillary to, the main relief such may be available to the party on final determination, of his rights in a suit or proceeding. Indeed, as Maxwell has observed, when an Act confers a jurisdiction, it impliedly also grants the powers of doing all such acts or employing such means as are essentially necessary to its execution. That being so, the argument based on the relevant provisions of the Criminal Procedure Code and the decision in the Privy Council in Jairam Das v. Emperor is of no assistance. The question arose even more pointedly later in State of Bihar v. Rambalak Singh wherein the very jurisdiction of the High Court to grant bail to a person detained under rule 30 of the Defence of India Rules in a writ of Habeas corpus as specifically assailed on behalf of the State. Repelling such a challenge and approvingly reiterating the rule in the afore-quoted special reference their Lordships concluded as follows; Therefore, on the point raised by the learned Advocate-General in the present appeal, our conclusion is that in dealing with habeas corpus petitions under Art. 226 of the Constitution where orders of detention passed under Rule 30 of the Rules are challenged the High Court has jurisdiction to grant bail.;