MEHTA, J. - (1.) THIS is a habeas corpus petition filed by Suleman, confined at present in the Central Jail, Jaipur. The averments in the application are that the petitioner is an Indian national and belongs to village Durhan-ka-Tale, Distt Barmer. He had been convicted and sentenced by the sub-Divisional Magistrate Bhinmal, on April 15, 1967, under the Foreigners Act. He had been released from the Central Jail Jodhpur on February 3, 1968 On August 5, 1961 he was called by the Superintendent of Police, Barmer, from his house and was told that he was required to proceed to Jaipur in connection with some inquiry. The Circle Inspector, Barmer, escorted him to Jaipur on August 7, 1968, and was kept at the Special Police Station, Ramganj. The same day the Jaipur Police arrested him under S. 3/9, of the Indian Official Secrets Act and was kept in custody upto August 23, 1969. On August 24, 1968, he was sent to the Central Jail, Jaipur, as he was implicated in a false impionage charge, in which one Pak national Habibuddin was also involved. Since August, 24th 1968, he has been in confinement in the Central Jail, Jaipur. Though more than two years have elapsed since then, the police has not yet put up a challan against him in the court concerned. He, therefore, prays that he should be ordered to be discharged from the Central Jail or be enlarged on bail.
(2.) ON receipt of the above petition a notice was given to the State Government. A reply has been filed on behalf of the State, therein it is given that the petitioner Suleman invited Habibuddin, a Pak national, to come to India and work here as a Pak spy. He indulged in the espionage activities along with Habibuddin. The police registered a case under sec. 3/9, Official Secrets Act against him. He was taken in custody on August 7, 1968. He has been named as an abettot of the offence. After the investigation was completed the accused was committed to the judicial lock-up under the orders of the District Magistrate, Jaipur, on the August 24, 1968. Relevant papers have been submitted by the police to the State Government for obtaining sanction for his prosecution from the Government of India. It has further been submitted on behalf of the State that Suleman has been kept in custody under due process of law i. e. pursuant to the orders of the District Magistrate, Jaipur, in accordance with the provisions of sec. 314, Cr. P. C. The offence against the petitioner is a heinous one, as it appertains to the security of the nation. It was, therefore, justifiable to keep such a person under custody pending the filing of a regular challan against him in a court of law. The State, in the and urged that Suleman's petition being mis-conceived and mala fide be dismissed. We have heard learned Deputy Government Advocate. The history of the prerogative writ of habeas corpus is traced in Sir William Holdsworth's History of English Law, Vol. 9, P. 108-125. Whatever its origin, it appears to have served procedural uses in the court of Kings Bench from the time of King Edward I, but was eventually extended and developed so that it came to be the most efficient protection ever invented for the liberty of the subject. During the time of Sir Edward Coke and the ensuing struggle between Parliament and common law on the one hand and Sovereign in England on the other, it use was proclaimed to be in conformity with the principle of Magna Carta and its purpose to prevent or redress the use of arbitrary power. Its scope was not limited to England. It is clearly stated in Blackstone's Commentaries, Vol. III P. 131 and Becon's abridgment Vol. III, P. 424, that the written into all parts of the King's dominions. That is how the same principle has been adopted in this country. The relevant provisions are found in S. 491, Cr. P. C. and Art. 226 of the Constitution of India. S. 491, Cr. P. C. is in the terms following: - "any High Court may, whenever in thinks fit, direct. (a ). . . . . . . . . . . . . . . . . . (b) that a person illegally or improperly detained in public or private custody within such limits be set at liberty," Article 226 of the Constitution of India confers analogous powers. A 'habeas corpus', said Coleridge J. , in the King vs. Greenhill (1), "proceeds on the fact of illegal restraint. " The very object of issuing a habeas corpus is to have it ascertained whether, the person who is sought to be is under duress or imprisonment and whether his detention in illegal. The High Court will not, therefore, under Article 226 of the Constitution of India or clause (b) of sub-sec. (1) of S. 491, Cr. P. C. , interfere and order a person to be set at liberty unless his detention in public or private custody is illegal or improper (See Kartar Singh vs. Imperator, 2) In the case of an arrest under the Official Secrets Act, it is not the duty of the High Court, while hearing the petition of habeas corpus, to ascertain whether a prima facie case exists against the accused against whom a challan is shortly to be filed by the police in a court of law. The High Court cannot, in that situation, go into the question whether or not the police was justified in concluding that a prima facie case under the Official Secrets Act was made out against the accused. It is true that the petitioner can challenge the bonafides of the executive machinery of the Government. In the present case no such bona-fide has been assailed and, therefore, it is not within the province of the High Court to embark upon an inquiry as to the mala fide or bonafide intention of the Government. In this connection, we may usefully quote below the observation of Lord Atkin in a Privy Council case, Eshgyal Eleko vs. Officer Administering the Government of Nigeris (3) - "in accordance with the British jurisprudence, no member of the executive can interfere with the liberty or property of a British subject except on the condition that he should support the legality of his action before a court of justice. And it is the tradition of British justice that Judges should not sharink from deciding such issues in the face of the executive. " In R. vs. Officer Commanding Depot Battalion (4) the Court held that if a person is arrested and is brought before the Court, charged with an offence, the Court has no power, once that person is in lawful custody, to go into the question of circumstances in which he is to be tried and, therefore, no habeas corpus lies. In para 62 of Halsbury's Laws of England, Vol. II, 3rd Edition, it is given: - "writ will not be granted to persons committed for felony or treason plainly expressed in the warrant of commitment. " It is the English jurisprudence which has been followed in this country, on the basis of which the courts here exercise jurisdiction. It has been shown in this case by the reply filed by the State Government, duly supported by an affidavit of Mahima Nand Maindols, Inspector Police, I/c. Special Police Station, Rajasthan, Jaipur, that the petitioner has been detained under lawful authority, exercised by the District Magistrate in a case which is going to be submitted for trial in a court of law and, therefore, it cannot be said that his detention is improper or illegal. The alternative prayer of the petitioner is that he should be enlarged on bail. In this connection it may be stated that where the offence is not bailable, certain considerations do arise and the court has to decide the question in the right of those considerations, such as, nature and seriousness of the offence, the character of the evidence, circumstances which are peculiar to the accused, a reasonable possibility of the presence of the accused before the trial court, reasonable apprehension of the witnesses being tempered with, the larger interest of the State or the public and similar other facts. It is correct that u/s. 498, Cr. P. C. , the powers of the High Court in a matter of granting bail are wide, even so where the offence is non-bailable,various considerations such as those mentioned above have to be kept in view. As the prima facie case against the accused falls u/s. 3/9 of the Official Secrets Act and if the accused is convicted, he would be liable upto it years' imprisonment under S. 3. In such circumstances, considering the nature of the indictment, it is not a fit case where, discretion, which no doubt vests in this Court under S. 498, Cr. P. C. should be exercised in favour of the accused: See The State vs. Captain Jagjit Singh (5 ). His prayer for granting bail, therefore, is rejected. Before we part with this case, we are inclined to make some observations in regard to the detention of the petitioner under S. 344, Cr. P. C. in the jail. The petitioner has been in jail since August 7, 1968. He was committed to the judicial custody by the order of the District Magistrate on August 24, 1968. A postponement or adjournment of the proceedings sine die is not in consonance with the provisions of S. 344, Cr. P. C. A postponement or adjournment can only be "from time to time. " An accused is entitled to have the evidence recorded against him as early as possible and the fact that the sanction of the Central Government is pre-requiste for launching prosecution is not a good ground for his detention for an indefinite or inordinate period. The State Government, therefore, is directed to take steps to put up a challan, if it thinks proper to do so, in a court of law as soon as possible within two months of the date of this order. In the result, the petition filed by Suleman is dismissed, subject to the observation made in para 7 above. . ;