ALI MOHD WAZIR Vs. STATE OF J AND K

JUDGEMENT

(1.) A learned single Judge of this Court by his order dated 15-2-1988 was of the opinion that a very important question of law was raised by Mr. S.T. Hussain, therefore the matter be considered by the Division Bench. The important question of law which is to be considered in these petitions is as to whether a detenu detained under the Public Safety Act can be granted bail at an interim stage by this Court. This question was raised in Ali Mohd. Wazirs case first and then in Mohd. Ahsan Mir's case also the same question was referred by another single Judge of this Court to the Division Bench. The two cases were considered together by the Division Bench.

(2.) In both the cases the detenus are to be detained under the provisions of Public Safety Act and they seek bail in anticipation of their detention. As to whether the detention is valid or not cannot be considered in these references. The only question which falls for our consideration is whether bail in anticipation of detention to a detenu who is detained under the provisions of Public Safety Act with a view to prevent him from indulging in activities specified in S.8. of the Public Safety Act can be granted in a writ jurisdiction.

(3.) Mr. S.T. Hussain has drawn our attention to the provisions of Art.226 of the Constitution of India read with S.103 of the Constitution of J and K and has on the terms of the said provisions of Constitution, submitted that the High Court has the power to stay execution of the detention order pending determination of the writ petition which would amount to grant of bail in anticipation and the powers are implicit because the Constitution enjoins upon this Court to protect the rights of the citizens who approach this Court with complaint that the State or its agency have infringed their fundamental rights.