Karsansingh @ K.T. Tejsingh Rajput (Chaudhari) vs Commissioner of Police

H.H. Mehta, J.—Heard Shri N.M.Kapadia, learned advocate for the applicant and Shri U.R.Bhatt, learned AGP for the opponents.

By presenting this application, the applicant -Balvantsingh Tejsingh Rajput who is a brother of the detenu -Karansingh @ K.T. Tejsingh Rajput (Chaudhari), has requested this Court to hear and decide the main writ petition bearing Special Civil Application No. 8120 of 2000, pre-emptorily by fixing an earliest date for final hearing. Alternatively, he has requested this Court to release the detenu on bail on suitable terms and conditions, pending final decision in said Special Civil Application No. 8120 of 2000, which is filed under Article 226 of the Constitution of India challenging Detention Order passed under Sec. 3(2) of the Gujarat Prevention of Antisocial Activities Act, 1985.

On 4th September, 2000, Rule was issued in this matter and Rule has been served on each opponent. Opponents have chosen not to file affidavit-in-reply or written reply contesting/opposing this application.

Shri Kapadia has argued that on the date prior to date of detention order, wife of detenu had made one application to opponent no.1 -Commissioner of Police, Ahmedabad and that application in form of Caveat was sent by FAX. In that application, she stated certain facts but for that facts no affidavit is filed by the wife of the detenu. By stating certain facts, she requested the opponent no.1 being Detaining Authority to hear her before passing any order of detention against her husband.

Shri Kapadia has argued that a false and bogus criminal case has been lodged against the detenu and by keeping enmity for some events which took place in the past, the detaining authority has passed an order of detention against the detenu.

I have gone though the grounds stated in this application. There is no allegation of malafides. The applicant has narrated the facts as a result of which the detention order has come to be passed against the detenu.

In support of his arguments, Shri Kapadia has cited an authority of STATE OF BIHAR Vs. RAMBALAK SINGH "BALAK" AND OTHERS, RESPONDENTS, ATTORNEY -GENERAL, FOR INDIA, INTERVENER, reported in AIR 1966 SC 1441. By this authority,a legal position is made clear that in a writ petition, High Court has power to release the detenu on bail, but at the same time, Hon''ble Supreme Court has given certain guidelines as to under which circumstances, such type of powers can be exercised by the High Court. In para 9 of this authority, the Hon''ble Supreme Court has observed thus :

" the High Court will, no doubt, take all the relevant facts into account and it is only if and when the High Court is satisfied that prima facie, there is something patently illegal in the order of detention that an order for bail would be passed".

In Para 10 of aforesaid authority cited by Shri Kapadia, it is further held as under -

Para 10-

" ................... though we have no hesitation in affirming the jurisdiction of the High Court in granting interim relief by way of bail to a detenu who has been detained under R.30 of the Rules, there are certain inexorable considerations which are relevant to proceedings of this character and which inevitably circumscribe the exercise of the jurisdiction of the High Court to pass interim orders granting bail to the detenu............................... Take the case where mala fides are alleged in respect of an order of detention It is difficult, if not impossible, for the Court to come to any conclusion, even prima facie, about the mala fides alleged, unless a return is filed by the State. Just as it is not unlikely that the High Courts may come across cases where orders of detention are passed mala fide, it is also not unlikely that allegations of mala fides are made light-heartedly or without justification; and so, judicial approach necessarily postulates that no conclusion can be reached, even prima facie, as to mala fides unless the State is given a chance to file its return and state its case in respect of the said allegations; and this emphasises the fact that even in regard to a challenge to the validity of an order of detention on the ground that it is passed mala fide, it would not be safe, sound or reasonable to make an interim order on the prima facie provisional conclusion that there may be some substance in the allegations of mala fides. What is true about mala fides is equally true about other infirmities on which an order of detention may be challenged by the detenu. That is why the limitation on the jurisdiction of the Court to grant relief to the detenu who have been detained under R.30 of the Rules inevitably introduces a corresponding limitation on the power of the Court to grant interim bail".

In view of above legal position with regard to bail in matter of challenge to preventive detention order, this Court has taken into consideration the totality of all the relevant facts which appear on record.

Looking to the contents of this application, there is no iota of any fact stating that order of detention is patently illegal. It may be noted that Shri Kapadia has placed reliance on one FAX massage sent by wife of the detenu to opponent no.1 on 11th July, 2000 at 5-00 P.M. As said earlier, wife of detenu has not filed any affidavit. There is a copy of representation dt. 14th July, 2000 made by the wife of detenu in the papers of grounds of detention. Had she made a FAX message to detaining authority on 11th July, 2000, there would be a reference of that FAX message in the representation dt. 14th July, 2000. No such reference is there. Shri Kapadia has fairly conceded that there is no reference of FAX message in the representation dt. 14th July, 2000.

As said earlier, in this application, there is no reference with regard to FAX message alleged to have been sent by wife of the detenu to opponent no.1 on 11th July, 2000. Under the circumstances, this court finds that there is no patent illegality in the order of detention. The order of detention will certainly be examined carefully at appropriate time, when the main petition will be taken up for hearing, and therefore, at present, there are no circumstances to release the detenu on bail pending decision in the main writ petition.

Shri Kapadia has argued that looking to the facts stated in this application, main writ petition be taken up for hearing at the earliest. As it is a practice of this Court that such type of writ petitions are being taken up for final hearing according to dates of actual execution of detention orders, on the detenus in chronological order of such dates, and therefore, it is not possible to take up the main writ petition, out of turn when somany petitioners (detenus) in line are waiting in queue for their turns to come for arguments to be advanced in their respective writ petitions at the earliest. In view of this, prayer for an early hearing is devoid of merits, and therefore, this application deserves to be dismissed and accordingly it is dismissed. Rule is discharged.

Office has brought to the notice of this Court that main Special Civil Application No. 8120 of 2000 is already fixed for final hearing and it is at Serial No. 103 on the Final Hearing Board.