The Public Prosecutor vs A.K. Gopalan

These are two petitions for leave to appeal to the Supreme Court under Article 134(1)(c) of the Constitution against two orders of release of

A.K. Gopalan passed by us on two applications for a writ of ''habeas corpus'' presented by the detenu. The second application for the writ

became necessary on account of the fact that within just five minutes of our order of release on the earlier ''habeas corpus application and just as

the detenu and his legal adviser stepped out of the gates of the High Court, he was arrested again under a fresh order of detention. This fresh order

was not brought to our notice at the time of the order of release that we made on the first application for the writ, although by that time it had been

got ready to be served, the moment that our order on the first application for the writ should turn out to be favourable to the detenu.

On the first application for the writ we are satisfied following a decision of the Pepsu Court in -- ''Dr. Teja Singh v. The State'', AIR 1951

Pepsu 1, that the non-mention of a time limit in the confirmatory order of detention passed after review u/s 12(2) of the Preventive Detention Act

1950 (IV of 1950) vitiated the order. At the time of our pronouncement of judgments in that case it was represented to us by the then Advocate-

General that Act IV of 1951 passed further to amend Act IV of 1950 had just received the assent of the President, and an adjournment was asked

for that ground. No authenticated copy of the Act was produced to us of which we could take notice or on which we could act. We pronounced

out order of release as we had come to the conclusion that the order of detention was illegal. The second petition for the writ which followed on

the re-arrest that took place within about five minutes of the pronouncement of our earlier order was based on the ground that the Government had

acted ''mala fide'' and in contempt of this Court''s order. We ordered the second"" petition on the finding that we reached in all the circumstances of

the case including the non-production before us at the time of our judgments of the second order of detention which already had become ready,

that the conduct of the Government was lacking in ''bona fides''.

In these petitions for leave the Advocate-General has contended that the cases are fit ones for appeal to the Supreme Court and that we should

so certify. He has taken us in the course of the argument through the several provisions of law which have regulated appeals against such orders

from time to time. By Article 132 of the Constitution, the appellate jurisdiction of the Supreme Court against any judgment, decree or final order of

a High Court whether in a civil, criminal or other proceeding is provided for, if the High Court certifies that the case involves a substantial question

of law as to the interpretation of the Constitution. Apart from this, Article 133 deals with the appellate jurisdiction of the Supreme Court in appeals

from High Courts in regard to civil matters, while Article 134 provides generally for the appellate jurisdiction of the Supreme Court in regard to

Criminal Matters, if the High Court (a) has on appeal reversed an order of acquittal of an accused person and sentenced him to death; or (b) has

withdrawn for trial before itself any case from any court subordinate to its authority and has in such trial convicted the accused person and

sentenced him to death; or (c) certifies that the case is a fit one for appeal to the Supreme Court. The present petitions for leave to appeal have

been argued solely with reference to Clause (c) of Article 134(1) and it has not been suggested for the respondent that the jurisdiction '' involved is

anything but criminal.

Certain decisions of this Court -- In Re: Mandalapu Paddayya and Others, : of Panchapa-pakesa lyer and Basheer Ahmed JJ. and --''Chunchu

Narayana v. Karrapati Kesappa'', 1951 1 Mad L 3 296 of Govinda Menon and Basheer Ahmed JJ. have been brought to our notice which have

proceeded on the basis that the jurisdiction to certify under Article 134(1)(c) should be exercised by the High Court on the same principles as

those, on which the discretion vested in the Supreme Court under Article 136 of the Constitution for granting special leave to appeal has to be

exercised. The learned Advocate-General has criticised these cases as not appreciating the inevitable, difference that exists under the Constitution

between the-kinds of jurisdiction. The principles governing the power of the Supreme Court to grant special ""leave under Article 136 of the

Constitution have been laid down in -- Pritam Singh Vs. The State, in these terms:

Generally speaking this court will not grant special leave, unless it is shown that exceptional and special circumstances exist,, that substantial and

grave injustice has been done & that the case in question presents features of sufficient gravity to warrant a review of the decision appealed

against.

Of the three requirements for the grant of special leave indicated in the passage cited, the learned Advocate-General has rightly submitted that

the second and the third can have no place in the matter of consideration by the High Court when invited to certify that a case decided by itself is a

fit one for leave to appeal. He is, in our opinion, right in this submission. Possibly the only common consideration which the High Court under

Article 134(1)(c) and the Supreme Court under Article 136 may well take into account as a ground for granting leave is that ""exceptional and

special circumstances exist"" which is the first of the three requirements indicated in the passage cited. As pointed out in the judgment of this court

(Satyanarayana Rao and Basheer Ahmed Sayeed JJ.) in -- ''M. S. Sheriff v. M. Govindan'', Cri. M. P. Nos. 1261 and 1263 of 1951 (Mad)

delivered after reservation of our judgment in these petitions, it will not be correct to assume that the principles governing the grant of a certificate

under Article 134(1)(c) and the granting of special leave by the Supreme Court under Article 136 are always the same.

While to the extent of this submission the learned Advocate-General is correct, he has still to make out the'' propriety of our granting the leave

sought in terms of Clause (c) of Article 134(1). In Section 109(c) of the CPC similar words are found which have been construed by authoritative

decisions of the Privy Council as authorising the High Court to certify where some question of law of public or private importance is involved. It is

settled too by cases under the provision o� the CPC that the grant of a certificate is in the discretion of the Court which must be judicially

exercised and sparingly used, that a question will-be one of public importance if it affects not merely the parties to the case but also large bodies of

persons or communities, that the mere existence of a substantial question of law is not sufficient, that a question of private importance means of

private importance to both parties to the litigation and not merely to one of them, and that the fact that the question affects third parties is no ground

of fitness. We do not consider it necessary to refer to the decisions supporting the proposition as stated by us since the matter is fully discussed

and the law correctly stated at pages 1025 and 1027 of Volume I of Chitaley''s Commentaries on the Code of Civil Procedure, 4th Edition. The

applicability of the analogy of decisions u/s 109(c), C. P. C. to cases under Article 134(1)(c) of the Constitution has been considered in the

judgment of this court in -- ''M. C. Sheriff v. M. Govindan'', Cri. M. P. Nos. 1261 and 1263 of 1951 (Mad) referred to above. Making allowance

in any given case for a possible difference between considerations pertinent to civil cases and those pertinent to criminal in the matter of the

application of the tests laid down by cases u/s 109(1), C. P. C., we are of opinion that the application of the analogy of the latter cases to cases

under Article 134(1)(c) is, broadly speaking, correct.

We shall now deal with the way in which the learned Advocate-General has endeavoured to satisfy us that certificates should be granted in these

two cases. In the first case he says that there are two questions of public importance involved, namely,

(1) Whether the time limit for the duration of the confirmatory order of detention should be mentioned in it; and

(2) Whether the court should not have taken notice of Act IV of 1951 passed to amend Act IV of 1950 and granted the adjournment sought by

the then Advocate-General for production of an authenticated copy of the amending Act.

So far as the second of the questions is concerned, we are of opinion that there is no substance in it. We had prepared our judgments in the case in

favour of the detenu and taken our seats to deliver them. The then Advocate- General did not have an authenticated copy o� the amending Act.

We could only take notice of proceedings of legislatures, if proved, as required by Section 78 of the Indian Evidence Act, by journals of those

bodies or by published Acts or extracts or by copies purporting to be printed by order of the Government concerned. The question was the very

vital one of freedom for the detenu. We accordingly refused the adjournment, as we thought correctly. In any case, the propriety of the grant or

refusal of an adjournment cannot, in our opinion, be a question of sufficient importance for the purpose of a certificate under Article 134(1)(c).

So far as the first question is concerned, it has been brought to our notice that the Pepsu decision in -- ''Dr. Teja Singh v. The State, AIR 1951

Pepsu 1 on which we founded our decision has since been overruled by the Supreme Court. That would, no doubt ''prima facie'' authorise the

granting of the certificates sought if the matter remained at that. But then the point which we have to consider is of what practical consequence the

reversal by the Supreme Court of our order of release is to be with reference to that order in the events that have since happened. The

Government, anticipating our order, made a fresh order of detention, which, accepting our order as a hurdle in the way of further detention, they

served upon the detenu in order to re-arrest him within barely five minutes of our order. Having thus accepted our first order of release and having

without resort to the course of an appeal to the Supreme Court served a fresh order of detention upon the detenu which led to the second petition

for the writ, the Government, in our opinion, must really make out grounds for a certificate of leave to appeal against our decision on the second

petition for the writ, and cannot ask for leave against our decision on the first petition at this juncture. Assuming without deciding that normally in

the event of a reversal by the Supreme Court of our order on the first petition, the Government could either in the exorcise of its inherent power

resulting from such reversal or u/s 3(a) of Act IV of 1950 providing for execution of detention orders claim to re-arrest the detenu, it would not be

open to the Government in this ease to do so in view of the second order of detention which led to the second petition for the writ. The granting of

leave to appeal against our order on the first petition seems to us, therefore, to be a matter more of academic than of practical interest in the

circumstances of this case.

As regards the second case before us the learned Advocate-General has formulated two questions as questions of public importance involved in

it;

(1) Whether it was improper for the executive to consider even while a proceeding is pending in court as to what action it should take in the event

of an adverse order and pass orders without disclosing the same to the Court; and

(2) Whether the finding of the court against ''bona fides'' of the executive action is good in law.

Though formulated in the shape, of two questions the matter involved, it was conceded by the learned Advocate-General, was only a sin-g3e one,

as the failure on the part of the Government to disclose its fresh order to the Court would only be one element of fact which may enter into our

decision on the question of '' bona fides'' of the executive action. The question of ''bona fides or contra seems to us to be essentially a question of

fact which we were at pains to determine as best as we could in all the circumstances of the case. It cannot certainly be claimed to be a question

on which any decision of the Supreme Court will necessarily be useful as a matter of general guidance to the executive in other case of preventive

detention. The question of ''bona fides'' on the part of the executive ''in any and every case of preventive detention must depend for its

determination upon its peculiar facts and circumstances. We are not satisfied that in our conception of what constitutes ''mala fides'' in the context

of a case like the present we erred. Nor are we satisfied that our inference from jail the facts is in root analysis anything but one of fact or at best of

mixed fact and law.

Mr. Nambiar for the respondent has raised the point that under the present Constitution the position as to the appealsbility of an order on an

application for a writ of ''habeas corpus'' in the exorcise of our criminal jurisdiction is identical with the position as to the appealability of orders on

proceedings u/s 491, Cr. P. C. which as laid down by the Judicial Committee of the Privy Council in -- ''Emperor V. Sibnath Banerji'', 1945 F. C.

R. 195 ""is in effect the same as the position stated in -- ''Cox v. Hakes'', (1890) 15 A. C. 506."" The point is obviously fallacious. The very

decision of the Judicial Committee cited makes it clear that ""the condition of the law of ''habeas corpus'' in India and the purpose and the express

words of Section 205 of the Government of India Act afford a contrast to the condition of the English Law and the object and general terms of

Section 19 of the Judicature Act, 1873"", under which -- ''Cox v. Hakes'' was decided. It is perfectly clear to us that under the Constitution which

contains fuller and wider provisions as to appeal than those of the Government of India Act which contained only Section 205 corresponding to

Article 132, there is no such immunity from appealability in the case of an order of release on an application for a writ of habeas corpus as obtains

in England. The question of appealability of such an order must be judged with reference to the provisions of the Constitution and appeal ability

must be recognised and given effect to within the limits denned by Article 134 thereof.

Even so, we do not entertain any doubt but that the High Court ought to be extremely chary of exercising its power under Clause (c) of the

Article against the person released. The intention of the framers of the Constitution seems to us to have been that if on the one hand the absolute

immunity from appeal against an order of release obtaining in England is not to be imported ""into India, appealability in India ought not to be

treated as a matter of course on the other hand. The Constitution accordingly provides for a certificate of fitness from the High Court or for special

leave from the Supreme Court as a ''sine qua non'' for imperilling the liberty of a released subject, which is a matter of vital moment -- within

different degrees it may be --for all Countries cherishing or professing the basic principles of British Jurisprudence, and certainly of no small

moment to the minds of a people ""solemnly resolved to constitute India into a Sovereign Democratic Republic"" and to secure to all its citizens

amongst other things the boons and blessings of political justice and liberty of thought and expression. In all other criminal matters than those which

fall under Sub-clauses (a) and (b) of Article 134(1) the Constitution of India undoubtedly intends that the High Courts in the respective States in

the territory of India should ordinarily be the final Courts of Appeal. This is a fact which must not, in our opinion, be lost sight of by us when

considering the question as to whether a certificate of fitness should or should not issue in any given case.

We may add, however, that if the matter of an application for the writ of habeas corpus is not criminal in nature the provision of the

Constitution governing appealability will be Article 132 under which, except where a substantial question of law as to the interpretation of the

Constitution arises, there can be no question of an appeal to the Supreme Court. This aspect does not arise for any discussion in the present cases

which have proceeded on the express basis that the jurisdiction invoked is of a criminal nature governed by Article 134(1)(c) of the Constitution.

We have carefully considered this matter with a view neither to clutching at jurisdiction which does not exist, so as thereby to put in jeopardy

the liberty of the subject nor giving away jurisdiction which does exist, so as to deny the State its legitimate right if any of further appeal. We find no

question of principle involved in these cases such as may govern other cases; nor can we say that we have experienced any reasonable doubt

about the conclusions that we have re-ached on the applications for the writs.

The jurisdiction to certify a ease as a fit one for further appeal is to a certain extent discretionary, and like the jurisdiction of the; Judges of the

Divisional Court in England to give or to refuse leave to appeal to the Court of Appeal from their own decisions, is, to use the epithet employed by

Lord Esher M. R. in -- ''Ex Parte Gilchrist; In Re Armstrong'', (1886) 17 QBD 521 in relation to that jurisdiction, a very delicate one. In the

language of the learned Master of the Rolls in that case, merely to say that we are satisfied that our decision is right is not certainly a sufficient

reason for refusing the certificate sought, when the question involved is one of principle and we have decided it for the first time. But bearing in

mind if only by way of analogy to the extent to which such analogy is applicable a consideration like that adverted to by the learned Master of the

Rolls as well as the considerations laid down by authoritative decisions as those which must be borne in mind for granting or refusing a certificate;

u/s 109 C. P. C. and considering all the facts and circumstances of the cases before us in the light of the principles underlying such considerations,

we have, on the whole, arrived at the conclusion that these petitions must be rejected as raising no substantial questions of law of paramount

importance such as may be allowed to override the liberty earned by the respondent under orders of release and as being outside the limits of the

restricted jurisdiction conferred on us by the Constitution.

A certificate against this order is asked for by the learned Advocate General under Article 132 of the Constitution. We refuse it as in our

opinion this order involves no substantial question of law as to the interpretation of the Constitution.