Judgment

WANCHOO, J.: These three appeals on certificates granted by the Bombay High Court raise common questions of law and will be dealt with together. They arise out of three habeas corpus petitions filed by the appellants in the High Court under S.491 of the Code of Criminal Procedure challenging their detention under R. 30 of the Defence of India Rules (herein after referred to as the Rules). A large number of constitutional questions were raised in the applications and were decided by the High Court against the appellants. There appeals came up for hearing in August 1963 along with some other appeals from decisions of other High Courts, and the constitutional questions were decided by this Court on September 2, 1963, (see Makhan Singh Tarsikka v. State of Punjab, Cri. Appeal No. 80 of 1963, D/- 2-9-1963. It was held therein that the applications under S 491 (1) of the Code of Criminal Procedure were incompetent in so far as they sought to challenge the validity of the detention on the ground that the Defence of India Act and Rules framed thereunder suffer from the vice that they contravened the fundamental rights guaranteed by Arts. 14, 21, 22(4), (5) and (7). The other points raised in the appeals were not considered at that time and it was directed that the appeals should be set down for hearing before a Constitution Bench to be dealt with in accordance with law. Consequently, these appeals have been put up before this Bench for disposal of the other points raised therein.

2. A preliminary objection has however been raised on behalf of the State to the hearing of these appeals on the ground that the orders under which the appellants were detained and which are under consideration in these appeals had been revoked by the State Government and fresh orders of detention had been passed, and in consequence these appeals had become infructuous. Reliance in this connection is placed on the decision of the Federal Court in Keshav Talpade v. Emperor, 1944 FCR 57. In that case the detenu was released while his appeal was pending before the Federal Court. It was however urged on his behalf that even though he had been released and no order would thereafter be made on the habeas corpus application, the court should pronounce an opinion on the correctness of the High Court judgment. The Federal Court refused to do so and dismissed the appeal on the ground that no order in the appeal could be made after the release of the detenu. Generally speaking, no useful purpose would be served by the appeal court deciding the appeal in as habeas corpus matter where the detenu has been released before the appeal comes up for final hearing. But the facts in the present case are different. Here what has happened is that the earlier order of detention which is the basis of the present appeals has been revoked by the Government of Maharashtra on the ground of a technical defect and a fresh order of detention was passed on the same date, and the appellants were immediately re-arrested after their release from jail under the fresh order of detention. In the Federal Court case, however, it appears that the detenue was released and there was no question of a fresh order of detention being made on the same day leading to his re-arrest. In the circumstances, it is urged by the appellants that though technically the appellants were released before the present appeals came up for final hearing, in substance are under detention even now and the points of law raised by them against the earlier order of detention will apply equally to the fresh order of detention. It is therefore urged that the Court should decide the present appeals as that would settle the law and help the detenus in case they make fresh application under S. 491 of the Code of Criminal Procedure against the fresh order of detention. It is further urged that the appellants intend after the emergency is over to sue for damages for false imprisonment and the order of the Bombay High Court would