Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. OF 2008
(Arising out of SLP (Crl.) No. 3631 of 2006)
Union of India and Ors. ...Appellants
Versus
Atam Parkash and Anr. ...Respondents
J U D G M E N T
Dr. ARIJIT PASAYAT, J.
1. Leave granted.
2. Challenge in this appeal is to the judgment of a learned Single Judge
of the Punjab and Haryana High Court allowing the Writ Petition filed by
the respondents. Prayer in the writ petition was to quash the detention order
dated 10.5.1993. Stand of the writ petitioners before the High Court was
that a petition for preventing the respondents in the writ petition from
enforcing the said order was disposed of by order dated 19.7.2002 in
Criminal Writ Petition No.1408 of 1999. The respondents in the writ
petition opposed the same taking the stand that in some other cases the High
Court had taken the view that once the order had become infructuous by
lapse of time, a different yardstick should not have been applied. In the case
at hand, the writ petition was, therefore, allowed with the following
observations:
“In view of the above, this petition is allowed and
the respondents are restrained from enforcing order dated
10.5.1993. They will however be at liberty to pass any
fresh order, if so required, and take appropriate action
thereafter in accordance with law.”
3. Learned counsel for the appellants submitted that the judgment of the
High Court is contrary in terms. If on one hand it was held that the order
dated 10.5.1993 had become infructuous, there was no question of granting
a liberty to pass a afresh order. It is pointed out that for a considerable
length of time the order of stay was in operation.
2
4. In Additional Secretary to the Govt. of India and Ors. v. Smt. Alka
Subhash Gadia and Anr. case ((1992 Supp (1) SCC 496), it was held that
courts under Articles 226 and 32 of the Constitution of India, 1950 (in short
the ‘Constitution’) can interfere at the pre execution stage with the detention
order only if they are satisfied that :
(i) the impugned order is not passed under the Act
under which it is purported to have been passed;
(ii) it is sought to be executed against a wrong person;
(iii) it is passed for a wrong purpose;
(iv) it is passed on vague, extraneous and vexatious
grounds; or
(v) the authority which passed it had no authority to
do so.
5. The position has been re-iterated in Administration of NCT Delhi v.
Prem Singh (1995 Supp (4) SCC 252) and Sayed Taher Bawamiya v. Joint
Secretary (2000 (8) SCC 630).
6. The question whether the detenu or any one on his behalf is entitled
to challenge the detention order without the detenu submitting or
3
surrendering to it has been examined by this Court on various occasions.
One of the leading judgments on the subject is Smt. Alka Subhash Gadia’s
case (supra) In para 12 of the said judgment, it was observed by this Court
as under:
“12. This is not to say that the jurisdiction of the
High Court and the Supreme Court under Articles 226
and 32 respectively has no role to play once the
detention –punitive or preventive- is shown to have been
made under the law so made for the purpose. This is to
point out the limitations, which the High Court and the
Supreme Court have to observe while exercising their
respective jurisdiction in such cases. These limitations
are normal and well known, and are self-imposed as a
matter of prudence, propriety, policy and practice and are
observed while dealing with cases under all laws.
Though the Constitution does not place any restriction
on these powers, the judicial decision have evolved them
over a period of years taking into consideration the
nature of the legislation or of the order or decision
complained of, the need to balance the rights and
interests of the individual as against those of the society,
the circumstances under which and the persons by whom
the jurisdiction is invoked, the nature of relief sought,
etc. To illustrate these limitations, (i) in the exercise of
their discretionary jurisdiction the High Court and the
Supreme Court do not, as Courts of appeal or revision,
correct mere errors of law or of facts, (ii) the resort to the
said jurisdiction is not permitted as an alternative remedy
for relief which may be obtained by suit or other mode
prescribed by statute. Where it is open to the aggrieved
person to move another Tribunal or even itself in another
jurisdiction for obtaining redress in the manner provided
in the statute, the Court does not, by exercising the writ
jurisdiction, permit the machinery created by the statute
to be by-passed; (iii) it does not generally enter upon the
determination of questions which demand an elaborate
4
examination of evidence to establish the right to enforce
which the writ is claimed; (iv) it does not interfere on the
merits with the determination of the issues made by the
authority invested with statutory power, particularly
when they relate to matters calling for expertise, unless
there are exceptional circumstances calling for judicial
intervention, such as, where the determination is mala
fide or is prompted by the extraneous considerations or is
made in contravention of the principles of natural justice
of any constitutional provision, (v) the Court may also
intervene where (a) the authority acting under the
concerned law does not have the requisite authority or
the order which is purported to have been passed under
the law is not warranted or is in breach of the provisions
of the concerned law or the person against whom the
action is taken is not the person against whom the order
is directed, or (b) when the authority has exceeded its
power or jurisdiction or has failed or refused to exercise
jurisdiction vested in it; or (c) where the authority has
not applied its mind at all or has exercised its power
dishonestly or for an improper purpose; (vi) where the
Court cannot grant a final relief, the Court does not
entertain petition only for giving interim relief. If the
Court is of opinion, that there is no other convenient or
efficacious remedy open to the petitioner, it will proceed
to investigate the case on its merit and if the Court finds
that there is an infringement of the petitioner’s legal
rights, it will grant final relief but will not dispose of the
petition only by granting interim relief (vii) where the
satisfaction of the authority is subjective, the Court
intervenes when the authority has acted under the
dictates of another body or when the conclusion is
arrived at by the application of a wrong test or
misconstruction of a statute or it is not based on material
which is of a rationally probative value and relevant to
the subject matter in respect of which the authority is to
satisfy itself. If again the satisfaction is arrived at by
taking into consideration material, which the authority
properly could not, or by omitting to consider matters,
which it sought to have, the Court interferes with the
5
resultant order. (viii) In proper cases the Court also
intervenes when some legal or fundamental right of the
individual is seriously threatened, though not actually
invaded.”
7. This Court’s decision in Union of India and Ors. v. Parasmal
Rampuria (1998 (8) SCC 402) throws considerable light as to what would
be the proper course for a person to adopt when he seeks to challenge an
order of detention on the available grounds like delayed execution of
detention order, delay in consideration of the representation and the like.
These questions are really hypothetical in nature when the order of
detention has not been executed at all and the detenu has avoided service
and incarceration and when challenge is sought to be made at pre-execution
stage. It was observed as under:
“In our view, a very unusual order seems to have
been passed in a pending appeal by the Division Bench
of the High Court. It is challenged by the Union of India
in these appeals. A detention order under Section 3(1) of
the COFEPOSA Act was passed by the authorities on
13.9.1996 against the respondent. The respondent before
surrendering filed a writ petition in the High Court on
23.10.1996 and obtained an interim stay of the proposed
order, which had remained un-served. The learned Single
Judge after hearing the parties vacated the ad interim
relief. Thereafter, the respondent went in appeal before
the Division Bench and again obtained ad interim relief
on 10.1.1997 which was extended from time to time. The
writ appeal has not been still disposed of.
6
When the writ petition was filed, the respondent
had not surrendered. Under these circumstances, the
proper order which was required to be passed was to call
upon the respondent first to surrender pursuant to the
detention order and then to have all his grievances
examined on merits after he had an opportunity to study
the grounds of detention and to make his representation
against the said grounds as required by Article 22(5) of
the Constitution.”
8. In Sunil Fulchand Shah v. Union of India and Ors. (2000 (3) SCC
409) a Constitution Bench of this Court observed that a person may try to
abscond and thereafter take a stand that period for which detention was
directed is over and, therefore, order of detention is infructuous. It was
clearly held that the same plea even if raised deserved to be rejected as
without substance. It should all the more be so when the detenu stalled the
service of the order and/or detention in custody by obtaining orders of
Court. In fact, in Sayed Taher’s case (supra) the fact position shows that 16
years had elapsed yet this Court rejected the plea that the order had become
stale.
9. These aspects were once again highlighted in Hare Ram Pandey v.
State of Bihar and Ors. (2003 (10) JT 114), Union of India v. Amritlal
7
Manchanda and Ors. (2004 (3) SCC 75) and Union of India and Ors. v.
Vidya Bagaria (2004 (5) SCC 577).
10. The impugned judgment of the High Court is clearly unsustainable
and is set aside. The question is as to whether it would be desirable to take
the respondents back to custody. Such a decision shall be taken by the
Government within two months.
11. The appeal is allowed.
…………….…………………….J.
(Dr. ARIJIT PASAYAT)
………..…………………………J.
(Dr. MUKUNDAKAM SHARMA)
New Delhi,
November 25, 2008
8