Full Judgment Text
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CASE NO.:
Appeal (crl.) 756 of 2008
PETITIONER:
Chandrakant Baddi
RESPONDENT:
Addl. Dist. Magistrate & Police Commnr. & Ors
DATE OF JUDGMENT: 29/04/2008
BENCH:
TARUN CHATTERJEE & HARJIT SINGH BEDI
JUDGMENT:
JUDGMENT
O R D E R
REPORTABLE
CRIMINAL APPEAL NO.756 of 2008
(arising out of SLP (Crl.) No. 2280 of 2007)
WITH
CRL. A. NO.757 of 2008
@ SLP(Crl).) No.2282/2007
1. Leave granted.
2. The appellant herein was detained for a period of one
year under an order dated 9th December 2005 passed
under Section 3 (2) of the Karnataka Prevention of
Dangerous Activities of Bottleggers Drug Offenders,
Gamblers, Goondas, Immoral Traffic Offenders and
Slum Grabbers Act 1985. This order was challenged in
the Karnataka High Court on 16th December 2005 by
way of a writ of habeas corpus. By its order dated 1st
September 2006, the Division Bench relying on
Commissioner of Police & Anr. vs. Gurbux Anandram
Bhiryani (1988) Supp. SCC 568 quashed the order of
detention and directed that the appellant be set at
liberty. The State of Karnataka thereafter moved an
application for review of the order dated 1st September
2006 on the plea that the aforesaid judgment had been
over-ruled by a later judgment of this Court in T.Devki
vs. Govt of Tamil Nadu & Ors. (1990) 2 SCC 456. The
Hon’ble Judges constituting the Bench observed that
they had "spent sleepless" nights on account of an error
committed by them in the light that the counsel had not
brought the subsequent judgment of the Supreme Court
to notice and that their judicial conscience had been
pricked for having passed an order relying on a
judgment which had been over-ruled. The Bench thus
allowed the Review Petition on 30th March 2007 and re-
called the order dated 1st September 2006. The Bench
also noticed that the period of detention had since
expired on 8th December 2006 and accordingly
observed:
"In these circumstances, despite the
opposition of Sri Javali, learned counsel
and despite his contention that his client
cannot be sent back to jail, in the light of
a detention order having come to an end
in the case on hand, we are not prepared
to accept his submissions. A beneficiary
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of a defective order cannot be permitted
to have the benefit and that benefit has to
be recalled in the light of recalling benefit
order. In these circumstances, we deem
it proper to direct the police to take him
to custody for the remaining period."
3. It is against this order that the present appeals have
been filed. While issuing notice on 30th April 2007 the
operation of the impugned order had been stayed. In the
meanwhile, the learned counsel for the respondents has also
filed a reply and we have accordingly heard the matter on
merits. The learned counsel for the appellant has pointed
out that as the detention order was deemed to have come to
an end on the expiry of one year i.e. 8th December 2006, it
would be inappropriate to send the appellant back into
custody and for this plea has placed reliance on Sunil
Fulchand Shah vs. Union of India & Ors. (2000) 3 SCC
409. The learned counsel for the respondent has, however,
placed reliance on a subsequent judgment of this Court in
State of T.N. & Anr. Vs. Alagar (2006) 7 SCC 540 to
contend that the period during which the detenu appellant
had remained outside custody on account of a wrong order
could not be taken into account in computing the period of
detention and that it was still open to the detaining authority
to examine as to what was to be done in the circumstances of
the case keeping in view certain specified factors.
4. We have heard the learned counsel for the parties and
gone through the record. In Sunil Fulchand Shah (supra) the
Bench was dealing with the question posed as under:
"First, whether the period of
detention is a fixed period running from the
dates specified in the detention order and
ending with the expiry of that period or the
period is automatically extended by any period
of parole granted to the detenu. Secondly, in a
case where the High Court allows a habeas
corpus petition and directs a detenu to be
released and in consequence the detenu is set
free and thereafter on appeal the erroneous
decision of the High Court is reversed, is it
open to this Court to direct the arrest and
detention of the detenu, to undergo detention
for the period which fell short of the original
period of detention intended in the detention
order on account of the erroneous High Court
order."
This question was answered in the following terms:
"The quashing of an order of detention by the High
Court brings to an end such an order and if an
appeal is allowed against the order of the High
Court, the question whether or not the detenu
should be made to surrender to undergo the
remaining period of detention, would depend upon a
variety of factors and in particular on the question
of lapse of time between the date of detention, the
order of the High Court, and the order of this Court,
setting aside the order of the High Court.
A detenu need not be sent back to undergo the
remaining period of detention, after a long lapse of
time, when even the maximum prescribed period
intended in the order of detention has expired,
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unless there still exists a proximate temporal nexus
between the period of detention indicated in the
order by which the detenu was required to be
detained pursuant to the appellate order and the
State is able to satisfy the court about the
desirability of "further" or "continued" detention."
5. This judgment was followed in Alagar’s case and in
paragraph 9 it was observed that:
"The residual question is whether it
would be appropriate to direct the
respondent to surrender for serving
remaining period of detention in view of
passage of time. As was noticed in Sunil
Fulchand Shah vs. Union of India and State
of T.N. v. Kethiyan Perumal it is for the
appropriate State to consider whether the
impact of the acts, which led to the order of
detention still survives and whether it would
be desirable to send back the detenu for
serving remainder period of detention.
Necessary order in this regard shall be
passed within two months by the appellant
State. Passage of time in all cases cannot be
a ground not to send the detenu to serve
remainder of the period of detention. It all
depends on the facts of the act and the
continuance or otherwise of the effect of the
objectionable acts. The State shall consider
whether there still exists a proximate
temporal nexus between the period of
detention indicated in the order by which
the detenu was required to be detained and
the date when the detenu is required to be
detained pursuant to the present order."
6. A reading of the above quoted paragraphs would reveal
that when an order of a Court quashing the detention is set
aside, the remittance of the detenu to jail to serve out the
balance period of detention does not automatically follow and
it is open to the detaining authority to go into the various
factors delineated in the judgments aforequoted so as to find
out as to whether it would be appropriate to send the detenu
back to serve out the balance period of detention. In this
view of the matter, we are of the opinion that the detaining
authority must be permitted to re-examine the matter and to
take a decision thereon within a period of 3 months from the
date of the supply of the copy of this order. We further direct
that during this period the interim order in favour of the
appellant given by us on 30th April 2007 will continue to
operate.
7. The appeals are allowed in the above terms.