Full Judgment Text
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CASE NO.:
Appeal (crl.) 655 of 1997
PETITIONER:
Hare Ram Pandey
RESPONDENT:
State of Bihar and Ors.
DATE OF JUDGMENT: 10/12/2003
BENCH:
DORAISWAMY RAJU & ARIJIT PASAYAT.
JUDGMENT:
J U D G M E N T
ARIJIT PASAYAT,J
Undaunted by the non-success before the Patna High Court and this
Court on selfsame issues the appellant has filed this appeal questioning
correctness of a judgment of the Patna High Court which declined to
interfere with an order directing his detention by order dated 14.9.1995
in terms of Section 12 of the Bihar Control of Crimes Act, 1981 (in
short ’the Act’). According to the appellant the order of detention was
without authority in law and, therefore, deserves to be nullified by
issuance of a writ of mandamus/certiorari under Article 226 of the
Constitution of India, 1950 (in short ’the Constitution’). By the
impugned judgment dated 4.3.1997 the Patna High Court in Cr.W.J.C. No.
144 of 1997 repelled the contention. It was held that the Act itself
provides the procedure as to how the matter should proceed if the person
in respect of whom the order of detention is passed is detained. It was
noted that he had a right to make representation and also to be heard
before the Advisory Board constituted under the Act. The procedure
indicated in the Act safeguards the rights available under Article 22 of
the Constitution. Reference was made to the earlier writ petitions
which were filed and it was noted that in the earlier writ petitions the
challenges were on similar footings. Circumstances under which the order
of detention could be quashed at the pre-detention stage were
highlighted by this Court in Additional Secretary to the Government of
India and Ors. v. Smt. Alka Subhash Gadia and Anr. (1992 Supp (1) SCC
496) and according to the High Court this was not a case where the order
of detention could be nullified at the pre-detention stage. The Court
also noticed that the appellant has tried to avoid process of law for a
long period and wanted to take advantage of that, which he cannot be
permitted to do and the law has to take its own course.
In support of the appeal, learned counsel for the appellant
submitted that the occurrence which formed foundation for the order of
detention relates to an incident which took place during an election and
with oblique motives the provisions of the Act affecting liberty of the
appellant has been used. The incident which formed the background of the
order of detention allegedly took place in March 1995, and since
appellant tried to highlight the failure of the governmental machinery
in ensuring free and fair election, out of political vendetta the order
of detention has been passed at the behest of political leaders. Great
emphasis was laid on the order of detention which purportedly refers to
a notification dated 4.4.1994 issued by the Government which operated
till 30th June, 1994. It was urged that since the District Magistrate had
no authority under Section 12(2) of the Act to pass the order of
detention, the order of detention was clearly without jurisdiction. In
any event, after a long lapse of time stale matters should not be
allowed to be rekindled. According to him the ratio in Alka Subhash’s
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case (supra) has clear application to the facts of the case.
In response, learned counsel for the respondent-State submitted
that the scope of interference at pre-detention stage is extremely
limited and the area has been clearly spelt out in Alka Subhash’s case
(supra) and the appellant’s case does not fall to the situation
contemplated in said case. It is further submitted that the appellant
is not correct in saying that the District Magistrate had no authority
to pass the order of detention. These specific stands were taken in the
earlier writ petitions and were rejected. Even the special leave
petition filed before this Court was withdrawn. In any event, the
notification of the Government of Bihar (Home) Police Department, dated
20th June, 1995 empowered the District Magistrate to pass an order of
detention and the notification was operative till 30.9.1995 within which
period the order of detention was passed.
The case at hand shows how the appellant has tried his best in
taking various dilatory tactics to deflect the course of justice. There
is no doubt that personal liberty is sacrosanct and has to be protected,
but a person who tries to draw red herrings to deflect the course of
justice and tries to take advantage of his own wrongs has to be sternly
dealt with. It is relevant to note that the appellant had filed the
Crl.W.J.C. No. 702 of 1995 before the Patna High Court which was
dismissed on 16.2.1996. He filed SLP (Crl.) No. 941 of 1996 before this
Court which was withdrawn on 15.4.1996. The second writ petition
Crl.W.J.C. 369 of 1996 was filed and the same was dismissed on
26.6.1996. The appellant was declared as absconder in terms of Section
16 of the Act by order dated 12.1.1997. Thereafter writ petition to
which this case relates was filed on 21.2.1997 which came to be
dismissed by the impugned judgment dated 4.3.1997.
A preliminary objection has been raised by the respondent-State as
noted above stating that the parameters for entertaining petition
questioning legality of the order of detention before execution has been
laid down in many cases, and the appellant has not made out a case for
interference before execution of the detention order.
Before dealing with rival submissions, it would be appropriate to
deal with the purpose and intent of preventive detention. Preventive
detention is an anticipatory measure and does not relate to an offence,
while the criminal proceedings are to punish a person for an offence
committed by him. They are not parallel proceedings. The object of the
law of preventive detention is not punitive but only preventive. It is
resorted to when the Executive is convinced that such detention is
necessary in order to prevent the person detained from acting in a
manner prejudicial to certain objects which are specified by the
concerned law. The action of Executive in detaining a person being only
precautionary, the matter has necessarily to be left to the discretion
of the executive authority. It is not practicable to lay down objective
rules of conduct in an exhaustive manner, the failure to conform to
which should lead to detention. The satisfaction of the Detaining
Authority, therefore, is a purely subjective affair. The Detaining
Authority may act on any material and on any information that it may
have before it. Such material and information may merely afford basis
for a sufficiently strong suspicion to take action, but may not satisfy
the tests of legal proof on which alone a conviction for offence will be
tenable. The compulsions of the primordial need to maintain order in
society without which the enjoyment of all rights, including the right
to personal liberty would loose all their meanings are the true
jurisdiction for the laws of prevention detention. The pressures of the
day in regard to the imperatives of the security of the State and of
public order might require the sacrifice of the personal liberty of
individuals. Laws that provide for preventive detention posit that an
individual’s conduct prejudicial to the maintenance of public order or
to the security of State or corroding financial base provides grounds
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for satisfaction for a reasonable prognostication of a possible future
manifestations of similar propensities on the part of the offender. This
jurisdiction has been called a jurisdiction of suspicion. The
compulsions of the very preservation of the values of freedom of
democratic society and of social order might compel a curtailment for
individual liberty. "To, lose our country by a scrupulous adherence to
the written law" said Thomas Jefferson "would be to lose the law
itself, with life, liberty and all those who are enjoying with us, thus
absurdly sacrificing the end to the needs". This, no doubt, is the
theoretical jurisdiction for the law enabling prevention detention. But
the actual manner of administration of the law of preventive detention
is of utmost importance. The law has to be justified by the genius of
its administration so as to strike the right balance between individual
liberty on the one hand and the needs of an orderly society on the
other.
The question whether the detenu or any one on his behalf is
entitled to challenge the detention order without the detenu submitting
or surrendering to it has been examined by this Court on various
occasions. One of the leading judgments on the subject is Smt. Alka
Subhash’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 \026punitive 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
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
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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 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".
It is to be noted that as rightly submitted by learned counsel for
the respondent-State, that the plea that order of detention was passed
beyond the period authorized by the Government notification was not
taken before the High Court. Though such a plea in an appropriate case
can be considered by this Court for the first time yet in view of the
documents brought on record the position is crystal clear that the
District Magistrate was authorized to pass an order of detention up to
30.9.1995. The mere fact that the detention order referred to an earlier
notification of delegation or source of power/Authority is no vitiating
factor, when there really existed a proper notification delegating such
power, on the date when the detaining authority passed the order of
detention and the subsequent notification was a continuation of the
former. Therefore, the stand that the District Magistrate has no
authority is equally untenable.
Learned counsel for the appellant stated that various categories
noted by this Court in Alka Subhash’s case (supra) are not exhaustive
and are illustrative of the circumstances. According to him, present
case clearly makes out ground for interference even at this stage when
order of detention has not been executed. We find no substance in this
plea.
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In Sayed Taher Bawamiya v. Joint Secretary to the Govt. of India
and Ors. (2000 (8) SCC 630) it was observed by this Court as follows:
"This Court in Alka Subhash’s case (supra) was
also concerned with a matter where the detention
order had not been served, but the High Court had
entertained the petition under Article 226 of the
Constitution. This Court held that equitable
jurisdiction under Article 226 and Article 32 which
is discretionary in nature would not be exercised in
a case where the proposed detenu successfully evades
the service of the order. The Court, however, noted
that the Courts have the necessary power in
appropriate case to interfere with the detention
order at the pre-execution stage but the scope for
interference is very limited. It was held that the
Courts will interfere at the pre-execution stage with
the detention orders only after they are prima facie
satisfied:
(i) that the impugned order is not passed
under the Act which it is purported to have
been passed.
(ii) that it is sought to be executed
against a wrong person.
(iii)that it is passed for a wrong purpose.
(iv)that it is passed on vague, extraneous
and irrelevant grounds, or
(v)that the authority which passed it had
no authority to do so.
As we see it, the present case does not fall under
any of the aforesaid five exceptions for the Court to
interfere. It was contended that these exceptions are
not exhaustive. We are unable to agree with this
submission. Alka Subhash’s case (supra) shows that it
is only in these five types of instances that the
Court may exercise its discretionary jurisdiction
under Article 226 or Article 32 at the pre-execution
stage. The appellant had sought to contend that the
order which was passed was vague, extraneous and on
irrelevant grounds but there is no material for
making such an averment for the simple reason that
the order of detention and the grounds on which the
said order is passed has not been placed on record
inasmuch as the order has not yet been executed. The
appellant does not have a copy on the same, and
therefore, it is not open to the appellant to contend
that the non-existent order was passed on vague,
extraneous or on irrelevant grounds".
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 challenge is made at pre-
execution stage. It was observed as under:
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"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.
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."
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. 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.
In view of the legal and factual positions highlighted above, this
is not a fit case where any interference is called for, before execution
of the order of detention. The appellant, if so advised, may first
surrender pursuant to the order of detention and thereafter have his
grievances examined on merits.
The appeal is clearly without merit, deserves dismissal which we
direct.