Union of India &
Ors. Vs. Atam Parkash & ANR. [2008] INSC 2018 (25 November 2008)
Judgment
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
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.
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 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 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 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
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