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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.