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.  

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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

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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

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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

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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.  

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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

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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   

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