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SUPREME COURT OF INDIA
K.N. SAIKIA AND M. FATHIMA BEEVI, JJ.
S.M.D. KIRAN PASHA
Versus
GOVERNMENT OF ANDHRA PRADESH AND OTHERS
Criminal Appeal No. 702 of 1989{From the Judgment and Order dated July 4, 1988 of the Andhra Pradesh High Court in W.P. No. 8610 of 1988}, decided on November 9,1989
Advocates appeared :
M.C Bhandare, Senior Advocate (Ms C.K. Sucharita, Advocate, with him) for the Appellant;
M.S. Ganesh, S. Muralidhar, T.V.S.N. Chari and Raghav, Advocates, for the Respondents.
Held: Resort to Article 226 after the right to personal liberty is already violated is different from the previolation protection. Post-violation resort to Article 226 is for remedy against violation and for restoration of the right, while pre-violation protection is by compelling observance of the obligation or compulsion under law not to infringe the right by all those who are so obligated or compelled. To surrender and apply for a writ of habeas corpus is a post-violation remedy for restoration of the right which is not the same as restraining potential violators in case of threatened violation of the right. The question may arise what precisely may amount to threat or imminence of violation. Law surely cannot take action for internal thoughts but can act only after overt acts. If overt acts towards violation have already been done and the same has come to the knowledge of the person threatened with that violation and he approaches the court under Article 226 giving sufficient particulars of proximate actions as would imminently lead to violation of right, should not the court call upon those alleged to have taken those steps to appear and show cause why they should not be restrained from violating that right? Instead of doing so would it be the proper course to be adopted to tell the petitioner that the court cannot take any action towards preventive justice until his right is actually violated whereafter alone he could petition for a writ of habeas corpus? In the instant case when the writ petition was pending in court and the appellants right to personal liberty happened to be violated by taking him into custody in preventive detention, though he was released after four days, but could be taken into custody again, would it be proper for the court to reject the earlier writ petition and tell him that his petition has become infructuous and he had no alternative but to surrender and then petition for a writ of habeas corpus? The difference of the two situations as we have seen, have different legal significance. If a threatened invasion of a right is removed restraining the potential violator from taking any steps towards violation, the rights remain protected and the compulsion against its violation is enforced If the right has already been violated, what is left is the remedy against such violation and for restoration of the right. (Para 11)
(ii) Constitution of India- Articles 32 and 226 - Andhra Pradesh Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986 - Order of preventive detention - Detenu was taken into custody though he was released after four days, but could be taken into custody again - Writ petition for declaring the order as illegal and void – Dismissed – Appeal - Whether the High Court was right in dismissing the writ petition holding that the detenu was to first surrender and then move a petition for habeas corpus?- (No, there is no reason why the person so prejudicially affected by the law should not be entitled immediately to avail himself of the constitutional remedy).
Held: From a perusal of the Judgment of the High Court it appears that it analysed the question of maintainability of the writ petition from two views points, namely, of the High Courts power, and the High Courts rule or practice. The High Court correctly analysed the power of the High Court to interfere in such a case under Article 226 of the Constitution of India concluding that the High Court had power to interfere. While tracing the High Courts evolving rule or practice, the Bench took the view that it was but appropriate and proper that the court evolved and followed a practice and procedure where it would not ordinarily entertain a challenge to a preventive detention unless the person concerned submitted himself to the order and not to encourage persons against whom order of preventive detention were made by the competent authority under a valid enactment to avoid the process of law and at the same time seek the protection of law from this court. (Para 8)
Further Held: As the detention order was already passed and served and the detenu was already taken into custody during the pendency of the writ petition, these subsequent events having been brought to the notice of the court by a Misc. application in the form of an Additional Affidavit the same ought to have been dealt with by the High Court. (Para 9)
(iii) Concept of Right - Hohfelds fundamental legal concept as applied in judicial reasoning - Hans Kelsens analysis. (Paras 13 & 14)
(iv) Andhra Pradesh Prevention of Dangerous Activities of Bootleggers Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1988 - Section 3 - Detention under- The Order had not been approved by the State Government within 12 days of its being made. The order cannot remain in force more than 12 days after making thereof. (Para 18)
(v) Constitution of India - Article 22(3) - Activities of Bootleggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986 - Sections 3 & 10 - Detention under- Appellants case having not been referred to an Advisory Board - The detention order cannot be said to have remained in force after the statutory period. (Para 20)
Judgment
SAIKIA, J.-Special leave granted.
2. This appeal is from the judgment and order of the High Court of Andhra Pradesh at Hyderabad dated July 4,1988 passed in Writ Petition No. 8610 of 1988.
3. The appellant states that he enjoys popularity in his area and that he previously held several important positions in the Cuddapah District of Andhra Pradesh, such as organising secretary of the Andhra Pradesh Congress Committee for several years, a Municipal Councillor from 1982 to 1986 and a Vice-Chairman of Cuddapah Municipal Council. According to him in December 1985 he was elected as a Chairman of the Cuddapah Municipal Council for its residuary term and in March 1987 he was elected to the Municipal Council as an independent candidate defeating the Telugu Desam and Congress (I) candidates by a large margin. It is his case that the local leadership of the ruling Telugu Desam party having failed to woo him into their fold he was pressurised through the Excise and Police authorities foisting false cases upon him. On November 13, 1987, the police having summoned him to the police station for taking his photograph as was done in case of criminals, he moved the Andhra Pradesh High Court by Writ Petition No. 79038 of 1987 and the High Court was pleased to issue directions as prayed for, by its order dated December 17,1987. Thereafter the excise authorities are stated to have registered some cases against the appellant who applied for and was granted bail on May 10, 1988 rejecting the excise authorities prayer for custody. Scenting a move to detain the appellant under the provisions of the Andhra Pradesh Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug Offenders, Goon das, Immoral Traffic Offenders and Land Grabbers Act, 1986, hereinafter referred to as the Act, the appellant filed Writ Petition No. 8610 of 1988 on June 6, 1988 in the Andhra Pradesh High Court averring, inter alia, that the successive actions initiated against him were a part of political vendetta. A learned Single Judge on June 8,1988 was pleased to direct interim the respondents not to take the appellant into preventive custody for a period of 15 days on the basis of the cases already registered. However, on June 10,1988 the appellant was served the detention order in S. No. 7 of 1988 dated June 3,1988 as well as the grounds of detention; and he was taken into custody and detained in Secunderabad jail, but was released after four days. The detention order stated that with a view to preventing him from acting in a manner prejudicial to the maintenance of public order, it was necessary to make an order directing that "he shall be detained". The grounds of detention as served upon the appellant contained altogether 13 grounds ranging a period from November 23,1974 to May 7,1988.
4. The appellant filed on June 25,1988 in his writ petition a miscellaneous petition being W.P.M.P. S.R. No. 51830, as an additional affidavit, stating, inter alia, that the writ petition was filed by him seeking a direction to the respondents to refrain from making an order detaining him under the provisions of the Act and the same was admitted and interim direction issued. But thereafter the detention order in S. No. 7 of 1988 dated June 3,1988 was served on him on June 10,1988 and, therefore, he submitted the additional affidavit with reference to the impugned order of detention. He assailed therein the grounds of detention as vague, stale, non-existent and, in any case, irrelevant bearing no reasons for the decision that his detention was necessary to prevent him from acting in a manner prejudicial to the maintenance of public order. He also assailed the order on grounds of non-application of mind by respondent 2 and absence of nexus between the grounds and maintenance of public order and of non-disclosure of any rational basis for formation of such an opinion. He refuted and denied each of the 13 grounds and prayed that the writ petition be amended by substituting the prayer
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