Delhi High Court
Mambram Valiyattu Kammu, Kammu vs Union Of India And Ors. on 21 January, 1991
Equivalent citations: 44(1991)DLT75
JUDGMENT S.B. Wad, J.
(1) In this bunch of habeas corpus petitions, the detention orders are passed by the Kerala Government and the petitioners are in Kerala jails. We are of the considered opinion that these petitions ought to have been filed on the Kerala High Court.
(2) It is noted for a long time in this Court that writ petitions involving detention orders passed by various State Governments are filed in this Court, adding to the already heavy burden of cases in this Court. From time to time other varieties of writ petitions are filed in bunch in this Court although the petitioners could have got the same relief in different High Courts in India. A few years back large number of writ petitions involving excise duty were filed in this Court, which could have been filed in different High Courts in India. In those cases interim reliefs were granted by this Court on furnishing bank guarantee. We do not want to create an impression on the litigant public that they can easily get a relief in this Court, which perhaps they may not get in other High Courts in India. Particularly, in habeas corpus writ petitions, where we have great anxiety to dispose of the petitions early, it is not possible to do so since the notices of longer duration are required to be issued to State Governments. After the notices are received they engage a lawyer, who appears in this 'Court and seeks time to file the counter-affidavit. For preparation of counter-affidavit the officers of the State Government and the record is required to be brought to Delhi or the lawyer goes to the State capital. This results into loss of time in movement of officials and files. We have seen that sometimes it takes even four to five months for the hearing of habeas corpus writ petition after notice, for deciding whether rule nisi should be issued or not.
(3) As of October 1990 the total pendency of cases in this Court is 1,21,639. Starting " from 1977, there are about 1960 criminal appeals and 1128 criminal 'revisions pending. There are large number of cases where the accused has not been able to furnish bail or the bail has been refused to him and that he is languishing in jail for number of .years. The position in other jurisdictions is also equally alarming. Starting from 1977 the pendency of It Rs is 5052, Wt Rs 2420, civil writ petitions (starting from 1973) 14,080 and civil suits (starting from 1970) over 12,000. In the preventive detention area itself about 200 habeas corpus petitions were filed in 1990, out of which 38 are pending at the stage of issue of rule nisi and 40 are pending for disposal after issue of rule nisi. There are 10 vacancies of the Judges not filled for over one year.
(4) Thus, apart from the inconvenience of movement of officers and records and avoidable expenses, where the detention orders are passed by the State Governments it is practically impossible to provide any early relief to habeas corpus detenues in this Court.
(5) In most of the detention matters the stock defenses are delay in passing the detention order, non-furnishing of documents, non-furnishing of legible documents or non-furnishing the documents in the language known to the detenue. These grounds of detention can be more effectively and quickly disposed of in the respective High Courts in whose territorial jurisdiction the detention order has been passed. Even if the delay in the disposal of the representation by the Central Government is challenged, a relief against the same can be granted by respective High Courts and not by the Delhi High Court alone.
(6) Counsel for the petitioners, however, submit that petitioners have a right to choose a forum/Court and they have also a right to be represented by the lawyer of their choice. It is then submitted that this Court has not only the discretion in matters of entertainment of habeas corpus petition, which discretion cannot be exercised arbitrarily, capriciously or indiscriminately , but has a duty to entertain a habeas corpus petition once it is filed in this Court . The counsel has also referred to paragraph (6) of Gulam Sarwar v. Union of India wherein Subba Rao, CJ. has referred to John Marshall's observation, viz. "Heavy penalties are imposed on a Judge who wrongfully refuses to entertain an application for a writ of habeas corpus". It is also said that some delay would be caused where a petition is entertain by a state High Court and the counter affidavit of the Union of India is necessary to be filed. We do not find merit in any of these submissions, particularly in the light of the decisions of the Supreme Court.
(7) In spite of the fact that in Gulam Sarwar and earlier the Supreme Court recognised its duty under Article 32 of the Constitution to entertain habeas corpus petitions, it still held that the petitioner cannot make successive applications of habeas corpus if they are earlier rejected by the High Court. That was a petition under Article 32 of the Constitution, but the Court entertained the petition because a new ground, which was not earlier raised before the High Court, was raised for the first time in the Supreme Court, thus laying down the principle that doctrine of constructive res judicata is not applicable to habeas corpus petitions. In the same judgment Bachawat J. pointed out that although the principle of res judicata is not applicable under Article 32 of the Constitution, the Supreme Court will take into consideration the earlier refusal to entertain a petition by the High Court.
(8) In Kanu Sanyal v. District Magistrate (MR 1973 Sc 2684) the Constitution Bench of the Supreme Court held that production of body of the detenue is not essential before the habeas corpus petition is finally heard and decided by the Supreme Court. The Supreme Court held that habeas corpus was a writ of right and not a writ of course. It was essentially a procedural writ, which deals with the machinery of justice and not the substantive law (Para 4 page 2688). The Supreme Court is competent to dispense with the production of body of the person detained under Order 47 Rules I and 6 of the Supreme Court Rules. The Supreme Court quoted with approval a passage from Corpus Jurisdiction Secundum, where the principle that the bodily production of the prisoner can be dispensed with on pragmatic grounds if such production is impossible, impracticable or improper is laid down. Thus, it may be seen that the Supreme Court has itself made important changes in the classical concept and procedure of habeas corpus petitions, taking pragmatic and utilitarian view of the matter.
(9) But recent decisions of the Supreme Court in P.N Kumar and Another v. M.C.D. and Kanubhai Brahmbhatt v. State of Gujarat , have taken the procedural law of entertainment or writ jurisdictions to a far greater extent. The Supreme Court has held that the petitioners should first file the writ petitions in the High Court and should not rush to the Supreme Court under Article 32 of the Constitution and that the Supreme Court is competent to return the writ petitions for being filed in the High Court if the writ petitions are directly filed in the Supreme Court by-passing the High Court. In P.N. Kumar the Supreme Court has stated 10 reasons or grounds as to why the High Court forum is more proper, convenient and expeditious forum. Some additional reasons were stated in Kanubhai. The Supreme Court said "There is no reason to assume that the concerned High Court will not do justice." It further observed "faith must be inspired in the hierarchy of courts and the institution as a whole not only in this Court alone and this objective can be achieved only by this Court showing trust in the High Court by directing the litigants to approach the High Court in the first instance. Besides, as a matter of fact, if the matters like the present one are instituted in the High Court there is likelihood of the same being disposed of much more quickly and equally effectively on account of the decentralisation of the process of administration of justice. We may adopt the same argument and hold that it is our duty to see that the faith in other High Courts is also upheld and also take such approach as permitting the other High Courts to dispose of the habeas corpus petitions quickly and effectively.
(10) Borrowing the reasons given by the Supreme Court in P.N. Kumar and modifying them mutates mutinies (as they will answer most of the submissions in these petitions), we can hold that the Kerala High Court will be able to grant all the reliefs which we can grant in this Court. Hearing of the petition in the Kerala High Court would be more convenient from several angles and will be cheaper to the parties. It will save lot of time. It will be easier for the clients to give instructions to their lawyers. Each High Court has its own traditions. They have Judges of eminence who have initiative, necessary skills and enthusiasm. There are also eminent lawyers practicing in Kerala High Court with wide experience in handling different kinds of cases, both original and appellate. Their services would be available to the litigants in the State itself.
(11) It may be noted that the Advisory Board presided over by the Judge of this Court holds its sittings from time to time at Calcutta, Bombay, Madras, Trivendrum, Ahmedabad, etc. It is both for the convenience of the detenue' and the department that such sittings are held at the respective places, which obviously has the merit of saving time, labour and expenses.
(12) The heavy pendency in the Delhi High Court can also be a very legitimate consideration in this regard is seen from the ground (7) in P.N. Kumar. As shown by us earlier, we have pendency in all important jurisdictions of about 10 to 15 years. A more serious, case is of pendency of criminal appeals and revisions where the accused who could not furnish bail or to whom bail has been refused are languishing in jail, pending trial for long years.
(13) For the reasons stated above, we are compelled to return the petitions to their petitioners for being filed in the Kerala High Court. In some petitions we had issued notice, but the said petitions would also be returned, so as to enable the Kerala High Court to dispose of the petitions early. In P.N. Kumar itself the petition was remanded to this Court after a lapse of four years.
(14) The criminal writ petitions are disposed of accordingly.