Madhya Pradesh High Court
Akash Pratap Singh @ Sunny vs The State Of Madhya Pradesh on 27 April, 2015
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W. P. No. 3965/2015
27.4.2015
Shri A. P. Singh, Govt. Advocate for respondent/ State.
This petition is listed under caption "Top of the List"
in terms of order dated 21.04.2015, however, none appears for the petitioner when the matter is called out.
Presumably, the Advocates on record have chosen not to appear because of the call given by the Madhya Pradesh High Court Bar Association in its meeting dated 24 th April, 2015 to boycott Court work for today. That decision taken by the Bar, is not in conformity with the known norms.
The Supreme Court in the case of Ex. - Capt. Harish Uppal vs. Union of India and another, (2003) 2 SCC 45 in para 35, in particular, has observed thus:-
"35. In conclusion, it is held that lawyers have no right to go on strike or give a call for boycott, not even on a token strike. The protest, if any is required, can only be by giving press statements, TV interviews, carrying out of Court premises banners and/or placards, wearing black or white or any colour arm bands, peaceful protest marches outside and away from Court premises, going on dharnas or relay fasts etc. It is held that lawyers holding Vakalats on behalf of their clients cannot not attend Courts in pursuance of a call for strike or boycott. All lawyers must boldly refuse to abide by any call for strike or boycott. No lawyer can be visited with any adverse consequences by the Association or the
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Council and no threat or coercion of any nature including that of expulsion can be held out. It is held that no Bar Council or Bar Association can permit calling of a meeting for purposes of considering a call for strike or boycott and requisition, if any, for such meeting must be ignored. It is held that only in the rarest of rare cases where the dignity, integrity and independence of the Bar and/or the Bench are at stake, Courts may ignore (turn a blind eye) to a protest abstention from work for not more than one day. It is being clarified that it will be for the Court to decide whether or not the issue involves dignity or integrity or independence of the Bar and/or the Bench. Therefore in such cases the President of the Bar must first consult the Chief Justice or the District Judge before Advocates decide to absent themselves from Court. The decision of the Chief Justice or the District Judge would be final and have to be abided by the Bar. It is held that Courts are under no obligation to adjourn matters because lawyers are on strike. On the contrary, it is the duty of all Courts to go on with matters on their boards even in the absence of lawyers. In other words, Courts must not be privy to strikes or calls for boycotts. It is held that if a lawyer, holding a Vakalat of a client, abstains from attending Court due to a strike call, he shall be personally liable to pay costs which shall be addition to damages which he might have to pay his client for loss suffered by him."
Considering the above and as we, prima facie, find that the Advocates have chosen not to appear on account of illegal call given by the Bar Association, have committed
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professional misconduct, for which, they must be noticed and called upon to explain as to why appropriate action should not be taken including to impose cost. That proceedings will continue independently.
Hence, show cause notice is issued to the Advocates - Nitya Nand Mishra and Ramdarash Tiwari, who have filed the Vakalatnama in the matter. Returnable on 17th June, 2015.
Further, keeping in mind the observations of the Supreme Court, we cannot extricate ourselves from deciding the case merely because the Advocates have not chosen to appear.
Considering the above, we have no other option but to proceed in the mater particularly because this petition takes exception to the detention order passed by the Competent Authority in exercise of powers under Section 3 (2) of the National Security Act, 1980 and has been assailed at pre- execution stage. The legal position about the scope of interference at the pre-execution stage has been delineated by the Supreme Court in the case of Additional Secretary to the Government of India and Others vs. Smt. Alka Subhash Gadia and another - 1992 Supp (1) SCC 496, which position has been further elaborated in the case of Subhash Popatlal Dave vs. Union of India and another - (2012) 7 SCC 533. It is well settled that challenge to the
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detention order at pre-execution stage is circumscribed.
Let us examine the grounds on which the petitioner has challenged the impugned detention order in the writ petition, as filed. The thrust of the petitioner's grievance is that he has come to know about the impugned detention order through Press. According to the petitioner, that order has been passed due to political vendetta as the petitioner is an elected representative (Sarpanch of the Village Dhaurhara). Notably, the petitioner has not named any person - be it Government Official or person(s) in Authority in the ruling party - at whose instance or behest the impugned detention order has been passed. Hence that grievance of the petitioner cannot be taken forward and will have to be stated to be rejected.
The next grievance of the petitioner is that the representation made by the petitioner on 28.1.2015 has not been decided by the Competent Authority and no communication has been received by the petitioner in that behalf. This grievance is on the assumption that the petitioner has a right to make representation before the detention order is executed. That assumption is completely misplaced. The petitioner cannot claim it as a fundamental right to make representation nor has it been prescribed as a statutory right unlike the right to make representation after the execution of detention order. For that reason, the fact that the representation has not been examined by the Competent
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Authority cannot be the basis to quash the impugned detention order at the pre-execution stage. The petitioner is under misconception that before issuing detention order he has a right to be heard and to make representation. That contention, therefore, must fail.
The next ground urged by the petitioner is that the petitioner has been falsely implicated in successive criminal cases registered against him and which fact is reinforced from the acquittal of the petitioner in some of those cases. In the first place, it is not open to this Court to consider whether the criminal cases registered against the petitioner are false and not genuine. That is not the scope of judicial review to consider the validity of the detention order. The Court can enquire as to whether the subjective satisfaction of the Competent Authority to detain a person or so as to prevent him from indulging in similar offences or activities in future is genuine and founded on germane considerations. Suffice it to observe that the fact that petitioner has been falsely implicated in criminal cases cannot be the basis to assume nor can be the basis to question the validity of the detention order. As a result, even this grievance of the petitioner does not commend to us.
On the other hand, the fact that 18 criminal cases have been registered against the petitioner in succession speaks volume about the activities of the petitioner. That fact has
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weighed with the detaining Authority for preventing the petitioner from indulging in similar acts of commission in future. That cannot be taken exception to. That being a genuine and valid consideration, it is not open for this Court to question the subjective satisfaction of the detaining Authority on that count. The detaining Authority must have taken the totality of the situation into account before recording his subjective satisfaction to detain the petitioner to prevent him from indulging in similar activities in future.
The next ground urged by the petitioner is that the petitioner has been acquitted in several criminal cases registered against him. So far, he has not been convicted even in a single criminal case. This contention clearly overlooks the satisfaction recorded by the Competent Authority - as can be noticed from the impugned detention order dated 19.1.2015. It is seen that the witnesses named in the concerned criminal cases as well as other persons are not coming forward to depose against the petitioner due to fear and threat of dire consequences. Thus, the detention order is not singularly passed on the basis of criminal cases registered against the petitioner but also in the context of other material which the detaining Authority had access to and has been considered for recording subjective satisfaction.
It is not a case where the impugned order is not passed under the Act under which it is purported to have been
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passed nor it is a case of detention order sought to be executed against a wrong person or passed for a wrong purpose. It is also not passed on vague, extraneous and irrelevant grounds nor a case of Authority passing the order, did not possess such Authority.
We have carefully considered the grounds of challenge stated in Paragraph No.6 of the writ petition. The first ground taken in the writ petition is that the detention order passed against the petitioner is arbitrary and against the procedure of law as well as with mala fide intention. We have already dealt with this aspect of the matter in the earlier part of this decision. This ground must, therefore, fail.
The second ground urged is that the petitioner's fundamental right under Article 21 of the Constitution of India will be jeopardized and that the impugned order is passed on vague, extraneous and irrelevant grounds. Having perused the detention order produced by the competent Authority appended to the reply-affidavit at Page No.62, it is not possible to accept the unsubstantiated assertion that the said detention order is passed on vague, extraneous and irrelevant grounds. Rather, we find that it refers to specific instances and criminal cases including other material made available to the detaining Authority, which has been duly considered to record subjective satisfaction. Hence, even this ground does not commend to us.
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The next ground urged in the writ petition is that the impugned order has been passed due to political vendetta. This aspect has also been considered in the earlier part of this judgment. The petitioner has not named any person at whose instance or behest the impugned order has been passed. In absence thereof, it is not open to the petitioner to pursue the grievance that the impugned order is a product of political rivalry or out of political vendetta. Hence, this ground must fail.
The next ground urged in the writ petition is that the impugned order is nothing but misuse of Authority. Besides saying this, nothing has been mentioned in the petition as to on what count the Competent Authority can be said to have misused its Authority when we have found that there was germane material before the detaining Authority for recording its subjective satisfaction. Hence, this ground must fail.
The next ground urged in the writ petition is that the criminal cases registered against the petitioner cannot be the basis to pass order of detention under the National Security Act. In the present case, 18 criminal cases have been registered against the petitioner as noted in the reply affidavit as also adverted to in the detention order. It is well established position that even one serious criminal case can be good ground for invoking power to detain the person for
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preventing him from indulging in similar offence in future. Hence, we find no merits in the grievance that mere registration of criminal cases against the petitioner cannot be the ground to detain him under the National Security Act nor are we impressed by the contention of the petitioner that the remaining criminal cases pending against the petitioner are of trivial nature. This contention cannot be the basis to doubt the subjective satisfaction recorded by the competent Authority in the fact situation of the present case.
The penultimate ground urged in the writ petition is that the detention order has been passed without giving opportunity to the petitioner or giving him any show cause notice to respond. This contention, to say the least, is ill- advised. If the person, who is likely to be detained, is to be given advance notice about such detention, the purpose of invoking this extraordinary power of detaining and curtailing liberty of a person to prevent him from indulging in similar activities in future would become redundant. The power is exercised to prevent a person from indulging in similar activities resulting in public order situation in future. It is preventive action for which no prior opportunity of hearing can be given nor the action taken by the competent Authority be questioned on that count. In our opinion, this plea taken by the petitioner an argument of desperation.
The last ground urged in the writ petition is that it is
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obligatory for the detaining Authority to supply documents relied upon by it. No doubt, the detaining Authority is obliged to serve the relevant material relied upon for recording subjective satisfaction along with the grounds of detention to the detenu but that is after arrest and detention. There is no requirement in law to serve advance copies of such documents before execution of detention order. The present case is to challenge the detention order at per- execution stage and hence, this ground cannot be taken forward.
Taking any view of the matter, therefore, this petition is devoid of merits and is dismissed accordingly.
We are required to do the unpleasant task of issuing show cause notice to the Officers of the Court not only in furtherance of the exposition of the Supreme Court in the aforesaid case but also because, off late, it has been noticed that such calls to boycott the Court have become frequent and even in respect of matters which could be conveniently resolved on the administrative side.
(A.M. Khanwilkar) (K.K.Trivedi)
Chief Justice Judge
Anchal
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