Jammu & Kashmir High Court
Mohd Rafiq vs Union Territory Of J&K And Others on 14 December, 2022
Bench: Rajnesh Oswal, Puneet Gupta
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Reserved on 17.10.2022
Pronounced on 14.12.2022
LPA No. 60/2020(O&M)
Mohd Rafiq ...Appellant/Petitioner(s)
Through :- Mr. Navyug Sethi, Advocate
v/s
Union Territory of J&K and others .....Respondent (s)
Through :- Mr. Raman Sharma, AAG
Coram: HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE
HON'BLE MR. JUSTICE PUNEET GUPTA, JUDGE
JUDGMENT
Per Oswal-J
1. This intra court appeal arises out of the judgment dated 10.03.2020, whereby the writ petition filed by the appellant through his mother for quashing the order of detention No. 10/PSA of 2019 dated 15.04.2019, has been dismissed by the learned Single Judge. The said judgment has been assailed on the following grounds:
(i) that the learned writ court has wrongly applied the judgment of Hon'ble Supreme Court, as the case of the appellant was squarely covered by the judgment of the Apex Court in Additional Secretary to the Government o India v Alka Subash Gadia, 1992 Supp. (1) SCC 496.
(ii) that the order of detention passed by the respondent No. 2 is worst kind of exploitation by the respondents and is an arbitrary exercise of power as the detenu could have been dealt with under the provisions of Code of Criminal Procedure.2 LPA No. 60/2020
(iii) that the detenue has already been discharged/acquitted from the offences alleged to have been committed under various FIRs and this fact has been deliberately ignored despite the fact that the respondents were having knowledge of the same, just to justify illegal order of detention.
2. Mr. Navyug Sethi, learned counsel for the appellant vehemently argued that the case of the appellant was squarely covered by the judgment of the Apex Court in Alka Subash Gadia's case (supra).
3. On the contrary, Raman Sharma learned AAG vehemently argued that appellant has absconded and further that his case was not covered by the circumstances as provided in Alka Subash Gadia's case (supra) for quashing the order of detention at pre execution stage. He further argued that the writ petition was not maintainable as the same was filed on behalf of the alleged detenu by his mother, particularly when he had absconded.
4. Heard and perused the record.
5. A perusal of the record reveals that the mother of the alleged detenu- Mohd.
Rafiq filed the Habeas Corpus Petition for production of Mohd Rafiq appellant herein and also for quashing the detention order No. 10/PSA of 2019 dated 15.04.2019 wherein she had stated that her son i.e. detenu Mohd Rafiq was missing from 15.04.2019 and did not return back to home and on enquiry from various quarters she was made to understand that her son had been detained under Public Safety Act and was lodged in Sub Jail, Hiranagar. She made several visits to Sub Jail, Hiranagar but was refused entry to the jail premises on the pretext that there was no person namely Mohd. Rafiq detained in the said jail. She along with some well wishers went to Srinagar to enquire about the whereabouts of her son where she was 3 LPA No. 60/2020 provided the photocopies of the detention order and till date no detention order or grounds of detention have ever been communicated by the respondents to the appellant or any other family member of appellant.
6. The detention order was assailed on the ground that the order impugned was passed in contravention to the principles established by law and in various FIRs, either the case was not proved or the appellant was acquitted and this fact was not mentioned in the order of detention. It was also one of the grounds that earlier the appellant was detained in the year 2008 but the detention order was quashed by the High Court vide its judgment dated 03.11.2008. The response was filed to the said writ petition by the respondents wherein it was stated that as per the communication dated 23.09.2019 issued by the SSP, Samba, the detention warrant has not been executed till date as Mohd Rafiq against whom the detention warrant was issued has absconded. It was also stated that the subject was a notorious criminal and was continuously involved in a number of criminal activities. Learned writ court after hearing the parties and considering the pleadings, dismissed the said writ petition.
7. Now, the first contention raised by the appellant is that the case of the appellant falls within the parameters laid down by the Apex Court in Alka Subash Gadia's case (supra). When we examine the case of the appellant, we find that the case of the appellant does not fall within the parameters laid down by the Apex Court in Alka Subash Gadia's case (supra). The learned Single Judge has taken note of the fact that earlier detention order was quashed in the year 2008. Thereafter, as many as nine more FIRs have been registered from the year, 2010 to 2019 against the appellant. Though in the writ petition, no pleas with regard to the delay in execution of the detention 4 LPA No. 60/2020 order and also providing the maximum period of detention in the grounds of detention were raised but nonetheless, the same appears to have been raised before the learned writ court and the learned writ court has come to the conclusion that on those grounds the detention order cannot be quashed. The learned writ court has observed that the execution of the detention order has been frustrated by the appellant himself and he cannot be permitted to take advantage of his own wrong.
8. It is apt to take note of observations made in Subhash Popatlal Dave v.
Union of India, (2014) 1 SCC 280, wherein Apex Court has held as under:
"46. Therefore, I am of the opinion that those who have evaded the process of law shall not be heard by this Court to say that their fundamental rights are in jeopardy. At least, in all those cases, where proceedings such as the one contemplated under Section 7 of the COFEPOSA Act were initiated consequent upon absconding of the proposed detenu, the challenge to the detention orders on the live nexus theory is impermissible. Permitting such an argument would amount to enabling the law-breaker to take advantage of his own conduct which is contrary to law.
47. Even in those cases where action such as the one contemplated under Section 7 of the COFEPOSA Act is not initiated, the same may not be the only consideration for holding the order of preventive detention illegal. This Court in Shafiq Ahmad v. District Magistrate, Meerut [(1989) 4 SCC 556], held so and the principle was followed subsequently in M. Ahamedkutty v. Union of India [(1990) 2 SCC 1], wherein this Court opined that in such cases, the surrounding circumstances must be examined [ "14. In Shafiq Ahmad v. District Magistrate, Meerut, (1989) 4 SCC 556 relied on by the appellant, it has been clearly held that what amounts to unreasonable delay depends on facts and circumstances of each case. Where reason for the delay was stated to be abscondence of the detenu, mere failure on the part of the authorities to take action under Section 7 of the National Security Act by itself was not sufficient to vitiate the order in view of the fact that the police force remained extremely busy in tackling the serious law and order problem. However, it was not accepted as a proper 8 WP (Crl) No. 02/2022 explanation for the delay in arresting the detenu. In that case the alleged incidents were on 2-4-1988/3-4-1988/9-4-1988.
The detention order was passed on 15-4-1988 and the detenu was arrested on 2-10-1988. The submission was that there was inordinate delay in arresting the petitioner pursuant to the order and that it indicated that the order was not based on a bona fide and genuine belief that the action or conduct of the petitioner were such that the same were prejudicial to the maintenance of public order. Sabyasachi Mukharji, J., as my Lord the Chief Justice then was, observed that whether there was 5 LPA No. 60/2020 unreasonable delay or not would depend upon the facts and circumstances of a particular situation and if in a situation the person concerned was not available and could not be served, then the mere fact that the action under Section 7 of the Act had not been taken, would not be a ground for holding that the detention order was bad. Failure to take action even if there was no scope for action under Section 7 of the COFEPOSA Act, would not by itself be decisive or determinative of the question whether there was undue delay in serving the order of detention." (M. Ahamedkutty case, p. 10, para 14)] . In both Shafiq Ahmad [(1989) 4 SCC 556] and Ahamedkutty [(1990) 2 SCC 1] cases, these questions were examined after the execution of the detention order. Permitting an absconder to raise such questions at the pre- execution stage, I am afraid would render the jurisdiction of this Court a heaven for characters of doubtful respect for law.
48. This Court in Alka Subhash Gadia [Govt. of India v. Alka Subhash Gadia, 1992 Supp (1) SCC 496 :] , emphatically asserted that "it is not correct to say that the courts have no power to entertain grievances against detention order prior to its execution". This Court also took note of the fact that such an inquiry had indeed been undertaken by the courts in a very limited number of cases and in circumstances glaringly untenable at the pre-execution stage. [ "30. ... Thirdly, and this is more important, it is not correct to say that the courts have no power to entertain grievances against any detention order prior to its execution. The courts have the necessary power and they have used it in proper cases as has been pointed out above, although such cases have been few and the grounds on which the courts have interfered with them at the pre-execution stage are necessarily very limited in scope and number viz. where the courts are prima facie satisfied (i) that the impugned order is not passed under the Act under 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."
49. The question whether the five circumstances specified in Alka Subhash Gadia case [Govt. of India v. Alka Subhash Gadia, 1992 Supp (1) SCC 496 ] are exhaustive of the grounds on which a pre-execution scrutiny of the legality of preventive detention order can be undertaken was considered by us earlier in the instant case. We held that the grounds are not exhaustive. [Subhash Popatlal Dave v. Union of India, (2012) 7 SCC 533] But that does not persuade me to hold that such a scrutiny ought to be undertaken with reference to the cases of those who evaded the process of law."
9. As the alleged detenu (appellant) himself has absconded, so he cannot raise the plea of delay in execution of the detention order. Similarly, there is no fault in rejection of the plea of the appellant in respect of indicating the maximum period of detention in the grounds of detention as in the detention 6 LPA No. 60/2020 order, the District Magistrate has not fixed any period of detention of detenu and merely mentioning the maximum period in the grounds of detention would not vitiate the order and that too at the pre execution stage.
10. We have examined the judgment passed by the learned writ court and we do not find the same to be contrary to the judgment of Hon'ble Apex Court.
11. Otherwise also, the writ petition filed by the appellant through his mother challenging the order of detention was required to be dismissed as it was only the alleged detenu, who could have assailed the detention order at the pre execution stage. It is only the detenu who can be considered to be as person aggrieved and the mother of the detenu cannot be considered as person aggrieved, having competence to file a petition for quashing order of detention at pre execution stage on behalf of her son in absence of any authorization and more particularly when the appellant is not under any disability to approach this court. It is settled law that the writ petition can be filed only by a person who falls within the category of "person aggrieved". It would be appropriate to take note of the observations made by Hon'ble Supreme Court in "Chiranjit Lal Chowdhuri v. Union of India, 1950 SCR 869", wherein Apex court has observed as under:
"45. Thus anybody who complains of infraction of any of the fundamental rights guaranteed by the Constitution is at liberty to move the Supreme Court for the enforcement of such rights and this court has been given the power to make orders and issue directions or writs similar in nature to the prerogative writs of English law as might be considered appropriate in particular cases. The fundamental rights guaranteed by the Constitution are available not merely to individual citizens but to corporate bodies as well except where the language of the provision or the nature of the right compels the inference that they are applicable only to natural persons. An incorporated company, therefore, can come up to this court for enforcement of its fundamental rights and so may the individual shareholders to enforce their own; but it would not be open to an individual shareholder to complain of an Act which affects the fundamental rights of the company except to the extent that it constitutes an infraction of his own rights as well. This follows logically from the rule of law that a corporation has a distinct legal personality of its own with rights and capacities, duties and obligations separate from those of its individual members. As the rights are different and inhere in different legal entities, it is not competent to one person to 7 LPA No. 60/2020 seek to enforce the rights of another except where the law permits him to do so. A well-known illustration of such exception is furnished by the procedure that is sanctioned in an application for a writ of habeas corpus. Not only the man who is imprisoned or detained in confinement but any person, provided he is not an absolute stranger, can institute proceedings to obtain a writ of habeas corpus for the purpose of liberating another from an illegal imprisonment."
12. Other exception to the above Rule is a writ of quo-warranto as well as the writs filed in public interest. It would also be appropriate to take note of the judgement of Apex Court in case titled "JM Desai versus Roshan Kumar"
reported in 1976 AIR Supreme Court 578, the relevant portion is reproduced as under.
"13 This takes us to the further question: Who is an "aggrieved person"
and what are the qualifications requisite for such a status? The expression "aggrieved person" denotes an elastic, and to an extent, an elusive concept. It cannot be confined within the bounds of a rigid, exact and comprehensive definition. At best, its features can be 6 WP (Crl) No. 02/2022 described in a broad tentative manner. Its scope and meaning depends on diverse, variable factors such as the content and intent of the statute of which contravention is alleged, the specific circumstances of the case, the nature and extent of the petitioner's interest, and the nature and extent of the prejudice or injury suffered by him. English courts have sometimes put a restricted and sometimes a wide construction on the expression "aggrieved person". However, some general tests have been devised to ascertain whether an applicant is eligible for this category so as to have the necessary locus standi or "standing" to invoke certiorari jurisdiction.
14. We will first take up that line of cases in which an "aggrieved person"
has been held to be one who has a more particular or peculiar interest of his own beyond that of the general public, in seeing that the law is properly administered. The leading case in this line is Queen v. Justices of Surrey [(1870) 5 QB 466] decided as far back as 1870. There, on the application by the highway board the justices made certificates that certain portions of three roads were unnecessary. As a result, it was ordered that the roads should cease to be repaired by the parishes. xxxxx
37. It will be seen that in the context of locus standi to apply for a writ of certiorari, an applicant may ordinarily fall in any of these categories: (i) "person aggrieved"; (ii) "stranger"; (iii) busybody or meddlesome interloper. Persons in the last category are easily distinguishable from those coming under the first two categories. Such persons interfere in things which do not concern them. They masquerade as crusaders for justice. They pretend to act in the name of pro bono publico, though they have no interest of the public or even of their own to protect. They indulge in the pastime of meddling with the judicial process either by force of habit or from improper motives. Often, they are actuated by a desire to win notoriety or cheap popularity; while the ulterior intent of some applicants in this category, may be no more than spoking the wheels of administration. The High Court should do well to reject the applications of such busybodies at the threshold.
38. The distinction between the first and second categories of applicants, though real, is not always well-demarcated. The first category has, as it were, two concentric zones; a solid central zone of certainty, and a grey 8 LPA No. 60/2020 outer circle of lessening certainty in a sliding centrifugal scale, with an outermost nebulous fringe of uncertainty. Applicants falling within the central zone are those whose legal rights have been infringed. Such applicants undoubtedly stand in the category of "persons aggrieved". In the grey outer circle the bounds which separate the first category from the second, intermix, interfuse and overlap increasingly in a centrifugal direction. All persons in this outer zone may not be "persons aggrieved".
39. To distinguish such applicants from "strangers", among them, some broad tests may be deduced from the conspectus made above. These tests are not absolute and ultimate. Their efficacy varies according to the circumstances of the case, including the statutory context in which the matter falls to be considered. These are: Whether the applicant is a person whose legal right has been infringed? Has he suffered a legal wrong or injury, in the sense, that his interest, recognised by law, has been prejudicially and directly affected by the act or omission of the authority, complained of? Is he a person who has suffered a legal grievance, a person "against whom a decision has been pronounced which has wrongfully deprived him of something or wrongfully refused him something, or wrongfully affected his title to something?" Has he a special and substantial grievance of his own beyond some grievance or inconvenience suffered by him in common with the rest of the public? Was he entitled to object and be heard by the authority before it took the impugned action? If so, was he prejudicially affected in the exercise of that right by the act of usurpation of jurisdiction on the part of the authority? Is the statute, in the context of which the scope of the words "person aggrieved" is being considered, a social welfare measure designed to lay down ethical or professional standards of conduct for the community? Or is it a statute dealing with private rights of particular individuals?"
13. It is also relevant to take note of para 15 of the judgment in Deepak Bajaj v State of Maharashtra and anr, (2008) 16 SCC 14, which reads as under:
"15. If a person against whom a preventive detention order has been passed comes to court at the pre-execution stage and satisfies the court that the detention order is clearly illegal, there is no reason why the court should stay its hands and compel the petitioner to go to jail even though he is bound to be released subsequently (since the detention order was illegal)......."
14. In view of all what has been discussed above, we do not find any reason to interfere with the judgment of the writ court, as such, the present LPA is found to be misconceived. The same is, accordingly, dismissed.
(PUNEET GUPTA) (RAJNESH OSWAL)
JUDGE JUDGE
JAMMU
14.12.2022
Rakesh
Whether the order is speaking: Yes/No
Whether the order is reportable: Yes/No