Summary
The appellant is a Municipal Councillor of the Cuddapah Municipal Council. He was elected to the Council as an independent candidate. According to him, he enjoys populari- ty in his area and had previously held important positions in the District. He states 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. Scenting a move to detain him under the provisions of the Andhra Pradesh Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986, the appellant filed a writ petition on 6.6.1988 in the High Court, averring inter alia that the successive actions initiated against him were a part of political vendetta. A learned Single Judge on 8.8.1988 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 10.6.1988 the appellant was served the detention order dated 3.6.1988 as well as the grounds of detention, and he was taken into custody, but was released after four days.
The appellant filed on 25.6.1988 in his pending writ petition a miscellaneous petition, as an additional affida- vit. He assailed therein the order of detention on various grounds. A Division Bench of the High Court, on reference by the learned Single Judge, held that the prayer in the writ petition had become infructuous, and that there were no extraordinary or special reasons to depart from the normal rule, namely, that in such a case the appellant should first surrender and move for a writ of habeas corpus. The Division Bench accordingly, dismissed the writ petition.Before this Court it was inter alia contended on behalf of the 106appellant that the High Court erred in holding that there were no extraordinary circumstances or special reasons to depart from the normal rule, thereby refusing to grant relief to the appellant against infringement of his funda- mental right to liberty; that the detention order having not been approved by the State Government as required under Section 3(3) of the Prevention of Dangerous Activities Act and the appellant's case having not been placed before the Advisory Board as required under section 10 thereof, the detention order ceased to be in force and hence was liable to be quashed.On behalf of the respondent, it was contended that the detention order having been passed before the writ petition was filed, the High Court was right in dismissing the writ petition following the court's practice and procedure, and that there were no extraordinary or special reasons to depart from the normal rule inasmuch as granting relief at such a stage would defeat the very purpose of the Act.Counsel, however, could not deny that the detention order was not approved by the State Government and that the appel- lant's case was not placed before the Advisory Board.Allowing the appeal and quashing the order of detention, this Court,HELD: (1) The position of a person who is actually under illegal detention and of a person who is in imminent jeop- ardy of illegal detention are not far dissimilar. Refusal to interfere in such a case may amount to denial of the funda- mental right itself. [114A].Jayantiial Bhagwandas Shah v. The State of Maharash- tra, [1981] 1 Cr. L.J. 767, referred to.(2) There could be no reason why in an exceptional and rare case, detention order already made, and either served or yet to be served, and the person is still free, could not be legally brought under challenge. [114F]Vedprakash Devkinandan Chiripal v. State of Gujarat, AIR 1987 Gujarat 253.A.K. Gopalan v. State of Madras, AIR 1950 SC 27; Addl.District Magistrate, Jabalpur v. Shivakant Shukla, AIR 1976SC 1207, referred to.107 (3) For enforcement of one's right to life and personal liberty resort to Article 226(1) has been provided for. The word 'enforcement' has also been used in Article 32 of the Constitution which provides the remedy for enforcement of rights conferred by Part III of the Constitution. The word'enforcement' has not been defined by the Constitution.[115B](4) 'Enforce' means to compel obedience to laws; to compel performance, obedience by physical or moral force.[115C](5) Conferring the right to life and liberty imposes a corresponding duty on the rest of the society, including the State, to observe that right, that is to say, not to act or to do anything which would amount to infringement of that right, except in accordance with the procedure prescribed by law. [115F](6) Resort to Article 226 after the right to personal liberty is already violated is different from the pre-viola- tion 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. [116B-C](7) 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 the violation and he approaches the court under Art. 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 these steps to appear and show cause why they should not be restrained from violating that right?[116 C-D](8) The difference of the two situations have different legal significance. If a threatened invasion of a right is removed by 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.[116F-G](9) In the instant case, the appellant's fundamental right to108 liberty is the reflex of a legal obligation of the rest of the society, including the State, and it is the appellant's legal power bestowed upon him to bring about by a legal action the enforcement of the fulfilment of that obligation existing towards him. Denial of legal action would, there- fore, amount to denial of his right of enforcement of his right to liberty. A petition for a writ of habeas corpus would not be a substitute for this enforcement. [120D-E]K.K. Kochunni v. The State of Madras and Ors., [1959]Supp. 2 SCR 316; Special Reference No. 1 of 1964, [1965] 1SCR 413; M.C. Mehta v. Union of India, [1987] 1 SCC 395 referred to.(10) 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 being brought to the notice of the court by a Misc. application in the form of additional affidavit, the same ought to have been dealt with by the High Court..[113A-B](11) The detention order had not been approved by the State Government within 12 days of its being made, as en- joined under subsection (3) of section 3 of the Act. The result is that the order could not remain in force more than 12 days after making thereof and as such must be treated as to have ceased to be in force and non-existent thereafter.[122A](12) Even though the detenu was released, if the deten- tion order was in force, his case was required to be placed before the Advisory Board. This being a mandatory provision and having not been complied with, the detention order even if otherwise in force, cannot be said to have been in force after three weeks. [122H; 123A]See the full content of this document
Extract
S.M.D. Kiran Pasha VS. Government Of Andhra Pradesh And Ors.
PETITIONER: S.M.D. KIRAN PASHA Vs.RESPONDENT: GOVERNMENT OF ANDHRA PRADESH AND ORS.DATE OF JUDGMENT09/11/1989BENCH: SAIKIA, K.N. (J)BENCH: SAIKIA, K.N. (J)FATHIMA BEEVI, M. (J)CITATION: 1989 SCR Supl. (2) 105 1990 SCC (1) 328JT 1989 (4) 366 1989 SCALE (2)1083ACT: Constitution of India, 1950: Articles 32 & 226--Life and personal liberty--Right to-'Enforcement' of right in Court--Whether Court can insist that person surrenders and then files habeas corpus petition--Post violation resort and pre violation of protection----Distinction between.JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 702 of 1989.From the Judgment and Order dated 4.7.1988 of the Andhra Pradesh High Court in W.P. No. 8610 of 1988.M.C. Bhandare and Ms. C.K. Sucharita for the Appellant.Ganesh, S. Muralidhar, T.V.S.N. Chari and Raghav for the Respondents.109 The Judgment of the Court was delivered by K.N. SAIKIA, J. Special leave granted.This appeal is from the Judgment and Order of the High Court of Andhra Pradesh at Hyderabad dated 4.7.1988 passed in Writ Petition No. 86 10 of 1988.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 organis- ing 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 Con- gress (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 13.1...
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