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Umed Mal Versus Union of India (UOI) and Ors.

1998 (4) TMI 554 - RAJASTHAN HIGH COURT

F.B. Habeas Corpus Petn. No. 2562 of 1997 - Dated:- 25-4-1998 - V.S. Kokje, P.P. Naolekar and V.G. Palshikar, JJ. For the Appellant: V.D. Kalla, Adv. For the Respondent: J.P. Joshi, Adv. and K.L. Jasmatiya, Addl. Adv.-General JUDGMENT V.S. Kokje, J. 1. Petitioner Umed Mai challenged his detention under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter to be referred as the Act'), by filing this Habeas Corpus Petition which was listed before a .....

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ore, directed to be placed before Hon'ble the Chief Justice for Orders on constitution of a larger Bench and on February 04, 1998, Hon'ble the Acting Chief Justice constituted this Full Bench to answer the reference. 3. The factual setting in which the question of territorial jurisdiction of this Court to entertain the Habeas Corpus Petition arose as under :- 4. The petitioner has brought this petition on behalf of his friend Arvind Kumar Babel, son of Shri Dharmesh K. Babel who has been .....

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r and the detenue to the Police Station City Police, Jodhpur and later took the detenue in his custody at Jodhpur. It is also alleged that the detenue was served with the detention Order on February 14, 1997 passed by the Joint Secretary to the Government of India, Ministry of Finance, Department of Revenue, Central Economic Intelligence, Bureau. (COFEPOSA UNIT), New Delhi. Grounds of detention and the list of documents were, also served upon the detenue. The petitioner lost contact with the det .....

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was recovered. As he could not explain properly the source of foreign currency found in his possession, he was taken into custody and was interrogated. It is alleged that said Shri Ranjan Raghunath Belekar disclosed that he had purchased the foreign currency from the detenue. On this the detenue was taken into custody and was allegedly compelled to execute certain documents by adopting third degree methods. The detenue was arrested and produced before the Additional Chief Metropolitan Magistrat .....

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respondent No. 2 and because of this illegal order, liberty of the detenue has been snatched away and as such, the petitioner is filing this writ petition before this Hon'ble Court for quashing of the Order. 7. The respondents have raised preliminary objections in their counter-affidavits in the following terms It is submitted that the entire activities of Shri Babel were concentrated at Mumbai. The detention order was issued at his residential address at Mumbai directing that he be kept at .....

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ly lodged in Yerawada Central Prison, Pune, in compliance with the Detention Order by the Mumbai Police. Therefore, the mere fact that Shri Babel was served with the Detention Order at Jodhpur does not give the petitioner any right to invoke the jurisdiction of this Hon'ble Court. On the contrary and for the facts narrated above, it is most respectfully submitted that this Hon'ble Court be pleased to hold that it has no jurisdiction to entertain the petition in question and the same may .....

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lly incorporated as Clause (1)(A) by the Constitution (15th Amendment) Act, 1963 and by Constitution (42nd Amendment) Act, 1976 it was renumbered as Cl. (2). By the Amendment, it has been provided that the High Court within the territorial jurisdiction of which cause of action wholly or in part arises, shall exercise the power conferred by Clause (1) of Article 226 irrespective of whether the seat of Government or the Authority to which the writ is to be issued or residences of the persons claim .....

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ce of such person is not within those territories. 10. A bare reading of Cl. (2) of Article 226 would show that the jurisdiction of the High Court, to exercise powers under Article 226(1) may also depend upon the accrual of the cause of action wholly or in part within the territorial jurisdiction of that High Court. 11. In the present case, therefore, the crux of the matter is whether factual detention of the detenue within the territory of Rajasthan in execution of the detention order passed ou .....

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tate in which the detention physically takes place shall have jurisdiction to entertain petition challenging the detention. The learned Judges categorically observed at the end of para 6 of their Judgment as follows:- In this case, not only the order was served upon the detenue in Salem in Tamil Nadu his liberty was deprived in the same place and the grounds of detention were also served on him at the same place. Therefore, the essential act of detention physically happened in Tamil Nadu as far .....

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ail at Jaipur. These facts are undisputed. Their detention was continued under the fresh orders of detention issued under the provisions of the impugned Act. The detenus were not set at liberty on the expiry of the previous orders of detention passed under the Maintenance of Internal Security Act, 1971. Under their fresh orders of detention the detenus were kept in the Central Jail, Jaipur. Their initial detention at Baroda is continued. The effect of the impugned orders of detention is that the .....

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d) and (e) also indicate that this high Court has the jurisdiction to entertain these writ petitions under Article 226(1A) as a part of cause of action, namely, initial deprivation of liberty of the detenus took place within the territorial jurisdiction of this Court. 15. In Ramchand Santumal Bhatia v. Tarun Roy 1988 Cri LJ 641, a Division Bench of the Bombay High Court squarely dealing with the question of territorial jurisdiction held that the place where detenue is taken into custody and serv .....

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rnment of India then passed an Order of detention under the COFEPOSA. This order with the ground was served upon the detenue within the State of Maharashtra and she was then taken to Calcutta. This is how the matter reached the Bombay High Court on presentation of a pettion for issue of writ of Habeas Corpus. An argument was advanced in that case that as freedom of movement throughout India guaranteed by Article 19(1) of the Constitution of India was violated in detention matters all the High Co .....

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ence of the respondent or the place of accrual of cause of action. It was pointed out that such a construction would defeat the very purpose of amendment incorporated in Clause (2) in Article 226 of the Constitution. The point was further elaborated in the following words 1988 Cri LJ 641 at p. 646: The Delhi Court in Smt. Ramadevi v. K.A. Gafoor, ILR (1976) 1 Delhi 72considered a similar question at greater length. It went into the history leading to the Constitution (Fifteenth Amendment) Act, 1 .....

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ay result in some inconvenience to persons residing faraway from New Delhi who are aggrieved by some order of the Government of India as such, and that may be a reason for making a suitable constitutional amendment in Article 226. It was this view which led to the introduction of the measure known as the Constitution (Fifteenth Amendment) Act, 1963. The statements of objects and reasons to that Act showed that the then Punjab High Court was the only High Court having jurisdiction under Article 2 .....

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ase, it was further observed distinguishing the decision of the Supreme Court in State of Rajasthan v. Swaika Properties AIR 1985 SC 1289, as under 1988 Cri LJ 641 at p. 648: The analogy of the service of a notice in the above precedent does not appear to be apposite to service of a detention order, when the latter is challenged in a habeas corpus petition. In that case, the actionable cause had arisen antecedent to the service of the notice. In the latter case, the making of the order creates n .....

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aling with a single Bench decision of the Punjab & Haryana High Court in Ujagar Singh v. State of Punjab 1987 Cri LJ 958,, it was observed that the convenience of the detaining authority which has to answer such petitions is not an insignificant factor and the conclusion was drawn in the following words 1988 Cri LJ 641 : To sum up, Ulhasnagar being the place where the detenue was taken into custody and where she was served with the order and grounds of detention, suffice to attract the juris .....

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;s case 1988 Cri LJ 641 (Bombay) (supra), the detenues were arrested at Amritsar for commission of offence. They were transferred after their arrest at Amritsar to be tried by the Additional Special Court al Jodhpur. A writ petition was filed in Punjab and Haryana High Court for production of detenues before it and for judicial enquiry in to detenues before it and for judicial enquiry in to the incident which took place in Jodhpur Jail and for transfer of the detenues back to somewhere in the St .....

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to the petitioner and therefore, the petition was not entertained by the Punjab & Haryana High Courts. 17. In the other case Manjit Singh Dhingra v. Union of India ILR (1987) 2 P& H61, again Hon'ble Justice Shri M.M. Punchhi (as His Lordship Hon'ble the Chief Justice of India, then was) held that when a person sought to be detained in compliance with an order of detention passed by a State Government, challenge to the detention Order should not be entertained by any other High C .....

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grant adequate relief to the petitioner and he should seek remedy there. In deciding the question of jurisdiction which is before us, these two rulings of the Punjab and Haryana High Court would render little help. 18. In Sewa Ram v. Union of India (D.B. Civil Habeas Corpus Petition No. 1243/97), decided on August 27, 1997, a Division Bench of this Court (Hon'ble Mr. Justice P.C. Jain and Hon'ble Mr. Justice Mohd Yamin), held that factually arrest of the person in execution of the deten .....

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iction of the Court having territorial jurisdiction over the place where the detention order was passed or he could have applied for pre-arrest bail to the concerned Court. The Court further observed as follows :- Since the detenue was invested with the actionable cause of action when the detention order was passed, the invoking of the doctrine of accrual of part of cause of action is totally misconceived and legally unfounded. Part of cause of action, in fact, emanates from the whole cause of a .....

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l jurisdiction. We, therefore, hold that the whole of cause of action accrued as soon as the detention order was made. The subsequent arrest of the detenue in the execution of the detention order is of no consequence. It cannot determine the territorial jurisdiction. We, therefore, negative the contention of the petitioner that part of cause of action accrued to the detenue in Rajasthan. 19. Certain other rulings were also cited for the proposition that the petitioner could not have challenged t .....

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ionary (Fifth edition), it has been defined as under : Cause of action. The fact or facts which give a person a right to judicial relief. The legal effect of an occurrence in terms of redress to a party to the occurrence. A situation or state of facts which would entitle party to sustain action and give him right to seek a Judicial remedy in his behalf. Thompson v. Zurich Ins. Co., D.C. Minn, 309 F. Supp. 1178, 1181. Fact, or a state of facts, to which law sought to be enforced against a person .....

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the plaintiff to succeed every fact which the defendant would have a right to traverse. Cooke v. Gill, 873 LR SCP 107. The expression means every fact which, if traversed, would be necessary for the plaintiff to prove in order to support his right to the Judgment of the Court: AIR 1949 PC 78 (86), W.W. Joshi v. State of Bombay AIR 1959 Bombay 363, 61 Bom LR 829. In Mulla's CPC (Fifteenth Edition), it has been described in following terms: Cause of action, "A cause of action"' .....

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material facts on which it is founded. It does not comprise evidence necessary to prove; such facts, but every fact necessary for the plaintiff to prove to enable him to obtain a decree. Everything ;which if not proved would give the defendant a right to an immediate Judgment must be part of the cause of action. It is, in other words, a bundle of facts which it is necessary for the plaintiff to prove in order to succeed in the suit. But it has no relation whatever to the defence which may be se .....

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detention order supplies the whole and indivisible cause of action which cannot be allowed to be split and since the "part of the cause of action in fact emanates from the whole cause of action it would not supply an independent right to action/There is no legal foundation for such a view which militates against the very concept of part of cause of action. If parts of cause of action have to merge with the whole and on that basis right of action is to be denied, the words cause of action wh .....

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op anticipated 'forum shopping' by the detenus we cannot give the detaining authorities undue liberty to choose their own forum by passing the detention order at a place far away from the theatre of alleged illegal activities as well as the place of apprehension and detention causing great harassment and inconvenience to the detenue, his family and friends. If detention has to retain its preventive character and is not to be allowed to become punitive in practice, if not in law, we have .....

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be applied to decide whether this Court would have territorial jurisdiction to entertain a petition or not, is as to whether cause of action wholly or in part has arisen within the territories of the State of Rajasthan or not. If the cause of action wholly or in part has arisen within the territories of the State of Rajasthan then this Court shall have jurisdiction to entertain a petition under Article 226 of the Constitution of India. 23. We are of the opinion that service of the detention ord .....

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