TMI Blog1994 (3) TMI 393X X X X Extracts X X X X X X X X Extracts X X X X ..... etenu must be produced before this Court and set at liberty by issuance of a writ of Habeas Corpus. 2. It may be noticed that this Writ Petition is not filed questioning the grounds of detention, or on any of the points normally raised in a COFEPOSA Habeas Corpus Application, but is filed solely basing upon an order allegedly passed by the Calcutta High Court on 13th November 1990 restraining the State of Kerala from executing an order of detention dated 28th February 1999 passed against the detenu. 3. While the detenu has stated that the detention order has been executed by the State Government on or about 8th December 1993, it is submitted before us by learned Government Pleader that the order has been executed on 13th December 1993 as stated earlier, the Writ Petition is argued by learned Counsel for the Petitioner only on the basis of the stay order allegedly granted by the Calcutta High Court on 13th November 1990 and not on any other grounds. 4. The following are the facts as revealed from the Writ Petition, and as per the statement of facts mentioned by learned Government Pleader. Jeep KRZ 7183 was stopped and searched by customs officers in Kerala on the road from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rders. 6. But, curiously so far, according to the learned Government Pleader, the State or its officers have not received the original order of the Calcutta High Court said to have been passed on 13th November 1990. The detenu has himself not produced the order before the Government, but got his affidavit filed on 24th January 1991 before the Government that an interim order was passed by the Calcutta High Court in a Writ Petition filed by the detenu that he (detenu) had not received a certified copy of the order, but was informed by his lawyer about it. Curiously, the detenu stated in the said affidavit as follows: I (detenu) have not received the copy of the order so far. It was informed by my advocate Mr. Rohit Kochhar that the certified copy of the order of the Court will be available to me shortly. I am prepared to produce the original order whenever it is received by me. It may be noticed that earlier to this, the said Advocate Sri Rohit Kochhar, Advocate, 84, Anand Lok, New Delhi, wrote to the Home Secretary, Kerala, District Superintendent of Police, Cannanore, Circle Inspector of Police, Koothuparamba on 15th November 1990 that the Calcutta High Court had grante ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te Advisory Board on 11th January 1994, and we are told that the Board gave personal hearing to the detenu, and that the Board has opined that there are sufficient grounds for the detention. The Government have since confirmed the detention under Section 8(f). 10. Two questions arise for consideration before us: (1) Whether this Court should take cognizance of an order purporting to be a certified copy of the stay order dated 13th November 1990 said to have been passed by the Calcutta High Court, especially when the original certified copy of order dated 13th November 1990 has not so far been produced either before the Government or before this Court, in the last more than three years and no notice or order has been served on the State Government from the Calcutta High Court so far? (2) Whether the State Government can contend before this Court that the detenu belongs to Kerala and is not ordinarily resident of West Bengal and even if he was a resident, the Calcutta High Court would not get any jurisdiction to entertain the Wait Petition and restrain service of detention order merely because of the residence of the detenu within West Bengal? 11. Point No. 1.- The Wr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it either before the Government or in the Crl. M.C. proceedings all these three years. The original order or summons of Court have not been received so far. We are indeed inclined to order an inquiry into the genuineness of the so-called certified copy produced before us. 14. It is true that Courts give credence to letters of Advocates or to orders purporting to be certified copies. But when in a period of three years or more neither the original nor the so-called certified copy had been produced before anybody, serious doubts are raised in our minds about the genuineness of the certified copy. Further, such stay orders are not normally passed as a matter of course in COFEPOSA cases. It is now settled by various decisions of the Supreme Court that only in very rare situations can any High Court grant such an order of stay of execution of detention order under COFEPOSA. See N.K. Bapna v. Union of India (1992) 3 S.C.C. 512' State of T.N. v. P.K. Shamsudeen (1992) 3 S.C.C. 523 and Addl. Secretary to Govt. of India v. Smt. Alka Subhash Gadia 1992 Supp. (1) S.C. 496. We have referred to these cases in Abdul Azees v. Union of India 1993 (1) K.L.T. 906 and in Mohiyil Vargh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de the jurisdiction of the Court. See Lt. Col. Khajoor Singh v. Union of India A.I.R. 1961 S.C. 532, State of Rajasthan v. M/s Swaika Properties A.I.R. 1985 S.C. 1289 , Bhagat Ram v. Union of India A.I.R. 1988 S.C. 740, Abdul Kafi Khan v. Union of India A.I.R. 1979 Cal. 354, State of U.P. v. Jana Sava Kariyalaya Ltd . A.I.R. 1994 Cal. 65, Rakesh v. Union of India A.I.R. 1988 All. 47, and Shashi Kant R. Chadha v. Union of India 1990 (49) K.L.T. 56 (Cal.). 17. The case in Shashi Kant R. Chadha v. Union of India 1990 (49) K.L.T. 56 (Cal.) is a case arising under the COFEPOSA Act directly and it was held that detenu's residence alone could not confer jurisdiction. We respectfully follow the above judgment of the Calcutta High Court which is directly in point. 18. As appears from the photocopy of the Writ Petition filed in the Calcutta High Court, as sent by the Advocate (original of which has not so far been served on the Kerala Government in three years), the Petitioner's brother (detenu) claimed to be employed in a restaurant called 'Sengupta Sweets' in Radha Nagar Road, P.S. Hirapur, District Badhuvan, West Bengal, while claiming to hail from Cann ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of action arises within the jurisdiction of that High Court. 20. If the law were to be otherwise, a person proposed to be detained by the State of Kerala or its Officers can escape to a place within the jurisdiction of any other High Court in India and claim that he is residing within the jurisdiction of that Court and is apprehending arrest by Kerala State and obtain orders. In fact, in such a case if persons proposed to be detained by the State of Kerala, go out and obtain such orders from other High Courts, the Kerala State will be compelled to fight the cases in all other States and the High Court of Kerala will have no place at all in these matters. 21. It is argued that if this Court makes any observations with regard to the jurisdiction of the Calcutta High Court, it may offend the general principle of 'comity of courts'. We shall therefore consider the basis of this principle of 'comity' of courts and the exception thereto. 21A. The forbearance which courts of co-ordinate jurisdiction administered under a single system exercise towards each other, whereby conflicts or interference with the process of each other is avoided, is called the principle of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urisdiction the entirety of the cause of action arises is to fold its hands and keep quiet, we must say that such a situation will lead to the very negation of the principle of comity of Courts. 24. It is clear therefore that before any High Court entertains a Writ Petition or passes an interim order which will effect a State or authority or person outside its jurisdiction, that Court must, in our opinion, first find out whether, apart from mere residence of its Petitioner and the apprehension of arrest, any part of the cause of action has arisen within its jurisdiction. We say this with great respect arid deference to other High Courts in our country. 25. Further, the case before us is not one where the State a case where the Petitioner who moved the Calcutta High Court earlier has got this writ petition filed on his behalf through his brother, If the same party or person representing him move different courts one after Anr. , the latter of the Courts here can, in our view, even ask the party to withdraw the earlier case filed elsewhere, before granting relief. 26. We are compelled to say all this for the following reasons. We find that in some cases of grave offences und ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
