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Abdul Karieem Versus Commissioner and Secretary to Government and Ors.

1994 (3) TMI 393 - KERALA HIGH COURT

O.P. (H.C.) No. 2242 of 1994-B - Dated:- 21-3-1994 - M. Jagannadha Rao and K.G. Balakrishnan For the Appellant: M. Ajay, Adv. For the Respondents: Cyriac Joseph, Addl. Adv. General and Lal George, Adv. for Respondents 1, 2 and 4 and K.P.G. Menon, Addl. Central Govt. Standins Counsel for 3rd Respondent JUDGMENT M. Jagannadha Rao, C.J. 1. This Writ Petition is filed for the issue of a writ of Habeas Corpus by the brother of the detenu, one C.K. Moosa. The writ Petition was filed on 14th February 1 .....

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for illegal custody and it is also stated that the detenu 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 deten .....

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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 Nadapuram-Badagara on 9th January 1990 and six gold biscuits and three gold pieces were recovered from inside a washing machine carried in the said jeep. The detenu was travelling in the jeep. On 10th January 1990, a statement was recorded from the detenu. .....

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had intercepted him and the Ors. accompanying him. 5. Learned Government Pleader has stated from the case record that the Additional Chief Judicial Magistrate, Ernakulam, had earlier granted conditional bail on 17th January 1990, one of the conditions being that detenu must appear before the Superintendent, S.C.P. Unit, Cannanore, on every Wednesday, three times. It is stated that this order was later violated. Government of Kerala issued an order on 5th May 1990 (No. 12583/SSA4/90/Home, under .....

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minal Procedure on 16th March 1991. The detenu filed Crl. M.C. No. 206 of 1991 in the High Court challenging the said proceedings under Section 7(1) and obtained stay relying on the order allegedly issued by the Calcutta High Court. The High Court disposed of the Crl. M.C. on 18th February 1992 asking the detenu to bring to the notice of the Additional Chief Judicial Magistrate about the order of the Calcutta High Court relied on subject to surrendering before the Additional Chief Judicial Magis .....

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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 w .....

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fidavit dated 24th January 1991 sent to. Government, the detenu did not also give any number of the Writ Petition or date. Government record of the case also contains a photocopy of a letter dated 13th November 1990 from one Subrato Talukdar, Advocate, Bar Association, Calcutta, stating that Justice U.C. Bannerjee of the Calcutta High Court granted stay of service of detention order and that his lordship directed 'that a copy of the Writ Petition be served upon all Respondents'. The said .....

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dated 8th March 1991, that they had requested Mr. N.A. Chowdhary, Additional P.P., High Court of Calcutta, to represent the State of Kerala and do the needful. The Kerala Government sent a message on 26th March 1991 (No. 1045/SSA-4/91/Home) to Mr. Chowdhary, Advocate to do the needful. Thereafter nothing has been heard either from the Calcutta High Court or from any of the Advocates at Calcutta or New Delhi. No notice or order has been received by the State Government or its officers from the Ca .....

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an order purporting to be the certified copy of the order dated 13th November 1990. We have kept it in a sealed cover alongwith letter of Delhi Advocate, Mr. Kochhar. 9. Meanwhile, the matter has been referred to the State 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 a .....

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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 Writ Petition is argued, not on the basis that there is anything wrong with the order of detention .....

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ember 1990 that the Calcutta High Court had passed an order on 13th November 1990 restraining the State from serving its detention order. The detenu, through a lawyer of Kerala, sent an affidavit dated 24th January 1991 that there was a stay order of the Calcutta High Court. He neither gave the number of the case nor even the date. He said he was trying to get a certified copy. One Subrato Talukdar, Advocate, Bar Association, Calcutta, sent a letter on 13th November 1990 stating that Calcutta Hi .....

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eceived any notice of the filing of the Writ Petition so far, in the last three years. There were only photocopies, of a certified copy. The order purporting to be a certified copy has been produced before us for the first time during arguments. It should not take three years for the detenu or his lawyer to have the so-called certified copy produced before the authorities. Having regard to the long delay in the production of the order purporting to be a certified copy, we are unable to accept th .....

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to 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 .....

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State of Kerala W.A. No. 1397/93 dated 12th November 1993. The rare situations where a stay order can be granted before execution of a detention order are: (i) where 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 to pass the order had no power to do .....

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r the first time after three years. We are, therefore, directing the State Government to ask the Crime Branch to investigate into the genuineness of the certified copy produced before us. Point No. 1 is decided against the Petitioner. 15. Point No. 2.- Learned Government Pleader submitted, with reference to decided rulings of the Supreme Court and of the High Courts that, even assuming that the Calcutta High Court had passed a stay order, the same is wholly without jurisdiction inasmuch as witho .....

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llegation of residence of the detenu within the jurisdiction of the Calcutta High Court can confer jurisdiction in the absence of any part of the cause of action arising within its jurisdiction. It is settled by various decisions of the Supreme Court and High Courts that mere residence of the Petitioner without more, cannot confer jurisdiction, if the Respondents are all outside 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 .....

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;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, Distric .....

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e of residence. This was on 13th November 1990. In fact, no document is produced before us to substantiate that he was employed in West Bengal, he had written letters therefrom or had sent letters therefrom nor has a ration card, nor has he taken any house on rent, etc. In fact, counsel before us, who is appearing for the detenu's brother, has no evidence in this behalf. 19. But, learned Counsel contends that 'apprehension' of the detenu that he will be arrested within the jurisdicti .....

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may apply to the High Court or the Court of Session....', and it was held that the person so accused may move the Court within whose jurisdiction he was apprehending arrest. It is not necessary for us to say, one way or the other, whether the view expressed therein is correct or not for we are not concerned with Section 438 Code of Criminal Procedure. It has been held by the Supreme Court that the provisions relating to 'bail' or 'parole' do not apply to preventive detention .....

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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 compell .....

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gle system exercise towards each other, whereby conflicts or interference with the process of each other is avoided, is called the principle of 'comity'. The said principle has perhaps no higher sanction than the utility which comes from concord (Covell v. Heyman 111 U.S. 176). The doctrine of 'comity' between courts teaches that one court should defer action on causes even if they are properly within its jurisdiction, until courts of Anr. jurisdiction, with concurrent powers and .....

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t command. It declares not how a case shall be decided, but how it may with propriety be decided (Baldwin v. Abercrombie Fiteh Co. C.C.A., N.Y. 228 F 895). But, there are exceptions. The rule may be changed by legislation or by the need to conform to the law of the State or if it is opposed to public policy. (Corbin v. Houlehan 61 A 131, 100 Me. 246, 70 L.R.A. 568). There are other situations too and we shall refer to one such, which is directly in point. 22. A question similar to the one before .....

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y 'comity'. (See: Words and Phrases, Permanent Edition, Vol. 7A, 4th Reprint, P. 383). 23. Therefore, while it is true that this Court must honour orders, if passed by other High Courts and cannot ignore them, and must leave the parties to go to the High Court which passed orders to have them vacated, the above principle must, of necessity, be initially applied to the High Court which first exercises jurisdiction to pass orders when no part of the cause of action arises before it. Otherw .....

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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 Cou .....

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igh Court. While we have great respect for the orders of the Calcutta High Court, we are compelled to make these observations so that the effectiveness of the Kerala High Court as a Court of competent jurisdiction is not offended, much less paralysed. While making these observations, we mean no disrespect to the Calcutta High Court. 27. Therefore, the State of Kerala can, in our opinion, certainly point out to us that it is not bound by the order dated 13th November 1990 purporting to have been .....

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