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1994 (3) TMI 393

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 1994 for the issue of a writ of mandamus not to execute Ext. P-3 order of detention dated 28th February 1990 issued by the State of Kerala, pending continuance of Ext. P-1 stay order dated 13th November 1990, said to have been passed by the Calcutta High Court in Civil Order No. 12643 (W) of 1990; the original of which, according to the Respondents, is yet to be served on them by the Calcutta High Court. It is also prayed that a sum of ₹ 10 lakhs is to be paid as compensation to the detenu 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 .....

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28th February 1990, that the said detenu could not be apprehended till then, and that Government had reason to believe that he was concealing himself so that the detention ordered could not be executed. The Chief Judicial Magistrate, Cannanore, was requested to take action under Section 7(1)(a). The Additional Chief Judicial Magistrate issued a proclamation of warrant under Section 87 Code of Criminal 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 Magistrate, Tellicherry. It is stated that the said Court later dropped further proceedings on 21st March 1992, in view of the High Court's orders. 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 Hig .....

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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 Calcutta High Court. 7. The detention order was executed on 13th December 1993. Counsel for detenu sent a lawyer's notice dated 1st February 1994 alongwith a photocopy of the stay order of Calcutta High Court dated 13th November 1990. The State Government replied on 14th February 1994 requesting him to produce the 'original certified copy'. So far it has not been produced before the State Government. 8. But before us, learned Counsel for the Petitioner (brother of the detenu) produced 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 .....

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, during the arguments before us, an order purporting to be a certified copy has been produced. 13. But, the original order has not been served on the State or its officers so far, nor has the State received 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 the same. We have examined the same. We find some Court Fee Stamps affixed, and some seals and certification purporting to be of the Calcutta High Court. If indeed the Petitioner or the detenu were having the certified copy itself and not the photocopy thereof, there was no reason for not producing 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 in .....

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lcutta High Court had passed a stay order, the same is wholly without jurisdiction inasmuch as without part of the cause of action arising in Calcutta High Court jurisdiction, a writ or an order could not be issued by the High Court to the State of Kerala in respect of a COFEPOSA detention order passed by the State of Kerala. 16. By the Constitution (15th Amendment), High Courts obtained powers to entertain Writ Petitions against States or bodies outside its jurisdiction, provided any part of the cause of action arose within the jurisdiction of the Court. But the question is whether the mere allegation 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. M/s Swaika Properties A.I.R. 1985 S.C. 1289, Bhagat Ram v. Union of India A.I.R. 1988 S.C. 740, Ab .....

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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 cases. See: Poonam Lata v. M.L. Wadhawan A.I.R. 1987 S.C. 1383. We are of the view that for purposes of 'cause of action' under Article 226 of the Constitution of India, merely because a person resides within the jurisdiction of the High Court concerned and such person 'apprehends' arrest from a State or authority located outside the territory of the jurisdiction of the said High Court, it cannot be said that any part of the cause 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 .....

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plied for divorce in a State was a 'mere sojourner' and the opposite party was not domiciled in that State. The Court there had no jurisdiction to grant a decree on substituted service and it was held that such decree, even though authorised by that State's laws, was a mere nullity and (was not entitled to full faith and credit elsewhere as a matter of right) should not be recognised by '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. Otherwise, if the High Court within whose jurisdiction 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 Wr .....

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