VIJAYSINH @ GATTI PRUTHVISINH RATHOD Vs. STATE OF GUJARAT
LAWS(GJH)-2014-12-151
HIGH COURT OF GUJARAT
Decided on December 03,2014

Vijaysinh @ Gatti Pruthvisinh Rathod Appellant
VERSUS
STATE OF GUJARAT Respondents

JUDGEMENT

PER : MR. M. R. SHAH, J. : - - (1.) All these petitions are placed before the Larger Bench pursuant to the order dated 17.09.2014 passed by the learned Single Judge directing to refer the matter to the Larger Bench having observed and found that there are diverse judgments by the different Division Benches of this Court i.e. in the case of Mancharam Samaram Meena v. State of Gujarat and Ors. reported in 2013(2) GLH 128 and another decision dated 23.12.2013 of the Division Bench of this Court in the case of Chirag @ Vijay Bhikhubhai Chtrabhuj v. State of Gujarat and 2 Ors. rendered in Letters Patent Appeal No. 1195/2013. [1.1] At the outset it is required to be noted that as such the learned Single Judge in referring order has observed that there are divergent judgments/views by different Division Benches of this Court in the aforesaid decisions with respect to the maintainability of the petition under Article 226 of the Constitution of India at the preexecution stage. There are some observations made by the learned Single Judge on the divergent views by the Division Bench of this Court in the case of Mancharam Samaram Meena (Supra) and Chirag @ Vijay Bhikhubhai Chtrabhuj (Supra) on the issue that while considering the petition under Article 226 of the Constitution of India by the detenu at the preexecution stage whether it is bounden duty of the Court to call for the order of detention for its own perusal to satisfy itself as to the validity of the detention order and whether in all cases the Court is required to call for the detention order and grounds for detention for its own perusal and to independently decide whether it is a fit case to quash the detention order at a preexecution stage or not? 2. In the case of Mancharam Samaram Meena (Supra), the Division Bench of thisCourt has observed and held that the learned Single Judge while considering the petition challenging the order of detention on preexecution stage is not required to call for the relevant files and the grounds of detention to satisfy at the preexecution stage that the order of detention is sustainable or not and it is further observed and held that such an exercise is wholly impermissible and beyond the jurisdiction of High Court at preexecution stage. The Division Bench in the aforesaid case has dismissed the petition challenging the order of detention at preexecution stage in absence of the order of detention and the grounds of detention by further observing that the detenu at that stage has no right to call upon the State to produce the same. [2.1] However, in the subsequent decision, another Division Bench in the case of Chirag @ Vijay Bhikhubhai Chtrabhuj (Supra) has taken a contrary view and it is observed and held that it is bounden duty of the Court to call for the order of detention for its own perusal to satisfy itself as to the validity of the detention order. The Division Bench in the subsequent decision by remanding the matter to the learned Single Judge has directed to decide the petition afresh after calling for the detention order and grounds for detention for its own perusal and to independently decide whether it is a fit case to quash the detention order at preexecution stage or not. Thus, considering the aforesaid two decisions of two Division Benches of this Court, conflict in both the decisions seem to be whether at preexecution stage when the order of detention is challenged, the Court is bound/obliged to call for the record and the order of detention and the grounds of detention to satisfy itself at preexecution stage so as to satisfy itself as to the validity of the detention order and to independently decide whether this is a fit case to quash the detention order at a preexecution stage or not. 3. Learned Advocates appearing on behalf of respective parties have also submitted that there are divergent views by two Division Benches of this Court in the aforesaid two decisions on the aforesaid issue. Under the circumstances, we are required to consider the aforesaid diverse judgments by the aforesaid two different decisions of the Division Benches of this Court in the case of Mancharam Samaram Meena (Supra) and Chirag @ Vijay Bhikhubhai Chtrabhuj (Supra) whether at preexecution stage when the order of detention is challenged, the Court is bound/obliged to call for the record and the order of detention and the grounds of detention to satisfy itself at preexecution stage so as to satisfy itself as to the validity of the detention order and to independently decide whether this is a fit case to quash the detention order at a preexecution stage or not. Even on considering the aforesaid two decisions of the Division Bench of this Court in the case of Mancharam Samaram Meena (Supra) and Chirag @ Vijay Bhikhubhai Chtrabhuj (Supra), we are of the opinion that there are diverse views/judgments on the aforesaid issue i.e. whether at preexecution stage when the order of detention is challenged, the Court is bound/obliged to call for the record and the order of detention and the grounds of detention to satisfy itself at preexecution stage so as to satisfy itself as to the validity of the detention order and to independently decide whether this is a fit case to quash the detention order at a preexecution stage or not. 4. Shri B. B. Naik, learned Senior Advocate, Shri Vijay Patel, Shri Sudhanshu Patel and Shri Hardik Dave, learned Advocates have made submissions on behalf of their respective detenu -original petitioners in some of the petitions and Shri H.L. Jani, learned Government leader appearing with Shri Rakesh Patel, learned Assistant Government Pleader on behalf of the State and the detaining Authorities and they have made elaborate submissions on the aforesaid issue. [4.1] Learned Advocates appearing on behalf of respective parties have vehemently submitted that as such though the learned Single Judge in the referring order has observed that there are diverse views by the aforesaid two different Division Benches of this Court in the case of Mancharam Samaram Meena (Supra) and Chirag @ Vijay Bhikhubhai Chtrabhuj (Supra) with respect to the maintainability of the petition at preexecution stage. It is submitted that, however in view of the decisions of the Hon'ble Supreme Court in the case of Additional Secretary to the Government of India and Ors. v. Smt. Alka Subhash Gadia and Anr. reported in 1992 (Suppl.) (1) SCC 496 and the decision of the Hon'ble Supreme Court in the case of Deepak Bajaj v. State of Maharashtra and Anr. reported in (2008)16 SCC 14 and another decision of the Hon'ble Supreme Court in the case of Subhash Popatlal Dave v. Union of India and Anr. reported in (2012)7 SCC 533, it cannot be disputed that the petition challenging the order of detention at preexecution stage would be maintainable. It is submitted that however the Division Bench of this Court in the case of Mancharam Samaram Meena (Supra) has taken a view that unless and until the order of detention on the grounds of detention are not before the Court, the Court will not be in a position to consider the grounds of detention at preexecution stage and it is beyond the jurisdiction of the High Court to call for the relevant files and undertake the exercise to satisfy itself as to whether the order of detention is sustainable or not. It is submitted that in the aforesaid decision it is held that the detenu does not have copy of order of detention and grounds of detention, and therefore, he is no right to call upon the State to produce the same. It is further submitted by the learned Counsel appearing on behalf of the respective petitioners - detenu that however in the subsequent decision in the case of Chirag @ Vijay Bhikhubhai Chtrabhuj (Supra), another Division Bench has observed and held that it is the bounden duty of the Court to call for the order of detention and the grounds of detention for its own perusal to satisfy itself as to the validity of the detention order. It is further submitted by the learned Counsel appearing on behalf of the respective petitioners - detenu the subsequent Division Bench has rightly observed and held the aforesaid as, unless and until the order of detention and grounds of detention are before the Court for its perusal, it is not possible for the Court to test the detention order and come to the conclusion whether the detention order is sustainable or not. It is submitted that as rightly observed by the subsequent Division Bench in the case of Chirag @ Vijay Bhikhubhai Chtrabhuj (Supra) that the powers of the High Court under Article 226 of the Constitution of India and the Hon'ble Supreme Court under Article 32 of the Constitution of India are very wide and the Courts are invested with the power of review to ascertain whether the detention order passed by the detaining Authority, which is yet to be executed upon the detenu is legally tenable or not. It is further submitted that as such maintainability of the petition challenging the order of detention at preexecution stage is not res integra and is concluded by catena of decisions of the Hon'ble Supreme Court. It is submitted that once that is permissible, the aforesaid exercise to consider the legality and validity of the order of detention can be done only if the detention order along with the grounds of detention are made available to the Court for perusal. It is, therefore, submitted that the view taken by the Division Bench of this Court in the case of Mancharam Samaram Meena (Supra) that the exercise to call for the relevant files and the order of detention and grounds of detention by the Courts in exercise of powers under Article 226 of the Constitution of India, at preexecution stage is impermissible and beyond the jurisdiction of the High Court is not a correct view. [4.2] Shri B.B. Naik, learned Counsel appearing on behalf of one of the detenu has submitted that the powers of the High Court under Article 226 of the Constitution of India are very wide and cannot be restricted. It is submitted that in an appropriate case the High Court in exercise of powers under Article 226 of the Constitution of India may call for the relevant file and the order of detention and the grounds of detention so as to satisfy itself considering the averments in the petition and the grounds on which the order of detention is challenged at preexecution stage and to satisfy itself whether the order passed by the detaining Authority is sustainable or not. [4.3] It is further submitted by Shri Naik, learned Counsel appearing on behalfof one of the detenu and Shri Vijay Patel, learned Advocate appearing for some of the detenu that even in the case of Deepak Bajaj (Supra) and in the case of Subhash Popatlal Dave (Supra), the Hon'ble Supreme Court has observed and held that five grounds on which the order of detention at preexecution stage can be challenged as observed in the case of Smt. Alka Subhash Gadia (Supra) are illustrative and not exhaustive. [4.4] Making above submissions it is requested to answer the reference accordingly and to hold that in a petition under Article 226 of the Constitution of India challenging the order of detention at preexecution stage, the High Court shall/can call for the detention order and the grounds for detention for its own perusal and independently decide whether it is a fit case to quash the detention order at a preexecution stage or not. 5. On the other hand, Shri H.L. Jani, learned I/c. Government Pleader has vehemently submitted that the observations made by the subsequent Division Bench in the case of Chirag @ Vijay Bhikhubhai Chtrabhuj (Supra) that the Court is bound to and/or obliged to call for the original file, order of detention and the grounds for detention to satisfy itself whether at preexecution stage when the order of detention is challenged, the Court is bound/obliged to call for the record and the order of detention and the grounds of detention to satisfy itself at preexecution stage so as to satisfy itself as to the validity of the detention order and to independently decide whether this is a fit case to quash the detention order at a preexecution stage is correct or not, is not a correct view. It is submitted that as such it cannot be disputed that so far as the detenu is concerned, the detaining Authority is not obliged to serve the grounds of detention unless it is executed and the detenu also as a matter of right cannot ask for the grounds of detention at preexecution stage. In support of his above submissions, he has relied upon para 32 of the decision of the Hon'ble Supreme Court in the case of Smt. Alka Subhash Gadia (Supra) and the decision of the Hon'ble Supreme Court in the case of N. K. Bapna v. Union of India reported in (1992)3 SCC 512 and also the decision of the Hon'ble Supreme Court in the case of Subhash Muljimal Gandhi v. L. Himingliana and Anr. reported in (1994)6 SCC 14 and the decision of the Hon'ble Supreme Court in the case of State of Maharashtra and Ors. v. Bhaurao Punjabrao Gawande reported in (2008)3 SCC 613. 6. It is further submitted by Shri Jani, learned I/c. GP appearing on behalf of the State/detaining Authority that even in the aforesaid decisions it is held by the Hon'ble Supreme Court that interference by the Court of law at the stage of predetention/preexecution must be an exception rather than a Rule and such an exercise can be undertaken by a Writ Court with extreme care, caution and circumspection. It is submitted that it is held that a detenu cannot ordinarily seek a Writ of Mandamus if he does not surrender and is not served with an order of detention and the grounds in support of such order. [6.2] It is further submitted that therefore the detenu cannot ask for a Writ of Mandamus and/or may pray to direct the detaining Authority to produce the relevant file/order of detention, grounds of detention etc. at predetention/preexecution stage. [6.3] It is further submitted by Shri Jani, learned I/c. GP that so far as the reliance placed upon the decision of the Hon'ble Supreme Court in the case of Deepak Bajaj (Supra) by the learned Counsel appearing on behalf of the petitioner is concerned, as such the order of detention was before the Hon'ble Supreme Court and was produced by the detenu himself. It is submitted that therefore, in the case before the Hon'ble Supreme Court in the case of Deepak Bajaj (Supra), there was no such issue/controversy which is required to be considered by this Court i.e. whether at preexecution stage when the order of detention is challenged, the Court is bound/obliged to call for the record and the order of detention and the grounds of detention to satisfy itself at preexecution stage so as to satisfy itself as to the validity of the detention order and to independently decide whether this is a fit case to quash the detention order at a preexecution stage or not. [6.4] Making above submissions and relying upon above decisions, it is requested to answer the reference accordingly by holding that the view taken by the Division Bench of this Court in the case of Mancharam Samaram Meena (Supra) is a correct view and it is requested to hold that (a) the Court while exercising the powers under Article 226 of the Constitution of India in a petition challenging the order of detention at preexecution stage is not obliged and/or required to call for the original file, order of detention and the grounds of detention and (b) the detenu cannot pray for a Writ of Mandamus directing the detaining Authority to call for the original file, the order of detention and grounds for detention an no such Writ of Mandamus can be issued by the Court in exercise of powers under Article 226 of the Constitution of India directing the detaining Authority to produce the file, order of detention and grounds for detention at predetention/preexecution stage. 7. Heard learned Advocates appearing for respective parties at length. As observed hereinabove, considering the aforesaid two decisions of two Division Benches of this Court in the case of Mancharam Samaram Meena (Supra) and Chirag @ Vijay Bhikhubhai Chtrabhuj (Supra), it appears that there are different/divergent views whether at preexecution stage when the order of detention is challenged, the Court is bound/obliged to call for the record and the order of detention and the grounds of detention to satisfy itself at preexecution stage so as to satisfy itself as to the validity of the detention order and to independently decide whether this is a fit case to quash the detention order at a preexecution stage or not. [7.1] While considering the aforesaid issue, few decisions of Hon'ble Supreme Court on the point/s are required to be referred to and considered. [7.2] In the case of Smt. Alka Subhash Gadia (Supra), in paras 30, 32 and 35, the Hon'ble Supreme Court has observed and held as under : - "30. As regards his last contention, viz., that to deny a right to the proposed detenu to challenge the order of detention and the grounds on which it is made before he is taken in custody is to deny him the remedy of judicial review of the impugned order which right is a part of the basic structure of the Constitution, we find that this argument is also not well merited based as it is on absolute assumptions. Firstly, as pointed out by the Authorities discussed above, there is a difference between the existence of power and its exercise. Neither the Constitution including the provisions of Article 22 thereof nor the Act in question places any restriction on the powers of the High Court and this Court to review judicially the order of detention. The powers under Articles 226 and 32 are wide, and are untrammelled by any external restrictions, and can reach any executive order resulting in civil or criminal consequences. However, the Courts have over the years evolved certain selfrestraints for exercising these powers. They have done so in the interests of the administration of justice and for better and more efficient and informed exercise of the said powers. These selfimposed restraints are not confined to the review of the orders passed under detention law only. They extend to the orders passed and decisions made under all laws. It is in pursuance of this selfevolved judicial policy and in conformity with the selfimposed internal restrictions that the Courts insist that the aggrieved person first allow the due operation and implementation of the concerned law and exhaust the remedies provided by it before approaching the High Court and this Court to invoke their discretionary extraordinary and equitable jurisdiction under Articles 226 and 32 respectively. That jurisdiction by its very nature is to be used sparingly and in circumstances where no other efficacious remedy is available. We have while discussing the relevant Authorities earlier dealt in detail with the circumstances under which these extraordinary powers are used and are declined to be used by the Courts. To accept Shri Jain's present contention would mean that the Courts should disregard all these time honoured and welltested judicial selfrestraints and norms and exercise their said powers, in every case before the detention order is executed. Secondly, as has been rightly pointed out by Shri Sibal for the appellants, as far as detention orders are concerned if in every case a detenu is permitted to challenge and seek the stay of the operation of the order before it is executed, the very purpose of the order and of the law under which it is made will be frustrated since such orders are in operation only for a limited period. Thirdly, and this is more important, it is not correct to say that the Courts have no power to entertain grievances against any detention order prior to its execution. The Courts have the necessary power and they have used it in proper cases as has been pointed out above, although such cases have been few and the grounds on which the Courts have interfered with them at the preexecution stage are necessarily very limited in scope and number, viz., where the Courts are prima facie satisfied (i) that 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 which passed it had no Authority to do so. The refusal by the Courts to use their extraordinary powers of judicial review to interfere with the detention orders prior to their execution on any other ground does not amount to the abandonment of the said power or to their denial to the proposed detenu, but prevents their abuse and the perversion of the law in question. 32. This still leaves open the question as to whether the detenu is entitled to the order of detention prior to its execution at least to verify whether it can be challenged at its preexecution stage on the limited grounds available. In view of the discussion aforesaid, the answer to this question has to be firmly in the negative for various reasons. In the first instance, as stated earlier, the Constitution and the valid law made thereunder do not make any provision for the same. On the other hand, they permit the arrest and detention of a person without furnishing to the detenu the order and the grounds thereof in advance. Secondly, when the order and the grounds are served and the detenu is in a position to make out prima facie the limited grounds on which they can be successfully challenged, the Courts, as pointed out earlier, have power even to grant bail to the detenu pending the final hearing of his petition. Alternatively, as stated earlier, the Court can and does hear such petition expeditiously to give the necessary relief to the detenu. Thirdly, in the rare cases where the detenu, before being served with them, learns of the detention order and the grounds on which it is made, and satisfies the Court of their existence by proper affirmation, the Court does not decline to entertain the writ petition even at the preexecution stage, of course, on the very limited grounds stated above. The Court no doubt even in such cases is not obliged to interfere with the impugned order at that stage and may insist that the detenu should first submit to it. It will, however, depend on the facts of each case. The decisions and the orders cited above show that in some genuine cases, the Courts have exercised their powers at the preexecution stage, though such cases have been rare. This only emphasises the fact that the Courts have power to interfere with the detention orders even at the preexecution stage but they are not obliged to do so nor will it be proper for them to do so save in exceptional cases. Much less can a detenu claim such exercise of power as a matter of right. The discretion is of the Court and it has to be exercised judicially on well settled principles. 35.As has been pointed out at the outset, after this order, the appellants took the plea that although they were willing to produce the order of detention and the grounds of detention for the perusal of the Court, they cannot furnish them to respondent 1, unless, as required by the Act, the detenu first submits to the impugned order. The High Court thereupon issued the contempt notice by its order dated June 30, 1989. For the reasons discussed above, we are of the view that both the orders of the High Court directing the appellants to furnish to the detenu or to respondent 1 or her Counsel the order of detention, the grounds of detention and the documents supporting them as well as the contempt notice of June 30, 1989 are clearly illegal and unjustified and they are hereby quashed. Both the appeals are accordingly allowed." [7.3] In the case of N.K. Bapna (Supra), after considering the decision of the Hon'ble Supreme Court in the case of Smt. Alka Subhash Gadia (Supra), in para 4, the Hon'ble Supreme Court has observed and held as under : - "4. It is now well settled that, even in a case of preventive detention, it is not necessary for the proposed detenu to wait till a detention order is served from him before challenging the detention order. It is true that the Constitution of India, which permits preventive detention requires the detaining Authorities to serve the grounds of detention within a prescribed period after the detention order is served on the detenu. It does not envisage any disclosure of the grounds of detention prior to the service of the detention order on the detenu. To apprise the detenu in advance of the grounds on which he is proposed to be detained may well frustrate the very purpose of the law. On the other hand, to insist that no order of detention can be challenged until actual detention in pursuance thereof takes place might irretrievably prejudice the rights of proposed detenus in certain situations. Thus, the conflicting claims of the State and the fundamental right of a citizen need to be reconciled and the limitations, if any, precisely enuciated. This has been done by the recent decision of this Court in The Additional Secretary to the Government of India and Ors. v. Smt. Alka Subhash Gadia and Ors., 1991 (1) J.T. (S.C.) 549. The real question of law that fell for consideration before the Court in that case was whether the 274 detenu or anyone on his behalf is entitled to challenge the detention order without the detenu submitting or surrendering to it and if so in what type of cases. As a corollary to this question, the incidental question that had to be answered was whether the detenu or the petitioner on his behalf, is entitled to the detention order and the grounds on which the detention order is made before the detenu submits to the order. The first question was answered by saying that the Courts have power to interfere even before the detention order is served or the detention is effected but that such power will be exercised sparingly and in exceptional cases of the type enunciated therein. The Court observed : - "It is not correct to say that the Courts have no power to entertain grievances against any detention order prior to its execution. The Courts have the necessary power and they have used it in proper cases as has been pointed out above, although such cases have been few and the grounds on which the Courts have interfered with them at the preexecution stage are necessarily very limited in scope and number, viz., where the Courts are prima facie satisfied (i) that 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 which passed it had no Authority to do so. The refusal by the Courts to use their extraordinary powers of judicial review to interfere with the detention orders prior to their execution on any other ground does not amount to the abandonment of the said power or to their denial to the proposed detenu, but prevents their abuse and the perversion of the law in question." On the second question, the Court had this to say : - "In view of the discussion aforesaid, the answer to this question has to be firmly in the negative for various reasons. In the first instance, as stated earlier, the Constitution and the valid law made thereunder do not make any provision for the same. On the other hand, they permit the arrest and detention of a person without furnishing to the detenu the order and the grounds thereof in advance. Secondly, when the order and the grounds are served and the detenu is in a position to make out prima facie the limited grounds on which they can be successfully challenged, the Courts, as pointed out earlier, have power even to grant bail to the detenu pending the final hearing of his petition. Alternatively, as stated earlier, the Court can and does hear such petition expeditiously to give the necessary relief to the detenu. Thirdly, in the rare cases where the detenu, before being served with them, learns of the detention order and the grounds on which it is made, and satisfies the Court of their existence by proper affirmation, the Court does not decline to entertain the writ petition even at the preexecution stage, of course, on the very limited grounds stated above. The Court no doubt even in such cases is not obliged to interfere with the impugned order at that stage and may insist that the detenu should first submit to it. It will, however, depend on the facts of each case. The decisions and the orders cited above show that in some genuine cases, the Courts have exercised their powers at the preexecution stage, though such cases have been rare. This only emphasises the fact that the Courts have power to interfere with the detention orders even at the preexecution stage but they are not obliged to do so nor will it be proper for them to do so save in exceptional cases. Much less can a detenu claim such exercise of power as a matter of right. The discretion is of the Court and it has to be exercised judicially on willsettled principles." [7.4] Thereafter in the case of Subhash Muljimal Gandhi (Supra), in paras 8 to 10, the Hon'ble Supreme Court has observed and held as under : - "8. The question as to whether a detenu or anyone on his behalf is entitled to challenge an order of detention without the detenu submitting or surrendering to it and, if so, what will be the nature, scope and extent of such challenge came up for consideration before a threeJudge Bench of this Court, of which one of us (Sawant J.) was a member, in Addl. Secy., Govt. of India v. Alka Subhash Gadia (1992 Supp(1) SCC 496. The Court, after striking a balance between the competing claims of the individual to his liberty and of the State to detain an individual to safeguard the interest of the society and on a conspectus of the decisions of this Court and of different High Courts on the subject, answered the question with the following words: (SCC pp. 52021, para 30) "... it is not correct to say that the Courts have no power to entertain grievances against any detention order prior to its execution. The Courts have the necessary power and they have used it in proper cases as has been pointed out above, although such cases have been few and the grounds on which the Courts have interfered with them at the preexecution stage are necessarily very limited in scope and number, viz., where the Courts are prima facie satisfied (i) that 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 which passed it had no Authority to do so. The refusal by the Courts to use their extraordinary powers of judicial review to interfere with the detention orders prior to their execution on any other ground does not amount to the abandonment of the said power or to their denial to the proposed detenu, but prevents their abuse and the perversion of the law in question." (emphasis supplied). 8. Mr Jethmalani first contended that the five contingencies referred to in the abovequoted passage were not exhaustive but illustrative as there might well be other contingencies in which preexecution challenge to the order of detention would be permitted. In elaborating his contention Mr Jethmalani submitted that in the case in hand there were sufficient materials to prove that the Customs Officers concocted a false case of smuggling against the appellant after beating him, keeping him in illegal custody for three days and coercing him to make a confessional statement. In support of this submission, Mr Jethmalani first drew our attention to the report of the doctor of the Jail Hospital submitted on 2 -6 -1990 to the Chief Metropolitan Magistrate regarding medical examination of the appellant which indicates that the doctor found some bruises and abrasions on his person and he complained of pain on his body. Mr Jethmalani then drew our attention to the fact that though the appellant was apprehended in the early hours of 22 -5 -1990 and was thus constitutionally and statutorily required to be produced before the nearest Magistrate latest by 23 -5 -1990 he was kept unlawfully detained till 25 -5 -1990 when the customs Authorities produced him in Court. 9. Mr Jethmalani submitted that as these facts unmistakably demonstrated the misuse and abuse of extraordinary constitutional powers by the State machinery this Court would not allow the liberty of a victim of exercise of such powers to be taken away even if the parameters mentioned in Alka Subhash Gadia1 did not apply in this case. Even otherwise, Mr Jethmalani urged, the facts herein clearly made out a case for interference by this Court under category (iii) mentioned in the abovequoted passage in Alka Subhash Gadia I, namely that the impugned order was passed for a wrong purpose. 10. Having given our anxious consideration to the above contentions of Mr Jethmalani, we are unable to accept the same. In the passage, earlier quoted from Alka Subhash Gadia1, this Court has expressly laid down that the interference with detention orders at preexecution stage has to be limited in scope and number as mentioned therein. The Court has reiterated the same view as will be evident from the following further observations made in that case: (SCC p. 522, para 32) "......in the rare cases where the detenu, before being served with them, learns of the detention order and the grounds on which it is made, and satisfies the Court of their existence by proper affirmation, the Court does not decline to entertain the writ petition even at the preexecution stage, of course, on the very limited grounds stated above." (emphasis supplied)" [7.5] Thereafter the decision of the Hon'ble Supreme Court in the case of Smt. Alka Subhash Gadia (Supra) again came to be considered by the Hon'ble Supreme Court in the case of Sayed Taher Bawamiya v. Joint Secretary to the Government of India reported in (2000)8 SCC 630 and paras 6 and 7, the Hon'ble Supreme Court has observed and held as under : - "6. This Court in Alka Subhash Gadia case was also concerned with a matter where the detention order had not been served but the High Court had entertained the petition under Article 226 of the Constitution. This Court held that equitable jurisdiction under Article 226 and Article 32 which is discretionary in nature would not be exercised in a case where the proposed detenu successfully evades the service of the order. The Court, however, noted that the Courts have the necessary power in appropriate cases to interfere with the detention order at the preexecution stage but the scope for interference is very limited. It was held that the Courts will interfere at the preexecution stage with the detention orders only after they are prima facie satisfied (i) that 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 which passed it had no Authority to do so. 7. As we see it, the present case does not fall under any of the aforesaid five exceptions for the Court to interfere. It was contended that these exceptions are not exhaustive. We are unable to agree with this submission. Alka Subhash Gadia case shows that it is only in these five types of instances that the Court may exercise its discretionary jurisdiction under Article 226 or Article 32 at the preexecution stage. The petitioner had sought to contend that the order which was passed was vague, extraneous and on irrelevant grounds but there is no material for making such an averment for the simple reason that the order of detention and the grounds on which the said order is passed has not been placed on record inasmuch as the order has not yet been executed. The petitioner does not have a copy of the same and therefore it is not open to the petitioner to contend that the nonexistent order was passed on vague, extraneous or on irrelevant grounds." [7.6] Thereafter, in the case of Bhaurao Punjabrao Gawande (Supra) in para 63, the Hon'ble Supreme Court has observed and held as under : - "63. From the foregoing discussion, in our judgment, the law appears to be fairly well settled and it is this. As a general rule, an order of detention passed by a Detaining Authority under the relevant 'preventive detention' law cannot be set aside by a Writ Court at the preexecution or prearrest stage unless the Court is satisfied that there are exceptional circumstances specified in Alka Subhash Gadia. The Court must be conscious and mindful of the fact that this is a 'suspicious jurisdiction' i.e. jurisdiction based on suspicion and an action is taken 'with a view to preventing' a person from acting in any manner prejudicial to certain activities enumerated in the relevant detention law. Interference by a Court of Law at that stage must be an exception rather than a rule and such an exercise can be undertaken by a Writ Court with extreme care, caution and circumspection. A detenu cannot ordinarily seek a writ of mandamus if he does not surrender and is not served with an order of detention and the grounds in support of such order." [8. It is true that in the subsequent decision in the case of Subhash Popatlal Dave (Supra), the Hon'ble Supreme Court has opined that five grounds mentioned in the case of Smt. Alka Subhash Gadia (Supra), on which the order of detention can be challenged at preexecution stage are illustrative and not exhaustive. However, the question as to on what other grounds the order of detention at preexecution stage can be challenged is not the subject matter/issue before us. The issue which this Bench is required to answer is observed hereinabove. [9. Having heard learned Advocates appearing on behalf of the respective parties and considering the aforesaid decisions of the Hon'ble Supreme Court and even considering the decision of the Division Bench of this Court in the case of Mancharam Samaram Meena (Supra) and the decision of another Division Bench in the case of Chirag @ Vijay Bhikhubhai Chtrabhuj (Supra), we are of the opinion that as there cannot be any controversy and/or dispute that as such the petition challenging the order of detention at predetention/preexecution stage would be maintainable on the grounds permissible. However, such powers are required to be exercised sparingly and in exceptional cases and on the grounds permissible under the law. We are of the opinion that the view taken by the Division Bench in the case of Mancharam Samaram Meena (Supra) that in a petition under Article 226 of the Constitution of India challenging the order of detention at preexecution/predetention stage the High Court has no jurisdiction at all to call for the original file, the order of detention and the grounds for detention and to undertake the exercise to satisfy, as to whether the order of detention is sustainable or not is impermissible and beyond the jurisdiction of the High Court, cannot be accepted. Similarly, even the view taken by the Division Bench in the case of Chirag @ Vijay Bhikhubhai Chtrabhuj (Supra) that while considering the challenge to order of detention at predetention/preexecution stage in a petition under Article 226 of the Constitution of India, it is the bounden duty of the Court and/or the Court is obliged to call for the order of detention for its own perusal to satisfy itself as to validity of the detention order also cannot be accepted. Considering the decisions of the Hon'ble Supreme Court referred to hereinabove and the powers of the High Court under Article 226 of the Constitution of India are very wide and once it is held that the petition at predetention/preexecution stage is maintainable on the ground which may be available under the law, in an appropriate case being made out on the basis of the averments and the grounds set aside in the memo of petition, the Court in exercise of powers under Article 226 of the Constitution of India and so as to satisfy the legality and validity of the order of detention on the grounds which may be available at the predetention/preexecution stage, the Court may in its discretion and subject to its satisfaction call for the relevant file/order of detention/grounds for detention at preexecution stage, however such power shall be exercised sparingly and in exceptional cases and such discretion is to be exercised judicially on well settled principles. However, in all cases the Court is not obliged to do so and undertake such exercise of calling the original file, orderof detention and grounds of detention. Similarly, even the detenu cannot claim such exercise of power of calling the order of detention, grounds of detention at predetention/preexecution stage as a matter of right. It is purely discretion of the Court to exercise it's jurisdiction. [9.1] The sum and substance of the aforesaid discussion would be that in a petition under Article 226 of the Constitution of India challenging the order of detention at predetention/preexecution stage as such the Court is not obliged and/or bound to call for the original file, order of detention and the grounds for detention to satisfy itself whether the order of detention is sustainable or not. However, in an appropriate case being made out on the basis of the averments on affidavit and on the grounds set out in the memo of petition, the Court in its discretion would have jurisdiction to call for the original file, order of detention and grounds for detention so as to satisfy itself the challenge to the order of detention at preexecution stage on the grounds which may be available under the law at the predetention/preexecution stage, however such powers may be exercised in exceptional and rare cases and such exercise can be undertaken by a Writ Court with extreme care, caution and circumspection. At the same time, in a petition under Article 226 of the Constitution of India challenging the order of detention at preexecution stage, the detenu as a matter of right cannot seek a Writ of Mandamus directing the detaining Authority to produce the original file, order of detention and grounds of detention as otherwise also, as observed by the Hon'ble Supreme Court in catena of decisions, the detenu is not entitled to the grounds of detention unless the order of detention is served and executed upon the detenu. [10. The Reference is answered accordingly. Now, the Registry may place the matters before the learned Single Judge as per the roster, to be decided in accordance with law. PER : HON'BLE MR. JUSTICE JAYANT PATEL : (Supplementing) 1.I had the benefit to go through the reasons recorded by my Learned Brother, M. R. Shah, J., but I find it proper to supplement separate reasons as under : - (i) The factual aspects and the submissions made by the learned Advocates appearing for both the sides need not be repeated so as not to burden the record, unless it is found proper to make addition therein, as stated herein after. (ii) The reasons recorded by the learned Single Judge, leading him to refer the matter to the Larger Bench can be found at paragraph 17 of the referral order, which reads as under : - "17. Therefore, though some of such orders of rejecting the petitions at pre - execution stage have been quashed and set aside by division bench of this Court in LPA No. 1195 of 2013 between Chirag @ Vijay Bhikhubhai Chitrabhuj v. State of Gujarat, if we perused the judgment of LPA No. 1195 of 2013 all some other judgments with judgment in case of Manchharam Samaram Meena v. State of Gujarat reported in 2013 (2) GLH 128 it becomes clear that there are two different views regarding maintainability of such petitions at pre - execution stage by two different division benches of this High Court. In background of such diverse views of two different division benches of this High Court, I am of the opinion to take help of the provisions of Rule 6 of the Gujarat High Court Rules, 1993, which reads as under : - "6. Powers of Chief Justice to order hearing by a larger Bench. - Notwithstanding anything contained in these rules, the Chief Justice may by a special or general order direct that any matter or class of matters be placed before a Division Bench or a Special Bench of two or more Judges." (Emphasis supplied)
(2.) The aforesaid shows that the learned Single Judge found that there are two different views regarding maintainability of the petitions for challenging the order of detention at preexecution stage by two different Benches of this Court and, therefore, the present reference.
(3.) In order to trace different views of the two Division Benches of this Court in the case of Chirag @ Vijay Bhikhubhai Chitrabhuj v. State of Gujarat (supra) and in the case of Manchharam Samaram Meena v. State of Gujarat (supra), we may be required to examine the reasons recorded therein.;


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