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Tikam Chand Khatri Vs. Kamaleswar Bora and ors. - Court Judgment

LegalCrystal Citation
Subject;Criminal
CourtGuwahati High Court
Decided On
Judge
AppellantTikam Chand Khatri
RespondentKamaleswar Bora and ors.
Prior history
K. Lahiri, J.
1. This is an application under Section 482 read with Section 483 of the Criminal Procedure Code filed by Shri Tikam Chand Khatri, an Advocate of Tezpur, Darrang, Assam, now a detenu under the Maintenance of Internal Security Act, shortly termed as 'M. I. S. A.'
2. His allegation, inter alia, is that while in such detention he forwarded a complaint petition to the Sub-Divisional Magistrate (Judicial), Goalpara, dated January 13, 1976, through the Superintendent of District Jail,
Excerpt:
.....criminal court that he had been wrongfully detained and that there was no impediment in the way of criminal court to determine the question as to whether it was a rightful confinement or a wrongful confinement and that the criminal court had jurisdiction vested in it by law to determine that question and as such this court should make necessary direction to the court below to take cognizance of the offence and to try the offenders; he submitted that a similar question as to the legal right of detenu has been well considered by their lordships in a decision reported in 1964crilj217 (makhan singh tarsikka v. state of punjab), wherein their lordships have clearly indicated the remedy provided for a prisoner detained under similar circumstances. the use of the expressions 'to give effect to..........question as to whether such detention amounted to an offence of wrongful confinement or any other criminal offence. under these circumstances i hold that i have no jurisdiction vested in me by law to exercise my powers under section 482 or 483 of the criminal procedure code to direct any subordinate magistrate to take cognizance of the alleged offence as set forth in the complaint petition.16. the petitioner has posed a question as to what should be the fate of his application? shri a. m. mazumdar, the learned public prosecutor, assam, has very aptly pointed out to me that the application of the petitioner should meet the same fate as has been pronounced by their lordships in the supreme court in makhan singh tarsikka v. state of punjab reported in : 1964crilj217 . i am quoting the.....
Judgment:

K. Lahiri, J.

1. This is an application under Section 482 read with Section 483 of the Criminal Procedure Code filed by Shri Tikam Chand Khatri, an Advocate of Tezpur, Darrang, Assam, now a detenu under the Maintenance of Internal Security Act, shortly termed as 'M. I. S. A.'

2. His allegation, inter alia, is that while in such detention he forwarded a complaint petition to the Sub-Divisional Magistrate (Judicial), Goalpara, dated January 13, 1976, through the Superintendent of District Jail, Goalpara on which no due and adequate actions were taken by the learned Magistrate. His allegation, inter alia, was that at the instance of the Opposite Party No. 1 he was arrested by the then Officer in-charge of the Police Station, Tezpur, the O. P. No. 2 on 28-6-1975 at or about 6 A. M. and was detained until 1 P. M. He was served with an order of detention under the M. I. S. A., 1971 (as amended) and thereafter he was taken from the District Jail Tezpur and detained in Goalpara Jail and that the rest of the Opposite Parties are responsible for his detention and continued detention in jail. His case inter alia is that the detention was colourable exercise of power and as such the Opposite Parties have committed offences under Section 344 read with Section 109 of the Indian Penal Code, that is to say, his order of detention made under the M. I. S. A. amounted to wrongful confinement for 10 or more days and that the Opposite Parties have committed the offence of abetment as contemplated under Section 109 of the Indian Penal Code. The case of the petitioner is that the Opposite Parties 1, 3, 4 and 5 abetted the Opposite Party No. 2, the police Officer in the act of commission of the offence under Section 344, Indian Penal Code, According to the petitioner, he requested the learned Magistrate in his complaint petition (1) that he should be produced before him;

(2) that his statement should be recorded and thereafter due processes be issued against the accused persons;

(3) that the Opposite Parties should be punished in accordance with the law and (4) that he should be set at liberty from his confinement. According to the petitioner, the learned Magistrate did not issue any direction for the production of the petitioner in court and the said petition was kept pending without any order or decision on the said complaint petition.

3. According to the petitioner, as stated in the petition, the learned Magistrate on perusal of the complaint should have examined him and ought to have ordered the authorities concerned to set him free from 'wrongful confinement'. According to the petitioner, the trial Court did not comply with any of his requests or the provisions of the law.

4. Hence this application before this Court wherein he has prayed for the following reliefs:

(1) That this Court be pleased to issue Rule calling upon the Opposite Parties to show cause why the Magistrate should not be directed to take cognizance of the offence and to act in accordance with the provisions of the Criminal Procedure Code; and.

(2) That this Court should direct that the Petitioner be set at liberty from his confinement which was described by the petitioner as 'unlawful confinement'.

Along with the application the petitioner has also filed a letter issued by the Sub-Divisional Magistrate (Judl.) Goalpara addressed to the Superintendent of District Jail, wherein the Sub-Divisional Magistrate (Judl.) informed the petitioner that the alleged offence was committed outside the jurisdiction of his Court and accordingly the learned Magistrate returned back the complaint petition to the Petitioner. Although a prayer is made by the Petitioner before this Court that the Magistrate should be directed to take cognizance of the offence yet he was not made a party in the present proceedings. Be that as it may, let me consider the main submissions of the Petitioner, who has been heard in person for a considerable length of time. His main grievances are the following:

(1) That the detention in question, although described as a detention under the M. I. S. A. is in fact not a detention under the said Act as it was a colourable exercise of the said power by the Authorities concerned;

(2) That the impugned order of detention was invalid under the M. I. S. A.;

(3) That the grounds incorporated in the order of detention are all vague, irrelevant and non-existent and, therefore, the impugned order of detention is liable to be set aside;

(4) That the representation dated 6th July, 1975 made by the petitioner to the State Government was neither taken into consideration by the Government nor was it placed before the Advisory Board constituted under the M. I. S. A.

(5) That the petitioner complained before the Criminal Court that he had been wrongfully detained and that there was no impediment in the way of Criminal Court to determine the question as to whether it was a rightful confinement or a wrongful confinement and that the Criminal Court had jurisdiction vested in it by law to determine that question and as such this Court should make necessary direction to the Court below to take cognizance of the offence and to try the offenders; and

(6) In spite of the order made by the Hon'ble Supreme Court in Criminal Appeal No. 279 of 1975 (Addl. District Magistrate, Jabalpur v. Shivkant Shukla), decided on 28-4-1976 (reported in 1976 Cri LJ 945) (SC) and in spite of the decision of his writ application being Criminal Misc. Case No. 87 of 1975 (Tikam Chand Khatri v. State of Assam) decided on 10-5-1976 by a Division Bench of this High Court, the petitioner has a right to move a Criminal Court and to lodge complaint alleging that his detention, which is purported to be made under the M.I. S. A., was nothing but an invalid and colourable detention and the Criminal Court had jurisdiction vested in it by law to determine the question as to whether the petitioner was lawfully detained or not.

5. Shri A. M. Mazumdar, the learned Public Prosecutor, Assam, has submitted that in view of the decision of their Lordships in the Supreme Court in Criminal Appeal No. 279 of 1975, (Reported in 1976 Cri LJ 945 (SC) ) this Court has no jurisdiction vested in it by law to reconsider the legality or validity of the detention of the Petitioner. He submitted that a similar question as to the legal right of detenu has been well considered by their Lordships in a decision reported in : 1964CriLJ217 (Makhan Singh Tarsikka v. State of Punjab), wherein their Lordships have clearly indicated the remedy provided for a prisoner detained under similar circumstances.

6. I have considered the arguments advanced by both the parties at length and have gone through the records of the case.

7. The crucial question which we are called upon to determine in the present application is as to whether this application is maintainabe under Section 482 read with Section 483 of the Criminal Procedure Code. The order of detention has been passed against the petitioner but the same is not made by any Court. The Petitioner is detained by an executive action of the State Government.

8. The indubitable position is that the petitioner has not been arrested by any Court of Law not to speak of a Court subordinate to this High Court. He has been detained under the M. I. S. A. by virtue of an Executive Order, Can the question of validity or legality of such a detention be called in question by way of an application under Sections 482 or 483 of the Criminal Procedure Code, 1973? The provisions contained in the aforesaid sections are quoted herein below:

482. Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.

483. Every High Court shall so exercise its superintendence over the Courts of Judicial Magistrates subordinate to it as to ensure that there is an expeditious and proper disposal of cases by such Magistrate.

9. The last Section deals with the duty of the High Court to exercise superintendence over the Courts of Judicial Magistrates subordinate to it. It has no casual connection with the present issue in question. Now let me consider the scope and jurisdiction of the High Court under the former Section to interfere with any such detention order. This Section is repository of inherent powers of the High Court. The power being extraordinary should be reserved mostly for extraordinary cases. It is not available when other remedies are available and the power is to be exercised sparingly, carefully and with circumspection to act 'ex debitio justitiae'. On a plain reading of the Section it appears to me that this Section is attracted only when the impugned order is made or passed by a 'Criminal Court' and this power cannot be invoked to remedy a wrong done by an executive action or order, even if made in excess or abuse of the powers. The use of the expressions 'to give effect to any order under this Code or to prevent abuse of the process of any Court' in the Section are clearly indicative of the fact that this power can be exercised only against an action or inaction of a Court and has nothing to do with an executive or administrative order. Under these circumstances, I hold that this Court has no jurisdiction to inquire into the legality or validity or correctness of an order of detention under M. I. S. A. in exercise of its power under Sections 482 and 483 of the Criminal Procedure Code nor can it direct the Courts below to inquire into the matter. This disposes the points 1 to 4 as raised by the Petitioner.

10. Now let me take up the point No. 6 raised by the Petitioner to the effect that in spite of the decisions (Cri. M. C. No. 87 of 1975, D/- 10-5-1976) (Gau) (Supra) of this Court and the Supreme Court of India (reported in 1976 Cri LJ 945) (SC) (Supra) I have power and jurisdiction to enter into the question as to the legality, validity or correctness of the order of detention or at least direct the Subordinate Court to determine the question. I have failed to comprehend the submissions made by the petitioner. The very question now posed before me was an issue before this Court in an application under Article 226 of the Constitution wherein the Petitioner by way of a writ in the nature of Habeas Corpus questioned the legality and validity of the very same detention order. A Division Bench of this High Court rejected the said application on 10-5-1976, in Cri. Misc. Case No. 87 of 1975 (Gau) (Tikam Chand Khatri v. State of Assam), and in a common order held as under:

Cri. Misc. Case Nos. 86 to 89 (HC), 91 (HC), 93 (HC), 95 (HC), 100 to 104 (HC), 106 (HC), 107 (HC) and 108 (HC) of 1975 (Gau.)

Present: The Hon'ble the Chief Justice Mr. M. C. Pathak, The Hon'ble Mr. Justice D. Pathak.

These habeas corpus petitions were heard at length and the judgment was reserved.

On behalf of the Respondents a preliminary objection was raised that these habeas corpus petitions are not maintainable in view of the Presidential order dated June 27, 1975, A similar question arose in some other cases before the Supreme Court, The judgment has been delivered by the Supreme Court in Criminal Appeal No. 279 of 1975 Reported in 1976 Cri LJ 945 (SC) (Additional District Magistrate, Jabalpur v. Shivakanta Shukla) and other cases on 28-4-1976 and it has been held therein that in view of the Presidential Order dated June 27, 1975, no person has any locus standi to move any writ petition under Article 226 before the High Court for habeas corpus or any other writ or order or direct it to challenge the legality of an order of detention on the grounds that the order is not under or in compliance with the Act or is illegal or is vitiated by mala fides, factual or legal or is based on extraneous considerations.

That being the position, the present petitioners have no locus standi to move the habeas corpus petitions.

The petitions are accordingly rejected. The Rules are discharged.

11. The above decision is based on the Judgment of the Supreme Court in Criminal Appeal No. 279 of 1975 (Reported in 1976 Cri LJ 945) (SC) (Additional District Magistrate, Jabalpur v. Shiva Kanta Shukla) wherein the order of the Court runs as follows:

ORDER

By majority-

In view of the Presidential Order dated 27th June, 1975, no person has any locus standi to move any writ petition under Article 226 before a High Court for habeas corpus or any other writ or order or direction to challenge the legality of an order of detention on the ground that the order is not under or in compliance with the Act or is illegal or is vitiated by mala fides factual or legal or is based on extraneous consideration;

2. Section 16-A (9) of the Maintenance of Internal Security Act is constitutionally valid;

3. The appeals are accepted. The judgments are set aside;

4. The petitions before the High Courts are now to be disposed of in accordance with the law laid down in these appeals.

12. In view of the pronouncements made by the Highest Court of the land and in view of the rejection of the writ application (Supra) by this Court I hold that the question posed by the Petitioner is completely sealed. As such, I hold that the contention of the Petitioner has no merit at all. I hold that this Court has no jurisdiction even to make an endeavour to enter into the self same question anew taking resort to the provisions contained in Sections 482 and 483 of the Criminal Procedure Code not to speak of directing the subordinate Court to consider the matter.

13. Now the only question that remains to be answered is as to whether the question No. 5 as posed by the Petitioner should be decided in his favour, namely, as to whether this Court should on the facts and circumstances of the case direct the subordinate Magistrate to take cognizance of the alleged offence. If not, what should be the fate of the said complaint ?

14. I have already arrived at the, conclusion that no Court can question the legality or validity of the order of detention of the petitioner on the grounds that the order is not under or in compliance with the Act or is illegal or is vitiated by mala fides, factual or legal, or is based on extraneous consideration.

15. In the complaint petition the Petitioner alleges that his detention is illegal and invalid and on that score claims that his arrest and detention amounts to 'wrongful confinement' as contemplated under Section 340 of the Indian Penal Code. Therefore, the determinative question as to whether it is a case of 'wrongful confinement' is entirely and exclusively dependent on the determination of the question of legality or validity of the order of detention. The latter question cannot be gone into by any Court of law, Under these circumstances, no Criminal Court is competent to entertain the said complaint petition filed by the Petitioner. What should a Criminal Court do if the complaint petition is sent down to it It must consider as to whether there are allegations of commission of any offence or not, as he is to take cognizance of an offence. Can it determine that issue or question In my opinion no criminal court can enter into the question as to whether such detention amounted to an offence of wrongful confinement or any other Criminal offence. Under these circumstances I hold that I have no jurisdiction vested in me by law to exercise my powers under Section 482 or 483 of the Criminal Procedure Code to direct any subordinate Magistrate to take cognizance of the alleged offence as set forth in the complaint petition.

16. The Petitioner has posed a question as to what should be the fate of his application? Shri A. M. Mazumdar, the learned Public Prosecutor, Assam, has very aptly pointed out to me that the application of the Petitioner should meet the same fate as has been pronounced by their Lordships in the Supreme Court in Makhan Singh Tarsikka v. State of Punjab reported in : 1964CriLJ217 . I am quoting the relevant portion of the judgment Supra):

It would be noticed that the Presidential Order cannot widen the authority of the legislatures or the executive; it merely suspends the right to move any court to obtain relief on the ground that the rights conferred by Part III have been contravened if the said rights are specified in the Order. The inevitable consequence of this position is that as soon as the Order ceases to be operative, the infringement of the rights made either by the Legislative enactment or by executive action can perhaps be challenged by a citizen in a Court of law and the same may have to be tried on the merits on the basis that the rights alleged to have been infringed were in operation even during the pendency of the Presidential Order. If at the expiration of the Presidential Order, Parliament passes any legislation to protect executive action taken during the pendency of the Presidential Order and afford indemnity to the executive in that behalf, the validity and the effect of such legislative action may have to be carefully scrutinised.

17. Therefore, the right of the Petitioner, if any, remains suspended during the continuance of the Presidential Order dated June 27, 1975. Under these circumstances I cannot direct any Criminal Court to take cognizance of the offence as alleged therein.

18. As such, the petition stands dismissed and the Rule issued is discharged.


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