- 1 - WPHC No.100008 of 2023 R IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE19H DAY OF APRIL, 2023 PRESENT THE HON'BLE MR JUSTICE R.DEVDAS AND THE HON'BLE MR JUSTICE RAJESH RAI K WPHC No.100008 OF2023(-) BETWEEN: SMT. ALISHA W/O ABDULRZAK ADUR AGE22YEARS, OCC. HOUSEHOLD WORK R/O LAKSHMESHWAR, TQ. LAKSHMESHWAR DIST. GADAG58211 …PETITIONER (BY SRI. S M KALWAD.,ADVOCATE) AND:
1. THE UNDER SECRETARY TO THE GOVERNMENT HOME ADMINISTRATION DEPARTMENT (LAW AND ORDER
), VIDHAN SOUDHA, BENGALURU56000 2. THE DEPUTY COMMISSIONER GADAG58211 3. THE SUPERINTENDENT OF POLICE GADAG58211 4. THE JAIL SUPERINTENDENT CENTRAL PRISION, BALLARI58310 5. THE CIRCLE INSPECTOR OF POLICE SHRIHATTI POLICE STATION DIST. GADAG58212 6. THE POLICE SUB INSPECTOR LAKSHMESHWAR POLICE STATION LAKSHMESHWAR, DIST. GADAG58211 …RESPONDENTS (BY SMT.VIDYAVATHI M.KOTTURSHETTAR, AAG AND SRI.V.S.KALASURMATH, HCGP FOR R1 TO R6) - 2 - WPHC No.100008 of 2023 THIS WPHC FILED UNDER ARTICLE226AND227OF THE CONSTITUTION OF INDIA R/W482OF CPC, PRAYING TO THIS HON BLE COURT, A) ISSUE A WRIT, ORDER
OR DIRECTION IN THE NATURE OF CERTIORARI TO QUASH THE ORDER
DATED0203/2023 MADE IN NO.HD42 SST2023PASSED BY RESPONDENT NO.1 (ANNEXURE-K). THIS WPHC COMING ON FOR ORDER
S THIS DAY, R.DEVDAS J., MADE THE FOLLOWING: ORDER
R.DEVDAS J., (ORAL): After accepting notice on behalf of the respondents, learned Additional Advocate General had raised a preliminary objection that this writ petition in the nature of habeas corpus is not maintainable for the reason that the prayer in the writ petition is to quash the detention order dated 02.03.2023 at Annexure-K passed by respondent No.1-State of Karnataka, Home Administration Department, represented by its Under Secretary. In the said order dated 02.03.2023, the State Government had confirmed the order of detention passed by the Deputy Commissioner, Gadag District on 30.01.2023. This court had requested the learned counsel for the petitioner and the learned AAG to assist the court to consider the - 3 - WPHC No.100008 of 2023 preliminary objection raised at the hands of the learned AAG.
2. Learned AAG has drawn the attention of this court to a recent decision of the Hon’ble Supreme Court in the case of Home Secretary (Prison) and Others vs H.Nilofer Nisha reported in (2020) 14 SCC161 We also found that a similar view was taken by the Hon’ble Supreme Court in another recent decision in the case of Serious Fraud Investigation office vs Rahul Modi and Another reported in (2019) 5 SCC266 3. We find that in the case of Serious Fraud Investigation Office (supra), subsequent to filing of the habeas corpus petition, the Judicial Magistrate had passed an order on 11.12.2019 remanding the respondent therein to judicial custody. That was a case where respondent was taken into custody under the provisions of Section 212(1)(c) of the Companies Act, 2013 and Section 43(2) and (3)(c)(i) of the Limited Liability Partnership Act, 2008 by Officers of Serious Fraud Investigation Office (SFIO).-. 4 - WPHC No.100008 of 2023 Various judgments including the case of Basanta Chandra Ghose vs. King Emperor reported in 1945 SCC OnLine FC3 A.K.Gopalan vs. Union of India reported in (1966) 2 SCR427and the case of Sanjay Dutt vs. State reported in (1994) 5 SCC410were considered by the Hon’ble Supreme Court. It was noticed that in Basanta Chandra Ghose (supra), it was held that, if at any time before the court directs the release of the detenue, a valid order directing his detention is produced, the court cannot direct his release merely on the ground that at some prior stage there was no valid cause for detention. In A.K.Gopalan (supra), it was held that in dealing with a petition for habeas corpus, the court is to see whether the detention on the date on which the application is made to the court is legal, if nothing more has intervened between the date of the application and the date of the hearing. In the case of B.Ramachandra Rao vs State of Orissa reported in (1972) 3 SCC256 the Hon’ble Supreme Court held that in habeas corpus proceedings the court is to have regard to the legality or - 5 - WPHC No.100008 of 2023 otherwise of the detention at the time of the return and not with reference to the institution of the proceedings. The Hon’ble Supreme therefore held that three views were taken by the Supreme Court at different times. However, in view of the respondent therein filing another writ petition contending that with the expiry of period within which the investigation had to be completed in terms of order dated 20.06.2018, all further proceedings including the arrest of the respondents were illegal and without any authority of law, and such contention was upheld, their Lordships proceeded to hold as under: “But, for the purpose of the present case, it is immaterial which of these three views is accepted as correct, for it is clear that, whichever be the correct view, the earliest date with reference to which the legality of detention may be examined is the date of filing of the application for habeas corpus and the Court is not, to quote the words of Mr Justice Dua in B.Ramachandra Rao v. State of Orissa, “concerned with a date prior to the initiation of the proceedings for a writ of habeas corpus”. Now the writ petition in the present case was filed on 6-1- 1973 and on that date the petitioner was in detention in the Central Jail, Vizakhapatnam. The initial detention of the petitioner in the District Jail, Darjeeling had come to an end long before the date of the filing of the writ petition. It is, therefore, unnecessary to examine the legality or otherwise of the detention of the petitioner in the District Jail, Darjeeling. The only question that calls for consideration is whether the detention of the petitioner in the Central Jail, Vizakhapatnam is legal or not. Even if we assume that grounds A and B are well - 6 - WPHC No.100008 of 2023 founded and there was infirmity in the detention of the petitioner in the District Jail, Darjeeling, that cannot invalidate the subsequent detention of the petitioner in the Central Jail, Vizakhapatnam. (See para 7 of the judgment of this Court in B.Ramachandra Rao v. State of Orissa). The legality of the detention of the petitioner in the Central Jail, Vizakhapatnam would have to be judged on its own merits. We, therefore, consider it unnecessary to embark on a discussion of grounds A and B and decline to decide them.” The law is thus clear that “in habeas corpus proceedings a Court is to have regard to the legality or otherwise of the detention at the time of the return and not with reference to the institution of the proceedings”. In Kanu Sanyal, the validity of the detention of the petitioner in District Jail, Darjeeling was therefore not considered by this Court and it was observed that the infirmity in the detention of the petitioner therein in the District Jail, Darjeeling could not invalidate subsequent detention of the petitioner in the Central Jail, Vishakhapatnam.
4. In the case of Home Secretary (Prison) (supra), which is a more recent decision, it was held as follows: A writ of habeas corpus can only be issued when the detention or confinement of a person is without the authority of law. Though the literal meaning of the Latin phrase habeas corpus is ‘to produce the body’, over a period of time production of the body is more often than not insisted upon but legally it is to be decided whether the body is under illegal detention or not. Habeas corpus is often used as a remedy in cases of preventive detention because in such cases the validity of the order detaining the detenu is not subject to challenge in any other court and it is only writ jurisdiction which is available to the aggrieved party. The scope of the petition of habeas corpus has over a period of time been expanded and this writ is commonly used when a spouse claims that his/her spouse has been illegally detained by the parents. This writ is many times used even in cases of custody of children. Even though, the scope may have expanded, there are certain limitations to this writ and the most basic of such limitation is that the Court, before issuing any writ of habeas corpus must come to the - 7 - WPHC No.100008 of 2023 conclusion that the detenu is under detention without any authority of law.
5. It was noticed that in Kanu Sanyal vs District Magistrate, Darjeeling and Others reported in (1973) 2 SCC674 it was held as follows: “4. It will be seen from this brief history of the writ of habeas corpus that it is essentially a procedural writ. It deals with the machinery of justice, not the substantive law. The object of the writ is to secure release of a person who is illegally restrained of his liberty.
6. In that case, it was noticed that the petition was filed before the State Level Committee had taken a decision. Therefore, it was held that the court should direct the committee concerned to take decision within a reasonable period. Nevertheless, it was held that such an order would be more in the nature of a writ of mandamus directing the State to perform its duty under the scheme. The authorities must pass a reasoned order in case they refuse to grant benefit under the scheme. Nevertheless, it was held that once a reasoned order is passed then obviously the detenu has a right to challenge that order but that again would not be a writ of habeas corpus but would be more in the nature of a writ of certiorari.-. 8 - WPHC No.100008 of 2023 7. Having regard to these settled position, we find that in the present case a prayer is made seeking writ of certiorari to quash the order dated 02.03.2023 passed by the State Government confirming the order of detention passed by the competent authority on 30.01.2023. That being the position, since the petitioner is challenging the detention order and the confirmation order, which is passed under the Bootleggers, Drugs Offenders, Gamblers, Goonda, Immoral Traffic Offenders and Slum Grabbers Act, 1985, a writ petition in the nature of habeas corpus is not maintainable. No doubt the petitioner is entitled to challenge the order of detention or order of confirmation, but that will be a writ petition seeking a writ of certiorari. Liberty is accordingly granted.
8. For the reasons stated above, we uphold the objections raised at the hands of the respondent-State through learned AAG. The writ petition (habeas corpus) stands dismissed as not maintainable.-. 9 - WPHC No.100008 of 2023 9. Office is directed to take note of the order passed hereinabove and ensure that office objection is raised in such writ petitions filed in the nature of habeas corpus, wherever an order of detention or confirmation is challenged in the writ petition. Sd/- JUDGE Sd/- JUDGE MBS List No.:
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