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[a.p. sen,; baharul islam and; d.a. desai, jj.] in their petitions under article 32 of the constitution the three petitioners who were detained under section 3 of the conservation of foreign exchange and prevention of smuggling activities act, 1974, contended that in the matter of discharge of executive functions conferred upon him, the administrator of the union territory of goa, daman and diu who passed the impugned orders, is in the same position as a governor of a state or the president who must act on the aid and advice of the council of ministers and that in the instant case the orders of detention having been passed by the administrator himself instead of by the chief minister in the name of the administrator, were invalid. dismissing the petitions, held :1. (a) although section 46(2) of the union territories act, 1963 provides that all executive action of the administrator, whether taken on the advice of his ministers or otherwise shall be expressed to be taken in the name of the administrator, the administrator is not purely a constitutional functionary who is bound to act on the advice of the council of ministers and could not act on his own. the language of arts. 74 and 163 on the one hand and the language of section 44 of the union territories act 1963 on the other shows that the administrator is similarly situated with the governor but not with the president when he is to act in his discretion under the act. while exercising judicial or quasi judicial functions, the administrator has to act on his own unaided by the council of ministers like the president who, while exercising power conferred by article 217(3), discharges judicial function and is not required to act on the advice of the council of ministers. but there the analogy ends. the administrator, even in matters where he is not required to act in his discretion under the act or where he is not exercising any judicial or quasi-judicial functions, is not bound to act according to the advice.....1. special leave to appeal granted.2. we have heard counsel for the parties. this appeal by special leave is directed against an order passed by the karnataka high court which while granting leave to appeal to the state against the order of acquittal passed by the trial court in favour of accused 1 to 5 and 9, also passed an order issuing notice to accused nos. 6 to 8, one of whom is the appellant in this appeal. the high court directed the appellant to show cause why he should not be sent up for trial. mr. nettar, appearing for the state, frankly conceded that he was not in a position to support the order passed against the appellant. the high court had no jurisdiction at this stage to pass any order against the appellant without hearing the appeal and coming to a clear finding that an offence has been made out against the appellant. if the high court comes to such a finding after examining the materials then it may have exercised discretion under section 482, cr.p.c. in directing the trial of the appellant. in the instant case, however, the high court had no jurisdiction to issue notice to the appellant even before hearing the appeal on merits. the order passed by the high court at the initial stage amounts to a serious abuse of the process of the court inasmuch as it compels the appellant to rebut a charge never made or an allegation never proved against him. such a cause of action at this stage results in gross and substantial injustice to the appellant and amounts to a gross misuse of power of the high court under section 482, cr.p.c. for these therefore, we allow the appeal, set aside that portion of the order of the high court by which while granting leave to appeal to the state notice has been issued to the appellant to show cause why he should not be sent for trial.