MANISH PURSHOTTAM ATMARAMANI Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) In all these writ petitions the orders of detention detaining the detenus have been challenged and the question relating to the maintainability of these writ petitions is common. Therefore, this question is being considered and in the opinion of this Court same question d maintainability will apply to all writ petitions. The orders of detention passed against the detenus have been challenged at a pre-detention stage as the orders are yet to be executed. In this judgment, we will confine ourselves to the question as to whether these petitions are maintainable or not.

(2.) In all these matters detention orders have been passed sometime back. The detention orders have not been executed and orders of detention have been challenged. The question which needs to be answered at the outset is whether this Court would be in a position to quash the order of detention prior to actual detention and if no in what circumstances. This question seems to have attracted the attention of the Courts including the Supreme Court of India on number of occasions. We have heard the learned Counsel appearing for the Petitioners and also the learned Advocate General elaborately. To decide this question no facts relating to the cases in hand need to be mentioned.

(3.) It is contended by the learned Senior Counsel appearing for the Petitioner that if the Court finds that the order of detention is bad on any count, it will serve no purpose to force the detenu to surrender and go to jail before his order of detention is quashed. He further submitted that the Court would be failing in its duty to ask a person to go to jail and knock at the door of the court although he could show to the court before the detention that the order of detention was bad. On the other hand, learned Advocate General contended that this question was considered on various occasions by the Supreme Court of India and this Court will have to go by the judgments of the Supreme Court and according to the learned Advocate General although there are different judgments of different Benches of the High Courts but the opinion which will bind this Court is expressed in the judgment of the Supreme Court in the case of Additional Secretary to the Government of India and ors. vs. Smt. Alka Subhash Gadia and anr.,1992 1 Supp SCC 496. After going through the case law which was shown to us, we believe that the Alka Subhash Gadia's case (supra) was the first case in which the question arose as to whether a petition can be entertained at a pre-detention stage challenging the order of detention. Thereafter there are dozens of judgments of various courts including many judgments from the Supreme Court. Therefore, what we are supposed to do is to find out what is the binding precedent for this Court as it may not be obviously necessary for this Court to frame its own opinion if there was a binding precedent of the Supreme Court. In Smt. Alka Subhash Gadia's case (supra) the Supreme Court considered this question in detail. This judgment was delivered by three Judges Bench of the Supreme Court. The question which was framed by the Supreme Court for consideration was mentioned in paragraph 5 of the Judgment in the following words :