THE HONBLE SRI JUSTICE VILAS V. AFZULPURKAR WRIT PETITION No.31023 of 2014 19-12-2014 K.Venkatesh alias K. Venkatesan.PETITIONER The State of Andhra Pradesh, Rep. by its Principal Secretary, Home Department, Secretariat Buildings, Hyderabad and others.RESPONDENTS

THE HONBLE SRI JUSTICE VILAS V. AFZULPURKAR        

WRIT PETITION No.31023 of 2014  

19-12-2014

K.Venkatesh alias K. Venkatesan.PETITIONER    

The State of Andhra Pradesh, Rep. by its Principal Secretary, Home Department,
Secretariat Buildings, Hyderabad and others.RESPONDENTS    

Counsel for the Petitioner: MR. D.V. SEETHARAMA MURTHY    
                             For MR. N. ASHWANI KUMAR
Counsel for the Respondents: GP FOR HOME    
                              ADVOCATE GENERAL    

<GIST   :

>HEAD NOTE:  

? Cases referred:
1.      (1990) 1 SCC 328
2.      (1992) SUPP 1 SCC 496  
3.      2014 (6) ALT 125
4.      (2008) 16 SCC 14
5.      (2008) 3 SCC 613



THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR        

WRIT PETITION No.31023 of 2014  


The Court made the following:


ORDER:


       Petitioner, represented by his wife and next friend, has filed this
writ petition seeking a Mandamus to direct the respondents not to
initiate any proceedings under the provisions of A.P. Act 1 of 1986
including passing of orders of preventive detention.

2.      When this writ petition came up for admission, I had serious
doubt about the maintainability of the writ petition, as it seeks
anticipatory Mandamus.  Hence, at the admission stage, I have heard
the learned senior counsel for the petitioner and learned Advocate
General (AP) and the writ petition is being disposed of by this order.

3.      It is alleged that the petitioner is currently lodged in Kadapa
Central Prison, in judicial custody, in pursuance of the crime registered
against him in FIR.No.153 of 2014 by respondent No.6 for offences
punishable under the A.P. Forest Act, 1967, Indian Penal Code and
Prevention of Damage to Public Property Act, 1984. Petitioner is stated
to be a resident of Chennai, Tamil Nadu and is stated to be in the
business of Transport and real estate.  In the course of his business,
it is stated that he has to travel to various places in Andhra Pradesh.
It is alleged that he was arrested by the police in Tirupati on
26.09.2014 and the aforesaid FIR was registered.

4.      While we are not concerned with allegations of the aforesaid
FIR, petitioner himself has stated that he is found involved in cases
registered in FIR.No.152 of 2014 before respondent No.6; Cr.No.64 of
2014 registered before the Narayanavanam Police Station and
Cr.No.96 of 2014 registered before the Chittoor  II Town Police
Station.

5.      Learned senior counsel for the petitioner submits on the basis of
the decision of the Supreme Court in S.M.D. KIRAN PASHA v.
GOVERNMENT OF A.P.  that the petitioner is entitled to seek
protection from imminent infringement of fundamental right under
Article 21 of the Constitution of India. Learned senior counsel,
therefore, submits that under A.P. Act 1 of 1986, the authorities are
entitled to pass orders as to preventive detention and thereby,
the remedies of the detenu under ordinary criminal law get eclipsed
and hence, such preventive detention orders are ex facie violative of
Article 21 of the Constitution of India. Learned senior counsel submits
that even if the offences alleged against the petitioner are taken on
their own face value, they are all offences relating to law and order
and cannot be said to lead a threat to public order so as to invoke the
provisions of the preventive detention laws against the petitioner.
The present writ petition, therefore, came to be filed on the basis of
various reports appearing in newspapers where the first respondent is
threatening to resort to A.P. Act 1 of 1986 relating to various offences.
Hence, the petitioner seeks a Mandamus directing the respondents not
to invoke the provisions of A.P. Act 1 of 1986 against him.

6.      Counter affidavit is filed by respondent No.6 wherein it is stated
that the writ petitions is not maintainable, as no such action is initiated
against the petitioner by invoking the provisions of A.P. Act 1 of 1986.
Counter affidavit deals with various factual contentions of the
petitioner with respect to the crimes registered against him.
However, that is not necessary to be traversed here.  The allegation of
the petitioner that respondents have decided to invoke the provisions
A.P. of Act 1 of 1986 is denied as it is without any basis.  It is stated
that under ordinary criminal law, the petitioner has remedy with
respect to the FIRs already registered against him and that the
apprehension of the petitioner is unfounded.

7.      Learned Advocate General appearing for the respondents
contended that the prayer of the petitioner is clearly anticipatory and
omnibus, which cannot be granted, as the decision relied upon by the
learned senior counsel for the petitioner was not approved in later
decision of the Supreme Court in ADDIONTAL SECRETARY,    
GOVERNMENT OF INDIA v. ALKA SUBHASH GADIA .          
Learned Advocate General also placed strong reliance on a decision of
this Court in ANANTHA UDAYA BHASKAR RAO v. ELECTION        
COMMISSION OF INDIA . Learned Advocate General submits that    
since there is no infringement of petitioners fundamental rights,
there is no reason to entertain the present writ petition, as the
petitioner is not beyond the law.

8.      Learned senior counsel for the petitioner by way of reply
submits that the writ petition is maintainable against the anticipated
invocation of preventive detention orders as clearly held in
S.M.D. KIRAN PASHAs case (1 supra). Learned senior counsel also  
submits that the apprehension of the petitioner is valid, as the counter
affidavit does not deal with the said specific allegation. Learned senior
counsel also placed reliance upon another decision of the Supreme
Court in DEEPAK BAJAJ v. STATE OF MAHARASHTRA  wherein the        
Supreme Court had considered pre-execution challenge to detention
order and held that such challenge is maintainable on any of five
grounds mentioned in ALKA SUBHASH GADIAs case (2 supra).    
Learned senior counsel also relied upon a decision of the Supreme
Court in STATE OF MAHARASHTRA v. BHAURAO PUNJABRAO            
GAWANDE  wherein also the pre-execution challenge to detention
order was considered and held permissible on the touchstone of
exceptions carved out in ALKA SUBHASH GADIAs case (2 supra).  

9.      Strong reliance having been placed on S.M.D. KIRAN PASHAs  
case (1 supra) which, no doubt, held that  if any right is yet to be
violated but is threatened with violation, the citizen can move the
Court for protection of his right. Protection of right is to be
distinguished from its restoration or remedy after violation.
The question may arise what precisely may amount to threat or
imminent violation. Law surely cannot take action for internal thoughts
but can only act on overt acts and allowed the writ petition filed by the
detenu on the ground that the petitioner is entitled to approach the
Court for pre violation protection. The decision of the Supreme
Court in ALKA SUBHASH GADIAs case (2 supra) reviewed the entire  
case law including the decision in S.M.D. KIRAN PASHAs case
(1 supra). It was held in para 30, as under, the relevant portion is
extracted hereunder:
30.  Thirdly, and this is more important, it is not correct to
say that the courts Lave 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 pre- execution 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 power of judicial review
to interfere with the detention orders prior to their execution on
any other grounds 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.

        Relevant paras 32 and 33 are also extracted hereunder:
32. This still leaves open the question as to whether the
detenu is entitled to the order of detention prior to the
execution at least to verify whether it can be challenged at its
pre-execution 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 mate 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 pre-execution 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 pre- execution 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 pre-execution
stage but they are not obliged to do to not 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.

33. To the extent that the decision of this Court in S.M.D. Kiran
Pasha v. Government of A.P. [(1990) 1 SCC 328] and the
decisions of all the High Courts are contrary to or inconsistent
with the view taken by us above, they will be deemed to have
been disapproved and overruled.

        Evidently, from the ratio aforesaid, the decision in S.M.D.
KIRAN PASHAs case (1 supra) stands disapproved by the aforesaid
decision of the Supreme Court.

10.     In the decision in ANANTHA UDAYA BHASKAR RAOs case      
(3 supra) I had an occasion to consider whether anticipatory breach of
right of petitioner to contest elections can be enforced by Article 226
of the Constitution of India. I had answered the said question in the
negative. In the said decision, I had referred to various decisions
including ALKA SUBHASH GADIAs case (2 supra).  

11.     The admitted facts remain, therefore, that no proceedings under
the A.P. Act 1 of 1986 are taken against the petitioner so far and that
perhaps is the purpose of filing the present writ petition, as thereby,
any such invocation under the A.P. Act 1 of 1986, even if
contemplated by the respondents, stands postponed during the
pendency of this writ petition. Since the law declared by the Supreme
Court in ALKA SUBHASH GADIAs case (2 supra) authoritatively
holds that at the pre-detention stage, the jurisdiction of this Court can
be invoked only in five limited contingencies, as extracted above.
Since the present case does not fall in any of the said categories, in
my view, the anticipatory relief, as sought for by the petitioner, cannot
be granted.  The decision of this Court in ANANTHA UDAYA
BHASKAR RAOs case (3 supra) clearly covers the said aspect against
the petitioner.  Though the learned senior counsel for the petitioner
tried to distinguish the said decision on the ground that that case did
not involve any anticipated infringement of fundamental right, in my
view, in the light of the ratio of the decisions of the Supreme Court, as
aforesaid, it cannot be said that the case of the petitioner stands on a
higher footing than the ratio as in ANANTHA UDAYA BHASKAR    
RAOs case (3 supra).

       The writ petition, therefore, fails and is accordingly dismissed.
As a sequel, miscellaneous applications, if any, shall stand closed.
There shall be no order as to costs.

____________________  
VILAS V. AFZULPURKAR, J    
December 19, 2014

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