"I realise that some of my criticisms may be mistaken; but to refuse to criticize judgements for fear of being mistaken is to abandon criticism altogether... If any of my criticisms are found to be correct, the cause is served; and if any are found to be incorrect the very process of finding out my mistakes must lead to the discovery of the right reasons, or better reasons than I have been able to give, and the cause is served just as well."

-Mr. HM Seervai, Preface to the 1st ed., Constitutional Law of India.

Thursday, November 13, 2008

SC Judgments

Preventive Detention Order and Interference by Courts before the Execution of the Order
Deepak Bajaj v. State of Maharashtra & Anr. Writ Petition (Crl.) No.77 of 2008
A detention order is passed against the petitioner for violation of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. This petition is moved before the execution of the order. State raised the objection that the writ will not lie until the order is executed.
Articles 32 and 226 bestow untrammelled power to the judiciary to act in deserving cases but having the power and exercising the power is different. Court has developed certain principle of self restraint while exercising its jurisdiction by which “the courts insist that the aggrieved person first allow the due operation and implementation of the concerned law and exhaust the remedies provided by it before approaching the High Court and this Court to invoke their discretionary extraordinary and equitable jurisdiction under Articles 226 and 32 respectively.” Courts have the power and have exercised the power to review the detention order before it has been executed for the following reasons
1. The detention order is for a limited period and not allowing review before execution will frustrate the purpose
2. Courts have developed certain grounds on which detention order is reviewed and invalidated and they are not exhaustive.
3. Orders could be interfered when the court is satisfied
a. that the impugned order is not passed under the Act under which it is purported to have been passed
b. that it is sought to be executed against a wrong person
c. that it is passed for a wrong purpose d. that it is passed on vague, extraneous and irrelevant grounds or
e. that the authority which passed it had no authority to do so
The court found the present case as falling within grounds c and d, the reason being, relevant documents are not placed before the detaining authority to reach the decision of detention.
The interesting part of the judgment is the exposition its gives on how to read a precedent and how reading a judicial order is different from reading a statute. It also gives an appreciation about the value of right to liberty.

POTA- Relevancy of Confession by Co-accused
Gulam Mohd. @ Gulal Shaikh v. State of Gujarat . Criminal Appeal No. of 2008. (Arising out of SLP (Crl.) No. 4876 of 2006) . Date of Judgment 11-11-08
Court held that confession by a co-accused is of no relevance under Section 32 of POTA and not admissible.

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