1994 (3) TMI 393 - HC - Indian Laws

Summary

Issues Involved:
1. Validity of the alleged stay order by the Calcutta High Court.
2. Jurisdiction of the Calcutta High Court over the detenu's residence in West Bengal.

Detailed Analysis:

Issue 1: Validity of the Alleged Stay Order by the Calcutta High Court

The primary argument in the writ petition was based on an alleged stay order dated 13th November 1990 by the Calcutta High Court, restraining the State of Kerala from executing a detention order dated 28th February 1990. The detenu's counsel produced a purported certified copy of this stay order during the arguments, which had not been served on the State of Kerala or its officers in over three years.

The court noted that various communications and affidavits from the detenu and his lawyers failed to provide a certified copy or even a case number for the alleged stay order. Despite repeated claims, only photocopies were presented, and the original order was never produced. The court expressed serious doubts about the genuineness of the certified copy due to the prolonged delay in its production and the lack of any formal notice or order from the Calcutta High Court.

The court emphasized that such stay orders are rarely granted in COFEPOSA cases, citing several Supreme Court decisions that restrict the issuance of stay orders to exceptional circumstances. Given the absence of any part of the cause of action arising within the jurisdiction of the Calcutta High Court and the suspicious nature of the alleged certified copy, the court decided against the petitioner and directed an inquiry into the genuineness of the certified copy.

Issue 2: Jurisdiction of the Calcutta High Court Over the Detenu's Residence in West Bengal

The court examined whether the Calcutta High Court had jurisdiction to entertain the writ petition based on the detenu's claimed residence in West Bengal. The Constitution (15th Amendment) allows High Courts to entertain writ petitions against entities outside their jurisdiction if any part of the cause of action arises within their jurisdiction. However, the court held that mere residence of the petitioner without more does not confer jurisdiction.

The court referenced several Supreme Court and High Court rulings which established that mere residence of the petitioner is insufficient to confer jurisdiction if the respondents are outside the court's jurisdiction. The court found no substantial evidence to support the detenu's claim of residence in West Bengal, noting that the detenu's affidavit and other documents were vague and lacked necessary details.

The court further argued that allowing jurisdiction based solely on the detenu's claimed residence would lead to a situation where individuals could evade detention by claiming residence in other states, thereby compelling the State of Kerala to litigate in multiple jurisdictions. This would undermine the effectiveness of the Kerala High Court.

The court concluded that the State of Kerala was not bound by the alleged stay order from the Calcutta High Court, as neither the original order nor any court notices had been served on the state in over three years. The court dismissed the writ petition but allowed the detenu to seek relief on other grounds not based on the alleged order of the Calcutta High Court. An inquiry into the genuineness of the certified copy was ordered to be conducted by the Crime Branch of the State of Kerala.