Gujarat High Court

Indravadanbhai Jesingbhai ... vs State Of Gujarat on 15 November, 2021

Bench: Hemant M. Prachchhak

     C/LPA/864/2021                             ORDER DATED: 15/11/2021




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/LETTERS PATENT APPEAL NO. 864 of 2021
                                 In
            R/SPECIAL CIVIL APPLICATION NO. 12033 of 2021

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            INDRAVADANBHAI JESINGBHAI DUDHIYA GANCHI
                             Versus
                       STATE OF GUJARAT
================================================================
Appearance:
MR.HARDIK BHARHMBHAT(3741) for the Appellant(s) No. 1
MR KM ANTANI AGP (1) for the Respondent(s) No. 1
NOTICE SERVED(4) for the Respondent(s) No. 2,3,4
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 CORAM:HONOURABLE THE CHIEF JUSTICE MR. JUSTICE
       ARAVIND KUMAR
       and
       HONOURABLE MR. JUSTICE HEMANT M.
       PRACHCHHAK

                          Date : 15/11/2021

                        ORAL ORDER

(PER : HONOURABLE THE CHIEF JUSTICE MR. JUSTICE ARAVIND KUMAR)

1. In this intra-court appeal, order dated 22.09.2021 passed in

Special Civil Application No.12033 of 2021 is under challenge,

whereunder, learned single Judge has dismissed the petition filed

by the appellant under Article 226 of the Constitution of India on

the ground that petition is not maintainable.

2. The appellant herein approached the learned single Judge

in Special Civil Application No.13681 of 2020 apprehending his

arrest and detention. Said petition came to be dismissed by

C/LPA/864/2021 ORDER DATED: 15/11/2021

order dated 03.12.2020. The copy of the said order was placed

before the learned single Judge at page No.39 of the compilation

whereunder the learned single Judge has held that petitioner had

failed to point out any exceptional circumstances, which requires

interference and it was also held that said petition was filed only

on the basis of the apprehension without any further details.

Subsequently, on 24.12.2020, detention order came to be

passed which was challenged in Special Civil Application No.6733

of 2021 which came to be withdrawn on a memo being filed. The

order passed on 22.04.2021 reads as under:-

Learned advocate for the petitioner seeks permission to withdraw the present petition with a liberty to file fresh petition challenging the order of detention. Permission as prayed for is granted. This petition stands disposed of as having been withdrawn.

Sd/-

Judge

3. Thereafter, Special Civil Application No.12033 of 2021

came to be filed under which order, the learned single Judge has

held that while withdrawing Special Civil Application No.6733 of

2021 no liberty was granted to file fresh petition at pre-execution

stage and, therefore, the petition was not maintainable. Hence,

this appeal.

C/LPA/864/2021 ORDER DATED: 15/11/2021

4. We have heard Mr.Hardik Bhrahmbhatt, learned advocate

appearing for the appellant and Mr.K. M. Antani, learned

Assistant Government Pleader appearing for the respondents

and we have perused the case papers.

5. At the outset, learned Assistant Government Pleader would

submit that on account of petitioner having not been granted

liberty to file fresh petition while withdrawing Special Civil

Application No.6733 of 2021, subsequent Special Civil

Application No.12033 of 2021 was not maintainable and as such,

learned single Judge has rightly dismissed the petition. Hence,

he has prayed for dismissal of this appeal. He would also submit

that order passed by the learned single Judge is by taking into

consideration the observation made in Special Civil Application

No.13681 of 2020 and as such, there being no exceptional

circumstances made out to grant relief sought for, learned single

Judge has rightly dismissed the Special Civil Application

No.12033 of 2021 and for this reason also he prays for appeal

being dismissed and order of the learned single Judge being

affirmed.

C/LPA/864/2021 ORDER DATED: 15/11/2021

6. Rebutting the said contentions, Mr.Brahmbhatt, learned

advocate appearing on behalf of the appellant would submit that

the right of the detenu to invoke Article 226 of the Constitution

of India is unfettered. He would rely upon the judgment of the

Apex Court in the case of Additional Secretary to the

Government of India and others Vs. Smt. Alka Subhash

Gadia and another, reported in 1992 Supp. 1 SCC 496 in

support of his submission. Hence, he would pray for the order of

the learned single Judge being set aside and reliefs sought for in

the Special Civil Application No.12033 of 2021 being granted.

7. Having heard the learned advocates appearing for the

parties and after bestowing our careful anxious consideration to

the rival contentions raised at the Bar, we are of the considered

view that in light of the law laid down by the Apex Court in the

case of Alka Subhash Gadia (supra), the petition filed under

Article 226 of the Constitution of India being Special Civil

Application No.12033 of 2021 would be maintainable. It is also

apt and appropriate to observe at this stage itself that while

withdrawing Special Civil Application No.6733 of 2021, appellant

C/LPA/864/2021 ORDER DATED: 15/11/2021

herein had sought liberty to file fresh petition. It is because of

this precise reason, learned single Judge, while permitting the

petition being withdrawn, had made an observation to the effect

that "permission as prayed for is granted". In other words

permission to withdraw the petition with a liberty to file fresh

petition was granted, which had been sought for. As such, the

judgment of the Apex Court rendered in the case of Sarguja

Transport Service Vs. State Transport Appellate Tribunal,

M. P., Gwalior and other reported in (1987) 1 SCC 5 pressed

into service would not come to the rescue of the State, inasmuch

as, petitioner in the said judgment, without seeking permission

to institute a fresh petition had filed fresh petition. Whereas, in

the instant case, liberty had been sought for by the appellant to

approach the learned single Judge by filing fresh petition at the

time of withdrawing the Special Civil Application No.6733 of 2021

and on such permission being sought, learned single Judge had

granted permission to file fresh petition and as such, appellant

had withdrawn the petition namely Special Civil Application

No.6733 of 2021 vide order dated 22.04.2021 and, thereafter

had filed fresh Special Civil Application. Hence, contention raised

by the learned Assistant Government Pleader cannot be

C/LPA/864/2021 ORDER DATED: 15/11/2021

accepted and it stands rejected. Though learned advocate

appearing for the appellant has made valiant attempt to contend

that the powers of this Court being coterminous with that of the

learned single Judge and has prayed for petition itself being

heard on merits, we refrain from doing so, inasmuch as the

grounds urged on merits before the learned single Judge in

Special Civil Application No.12033 of 2021 had not received the

attention of the learned single Judge. Hence, we are of the view

that it would be open for the appellant to urge all grounds

including one's urged in the present appeal before the learned

single Judge. It is needless to state that while considering the

prayer made by the appellant in the present appeal, learned

single Judge can take note of the principles enunciated by the

Apex Court in Alka Subhash Gadia's case more particularly

the observations made in paragraph 30, whereunder, just

exceptions having been carved for exercise of power under

Article 226 of the Constitution of India in respect of the matters

pertaining to entertainment of a petition filed under Article 226

of the Constitution of India in respect of detention orders at pre-

execution stage. Subject to these observations, we processed to

pass the following.

         C/LPA/864/2021                                ORDER DATED: 15/11/2021




                                   ORDER

(i)       Appeal is allowed.

(ii)      Order dated 22.09.2021 passed by the learned single

Judge in Special Civil Application No.12033 of 2021 is set

aside and matter is remitted back to the learned single

Judge for being disposed of on merits and in accordance

with law and by taking into consideration observations

made hereinabove.

(iii) We request the learned single Judge to take up the matter

on priority basis as it pertains to the order of detention

(pre-execution stage).

(iv) We make it clear that we have not expressed any opinion

on merits and the contentions of both the parties are kept

out.

Sd/-