Madhya Pradesh High Court
Mohd Sohel Patel vs The State Of Madhya Pradesh on 30 July, 2021
Author: Sujoy Paul
1 RP No.492/2021, 488/2021, 490/2021 & RP No.491/2021
High Court of Madhya Pradesh: Bench at Indore
RP No.488/2021
Mohammad Irshad Qazi Vs. State of MP & Ors.
RP No.490/2021
Smt. Monica Tripathi Vs. State of MP & Ors.
RP No. 491/2021
Yusuf Khan Vs. State of MP & Ors.
R.P.No.492/2021
Mohd. Sohel Patel Vs. State of MP & ors.
...............................................................................................................
Coram:
Justice Sujoy Paul, Judge
Justice Shailendra Shukla, Judge
...............................................................................................................
Presence :
Shri A.M.Mathur, learned Sr.counsel with Shri Abhinav
Dhanodkar & Shri Vaibhav Asawa, Advocate for the petitioners.
Shri Vivek Dalal, learned AAG with Smt. Mamta Shandilya,
GA for the respondents/State.
...............................................................................................................
Whether approved for reporting :
...............................................................................................................
ORDER
(Passed on 30th July, 2021)
Sujoy Paul, J. :
Regard being had to the similitude of the questions
involved, on the joint request of the parties, review petitions are
analogously heard and decided by this common order.
02. The singular point raised by learned Senior counsel is that
all the detention orders which were subject matter of challenge
before the writ court makes it clear that the District Magistrate
while passing the detention order did not inform the
petitioners/detenues about their valuable right to prefer
representation before the concerned authority namely District
Magistrate. This Court allowed five petitions on this point by
following the ratio decidendi of Full Bench in Kamal Khare Vs.
State of MP [WP No.22290/2019]. The writ petitions of present writ
petitioners were dismissed because the point relating to non
2 RP No.492/2021, 488/2021, 490/2021 & RP No.491/2021
mentioning of right to prefer representation before District Magistrate
was neither pleaded nor argued.
03. Shri Mathur, learned Sr.Counsel placed reliance on AIR 1987
SC 1977 [Mohinuddin Vs. District Magistrate, Beed & Ors.] and
urged that strict principles of pleadings are not applicable in habeus
corpus petition. (2005) 4 SCC 741 [Board of Control for Cricket in
India vs. Netaji Cricket Club, (2005) 4 SCC 741 is relied upon to
contend that a misconception of facts or law by a court or even by an
Advocate can be a ground to exercise review jurisdiction. The
judgment of Kamal Khare (supra) was part of the list of judgments.
Thus, imperfect pleadings or not advancing oral submissions should
not be a reason to put the petitioners to comparatively disadvantageous
position when similar detention orders were interfered with.
04. Shri Dalal, learned A.A.G opposed the review petitions on the
basis of (2006) 4 SCC 78 [Haridas Das Vs. Usha Rani Banik (Smt.)
& Ors.].
05. No other point is pressed by learned counsel for parties.
06. We have heard learned counsel for parties at length and perused
the record.
07. The Apex Court in Mohinuddin (supra) opined as under:-
"4. It was an improper exercise of power on
the part of the High Court in disallowing the writ
petition on the ground of imperfect pleadings.
Normally, writ petitions are decided on the basis of
affidavits and the petitioner cannot be permit- ted to
raise grounds not taken in the petition at the
hearing. The same rule cannot be applied to a
petition for grant of a writ of habeas corpus. It is
enough for the detenu to say that he is under
wrongful detention, and the burden lies on the
detaining authority to satisfy the Court that the
detention is not illegal or wrongful and that the
petitioner is not entitled to the relief claimed. This
Court on more occasions than one has dealt with the
question and it is now well-settled that it is
incumbent on the State to satisfy the Court that the
detention of the petitioner/detenu was legal and in
conformity not only with the mandatory provisions
3 RP No.492/2021, 488/2021, 490/2021 & RP No.491/2021
of the Act but also strictly in accord with the
constitutional safeguards embodied in Art. 22(5). In
return to a rule nisi issued by this Court or the High
Court in a habeas corpus petition, the proper person
to file the same is the District Magistrate who had
passed the impugned order of detention and he must
explain his subjective satisfaction and the grounds
therefore; and if for some good reason the District
Magistrate is not available, the affidavit must be
sworn by some responsible officer like the Secretary
or the Deputy Secretary to the Government in the
Home Department who personally dealt with or
processed the case in the Secretariat or submitted it
to the Minister or other Officer duly authorised
under the Rules of Business framed by the
Governor under Art. 166 of the Constitution to pass
orders on behalf of the Government in such matters:
Niranjan Singh v. State of Madhya Pradesh, [1973]
1 SCR 691; Habibullah Khan v. State of West
Bengal, [1974] 4 SCC 275; Jagdish Prasad v. State
of Bihar & Anr., [1974] 4 SCC 455 and Mohd.
Alam v. State of West Bengal, [1974] 4 SCC
463............"
(emphasis supplied)
08. In Board of Control for Cricket in India (supra), the Apex
Court has held as under:-
"88. ............We are, furthermore, of the opinion that
the jurisdiction of the High Court in entertaining a
review application cannot be said to be ex facie bad in
law. Section 114 of the Code empowers a court to
review its order if the conditions precedents laid down
therein are satisfied. The substantive provision of law
does not prescribe any limitation on the power of the
court except those which are expressly provided in
Section 114 of the Code in terms whereof it is
empowered to make such order as it thinks fit.
89. Order 47, Rule 1 of the Code provides for filing
an application for review. Such an application for review
would be maintainable not only upon discovery of a new
and important piece of evidence or when there exists an
error apparent on the face of the record but also if the
same is necessitated on account of some mistake or for
any other sufficient reason.
4 RP No.492/2021, 488/2021, 490/2021 & RP No.491/2021
90. Thus, a mistake on the part of the court which
would include a mistake in the nature of the undertaking
may also call for a review of the order. An application
for review would also be maintainable if there exists
sufficient reason therefor. What would constitute
sufficient reason would depend on the facts and
circumstances of the case. The words 'sufficient reason'
in Order 47, Rule 1 of the Code is wide enough to
include a misconception of fact or law by a court or
even an Advocate. An application for review may be
necessitated by way of invoking the doctrine "actus
curiae neminem gravabit............".
(emphasis supplied)
09. In view of judgment of Mohinuddin (supra), it is clear that the
imperfect pleading is not a fatal flaw so far habeus corpus petition is
concerned. When writ petitions of review petitioners were heard, they
did not raise the singular point aforesaid during oral arguments.
However, it is not in dispute that similar detention orders were
interfered with because detaining authority did not mention that
detenus' have a valuable right to prefer representations before the
District Magistrate himself.
10. Thus, following the dicta laid down by Apex Court in
Mohinuddin (supra) and Board of Control for Cricket in India
(supra), we deem it proper to review and recall the orders passed in
WP No.9561/2021, 9529/2021, 9564/2021 & 9566/2021 and restore
the writ petitions for hearing to its original number. Ordered
accordingly.
11. The registry shall list the writ petitions before appropriate bench
in the next week.
12. Review petitions are allowed.
(SUJOY PAUL) (SHAILENDRA SHUKLA)
JUDGE JUDGE
vm
Digitally signed by VARGHESE
MATHEW
Date: 2021.07.31 12:15:48
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