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2003 DIGILAW 1331 (ALL)

Jamal Ahmad v. State of U. P.

2003-05-23

K.S.RAKHRA, KHEM KARAN

body2003
JUDGMENT : Khem Karan and K.S. Rakhra, JJ. The question involved in all these writ petitions is as to whether the Petitioners can be given the benefit of interim order dated 7.12.2001 of the Apex Court passed in SLP filed by Shamim Ahmad and others. 2. There is no dispute that all these Petitioners and several others were released from respective jails on the basis of the Government orders dated 11.1.2000 and 25.1.2000, which were subsequently quashed by a Division Bench of this Court, in Criminal Misc. Writ Petition No. 5039 of 2000. The operative portion of the directions issued by the Division Bench on 27.9.2001 is as under : "In the result, the writ petition succeeds and is hereby allowed. The impugned Government Orders dated 11.1.2000 and 25.1.2000 (Annexures-C.A. 1 and C.A. 2 to the counter affidavit of Sri Bhola Nath Tiwari, Chief Secretary, Government of U.P.) are quashed. The Respondent Nos. 17 to 19 shall be taken into custody and shall be sent to jail to undergo the sentences awarded to them. We further direct the Chief Secretary and the Principal Secretary (Home), Govt. of U.P. to ensure that all such prisoners who have been released from jails on the basis of the aforesaid Government orders shall be taken into custody to undergo the sentences imposed upon them. This direction shall be complied with within two months of the receipt of the copy of the judgment. Office is directed to send authenticated copy of the judgment to the Principal Secretary (Home) and the Chief Secretary, U.P. Government, Lucknow within a week." 3. Aggrieved of this judgment and order dated 27.9.2001, Shamim Ahmad and others filed SLP, in which the Apex Court passed the following orders on 7.12.2001 : "All those Petitioners who have not been in custody for more than 14 years shall surrender. (We make only one exception in regard to the 5th Petitioner Jaipal, S/o Ramji Lal) who is shown to be aged 80 years. We will consider this SLP only after surrendering. List on 14.1.2002." 4. It appears that the Petitioners of the above mentioned ten habeas corpus writ petitions have been put behind the bar on the basis of the Government order issued in compliance of the abovementioned directions dated 27.9.2001 of the Division Bench. They are not the Petitioners before the Apex Court. List on 14.1.2002." 4. It appears that the Petitioners of the above mentioned ten habeas corpus writ petitions have been put behind the bar on the basis of the Government order issued in compliance of the abovementioned directions dated 27.9.2001 of the Division Bench. They are not the Petitioners before the Apex Court. The Petitioners of the rest of the above-mentioned writ petitions apprehend that they may be arrested and put in jail to serve the remaining part of the sentences. In writ petition No. 3875 (M/B) of 2002, Sardar Ali v. State, writ petition No. 5245 (M/B) of 2002, Vidya Sagar and Anr. v. State and in writ petition No. 3673 (M/B) of 2002, Noor Mohammad v. State, arrest of the Petitioners have been stayed by interim orders passed therein. It may be mentioned here that the Petitioners Dhruv Singh and two others of writ petition No. 5046 (M/B) of 2002 has earlier filed a writ petition No. 3365 (M/B) of 2002, taking various pleas, was dismissed by the Division Bench of this Court vide judgment and order dated 18.6.2002. In some of the writ petitions counter-affidavits have also been filed. 5. The common plea taken by all these Petitioners, in their respective writ petitions, is that they had already served more than 14 years before, they were released on the basis of respective Government Orders, which were subsequently quashed by a Division Bench of this Court at Allahabad, vide judgment and order dated 27.9.2001, and, therefore, in view of the interim order dated 7.12.2001 of the Apex Court, passed in SLP filed by Shamim Ahmad and others, they should not be compelled to surrender or they should not be sent to jail till the matter is decided by the Apex Court. It has also been said that those who have already been sent to jail, but who had served more than 14 years are also entitled to be released from the jail. 6. The learned Counsel appearing for the Petitioners have advanced several arguments. Some of them have tried to say that the two Government orders, which were subsequently quashed by a Division Bench, were perfectly justified and within the power of the Governor under Article 161 of the Constitution of India. 6. The learned Counsel appearing for the Petitioners have advanced several arguments. Some of them have tried to say that the two Government orders, which were subsequently quashed by a Division Bench, were perfectly justified and within the power of the Governor under Article 161 of the Constitution of India. They have said that since liberty is a precious fundamental right of a citizen, so they cannot be sent to jail again, in respect of the same matter, in which they were released from jail, after serving more than 14 years of the term. According to Sri D.R. Shukla, interim order dated 7.12.2001 of the Apex Court passed in SLP, partakes the character of a final order and so is binding not only on the parties to the SLP, but on all concerned. He has referred to Shenoy and Co., Represented by its Partner, Bele Srinivasa Rao Street, Bangalore and Others Vs. Commercial Tax Officer, Circle II, Bangalore and Others, AIR 1985 SC 621 . Some of the learned Counsel have also referred to a Division Bench judgment of this Court, rendered in other criminal miscellaneous writ petition No. 667 of 2001, Ayub v. Vasique Ahmad and others. From the perusal of the copy of this judgment dated 18.4.2001, we find in that writ petitions that the Government order dated 11.8.2000 was under challenge and not the orders, which were subject matter of Writ Petition No. 5039 of 2000, Mirza Mohd. Hussain v. State of U.P. and others. 7. The learned Counsel for the State has contended that the matter is before the Apex Court and it is not just and expedient for this Court to extend the benefit of interim order dated 7.12.2001 to the Petitioners of these writ petitions. His argument is that the interim order is confined to the Petitioners before the Apex Court and it is for the Apex Court to consider whether it would like to extend the benefit of its interim order to those, who are not before it. It has also been submitted that any direction of this Court for not arresting the Petitioners or for releasing the Petitioners of the habeas corpus writ petitions, will be contrary to the directions issued by a Division Bench in its judgment and order dated 27.9.2001. 8. It has also been submitted that any direction of this Court for not arresting the Petitioners or for releasing the Petitioners of the habeas corpus writ petitions, will be contrary to the directions issued by a Division Bench in its judgment and order dated 27.9.2001. 8. We are clear on the point that we are not sitting over the judgment and order dated 27.9.2001 of the Division Bench, delivered in criminal miscellaneous writ petition No. 5039 of 2000. Therefore, we need not refer to the argument advanced in support of the Government orders of January, 2000, which were quashed by this Court. The entire matter is before the Apex Court, and we should wait for its judgment. 9. Literally speaking, interim order dated 7.12.2001 passed in SLP is confined to the Petitioners before the Apex Court. The law cited by Sri D.R. Shukla is not in the context. In that case of M/s Shenoy and Co. v. Commercial Tax Officer, Bangalore, what the Apex Court ruled was that in cases where numerous petitions were disposed of by a common judgment and only one appeal was filed, the parties to the common judgment were bound by the ultimate result of the appeal. There the validity of an Act was challenged by batch of writ petitions before the High Court and a Division Bench of the High Court, struck down the provisions of the Act, against which State Government filed an appeal and the same was allowed. It was held that the judgment in appeal was binding on all the parties to the common judgment. Here in the instant case, only the interim order has been passed in SLP. We do not know the grounds taken by the Petitioners in that SLP. This Court has no authority to expand or restrict the operation of the interim order passed by the Apex Court. We agree with the learned Counsel for the State that any direction of this Court, restraining the arrest of the Petitioners or retraining the surrender of the Petitioners or any direction to release of the respective Petitioners, would be contrary to the express directions of a Division Bench dated 27.9.2001. The proper course for the parties concerned is to knock the door of the Apex Court, if so advised and it does not seem just and expedient to accept their request. 10. So, all these writ petitions are hereby dismissed. The proper course for the parties concerned is to knock the door of the Apex Court, if so advised and it does not seem just and expedient to accept their request. 10. So, all these writ petitions are hereby dismissed. Interim order, if any, stands vacated. No order as to costs.