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Abdul Kareem v. Commr. & Secretary To Govt.
Factual and Procedural Background
This writ petition (filed 14-2-1994) was brought by the brother of the detenu, C.K. Moosa, seeking a writ of Habeas Corpus and a writ of mandamus restraining execution of a detention order dated 28-2-1990 issued by the State of Kerala (referred to as Ext. P3), on the basis of an alleged stay order dated 13-11-1990 said to have been passed by the Calcutta High Court in Civil Order No. 12643(W)/90 (referred to as Ext. P1). The petition also sought Rs. 10 lakhs as compensation and the production and release of the detenu.
Material facts alleged in the petition and as recorded in the opinion: on 9-1-1990 customs officers in Kerala stopped Jeep KRZ 7183 and recovered six gold biscuits and three gold pieces from a washing machine in the vehicle; the detenu was travelling in that Jeep. A statement recorded on 10-1-1990 allegedly linked the detenu to receiving the washing machine and to payment arrangements to a person named Zakeer Hussain. Conditional bail had earlier been granted by the Addl. Chief Judicial Magistrate, Ernakulam, on 17-1-1990 with conditions which were later violated.
The Government of Kerala issued an administrative order on 5-5-1990 under S.7(1)(a) of the COFEPOSA Act indicating that a detention order under COFEPOSA had been passed on 28-2-1990 and requesting action under S.7(1)(a). A proclamation under S.87 Cr.P.C. was issued on 16-3-1991. The detenu filed Crl. M.C. No. 206 of 1991 in the High Court challenging the S.7(1) proceedings and relied upon the alleged Calcutta High Court stay. The Kerala High Court disposed of that criminal miscellaneous petition on 18-2-1992 with directions to inform the magistrate about the Calcutta order, subject to surrender, and later dropped further proceedings on 21-3-1992 in view of those orders.
The State or its officers stated they had not been served with the original certified copy of the Calcutta High Court order in the more than three years that followed; only photocopies and letters were circulated. The detention was executed on 13-12-1993 (government pleader's account). When a purported certified copy of the Calcutta stay order was produced before the Kerala High Court during arguments in this writ petition, the Court retained it in a sealed cover and directed an inquiry into its genuineness by the Crime Branch. The State Advisory Board had, on 11-1-1994, given a personal hearing and recommended confirmation; the Government subsequently confirmed detention under S.8(f). The original petition was dismissed by the Court, without prejudice to the detenu seeking other grounds of relief.
Legal Issues Presented
- Whether this Court should take cognizance of an order purporting to be a certified copy of a stay order dated 13-11-1990 said to have been passed by the Calcutta High Court, when the original certified copy had not been produced either before the State Government or before this Court in the more than three years since that date and no notice or order had been served on the State Government by the Calcutta High Court.
- Whether the State Government can contend that the Calcutta High Court lacked jurisdiction to grant stay of execution of a COFEPOSA detention order passed by the State of Kerala merely because the detenu was alleged to be resident of West Bengal (i.e., whether mere residence of the detenu within the jurisdiction of the Calcutta High Court suffices to confer jurisdiction for such a writ).
Arguments of the Parties
Petitioner's (and detenu's) position
- The writ petition was argued solely on the basis of an alleged stay order of the Calcutta High Court dated 13-11-1990 restraining the State of Kerala from executing the detention order of 28-2-1990.
- Counsel for the petitioner contended that the case fell within one of the "rare situations" (specifically category (iv) — that the detention order was passed on vague, extraneous or irrelevant grounds) in which a High Court may grant a stay of execution of a COFEPOSA detention order.
- The petitioner relied on documents and photocopies (and ultimately produced a document purporting to be a certified copy of the Calcutta order during argument) to show that a stay had been granted by the Calcutta High Court.
Respondent (State of Kerala / Government Pleader) position
- The Government contended the detention order had been executed on 13-12-1993 (Government Pleader) and that the Calcutta order, if any, had not been served on the State or its officers; no original certified copy or court notice had been received in more than three years.
- The State questioned the genuineness of the purported certified copy because of the prolonged delay in production (more than three years), the earlier circulation of only photocopies and letters, and lack of service on the State; it asked for an inquiry into the document's genuineness.
- The State argued that even if a stay had been passed by the Calcutta High Court, that Court lacked jurisdiction to issue an order affecting the State of Kerala in respect of a COFEPOSA detention order unless any part of the cause of action arose within Calcutta High Court's territorial jurisdiction; mere residence of the detenu in West Bengal alone could not confer jurisdiction.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| N.K. Bapna v. Union of India ((1992) 3 SCC 512) | Authority for the proposition that High Courts may grant stay of execution of COFEPOSA detention orders only in very rare situations. | Used to support the general statement that stay orders in COFEPOSA cases are exceptional; cited among cases limiting stay relief. |
| State of Tamil Nadu v. P.K. Shamsudeen ((1992) 3 SCC 523) | Same proposition as above about the rarity of stay orders in COFEPOSA matters. | Cited alongside other Supreme Court authorities to define the narrow circumstances in which a stay may be granted. |
| Additional Secretary to Govt. of India v. Smt. Alka Subhash Gadia (1992 Suppl. (1) SC 496) | Supports the principle that stays in COFEPOSA contexts are exceptional and limited. | Referred to as part of the body of decisions establishing the limited availability of stay relief in preventive detention under COFEPOSA. |
| Abdul Azeez v. Union of India (1993 (1) KLT 906) | Local Kerala decision in which the above Supreme Court authorities were referred to. | Cited as earlier local reference where the Court had relied on the Supreme Court decisions on rarity of stay orders. |
| Mohiyil Varghese Thomas v. State of Kerala (W.A. No. 1397/93 dated 12-11-1993) | Local application of the principle regarding rare grant of stay in COFEPOSA matters. | Referred to as a prior relevant decision by the Court. |
| Lt. Col. Khajoor Singh v. Union of India & Another (AIR 1961 SC 532) | Authority for the principle that mere residence of the petitioner does not by itself confer jurisdiction on a High Court where respondents are outside its territorial jurisdiction. | Relied upon when deciding that mere residence in Calcutta does not confer jurisdiction to restrain the State of Kerala. |
| State of Rajasthan v. Swaika Properties ((1985) 3 SCC 217 : AIR 1985 SC 1289) | Support for the territorial requirement for cause of action to confer High Court jurisdiction under Article 226. | Adopted as part of settled law that mere residence without part of the cause of action arising there cannot confer jurisdiction. |
| Bhagat Ram v. Union of India (1988 Supp SCC 30 : AIR 1988 SC 704) | Further authority on jurisdictional limits of High Courts on writ petitions affecting parties outside territorial jurisdiction. | Used to reinforce the principle that mere residence is insufficient to establish jurisdiction. |
| Abdul Kafi Khan v. Union of India (AIR 1979 Cal. 354) | State/High Court practice regarding territoriality and jurisdiction in writ petitions. | One of several High Court decisions cited to show consistent application of territorial jurisdiction principles. |
| State of U.P. v. Jana Seva Karyalaya Ltd. (AIR 1994 Cal. 65) | Local precedent relevant to the territorial jurisdiction question. | Relied on for the same jurisdictional proposition. |
| Rakesh v. Union of India (AIR 1988 All. 47) | Authority on jurisdictional limitations where respondents are outside the High Court's territorial limits. | Used with other decisions to demonstrate settled position. |
| Shashi Kant R. Chadha v. Union of India (1990 (49) ELT 56 (Cal.)) | Case arising under COFEPOSA which held that detenu's residence alone could not confer jurisdiction on the Calcutta High Court. | The Court respectfully followed this Calcutta High Court decision as directly in point on the jurisdiction question. |
| Madhusoodan v. Supdt. of Police (1992 (2) KLT 83) | Decision concerning anticipatory bail under S.438 Cr.P.C.; considered on the question of apprehension of arrest and territorial application. | Distinguished by the Court as inapplicable to preventive detention under COFEPOSA because S.438 deals expressly with anticipatory bail. |
| Poonam Lata v. M.L. Wadhawan ((1987) 3 SCC 347 : AIR 1987 SC 1383) | Established that provisions relating to bail/parole do not apply to preventive detention cases. | Relied on to support the distinction between anticipatory bail jurisprudence and preventive detention matters. |
| Covell v. Heyman (111 U.S. 176) | Used to illustrate the general concept and limits of comity between courts. | Cited in the discussion explaining the nature and utility of comity between courts of coordinate jurisdiction. |
| Darr v. Burford (339 U.S. 200) | Explains that comity may lead a court to defer action where another court with concurrent powers is already cognizant of the litigation. | Quoted in relation to the doctrine of comity and deference between courts. |
| In re Fischer's Will (181 A. 875 : 119 N.J. Eq. 217) | Illustration of comity as a principle of practice and convenience rather than an absolute obligation. | Used to provide background on the nature and limits of comity among courts. |
| Baldwin v. Abercrombie Fitch Co. (CCA. N.Y. 228 F. 895) | Statement that comity declares how a case may be decided, not how it shall be decided; supports practical view of comity. | Referred to in the Court's explanatory discussion of comity. |
| Corbin v. Houlehan (61 I.A 131 : 100 Me. 246 : 70 L.R.A 568) | Explains exceptions to comity where legislation or public policy requires a different approach. | Used when discussing exceptions to the comity doctrine and situations where deference may not be appropriate. |
| Lipham v. State (22 S.E.2d 532) | Illustration that where a court lacked jurisdiction (decree obtained on substituted service against a mere sojourner), such decree is a nullity and not entitled to comity. | Applied by analogy to support the proposition that orders obtained by a court lacking jurisdiction need not be recognized by comity. |
| Words and Phrases, Permanent Edition, Vol. 7A (reference) | Secondary reference supporting the description of Lipham as a case where substituted-service decree was not entitled to comity. | Used as an ancillary authority in the comity discussion. |
Court's Reasoning and Analysis
The Court structured its analysis around the two specific questions framed in the petition.
Point No. 1 — Cognizance of the alleged Calcutta stay order
The Court noted the procedural history of efforts to communicate the Calcutta order to the State of Kerala: initial letters and photocopies by advocates, a photocopy of the writ petition without registration number, and an affidavit by the detenu dated 24-1-1991 indicating he had not yet received a certified copy but was informed by his advocate that it would be available soon. The Court observed that despite the alleged stay being dated 13-11-1990, neither the original nor a certified copy had been produced to the State or its officers for more than three years. Only photocopies and correspondence were in the file.
When the petitioner produced, for the first time during argument, a document purporting to be a certified copy, the Court examined it and noted court-fee stamps, seals and a certification purporting to be of the Calcutta High Court but found the long delay in producing such a document suspicious. The Court emphasized that if a true certified copy had been available earlier, there was no reason for not producing it to authorities within a reasonable time. Given these circumstances, and the fact that stay orders in COFEPOSA cases are granted only in rare situations, the Court expressed serious doubts about the genuineness of the purported certified copy and ordered the Kerala State Crime Branch to inquire into its authenticity.
The Court therefore declined to accept the purported certified copy as establishing a bar to execution of the detention order and decided Point No. 1 against the petitioner.
Point No. 2 — Jurisdiction of the Calcutta High Court
The Court addressed whether the mere residence of the detenu in West Bengal (or his apprehension of arrest there) could confer jurisdiction on the Calcutta High Court to restrain the State of Kerala from executing a COFEPOSA detention order. The Court reviewed constitutional law and authorities establishing that High Courts can entertain writs affecting states or bodies outside their territories only where any part of the cause of action arose within that High Court's jurisdiction. The Court relied on multiple Supreme Court and High Court decisions holding that mere residence of the petitioner without any part of the cause of action arising within the forum does not confer jurisdiction.
The Court observed factual deficiencies in the purported Calcutta petition as produced by the petitioner: the photocopy of the writ petition did not state place of seizure, left blanks in key affidavit fields (name, father's name, age, place of residence), and no supporting documentary evidence (employment proof, correspondence, ration card, rent receipts) had been produced to substantiate an ordinary residence in West Bengal. The Court found the contention that "apprehension" of arrest alone constitutes part of the cause of action inapposite for COFEPOSA detention matters and distinguished cases arising under S.438 Cr.P.C. (anticipatory bail).
The Court then discussed the doctrine of comity — describing its nature as a principle of mutual forbearance among courts (citing authorities) — and explained that comity does not require automatic deference where a court lacking territorial jurisdiction purports to issue orders affecting another State. The Court concluded that before a High Court exercises jurisdiction to pass an interim order affecting a State or authority outside its territory, it must first ensure that part of the cause of action arose within its territorial limits and that mere residence and apprehension are insufficient.
Applying these principles to the facts, the Court held that the State of Kerala was not bound by the alleged Calcutta order which had not been served and which was not shown to have been within the Calcutta High Court's jurisdiction in the absence of part of the cause of action arising there.
Holding and Implications
Holding: The Original Petition is DISMISSED.
Implications and direct effects:
- The Court refused to accept the purported certified copy of the Calcutta High Court's stay order as a bar to execution of the Kerala detention order and has directed the Kerala State Crime Branch to inquire into the genuineness of that document.
- The Court held that mere residence of the detenu in another State (West Bengal) and his apprehension of arrest there do not, by themselves, constitute a part of the cause of action sufficient to confer jurisdiction on that High Court to restrain the State of Kerala in a COFEPOSA matter.
- The dismissal does not preclude the detenu from seeking relief on other grounds unrelated to the alleged Calcutta High Court order; the Court explicitly permitted the detenu to pursue relief on other substantive grounds of challenge to detention.
- The State Advisory Board's recommendation and subsequent confirmation of detention under S.8(f) remains effective as far as the Court's order is concerned; no direction was issued to release the detenu on the basis of the alleged Calcutta order.
- No new broad principle of law was established beyond applying settled authorities: the decision is an application of existing jurisdictional doctrines, the narrow availability of stays in COFEPOSA cases, and the procedural requirement of timely service and authenticity of inter-jurisdictional orders.
Note: This summary is based exclusively on material contained in the provided opinion and does not add information beyond that text.
The Judgment of the Court was delivered by
Jagannadha Rao, C.J:— This Writ Petition is filed for the issue of a writ of Habeas Corpus by the brother of the detenu, one C.K Moosa. The Writ Petition was filed on 14-2-1994 for the issue of a writ of mandamus not to execute Ext. P3 order of detention dated 28-2-1990 issued by the State of Kerala, pending continunace of Ext. P1 stay order dated 13-11-1990, said to have been passed by the Calcutta High Court in Civil Order No. 12643 (W) of 1990; the original of which, according to the respondents, is yet to be served on them by the Calcutta High Court. It is also prayed that a sum of Rs. 10 lakhs is to be paid as compensation to the detenu for illegal custody and it is also stated that the detenu must be produced before this court and set at liberty by issuance of a writ of Habeas Corpus.
2. It may be noticed that this Writ Petition is not filed questioning the grounds of detention or on any of the points nomally raised in a COFEPOSA Habeas Corpus Application, but is filed solely basing upon an order allegedly passed by the Calcutta High Court on 13-11-1990 restraining the State of Kerala from executing an order of detention dated 28-2-1990 passed against the detenu. While the detenu has slated that the detention order has been executed by the State Government on or about 8-12-1993, it is submitted before us by learned Government Pleader that the order has been executed on 13-12-1993. As stated earlier, the Writ Petition is argued by learned counsel for the petitioner only on the basis of the stay order allegedly granted by the Calcutta High Court on 13-11-1990 and not on any other grounds.
3. The following are the facts as revealed from the Writ Petition, and as per the statement of facts mentioned by learned Government Pleader. Jeep KRZ 7183 was stopped and searched by customs officers in Kerala on the road from Nadapuram-Badagara on 9-1-1990 and six gold biscuits and three gold pieces were recovered from inside a washing machine carried in the said Jeep. The detenu was travelling in the Jeep. On 10-1-1990, a statement was recorded from the detenu. He admitted that he got the message from his brother, C.K Kunjahammed at Doha through one Chembantavide Yousuf and Kalamveettil Moosa, that his brother C.K Kunjahammed had sent some gold concealed in a washing machine through one Zakeer Hussain of Kakkampally and that Moosa, detenu, should take delivery of the washing machine after paying Rs. 15,000 to Zakeer Hussain. Accordingly detenu went to the house of Zakeer Hussain and collected the washing machine. On his return the customs officers had intercepted him and the others accompanying him.
4. Learned Government Pleader has stated from the case record that the Addl. Chief Judicial Magistrate, Ernakulam, had earlier granted conditional bail on 17-1-1990, one of the conditions being that detenu must appear before the Superintendent, S.C.P Unit, Cannanore, on every Wednesday, three times. It is staled that this order was later violated. Government of Kerala issued an order on 5-5-1990 (No. 12583.SSA4/90.Home under S. 7(1)(a) of the COFEPOSA Act) stating that a detention order under COFEPOSA Act was passed on 28-2-1990, that the said detenu could not be apprehended till then, and that Government had reason to believe that he was concealing himself so that the detention order could not be executed. The Chief Judicial Magistrate, Cannanore, was requested to take action under S. 7(1)(a). The Addl. Chief Judicial Magistrate issued a proclamation of warrant under S. 87 Cr. P.C on 16-3-1991. The detenu filed Crl. M.C No. 206 of 1991 in the High Court challenging the said proceedings under S. 7(1) and obtained stay relying on the order allegedly issued by the Calcutta High Court. The High Court disposed of the Crl. M.C on 18-2-1992 asking the detenu to bring to the notice of the Addl. Chief Judicial Magistrate about the order of the Calcutta High Court relied on, subject to surrendering before the Addl. Chief Judicial Magistrate, Tellicherry. It is stated that the said Court later dropped further proceedings on 21-3-1992, in view of the High Court's orders.
5. But, curiously so, far, according to the learned Government Pleader, the State or its officers have not received the original order of the Calcutta High Court said to have been passed on 13-11-1990. The detenu has himself not produced the order before the Government, but got his affidavit filed on 24-1-1991 before the Government that an interim order was passed by the Calcutta High Courtina Writ Petition filed by the detenu that he (detenu) had not received a certified copy of the order, but was informed by his lawyer about it. Curiously, the detenu stated in the said affidavit as follows:
“I (detenu) have not received the copy of the order so far. It was informed by my Advocate Mr. Rohit Kochhar that the certified copy of the order of the Court will be available to me shortly. I am prepared to produce the original order whenever it is received by me.”
6. It may be noticed that earlier to this, the said Advocate Sri. Rohit Kochhar, Advocate, 84, Anand Lok, New Delhi, wrote to the Home Secretary, Kerala, District Superintendent of Police, Cannanore, Circle Inspector of Police, Koothuparamba on 15-11-1990 that the Calcutta High Court had granted stay on 13-11-1990 of service of detention order in ‘writ petition’ and ‘a certified copy has been applied for’. No number was given. In his affidavit dated 24-1-1991 sent to Government, the detenu did not also give any number of the Writ Petition of date. Government record of the case also contains a photocopy of a letter dated 13-11-1990 from one Subrato Talukdar, Advocate, Bar Association, Calcutta, stating that Justice U.C Bannerjce of the Calcutta High Court granted slay of service of detention order and that His Lordship directed ‘that a copy of the writ petition be served upon all respondents’. The said Advocate enclosed a photocopy of the Writ Petition. It does not contain any number. As things stood thus, the detenu, when he filed Crl. M.C No. 206 of 1991 in this Court on 22-2-1991, filed as Anncxure (I) there ‘a true copy’ of the order of the Calcutta High Court in Civil Order No. 12643(W)/90 dated 13-11-1990. Thereafter, the State Government contacted the West Bengal Government and got a reply from the Legal Remembrancer, West Bengal Government in letter (017161) dated 8-3-1991, that they had requested Mr. N.A Chowdhary, Addl. P.P, High Court of Calcutta, to represent the State of Kerala and do the needful. The Kerala Government sent a message on 26-3-1991 (No. 1045.SSA4/91.Home) to Mr. Chowdhary, Advocate to do the needful. Thereafter nothing has been heard either from the Calcutta High Court or from any of the Advocates at Calcutta or New Delhi. No notice or order has been received by the State Government or its officers from the Calcutta High Court.
7. The detention order was executed on 13-12-1993. Counsel for detenu sent a lawyer's notice dated 1-2-1994 along with a photocopy of the stay of der of Calcutta High Court dated 13-11-1990. The State Government replied on 14-2-1994 requesting him to produce the ‘original certified copy’. So far it has not been produced before the State Government.
8. But before us, learned counsel for the petitioner (brother of the detenu) produced an order purporting to be the certified copy of the order dated 13-11-1990. We have kept it in a sealed cover along with letter of Delhi Advocate, Mr. Kochhar.
9. Meanwhile, the matter has been referred to the State Advisory Board on 11-1-1994, and we are told that the Board gave personal hearing to the detenu and that the Board has opined that there are sufficient grounds for the detention. The Government have since confirmed the detention under S. 8(f).
10. Two questions arise for consideration before us:
(1) Whether this Court should take cognizance of an order purporting to be a certified copy of the slay order dated 13-11-1990 said to have been passed by the Calcutta High Court, especially when the original certified copy of order dated 13-11 -1990 has not so far been produced either before the Government or before this Court, in the last more than three years and no notice or order has been served on the State Government from the Calcutta High Court so far?
(2) Whether the State Government can contend before this Court that the detenu belongs to Kerala and is not ordinarily resident of West Bengal and even if he was a resident, the Calcutta High Court would not get any jurisdiction to entertain the Writ Petition and restrain service of detention order merely because of the residence of the detenu within West Bengal?
11. Point No. 1:—The Writ Petition is argued, not on the basis that there is anything wrong with the order of detention or the grounds - (perhaps these aspects are reserved for another Writ Petition) - but on the ground that the service of the order dated 28-2-1990 of detention and actual detention on 13-12-1993 is illegal, in view of the alleged order dated 13-11-1990 said to have been granted by the Calcutta High Court restraining the State of Kerala from serving an order of detention.
12. Initially, Advocate Kochhar of Delhi wrote a letter to the State of Kerala and its Officers on 15-11-1990 that the Calcutta High Court had passed an order on 13-11-90 restraining the State from serving its detention order. The detenu, through a lawyer of Kerala, sent an affidavit dated 24-1-1991 that there was a stay order of the Calcutta High Court. He neither gave the number of the case nor even the date. He said he was trying to get a certified copy. One Subrato Talukdar, Advocate, Bar Association, Calcutta, sent a letter on 13-11-1990 stating that Calcutta High Court granted stay. He sent a photocopy of the Writ Petition without its registration number. The detenu filed a ‘true copy’ (not even a photocopy) of the order in Crl. M.C No. 206 of 1991 in this Court. In this Writ Petition, a photocopy of the stay order is produced. For the first time, during the arguments before us, an order purporting to be a certified copy has been produced.
13. But, the original order has not been served on the Slate or its Officers so far, nor has the Slate received any notice of the filing of the Writ Petition so far, in the last three years. There were only photocopies of a certified copy. The order purporting to be a certified copy has been produced before us for the first time during arguments. It should not take three years for the detenu or his lawyer to have the so-called certified copy produced before the authorities. Having regard to the long delay in the production of the order purporting to be a certified copy, we are unable to accept the same. We have examined the same. We find some Court Fee stamps affixed, and some seals and certification purporting to be of the Calcutta High Court. If indeed the petitioner or the detenu were having the certified copy itself and not the photocopy thereof, there was no reason for not producing it either before the Government or in the Crl. M.C proceedings all these three years. The Original Order or summons of Court have not been received so far. We are indeed inclined to order an inquiry into the genuineness of the so-called certified copy produced before us.
14. It is true that Courts give credence to letters of Advocates or to orders purporting to be certified copies. But when in a period of three years or more neither the original nor the so-called certified copy had been produced before anybody, serious doubts are raised in our minds about the genuineness of the certified copy. Further, such stay orders are not normally passed as a matter of course in COFEPOSA cases. It is now settled by various decisions of the Supreme Court that only in very rare situations can any High Court grant such an order of stay of execution of detention order under COFEPOSA. See: N.K Bapna v. Union of India ((1992) 3 SCC 512), State Of Tamil Nadu v. P.K Shamsudeen ((1992) 3 SCC 523) and Adl. Secretary to Govt, of India v. Smt. Alka Subhash Gadia (1992 Suppl. (1) SC 496). We have referred to these cases in Abdul Azeez v. Union Of India (1993 (1) KLT 906) and in Mohiyil Varghese Thomas v. State of Kerala (W.A No. 1397/93 dated 12-11-1993). The rare situations where a stay order can be granted before execution of a detention order arc: (i) where the impugned order is not passed under the Act under which it is purported to have been passed; (ii) that it is sought to be executed against a wrong person; (iii) that it is passed for a wrong purpose; (iv) that it is passed on vague, extraneous and irrelevant grounds; or (v) that the authority to pass the order had no power to do so. Learned counsel for the petitioner said the case comes under category (iv) above. Not one among the grounds (I) to (XV) as set out in the photocopy of the Writ Petition filed in Calcutta High Court deals with vagueness or extraneous or irrelevant grounds in the detention order. They deal with sufficiency of material. Therefore, when the grant of a stay order by a Court is limited to rare situations, we have considerable doubts as to the genuineness of the certified copy produced before us for the first time after three years. We arc, therefore, directing the Slate Government to ask the Crime Branch to investigate into the genuineness of the certified copy produced before us. Point No. 1 is decided against the petitioner.
15. Point No. 2:—Learned Government Pleader submitted, with reference to decided rulings of the Supreme Court and of the High Courts that, even assuming that the Calcutta High Court had passed a stay order, the same is wholly without jurisdiction inasmuch as without part of the cause of action arising in Calcutta High Court jurisdiction, a writ or an order could not be issued by the High Court to the State of Kerala in respect of a COFEPOSA detention order passed by the State of Kerala.
16. By the Constitution (15th Amendment), High Courts obtained powers to entertain Writ Petitions against States or bodies outside its jurisdiction, provided any part of the cause of action arose within the jurisdiction of the Court. But the question is whether the mere allegation of residence of the detenu within the jurisdiction of the Calcutta High Court can confer jurisdiction in the absence of any part of the cause of action arising within its jurisdiction. It is settled by various decisions of the Supreme Court and High Courts that mere residence of the petitioner without more, cannot confer jurisdiction, if the respondents are all outside the jurisdiction of the Court. See: Lt. Col. Khajoor Singh v. Union Of India & Another (AIR 1961 SC 532), State of Rajasthan v. Swaika Properties ((1985) 3 SCC 217 : AIR 1985 SC 1289); Bhagat Ram v. Union of India (1988 Supp SCC 30 : AIR 1988 SC 704); Abdul Kafi Khan v. Union of India (AIR 1979 Cal. 354); State of U.P v. Jana Seva Karyalaya Ltd. (AIR 1994 Cal. 65); Rakesh v. Union of India (AIR 1988 All. 47) and Shashi Kant R. Chadha v. Union of India (1990 (49) ELT 56 (Cal.)).
17. The case in Shashi Kant R. Chadha v. Union of India (1990 (49) ELT 56 (Cal.)) is a case arising under the COFEPOSA Act directly and it was held that detenu's residence alone could not confer jurisdiction. We respectfully follow the above judgment of the Calcutta High Court which is directly in point.
18. As appears from the photocopy of the Writ Petition filed in the Calcutta High Court, as sent by the Advocate (original of which has not so far been served on the Kerala Government in three years), the petitioner's brother (detenu) claimed to be employed in a restaurant called ‘Sengupta Sweets’ in Radha Nagar Road, P.S Hirapur, District Badhuvan, West Bengal, while claiming to hail from Cannanore District of Kerala. He refers to recovery of gold from Taxi KRZ 7183, but does not say anything about the place of seizure. He speaks of a conditional bail order (which asks him to be present at Tellicherry every Wednesday), but does not say how he is claiming to be ordinarily a resident of West Bengal. A photocopy of the affidavit annexed to the Writ Petition leaves blanks, in the name of the petitioner, father's name, age, place of residence. This was on 13-11-1990. In fact, no document is produced before us to substantiate that he was employed in West Bengal, he had written letters therefrom or had sent letters therefrom nor has a ration card, nor has he taken any house on rent, etc. In fact, counsel before us, who is appearing for the detenu's brother, has no evidence in this behalf.
19. But, learned counsel contends that ‘apprehension’ of the detenu that he will be arrested within the jurisdiction of the Calcutta High Court is part of the cause of action. Reliance is placed on the decision of a Division Bench of this Court in Madhusoodan v. Supdt. of Police (1992 (2) KLT 83) but that case arising under S. 438 Cr. P.C dealing with ‘anticipatory bail’ is clearly distinguishable inasmuch as the Section itself starts with the words ‘when any person has reason to believe that he may be arrested on accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session……….”, and it was held that the person so accused may move the Court within whose jurisdiction he was apprehending arrest. It is not necessary for us to say, one way or the other, whether the view expressed therein is correct or not for we are not concerned with S. 438 Cr. P.C It has been held by the Supreme Court that the provisions relating to ‘bail’ or ‘parole’ do not apply to preventive detention cases. See: Poonam Lata v. M.L Wadhawan ((1987) 3 SCC 347 : AIR 1987 SC 1383). We are of the view that for purposes of ‘cause of action’ under Art. 226 of the Constitution of India, merely because a person resides within the jurisdiction of the High Court concerned and such person ‘apprehends’ arrest from a Slate or authority located outside the territory of the jurisdiction of the said High Court, it cannot be said that any part of the cause of action arises within the jurisdiction of that High Court.
20. If the law were to be otherwise, a person proposed to be detained by the State of Kerala or its Officers can escape to a place within the jurisdiction of any other High Court in India and claim that he is residing within the jurisdiction of that Court and is apprehending arrest by Kerala State and obtain orders. In fact, in such a case, if persons proposed to be detained by the Slate of Kerala, go out and obtain such orders from other High Courts, the Kerala Slate will be compelled to fight the cases in all other Slates and the High Court of Kerala will have no place at all in these matters.
21. It is argued that if this Court makes any observations with regard to the jurisdiction of the Calcutta High Court, it may offend the general principle of ‘comity of courts’. We shall therefore consider the basis of this principle of ‘comity’ of courts and the exception thereto.
22. 21A. The forbearance which courts of co-ordinate jurisdiction administered under a single system exercise towards each other, whereby conflicts or interference with the process of each other is avoided, is called the principle of ‘comity’. The said principle has perhaps no higher sanction than the utility which comes from concord (Covell v. Heyman : 111 U.S 176). The doctrine of ‘comity’ between courts teaches that one court should defer action on causes even if they are properly within its jurisdiction, until courts of another jurisdiction with concurrent powers and already cognizant of the litigation, have had opportunity to pass upon the matter (Darr v. Burford : 339 U.S 200). Basically, the principle of ‘comity’ is not a mere doctrine applicable to courts alone. It is a principle involved in the relationships of nations or states with each other. It is not an obligation of international law. (In re Fischer's Will : 181 A. 875 : 119 N.J Eq. 217). It is a principle of practice, expediance and convenience. ‘Comity’ persuades; but it does not command. It declares, not how a case shall be decided, but how it may with propriety be decided (Baldwin v. Aberorombie Fitch Co. CCA. N.Y 228 F. 895). But, there are exceptions. The rule may be changed by legislation or by the need to conform to the law of the Slate or if it is opposed to public policy. (Corbin v. Houlehan : 61 I.A 131 : 100 Me. 246 : 70 L.R.A 568). There are other situations too and we shall refer to one such, which is directly in point.
23. A question similar to the one before us arose in Uniled States of America in Lipham v. State (22 S.E 2d 532). There, the applicant who applied for divorce in a Slate was a ‘mere sojourner’ and the opposite parly was not domiciled in that Slate. The Court there had no jurisdiction to grant a decree on substituted service and it was held that such decree, even-though authorised by that Slate's Laws, was a mere nullity and (was not entitled to full faith and credit elsewhere as a matter of right) should not be recognised by ‘comity’. (See: Words and Phrases, Permanent Edition, Vol. 7A, 4th Reprint, p. 383).
24. Therefore, while it is true that this Court must honour orders, if passed by other High Courts and cannot ignore them, and must leave the parties to go to the High Court which passed orders to have them vacated, the above principle must, of necessity, be initially applied to the High Court which first exercises jurisdiction to pass orders when no part of the cause of action arises before it. Otherwise, if the High Court within whose jurisdiction the entirety of the cause of action arises is to fold its hands and keep quiet, we must say that such a situation will lead to the very negation of the principle of comity of Courts.
25. It is clear therefore that before any High Court entertains a Writ Petition or passes an interim order which will affect a Slate or authority or person outside its jurisdiction, that Court must, in our opinion, first find out whether, apart from mere residence of its petitioner and the apprehension of arrest, any part of the cause of action has arisen within its jurisdiction. We say this with great respect and deference to other High Courts in our country.
26. Further, the case before us is not one where the State of Kerala has filed a writ petition here to avoid an order of the Calcutla High Court. It is a case where the petitioner who moved the Calcutta High Court earlier has got this writ petition filed on his behalf through his brother. If the same party or person representing him move different courts one after another, the latter of the Courts here can, in our view, even ask the party to withdraw the earlier case filed elsewhere, before granting relief.
27. We are compelled to say all this for the following reasons. We find that in some cases of grave offences under the Customs Act, when action is taken under the COFEPOSA Act by the Slate of Kerala, the parlies who are ordinarily residing in Kerala, have been suddenly claiming to be the residents of either Andaman Islands or West Bengal and are obtaining orders from the Calcutta High Court. While we have great respect for the orders of the Calcutta High Court, we are compelled to make these observations so that the effectiveness of the Kerala High Court as a Court of competent jurisdiction is not offended, much less paralysed. While making these observations, we mean no disrespect to the Calcutta High Court.
28. Therefore, the State of Kerala can, in our opinion, certainly point out to us that it is not bound by the order dated 13-11-1990 purporting to have been passed by the Calcutta High Court and which is not served on it so far. Neither the original nor summons have readied the State of Kerala in the last more than three years. Except a photocopy, the Stale has no idea of any order. When counsel in other States communicate with the Slate of Kerala to say that the High Court in which they are practising has passed orders against the State of Kerala, it is the duty of counsel to send, within reasonable time, a certified copy and not a photocopy. They have also to pay the process fee and see that the Writ Petition or stay petition/orders in original are served on the opposite side in another State. To just send a letter stating that an order is passed or to just send a photocopy and leave the matter at that for three years is wholly unjustified. As stated earlier, the so-called certified copy of the stay order was produced before us for the first time during arguments and we have ordered an inquiry into its genuineness. We, therefore, hold that the State of Kerala has good reasons to plead before us that it is not to be compelled to release the detenu merely because of an order purporting to be a certified copy of the stay order said to have been passed by the Calcutta High Court is, for the first time, produced after three years and when neither the original order of the Calcutta High Court nor the Court notices have been so far served on the State Government or its Officers. Point No. 2 is held accordingly.
29. The Original Petition is dismissed. This will not, however, preclude the detenu from seeking relief on grounds other than those based on the alleged order of the Calcutta High Court. The inquiry into genuineness of the certified copy will be conducted by the Crime Branch of the State of Kerala as stated above.
30. Dismissed.
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