Date:29/10/2006 URL: http://www.thehindu.com/2006/10/29/stories/2006102902631000.htm

National

Court: beware red herring in personal liberty plea

Legal Correspondent

It should not be a shield to suppress fraud

Take serious note of unclean approach Fraud may nullify goal of protecting liberty

New Delhi: While entertaining habeas corpus petitions, especially in preventive detention cases, the High Courts must ensure that the concept of personal liberty is not used by an accused as a shield to suppress his fraud, the Supreme Court has held.

Undue importance should not be attached to technicalities but where the court is satisfied that an attempt has been made to deflect the course of justice by letting loose red herrings, it will have to take serious note of the unclean approach, said a Bench consisting of Justices Arijit Pasayat and C.K. Thakker.

Writing the judgment, Justice Pasayat said if a person tried to deflect the course of justice rather than seek protection of his personal right, the court would have to ensure that some delay in considering the detenu's representation was not made use of for granting relief. If a fraud was committed in a given case, it might nullify the goal of protecting personal liberty.

Appeal dismissed

In the instant case, Sri Anand Hanumathasa Katare was detained under the Karnataka Goondas Act. The detaining authority after considering his representation submitted a report to the State government, which approved the preventive detention. In a habeas corpus petition, it was alleged that only the government and not the detaining authority ought to have considered the representation. The High Court dismissed the petition.

Dismissing the appeal against this judgment, the Bench pointed out that the detenu was informed of his right to make a representation to the government but he did not avail himself of the opportunity. Also, the detaining authority could independently decide on the representation and the State could act on it.

The Bench said if the person concerned was interested in getting an expeditious consideration or disposal of his grievance, he would honestly approach the proper authorities and would not adopt any dubious device "with the sole aim of creating a situation for delay in consideration and cry for relief on his own manipulated ground by directing his representation to an authority which is not directly/immediately concerned with such consideration."