Criminal Misc.(Habeas Corpus) Writ Petition No. 9373 of 2008. Case: Rajiv Mishra Vs State of Uttar Pardesh and Others. High Court of Allahabad (India)

Case NumberCriminal Misc.(Habeas Corpus) Writ Petition No. 9373 of 2008
CounselA.B.L. Gaur, B.K. Tripathi, Tej Prakash, Ali Murtaza
JudgesV. M. Sahai & S. P. Mehrotra, J.
IssueConstitution Of India, 1950 - Articles 226, 14, 22(2); National Security Act, 1980 - Sections 3(2), 3(4), 3, 8(1), 10, 12(2); Indian Penal Code, 1860 - Sections 34, 120(B), 147, 302, 504, 507; Maintenance of Internal Security Act, 1971 - Sections 3(1)(i), 3(1)(ii), 3(1)(iii), 3, 3(1), 3(2); Conservation Of Foreign Exchange And Prevention Of ...
Judgement DateJanuary 23, 2009
CourtHigh Court of Allahabad (India)

Judgment:

S. P. Mehrotra, J.

The present Habeas Corpus Petition has been filed by the petitioner under Article 226 of the Constitution Of India, 1950, inter-alia, praying for quashing the impugned detention order dated 06-12-2007 (Annexure 1 to the Writ Petition) passed by the District Magistrate, Gorakhpur (Respondent No.2), detaining petitioner under Section 3 (2) of the National Security Act, 1980 (in short "the N.S. Act"), and further, for directing the respondents to set the petitioner at liberty forthwith.

Counter Affidavits have been filed on behalf of the respondents.

From a perusal of the averments made in the Writ Petition as also in the Counter Affidavits, the facts as stated here-in-after, emerge.

It appears that a First Information Report was lodged by one Rajan Kumar Jaiswal on 22-9-2007 regarding an incident alleged to have taken place on 21-9-2007. The said First Information Report was registered as Case Crime No.1624 of 2007, under Section 302/34 of the Indian Panel Code and Section 7 of the Criminal Law Amendment Act, at Police Station Cantt., District Gorakhpur against the following persons:

1-Sajan Lal alias Navin Jaiswal.

2-Anil Mishra.

3-Rajiv alias Pappu Mishra (Petitioner).

4-Ratan Mishra.

The aforesaid accused including the petitioner were arrested in connection with the said Crime Case.

During investigation, Section 2/3 of the U.P. Gangsters Act was also added in the aforesaid Crime Case.

While the petitioner was in detention in connection with the aforesaid Crime Case, the S.H.O., Police Station Cant., District Gorakhpur submitted his report dated 25-11-2007 to the Senior Superintendent of Police, District Gorakhpur recommending detention of the petitioner under Section 3(2) of the N.S. Act. The Circle Officer Cant., District Gorakhpur also submitted his recommendation in this regard.

Thereupon, the Senior Superintendent of Police, District Gorakhpur made similar recommendation dated 29-11-2007 to the District Magistrate, Gorakhpur.

The District Magistrate, Gorakhpur (Respondent No.2) thereafter passed the detention order dated 06-12-2007 against the petitioner under Section 3(2) of the N.S. Act. Copy of the said detention order dated 6-12-2007 has been filed as Annexure 1 to the Writ Petition.

The petitioner was supplied with the grounds of detention as per the requirements of Section 8 (1) of the N.S. Act. Copy of the grounds of detention has been filed as Annexure 5 to the Writ Petition.

The detention order was approved by the State Government as per the requirements of Section 3 (4) of the N.S. Act.

The petitioner made a representation dated 17-12-2007 addressed to the District Magistrate, Gorakhpur, the Secretary, Home Department, U.P. Government, Lucknow, the Chairman, U.P. State Advisory Board, Lucknow and the Secretary, Home Ministry (Internal Security Department), Government of India, North Block, New Delhi.

The said representation of the petitioner was rejected by the District Magistrate, Gorakhpur. The State Government also rejected the said representation of the petitioner, and the same was communicated by the Radiogram dated 3-1-2008.

The said representation dated 17-12-2007, as noted above, was also addressed to the Central Government.

From a perusal of the Counter Affidavit filed on behalf of the Union of India (Respondent No.5), it transpires that the said representation dated 17-12-2007 from the detenu alongwith the para-wise comments of the Detaining Authority was received by the Central Government at the concerned desk of the Ministry of Home Affairs on 01-01-2008 through the District Magistrate, Gorakhpur by letter dated 21-12-2007.

After the processing of the said representation, the same was considered and was rejected by the Union Home Secretary on 03-01-2008.

Radiogram dated 8-1-2008 was sent in this regard. Copy of the said Radiogram dated 8-1-2008 has been filed as Annexure CA-1 to the said Counter Affidavit filed on behalf of the Union of India (Respondent No. 5).

It has been stated in the Counter Affidavit filed on behalf of the respondent No.4 (Jail Superintendent, District Jail, Gorakhpur) that the petitioner was informed regarding the said Radiogram on 8-1-2008; and that thereafter, after receiving the copy of the rejection order of the representation from the Central Government, the same was served upon the petitioner on 14-1-2008.

The matter was referred to the Advisory Board under Section 10 of the N.S. Act. The Advisory Board gave its opinion that there was sufficient cause for the detention of the petitioner.Thereupon, the State Government passed an order dated 24-1-2008 confirming the detention order dated 6-12-2007 for a period of 12 months from the date of detention, namely, 6-12-2007. Copy of the said order dated 24-1-2008 has been filed as Annexure 6 to the Writ Petition.

We have heard Sri A.B.L. Gaur, learned Senior Counsel assisted by Sri B.K. Tripathi, learned counsel for the petitioner, Sri Tej Prakash, learned counsel appearing for the Union of India (Respondent No.5) and Sri Ali Murtaza, learned A.G.A. appearing for the respondent Nos. 1, 2, 3 and 4, and perused the record.

Sri A.B.L. Gaur, learned Senior Counsel has made the following submissions:

1- One of the co-accused in the aforesaid Crime Case, namely, Sajan Lal alias Navin Jaiswal was also detained under the N.S. Act on similar allegations as against the petitioner. The Central Government did not approve the detention of the said Sajan Lal alias Navin Jaiswal, and he was released from detention.

On the principle of parity, the petitioner also deserves to be released from detention.

Reliance in this regard has been placed on a Division Bench decision of this Court in Rajesh and others Vs. State of U.P. & others, 2002 (45) ACC 738 (DB).

2- Subjective satisfaction of the Detaining Authority can be judicially reviewed by this Court, and it is open to this Court to consider as to whether the subjective satisfaction had been arrived at by the Detaining Authority properly.

Applying the above principle to the present case, it is evident that the detention order dated 6-12-2007 cannot be sustained as the subjective satisfaction has not been properly arrived at by the Detaining Authority.

Reliance in this regard has been placed on a decision of the Apex Court in State of Maharashtra and others Vs. Bhaurao Punjabrao Gawande, 2008 (61) ACC 713 (SC).

3- The alleged incident relied upon by the Detaining Authority in passing the detention order dated 6-12-2007 could, if at all, affect only law and order. Public order was not disturbed by the alleged incident. Public order would be disturbed when tempo of life is affected.

In the circumstances, the detention order dated 06-12-2007 is patently illegal and is liable to be quashed.

Reliance in this regard is placed on the following decisions:

(a) Sheshdhar Mishra Vs. Supdt. Central Jail, Naini and others, 1985 (Supplement) ACC 304 (FB).

(b) Collector and District Magistrate and others Vs. S. Sultan, AIR 2008 S.C. 2096.

4- The petitioner was already in custody in connection with the aforesaid Crime Case, when the detention order dated 06-12-2007 under the N.S. Act was passed.

The requirements to be fulfilled in such circumstances have not been fulfilled in the present case, and as such, the detention order is bad in law.

Reliance in this regard has been placed on a decision of the Supreme Court in Surya Prakash Sharma Vs. State of U.P. and others, 1994 (31) ACC 765 (S.C.).

In reply, the learned counsel for the respondent No. 5 and the learned A.G.A. have made the following submissions:

1- The principle of parity has no application in the matter of detention.

Reliance in this regard has been placed on the following decisions:

(a) District Magistrate & another Vs. Kulbir Chand, 1990 SCC (Cri) 538.

(b) Chandresh Paswan Vs. State of U.P. 1999 (38) ACC 721 (FB); 1999 (2) JIC2 (All) (FB).

(c) Yogendra Murari Vs. State of U.P. & others, 1988 SCC (Cri) 992.

2- Subjective satisfaction arrived at by the Detaining Authority can be challenged only on limited grounds as laid down by the Supreme Court in State of Maharashtra and others Vs. Bhaurao Punjabrao Gawande case (supra).

None of the grounds mentioned in the said decision exists in the present case, and, therefore, the detention order dated 06-12-2007 is perfectly legal and valid.

3- Grounds of detention for passing the detention order dated 06-12-2007 clearly show that it was a case of disturbance to the public order, and not merely disturbance to the law and order. The detention of the petitioner was necessary to prevent him from acting in any manner prejudicial to the maintenance of public order, and the detention order dated 06-12-2007 was validly passed under Section 3(2) of the N.S. Act.

4- The requirements to be fulfilled in case a detention order under the N.S. Act is passed in respect of a person who is already in custody, are fulfilled in the present case, and the detention order dated 06-12-2007 was perfectly legal and valid.

Let us now consider the submissions made by the learned counsel for the parties.

Submission No.1 made on behalf of the petitioner:

Submission No.1, as noted above, is regarding the applicability of the principle of parity in the present case.

In order to appreciate this submission, it is necessary to refer to paragraph 20 of the Writ Petition which is as under:

20. That it is relevant to submit here that the deponent came to know from reliable sources that in respect of same incident, co-accused Sajan Lal alias Navin Jaiswal has also been chosen for detaining under section 3(2) National Security Act, 1980 by the similar order passed by respondent no. 2 and against whom not only vital role in the alleged incident of murder has been assigned but also the direct motive has been referred against co-accused Sajan Lal alias Navin Jaiswal. The detention order against co-accused Sajan Lal alias Navin Jaiswal has not been confirmed and approved by the Central...

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