AI Structured Summary
Not yet generated for this judgment
Judgment
R. H. Zaidi, J.—In all these habeas corpus pelilions, common questions of law and fact are involved, they were, therefore, heard together and are being disposed of by this common judgment.
By means of these petitions, pelilioncrs pray for issuance of a writ, orders or directions in The nature of habeas corpus to relcase the petitioners from detention and declaring their detention as illegal. Prayer for issuance of a writ, order or direction in the naunx of ceniorciri quashing the detention orders dated 11 61999, 1461999 and 2361999 passed by District Magistralc, Jhansi has also been made.
Relevant facts of the case giving rise to the above noted pelilions, in brief are that the detention orders noted above were served upon the petitioners atone with the grounds of detention, while they were in jail in connection with case crime No. 16/99 under Section 395/397, IPC etc. of P.S. Month, District Jhansi, said orderwere based on sofitary incident dated 2221999. It was staled that said date was fixed for filing nomination papers of the candidates for the post of Administrafor of Sadhan Sahkari Samiti of Distrkt Jhansi. For filing his nomination paper, Gajendra Singh son of Deo Singh s/o Samariya P.S. Shahjahanpur, reached the premises of Devetopment Btock Month by his vehicle No. DDD 1664 with Bhajju son of Manohar, Ram Kumar son of Natthu Ram, Prakash Singh son of Dhani Ram r/o village Samiriya and by another vehicle Armada, Uma Shanker Singh, Home Guard Bal Kishan, Rajesh son of Ram Pratap r/o Tafore reached there at 12 a.m. Before the aforesaid persons reached the place of incident, it is alleged that the petitioners were present there, who were armed with fire arms and who already filed their nomination papers. As soon as Gajendra Singh and his associates got down of their vehicles, petitioners Deep alias Deep Narain Singh Yadav exhorted his associates to teach them how nomination papers are filed, they should not escape, as they did not like any nomination paper to be filed against them. On which, it is alleged that the petitioners and others started firing indiscriminately with a view to kill Gajendra Singh and his associates; but no bedy is stated to have received gunshof injuries. Gajendra Singh is alleged to have been beaten by butt of the gun. Others are also alleged to have been assaulted. In the said incident, Gajendra Singh and others received severe bedily injuries. The petitioners and others are also alleged to have toofed gotden chain and money from Gajendra Singh by Charan Singh and Kamlesh. In respect to the said incident case crime No. 16/99 under Section 395/397, IPC and Section 3C(3) of the Representation of People Act, was registered at police station Month at 13.45 hours. Said incident is also alleged to have been reported by police constable bearing Nos. 426 and 707. Thereafter, police personnel reached the place of occurrence. It has been stated that on account of the said incident, the entire area was gripped with fear and tension, which has adversely affected the public order. The residents of the locality ctosed their shops due to fear. The accused persons are alleged to have been arrested in connection with the aforesaid incident and sent to District Jail, Jhansi. Petitioners, thereafter, applied for their bail, but their applications were rejected by the Sessions Judge as well as by the High Court. Sub sequently, on 2nd bail application being filed, they were relcased on bail by the High Court.
With respect to the aforesaid incident, another FIR was lodged by Ram Kumar son of Narain Das Yadav r/o village Shahjahanpur, against Gajendra Singh, Rajendra and Daddu, which was registered as case crime No. 16A of 1999 under Section 395/397, IPC and under Section 2C(3) of the Representation of Peoples Act. Papers relating to the aforesaid incident were, thereafter, communicated to the District Magistrate, on the basis of which he has passed the order of detention dated 1161999 under Section 3(2) of the National Security Act, for short the Act. On receipt of the aforesaid orders, petitioners filed representations dated 2161999, which were forwarded by the District Magistrate, Jhansi to the State Government on 2461999. The representations were received by the State Government on 2561999. The matter was, thereafter, referred to Advisory Beard by the State Government vide its letter dated 2561999 along with the detailed note. The representations of the petitioners are alleged to have been rejected by the State Government on 2861999. Said order was communicated to the petitioners on 361999. Ministry of Home Affairs, New Delhi vide telegraphic message dated 2861999, asked the opinion of the Advisory Beard. The report of the Advisory Beard was received by the State Government, on 227 1999, which was sent to the Ministry of Home Affairs, New Delhi on the same date. The Ministry of Home Affairs has also confirmed the detention of the petitioners for a period of 12 months from the date of their detention, hence the present petitions.
Learned Counsel for the petitioners, Mr. Virendra Bhatia vehemently urged that before the detaining authority, the relevant material, particulars of papers relating to crosscase i.e. case crime No. 16A of 1999, bail applications and the order of relcased passed by High Court, were not placed, which ought to have been influenced his mind not to pass any order against the petitioner and theorder has been passed in contravention of the provisions of Sections 4 (4) and 3 (5) of the Act. It was also urged that the order of detention was passed to ensure fair and free election of cooperative societies. Said election has already taken place on 1161999. Therefore, there was no likelihood of disturbance of public order after the said date. It was also urged that the detention order has been passed without application of mind and whofly arbitrarily by the detaining authority.
On the other hand learned Government advocate supported the validity of the impugned older. It was urged that all relevant material was placed before the detaining authority and the impugned orders were passed after perusal of all relevant material before him. The impugned order of detention was, thus, quite valid and legal. Learned Government Advocate has further submitted that the papers relating to the crosscase were at al 1 not relevant for the purposes of present case and even if said papers were not placed before the detaining authority before the impugned order was passed, same does not affect the validity of the impugned orders.
We have considered the submissions made by learned Counsel for parties and also thoroughly perused the record.
The impugned order of detention has been passed by the detainingauthority, District Magistrate, Jhansi in exercise of powers under subsection (3) of Section 3 of the Act, which reads as under:
"(3) Power to make orders detaining cer n persons
(3) If. having regard to the circumstances prevailing or likely to prevail in any area within the local limits of the jurisdiction of a District Magistrate or a Commissioner of Police, the Stale Government is satisfied that it is necessary so to do, it may. by order in writing, direct that during such period as may be specified in the order, such District Magistrate or Commissioner of Police may also, if satisfied as provided in subsection (2), exercise the powers conferred by the said subsection:
Provided that the period specified in an order made by the Stale Government under this subsection shall not in the first instance.exceed three months but the State Government may, if satisfied as aforesaid that it is necessary so to do. amend such order to extend such period from time to time by any period not exceeding three months at any one time."
In para 20 of the counter affidavit filed on behalf of the District Magistrate, it has been stated as under:
"20. That in reply to the contents of paragraph Nos. 19 to 22 of the writ petition it is stated that a crosscase No. 16A of 1999 was registered after 6 days of the incident which took place on 2221999. It is further stated that all the facts stated in the cross case on investigation were found to be incorrect and final report was submitted in that regard and the same was also forwarded. The deponent is advised to stale thatthere was no need to supply the copy of the case crime No. 16A of 1999 as the same was lodged after about 6 days. It is further submitted that nonsubmissions of the first information report of case crime No. 16A of 1999 is concerned, it''is stated that the first information report was registered on 2721999 and as already suited the final report was submitted. The deponent is further advised to state that the assert ions of the petitioner that the facts relating to case crime No. 16A of 1999 were necessary and relevant material to be placed before the detaining authority is not correct. The deponent is further advised to stale that The petilioner has been supplied with the material in support of the grounds of detention. It is further stated thatthe deponent passed the detention order after applying his mind to the material placed before him by the sponsoring authority and after being satisfied that the activities of the petitioner affected public order."
From the statement of facts made in the aforesaid para of the counteraffidavit, it is apparent that crime case No. 16A of 1999 was registered at the samepolice station where case crime No. 16/99 was registered in respect of the same incident. In the crosscase Gajendra Singh and others have been nominated as accused persons. It is also admitted that papers relating to the aforesaid cross case were not submitted to the District Magistrate, consequently there arose no occasion of application of mind to the said papers by him. If the facts stated in the crosscase are accepted or treated as correct, no offence against trie petitioners can,at all, be made out.
In view of aforesaid submissions made by the learned Counsel for the parties it will have to be seen as to whether papers relating to crosscase as well as FIR, bail application and bail order passed by the High Court were vital for the purposes of the present case and as to whether it was obligafory upon the detaining authority to apply its mind to the said material before passing the impugned orders of detention against the petitioners.
It is well settled in law that before making up its mind, to pass the order of detention, the detaining authority should apply its mind to the material facts. In Asha Devi wife of Gopal thermal Mehta v. K. Shivraj, Addl. Chief Secretary to the Government of Gujarat and another, 1979 SCC (Crl.) 262, which was a case under Section 5 (1) of the COFEPOSA, it was ruled by the Supreme Court as under:
"It is well settled that the subjects satisfaction requisite on the part of the detaining authority, the formation of which is a condition precedent to the passing of the detention order will get vitiated if material or vital facts which would have a bearing on the issue and would influence the mind of the detaining authority one way or the other are ignored or not considered by the detaining authority before issuing the detention order."
Similarly in State of U.P. v. Kamal Kishore Saint, 1988 SCC (Crl.) 107, question arose as to whether bail application filed on behalf of the detenu was a material fact, the apex Court was plcased to rule as under:
"Similarly, with regard to ground No. 3, the application of the coaccused as well as the statement made in the bail application filed in behalf of the detenus alleging that they had been falsely implicated in the same case and the police report thereon, were not produced before the detaining authority before passing of the detention order. The High Court, therefore, was justified in holding that the assertion made in the return that even if the material had been placed before the detaining authority, he would not have changed the subjective satisfaction as this has never been accepted as a correct proposition of law. It is incumbent to place all the vital materials before the detaining authority to enable him to come to a subjective satisfaction as to the passing of the order of detention as mandaforily required under the Act. This finding of the High Court is quite in accordance with the decision of this Court in the case of Asha Devi v. K. Shivraj and S. Cjurdip Singh v. Union of India."
Similar view was taken by Apex Court in Ayya alias Ayuh v. State of U.P. and another, 1989 SCC (Crl.) 153 and it was held as under:
"What weight the contents and assertion in the telegram should carry is an altogether a different matter. It is not disputed mat the telegram was not placed before and considered by the detaining authority. There would he vitiation of the detention on grounds of non application of mind if a piece of evidence, which was relevant though not binding, has not been considered at all. If a piece of evidence which might reasonably have affected the decision whether or not to pass an order of detention as excluded from consideration, there would he a failure of application of mind which, in turn, vitiates the detention. The detaining authority might very well have come to the same conclusion after considering this material but in the faciv of the case the omission to consider inc material assumed materiality."
A Full Bench of this Court in ShashdharMisra Superintendent, Central Jail, Naini, Allahabad, 1985 ALJ 1222 (FB), was plcased to rule that if version of the person proposed to be detained was already there, in all fairness the detaining authority must consider that version alongwith that of the police before making up its mind whether or not he should act upon the report of the police. It was further held that since the District Magistrate has failed to consider the counter version given by the detenu relating to the incident which formed ground of his detention, the order of detention is vitiated.
Relying upon the aforesaid Full Bench decision, a Division Bench of this Court in Munna Jaiswal v. District Magistrate, Varanasi and another, 1986 ALJ 265, was plcased to the rule as under:
"The question which falls for consideration is what is the effect of the failure of the District Magistrate to consider the version of the incident given by the petitioner in his first information report. As the first information report lodged, on behalf of the petitioner contained version of the incident according to which the petitioner was the victimof the assault made by Anil Singh and others, it became a relevant material. There were two version of the same incident, one, given by the petitioner and the other given by Srinath Singh. According to the version of the petitioner, he had not indulged in any activity which could be said prejudicial to public order instead he himself was victim of the assault. On the other hand, Srinath Singh had given a different version of the same inc ident according to which petitioner had committed assault on Anil Singh and his friends. In this view the version of the incident as given by the petitioner in his FIR was relevant material which ought to have been placed before the District Magistrate and he should have considered the same. Had the first information report lodged by the petitioner been placed before the District Magistrate and if he had occasion to consider the same, he may not have passed the detention order on the basis of the report lodged by Srinath Singh."
Similar view has been taken by this Court in Mango Tyagiv.AdhishakJanpad Karagar, Moradabad, 1998 JIC (Allahabad) 327 and in Shiv Kumar v. Uttar Pradesh Rajya Evam Any a (Hindi), 1998 (2)ACrR1130.
In view of the aforesaid decisions, it is not settled that the papers relating to cross case are vital for the purposes of consideration under Section 3(3) of the Act. Similarly bail application and the bail orders passed by the High Court granting bail, are also material for the aforesaid purposes and in the event they are not taken into consideration and the detention order is passed by the detaining authority, the same is vitiated.
Learned Government Advocate, in support of his submission, placed reliance on the decision in M. Mohamed Sulthan v. Joint Secretary to Government of India, Finance Department and others, 1991 SCC (Crl.) 104. In the said case the question was as to whether application for relaxing condiiion of bail, was a vital material for the purposes of subsection (3) of Section 3 of the Act. In M. Ahmedkutty v. Union of India, 1990 (2) SCC 1, as well as mHaridasAmarchandShah v. K.L. Verma, 1989 (1) SCC 250, the Apex Court ruled that the application for relaxation of condiiion of bail was not material. Relying upon the said decision, Supreme Court in M. Mohamed Sultan''s case (supra), ruled that the application for relaxation of conuition of bail was not relevant material. Tiic aid case has got no application to the facts of the case, inasmuch as, in the present case petitioners never applied for relaxation of condition of bail, nor contended that such application was required to be considered. Therefore, submission made by learned Government Advocate, to the contrary, cannot be accepted. Learned Government Advocate could not cite any case holding that cross version, application for bail, or the orders granting bails were not relevant material and they were not required to be considered before passing an order of detention.
In Icchu Devi Chorasia v. Union of India, 1988 SCC 538, the Apex Court was plcases to observe that:
"The Court has always regarded personal liberty as the most precious possession of mankind and refused to toferate illegal detention, regardless of the social cost involved in the relcase of a possible renegade."
"This is an area where the Court has been most strict and scruputous in ensuring observance with the requirements of the law and even where a requirement of the law is breached in the slightest measure, the Court has not hesitated in strike down the order of detention."
In view of the aforesaid discussions, we have got no hesitation in coming to the conclusion that the impugned orders of detention, were passed by the detaining authority against the petitioners without application of mind to the material facts, they are, therefore, invalid. The detention of the petitioners in pursuance of the said orders is illegal. The impugned orders are, therefore, liable to be quashed and the petitioners are liable to be relcased from the illegal detention forthwith.
These habeas corpus petitions succeed and are allowed with costs. The orders dated 1161999,1461999 and 2361999 passed by the District Magistrate, Jhansi in the above noted petitions, are quashed. The respondents are directed to set the petitioners at liberty forthwith, unless they are held in custody in pursuance to any other order passed under any law full authority.