Naushey (In Jail) vs District Magistrate and Others

R.R.K. Trivedi, J.—In both the aforesaid habeas corpus writ petitions, question of fact and law are similar and they can conveniently be considered and decided by a common order against which Learned Counsel for the parties have no objection. The habeas corpus Writ Petition No. 3320 of 1999 will be the leading case.

Petitioners of both the aforesaid writ petitions have challenged their detention under separate orders dated 3.9.1998 passed by the District Magistrate, Jalaun at Orai, u/s 3(2) of the National Security Act, 1980 (hereinafter referred to as the Act). Along with the order of detention, petitioners were also served with the grounds of detention on which basis the detaining authority formed his subjective satisfaction for detaining the petitioners under the Act.

From the perusal of grounds, it appears that on 13.7.1998 petitioners, Naushey and Sarju had gone to jail to meet somebody inside the jail. They came from the crowd of visitors and grabbed Santri, Santosh Kumar at the gun point and also fired at visitors who ran away. It is also stated that in the morning of 13.7.1998 while officiating Jailor, R.K. Tripathi and Deputy Jailor, Arun Kumar Saxena were going to get open the jail gates, petitioners intercepted them and took out their country-made pistols and threatened both of them for life if they enforced strictly the rules and regulations. At that time, jail guard, Uttam Sharma was also present. On account of the aforesaid activity of the petitioners, the jail authorities and the employees were under fear and there is danger to their life. A report of the aforesaid occurrence was lodged same day at 7 p.m. at police station Kotwali, Orai which was registered as Case Crime No. 692 of 1998, under Sections 352, 353, 342 and 506, I.P.C. which is under investigation. During investigation, statements of several employees and officers of jail were recorded by the Investigating Officer, u/s 161, Code of Criminal Procedure which supported the prosecution case. It has also been mentioned that both the petitioners are inside the jail under judicial custody but there is a threat to jail authorities from their companions outside the jail. There is great fear and commotion prevailing in jail and they are not able to discharge their duties fearlessly. On account of firing at the jail gate, people assembled there ran helter-skelter and atmosphere of fear and commotion prevailed on the State highway. There is also great threat to the internal and outside security of jail. On account of activity of the petitioners public order has been badly disturbed. Superintendent of Police and District Magistrate. Jalaun and superior jail authorities were informed about the incident. Superintendent of Police, Orai, directed to establish P.A.C. camp for security of jail authorities.

It has been further stated that petitioners surrendered on 16.7.1998 before the Court and they are under judicial custody. They have applied for grant of bail and there is every possibility that they will be released on bail. It has been said that if petitioners are allowed to come out from jail they shall again indulge in similar activity of violence and there is every possibility that they will disturb public order. It has also been stated that on 25.11.1997 at about 11.30 a.m., petitioners along with their other companions, Ashok Kumar Gupta, Shanker Singh and Babloo murdered Satendra Tripathi who was the student of M.A. Part I of Mahatma Gandhi Degree College, Orai and was the candidate for the post of President of Union. Murder was committed at public place in presence of police personels. After committing murder they threatened the persons present there that if they gave evidence against them they shall also be deprived of their lives. After committing murder they escaped taking advantage of the crowd and police force present there could not fire on them. A report was lodged same day at 12.30 p.m. at P.S. Kotwali, Orai which was registered as Case Crime No. 1057 of 1997, under Sections 147, 148, 149 and 302, I.P.C. In this case after investigation charge-sheet has been submitted and the case is under consideration of the Court.

It has also been stated that on 3.5.1997, Petitioner, Naushey along with his companions, Kattan and Rais Pathan murdered Gulley Mehtar, son of Bal Kishan and injured Lale, son of Babu at 12.30 p.m. by using firearms. In this connection a case was registered as Case Crirm No. 457 of 1997, under Sections 302 and 307, I.P.C. at P.S. Kotwali, Orai After investigation charge-sheet has been submitted in the Court and case is under consideration of the Court. The detaining authority on the aforesaid grounds felt satisfied that with a view to prevent petitioners from acting in any manner prejudicial to the maintenance of public order it was necessary to make an order of detention. The petitioners were also informed that against the order of detention they have a right to make representation to the State Government, Advisory Board and the Central Government. Their representations may be submitted through Superintendent of Jail. The petitioners were also informed that their case shall be referred to the Advisory Board where they may claim personal hearing which may be communicated by making an application to the Superintendent of Jail.

The case of the petitioners was referred to the Advisory Board on 14.9.1998. The representations of the petitioners with para-wise comments were sent to the Advisory Board by the detaining authority directly. On 24.9.1998 petitioners were heard personally by the Advisory Board. On 16.10.1998 the Advisory Board gave its opinion that there was sufficient cause to detain the petitioners. On 22.10.1998 State Government confirmed the order of detention u/s 12(1) of the Act for a period of 12 months.

The petitioners filed representation addressed to the Home Secretary of the State of Uttar Pradesh on 18.9.1998 which was forwarded by the detaining authority to the State Government with his comments on 20.9.1998. The State Government on 21.9.1998 received the representation. On 22.9.1998 representation was considered and with detailed notes it was submitted to the Under Secretary. Under Secretary considered it and same day it was placed before the Joint Secretary. On 23.9.1998 the representation of the petitioners was placed before the Principal Secretary, Home and Confidential Department who examined it and same day submitted it to the higher authorities for consideration. The representation was ultimately rejected on 25.9.1998.

In these petitions, counter- affidavits have been filed by Amit Mohan Prasad, the then District Magistrate, Jalaun, as Respondent No. 1, by Shri R.A. Khan, Under Secretary to the Government of Uttar Pradesh on behalf of Respondent No. 2, Shri Vinod Kumar, Deputy Jailor on behalf of Respondent No. 5, Superintendent District Jail, Orai and Bina Prasad, Under Secretary, Ministry of Home Affairs, Government of India has filed counter-affidavit on behalf of Respondent No. 3.

In the writ petitions, no averments were made that petitioners submitted any representation challenging the order of detention before the Central Government. In para 62 of the writ petition, only this was alleged that nothing has been heard from the Central Government. However, a supplementary counter- affidavit was filed on 4.5.1999 stating that petitioners handed over representation addressed to the Central Government on 27.1.1999 to the jail authorities. The signatures of the petitioners were attested and the jail authorities also signed it. In para 3, it has been stated that the representation was not forwarded to Central Government and after great lapse of time, it has been returned to the Petitioner. Along with the supplementary affidavit, original representation which was returned has also been filed. Supplementary counter-affidavit has been filed by Shri P.N. Pandey, Superintendent District Jail, Jalaun at Orai. In para 4 of the affidavit, it has been stated that he inquired regarding submission of the representation on 27.1.1999 and it has been found that representation was handed over to the Deputy Jailor by the petitioners and the said representation was placed before the Jailor by the Deputy Jailor. While the representation was in process to be forwarded to the detaining authority, petitioners themselves requested not to send the same, hence on their request the representation was return which has been filed as Annexure-1 to the supplementary affidavit. It has also been stated that neither the said representation was placed before the deponent nor the fact regarding submission and return of the same was placed before him. In para 5 of the supplementary counter-affidavit it has been alleged that notice of the present habeas corpus petition was given to the Government Advocate on 23.1.1999 and 27.1.1999. It has also been alleged that the representation was handed over by the petitioners and thereafter petitioners themselves requested to return the same and that might have been done on the advice of some one or by way of afterthought.

As the petitioners were transferred from Orai jail to Agra jail the application was filed on their behalf to summon the petitioners from Agra jail as they have no pairokars to file rejoinder-affidavit. Consequently, by an order dated 8.6.1999, the respondents were directed to produce the petitioners in the Court on 15.6.1999. Both the petitioners appeared in the Court and filed their rejoinder-affidavits stating that on 27.1.1999, they handed over their representation to the Deputy Jailor, Shri Vinod Katiyar. It has also been stated that petitioners never requested Shri Vinod Katiyar and Virendra Singh or Shri P.N. Pandey, Superintendent, District Jail to return their representation. The representation was returned to the petitioners after 20 to 25 days by Vinod Katiyar and Virendra Singh after morning prayer.

We have heard Shri Tej Pal, Learned Counsel for the petitioners, Shri Mahendra Pratap, learned AGA for Respondent Nos. 1, 2, 4 and 5 and also Learned Counsel appearing for the Union of India.

Learned Counsel for the petitioners has challenged the impugned order of detention and continued detention of the petitioners on following grounds :

That the representation of the petitioners submitted to the Central Government for consideration has been illegally returned and petitioners have been deprived of their valuable right to get the order of detention revoked by the Central Government and the continued detention of the petitioners has been rendered illegal and they are entitled to be released. In this connection it has also been submitted that the allegation that petitioners requested for return of the representation has been cooked which may not be believed. It has also been submitted that consideration on the representation by the Central Government is a Constitutional right of the petitioners guaranteed under Article 22(5) of the Constitution and it could not be waived.

Learned Counsel has further submitted that even if the alleged occurrence of 13.7.1998 is taken to be true it had no potency to disturb the public order. In the alleged incident jail employees and authorities were involved and there was no question of disturbance of public order.

Leaned counsel has also submitted that parentage of the petitioners has not been disclosed in the F.I.R. They were not put for identification by jail staff during investigation and the alleged involvement of the petitioners in two incidents reported after long delay do not have any cogent evidence for its support. The detaining authority without application of mind passed the order of detention against the petitioners in mechanical manner.

Learned Counsel has placed reliance on certain judgments of this Court as well as Hon�ble Supreme Court in support of his submission which shall be discussed at proper places.

Shri Mahendra Pratap, learned A.G.A., on the other hand, submitted that the representation addressed to the Central Government was returned on the request of the petitioners and petitioners cannot be allowed to raise any grievance at this stage. Learned Counsel also submitted that before filing the representation dated 27.1.1999 petitioners submitted their representation addressed to the Secretary, Home Department, Lucknow, which was forwarded by the detaining authority without any delay. There could be no reason on the part of the jail authorities not to forward the representation to the Central Government same day. It has also been submitted that Petitioner got it back under legal advice as the notice for the present petition was already given on 23.1.1999. Learned A.G.A. has further submitted that petitioners attacked and threatened the jail authorities for dire consequences that was a serious threat to the security and functioning of the jail administration. Such an activity could have sufficient potential and reach to disturb the public order and even tempo of life in that locality. Learned Counsel has submitted that the order of detention was necessary to prevent the petitioners from acting in any manner prejudicial to the maintenance of the public order.

We have thoughly considered the rival submissions of the Learned Counsel for the parties. Hon�ble Supreme Court in a recent case of Smt. Prem Lata Sharma Vs. District Magistrate, Mathura and Others, , considered that rights of detenu to represent Central Government for invoking powers u/s 14 of the Act and held that refusal on the part of detaining authority to send the representation to Central Government resulted in denial of right under Article 22(5), as such right subsists, so long as detention continues. In this case, Hon�ble Supreme Court also held that once representation was made to the Central Government, it was for it--and not for the detaining authority--to decide whether the representation may be rejected on the ground that his earlier representation has already been considered and rejected. The relevant paragraphs 4 and 5 of the aforesaid judgment are being reproduced below :

In our considered view the above stand of the detaining authority is wholly untenable : firstly, because in its letter dated August 26, 1997 the reason given by the detaining authority (mentioned earlier) for not sending the representation to the Central Government was different secondly, because no Rules referred to in that letter were brought to our notice. ; thirdly, because there is no--nor can there be--a period of limitation regarding exercise of a right of a detenu to make an obligation of the Central Government to consider the same for deciding upon the question of revocation of the order of detention, for such right and obligation subsist so long as the detention continues ; and lastly, because when the representation was made to the Central Government it was for it--and not for the detaining authority--to decide whether the representation should be rejected on the ground that his earlier representation had already been considered and rejected. To put it differently, when the representation was addressed to the Central Government and not to take a preemptive action thereupon of its own.

For the foregoing discussion, it must be held that refusal on the part of the detaining authority to send the representation of the detenu to the Central Government resulted in denial of the right conferred on him under Article 22(5) of the Constitution of India to persuade that Government to revoke the order of detention u/s 14 of the Act and on that ground his continued detention has become illegal. We, therefore, allow this petition, quash the impugned order of detention and direct that the detenu be released forwith unless wanted in connection with any other case.�

If the facts of the present case are considered in the light of the legal position explained by Hon�ble Supreme Court in the case of Smt. Prem Lata Sharma (supra) in respect of right of representation, we have no hesitation in saying that the plea taken by the jail authorities that the representation was returned to the petitioners on their own request cannot be accepted for more than one reason, which are as under :

(i) Admittedly, the representation was submitted by the petitioners on 27.1:1999, the original representation has been filed as Annexure-1 to the supplementary affidavit. It has also been admitted that it was returned to the petitioners but the jail authorities have not stated the date and time when it was returned to the petitioners. In the supplementary affidavit filed on 4.5.1999 in para 3, it was specifically stated that representation was returned to the petitioners after great lapse of time. Para 3 of the affidavit is being reproduced below :

That the copy of the representation meant and addressed to the Central Government has not been sent by the. jail authorities to the Central Government but returned to the petitioners after a great lapse of time.

In para 6 of the rejoinder-affidavit filed on 16.6.1999, it has been stated that the representation dated 27.1.1999 was returned to the petitioners after 20-25 days by Shri V. Katiyar, Deputy Jailor and Virendra Singh. Jailor after morning prayer. However, the affidavits filed by the jail staff is absolutely silent on this aspect of the matter. They ought to have disclosed the date of return of the representation in view of categorical statement of the petitioners that it was returned after long lapse of time. However, supplementary counter-affidavits filed is silent on this important aspect of the matter.

(ii) The original representation which was handed over to the jail authorities and was returned to the petitioners has been filed as Annexure-1 to the supplementary affidavit. There is no endorsement that it is being returned to the petitioners on their own request. If the story set up by the jail authorities was correct, such an endorsement ought to have been obtained from the Petitioner though, in our opinion, the question of return of the representation to the petitioners could not be legally decided by the jail authorities or by the detaining authority. They were under legal obligation to forward the same to the competent authority namely, Central Government, which could reject the same on the ground of withdrawal. It would be highly unsafe to recognise any such power in jail authorities or the detaining authority that they may return the representation on the request made by the detenu. If such view is taken the right of representation guaranteed under Article 22(5) of the Constitution and further provided under Sections 8 and 14 of the Act shall be rendered meaningless. The jail authorities and the detaining authority were under obligation to forward the representation to the appropriate authority for consideration and law does not confer on them any power to deal with the representation in any other manner.

(iii) The detenu while under detention remains under a kind of disability, as he cannot have assistance of anybody to guide him in such circumstances. If the waiver of such important right of representation against the preventive detention is accepted before the jail authorities or the detaining authorities, the chances cannot be ruled out that the authorities may manipulate a case putting the detenu under pressure to abandon his right of representation. To avoid any such consequence, in our opinion, it is necessary to lay down in the ends of justice that the jail authorities and the detaining authority will have no power to return the representation to the detenu once it has been handed over addressed to the State Government or the Central Government.

For the reasons stated above and in the facts and circumstances of the case, we have no hesitation in accepting the submissions of the Learned Counsel for the petitioners that the petitioners were illegally deprived of their right of the representation to the Central Government u/s 14 of the Act which is nothing but extension of the right and Constitutional safeguard provided u/s 22(5) of the Constitution of India. Thus, the continued detention of the petitioners has been rendered illegal and they are entitled for the relief. As petitions succeed on the first submission, we do not think it necessary to consider other submissions made by the Learned Counsel for the petitioners.

For the reasons stated above, both the petitions are allowed. As continued detention of the petitioners has been found illegal respondents are directed to set them at liberty forthwith, unless their detention is required in any other case.