Vijay Singh vs State of U.P.& Ors.

Through the present application under Article 226 of the Constitution of India the petitioner has challenged his order of detention dated 261997 recorded by the District Magistrate, Falehgarh, Farrukhabad, under Section 3 (2) of the National Security Act. A prayer has been made for quashing the detention order and for setting the petitioner at liberty forthwith. The State of U.P. through Home Secretary, Lucknow, the District Magistrate, Fatehgarh, Farrukhabad, Senior Superintendent of Police, Fatehgarh (Farrukhabad) and Jail Superintendent, District Jail, Lucknow, were noticed as respondents and counteraffidavits were filed by the respondents.

The detention order was annexed as Annexure No. 6 to the writ petition. It was stated therein that the District Magistrate, Fatehgarh, was satisfied that detention of the petitioner was necessary to prevent him from committing acts prejudicial to the maintenance of public order. Accordingly, the detention order was recorded on 261997 under Section 3 (2) of the National Security Act directing his detention in Lucknow Jail.

The detention order was appended with the grounds as required under the law. In the grounds it was stated that by an order dated 261997 the petitioner had been detained under Section 3 (2) of the National Security Act and the grounds were being communicated to him as required under Section 8 of the Act. The grounds were as follows:

(i) On 971994 one Pramod Kumar Pandey had lodged a report at Kotwali Farrukhabad against the petitioner and his associates slating therein that they had raised his medical store being armed with tamancha and had killed Vinod Kumar Pandey brother of Pramod Kumar Pandey and took away the licensed gun of Pramod Kumar Pandey. Upon this F.I.R. Case Crime No. 595 of 1994 was started and after investigation chargesheet was submitted and the case was under trial. This incident took place in open day light in the town of Farrukhabad and had created a panic in the locality. The shopkeepers pulled down their shutters and people started running away and closed their doors. The incident had prejudicially affected public order.

(ii) It was further stated that Sri Sudhansu Dutt Diwedi lodged an F.I.R. at Kotwali, Farrukhabad, intimating therein that on 921997 Sri Brahm Dutt Diwedi, a legislator from the Bhartiya Janta Party and a former Minister of U.P., had gone to the house of one Hitesh Chandra Agarwal on the occasion of tilak. His bodyguard Sri Brij Kishore was with him. After the tilak when Brahm Dutt Diwedi was coming back to his car, the present petitioner holding a revolver and accompanied by three unknown associates also armed with fire arms reached near the car of Brahm Dutt Diwedi, surrounded the car and all of them showered bullets on Sri Diwedi causing grievous injuries, Brahm Dutt Diwedi, his bodyguard Brij Kishore and the

driver Sri Sher Singh were injured. The aforesaid Brahm Dutt Diwedi and Brij Kishore died in a Nursing Home almost immediately thereafter. The incident was seen by all of the people assembled at the time of the tilak and the incident had created a panic in the locality and had affected public order prejudicially.

It was stated that the District Magistrate was satisfied on the basis of these two incidents that the criminal activities of the petitioner had created and atmosphere of terror in the locality and people were scared at the sight of the petitioner and there was possibility of repetition of similar criminal acts at the instance of the petitioner. It was, therefore, necessary to detain the petitioner to prevent him from doing acts prejudicial to the maintenance of public order. The District Magistrate indicated that the petitioner was in custody in Case Crime No. 109 of 1997 (relating to murder of Brahm Dutt Diwedi) and chargesheet was not expected within 90 days and it was likely that on technical grounds he would get bail and once on bail the petitioner would again engage himself in similar activities. He was given the opportunity of making a representation as also to pray for a personal hearing before the Advisory Board.

The order of detention was served upon the petitioner on 361997 and it was approved by the State Government on 1061997 as required under Section 3 (5) of the National Security Act. He submitted a representation on 2061997 which was forwarded through the District Magistrate who sent it to the State Government on 2261997. The State Government received it on 2361997 and sent it to the Advisory Board alongwith the grounds on 2761997 as required under Section 10 of the National Security Act. The State Government also considered the representation by itself and rejected it on 30697. This communication was made to the petitioner by 571997. The Advisory Board recommended detention and thereupon the State Government confirmed the detention order on 2871997 as required under Section 12 (1) of the National Security Act which was communicated to the petitioner on 281997. The Central Government confirmed the detention order on 26897 and communication was made on 491997. The Central Government, however, was not made a party in the writ petition and there was no opportunity given to the Central Government to explain the time taken in disposing of the representation made by the petitioner.

The detention order was challenged on several grounds. It was contended that the detention order related to murder cases and the narration of the facts indicated that the alleged murders were committed out of personal grudge. There was no question of any disturbance of publicorder and the petitioner was held up merely for political rivalry. It was further urged that the District Magistrate had recorded his satisfaction on the basis of gist of the cases submitted by the police which did not give the correct facts. In fact the District Magistrate had simply dittoed the opinion of the investigation officer without any application of mind. The petitioner further raised a point that the District Magistrate was influenced by irrelevant and extraneous matters placed before him and a prejudicial approach was made to the facts. It was contended that the District Magistrate had failed to take note of the tact that the petitioner was required in Case No. 595 of 1994 as well and the C.J.M. Farrukhabad, had issued a ''B'' warrant for his production in that case as far back as on 1 41997 and the petitioner had not moved the Court for bail in relation to Case Crime No. 595 of 1994 and there was, therefore, no likelihood of his coming out and as such the whole detention order was bad. It was further contended that a coaccused Pankaj Mishra who figured as an accused in both the cases of 1994 and 1995, had not been proceeded against for preventive detention and this was clearly a discrimination at the instance of the State, which vitiated the detention order. The delay on the part of the Central Government to take a decision on the representation was also made a point to challenge the continued detention of the petitioner and at the outset this plea is not to be accepted as the Central Government was not made a party and there was no opportunity given to the Central Government to explain the alleged delay. The learned Counsel also submitted that there was only one communication to him on 281997 concerning the rejection of his representation but this fact needs no discussion in detail as what was communicated on 281997, was the confirmation order under Section 12 (1) and it was stated in the counteraffidavit of the State Government that the representation was rejected on 3061997 itself and communication thereof was duly made to the petitioner which was not denied in the rejoinder affidavit.

On behalf of the State Government a preliminary objection was taken that the applicant was admittedly in custody and admittedly he did not move for bail in Case Crime No. 595 of 1994 and as such his challenge against the detention order is a futile one as a release order in this case may not entitle him to be released from custody forthwith. This argument again appears to be not acceptable as the question of the petitioner being in custody is one raised by the petitioner to challenge the very detention order. Moreover, he might have been legally advised not to move for bail in view of the present detention order and that may not deter him from challenging the order of the detention made against him under Section 3 (2) of the N.S. Act.

Before taking up the arguments, it is necessary to indicate in brief the statement in counteraffidavit of the respondents. It was contended by the District Magistrate that the materials placed before him suggested that public order, peace and calm of the area were affected due to activities of the petitioner and there was a bail order in favor of the petitioner by a competent Court on 261997 and the petitioner was likely to come out and there was every likelihood on his further indulging in similar activities prejudicial to public order. In his counteraffidavit, the District Magistrate indicated what were the allegations in relation to Case Crime No. 595 of 1994, how the activities of the petitioner had affected public order and the even tempo of the society in relation to this case. The District Magistrate took up a definite stand that chargesheet was submitted against the petitioner after conversion of the case to one under Section 302/380, IPC and he stated categorically "it is further made clear that there was no custody warrant in Case Crime No. 595 of 1994." The petitioner was likely to be released in the other Case Crime No. 109 of 1997 and only upon such satisfaction the detention order was passed. The counteraffidavit of the Jailor indicated that a ''B'' warrant was received in respect of the petitioner in Case Crime No. 595 of 1994 from the Court of C.J.M., Farrukhabad, to produce the petitioner before the Court concerned and the petitioner was produced sent to Farrukhabad on 671997 for his production before the C.J.M. He was silent about the averments that the first ''B'' warrant was sent on 141997 subsequent counteraffidavit was filed by the Jailor, however, on 2911998, to indicate that a warrant in Case Crime No. 595 of 1994 was issued by the C.J.M. Farrukhabad, which was received by Jailor on 841997 for production of the petitioner on 15497. A true copy of the ''B'' warrant was also annexed to this affidavit. Nothing was, however, spoken as what action was taken on it or what were the reasons for in action. This supplementary counteraffidavit indicates that a next ''B1 warrant was received in that very caseon 561997 from the C.J.M. Farrukhabad, for production of the petitioner before him on 1061997. The Jailor took shelter under the plea that it was received subsequent to the service of the detention order on 36 97. The facts remain that the petitioner was sent to Farrukhabad only with a delay and it is not explained under what authority the jailor could delay his production before the C.J.M. despite a clear date being given for such production. The affidavit of the State Government indicates that the detention order was approved within 12 days as required and it was duly communicated to the petitioner. A report was made to the Central Government immediately and the grounds of the detention, the detention order and all other papers which were sent by the detaining authority to the State Government were also sent to the Central Government within seven days from the date of approval as provided under Section 3 (5) of the N.S. Act. The petitioner''s representation was duly considered and was rejected by the State Government on 30697 and was duly communicated to the petitioner.

The main points which were canvassed before us related to the detention of the petitioner in Case Crime No. 595 of 1994 and the question of disturbance of public order in contrast to disturbance of law and order simpliciter. The learned Counsel for the petitioner placed before us a decision of the Supreme Court in the case of N. Meera Rani v. Government of Tamil Nadu & Anr. AIR 1989 SC 2027, It was observed herein that "The detaining authority must show its awareness to the fact of subsisting custody of the detenu and take that factor into account while making the order, but, even so, if the detaining authority is reasonably satisfied on cogent material that there is likelihood of his release and in view of his antecedent activities which are proximate in point of time he must be detained in order to prevent him from indulging in such prejudicial activities, the detention order can be validly made even in anticipation to operate on his release." Reliance was further placed on another decision of the Supreme Court in the case of Abdul Razak Abdul Wahab v. S.N. Sinha, Commissioner of Police, Ahmedabad & Anr. AIR 1989 SC 2265. Here also an observation was made "There must be awareness in the mind of the detaining authority that the detenu is in custody at the time of service of the order of detention on him and cogent relevant materials and fresh facts have been disclosed which necessitate the making of an order of detention." Reference was also made to a decision of the Allahabad High Court recorded by a Division Bench in the case of Ram Kripal Singh v. State of U.P.& Ors. in High Court Writ Petition No. 7228 of 1985 as reported in 1985 (Supplementary) Allahabad Criminal Cases 357. The detenu in that case stood involved in two criminal cases for murder and other offences. The third ground in the detention order indicated that he had created a terror in the market by firing from firearms. The Court was of the view that the order of detention passed on grounds of involvement in criminal cases after two years and one year of alleged incidents could not be sustained as the grounds were stale and regarding the creation of terror, it was held that it could have, at the worst, affected law and order not public order.

From the facts indicated in the affidavits and counteraffidavits it is clear that the petitioner was detained in Case Crime No. 109 of 1997 and the C.J.M., Falehgarh, had issued a ''B'' warrant (commonly called production warrant) under Section 267, Cr. P.C. for his production before him in relation to Case Crime No. 595 of 1994. The order of the C.J.M., was recorded in the order sheet dated 141997. ''B'' warrant was signed on 4497 and was served upon the jailor at Lucknow Jail where the accused was being detained in Case Crime No. 109 of 1997. The ''B'' warrant clearly indicated that the accused was being wanted in Case Crime No. 595 of 1994 and in that case his remand was necessary by the Court concerned and only under those circumstances his production was directed to be made before the CJ.M. Fatehgarh, on 15497. Admittedly, no action was taken by the jailor on this production warrant and no explanation for noncompliance has been given although it was received on 8497. The next ''B" warrant had to be issued on 2697 requiring production of the accused before the CJ.M., on 10697 and this too was not obeyed. Immediately the accused was sent to Farrukhabad only in July. There is no explanation for this delay.

The District Magistrate was aware that the present petitioner stood involved in Case Crime No. 595 of 1994 and this activity created a question of disturbance of public order and that a chargesheet had been submitted in this case. When a chargesheet is submitted against any accused he may be shown either as a person of bail or a person absconding or a person in custody. Section 173 requires these details in clause 2 (e), (f) and (g) thereof. The District Magistrate''s satisfaction as per the grounds supplied to the petitioner does not indicate if he ever tried to know whether the accused was in custody, was on bail or was absconding the facts have come on record that the petitioner was arrested prior to 1497. The police knew of it and as such the CJ.M, had issued custody ''B'' warrant for his production in Case Crime No. 595 of 1994. It is not understood why the ''B'' warrant was not honoured for two months from April to June and that the second ''B'' warrant was honoured after about a month. It is not understood why the District Magistrate made no query about the situation of the accused in respect of Case Crime No. 595 of 1994. This shows lick of awareness on the part of the District Magistrate which was the basis of his subjective satisfaction. Without reference to the situation of the accused in relation to Case Crime No. 595 of 1994 which was equally a ground of detention, the District Magistrate simply relied on the bail application filed by him in Case Crime No. 109 of 1997 and acted upon the probability of his being released on bail in that case. The subjective satisfaction of the District Magistrate was, therefore, tainted with lack of awareness and may not be acted upon.

Under Section 5A of the N.S. Act if one of the grounds failed the detention order if justified on other grounds could be sustained. Here we are faced with situation where the detention order is bad not because of the failure of the ground of involvement of the petitioner in Case Crime No. 595 of 1994. It is the lack of awareness of the District Magistrate on the point of detention of the petitioner in Case Crime No. 595 of 1994. He took up a plea in the counteraffidavit that there was no custody warrant in respect of this petitioner in Case Crime No. 595 of 1994 on the relevant date, 2697. This was not before him on the date of recording the order as it is not reflected in the grounds. To reiterate, it may be stated that the District Magistrate was completely unaware of the situation of the present petitioner in respect of his custody in Case Crime No. 595 of 1994.

The grounds indicate that the incident of 1994 giving rise to Case Crime No. 595 of 1994 had adversely affected public order. No action was taken against the petitioner in 1994 and this ground, therefore, must be regarded as a stale one for detaining him in 1997. On the question, if detention could be ordered only for the incident of 1997, it could be stated that the provisions of Section 3 (2) of the N.S. Act are not for punishing past Acts, even of recent past, but for preventing repetition of disturbance of public order. The satisfaction of the probability of repetition would be gathered from the past acts only and a stale past Act in 1994 could not have given that satisfaction. When the alleged Act of 1997 is taken up singly the averments may be looked into. The petitioner alleged that he was a permanent resident of Farrukhabad and was actively involved politically and had been supporting the congress party since prior 1994. He contested the Vidhan Sabha Election held in 1996 and was defeated by his close rival of the Bhartiya Janta Party. In 1991 while Bhartiya Janta Party was in power the petitioner was proposed to be detained under the National Security Act. He apprehended this action from the detention orders passed on his associates. Accordingly, he moved High Court Writ Petition No. 2954 of 1991 arraying Brahm Dutt Diwedi personally as a respondent and a Division Bench of this Court issued notice to the respondents and stayed the proposed detention. The Writ Petition was still pending and none of the respondents came forwarded to deny the averments barring a SubInspector of Police who had asserted that it was necessary to detain the petitioner under the provisions of the N.S. Act in 1991. It was further averred by the petitioner that the petitioner''s brother had contested the Municipal election at Farrukhabad and defeated the brother of Brahm Dutt Diwedi and during that period the petitioner was taken away by the police and a case crime No. 543/544 of 1991 was initiated against him. The petitioner also indicated that his wife was elected the Adhyaksha of the Nagar Mahapalika, Farrukhabad, in 1995 defeating her rival B.J.P. candidate and the political grudge between the petitioner and Brahm Dutt Diwedi was at the personal level.

In the affidavits of the District Magistrate the averments of the political involvement of the petitioner and his contesting the Vidhan Sabha election in 1996 against Brahm Dutt Diwedi are not denied. The averments that in 1991 the State had proposed to detain him and that the B. J. Party was at power then were also not denied. There is no denied that there had been a stay order by the High Court against the detention proposed in 1991. As regards the averments of electoral contest between the brother of the petitioner and the brother of Brahm Dutt Diwedi there is no admission but the District Magistrate made it clear that no action was taken on the basis of Case Crime No. 543/544 of 1991. As regards the election of the petitioner''s wife after defeating her rival Bhartiya Janta Party candidates in Municipal election, there was no specific denial. This single incident may be described as one born out of personal political grudge and the present detention order appears to have been taken by way of political vendetta and for that only a stale past Act of 1994 has been brought into play and the situation of the accusedpetitioner in respect of that case was completely lost sight of. It was undoubtedly a case where the satisfaction of the District Magistrate of the probability of the application being released on bail and on his repeating activities prejudicial to public order, was not a proper subjective satisfaction and the detention order cannot be sustained.

The Writ Petition stands allowed. The detention order recorded against the petitioner by the District Magistrate, Fatehgarh, Farrukhabad, on 261997 stands quashed. He is to be released forthwith unless he is required to be detained in relation to any other case.