Ram Parvesh Singh v. District Magistrate, Deoria — 1984 DIGILAW 1030 (ALL)

JUDGMENT B.N. Katju, J. - This is a petition for the issue of a writ of habeas corpus. 2. The District Magistrate, Deoria passed an order under S. 3(2) of the National Security Act, 1980 (hereinafter referred to as the Act) on 25-7-1984 directing the detention of the petitioner. The petitioner was detained in District Jail Deoria in compliance of this order on 26-7-1984. The petitioner was subsequently transferred from District Jail Deoria to Naini Central Jail, Allahabad by the order of the State Government. The District Magistrate, Deoria by his order dated 4-8-1984 revoked his order of detention dated 25-7-1984 and on the same day (48-1984) passed a second order of detention under S. 3(2) of the Act against the petitioner in which it was stated that the petitioner shall be detained in Naini Central Jail, Allahabad. Both the order of revovation and the second order of detention dated 4-8-1984 passed by the District Magistrate Deoria were served on the petitioner in Naini Central Jail, Allahbad by the Superintendent of the Jail on 4-5-1984. The petitioner is confined in Naini Central Jail under the order of the District Magistrate, Deoria dated 4-8-1984. 3. It was contended by the learned counsel for the petitioner that the detention of the petitioner in Naini Central Jail Allahabad was illegal as the District Magistrate, Deoria had no power under S. 3(2) of the Act to specify the place of detention of the petitioner. There is no force in this contention, Under S. 3(3) of the Act the State Government is empowered to direct, by an order in writing, the District Magistrate or Commissioner of Police to exercise the power conferred on the State Government under S. 3(2) of the Act. Under S. 3(2) of the Act the State Government is empowered to direct the detention of a person if it considers necessary to prevent him from acting in a manner prejudicial to the maintenance of public order. Under S. 5(a) of the Act every person detained in respect of a detention order which has been made is liable to be detained in such place and under such conditions including the conditions as to the maintenance of discipline and punishment for breach of discipline as the appropriate Government by general or special.order specify. Under S. 5(a) of the Act every person detained in respect of a detention order which has been made is liable to be detained in such place and under such conditions including the conditions as to the maintenance of discipline and punishment for breach of discipline as the appropriate Government by general or special.order specify. In case of detention of a person under the Act by the District Magistrate appropriate Government by virtue of the definition given in section 2(a) of the Act means the State Government. Thus if an order of detention is passed by the District Magistrate against a person under S. 3(2) of the Act he is liable to be detained at such place as the appropriate Government may be general or special order specify under S. 5(a) of the Act. The U. P. National Security Prisoners Conditions of Detention Order, 1980 was passed under S. 5(a) of the National Security Ordinance No. II of 1980. By virtue of S. 18(2) of the Act, the said order will now be deemed to have been passed under S. 5(a) of the Act. The said order provides for accommodation, classification, diet, clothing, bedding, news, correspondence, examination, punishment and other matters regarding persons detained under the Act. It .is applicable to persons who have been detained under S. 3(2) of the Act by the order of the District Magistrate. This order, however, does not mention the place of detention of a person detained under the order of the District Magistrate under S. 3(2) of the Act. It is true that under S. 3(3) of the Act only the power to pass an order of detention under S. 3(2) of the Act is delegated by the State Government to the District Magistrate. We are, however, of the opinion that this power of making an order of detention necessarily includes the incidental power of specifying the place of detention as the place of detention is not mentioned by the U. P. National Security Prisoners Condition of Detention Order, 1980. It is noteworthy that if the order of detention had been passed by the State Government it was empowered to specify the place of detention under S. 5(a) of the Act. It is noteworthy that if the order of detention had been passed by the State Government it was empowered to specify the place of detention under S. 5(a) of the Act. It is significant to note that it is mentioned in S 6 of the Act that no detention order shall be invalid or inoperative merely by the reason that the place of detention of the person detained is out side the limits of the officer making the order. The District Magistrate is thus empowered to direct the detention of a person within his district and also out side his, district in some other place within the State. It is true that normally a person should be confined in the jail of the district where he resides but for safety, security and administrative convenience he may he confined in a jail in another district. The order of the District Magistrate, Deoria directing the detention of the petitioner in Naini Central Jail cannot thus be held to he illegal. 4. It was next contended by the learned counsel for the petitioner that the detention of the petitioner in jail is illegal as the order of the District Magistrate, Deoria was not executed in the manner provided for the execution of warrants of arrest under the Code of Criminal Procedure, 1973 as required by S. 4 of the Act. It is true that under S. 78 Cr. P. C. if a warrant of arrest is to be executed out side the local jurisdiction of the court issuing it, it is required to be forwarded by post or otherwise to any Executive Magistrate or District Superintendent of Police or Commissioner of Police within the local limits of whose jurisdiction it is to be executed and such authority shall endorse his name thereon and cause it to be executed in the manner provided under the Code. It is mentioned in S. 80 Cr. P. C. that when a warrant of arrest is executed outside the district in which it was issued, the person arrested shall unless the court which issued the warrant is within thirty kilometres of the place of arrest or is nearer than the Executive Magistrate or District Superintendent of Police or Commissioner of Police within the local limits of whose jurisdiction the arrest was made, be taken before such Magistrate or District Superintendent or Commissioner. The person against whom the warrant of arrest is issued is to be produced before the court which issued the warrant under S. 81 of Cr. P. C. In our opinion these provisions apply in a case where the person for whose arrest the warrant is issued is not confined in any jail but is to be arrested. In the present case the petitioner was already in detention in jail under the order of the District Magistrate, Deoria dated 25-7-1984. The order of revocation of that order and the Second order of detention were to be served on him one after the other. Both these orders were, therefore, sent to the Superintendent of Naini Central Jail for service on the petitioner. In these circumstances the non-compliance of Sections 78 and 80 Cr. P. C. does not result in the detention of the petitioner becoming illegal. 5. It was next contended by the learned counsel for the petitioner that the District Magistrate, Deoria had no jurisdiction to revoke his earlier order of detention dated 25-7-1984 as under S. 14 of the Act this could only be done by the State Government or the Central Government. In our opinion there is no force in this contention of the learned counsel for the petitioner as it is clearly mentioned in S. 14 of the Act that the power conferred on the State Government and the Central Government is without prejudice to S. 21 of General Clauses Act. In our opinion the District Magistrate, Deoria was empowered to revoke his order of detention dated 25-7-1984 on 4-8-1984 by virtue of S. 21 of General Clauses Act. We are fortified in our view by the decision of this Court in Mohammad Salim v. Adhikshak Janpad Karagar Pauri 1983 Cri LI 548 and also the decision in Karpuri Thakur v. State of Bihar 1975 -Cri LI 570 (Pat). It is significant to note that the order of the District Magistrate, Deoria dated 25-7-1984 had not been approved by the State Government till 4-8-1984. 6. It was next contended by the learned counsel for the petitioner that the District Magistrate, Deoria had no power to pass the second order of detention dated 4-8-1984 on the same grounds on which the first order of detention dated 25-7-1984 was based. 6. It was next contended by the learned counsel for the petitioner that the District Magistrate, Deoria had no power to pass the second order of detention dated 4-8-1984 on the same grounds on which the first order of detention dated 25-7-1984 was based. It is true that under sub-section (2) of S. 14 of the Act as it originally stood the second detention order could only be passed on grounds which came into existence after the first order was revoked and not on grounds which existed earlier but by S. 3 of the National Security (Second Amendment) Act, 1984 on 21st June, 1984 sub-sec. (2) of S. 14 of the Act has been repealed and the undermentioned sub-sec. (2) has been substituted `(2) The expiry of revocation of a detention order (hereinafter in this sub-section referred to as the earlier detention order) shall not (whether such earlier detention order has been made before or after the commencement of the National Security (Second Amendment) Ordinance, 1984) bar the making of another detention order (hereinafter in this sub-section referred to as the subsequent detention order) under S. 3 against the same person. Provided that in a case where no fresh facts have arisen after the expiry of revocation of the earlier detention order made against such person, the maximum period for which such person may be detained in pursuance of the subsequent detention order shall, in no case, extend beyond the expiry of a period of twelve months from the date of detention under the earlier detention order". It is clear from a plain reading of sub-sec. (2) of the Act as it now stands that the bar of passing a second order of detention after revocation of the first order on the same grounds has been removed and the proviso to sub-section (2) now clearly states that if the second order of detention is not passed on fresh facts then the period of detention shall commence from the date of the earlier order of detention. The result of the amendment, therefore, is that a second order of detention can now be passed on the same grounds on which the earlier order of detention was passed. The result of the amendment, therefore, is that a second order of detention can now be passed on the same grounds on which the earlier order of detention was passed. In the present case the first order of detention dated 25-7-1984 was revoked on 4-8-1984 and the second order of detention was passed on the same day (4-8-1984) and was served on the petitioner together with the order of revocation on 5-8-1984. According to the counter-affidavit filed by the District Magistrate, Deoria the first order of detention was revoked by him as it was not approved by the State Government till 4-8-1984. It thus appears that the District Magistrate, Deoria apprehended that this order dated 25-7-1984 may not be approved by the State Government. It is noteworthy that the grounds on which the second order of detention has been based excluded three grounds which the first order of detention was based which the District Magistrate may have thought to be irrelevant. It may be mentioned that the second order of detention dated 4-8-1984 was approved by the State Government on 10-8-1984. This is, therefore, not a case in which the District Magistrate can be said to have passed repeated orders of detentions mala fide. The order of the District Magistrate, Deoria dated 4-8-1984 cannot, therefore, be held to be illegal on the ground that it has been passed on the same grounds on which the earlier order revoked by him was passed. 7. It was next contended by the learned counsel for the petitioner on the basis of the averments made in the petition that the order of detention against the petitioner was passed by the District Magistrate, Deoria mala fides under the political pressure. There is no force in this contention as this has been denied by the District Magistrate in his counter- affidavit. 8. It was next contended by the learned counsel for the petitioner that the relevant material relating to ground No. 6 of the grounds of detention was not furnished to the petitioner as a result of which he could not make an effective representation regarding it. 9. 8. It was next contended by the learned counsel for the petitioner that the relevant material relating to ground No. 6 of the grounds of detention was not furnished to the petitioner as a result of which he could not make an effective representation regarding it. 9. Ground No. 6 of the grounds of detention is as follows :- On 2-3-1984 at about 6 P.M. while Satish Singh son of Jugul Kishore Singh resident of village Sonari, police station Bhaluwani, district Deoria along with his elder brother Rudal Singh, uncle Kamal Singh Advocate and other associates was going on a Jeep to his house and had reached near village Karamtar Sherkhan the petitioner along with his brother Naththan Singh and eight or ten other associates armed with rifles and guns surrounded them and began to fire indiscriminately as a result of which Ashutosh Singh, Sattan Singh and Kamal Singh Advocate received injuries which resulted in their death. A report regarding this incident was lodged by Satish Singh and case Crime No. 24 of 1984 under Sections 147/148/149/307/302 I.P.C. was registered at Police Station Bhaluwani on its basis. The aforesaid heinous crime committed by the petitioner and his associates openly at about 6 P.M. created terror and fear in the minds of the public which still persist. After the aforesaid incident the petitioner absconded as a result of which proceeding under Sections 82/83 Cr.P. C. were initiated against him but the petitioner did not surrender and instead obtained anticipatory bail under S. 438 Cr. P. C. from the Delhi High Court on 31-5-1984. In compliance with the aforesaid order the petitioner should have surrendered in the sessions court and to have obtained bail within the period mentioned therein but as he did not do so his bail application was rejected. If the petitioner remained at liberty fear and terror in the minds of the residents of Deoria would persist. 10. The petitioner was admittedly not supplied with a copy of the order of the Delhi High Court passed under S. 438 Cr. P. C. and a copy of the order refusing bail to the petitioner by the Sessions Judge and also documents relating to the proceedings under S. 82/83 Cr. P. C. initiated against him. 10. The petitioner was admittedly not supplied with a copy of the order of the Delhi High Court passed under S. 438 Cr. P. C. and a copy of the order refusing bail to the petitioner by the Sessions Judge and also documents relating to the proceedings under S. 82/83 Cr. P. C. initiated against him. In our opinion no prejudice has been caused to the petitioner in making his representation against this ground by his not being supplied with the aforesaid material. Moreover, the orders of the Delhi High Court dated 31-5-1984 and the Sessions Judge mentioned above must have been within the knowledge of the petitioner. 11. It was contended by the learned counsel for the petitioner that the material on the basis of which it was stated in ground No. 6 that the incident dated 2-3-1984 mentioned therein created fear and terror in the public which still persisted and in the event of the petitioner being released fear and terror in the public of Deoria would continue to persist was also not supplied to the petitioner. The District Magistrate, Deoria in his supplementary counter-affidavit has stated that he took over charge as District Magistrate Deoria on 2-5-1984 and by virtue of his position as District Magistrate it was within his personal knowledge that fear and terror generated by the incident dated 2-3-1984 persisted in the public of district Deoria as the aforesaid incident was being openly talked about in public. There was no document which mentioned all this. Thus no copy of such a document could be furnished to the petitioner. It is noteworthy that no rejoinder affidavit has been filed by the learned counsel for the petitioner in reply to the supplementary counter-affidavit filed by the District Magistrate, Deoria. In these circumstances it cannot be held that the petitioner was deprived of his right to make an effective representation against ground No. 6 of the grounds of detention. There was thus no violation of Article 22(5) of the Constitution. 12. It was next contended by the learned counsel for the petitioner that ground No. 6 of the grounds of detention relates to law and order and not to public order. There is force in this contention as it is clearly mentioned in it that incident mentioned therein created terror and fear in the general public. 12. It was next contended by the learned counsel for the petitioner that ground No. 6 of the grounds of detention relates to law and order and not to public order. There is force in this contention as it is clearly mentioned in it that incident mentioned therein created terror and fear in the general public. It must, therefore, be held that there was disturbance of public order. 13. It was next contended by the learned counsel for the petitioner that the affidavit filed by the official shadow provided that the petitioner prior to 2-3-1984 in the Supreme Court in Transfer Petition (Cri) No. of 1984 stating therein that at the time of the incident dated 2-3-1984 referred to above the petitioner was on tour in Lucknow, Rai Bareli, Sultanpur and Baharaich along with Smt. Maneka Gandhi and Akbar Ahmad M. L. A. which was relevant was not placed before the District Magistrate before he passed the detention order against the petitioner. The order of detention is thus vitiated. In our opinion there is no force in this contention. The affidavit of the official shadow is in the nature of defence evidence regarding the incident dated 2-3-1984 mentioned in Ground No. 6. The official shadow may be examined by the petitioner during the trial of the case relating to the said incident. The aforesaid affidavit of the official shadow was not relevant for the purpose of passing the detention order by the District Magistrate. It was, therefore, not necessary to place it before the District Magistrate before he passed the detention order against the petitioner. It could be filed by the petitioner along with his representation. 14. In view of the amended Act the order of detention must now be deemed to be based on each ground separately. The order of detention could thus be validly based on ground No. 6 alone. In these circumstances it is not necessary for us to consider whether the other grounds are stale or are irrelevant. 15. The result, therefore, is that the detention of the petitioner cannot be held to be illegal. 16. There is no merit in this petition. It is accordingly dismissed.