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1985 DIGILAW 351 (ALL)

Baramdin v. Superintendent, District Jail Fatehpur

1985-03-26

B.N.KATJU

body1985
JUDGMENT B.N. Katju, J. - This is a petition for the issue of a writ of habeas corpus. 2. The petitioner is detained in District Jail, Fatehpur under the order of the District Magistrate, Fatehpur dated 9.9.1984 passed under Section 3(2) of the National Security Act, 1980 (hereinafter referred to as the Act) with a view to prevent him from acting in a manner prejudicial to the maintenance of public order. 3. The order of detention is based on four grounds. 4. In ground no.4 it is mentioned that on 10.6.1984 at 5.30 p.m. while Surendra Tripathi son of Ramgopal Tripathi who was an eye witness against the petitioner in case no. 122 of 1983 under sections 147/148/307 I.P.C. was going on a bullock cart along with his cousin Shailendra Tripathi and his brother Danendra Tripathi to bring fertilizer and had reached near the crossing of Bijaeepur where the liquor shop of Bir Abhimanu alias Biran Yadav is situated the petitioner alongwith his associates, namely, Bir Abhimanu alias Biran, Jai Narain, Jai Karan and Ram Sajiwan residents of Jiharawa, Hanumant Singh resident of Raghurajpur Majara Rari, Ram Sajiwan alias Jiwan Pahalwan resident of Mankapur Majara Chachida, Ramraj and Ram Bhawan residents of Jiharawa, Shiv Kumar alias Sadhu resident of Lodhaura, Rajendra Singh alias Babbo resident of Shivpur Majra Bijaeepur, Chhota resident of Kulli, Man Singh and Rajaram residents of Ukath, Awadhesh and Moti residents of Bibati. Chandu resident of Jiharwa, Gyan Singh alias Lamtoo resident of Miyaman Ka Purwa Majara Idgaon and Krishnapal resident of Amani came on the road shouting and surrounded the bullock cart. Bir Abhimanu, Ram Sajiwan and Jai Karan were armed with rifles while the petitioner and his other associates were armed with guns. After stopping the bullock cart they snatched the licensed guns of Gyanendra and Surendra without giving them an opportunity to use them and fired at Surendra resulting in his death on the spot and also caught Shailendra. When Gyanendra tried to escape he was fired at but the shots did not hit him. The petitioner and his associates thereafter dragged the body of Surendra and also took Shailendra with them towards Jiharawa while assaulting him. Subsequently when Praduman Tripathi tried to find his brother he came to know that the body of Surendra had been slung on a Lathi and had been taken towards the river Jamuna. The petitioner and his associates thereafter dragged the body of Surendra and also took Shailendra with them towards Jiharawa while assaulting him. Subsequently when Praduman Tripathi tried to find his brother he came to know that the body of Surendra had been slung on a Lathi and had been taken towards the river Jamuna. The aforesaid incident which took place in broad day light at the Bijaeepur crossing in the bazar on a public road created terror and panic as a result of which most of the people did not come to the market fora few days and the shops in Bijaeepur market also remained closed for a number of days as a result of the aforesaid incident. Crime No. 63 of 1984 under Sections 396/307/201 I.P.C. was registered at police station Kishanpur relating to the aforesaid incident and the case is pending in the Court of the Chief Judicial Magistrate, Fatehpur. 5. It was evident that the incident mentioned in ground no.4 in which the petitioner and his associates participated affected the public at large and disturbed the even tempo of the life of the community. This ground, therefore, clearly relates to public order. It is also not stale as the incident mentioned in it took place on 10.6.1984 while the order of detention against the petitioner was passed on 5.9.1984. 6. In view of Section 5A of the Act the order of detention must now be deemed to be based on each ground separately. As the order of detention could be validly based on ground no.4 it is not necessary to consider whether the other grounds are relevant or not. 7. It was contended by the learned counsel for the petitioner that as in the present case the District Magistrate, Fatehpur has stated in his counter affidavit that he passed the order of detention against the petitioner cumulatively on all the four grounds the order of detention cannot be deemed to have been made separately on each ground in view of Section 5A of the Act. It is only in cases in which the detaining authority does not mention whether the order of detention is based cumulatively on all the grounds or separately on each ground that Section 5A of the Act is applicable and the order of detention must be deemed to have been made on each ground separately. There is no force in this contention. There is no force in this contention. It appears from a plain reading of Section 5A of the Act that when a detention order is made on two or more grounds then it shall be deemed to have been made separately on each ground. Making of a detention order on two or more grounds necessarily implies that it has been made jointly or cumulatively on two or more grounds. The question whether the detention order could or could not be made on each ground separately may not have been considered by the detaining authority while making the order of detention cumulatively on two or more grounds. It is such a case that Section 5A of the Act comes into play and the order of detention is deemed to have been made separately on each around. In the present case the detaining authority has stated in its counter affidavit that it made the order of detention against the petitioner on all the four grounds cumulatively but it has not stated that it would not have made the detention order against the petitioner separately on each of the four grounds nor can this be implied. The detaining authority is silent on this point. It is thus quite possible that it may not have applied its mind to the question as to whether it would have made the order of detention separately on each ground or not. It may have made the order of detention against the petitioner separately on each ground or may not have done so. In these circumstances Section 5A of the Act is applicable and the detention order must be deemed to be made separately on each ground. Thus even though the District Magistrate, Fatehpur has stated in his counter affidavit that he made the order of detention against the petitioner cumulatively on all the four grounds it must be deemed to have been made separately on each ground in view of Section 5A of the Act. 8. There is no merit in this petition. It is accordingly dismissed.