Research › Search › Judgment

Rajasthan High Court · body

2000 DIGILAW 1217 (RAJ)

Mohammad Rafique v. State of Rajasthan

2000-09-26

ARUN MADAN, G.L.GUPTA

body2000
Honble GUPTA, J.–This is a habeas corpus petition under Article 226 of the Constitution of India by Smt. Shaheeda Begum, wife and next friend of Mohammad Rafique, who is under detention pursuant to the order dated 8.6.2000, Annexure 1, passed by the District Magistrate, Jhalawar. (2). In the petition the detention has been assailed on various grounds. Mr. Gupta, learned counsel for the petitioner confined his arguments to ground stated at Para No.9 of the petition. Therefore, it is not necessary to state the facts in great detail. Suffice it to say, the Distt. Magistrate, Jhalawar, having been satisfied that it was necessary for the maintenance of public order and public safety and to ensure communal harmony to detain Mohammad Rafique under Section 3(2) of the National Security Act 1980 (for short `the Act of 1980), served the order Annexure 1 on Mohammad Rafique and also supplied him the grounds of detention. In the petition, it has been stated that the District Magistrate did not supply the material to enable the detenu to make effective representation to the State Government or the Central Government. It has been further stated that the material disclosed by the detaining authority was not sufficient to pass the detention order under the Act of 1980. At Para No. 9 of the petition, it has been stated that the detenu sent representation to His Excellency the President of India, through registered post on 29th June 2000, copy of which is Annexure 5, but no communication has been received by the detenu informing him about the fate of his representation. It has been prayed that the detention order, being illegal, arbitrary and unconstitutional, should be quashed and set-aside. (3). In their return the respondents Nos.1 to 4 i.e. the State Government and its Officers, justified the detention on the grounds that various criminal cases have been filed against the detenu and that even proceedings under the Gunda Act were taken against him. It has been stated that keeping the detenu at large is prejudicial to the maintenance of public order. (4). Respondent No. 5, i.e. the Central Government has not filed parawise reply. Only counter affidavit of Shri Sushil Kumar, Under Secretary, Ministry of Home Affairs, Government of India, has been filed. It has been stated that keeping the detenu at large is prejudicial to the maintenance of public order. (4). Respondent No. 5, i.e. the Central Government has not filed parawise reply. Only counter affidavit of Shri Sushil Kumar, Under Secretary, Ministry of Home Affairs, Government of India, has been filed. In the affidavit, it is stated at para No. 6 that no representation from detenu or on his behalf has been received on the concerned desk of the Ministry of Home Affairs till date. It is further stated that the provisions of the National Security Act, 1980 do not cast statutory obligation on the part of the Central Government to inform the detenu about the result of the consideration of the matter received under Section 3(5) of the Act from the State Government. (5). We have heard the learned counsel for the parties and have gone through the record of the case. (6). Mr. Gupta, learned counsel for the detenu vehemently contended that the representation sent to the Central Government by the wife of the detenu against the detention order Annexure 1, has not been considered till today and the detention is liable to be dismissed on this ground alone. He cited various authorities in support of his contention. (7). Mr. Bagri, learned counsel for respondent No.5 contended that the representation was addressed by the wife of the detenu to His Excellency the President of India and no representation was addressed to the Central Government or the Ministry of Home Affairs of the Union of India and, therefore, there was no occasion for the Central Government to consider the representation. (8). Mr. Mathur, learned Additional Advocate General contended that the detenu is a criminal and no leniency should be shown towards him even if there was some fault on the part of the respondent No. 5. (9). We have given the matter our thoughtful consideration. It is now the admitted position of the parties that the detenu did not address the representation to the Home Ministry; instead he addressed his representation to the President of India. The question to be considered is whether the representation to the President of India amounts to the representation to the Central Government. (10). It is now the admitted position of the parties that the detenu did not address the representation to the Home Ministry; instead he addressed his representation to the President of India. The question to be considered is whether the representation to the President of India amounts to the representation to the Central Government. (10). Before we examine the aforesaid question, it is relevant to point out that in the order dated 13th of June 2000, Annexure R. 2, the District Magistrate had informed the detenu that he could make representation against his detention to the President of India/Central Government/Governor of the State/State Government/Advisory Board etc. Section 14 of the Act of 1980 empowers the Central Government to revoke an order of detention passed by the State Government or its officer. There can not be any doubt in this legal position that even without making representation to the detaining authority or to the State Government, a detenu is entitled to make representation against the detention to the Central Government and the Central Government is under an obligation to consider the representation of the detenu by virtue of Section 14 of the Act of 1980 read with Article 22(5) of the Constitution of India. (11). Coming to the question whether the representation addressed to the President of India, can be considered a representation to the Central Government, we may read Clause 3(8) of the General Clauses Act, which is reproduced hereunder:- 3(8) ``Central Government shall,- (a) xxxxxxxxxxxxxxxx (b) In relation to anything done or to be done after the commencement of the Constitution, means the President; and shall include, (ii) xxxxxxxxxxx (iii) xxxxxxxxxx It is obvious that the Central Government means the President. Therefore, a representation addressed to the President of India must be considered to be a representation properly addressed to the Central Government. (12). The Apex Court in the case of Raghavendra Singh vs. Superintendent, District Jail, Kanpur and others, (1), repelling the contention of the Additional Solicitor General that a representation to the Central Government should have been addressed to the Ministry of Home Affairs and not to the President or the Prime Minister observed as follows:- ``Under S. 3(8) of the General Clauses Act, the `Central Government means the President and a representation addressed to the President must, therefore, be considered to be a representation properly addressed to the Central Government. This Court had also occasion to consider this point in the case of Shambhu Singh vs. The State of Rajasthan and others (2). It was held at Para No. 12 of the report that the representation addressed by the detenu to the President of India is a valid representation and can not be thrown away only on the ground that it has not been addressed to the Home Ministry of the Central Government or any of its officers. (13). In the instant case, it is no more in dispute that the wife of the detenu had made representation against the order of detention through registered post on 29th of June 2000, copy of which is Annexure 5. The petitioner has placed on record the acknowledgment receipt Annexure 10, which indicates that the representation had reached in the Secretariat of President of India before 5th of July 2000. It has not been stated on behalf of respondent No.5 that the President of India had not received the representation of the detenu. What has been stated at Para No. 9 of the affidavit on behalf of respondent No.5 is that no representation of the detenu was received in the Ministry of Home Affairs. If the representation received in the Secretariat of the President of India did not reach the Home Ministry, the detenu can not be blamed for it. It shows that there is no proper coordination between the Secretariat of the President and the Ministry of the Home Affairs and, therefore, the representation made to the President of India could not reach the Ministry of Home Affairs. The letter Annexure 10 indicates that the Secretariat of the President of India did not think it necessary to forward the representation of the detenu to the Ministry of Home Affairs. The fact remains that the representation of the detenu was not at all considered by the Central Government. (14). The affidavit of Sushil Kumar makes it clear that the representation of the detenu was not considered till the date the affidavit was filed on 25th of August 2000. Even during the course of arguments. Mr. Bagri was not in a position to tell the Court that the representation of the petitioner has been considered after filing the affidavit. The fact remains that the representation of the detenu remains unconsidered till today. (15). Even during the course of arguments. Mr. Bagri was not in a position to tell the Court that the representation of the petitioner has been considered after filing the affidavit. The fact remains that the representation of the detenu remains unconsidered till today. (15). The Apex Court time and again has observed that the non consideration of the represention by the appropriate authority or even delay. In consideration of the representation of a detenu renders the detention illegal. Their lordships of the Constitution Bench in the case of Jayyanarayan Sakul vs. State of West Bengal (3), emphasizing the need of consideration of representation by the appropriate Government without any amount of delay observed at para No. 20 of the report as follows:- ``Broadly stated, four principles are to be followed in regard to representation of detenus. First, the appropriate authority is bound to give an opportunity to the detenu to make a representation and to consider the representation of the detenu as early as possible. Secondly, the consideration of the representation of the detenu by the appropriate authority is entirely independent of any action by the Advisory Board including the consideration of the representation of the detenu by the Advisory Board. Thirdly, there should not be any delay in the matter of consideration. It is true that no hard and fast rule can be laid down as to measure of time taken by the appropriate authority for consideration but it has to be remembered that the Government has to be vigilant in the governance of the citizens. A citizens right raises a correlative duty of the State. Fourthly, the appropriate government is to exercise its opinion and judgment on the representation before sending the case alongwith the detenus representation to the Advisory Board. If the appropriate Government will release the detenu the Government will not send the matter to the Advisory Board. If, however, the Government will not release the detenu the Government will send the case alongwith the detenus representation to the Advisory Board. If thereafter the Advisory Board will express an opinion in favour of release of the detenu the Government will release the detenu. If the Advisory Board will express any opinion against the release of the detenu, the Government may still exercise the power to release the detenu. In the case of Kundanbhai vs. Distt. If thereafter the Advisory Board will express an opinion in favour of release of the detenu the Government will release the detenu. If the Advisory Board will express any opinion against the release of the detenu, the Government may still exercise the power to release the detenu. In the case of Kundanbhai vs. Distt. Magistrate (4), it was observed at para No. 14 of the report as under:- ``It is implicit that there is corresponding duty on the authorities to whom the representation is made to dispose of the representation at the earliest or else the constitutional and statutory obligation to provide the earliest opportunity of making a representation would lose both its purpose and meaning. In the case of Prem Lata Sharma vs. District Magistrate, Mathura and others (5), it was observed that if the right conferred on a detenu under Article 22(5) of the Constitution of India that his representation should be considered, is denied, the detention becomes illegal. In the case of Smt. Khatun vs. Union of India (6), which was a case under the National Security Act, the delay in consideration of the representation was held to be fatal. Their lordships observed that Article 22(5) of the Constitution of India enjoins a duty on the authority making the order of detention to afford the detenu the earliest opportunity of making a representation against the order and that the consideration of the representation at the earliest opportunity is a Constitutional imperative which can not be curtailed or abridged. In the case of Venmathi vs. State of Tamilnadu (7), the delay of three weeks only in considering the representation was held to be prejudicial to the detention and the detention was quashed. In that case, it was observed that though the delay by itself is not fatal, yet the delay which remains un-explained, becomes unreasonable and when the delay, is not explained, it shows that the representation was dealt with in a routine manner, and renders the detention of the detenu illegal. In the case of Raghavendar Singh (supra) the detention order was quashed mainly on the ground that the representation of the detenu was not considered by the Central Government for 75 days. So also in the case of Solomomn Castro vs. State of Kerala and Ors. In the case of Raghavendar Singh (supra) the detention order was quashed mainly on the ground that the representation of the detenu was not considered by the Central Government for 75 days. So also in the case of Solomomn Castro vs. State of Kerala and Ors. (8), the detention was quashed on the ground that the representation of the detenu was not considered for about two weeks and there was no explanation for justifying the delay. (16). In the instant case the representation reached the Central Government before 5th of July 2000. It is obvious that the same has not been considered till today i.e. for about two and half months. The detention is therefore, liable to be quashed on the ground that the representation of the detenu against his detention has not been considered. (17). Since the petition succeeds on the first contention of Mr. Gupta alone, it is not necessary to consider the other grounds mentioned in the petition. (18). It may be that the petitioner is a hardened criminal and various cases are pending against him and in the eyes of the authorities who are responsible to maintain the public order, his remaining at large may cause problem, but that can not be a ground to uphold the detention when the authorities have failed to discharge their constitutional obligation under Article 22(5) of the Constitution of India. The further detention of the petitioner being illegal, the petition deserves to be allowed. (19). The result, therefore, is that the petition succeeds. The order of detention is hereby quashed. The petitioner is directed to be set at liberty, if not required in any other case.