KARESHPAL ALIAS BILLU v. DISTRICT MAGISTRATE MEERUT
2002-01-25
MARKANDEY KATJU, S.K.SINGH
body2002
DigiLaw.ai
M. KATJU, J. This writ petition has been filed against the impugned detention order dated 7. 4. 2001 Annexure-10 to the writ petition under the National Security Act. 2. We have heard learned counsel for the parties. 3. The grounds of detention as annexed in Annexure-10 to the writ petition state that on 1. 12. 2000 at about 6 a. m. one Sohanvir was taking his 15 years old daughter Km. Neha for tuition when the petitioner and his associates came to them and forcibly at the point of pistol took away Km. Neha to a sugarcane field. When Sohanvir protested the petitioner and his associates beat him with blows of fists and sticks and took Km. Neha to the cane field and forcibly gang-raped her in the presence of her father Sohanvir after taking off her Salwar and making her half naked. Sohanvir thereafter ran to the village and informed the people of his village. The village people came to the spot and they saw Km. Nehas hands tied and she was lying on the spot in half-naked condition. She was weeping and informed the people that she had been forcibly gang-raped by the petitioner and others. An F. I. R. was lodged at 8. 40 a. m. 4. The news of this incident of gang rape spread like wild fire in the entire area with the result that the school going children felt unsafe and went back home. As a reaction to this incident the angry villagers did Chakka-jam on the road going to Delhi with the result that there was traffic-jam on the public road. Km. Neha was of Jaat caste whereas the petitioner and his associates were Gareriyas and because of this reason a tension between two castes was created and the Jaats started attacking Gareriyas. 5. It was also stated in the grounds of detention that the petitioner was in Jail. He was trying to obtain bail which was likely to be granted. Hence the impugned detention order was passed. 6. Counter affidavits have been filed by the State Government, District Magistrate and the Deputy Jailer and we have perused the same. 7. The first submission of the learned counsels for the petitioner is that as stated in paragraph 17 of the writ petition the report of LIU dated 4. 12.
Hence the impugned detention order was passed. 6. Counter affidavits have been filed by the State Government, District Magistrate and the Deputy Jailer and we have perused the same. 7. The first submission of the learned counsels for the petitioner is that as stated in paragraph 17 of the writ petition the report of LIU dated 4. 12. 2000 which has been relied on in the grounds of detention was not supplied to the petitioner but only the LIU report dated 3. 12. 2000 was furnished to him. In this connection learned counsel for the petitioner has relied on the decision of the Supreme Court in Mohd. Zakir v. Delhi Administration, A. I. R. 1982 SC 696, Kamla Kanhaiyalal Khushalani v. State of Maharashtra, A. I. R. 1981 SC 814, State of Punjab v. Jagdev Singh Talwandi, A. I. R. 1984 SC 444. In these decisions it has been held that the material relied on in the order of detention must be supplied to the detenu. In our opinion, these decisions must be interpreted to mean that the documents which could have seriously influenced the minds of the detaining authority and which could be explained by the detenu should be supplied to him. Hence in our opinion, these decision do not lay down an absolute proposition that merely because copy of some document is not supplied to the detenu the detention order will become illegal merely on that ground. It depends on the circumstances of each particular case whether non- supply of copy of some documents has had prejudicial effect against that detenu. We are of the opinion that unless some prejudice is caused to the petitioner merely because some documents have been referred to the grounds of detention that will not vitiate that detention. It will depend on whether non- supply of such document was prejudicial to the detenue. 8. In Kamarunnissa v. Union of India, AIR 1991 SC 1640 (vide paragraph 14), it was observed by the Supreme Court that a document which has been referred to in the grounds of detention need not necessarily be supplied to the detenu if it has not been used or made the basis for formulating the grounds of detention. Mere reference to some material by way of completing the narration cannot always entitle the detenu to plead that the detention order is illegal.
Mere reference to some material by way of completing the narration cannot always entitle the detenu to plead that the detention order is illegal. The detenu must show that non- supply of the document has impaired the detenus right to make an effective and purposeful representation. In the present case it cannot be said that non-supply of the LIU report dated 4. 12. 2000 has caused prejudice to the petitioner in any way. 9. Moreover, the LIU report is a secret confidential report and it is not necessary that copy of every such report should be supplied to the detenu. It all depends on the facts and circumstances of each case and in the present case we are of the opinion that non-supply of copy of the LIU report dated 4. 12. 2000 does not vitiate the impugned order. 10. In the present case the report dated 3. 12. 2000 copy of which is Annexure-7 to the writ petition was admittedly supplied to the petitioner. In this report dated 3. 12. 2000 it has been stated that in the village Chirauri there are about 1000 Harijan, 500 Gaririya and 600 Jaat families. The incident in question has created tension between the castes. In our opinion the incident in question is so serious and so grave that non-supply of the LIU report dated 4. 12. 2000 cannot vitiate the detention order. Km. Neha was only 15 years of age and she was gang-raped by the petitioner and his associates in the presence of her father after tying her hands. Such inhuman and barbaric act does not deserve any leniency merely on hyper technical grounds. In our opinion, the judiciary should not make the law of habeas corpus so over technical that the interest of society should be totally overlooked and only the question of individual liberty should be seen. In our opinion, a balance should be struck between the two, and that means that each case must be examined on its own particular facts and circumstances. In the present case the petitioner and his associates have behaved like monsters. They gang-raped a young girl after tying her hands in the presence of her father and hence we are not inclined to interfere with the impugned order. Indeed we recommend to Parliament to amend the law and provide for death penalty for cases of gang rape.
In the present case the petitioner and his associates have behaved like monsters. They gang-raped a young girl after tying her hands in the presence of her father and hence we are not inclined to interfere with the impugned order. Indeed we recommend to Parliament to amend the law and provide for death penalty for cases of gang rape. It may be mentioned that in such cases of gang rape of a young girl the victims mind may be permanently damaged by the psychological trauma and it may be worse than killing the girl. Hence no mercy should be shown to the people who commit gang rape. In fact in several countries like China, Saudi Arabia etc. death sentence is awarded in the cases of gang rape, and we also should make such harsh law in this respect. 11. Learned counsel for the petitioner then submitted that since the petitioner was already in Jail the impugned detention order is bad in law. In this connection he has relied on the decision of the Supreme Court in Smt. Shashi Agarwal v. State of U. P. , A. I. R. 1988 SC 596. In our opinion, this decision cannot be said to lay down any absolute proposition that merely because the detenu is already in Jail the detention order cannot be passed against him. It all depends on the facts and circumstances of the case. The nature of the incident committed by the petitioner and his associates are grave in nature, and show that the petitioner and his associates are likely to commit similar acts again if released. Hence the detention order is not vitiated on this ground. 12. Learned counsel for the petitioner then submitted that it was only a solitary incident. It is well- settled that even a solitary incident can some times justify the detention order, depending on its gravity, and its likelihood to affect the even tempo of life in society vide David Patrick Ward v. Union of India, JT 1992 (5) SC 163. In the present case the incident was serious and so grave that it has not only created terror but has also affected the even tempo of life and has created caste conflict between Jaats and Gareriyas. It cannot, therefore, be said that the incident is purely one of law and order and has not affected public order.
In the present case the incident was serious and so grave that it has not only created terror but has also affected the even tempo of life and has created caste conflict between Jaats and Gareriyas. It cannot, therefore, be said that the incident is purely one of law and order and has not affected public order. In our opinion, it has clearly affected public order. Reference may be made in this connection to the decision of the Supreme Court in Arun Ghosh v. State of West Bengal, A. I. R. 1970 SC 1228 (paragraph 3 ). The facts of this decision are similar to that in the present case since in that decision a girl was going to the school and she was criminally assaulted and because of that other children stopped going to school and that disturbed the even tempo of life of society. 13. Learned counsel for the petitioner then submitted that there was delay in deciding the representation. We do not agree with this submission. From the counter-affidavit filed in this case the delay has been adequately explained vide paragraphs 3 and 4 of the counter-affidavit of Sri R. S. Agarwal on behalf of the State Government and paragraphs 3 to 7 the counter-affidavit of the Deputy Jailer and Paragraph 9 of the counter-affidavit of the District Magistrate. 14. The District Magistrate in paragraph 4 of his counter affidavit has further stated that the incident created panic and terror in the minds of the public in the area, and the District Magistrate was satisfied that if the petitioner was released on bail from jail in the near future he would again indulge in similar activities. In paragraph 7 of his affidavit the District Magistrate has stated that the report of the LIU dated 3. 12. 2000 was supplied to the detenu. 15. Learned counsel for the petitioner then submitted that the impugned order was passed four months after the incident in question. In the present case the petitioner was in jail and when he applied for bail and there was likelihood that he may be released, then the impugned detention order was passed. Hence the detention order is not invalid in this account.
In the present case the petitioner was in jail and when he applied for bail and there was likelihood that he may be released, then the impugned detention order was passed. Hence the detention order is not invalid in this account. In Ahmed Nassar v. The State of Tamil Nadu, 2000 (I) JIC Supreme Court 221, the detenu had not even applied for bail and yet the Supreme Court held that the impugned detention order can be passed. 16. Hence there is no force in this petition. It is accordingly dismissed. Petition dismissed.