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2005 DIGILAW 367 (ALL)

BAURA SHIV KUMAR MANOJ RAJ KUMAR RAM MANOHAR v. STATE OF U P

2005-02-25

S.RAFAT ALAM, VIKRAM NATH

body2005
In all these five writ petitions the petitioners have challenged the correctness and validity of their preventive detention under Section 3 (2) of the National Security Act, 1980 (hereinafter referred to as the Act ). 2. In Habeas Corpus Writ Petition No. 43499 of 2004 the impugned order was passed by the District Magistrate, Banda on 7-4-2004 and in the other four writ petitions the date of the impugned order is 16- 4-2004. 3. Counter and rejoinder-affidavits have been exchanged between the parties and are on record. Since in all the five petitions the impugned order is based on similar accusation and pleadings of the parties are also similar and identical to each other and as requested by the learned Counsel for the parties they are heard together and are being disposed of by this common order. 4. We have heard Sri S. F. A. Naqvi, learned Counsel appearing for the petitioners, learned Additional Government Advocate for the State-respondents and the learned Standing Counsel for the Union of India in all the writ petitions. 5. It appears that the petitioners/ detenus are detained under the provisions of the Act by the order of the District Magistrate, Banda for a period of one year on account of their involvement in Case Crime No. 12-A of 2004, under Sections 147, 149, 302, 436 & 452 IPC, Police Station Mataundh, District Banda. 6. The prejudicial activities of the petitioners/detenus as appears from the grounds of detention, a copy whereof is enclosed as Annexure-1 to the writ petitions, briefly stated is that they alongwith other persons attacked the house of Smt. Jagrania (informant) on 7-3-2004 at about 8. 00 p. m. and when they could not find the sons of the informant in the house they set their houses on fire and also pelted stone on the head of her husband Lakshman, which resulted in his instant death. It is further alleged that Ram Sanehi alias Puttal wanted to marry his nephew Rajendra Nath with Km. Aarti grand-daughter of the informant, but her husband Lakshman and son Devi Prasad objected to the proposal due to which tension was prevailing between the two families. Consequently, on 7-3-2004 at about 7. 30 p. m. the sons of the informant Smt. Jagrania committed murder of Ram Sanehi alias Puttal near Cane river. In retaliation soon thereafter at about 8. Aarti grand-daughter of the informant, but her husband Lakshman and son Devi Prasad objected to the proposal due to which tension was prevailing between the two families. Consequently, on 7-3-2004 at about 7. 30 p. m. the sons of the informant Smt. Jagrania committed murder of Ram Sanehi alias Puttal near Cane river. In retaliation soon thereafter at about 8. 00 p. m. the petitioners alongwith their associates went to the house of Smt. Jagrania (informant) and committed murder of her husband as stated above. It is further alleged that on account of the aforesaid incident an atmosphere of panic and fear was prevailing in the locality and public order was disturbed. It is also alleged that the petitioners are trying to get bail, and there is every possibility that they may be granted bail and on being released, they may indulge in similar activities and as such their detention is necessary under the Act to prevent them from indulging in such activities. 7. Learned Counsel for the petitioners vehemently contended that the detaining authority in fact in verbatim reproduced the report of the sponsoring authority in the impugned order without applying his mind. The contention is that the occurrence, which took place on 7-3-2004 at about 7. 30 p. m. in which Ram Sanehi alias Puttal was murdered by the sons of Smt. Jagrania, was reported to the Police shortly after the incident at about 9. 30 p. m. on the same day and was registered as Case Crime No. 12 of 2004 under Sections 147, 148, 149, 364, 302, 120-B and 436 IPC, Police Station Mataundh, District Banda wherein it was specifically alleged that after committing the murder of Ram Sanehi alias Puttal, the accused persons in order to save themselves went to their house and set it on fire and also killed Lakshman Kevat by pelting stone. But this FIR was not placed before the detaining authority, which was very vital because the rival version was certainly a vital circumstance to be considered by the detaining authority before passing the order of detention and since that was not taken into consideration, the order of detention is vitiated. But this FIR was not placed before the detaining authority, which was very vital because the rival version was certainly a vital circumstance to be considered by the detaining authority before passing the order of detention and since that was not taken into consideration, the order of detention is vitiated. It is also contended that the alleged act was committed in the remote area of the village and there was no evidence or material before the detaining authority to indicate that as a result of that incident the public order of the locality was disturbed. 8. On the other hand, Shri Arvind Tripathi, learned Additional Government Advocate opposed the writ petitions and vehemently contended that the FIR registered as Case Crime No. 12 of 2004, under Section 147, 148, 149, 364, 302, 120-B and 436 IPC was not a relevant material and non-placement of the same before the detaining authority would not vitiate the order of detention as the counter version was also stated in the bail application of the detenus which was placed before the detaining authority and thus it is not a case where the counter version was not at all before the detaining authority. In short, according to him, the fact relating to counter version having been placed before the detaining authority, the absence of the FIR of case crime No. 12 of 2004 would not vitiate the detention. 9. We have considered the submissions made on both sides. 10. When this matter was earlier heard on 22-2-2005 the learned Additional Government Advocate was granted time to place the record for our perusal to find out as to whether the FIR registered as Case Crime No. 12 of 2004, under Sections 147, 148, 149, 364, 302, 120-B and 436 IPC was also placed before the detaining authority or not. Pursuant to that order the record has been produced today before us. We have carefully gone through the record but the FIR dated 7-3-2004 registered at 9. 30 p. m. as Case Crime No. 12 of 2004 under Sections 147, 148, 149, 364, 302, 120- B and 436 IPC was not in the record and, therefore, the counter version of the incident was not before the detaining authority at the time of passing of the impugned order of detention. 30 p. m. as Case Crime No. 12 of 2004 under Sections 147, 148, 149, 364, 302, 120- B and 436 IPC was not in the record and, therefore, the counter version of the incident was not before the detaining authority at the time of passing of the impugned order of detention. The petitioners have been detained because of their involvement in Case Crime No. 12-A of 2004, under Sections 147, 149, 302, 436 and 452 IPC which is admittedly a cross-version to the incident registered as Case Crime No. 12 of 2004 under Sections 147, 148, 149, 364, 302, 120-B and 436 IPC and it appears from the averments made in para-3 of the counter- affidavit filed on behalf of the detaining authority that the Police after due investigation have submitted charge-sheet in both the aforesaid case crime numbers and, therefore, the contents of Case Crime No. 12 of 2004 was an important and relevant material to be considered by the detaining authority for his subjective satisfaction to detain the petitioners. 11. It is not in dispute that there were two versions in respect of the alleged incident. In Case Crime No. 12 of 2004 the allegation is that the sons of Smt. Jagrania, first committed murder of Ram Sanehi alias Puttal and thereafter they went to their house and set it on fire and also murdered Lakshman husband of Smt. Jagrania to defend themselves, whereas in Case Crime No. 12-A of 2004 it has been alleged that as a retaliation to the murder of Ram Sanehi alias Puttal the petitioners along with their associates came to her house and then committed the alleged offence. Thus, there were two versions in respect of both the alleged incidents but admittedly only one version, i. e. in Case Crime No. 12-A of 2004 was placed before the detaining authority and the counter version, which was reported earlier in point of time and registered as Case Crime No. 12 of 2004 by the Police was never placed before the detaining authority. It is surprising that the sponsoring authority recommended for the detention of the petitioners under Section 3 (2) of the Act for their alleged involvement in Case Crime No. 12-A of 2004 despite that the FIR registered as Case Crime No. 12 of 2004 which was counter version and reported at earlier point of time, was not placed before the detaining authority. It was the duty of the sponsoring authority to place all the relevant material before the detaining authority in respect of the alleged incident especially when there were two versions of the alleged incident. In the circumstances the subjective satisfaction of the detaining authority based on one version cannot be held to be proper for taking steps of preventive detention as he was not aware of the other version which was equally relevant material even though it may or may not have affected the satisfaction of the detaining authority. 12. Similar views were expressed by two Division Benches of this Court in the case of Mangoo Tyagi v. Adhikshak, Janpad Karagar, Moradabad & Ors. reported in 1998 (1) JIC 327 (All) (LB), and in the case of Inamul Haq Engineer v. Superintendent, Division/district Jail, Azamgarh & others reported in 2002 (2) JIC 120 (All) : 2001 CBC 411. 13. The contention of the learned Counsel for the respondents that since the bail applications of the detenus were placed before the detaining authority, which also contains counter version, has also no force, as it does not contain the details, which are stated in the FIR, registered as Case Crime No. 12 of 2004. Besides that the mere placement of the fact referred in some document is not sufficient and what is important is the placement of the relevant material for the consideration of the detaining authority. For placing of the cross-version the FIR would be the most vital document and not the bail application. 14. It was incumbent for the sponsoring authority to have placed all the relevant material before the detaining authority. In the case of Ahamed Nassar v. State of Tamil Nadu & Ors. For placing of the cross-version the FIR would be the most vital document and not the bail application. 14. It was incumbent for the sponsoring authority to have placed all the relevant material before the detaining authority. In the case of Ahamed Nassar v. State of Tamil Nadu & Ors. reported in 2000 (1) JIC 221 (SC) : 2000 (40) ACC 53, the Honble Apex Court held that every conceivable material which is relevant and vital which may have a bearing on the issue should be placed before the detaining authority and the sponsoring authority should not keep it back, based on his interpretation that it would not be of any help to a prospective detenu because the decision is not to be taken by the sponsoring authority. Thus, the law is well settled that an order of detention vitiates, if any relevant document is not placed before the detaining authority, which reasonably could affect his decision. This being the legal position and in the facts of the case, we are of the view that the FIR registered as Case Crime No. 12 of 2004 being a relevant piece of evidence having not been considered by the detaining authority as the same was excluded from his consideration, was fatal and vitiated the order of detention. 15. Since all these petitions deserve to be allowed on this point alone, we need not to advert to other contentions raised in the writ petition. 16. In the result, all the five writ petitions succeed and are hereby allowed. The respondents are directed to set the petitioners at liberty forthwith unless they are required to be detained in any other matter. However, there shall be no order as to costs. Petition allowed. .