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Allahabad High Court · body

2009 DIGILAW 1719 (ALL)

RAM SARAN VERMA v. STATE OF U P

2009-04-24

A.K.ROOPANWAL, R.K.RASTOGI

body2009
R. K. RASTOGI, J. This Habeas Cor pus Writ Petition has been filed by the pe titioner Ram Saran Verma challenging the detention order dated 1. 11. 2008 passed against him by the respondent No. 3, Dis trict Magistrate, Pilibhit under section 3 (2) of the National Security Act and for seek ing his release from detention under the above Act. 2. The facts relevant for disposal of this writ petition are that on 22. 10. 2008 Case Crime No. 1163 of 2008 was regis tered at Police Station Kotwali Bisalpur, District Pilibhit under sections 302 & 147 IPC in respect of the murder of Sonu alias Sunil Kumar with these allegations that he had been murdered by four to five Muslim boys and in connection with that incident the petitioner delivered provoking speeches in the Ram Lila Maidan with a view to spread malice between Hindus and Muslims to disturb the communal har mony. Consequently, public order was disturbed and the Ram Lila festival was also disturbed. He was asked not to deliver such speeches but he did not mend his ways so he was arrested under sections 151, 107 and 116 Crpc. However, he alongwith his companions caused mischief to the shops of the Muslims and so case crime No. 1165 of 2008 under sections 147, 148, 307, 323, 504, 506, 427 IPC and 7 Criminal Law Amendment Act was regis tered against him and other co-accused persons on 23. 10. 2008. The public order was again disturbed and case crime No. 210 of 2008 under sections 147, 341, 323, 353, 332, 336, 153a, 504, 506 IPC and 7 Criminal Law Amendment Act was regis tered against him and a charge-sheet was also submitted against him in this case on 29. 10. 2008. Since there were chances that after his release on bail, the petitioner may involve in such- activities again, the SHO of Police Station, Bisalpur submitted a report for his detention under the National Secu rity Act through proper channel to the District Magistrate and the District Magis trate, after being satisfied with that report and the recommendations of the concerned authorities thereon, passed an order for his detention under the National Security Act on 1. 11. 2008. The petitioner filed his repre sentations against that order but they were rejected. Then he filed this writ petition. 3. 11. 2008. The petitioner filed his repre sentations against that order but they were rejected. Then he filed this writ petition. 3. Counter affidavits have been filed by the respondents No. 1, 2, 3 and 5. Re joinder affidavits have also been filed in reply to those counter affidavits. We have gone through all these documents and have heard the learned Counsel for the parties. 4. Learned Counsel for the petitioner submitted before us that there has been inordinate delay in decision of the repre sentation of the petitioner by respondent No. 2-Union of India. He referred to para 5 and para 6 of the counter affidavit of Smt. Lalit Prabha Srivastava, Under Secretary in the Home Ministry of the Central Govern ment in which it has been stated that the petitioners representation was received in the concerned section in the Home Ministry on 21. 11. 2008 without para wise comments. Hence, para wise comments were called for through wireless massage on 27. 11. 2008. In the meantime, the petitioners representa tion with para wise comments was re ceived on 2. 12. 2008 through the District Magistrate, Pilibhit vide his letter dated 22. 11. 2008. Then that representation was processed for consideration and the matter was put up before the Director (Security) who considered the same and passed an order for obtaining criminal history of the detenu from the State Government. Then a letter was sent to the State Government on 8. 12. 2008. The State Government sent the criminal history of the petitioner on 4. 12. 2008 and it was received in the con cerned section in the Home Ministry on 11. 12. 2008. The file was then put up before the Under Secretary on 11. 2. 2009 who submitted the same to the Director (Security) on 12. 2. 2009. The Joint Secretary forwarded the same to the Union Home Secretary on 12. 2. 2009. The Union Home Secretary considered the case and rejected the representation on 13. 2. 2009. Then the file was received back in the concerned section on 17. 2. 2009 and intimation regard ing rejection of the representation was sent to the petitioner on 17. 2. 2009. It was pointed out by the learned Counsel for the petitioner that according to para 6 of the counter affidavit of Smt. Lalit Prabha, the criminal history of the petitioner was re ceived in her office on 11. 2. 2009 and intimation regard ing rejection of the representation was sent to the petitioner on 17. 2. 2009. It was pointed out by the learned Counsel for the petitioner that according to para 6 of the counter affidavit of Smt. Lalit Prabha, the criminal history of the petitioner was re ceived in her office on 11. 12. 2008 and then the file was put up before her on 11. 2. 2009 and there is no explanation on this point as to what was being done in the office during this period of two months from 11. 12. 2008 to 11. 2. 2009. 5. Since there was no explanation in the counter affidavit regarding this delay of two months, we had directed the learned Counsel for the Union of India to explain the position of delay of two months by seeking suitable instructions from the Un ion of India. Then he filed a supplementary counter affidavit of Smt. Lalit Prabha Srivastava in which it was stated that some dates have been wrongly mentioned inad vertently in the above counter affidavit and it was asserted that the District Magistrate, Pilihhit had sent the criminal history of the detenu vide his letter No. 39/ja-09 dated 13. 1. 2009 and it was received in the con cerned section in the Ministry of Home Affairs of the Union of India on 10. 2. 2009 and not on 4. 12. 2008 and it was wrongly stated in Para 6 of the original counter affidavit that it had been received in the office of the Central Government on 11. 12. 2008 vide letter No. 84/2/170/08-CX-5 dated 4. 12. 2008 of the UP Government. 6. Since it was stated in Para 6 of the original counter affidavit of Smt. Lalit Prabha Srivastava that the criminal history of the petitioner had been summoned from the UP Government vide letter dated 8. 12. 2008 of the Central Government, and since according to Para 5 of the supplemen tary affidavit of Smt. Lalit Prabha Srivas tava, this criminal history was sent to her office by the UP Government vide its letter dated 13. 1. 2009 which was received in the Central Home Ministry on 10. 2. 2009, we called for a report from the State Govern ment also on this point. 1. 2009 which was received in the Central Home Ministry on 10. 2. 2009, we called for a report from the State Govern ment also on this point. Then a supplemen tary affidavit of Sri M. P. Agrawal was filed on behalf of the District Magistrate on 13. 4. 2009 in which it was stated that he had received a letter from the Home Ministry of the State of UP dated 31. 12. 2008 regarding criminal history of the petitioner and this letter was received in his office on 3. 1. 2009. There were holidays on 4. 1. 2009 and 5. 1. 2009, and so on 6. 1. 2009 he directed the Superintendent of Police, Pilibhit to furnish criminal history of the petitioner which was received in his office on 12. 1. 2009 and then he sent it to the Government on 13. 1. 2009. It was not stated in this supplementary counter affidavit as to how this criminal history was sent to the Central Government on 13. 1. 2009 and the learned AGA appear ing for the respondents No. 1, 3 & 5 stated that the record was silent on this point and it appeared to have been sent by ordinary post in the absence of any proof of being sent through courier or registered post or speed post. 7. Any how, it is clear that there has been delay of two months in disposal of the, representation of the petitioner by the Central Government. If the criminal history of the petitioner was requited for disposal of his representation, a wireless massage could have been sent on 8. 12. 2008 when the Director (Security) passed an order for summoning the criminal history of the pe titioner but it was not done and an ordi nary letter was sent on 8. 12. 2008 requiring the criminal history of the petitioner. It is not clear as to when this letter received by the State Government but the State Government sent a letter to the District Magis trate, Pilibhit on 30. 12. 2008 for sending the criminal history of the petitioner which was received by him on 3. 1. 2009. He sent this criminal history on 13. 1. It is not clear as to when this letter received by the State Government but the State Government sent a letter to the District Magis trate, Pilibhit on 30. 12. 2008 for sending the criminal history of the petitioner which was received by him on 3. 1. 2009. He sent this criminal history on 13. 1. 2009 but not by special messenger nor through courier nor by registered post nor by speed post but it was sent through ordinary post which was received in the office of the Union Home Ministry on 10. 2. 2009. It is, thus, clear that there have been serious laches on the part of the respondents in disposal of the repre sentation of the petitioner and so his con tinued detention is vitiated due to delay in disposal of his representation. 8. The writ petition is, therefore, al lowed and continued further detention of the petitioner is held to be vitiated. Let the petitioner Ram Saran Verma be set at lib erty forthwith if he is not required to be detained in any other case. .