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2009 DIGILAW 453 (ALL)

TRIBHUWAN SINGH v. STATE OF U. P.

2009-02-09

A.K.ROOPANWAL, R.K.RASTOGI

body2009
JUDGMENT Honble A.K. Roopanwal, J.—As in both these petitions the petitioners have been detained on the basis of one and the same incident, the detention orders were passed on the same day and the same question of law is involved therein, we decide both these petitions together. 2. In these habeas corpus writ petitions the petitioners have challenged detention orders dated 29.5.2008 passed by the District Magistrate, Kaushambi detaining the petitioners under Section 3(2) of the National Security Act, 1980 (hereinafter referred to as the Act). 3. Counter affidavits and rejoinder affidavits have been exchanged between the parties and are on the record. 4. We have heard Shri R.P. Misra, learned counsel for the petitioners, Mr. K.G. Shukla for the Union of India and learned AGA for the other respondents. 5. It appears that the petitioners were detained under the National Security Act on the basis of their involvement in case Crime No. 111/08, under Sections 147, 148, 332, 353, 341, 504, 427, IPC, 2/3 Prevention of Damage to Public Property Act, 1984 and 3/7 Criminal Law Amendment Act, P.S. Pipari, District Kaushambi. 6. It is said that on 30.4.2008 between 9.30 a.m. to 11.30 a.m. S.H.O. Dinesh Chaturvedi of P.S. Pipari alongwith other police personnel came at Allahabad-Manjhanpur-Kaushambi highway in connection with case Crime No. 110/08, under Sections 279, 304-A, 427, IPC, P.S. Pipari, District Kaushambi. This was a case where Chhedi Lal S/o Dashrath, r/o Dariyapur, P.S. Pipari, District Kaushambi had died in an accident. An unruly mob had assembled there. The police tried to pacify the matter but the crowd was not ready to leave its anger. It started to damage a truck and also blocked the public way. The petitioners were in the lead role and were encouraging the crowd to beat the police personnel and to set the vehicle on fire. On their encouragement the crowd pelted stones upon the police party and started to beat them. In the meantime, C.O. Police, Chayal, Nav Rang Singh also reached there and he also tried to pacify the mob but the petitioners and their companions did not mend their way. They not only damaged his gipsy No. UP 73 G-0014 but also started beating the police personnel present there. The crowd also tried to murder the truck driver who had caused the accident. They not only damaged his gipsy No. UP 73 G-0014 but also started beating the police personnel present there. The crowd also tried to murder the truck driver who had caused the accident. Finding no other way the police resorted to the use of light force and only after that the Panchnama of the dead body could be done. 7. It is also said that due to the activities of the petitioners and others the pubic order was badly disturbed. The public transport came to halt and it created an atmosphere of no confidence in the police. 8. Regarding the above incident a case at crime No. 111/08 was registered at P.S. Pipari, under Sections 147, 148, 332, 353, 341, 504, 427, IPC, 2/3 Prevention of Damage to Public Property Act, 1984 and 3/7 Criminal Law Amendment Act. 9. In the aforesaid case the petitioners were arrested and were sent to jail. As they were trying to get bail, the District Magistrate, Kaushambi thought it proper to keep them under preventive detention as there was likelihood of their repeating the same criminal activities in future. 10. It has been argued by Mr. Mishra, learned counsel for the petitioners that the representations against the detention orders made by the petitioners were not expeditiously decided by the District Magistrate. The District Magistrate also did not send the representations expeditiously to the State Government which prevented the Advisory Board to consider them. This all has deprived the petitioners of their constitutional right guaranteed under Article 22(5) of the Constitution of India and thus, their detention is illegal and is liable to be quashed. 11. It is the well-settled law and needs no restatement that the right to make a representation against the order of detention is the most cherished and valuable right conferred upon a detenue under Article 22(5) of the Constitution of India and if there has been any infraction of such right, the detenue is entitled to be released. Construing the provisions of Article 22(5) of the Constitution of India the Apex Court many times emphasised that the right of a person detained to make a representation against the order of detention is comprehensive one. Construing the provisions of Article 22(5) of the Constitution of India the Apex Court many times emphasised that the right of a person detained to make a representation against the order of detention is comprehensive one. It comprehends that the person detained has the right to make a representation not only to the officer, who made the order of detention, but also to the State Government and the Central Government, who are competent to revoke the order of detention. 12. In view of the above, now, we would see as to whether the argument advanced by the learned counsel for the petitioners is liable to be accepted or not. 13. It appears from the counter affidavits filed by the District Magistrate, Kaushambi that the petitioners submitted their representations to various Authorities on 12.6.2008 through Jail Authorities where they were detained. The District Magistrate also received the representations of the petitioners on 12.6.2008 on which he called for the comments from the S.S.P., Kaushambi on 12.6.2008, who sent his report on 19.6.2008. Thereafter, the comments were prepared by the District Magistrate, Kaushambi and these comments were sent to the State Government on 7.7.2008 through Special Messenger. The representations submitted by the petitioners before the District Magistrate were rejected by him on 30.6.2008. 14. Thus, from the above it is very much clear that the S.S.P. Kaushambi did not consider the gravity of the matter and sent his comments leisurely after six days of receiving the letter from the District Magistrate. There is no explanation as to why six days were taken by the S.S.P., Kaushambi in sending the comments to the District Magistrate. Not only this that the S.S.P. took the matter lightly, the District Magistrate, Kaushambi also delayed the matter at his end. There is no reason as to why the representations were not decided by the District Magistrate expeditiously after receiving comments from the S.S.P. on 19.6.2008. There is no reason apparent on the record which prevented the District Magistrate from taking a long time upto 30.6.2008 in deciding the representations. There is also no explanation available from the counter affidavits of the District Magistrate as to why after receiving the report from the Sponsoring Authority on 19.6.2008 he dispatched the representations to the State Government on 7.7.2008. There is also no explanation available from the counter affidavits of the District Magistrate as to why after receiving the report from the Sponsoring Authority on 19.6.2008 he dispatched the representations to the State Government on 7.7.2008. This all prompts us to hold that the District Magistrate, Kaushambi had not decided the representations of the petitioners within a reasonable time and also took a long time in forwarding the representations to the State Government which ultimately prevented the Advisory Board to consider the representations while taking decision in the matter. The delay in disposal of the representations and the delay in forwarding the same to the State Government has definitely infringed the valuable rights of the petitioners guaranteed under Article 22(5) of the Constitution of India and on this ground their further detention cannot be allowed to continue. 15. Accordingly, we allow these petitions and disallow the further detention of the petitioners. They be released forthwith, if not required in any other case. ————