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2010 DIGILAW 1813 (ALL)

Sabir & Ors. v. State of U. P. & Others

2010-05-27

SURENDRA SINGH, YATINDRA SINGH

body2010
Hon'ble Surendra Singh, J:- 1. These three habeas corpus writ petitions are against the detention order dated 1.6.2009 passed by the District Magistrate, Hamirpur. THE FACTS 2. An incident happened on 11.11.2008 at 5:30pm and an FIR was also lodged in respect of the same at 8:30pm vide case crime no. 2072 of 2008, under sections 307, 302, 504, 506, 34 IPC and section 7 criminal Law Amendments Act, Police Station Rath, District Hamirpur. In this incident firing took place and three persons including one unconnected child was also killed. 3. The petitioners were arrested and they filed bail application on 22.5.2009. Subsequently the impugned detention order was passed on 1.6.2009 and it was also approved by the State Government on 10.6.2009. 4. The petitioners filed representation on 11.6.2009. This was received by the District Magistrate on 12.6.2009 from the Superintendent of Jail. He asked for comments from the sponsoring authority namely Superintendent of Police, Hamirpur and thereafter sent the representation to the State Government on 16.6.2009. 5. The representation was received by the State Government on 18.6.2009. Subsequently it was rejected on 24.6.2009. It was communicated to them on 29.6.2009. 6. We have heard Sri Mohit Singh, and Sri Saket Jaiswal for the petitioners; Sri Sudhir Mehrotra and Sri JK Sisodia for the State and State officials; and Sri Raj Kishor Pandey, Sri Mithilesh Chandra Tripathi and Sri Raghunandan Singh for the Union of India. THE DECISION 7. The counsel for the petitioners submitted that: (i)The ground relates to law and order and not to the public order; (ii)The detention order has been passed on the stale ground; (iii)There is delay in disposal of the representation by the State Government; (iv)There is delay in communicating the rejection order to the petitioners. 1st Submission 8. Co-detenues are co-accused in the incident dated 11.11.2008. There is only one ground of detention. The ground of detention states that the detenues had started indiscriminate firing at the public place in front of a shop. In this indiscriminate firing, innocent unconnected person was also killed. There was atmosphere of terror in the village. 9. The firing was at public place. In view of this, the ground relates to public order rather than merely to law and order. 2nd Submission 10. In this indiscriminate firing, innocent unconnected person was also killed. There was atmosphere of terror in the village. 9. The firing was at public place. In view of this, the ground relates to public order rather than merely to law and order. 2nd Submission 10. The counsel for the petitioners cited Waseem vs. State of UP: 2004 (50) ACC 931 (the Waseem case) and submitted that: In the Waseem case, the incident was three and half months ago. It was held to be stale; In this case, detention order was passed after about six and half months; It is on a stale ground. 11. The satisfaction on the basis of an old incident may vitiate the detention order but it depends on facts and circumstances of every case. No hard and fast rule can be laid down. 12. The Supreme Court in Smt. K Aruna Kumar vs. Government of Andhra Pradesh: 1988 SCC (Cr) 116 (the Aruna kumari case) held as follows: 'The delay cannot by itself vitiate the decision to detain a person and this is fully demonstrated by the cases of Rajendra Prashad v. State of UP: (1981) 4 SCC 558 wherein the order was passed after seven months, Smt. Hemlata Kantilal Shah v. State of Maharashtra: (1981) 4 SCC 647 and Malwa Shaw v. State of WB: AIR 1974 SC 957 wherein the orders of detention were passed five months later.' 13. In the Aruna kumari case the incident was of 18.12.1986. The petitioner was arrested on 18.3.1987 but the order was passed on 15.5.1987 i.e. to say about six months after the date of incident and yet the Supreme Court, considering the facts of that case, held that the delay was explained and held the detention order to be valid. 14. In the present case, the detention order states that the petitioners had filed bail application on 22.5.2009; and were trying to obtain bail; and in case the bail is granted then there was likelihood that they would repeat it again, causing disturbance in the public order. The satisfaction of the District Magistrate in this regard is also recorded in the detention order. 15. The Supreme Court in Kamarunnissa vs. Union of India and another: 1991 CriLJ 2058 held that detention order can be passed in respect of a person in jail. The satisfaction of the District Magistrate in this regard is also recorded in the detention order. 15. The Supreme Court in Kamarunnissa vs. Union of India and another: 1991 CriLJ 2058 held that detention order can be passed in respect of a person in jail. The court after considering the different decisions held as follows: 'From the catena of decisions referred to above it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing.' 16. In the present case, the aforesaid conditions are satisfied. The detention order records the aforesaid facts. It is not clear if in the Waseem case these facts and of satisfaction was recorded or not. In our opinion, the Waseem case is distinguishable. The detention is not vitiated on this account. 3rd Submission 17. Sri Premshanker has filed a counter affidavit on behalf of the State. In paragraph 3 of the counter affidavit, it has been stated that representation was received by the State Government on 18.6.2009. It was sent to the Central Government on 19th June 2009. 20th and 21st June 2009 were holidays and note was submitted on 22nd June 2009. It was examined by the Joint Secretary and Special secretary and thereafter, it was rejected by the State Government on 24th June, 2009. 18. In our opinion, there is no delay in deciding the representation of the petitioners. 4th Submission 19. The counsel for the petitioners submitted that the order rejecting the representation was communicated on 29.6.2009. There is delay in communicating the same. 20. In paragraph 9 of the counter affidavit filed by the State Government, it is stated that a radiogram was sent on 25.6.2009 to the district authorities. 21. Sri Suresh Kumar is Deputy Jailor. He has filed a counter affidavit stating that he received the communication on 29.6.2009 and communicated to the petitioners on the same date. 20. In paragraph 9 of the counter affidavit filed by the State Government, it is stated that a radiogram was sent on 25.6.2009 to the district authorities. 21. Sri Suresh Kumar is Deputy Jailor. He has filed a counter affidavit stating that he received the communication on 29.6.2009 and communicated to the petitioners on the same date. There is explanation for the delay. CONCLUSION 22. There is no merit in the Habeas Corpus petitions. They are dismissed.