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Allahabad High Court · body

2018 DIGILAW 25 (ALL)

ASHOK YADAV v. STATE OF U. P.

2018-01-04

KRISHNA PRATAP SINGH, RAMESH SINHA

body2018
JUDGMENT : Delivered by Hon'ble Ramesh Sinha, J. 1. Heard Sri Prakash Chandra Srivastava, learned counsel for the petitioner, Sri Vikas Sahai, learned A.G.A. for the State and perused the impugned F.I.R. as well as material brought on record. 2. Sri Raghuraj Kishore Mishra, learned counsel for the Union of India is not present though the matter has been called out in the revised list. 3. The present petition has been preferred by the petitioner with the following prayer:- A. Issue a writ order or direction in the nature of Habeas Corpus directing the respondents to produce the detenue before this Hon'ble Court and set him free at liberty. B. Issue a writ order or direction which this Hon'ble Court may deem fit and proper under the circumstances of the case C. Award the cost to the petitioners. 4. The petitioner was served with the detention order along with ground of detention while he was confined in Naini Jail in criminal case pending against him i.e. case Crime No.429 of 2016 u/s 147, 148, 149, 302, 307, 34 IPC and 7 Criminal Law Amendment Act, Police Station Naini, District Allahabad for which F.I.R. was registered against him on 05.06.2016 along with other accused persons. 5. Taking into account the anti social activities of the petitioner on the basis of police report submitted by the Inspector of Police Station Jhunsi to S.S.P. Allahabad who forwarded the report to District Magistrate for recommending the petitioner be detained under the National Security Act, 1980 (hereinafter referred as the Act). The District Magistrate, Allahabad respondent no.3 on 02.04.2017 has passed the detention order against the petitioner under the Act which has been confirmed by the State Government respondent no.1 on 12.5.2017 whereby he was ordered to be detained in pursuance of said order of the District Magistrate for 3 months. The detention order passed by the District Magistrate Allahabad was further extended by the State Government on 28.6.2017 by which it was ordered that the petitioner to be confined for further period of six months and lastly on 26.9.2017 it was directed that the petitioner would be detained for a period of nine months from the date of detention order dated 2.4.2017. 6. On the basis of a solitary case i.e. case crime no.429 of 2016, P.S. Naini, district Allahabad, the petitioner has been detained under the National Security Act by the detaining authority. 6. On the basis of a solitary case i.e. case crime no.429 of 2016, P.S. Naini, district Allahabad, the petitioner has been detained under the National Security Act by the detaining authority. It has been stated in the ground of detention that the informant Santosh Yadav along with his brother Gyan Chandra Yadav and persons of the village namely Lalta Prasad Yadav, Anil Yadav, Suresh Yadav, Jai Prakash Yadav, Srikant Yadav and Shatrughan Yadav had gone to meet his father in Naini Jail. When he reached on the main gate of Naini Jail, then he met some persons known to him, he got down from his vehicle and started talking to them and his brother along with other persons of the village by his Safari Vehicle No.U.P.70 C.R.0903 and other Safari Vehicle went inside the Jail for meeting his father. After meeting at about 3.40 p.m., when they returned from the jail and reached the main road for taking the informant and stopped the vehicle, then some persons started indiscriminate firing and hurling the bombs on the informant's vehicle. The informant tried to flee from the place of occurrence to save himself, then Ashok Yadav, S/o late Hari Lal Yadav, Chandrajeet Yadav, S/o Balwant Yadav, Shailendra Yadav, Jitendra Yadav, Nagendra Yadav, Sons of late Parasnath Yadav and Aseem, S/o Bhuwai Lal, R/o Gan Gram Sherdih, Police Station Jhusi, Raj Kumar Yadav, S/o late Hari Lal Yadav, R/o Chatnag, Jhusi Allahabad and Raju Pahalwan, S/o Nand Lal, R/o Naika Maheen, Police Station Jhusi and Alok Kumar @ Kallu, S/o Gama Yadav, R/o Village Sanauti, P.S. Jhusi, Rakesh Kumar, S/o Amrat Lal Yadav, Village Dharampur Dhurwa, Police Station Tharwai, district Allahabad and 3-4 unknown persons who were on motorcycle and Scorpio vehicle armed with rifle, pistol had assaulted the informant and his brother and other villagers in order to kill them, made indiscriminate firing and when the informant tried to flee, then bombs were hurled on the vehicles also due to which smoke spread all over and the informant party lost control of the vehicle which fell down the road. Due to the act of the accused persons, Lalta Prasad Yadav died on the spot and Gyan Chandra Yadav died during the treatment in the hospital. Anil Yadav, Shatrughan Yadav, Suresh Yadav and Srikant Yadav received injuries of fire arm. 7. Due to the act of the accused persons, Lalta Prasad Yadav died on the spot and Gyan Chandra Yadav died during the treatment in the hospital. Anil Yadav, Shatrughan Yadav, Suresh Yadav and Srikant Yadav received injuries of fire arm. 7. The detaining authority taking into account the said daring act of the petitioner along with his associates because of the dispute between the associate of the petitioner namely Shailendra Yadav and the informant party to show their muscle power in the village Sherdih and inimical relationship between them, the petitioner along with Shailendra Yadav and others have committed murder of two persons in a brutal manner in broad-day-light due to which there was disturbance of public order on the highway apprehension and fear in the mind of public at large and the shops in the nearby area were closed and the people ran for taking shelter after leaving their vehicle etc. 8. On the basis of the said incident, FIR was lodged against the petitioner and other accused persons by Santosh Yadav on 5.6.2016 at 5.30 p.m. which was registered as Case Crime No.429 of 2016, u/s 147, 148, 149, 302, 307, 34 IPC and 7 Criminal Law Amendment Act. 9. The District Magistrate-respondent no.3 coming to know about the fact that the petitioner had been granted bail in the aforesaid case on 21.3.2017 and bail bonds were executed and in another case i.e. case crime no.398 of 2016, u/s 2/3 U.P. Gangsters Act and Prevention of Anti Social Activities Act, 1986, P.S. Jhusi, Allahabad in which the petitioner was also wanted, he is also likely to be released on bail as he has filed bail application before Special Judge, Gangster's Act, Allahabad and there was every likelihood that the petitioner would be released on bail and again indulge him in such anti social activities, by which public order was likely to be disturbed, hence in order to prevent him from disturbing the public order, he was satisfied to detain the petitioner under the National Security Act, hence he passed impugned order detaining him u/s 3(2) of the Act. 10. The petitioner had made representation to the higher authorities quashing the detention order through the Jail Superintendent respondent no.4 to whom he submitted copies of the representation for forwarding the same to them. 11. The pleadings between the parties have been exchanged. 12. 10. The petitioner had made representation to the higher authorities quashing the detention order through the Jail Superintendent respondent no.4 to whom he submitted copies of the representation for forwarding the same to them. 11. The pleadings between the parties have been exchanged. 12. It has been argued by learned counsel for the petitioner that the petitioner was arrested on 7.6.2016 in Case Crime No.429 of 2016, Police Station Naini, District Allahabad in which two persons have lost their life and the detention order was passed by the detaining authority on 2.4.2017 i.e. after nine months after the said incident for which no explanation has been given by the detaining authority for passing the detention order against him after such a long delay. He next submitted that though there were eight accused persons who were charge sheeted in the aforesaid case and the allegations against the petitioner was of hatching conspiracy also for the murder of the brother of the informant and so far as against co-accused Chandra Jeet Yadav who had motive to commit the crime and also allegation of conspiracy only, no detention order was passed against him and the detention order was passed against the petitioner only which is discriminatory. He next argued that from the perusal of the detention order, it is evident that the detaining authority has taken the petitioner to be the main accused who had committed the murder of the two deceased whereas there was only allegation against him for offence u/s 120-B IPC. It is further submitted that the criminal ante-cedents of the petitioner was not placed before the detaining authority by the police authorities who had recommended for the detention order of the petitioner under the Act and as per the case shown under the Gangster's Act against the petitioner, it was only one case i.e. Case Crime No.429 of 2016. He vehemently argued that the detaining authority without application of mind has detained the petitioner under the Act, hence the detention order is liable to be quashed by this Court. In support of his argument, the counsel for the petitioner relied upon the judgment of the Apex Court in the case of Rabindra Kumar Ghosel alias Buli Vs. The State of West Bengal, reported in 1975 SCC (Cri) 365 as well as of this Court in the case of Azad Vikram Singh Vs. In support of his argument, the counsel for the petitioner relied upon the judgment of the Apex Court in the case of Rabindra Kumar Ghosel alias Buli Vs. The State of West Bengal, reported in 1975 SCC (Cri) 365 as well as of this Court in the case of Azad Vikram Singh Vs. Union of India reported in 2016 (93) ACC 870 and Sanchit Gupta Vs. State of U.P. Reported in 2016(96) ACC 84. 13. Learned AGA on the other hand has vehemently opposed the argument of learned counsel for the petitioner and submitted that so far as delay in passing the detention order against the petitioner by the detaining authority is concerned, it is argued by him that the petitioner though was arrested in the aforesaid case on 7.6.2016 but when he was granted bail on 21.3.2017 thereafter had filed his bail application under the Gangster's Act before the Special Judge, then the detaining authority taking into account the said fact was of the opinion that there was every likelihood of the petitioner to be enlarged on bail in the said case also, thought it proper to pass the detention order against the petitioner taking into account his anti-social activities which may result in disturbance of public order. He submitted that for nine months, the petitioner was confined in jail and when his bail application was allowed on 21.2.2017 and till his bail was not allowed by this Court, there was no occasion for the detaining authority to pass the detention order against him. Therefore, the argument of learned counsel for the petitioner that there has been delay in passing the detention of the petitioner has no substance. So far as other argument of the petitioner that there has been discrimination made by the detaining authority in passing the detention order and not against Chandra Jeet Yadav also has no force as it is the discretion of the detaining authority to pass the detention order against the person taking into account his activities and the detention order cannot be set-aside on this ground also. The case law which has been cited by the counsel for the petitioner are distinguishable from the facts and circumstances of the present case. 14. We have given a thoughtful consideration to the submissions advanced by learned counsel for the parties and perused the material on record. The case law which has been cited by the counsel for the petitioner are distinguishable from the facts and circumstances of the present case. 14. We have given a thoughtful consideration to the submissions advanced by learned counsel for the parties and perused the material on record. It is apparent from the record that the petitioner was involved in the incident of double murder which has taken place in the broad-day-light near the Naini Jail when the informant Santosh Yadav along with his brother and other persons of village had gone to meet his father in Naini Jail and while coming out on the main road, he along with his brother and other persons of the village were attacked by the accused persons including the petitioner with fire-arm weapons and bombs out of which two persons had lost their life and four persons received fire-arm injuries. There was admittedly enmity between the associate of the petitioner namely Chandrajeet Yadav and the informant party and the crime in question was committed in a brutal manner on public highway and terror was created by the activities of the petitioner and other accused persons in the area disturbing the public tranquility of the vicinity and the people have to run to take shelter leaving their vehicle etc. The shops and market were closed because of the act of the petitioner and his associates. The petitioner was arrested by the police on 7.6.2016 and he was confined in jail for about nine months and when he was granted bail by this Court on 21.3.2017, he has executed bail bonds in the said case. Thereafter, he moved bail application before the Special Judge, Gangster's Act, Allahabad and on coming to know the said fact the detaining authority was of the opinion that the petitioner would likely to be released on bail and in order to prevent him from repeating such ghastly act after being satisfied exercised his power u/s 3(2) of the Act by passing the detention order against him which was served to him in jail. The argument of learned counsel for the petitioner that there has been gross delay on the part of the detaining authority in passing the detention order against the petitioner for the last nine months cannot be acceptable as there was no occasion for the District Magistrate respondent no.3 to pass any detention order against the petitioner as he was not granted bail before and only on 21.3.2017 he was granted bail and furnished his bail bonds in the said case and thereafter when he moved application for bail under the Gangster's Act for being released in the Court of Special Judge, the detaining authority satisfied that he would be released on bail in the said case also, he thought it proper to pass detention order which was rightly passed curtailing his liberty in order to prevent him to repeat such dangerous acts. So far as only the detention of the petitioner is concerned and there has been discrimination in passing the detention order and not against co-accused persons, the said argument of learned counsel for the petitioner also does not have any substance as it is the sole discretion of the detaining authority taking into consideration the facts and circumstances of the case before him. Moreover both the above grounds which have been argued by the learned counsel for the petitioner for assailing the detention order passed against the petitioner there is no whisper about the same or any averment has been made in the present writ petition as has been pointed out by the learned AGA due to which no specific reply has been given in the counter affidavit by the detaining authority to which learned counsel for the petitioner states that it is apparent from the record itself, hence the court has considered the said argument of the counsel for the petitioner and its reply given by the learned AGA. It is also painful for us to note that the prayer made in the present petition is also defective one as the petitioner has neither challenged the detention order passed by the District Magistrate, Allahabad in the present petition nor has made the prayer for quashing of the same and further the learned counsel for the petitioner has also not made prayer for amending the prayer of the petition. 15. 15. In view of the foregoing discussions, the detention thus of the petitioner cannot be held to be illegal by the detaining authority, hence there appears to be no good ground made out by the petitioner against the detention order or to set him free at liberty. 16. The petition lacks merit and is, accordingly, dismissed.