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2023 DIGILAW 1677 (ALL)

Hira Ram v. District Magistrate

2023-07-13

MANISH KUMAR NIGAM, MANOJ KUMAR GUPTA

body2023
JUDGMENT : Manoj Kumar Gupta, J. 1. The petitioner has called in question an order dated 8.8.2022, passed by respondent no. 1, District Magistrate, Mau, rejecting the claim of the petitioner for sanction of ‘Honour money’ under the provisions of the U.P. Fighters of Democracy Honour Act, 2016 (for short, hereinafter referred to as ‘the Act’). 2. The object of the Act is to provide for Honour money, free transport facility and free medical facility to fighters of democracy who actively fought to protect the democracy during emergency period (25.06.1975 to 21.03.1977) and who were detained in jail under MISA/DIR for participating in such activities and for matters connected therewith or incidental thereto. 3. Some of the relevant provisions of the Act are as follows: Section 2 (a) “Fighters of Democracy” means such permanent residents of Uttar Pradesh who actively fought to protect the democracy during emergency period i.e. from 25.06.1975 to 21.03.1977 and who were detained at any time during this period, on political grounds in jail under MISA/DIR for participating in such activities. (d) “Honour money” means such Honour money to be given to the fighters of democracy as may be determined by the State Government from time to time. “4. (1) Any Honour money under this Act shall be sanctioned by the District Magistrate of the concerned district in the proforma given in Appendix 'A'. (2) The District Magistrate shall pay the Honour money directly after necessary verification of the documents submitted by the applicant. (3) (i) A fighter of democracy must be a resident of Uttar Pradesh and was detained under MISA/DIR in any jail of the country. (2) The District Magistrate shall pay the Honour money directly after necessary verification of the documents submitted by the applicant. (3) (i) A fighter of democracy must be a resident of Uttar Pradesh and was detained under MISA/DIR in any jail of the country. He shall have to annex the certificate as such, which shall be verified by the District Magistrate concerned at his level; (ii) While considering the case of such fighters of democracy whose documents are not available in the jail or destroyed, the District Magistrate concerned shall, after necessary verification, satisfy himself with other available documents that FIR was lodged in relevant sections under MISA/DIR against the applicant while opposing the emergency imposed during period from 25.06.1975 to 21.03.1977 and his arrest/detention is confirmed; (iii) Such fighters of democracy, against whom other criminal sections were also imposed besides MISA/DIR, the District Magistrate shall satisfy himself that such other sections were imposed while fighting for the democracy during emergency and in opposition of imposition of emergency and arrest/detention was not other than political grounds; ……………...” 4. The petitioner claims that he was arrested and detained in jail from 20.11.1975 to 20.12.1975 under the Defence and Internal Security of India Rules, 1971 (for short, hereinafter referred to as ‘DIR’) while agitating against the imposition of Emergency. He was also charge-sheeted and convicted. 5. The petitioner further claims that on account of aforesaid reasons, he is covered by the definition of ‘Fighters of Democracy’ and was entitled to ‘Honour money’. Accordingly, he applied in prescribed format to respondent no. 2 for sanction of Honour money. 6. The application filed by the petitioner has been rejected by the impugned order after returning a finding that the report of Incharge Inspector, P.S. Kotwali, District Mau dated 24.5.2022 states that no FIR was ever found to be lodged against the petitioner. Moreover, Senior Superintendent, District Jail, Azamgarh in his report dated 21.6.2022 has mentioned that no record was found relating to detention of the petitioner in District Jail, Azamgarh between 25.6.1975 and 21.3.1977. 7. The petitioner has challenged the impugned order on the following grounds: - (a) The impugned order is perverse and does not take into consideration the bail order dated 20.12.1975, the charge sheet dated 3.2.1977 and the order of conviction dated 3.2.1977. The aforesaid documents clearly reveal that the petitioner was arrested on 20.11.1975 and was granted bail on 20.12.1975. 7. The petitioner has challenged the impugned order on the following grounds: - (a) The impugned order is perverse and does not take into consideration the bail order dated 20.12.1975, the charge sheet dated 3.2.1977 and the order of conviction dated 3.2.1977. The aforesaid documents clearly reveal that the petitioner was arrested on 20.11.1975 and was granted bail on 20.12.1975. (b) The charge sheet reveals that the petitioner and thirteen other persons were charged for contravening Rule 33(3) of the Defence and Internal Security of India Rules, 1971 for having indulged in propaganda against imposition of Emergency, with the support of R.S.S. (a banned organisation). The petitioner and all other co-accused were students of D.C.S.K. Degree College, Mau, District Azamgarh. The second charge was for inciting disaffection towards the Government of that time, thereby contravening Rule 36(6)(e) of the Defence and Internal Security of India Rules, 1971. The petitioner and seven other persons pleaded guilty and tendered apology for their act. Consequently, by an order passed on the same date, they were convicted for contravening Rule 33(3) and Rule 33(6)(e). The order specifically recites that their bail bonds were cancelled and they were taken in custody. (c) Ram Shankar Singh and Sudhakar Singh, who were convicted along with the petitioner for the same offence, are already receiving Honour money. (d) Senior Superintendent, District Jail, Azamgarh in his letter dated 4.6.2017 addressed to District Magistrate, Mau, stated in reference to claim of co-accused Ram Daras Maurya that Detention and Release Register No. 12 relating to District Jail, Azamgarh for the period 20.11.1975 onwards is not available. Consequently, the report of Senior Superintendent, District Jail, Azamgarh dated 21.6.2022 is factually incorrect. (e) The lodging of FIR against the petitioner under relevant provisions of DIR is evident from the charge sheet and order of conviction, which have been ignored by respondent no. 2. 8. Per contra, Sri Dileep Kesarwani, learned Additional Chief Standing Counsel, appearing for the State respondents, submitted that the findings recorded in the impugned order are findings of facts and does not warrant interference in exercise of writ jurisdiction. 9. As noted above, the claim of the petitioner for Honour money has been rejected solely on the ground that there was no evidence regarding lodging of FIR against the petitioner and his detention in District Jail, Azamgarh during the emergency period. 9. As noted above, the claim of the petitioner for Honour money has been rejected solely on the ground that there was no evidence regarding lodging of FIR against the petitioner and his detention in District Jail, Azamgarh during the emergency period. It is noteworthy that before the enactment of the U.P. Fighters of Democracy Honour Act, 2016, grant of Honour money to the fighters of democracy was regulated by similar Rules of the year 2012. Under Rule 4(4), it was mandatory to file detention certificate for lodging a valid claim for Honour money. It was amended on 30.12.2013 to take care of cases where relevant records are either not available or have been destroyed. In such cases, duty is cast upon the District Magistrate to get the claim verified from other documents. A similar provision is now contained in Section 4(3)(ii). Thus, in cases where documents are not available in the jail or destroyed, the District Magistrate concerned has been empowered to get necessary verification done, satisfy himself with other documents that FIR was lodged under MISA/DIR for opposing the emergency during the period – 25.6.1975 to 21.3.1977 and the person was arrested or detained in jail. 10. The petitioner has brought on record a letter sent by Senior Superintendent, District Jail, Azamgarh to District Magistrate, Mau dated 4.6.2017 in respect of the enquiry made in the case of Ram Daras Maurya. The charge sheet dated 3.2.1977 reveals that he was a co-accused along with the petitioner; he also made claim for Honour money and in connection therewith, the Senior Superintendent, District Jail, Azamgarh had sent the communication to the District Magistrate. It clearly reveals that Detention and Release Register No. 12 relating to District Jail, Azamgarh was not available for the period 20.11.1975 onwards. The report dated 21.6.2022 sent by Senior Superintendent, District Jail, Azamgarh in context of the petitioner that the records of the jail does not reveal that he was under confinement, does not appear to be correct. It does not specify the record which was looked into while submitting the report. 11. The object of the Act as noted above was to confer certain benefits in favour of Fighters of Democracy. The District Magistrate is specifically conferred with power to make enquiry and look into other records when the relevant records of the jail are missing or are destroyed. 12. 11. The object of the Act as noted above was to confer certain benefits in favour of Fighters of Democracy. The District Magistrate is specifically conferred with power to make enquiry and look into other records when the relevant records of the jail are missing or are destroyed. 12. A perusal of the bail order dated 20.12.1975 reveals that the petitioner was granted bail on executing a personal bond of rupees five thousand and furnishing two securities in Crime No. 770 of 1975, under Sections 33/36/43 DIR and Section 188 IPC. It supports the contention of the petitioner that he was arrested for committing offences under DIR. The order framing charge dated 3.2.1977 also evidences that he was charged for alleged violation of Rule 33 and 36 (punishable under Rule 43). It also appears therefrom that the allegation of violation of Section 188 IPC was dropped while framing the charges. The conviction order dated 3.2.1977 specifically refers to lodging of the FIR against the petitioner and thirteen other accused (all students of same college). Relevant part from the order of conviction dated 3.2.1977 is quoted below: - “It is alleged in the F.I.R. that the accused persons are the students of D.C.S.K. Degree College, Mau. Accused Jagarnath Singh and Subhash Rai were allegedly associated with R.S.S. rung the bell of the college and then all other accused persons who are the students of the same college assembled in the compound of the said college. They raised slogan in favour of the R.S.S. a banned organisation and invited persons to support the said organisation. They have raised slogan against the present Government and have criticized the policies of the Government. They have also distributed the printed pamphlets for promoting hatred and disaffection towards lawful Government established by Law.” 13. The petitioner has specifically pleaded that out of fourteen persons who were charged for the above offences, eight are already receiving Honour money. There is no specific denial to the said assertion which has been replied to in para 29 of the counter affidavit. The petitioner has also specifically averred in para 17 of the writ petition that one side of the charge sheet bore signatures of the petitioner along with seven other accused persons, who admitted their guilt and signatures of six other accused persons who did not plead guilty, on the other side. The petitioner has also specifically averred in para 17 of the writ petition that one side of the charge sheet bore signatures of the petitioner along with seven other accused persons, who admitted their guilt and signatures of six other accused persons who did not plead guilty, on the other side. This, according to the petitioner, is a clinching piece of evidence to establish that the petitioner was charged of offence under DIR; that he was on bail when charges were framed and that the conviction order passed on the same date seeks to cancel the bail bonds and directs for taking into custody the accused persons. The respondents, once again in the counter affidavit, have not denied the aforesaid specific assertion. 14. It is not the case of the respondents that the petitioner was convicted for any other offence so as to bring his case within the ambit of excepted cases [Section 4(3)(iii)]. 15. Having regard to the documentary evidence discussed above, we are of the considered opinion that the findings returned by respondent no. 2 in the impugned order are perverse and patently illegal. There was unrebutted evidence before respondent no. 2 to establish that the petitioner was detained under DIR during the relevant period while making protest against the imposition of Emergency and is thus entitled to Honour money under the provisions of the Act. 16. Accordingly, the impugned order dated 8.8.2022 is hereby quashed. Respondent no. 2 is directed to release Honour money and other benefits, as are admissible, to the petitioner under the provisions of the Act, within a period of four weeks from the date of production of a true attested copy of the instant order before him. 17. The writ petition stands allowed accordingly. 18. No order as to costs.