Allahabad High Court
Vijay Kumar Misra vs Superintendent, District Jail And Ors. on 3 July, 2002
Equivalent citations: 2002CRILJ3652
Author: M. Katju
Bench: M. Katju, R.B. Misra
JUDGMENT M. Katju, J.
1. Heard Sri D. S. Mishra learned counsel for the petitioner and learned Government Counsel for the respondents.
2. This is a writ petition, which we are allowing with a heavy heart despite all our inclination to the contrary.
3. The petitioner who has been elected MLA from the Samajwadi Party is challenging the impugned order of detention dated 24-4-2002 (Annexure-1 to the petition) passed under the National Security Act. Annexure-2 to the petition is the ground of detention, which mentions as many as 38 criminal cases against the petitioner. Of these, 8 cases are under Section 302, IPC, about 10 cases under Section 307, IPC and there are other cases under Section 376, IPC, 452, IPC and the U. P. Control of Goondas Act, Gangsters Act, Arms Act etc.
4. The petitioner Vijay Kumar Mishra has been elected Member of the Legislative Assembly of U.P. in the recent election. This case illustrates the level of criminalisation that has taken place unfortunately in our public life. It is well known that a large number of such MLA's are reputed Criminals, Gangsters or Mafia leaders. What will happen to our country in this state of affairs can well be imagined.
5. As already stated above, we were disinclined to interfere in such a case but we have to do so with a heavy heart as the law of Habeas Corpus is a technical law and there are two legal points on which the petition has to be allowed. Firstly, it is alleged in paragraphs 25, 26 and 27 of the petition that the Detaining Authority did not inform the petitioner that he has a right to make a representation against the detention order to the Detaining Authority. This fact is not disputed by the respondents. Hence in view of the Division Bench decision of this Court in Jai Prakash Shastri v. Adhishak Janpad Karagar 2000 (41) ACC 883 : 2000 All LJ 2791 which followed the decision of the Supreme Court in State of Maharashtra v. Santosh Shastri Acharya (2000) 8 JT (SC) 374 : AIR 2000 SC 2504 the impugned detention order becomes illegal. Secondly the argument of learned counsel for the petitioner that the detention order itself cannot fix the period of detention at the initial stage has also to be accepted in view of the decision of the Constitution Bench of the Supreme Court in Makhan Singh Tarsikka v. State of Punjab AIR 1952 SC 27, which has been followed by the Division Bench of this Court in Adesh Kumar v. Adhichhak Janpad Karagar 1997 UP Cri Rulings 647.
6. For the reasons given above the petition is allowed.
7. Impugned detention order dated 24-4-2002 is quashed. The petitioner shall be released forthwith unless he is required in some other criminal preventive detention case.