Rajasthan High Court - Jaipur
Smt. Prem Kaur vs State Of Rajasthan on 29 July, 1987
Equivalent citations: 1987(2)WLN324
JUDGMENT Surendra Nath Bhargava, J.
1. This is a habeas corpus petition filed by Smt. Prem Kaur challenging the illegal detention of her son Krishna Kumar alias Bebi, son of Lokendra Nath, by caste Jat, resident of Gopalgarh, Bharatpur.
2. The order of detention was passed by the District Magistrate, Bharatpur on 9th October, 1986 Annx. 2 under Section 3(2)(3) of the National Security Act, 1980, here in after referred to as the 'Act'. The said order was confirmed by (he State Government vide their order dated 15-10 1986 (Annx. 4). The Advisory Board also recommended the detention and therefore, an order came to be passed on 18-11-86 (Annx. 4) under Section 13 of the Act, confirming the order of detention dated 9-10-1986 for detaining Krishna Kumar for one year upto 8-10-1987, and these orders have been challenged by the petitioner.
3. The writ petition was filed on 1-5-987. Notices were issued and the State Government has filed the return on 13-7-1987.
4. We have heard learned Counsel for the parties and have also perused the record of the case.
5. The respondents have produced grounds of detention where in they have placed reliance on the following instances;
(i) Krishna Kumar was involved in FIR No. 232/81 under Section 326 I.P.C. and 307 I.P.C. for throwing some liquid on the face of Santosh Kumar where in challan was filed on 31-5-1981 which is pending in the court of law;
(ii) An FIR No. 321/81 under Section 324 read with Section 34 I.P.C. was lodged against Krishna Kumar and other accused persons for inflicting knife blows on Vishnu Sharma, where in a charge-sheet was filed in the court on 30-6-1981;
(iii) Similarly, he was also involved in an incident of snatching the bag containing a sum of Rs. 2419/- from one Islam Khan, Manager, Neelkamal Cinema after throwing acid, for which FIR No. 322/84 was registered under Section 394 I.P.C. and the charge-sheet was filed on 14-12-1984 against Krishna Kumar and others and that matter is pending;
(iv) The detenue was also involved in a case registered as FIR No. 78/85 under Section 307, 353 332, 147/146, 336, 435 and 379 I.P.C. in an incident which happened on 22-2-85, when the funeral procession of the dead body of Raja Mansingh as being taken out. That matter is still pending;
(v) Krishna Kumar was also named in another FIR No. 108/85 registered under Section 148, 323, 379 & 307, I.P.C. for inflicting injuries to Khushi Ram and Hariram for which FIR was lodged on 30-6-1985 and is pending trial;
(vi) Another FIR No. 644/85 under Section 147, 148, 149, 323 and 307 I.P.C. was also registered where there were allegations against Krishna Kumar and his other friends for firing on Raghunandan Sharma at his house. That matter is still pending investigation;
(vii) Another FIR No. 48/86 under Section 224 I.P.C. was lodged on 31-1-1986 implicating Krishna Kumar;
(viii) Lastly, Krishna Kumar was also named in FIR No. 289/86 registered under Section 307, I.P.C. for opening fire on Girdhari Lal in a public place and there are other general allegations without quoting any particular instance.
6. In her writ petition, the petitioner has submitted that the Detaining Authority did not apply its mind and the facts were not placed before her in right perspective, and the authorities have mis-led and mis-represented her by concealing material facts that in some of those cases, the detenue had been acquitted and, therefore, his detention order is liable to be quashed, and in this connection, the learned Counsel for the petitioner has placed reliance on Sita Ram Somani v. State of Rajasthan and Ors. .
7. It has been submitted that in the first instance quoted in the grounds as above the detenue was charge-sheeted only under Section 324 I.P.C. and not under Section 307 I.P.C. and further that the detenue was acquitted in that case on 13-8-1985, and that it has been wrongly mentioned in the grounds of detention that the matter is still pending in the court.
8. Similarly in instance No. (ii) also, the detenue has been acquitted as far as back as on 27-11-1982 which fact has been concealed from the Detaining Authority.
9. In instance No. (iii) the detenue was charge-sheeted not under Section 394 I.P.C. but under Section 324 I.P.C. and was acquitted on 23-10-86 and thus, these three instances should not have been considered and if considered, the fact that the detenu was acquitted in these three cases should have also been considered by the Detaining Authority.
10. As regards instance No. 4, it has been submitted that it relates to a general public disturbance following the death of Raja Mansingh in very abnormal circumstances and the investigation has been handed over to the Central Bureau of Investigation, and as far as known to the petitioner, so far no arrest has been made and challan has not been filed in the court, More over, the petitioner had been granted anticipatory bail and this fact has also been suppressed from the detaining authority purposely.
11. As regards instance No. (v) the authorities have not placed true and correct facts before the authority concerned. There was a cross-case in the incident and the detenue has been charged under Section 147, 148, 149 323 and 341 and not under Section 307 and 379 I.P.C. as mentioned in the FIR and a compromise deed has already been filed in accordance with the settlement arrived at between the parties outside the court.
12 Similarly, instance No. (vi) was also a cross-case. No charge-sheet has been submitted against the detenue till the passing of the detention order, where as a charge-sheet had already been filed against the complainant Raghunandan Sharma under Section 307 I.P.C. for which an FIR No. 645/85 was registered. However, a challan has been filed against the detenue also after the detention order has been passed.
13. As regards instance No. (vii), the petitioner has submitted that investigation was completed after 8 months and there is no reliable independent evidence against the detenue.
14. As regards instance No. (viii) also, the petitioner has submitted that no reliable evidence is available and there are several contradictions in the evidence under Section 161 Cr. P.C. and the petitioner is likely to be acquitted.
15. Thus, the petitioner has urged that the detenue, her son, has not been convicted by any court in any case so far, though some cases are pending against him. She has also submitted that the detaining authority has relied on the State cases except the last one and therefore, also, detention of the detenue should be quashed. In this connection, reliance has been placed on Sushanta Goswami v. State of West Bengal AIR 1969 SC 1004, Smt. Shalini Soni and Ors. v. Union of India , Shiv Prasad Bhatnagar v. State of MP and Ors. and Kamlakar P. Chaturvedi v. State of MP .
16. Learned Counsel for the petitioner has submitted that since the detenue is already in jail in connection with the last incident dated 15-6 86, the detention order should not have been passed arid in this connection, he has placed reliance on Vijay Kumar v. State of J & K , Jai Singh v. State of J & K ), Ramesh Yadav v. D.M. Etah , Lachit Bordoloi v. State of Assam 1985 Cr. LJ 229 and Vijay Narain Singh v. State of Bihar .
17. Learned Counsel for the petitioner has further submitted that no material has been placed before this court so as to justify the detention order to prevent breach of public order. There is vast difference between public order and law and order and every apprehension of breach of law and order will not necessarily be a breach of public order. Therefore, also the impugned order of detention is liable to be quashed and in this connection, he has placed reliance on Ram Manohar Lohia v. State of Bihar , Sushanta Goswami v. State of (Vest Bengal AIR 1969 SC 1004, Pushkar Mukherjee and Ors. v. State of West Bengal , Arun Ghosh v. State of West Bengal , Jaya Mala v. Home Secretary 1982(2) SCC 538, Ajay Dixit v. State of UP and the latest authority of the Supreme Court in State of UP v. Hari Shanker Tewari .
18. We have given our thoughtful consideration to the whole matter as also have considered the impugned detention order.
19. It is not necessary for us to consider the various authorities cited at the bar as we had occasion to consider all these authorities recently in Tillumal v. State of Rajasthan (D.B. Habeas Corpus Petition No. 1949/86, decided on 25-3-1987).
20. Keeping in mind the various authorities and our recent judgment in Tillumal (supra), we are unable to agree with the Detaining Authority that it is a case in which there is danger of public order. All the instances given by the Detaining Authority relate to breach of law and order. The detaining authority has not considered very material fact with regard to the first three instances where in the detenue had been acquitted in those cases. The authorities have tried to misguide and conceal material facts from the Detaining Authority and the petitioner has not been found guilty of any offence by any court in any case so far, and the matters are pending in the court of law. The detenue was already in jail and there is no immediate apprehension of his release. Even if the detenue moved the application for bail, the authorities could have brought to the notice of the court that the petitioner was involved in so many cases and the court would have considered and could have refused bail.
21. Thus, we are, of the opinion that there are no sufficient grounds for detaining the petitioner with a view to prevent him from acting in any manner prejudicial to the maintenance of public order. The detenue could be dealt with in the ordinary procedure for a particular offence which he has committed and it will be open for the authorities to place all those facts before the court as and when an application for granting bail is moved on behalf of the detenue, and even if the petitioner had been released on bail, the authorities could have moved for cancellation of his bail bringing all these instances to the notice of the concerned court, which will of course examine the matter and pass an order in accordance with law.
22. In the result, this writ petition is allowed, the detention order dated 9-12-1986 (Annexure-2), order dated 15-10-1986 (Annexure-4) and order dated 18-11-1986 (Annexure-7) are hereby quashed. The parties are left to bear their own costs.