Allahabad High Court
Siraj Ahmad Alias Pappu vs Union Of India Throu.Secy.Govt.Of ... on 6 November, 2019
Equivalent citations: AIRONLINE 2019 ALL 1912
Bench: Shabihul Hasnain, Rekha Dikshit
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Reserved
Case :- HABEAS CORPUS No. - 10085 of 2019
Petitioner :- Siraj Ahmad Alias Pappu
Respondent :- Union of India Throu.Secy.Govt.Of India Ministry Home & Ors.
Counsel for Petitioner :- Siddhartha Sinha, Hemant Kumar Pandey
Counsel for Respondent :- G.A.,A.S.G..Kazim Ibrahim
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Hon'ble Shabihul Hasnain,J. Hon'ble Mrs. Rekha Dikshit, J.
(Delivered by Shabihul Hasnain, J.) Petitioner has made following prayers in the petition :
(a) issue a writ, order or direction in the nature of Habeas Corpus declaring the impugned detention order dated 7th January, 2019, passed by the District Magistrate, Sultanpur, respondent no.3/detaining authority contained in Annexure-1 to the writ petition, illegal, arrbitrary and bad in law and release the petitioner from the detention forthwith.
(b) a writ, order or direction in the nature of Habeas Corpus declaring the impugned detention order extending the detention of the petitioner for additional 3 months, i.e. 6 months from 7.1.2019. (No copy of the said order has been supplied to the detenue).
(c) a writ, order or direction in the nature of certiorari quashing the order dated 7th January, 2019, contained as Annexure No.1 to the writ petition as well as consequential order dated 16th January, 2019 passed by opposite party no.2 contained as Annexure No.2 to this writ petition by which the order dated 7th January, 2019 passed by the District Magistrate, Sultanpur has been approved.
(d) a writ order or direction in the nature of certiorari quashing the orders dated 28.3.2019 and 3.7.2019, passed by the opposite party no.2 extending the detention of the petitioner/detenue for a period of 9 months from 7.1.2019.
Heard Sri Siddhartha Sinha, learned counsel for petitioner, learned Additional Government Advocate for State of U.P. and Sri Kazim Ibrahim appearing for Union of India.
The facts in brief according to the prosecution are that the complainant Kanhaiyalal Gaur, lodged an F.I.R. in Case Crime No.591 of 2018, under Sections 307,427,504,506 IPC and 7 Criminal Law Amendment Act, P.S.Kotwali Nagar, District Sultanpur on 30.7.2018 to the effect that three persons namely, Raman Singh, Satya Prakash Singh and Saurabh Singh came to the Avantika Food Mall (restaurant) at about 4.15 p.m. and 29.7.2018, who had -2- an altercation with the owner of the restaurant namely Alok Kumar Arya and the above persons went away threatening of dire consequences. The above three persons came back again in the night and shot the owner of the restaurant namely Alok Kumar Arya but he survived. This story has been corroborated by the statement of victim Alok Kumar Arya. The above incident was captured.
The police started investigation and arrested the above named accused persons. The call detail history of the above named accused persons was taken by the police and the statements of the above persons was recorded under section 161 Cr.P.C. The three assailants admitted their guilt and stated that they spoke to co-accused Jalees and Siraj (detenu) on the phone, who gave their consent to the present crime. The police added co-accused Jalees and Siraj (detenue) as accused to the present case with the aid of Sections 109 and 120B IPC. The detenue was arrested on 13.11.2018. The District Magistrate, Sultanpur ordered the detention of the detenue on 7.1.2019 as contained in Annexure-1 to the petition. The grounds for detention and the detention order passed by the District Magistrate were allegedly served on the detenue on the same date.
The detenue gave a detailed representation dated 18.1.2019 to District Magistrate, Sultanpur, S.P.Sultanpur, Jail Superintendent Sultanpur, Union of India, Home Ministry, Dy Secretary (Internal Security), Suraksha Prabhag 4 and Hon'ble Governor of Uttar Pradesh. The District Magistrate, Sultanpur, rejected the representation of the detenue on 22.1.2019. The Union of India decided the representation on 11.4.2019.
Learned counsel for petitioner has argued that the detenue was not named in the F.I.R. and the role attributed to him and co-accused Jalees was of talking telephonically to the above named three assailants and giving a go-ahead to the assaillants to commit it the present crime. He further argued that there is no phone call recording to prove the same. There are two phone calls between co-accused Saurabh Singh and the detenu of 16 seconds and 29 seconds. It is also relevant to mention that the number alleged to be belonging to Saurabh Singh is in the name of Aagam Singh and not Saurabh Singh. The contents of the conversation was an alleged confession by the co-accused to the police under Section 161 Cr.P.C. and the same is inadmissible under Section 25 of Evidence Act.
The case of co-accused Feroz Ahmad @ Jalees was quashed by this Court vide order dated 27.10.2018 in Writ Petition No.24764 of 2018 (M/B). This order has not been challenged by the State in the Hon'ble Supreme Court till date.
-3-The arrest of the detenue was stayed on 30.10.2018 by this Court in writ petition No.25748 (M/B) of 2018 but ignoring the order of this Court the police arrested the petitioner on 12.11.2018 when he reached the police station to join investigation as per the order dated 30.10.2018 and shown the arrest of the date of 13.10.2018.The photographs of the petitioner in police station on 12.11.2018 with his lawyer has been filed as Annexure No.7 and 8.
It is further contended that the police in order to frustrate the orders of this Court filed charge sheet against the petitioner before this Court could decide the writ petition filed for quashing the first information report on merits and rendered the petition infructuous. The petitioner was granted bail in this case on 23.3.2019.
It is submitted on behalf of the petitioner that the mother of the petitioner contested and lost the election of Village Pradhan and the mother of co-accused Jalees won the election of Village Pradhan of another village. They are brothers in law and they are implicated in false cases due to political rivalry.
It is further submitted that the incident is of 29.7.2018 and the live link between the incident and the detention order has been broken due to efflux of time as the detention order was passed on 7.1.2019 i.e. after a delay of five months and nine days from the date of the incident.
It is argued that the order dated 29.7.2019 is a non speaking order and has no merit. Further, the representation against the detention order dated 7.1.2019 were sent by the detenue through Jail Superintendent Sultanpur on 18.1.2019. It is submitted that the representation of the detenue addressed to the Union of India was received in the concerned section of Uttar Pradesh Government on 25.1.2019 with an unexplained delay of seven days. Likewise, the representation addressed to the Union of India was received by the Union of India on 28.1.2019 with unexplained delay of 7 days. The rejection of the representation of the detenue dated 11.4.2019 was received by him on 15.4.2019 after an unexplained delay of 76 days.
Counter affidavits have been filed by the Union of India as well as the State Government.
The explanation given by the Union of India is that proper material was not received by them which could enable them to decide the representation, while the State has explained that the material needed to decide the representation was sent to the Union of India. In this continued shifting of blame no explanation for the delay in deciding the representation of the detenue was given by the State or the Union of India.
-4-The rights of the detenue enshrined in Article 22(5) of the Constitution of India have been violated. It is emphasized by the petitioner counsel that an unexplained delay of even a single day in deciding the representation of the detenue will render the detention order illegal as the same will be infringing the constitutional rights of the detenue.
Learned counsel for the petitioner in support of his contentions has relied upon the ratio of law laid down in the case of Rama Dhondu Borade Vs. V K Saraf, Commissioner of Police and others reported in 1989 AIR 1861 wherein it has been held that burden being shifted by State and Union of India is not explanation for 32 days' delay. The relevant paragraphs of this judgment is quoted as under:-
The learned counsel appearing on behalf of the appel- lant/petitioner raised several contentions assailing the legality of the order one of which being that there is an inordinate and unexplained delay caused by the third re- spondent (Union of India) in considering and disposing of the representation of the detenu dated 26.9.88 and as such the continued detention of the appellant is unconstitutional and illegal being violative of the mandato- ry provisions of Article 22(5) of the Constitution of India. As we are inclined to dispose of this appeal and the writ petition on this ground alone we do not propose to traverse on other grounds canvassed before us. With regard to the right of making the representation the detenu has been informed in the grounds of detention as follows:
"You are further informed that you have a right to make a representation to the Central Government, the State Government and the undersigned against the order of detention and that you shall be afforded the earliest oppor- tunity to make such a representation." It is not in dispute that the detenu made his represen-tation both to the State Government as well as the Central Government on 26.9.88. But the 3rd respondent which has already completed the examination of the report dated 6.9.88 sent by the 2nd respondent (the State Government) under Section 3(5) of the Act even on 13.9.88. however, felt that certain informations were required from the State Government for its further consideration of the representation and, therefore, the 3rd respondent sent a wireless message on 3.10. 1988 to the State Government asking for further infor- mations.
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With regard to the delay of 14 days in passing the information required by the 3rd respondent, the 2nd respond- ent (the State Government) in its affidavit states that it received the parawise comments of the detaining authority on the representation of the detenu on 12.10.88 and thereafter it forwarded the same to the 3rd respondent. The 1st re- spondent (the detaining authority) has filed a separate affidavit stating that since the officer of the Dadar police station was attending the meeting of the Advisory Board on the 7th and 11th October, 1988, a delay of 7 days had oc- curred in forwarding his parawise comments to the 2nd re- spondent. These explanations given by both the Ist and the 2nd respondents are not at all satisfactory and we are left with an impression that the 1st and the 2nd respondents had not diligently collected the informations required by the 3rd respondent and thereby caused a considerable delay
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which had further delayed the consideration and disposal of the representation of the detenu by the 3rd respondent. We shall now examine the proposition of law relating to the delayed consideration and disposal of the representation of a detenu with reference to the judicial pronouncements. There is a line of decisions of this Court dealing with this aspect of law of which we shall make reference to a few.
In Dayanarayan Sukul v. State of West Bengal, [1970] 1 SCC 219 the following observation has been made:
"It is established beyond any measure of doubt that the appropriate authority is bound to consider the representation of the detenu as early as possible. The appropriate Government itself is bound to consider the representation as expeditiously as possible. The reason for immediate consideration of the representation is too obvious to be stressed. The personal liberty of a person is at stake. Any delay would not only be an irresponsible act on the part of the appropriate authority but also unconstitutional because the Constitution enshrines the fundamental right of a detenu to have his representation considered and it is imperative that when the liberty of a person is in peril immediate action should be taken by the relevant authorities.
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Coming to the facts of this case, we shall now examine whether the delay that had occurred in consideration and disposal of the representation of the detenu is so inordi- nate and unreasonable vitiating the order of detention or whether that delay is satisfactorily explained by the third respondent.
In the instant case, the gap between the receipt and the disposal of the representation is 28 days but upto the date of service of the order of rejection on the detenu the delay amounts to 32 days. The only explanation offered by the third respondent is that further information required from the State Government was received by the third respondent on 17.10.88 after a delay of nearly 14 days and then the repre- sentation of the detenu was disposed of on 27.10.88 within which period there were certain holidays. Barring that, there is no other explanation. This delay when scrutinised in the light of the proposition of law adumberated above, we are of the view, that there is an inordi-nate and unreasonable delay and the present explanation given by the third respondent is not satisfactory and ac- ceptable."
Learned counsel for the petitioner has further relied upon the judgment rendered by Delhi High Court in the case of Meharban Vs. Union of India and others decided on 31 October, 2007. The relevant paragraphs 9, 13, 14 and 15 of this judgment are quoted as under:-
9. Rajammal's case (supra) has followed the law as laid down by the Constitution Bench of the Hon'ble Supreme Court in K.M. Abdulla Kunhi and B.K. Abdul Khader v. Union of India and Ors. . However, another Constitution Bench in the case of Kamleshkumar Ishwardas Patel v. Union of India and Ors. 1995 (3) S.C. 639 has emphasized the time imperative in disposing of the representations dealing with preventive detention. Interestingly, the contention raised before the Constitution Bench in the said case by the learned Additional Solicitor -6- General was that the representation envisaged byArticle 22(5) has to be made to the Advisory Board referred to in Article 22(4) since the only right that has been conferred on the person detained is to have the matter of his detention considered by the Advisory Board. Repelling the aforesaid contention, the Constitution Bench ruled that such construction as was sought to be placed by the learned Additional Solicitor General would result in delay and would render nugatory the right to make the representation conferred on a detenu under Clause-5 of Article 22 and must, therefore, be eschewed. The right of representation under Article 22being a valuable constitutional right, it is imperative that there should be no delay in the consideration of the said representation. In construing the constitutional mandate as enshrined under Article 22(5) of the Constitution, the Constitution Bench held that Article 22(5) imposed a dual obligation on the authority making the order of preventive detention (i) to communicate to the person detained as soon as may be the grounds on which the order of detention has been made; and (ii) to afford the person detained an earliest opportunity of making a representation against the order of detention. Both the aforesaid obligations, it has been unequivocally laid down, are with a view to ensure that the right of the person detained to make a representation is a 'real right' and he is able to take steps for redressal of a wrong which he thinks has been committed.
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13. No doubt, there can be no hard and fast rule in this regard, but unexplained delay in the disposal of the representation would be a breach of the constitutional imperative and would render the continued detention impermissible and illegal See : Jayanarayan Sukul vs. State of W.B., Frances Coralie Mullin Vs. W.C. Khambra, Rama Dhondu Borade vs. V. K. Saraff Commissioner of Police and Aslam Ahmed Zahire Ahmed Shaik v. Union of India.
14. In paragraphs-5 and 6 of the affidavit mentioned above, it is stated that the detenu has been reported to be the leader of a gang active in Delhi and U.P. involved in a large number of criminal activities and revocation of his detention is likely to adversely affect the public order and that no case has been made out by the detenu for interference.
15. In our view, the power of revocation must implicitly include the power to refuse the revocation of the detention order, but for this the representation of the detenu must be considered, and that too expeditiously and with a sense of urgency. Preventive detention, it cannot be lost sight of is an inroad into the fundamental right of personal liberty, the most basic of all human rights after the right to life, and breach thereof has serious ramifications for the person concerned -7- as well as the society at large. The present may be a case where having regard to the nature of the activities of the detenu, no interference may be justified with the orders of detention, but as emphasized by the Constitution Bench in Kamleshkumar's case (supra), though we are not unmindful of the harmful activities of detenues? But while discharging our constitutional obligation to enforce the fundamental rights of the people, more especially the right to personal liberty, we cannot allow ourselves to be influenced by these considerations. It has been said that the history of liberty is the history of procedural safeguards. The framers of the Constitution, being aware that preventive detention involves a serious encroachment on the right to personal liberty, took care to incorporate, in Clauses (4) and (5) of Article 22, certain minimum safeguards for the protection of persons sought to be preventively detained. These safeguards are required to be 'jealously watched and enforced by the Court.' Their rigour cannot be modulated on the basis of the nature of the activities of a particular person."
Learned counsel for the petitioner in support of his contentions has also relied upon the ratio of law laid down in the case of Kamleshkumar Ishwardas Patel Vs. Union of India and others reported in Judgment 1995 (3) SCC 279, wherein it has been held as under :
" The right of representation under Article 22 is a valuable con-stitutional right and is not a mere formality. It is, therefore, not possible to accept the argument of the respondent that the State Government is not under a legal obligation to consider the repre-sentation of the detenu or that the representation must be kept in cold storage in the archives of the Secretariat till the time or occasion for sending it to the Advisory Board is reached. If the viewpoint contended for by the respondent is correct,the constitu-tional right under Article 22(5) would be rendered illusory. Take for instance a case of detention of a person on account of mistaken identity. If the order of detention has been made against A and a different person B is arrested and detained by the police authorities because of similarity of names or some such cause, it cannot be reasonably said that the State Government should wait for the report of the Advisory Board before releasing the wrong person from detention." [p.487] The decision in Abdul Karim (supra) was reaffirmed by the Constitu-tion Bench of this Court in Pankaj Kumar Chakrabarty and Ors. v. State of West Bengal, [1970] 1 SCR 543, wherein it was observed :-8-
"It is true that cl.(5) does not in positive language provide as to whom the representation is to be made and by whom, when made, it is to be considered. But the expression "as soon as may be" and "the earliest opportunity" in that clause clearly indicate that the grounds are to be served and the opportunity to make a repre-sentation are provided for to enable the detenu to show that this detention is unwarranted and since no other authority who should consider such representation is mentioned it can only be the detain-ing authority to whom it is to be made which has to consider it. Though cl. 5 does not in express terms say so it follows from its provisions that it is the detaining authority which has to give to the detenu the earliest opportunity to make a representation and to consider it when so made whether its order is wrongful or contrary to the law enable it to detain him." [p.548] [Emphasis supplied] Again in Jayanarayan Sukul v. State of West Bengal, [1970]3 SCR 225, decided by the Constitution Bench, this Court has held :
"Broadly stated, four principles are to be followed in regard to representation of detenus. First, the appropriate authority is bound to give an opportunity to the detenu to make a representation and to consider the representation of the detenu as early as possible. Secondly, the consideration of the representation of the detenu by the appropriate authority is entirely independent of any action by the Advisory Board including the consideration of the repre-sentation of the detenu by the Advisory Board. Thirdly, there should not be any delay in the matter of consideration. It is true that no hard and fast rule can be laid down as to the measure of time taken by the appropriate authority for consideration but it has to be remembered that the Government has to be vigilant in the governance of the citizens. A citizen's right raises a correlative duty of the State. Fourthly, the appropriate Government is to exercise its opinion and judgment on the representation before the sending the case along with the detenu's representation to the Advisory Board. If the appropriate Government will release the detenu the Government will not send the matter to the Advisory Board. If however the Government will not release the detenu the Govern-ment will send the case along with the detenu's representation to the Advisory Board." [p.232] (Emphasis supplied).
Learned counsel for petitioner lastly relied upon the judgment in the case of Md.Raju @ Md.Azim vs. State of Odisha and others decided on 21.3.2012, in para-15 of which it has been held as under :
"15. In the present case there has been unexplained delay of eight days from 23.10.2011 to 1.11.2011 for sending petitioners representation by the detaining authority to the State Government and Central Government. Though representation was received by the State Government on 8.11.2011, same was rejected on 18.11.2011 -9- and communicated to the petitioner on 21.11.2011. Therefore, there is no satisfactory explanation for delay of more than 26 days in disposal of petitioners representation by the State Government. Therefore, we are constrained to hold that the detention order has been vitiated by delay in disposal of the representation."
In view of above, this Court has no hesitation in holding that there is no legally admissible evidence that has been found involving the petitioner in committing the offence. In such circumstances, to prevent abuse of process of law and process of the Court, the impugned first information report as against the petitioner is liable to be quashed.
The petition is allowed. F.I.R. in Case Crime No.591 of 2018, under Sections 307,427,504,506, 120-B IPC and 7 Criminal Law Amendment Act, P.S.Kotwali Nagar, District Sultanpur, as against the petitioner Siraj Ahmad alias Pappu, and all consequent proceedings and orders against him i.e. 7.1.2019, Annexure no.1, 16.1.2019, Annexure No.2 and the orders dated 28.3.2019 and 3.7.2019, passed by the opposite party no.2 are quashed.
Let a copy of this judgment be forwarded to the Chief Judicial Magistrate and the Station House Officer, Police Station, Kotwali Nagar, District Sultanpur for compliance.
Order Date :- 06.11.2019 Irfan