RAJ NATH PANDEY Vs. DISTRICT MAGISTRATE FAIZABAD

JUDGEMENT

(1.) Through this writ petition preferred under Article 226 of the Constitution of India the petitioner-detenu Raj Nath Pandey has impugned the order dated 16-7-2002, passed by the first respondent - Mr. Alok Kumar, District Magistrate, Faizabad, detaining him under Section 3 (2) of The National Security Act. The detention order, along with the grounds of detention, which are also dated 16-7-2002, was served on the petitioner-detenu on 16-7-2002 itself and their true copies are annexed as annexures 1 and 2 respectively to the writ petition.

(2.) The prejudicial activities of the petitioner-detenu impelling the first respondent to pass the impugned detention order against him are contained in the grounds of detention (Annexure 2), a perusal of which shows that the impugned order is founded on a solitary crime number (Cr.), namely, Cr. No. 263/2002 under Sections 147/148/149/307/302/504 IPC of Police Station Poora Kalandar, District Faizabad registered on the basis of a complaint dated 18-6-2002 lodged by Smt. Kalawati Devi. The details pertaining to the said Cr. as contained in the grounds of detention, in short, are as under :- On 18-6-2002 at 6.00 P.M. the detenu along with his sons Nirmal, Ashok and Dharmender Kumar; his brother Keshav Nath; and his associates Ghanshyam and Kalika came to the house of Hosla Prasad in village Heera Pandey Ka Purwa. All of them surrounded Hosla Prasad and after throwing him on the ground the detenu assaulted Hosla Prasad on his neck with a gandasa and severed his legs. His associates were armed with gandasa, katta and country made gun. This incident was seen by Hosla Prasad's wife Smt. Kalawati and his daughter Kumari Seema. They implored the detenu and his associates not to assault Hosla Prasad, but they paid no heed to their wishes. The detenu and his associates also tried to assault the relations of Hosla Prasad, but since they climbed on the roof, their bid failed. After murdering Hosla Prasad the detenu and his associates went away firing.

(3.) We have heard learned counsel for the parties and in our view this writ petition deserves to succeed on pleadings contained in Paragraphs 9 to 12 of the petition and grounds (d) and (e) of Paragraph 27 thereof. The substance of the pleadings contained therein that on 16-7-2002 (the date on which the first respondent passed the impugned detention order against the petitioner-detenu) no bail application of the petitioner-detenu was pending in any Court and the sole bail application preferred by him in Cr. No. 263/2002 was rejected by the Chief Judicial Magistrate, Faizabad on 6-7-2002; and thereafter he did not prefer any application for bail in the Court and consequently there was no imminent likelihood of his being released from jail and the impugned detention order was unwarranted. Mr. Virendra Bhatia, learned counsel for the petitioner-detenu, strenuously urged that since there was no imminent likelihood of the petitioner-detenu being relased on bail the impugned detention order is punitive in nature and cannot be sustained in law.