BHAWANI SHANKAR PANDEY Vs. STATE OF U P

JUDGEMENT

(1.) This is a petition under Article 226 of the Constitution praying for the issue of a writ of Habeas Corpus for the release of Bhawani Shankar Pandey, who had been detained by an order of detention dated 28-7-1981 passed, by the District Magistrate, Basti under Section 3(2) of the National Security Act, hereinafter referred to as the Act.

(2.) A number of points were canvassed before us but since the main ground on which the detention is based is the first ground mentioned in Annexure 1 to the petition and the case can be disposed of on that point alone, it is not necessary to refer to the other grounds and submissions that were raised. Ground No. 1 of the impugned detention order reads: On 8-2-1979 at about 8-45 in the morning in village Amarha Police Station Mehandabal District Basti you and your four other companions armed with guns, lathis and Kattas formed an unlawful assembly and reached the fields of Sarvjit Pandey in the same village and committed the murder of Sarvjit and Suryasheshar and caused injuries to Dhruv Narain pandey. After the assault the assailants filed. A report was lodged by Dhruv Narain son of Jugeswar Pandey at Police Station Mehandabal under Sections 147/148/149/302 and 323 Indian Penal Code. The case was investigated and the accused were charge-sheeted and prosecuted but in trial the eye witnesses turned hostile on account of the horror of the accused and by its judgment dated 13-3-1980 the Court acquitted the accused on account of paucity of evidence.

(3.) The order of detention concludes with the observation of the District Magistrate that on account of the grounds noted in his order he was satisfied that the accused were likely to commit such acts as would be prejudicial to the maintenance of public order and therefore it was necessary that an order should be passed directing that the accused persons (including the petitioner) be detained. The gravamen of the charge, therefore, against the petitioner was that he was responsible for a series of acts; particularly the one incorporated in ground No. 1 which caused such a terror that evidence could not be procured against the petitioner and he could not be brought to book. In other words, the petitioner had become such a terror in the locality that nobody could dare to come in the witness box against him. The accent was clearly on the reputation or notoriety, which the petitioner had earned on account of his subversive and violent activities which stood in the way of an effective trial and dispensation of justice. In the circumstances according to the subjective satisfaction recorded by the District Magistrate in the impugned order it was necessary for the maintenance of public order that such person should be detained. It needs be emphasized that in ground No. 1 of the detention order served on the petitioner there was a specific reference to the judgment of acquittal dated 13-3-1980. Therefore, so far as ground No. 1 is concerned, it would have to be examined as to whether there was any material before the District Magistrate on the basis of which it could be reasonably held that the petitioner was really such a terror as alleged and whether this had resulted in persuading the witnesses to keep away or resile from their statements. In other words, it has to be seen whether the judgment of acquittal was based on non-availability of evidence, the alleged cause of which was the horror excited by the petitioner.