ANIL KUMAR SHARMA Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) This is a Habeas Corputs Petition under Article 226 of the Constitution of India filed by one Anil Kumar Sharma son of 3. N. Sharma to challenge the detention order dated 2.9.82 passed by Sri Ravi Mathur, District Magistrate, Kanpur, under Section 3(2) of National Security Act with the view to prevent him from acting in any manner prejudicial to the maintenance of public order.

(2.) The order of detention is based on two grounds. The first relates to an incident dated 21st of February 1982 at about 5.30 P.M. in which the petitioner along with his companions is alleged to have entered the ready made garment shop situated at 32/34, Topi Bazar, Kanpur, belonging to Sri Sidh Gopal Shukla. Ashok Kumar Sharma the brother of the detenu commanded to kill. Sidh Gopal Shukla saying that he is the root cause of the trouble. Thereupon Kallu alias Vijai Kumar the companion of the detenu fired at Sidh Gopal with his revolver with intent to kill him. The cries raised by Sidh Gopal and others attracted the neighbouring shopkeepers and other persons who reached at the scene of the occurrence and apprehended Kallu near the Paushala along with the revolver. The detenu and his companion made good their escape Sidh Gopal succumbed to the injuries in the hospital. The incident caused panic and terror in the locality and disturbed public order. Vinod Chand Shukla lodged first information report of this incident at the Police Station Mulganj at 6.15 P.M. whereupon Crime No. 45 under Sections 147, 148, 149 and 307 I.P.C. and Crime No. 46 and 47 of 82 under Arms Act were registered against the detenu, Grounds No.2 relates to an incident dated 7.5.82 at 9.45 P.M. wherein the detenu along with his other companions is alleged to have reached the shop of Mursan Mistri at Gwaltoli crossing in the city of Kanpur on two Motor Cycles. Sri Parwez son of Ahmad Abbas Rizvi asked Ashok Kumar Sharma alias Chhakan the brother of the detenu to pay the arrears of rent whereupon the detenu began to abuse and slap Parwez and then the latter wanted to catch the hands of the former then the detenu and his companions took out their revolvers and on the command of Ashok Kumar Sharma the detenu and his companions fired at Parwez with their respective revolvers causing firearm injuries to Parwez and one Rikshaw Puller Kallu who subsequently died in the hospital. The detenu and his companions made good the if escape on the Motor Cycles. The incident caused panic and terror in the locality and disturbed public order. Ahmad Abbas Rizvi lodged first information report of this occurrence on the same night at 11.40 P.M. at P.S. Gwaltoli and the crime was registered in the General Diary.

(3.) The District Magistrate Kanpur on the basis of aforesaid two incidents felt satisfied that it was necessary to detain the petitioner with a view to prevent him from acting in any manner prejudicial to the maintenance of public order in future. It has been pleaded on behalf of the petitioner that the informant of the incident mentioned in ground No.2 and other eye witnesses have filed affidavits in court on 19.5.82 wherein they have deposed that the police has falsely implicated the detenu and that the informant Sri Ahmed Abbas Rizvi has specifically deposed in the affidavit that the first information report was prepared by Police at the Police Station and he was simply asked to sign the same. The petitioner has filed true Copies of the application and the affidavits of these witnesses as Annexure 4 to the petition. The District Magistrate in his counter affidavit does not deny the factum of the witnesses having filed these affidavits. He, however, says that the petitioner has not given the dates on which the affidavits had been filed, though the petitioner has clearly mentioned in his petition that these affidavits have been filed on 1 9.5.82. The District Magistrate further says in his counter affidavit that he has been informed that the police itself was not aware about these affidavits which had been filed in the court of the Chief Metropolitan Magistrate Kanpur. He further says that in any case these affidavits are reported to have been obtained under the duress by standing threats to the witnesses which does not in any manner affect the order of detention passed against the petitioner by the deponent. It is thus established that Ahmad Abbas the informant of the incident mentioned in ground No.2 did file affidavit along with other eye witnesses of the occurrence refusing to support the prosecution story. The District Magistrate has admitted in his supplementary counter affidavit that he was not specifically informed that Ahmed Abbas, Ali Abbas and Asghar Ali Abbas the eye witnesses had filed affidavits. It therefore, leaves no room for doubt that the detaining authority was not aware of the fact that the eye witnesses relating to the incident mentioned in ground No.2 had filed affidavits on 19th May, 1982 refusing to support the prosecution story. The detaining authority, however, asserts in his first counter affidavit that he has been informed that the police itself was not aware of these affidavits. He has not disclosed the source of this information the petitioner has filed copy of order dated 3rd of June, 1982 passed by the Sessions Judge Kanpur in the bail application of two accused Virendra Singh and Gappu who were involved in this very crime. The learned Sessions Judge has observed in this order that the material witnesses in the case including Ahmad Abbas father of deceased Parwez have filed affidavits wherein they have disowned their having seen any such incident and asserted that the accused persons were not the assailants. Time was granted by the court to the prosecution to produce Ahmad Abbas in order to verify as to whether he has filed the affidavit in question. But the prosecution failed to produce Ahmad Abbas on the ground that he had gone to Allahabad. The learned Sessions Judge in view of these affidavits granted bail to the accused. Subsequently on the same ground bail was granted to the detenu petitioner on 23rd June, 1982 vide Annexure 2 to the rejoinder affidavit. It is clear from these orders that the prosecution was aware of the fact that Ahmad Abbas and other witnesses of the occurrence had filed affidavits in the court disowning to have witnessed any such occurrence and the prosecution was given sufficient opportunity by the court to produce the informant Ahmad Abbas in order to verify the fact that it is he who had actually filed the affidavit, but the prosecution failed to produce him. In the face of all these facts bearing on the record; it is not at all possible to believe that the Police itself was not aware of these affidavits having been filed by the eye witnesses of the occurrence. The only possible conclusion that can be drawn from the material produced before us is that Ahmad Abbas and other eye witnesses of the occurrence did file affidavits disowning to have witnessed any such occurrence and further asserting that the accused were not the assailants. The police was aware of the fact that such affidavits had been filed and that on the basis of these affidavits the Sessions Judge was pleased to grant bail to the accused. It has been admitted by the District Magistrate that the factum of such affidavits having been filed by eye witnesses of the occurrence was not brought to his knowledge when he considered the material placed before him in order to satisfy himself whether it was necessary to detain the petitioner on the basis of the incident mentioned in ground No. 2. The filing of the affidavits in court by eye witnesses of occurrence disowning to have witnessed any such occurrence and further asserting that the accused were not the assailants was a very relevant material which shall have been placed before the detaining authority along with other material which was placed before him. Thus this material fact was neither communicated nor placed before the detaining authority. In our view it was obligatory upon the local police to report to the detaining authority that the informant Ahmad Abbas as well as the other eye witnesses of the occurrence had filed affidavits in court disowning to have witnessed any such occurrence and further asserting that the accused are not the assailants because the fact that the informant and other eye witnesses of the occurrence were disowning to have witnessed any such occurrence and were further asserting that the accused were not the assailants would certainly have had its own impact one way or the other on the detaining authority before making up its mind whether or not to issue the impugned order of detention. Hence there was non-application of mind to the most relevant material and vital facts vitiating the requisite satisfaction of the detaining authority and thereby rendering the impugned detention order invalid and illegal. In taking this view we find support from the ratio of the decision in the case Asha Devi wife of Gopal Gher Mal v. K. Sheoraj Additional Chief Secretary to Government of Gujarat.1