RAJIV HAZARA Vs. STATE OF U P

JUDGEMENT

(1.) Rajiv Hazra has filed writ petition No 6522 of 1985 under Article 226 of the Constitution praying for issuance of a writ, order or direction in the nature of habeas corpus directing the opposite parties to produce the body of the petitioner at the bar of the Court and set him at liberty after quashing the impugned order of detention dated November 27, 1985 passed by the District Magistrate, Lucknow, contained in annexure No. 1 to the writ petition. The petition was presented before a Division Bench of this Court on 11th December, 1985 and the Bench directed the opposite parties to file their return by 18th December, 1985 when the case was to be listed before the Court. Kamal Kishore Saini has preferred writ petition No. 6823 of 1985 under Article 226 of the Constitution of India praying for issuance of a writ in the nature of habeas corpus for directing the release of the petitioner detained under the provisions of the National Security Act and quashing the order of detention dated November 28, 1985 passed by the District Magistrate, Lucknow, contained in annexure-1 to the writ petition. This petition was presented before a Division Bench of this Court on 20th December, 1985 which directed its listing for the purposes of hearing in the week commencing 27th January, 1986 and the parties were, in the meantime, allowed opportunity to exchange counter and rejoinder affidavits. Since the detention order contained in annexre-1 to the two writ petitions is identical and similar as also passed on the same three grounds we have heard arguments in the two petitions together and propose to decide them by a common judgment. The learned counsel for the petitioner in writ petition No. 6522 of 1985, Shri A. Mannan and Shri Virendra Bhatia appearing for the petitioner in writ petition No. 6823 of 1985, as also Shri Bireshwar Nath, Deputy Government Advocate appearing for the respondents have been heard by us at a considerable length. The grounds of detention supplied as indicated in the impugned orders of detention filed as annexure respectively to the two writ petitions in purported exercise of the powers under subsection (3) of Section 3 of the National Security Act, 1980 (Act No. 65 of 1980) (hereinafter referred to as the Act), briefly indicated, as supplied to the detenus under the provisions of) Section 8 of the Act are as under: 1 That on 4th June, 1985 one Jeet Narain Awasthi, resident of Indira Nagar, Police Station Ghazipur, Lucknow lodged a First Information Report at Police Station Ghazipur that on the night of 415th June, 1985 his younger brother Vishnu Narain Awasthi at about 20 hours had left to sleep in house No. 2040 of Indira Nagar, Lucknow occupied by Shri R.S. Raghuvanshi since Shri Raghuvanshi had gone out to Jaunpur, his home town and had entrusted custody of his house to the said Vishnu Narain Awasthi At 11.00 in the night some persons informed the complainant that his brother had been shot by certain persons and when the complainant reached the spot he found Vishnu Narain Awasthi lying in a pool of blood and he had already died. It is alleged that on the basis of the said F.I.R. on 4th June, 1985 crime No. 101 of 1985 under Section 302 of the Indian Penal Code was registered at the Ghazipur Police Station against un known accused. The names of the detenus, it is said, figured during investigation and the charge-sheet bas been submitted in the concerned court which in pending trial.

(2.) That on 13th June, 1985 one Baldeo Prasad Awasthi, resident of Ismailganj, Police Station Ghazipur, Lucknow lodged a First Information Report at Police Station Alambagh, Lucknow that his son Ram Kumar and his son-in-law Nand Kishore had gone to meet an accused in the district jail where the complainant also reached at about 1.30 P.M. but they could not meet the accused. Ram Kumar and Nand Kishore proceeded towards home on one rickshaw while the other rickshaw was being occupied by the complainant. When they reached - a little distance from the jail, near the residence of the Jail Superintendent, at about 1.45 P.M. Rajiv Hazra and Kamal Kishore Saini, the two detenus and one Anadi Shukla, said to be an accomplice of one Ram Gopal came on a scooter, stopped it and challenged Ram Kumar, Nand Kishore and the complainant and fired at them. The complainant as also Ram Kumar and Nand Kishore ran helter and skater when the accused are said to have chased Ram Kumar for about 200 steps and fired twice or thrice as a consequence of which Ram Kumar fell dead on the spot and Nand Kishore as also the rickshaw puller and the complainant sustained injuries. On this basis crime No. 222 of 1985 under Section 302/307 of the Indian Penal Code was registered on 13th June, 1985 at about 14.30 hours at Police Station Alambagh, Lucknow in which both the petitioners and Anadi Shukla were named. After investigation a charge sheet has been submitted to the court which is pending consideration.

(3.) That on 16th August, 1985 at about 14.10 hours Head Constable 129 C.P. Balram Pandey of the Reserve Police Lines, Lucknow lodged a First Information Report at Police Station Qaiserbagh, Lucknow that on the same day he was on duty along with other policemen in the Judicial Lock-up, Collectorate. Lucknow. It was alleged that the complainant accompanied by other policemen on duty were bringing back accused after their production in the court of the Chief Judicial Magistrate, Lucknow both the detenus (Petitioners) proceeded towards an accused, Vijay Pratap Singh whereupon Vijay Pratap Singh, in panic, tried to retract and turned back when Rajiv Hazra is said to have given a call that it was appreciate time to finish the enemy who was before them as a result of which both the detenus took out their pistols and Kamal Kishore Saini, the detenu, with the intention of killing Vijay Pratap Singh fired at him which resulted in injuries to him and since this incident took place in the court compound people ran hither and thither and an atmosphere of terror spread over the area. On the basis of this F.I.R. crime No. 450 of 1985 under Section 30/34 of the Indian Penal Code was registered at the Qaiserbagh Police Station on 16th August, 1985 and after investigation the charge sheet has been submitted which is under consideration. TI 2. It appears that on the aforesaid three grounds the District Magistrate after further consideration of the fact that since the two detenus in the respective petition had filed applications for bail and that the applications for bail which were pending before the Court and which, he felt, he was confident would be allowed led him to record his satisfaction that on their release from Jail they would participate in activities prejudicial to maintenance of public order. The order contained a usual recital regarding the right of the detenus to make representation to the State Government and also indicating that the matter would go before the Advisory Board where he would be afforded an opportunity of personal hearing. 3. It has been contended by the learned counsel for the petitioners in the two writ petitions that in as far as ground 1 of the impugned detention order is concerned the detenus were not afforded fair and reasonable opportunity of making an effective representation before the State Government under Section to of the Act inasmuch as they were not supplied any document in support of the ground except the first information reports and copies of extract charge-sheet submitted in the two cases which were not accompanied by any other document or documents. It has been pointed out that the statements recorded under Section 161 of the Code of Criminal Procedure are a part of the charge-sheet and are accompanied by the name, were not supplied to the two detenus along with the grounds. In reply the District Magistrate, Lucknow in paragraph 11 of his counter affidavit filed in Writ Petition No. 6522 of 1985 and in paragraph 12 of his counter affidavit filed in Writ Petition No. 6823 of 1985 dated 27th January, 1986 has stated that as regards the assertions made by the petitioner that he has not been supplied with the statements recorded during the course of investigation, it is stated that it is not the law to supply the material which is collected during the course of investigation and that the deponent's satisfaction was based on the F.I.Rs and the charge-sheet, copies of which supplied to the petitioner along with the grounds of detention. On the basis of this return the Deputy Government Advocate urged that there was no requirement of law which entitled the detenus to be supplied with the statements recorded under Section 161 of the Code of Criminal Procedure. We are unable to accept this submission since law on the point is well settled and in dealing with life and liberty of a citizen the detaining authority is under mandatory obligation under the provision of Articles 21 and 22 of the Constitution of India read with relevant provisions of the National Security Act itself and in particular Sections 10 and 13 of the Act that all the material which came in light during the course of investigation and which led to submission of the charge-sheet should have been considered by the District Magistrate and in any case, copy of the said material furnished to the detenus along with the grounds of detention so as to enable him to make an effective representation to the State Government. The petitioners were not named in the F.I.R. The basis on which their complicity came to be known is the material found in course of investigation. It is not disputed that at the time when the petitioners could make their representation, they did not possess that material; it is wholly immaterial that at some later time, after the charge sheet was submitted to the Court, the petitioners may have been furnished with the copes of the statements recorded under Section 161 of the Code of Criminal Procedure. The position would have been different if the detention order was passed and grounds were furnished to the petitioners after submission of charge sheet in the court and furnishing of the statements under Section 161 of the Code of Criminal Procedure. We have no hesitation in holding that in as far as ground No.1 is concerned the respective detenus is were denied a fair and reasonable opportunity to represent against them and the detention order as such stands vitiated.