GANESH MURTY Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) In this a petition the petitioner has challenged the order of detention issued by the commissioner of Police, Greater Bombay dated 11th March 1986 under of the provisions of the national Security Act.

(2.) It is contended by Shri Mundargi, learned counsel for the petitioner- detenu that all the grounds stated in the grounds of detention clearly indicate that assaults took place because of the previous enmity between the parties. No third person was involved in any one of the incident. Further the last incident for which the petitioner is charge-incident for which the petitioner is charge- sheeted for the offence punishable under section 302 read with S. 34 of I P C., he was released on bail on 27the January 1986 for an amount of Rs. 5000/- with a condition that he shall attend the police station twice in a week till the chargesheet is filed. He came at be released on bail because at the prosecution failed to file the chargesheet within the failed to file the chargesheet within the statutory period of 90 days. Having failed to carry out its statutory duty by oblique motive the police wanted to achieved, indirectly what they were forbidden to do directly and thus are taking advantage of their own wrong. It appears that this order is issued only because the detenu came to be released on bail and that too without reading the bail order, which imposed strict conditions. If at all prosecution was aggrieved by this order they could have moved the higher court or after the chargesheet was filed and the case was committed to the Sessions Court, it could have moved the Sessions Court for cancellation of the bail. Nothing of that sort has been done and straightway provisions of the national Security Act are invoked which is not permissible in law. In support of his contention Shri Mundargi has placed strong reliance upon the latest decision of the Supreme Court in Anant Sakharam Ravi v. State of Maharashtra1 and another decided on 14t5h November 1986. We find much substance in this contention.

(3.) It appears from the record that order of bail dated 27th January 1986 was not placed before the detaining authority. This order come to be passed by the learned Additional Chief metropolitan magistrate, since the chargesheet was not filed within 90 days from the sate of his arrest. While releasing the accused on bail of Rs. 5000/- he was directed to report to the police station twice a week, till the chargesheet is filed. It was also observed that considering the fact that the accused was not creating any disturbance or committing any act so as to disturb the investigation, he was being released on bail. This order was not placed before the detaining authority nor the detaining authority was made aware of the content of the said order. In the circumstances this was a vital piece of material, which could have weighed with the detaining authority one way or the other in passing the order of detention. More so from the record it appears that all the incidents are related to members of a particular family and not any other person outside the family. Hence on this short ground alone the writ petition deserves to be allowed.