# (In Jail) v. Superintendent, District Jail, Basti and others

- **Citation:** (2008) 1 ILRA 214
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-01-31
- **Case number:** Habeas Corpus Petition No. 45113 of 2008
- **Bench:** R.K. Rastogi, A.K. Roopanwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/in-jail-v-superintendent-district-jail-basti-and-others-41326
- **Pages:** 5

## Headnote

Constitution of India-Art. 226-National
Security
Act-Section
3
(2)-Detention
1 All] Anil Pal V. Suprientendant Distt. Jail and others
215
order-challanged on various groundincluding
non
application
of
mindcriminal
case
relied
by
District
Magistrate-fair
acquittal
non
consideration-vitiate entire finding only
on this ground-detention order-quashed.

Held: Para 9

Learned
counsel
for
the
petitioner
submitted that this reply is vague .He
further
submitted
that
the
District
Magistrate could not deny this fact that
the petitioner had been acquitted in the
above case, and he has simply taken a
plea that it was not taken as a basis for
passing the detention order he pointed
out that it t is clear from the report of
the Inspector as well as from the order
passed by the District Magistrate that
the above case in which the petitioner
has been acquitted has also been taken
into
consideration
for
passing
the
detention order mentioning this fact that
the charge sheet had been submitted
against the petitioner and other co
accused persons but the acquittal order
passed in favour of the petitioner has not
been considered by the authorities and
so the detention order is vitiated. In
support of this contention, the learned
counsel for the petitioner cited before us
a ruling of the Hon'ble Supreme Court
dated 22.11.1985 in Criminal Appeal No.
72 of 1985 arising out of Special leave
petition (Crl) no. 3068 of 1985, Ashok
Kumar Dixit Vs. State of U.P. and others.
In this case it was held that where the
rival version, which was certainly a vital
circumstance to be considered by the
detaining authority before passing any
order of detention was not taken into
account
and
was
ignored,
it
is
a
circumstance that vitiates the order of
detention. The acquittal order passed in
favour of the petitioner in the above case
has not been taken into account and so
the detention order stands vitiated on
this ground also.
Case law discussed:
2000 (1) A.Cr.R. 611, (1985) 1 SCC 561,
(2006)1 SCC (Cri) 61, Criminal Appeal No. 72
of 1985 arising out of Special leave petition
(Crl) no. 3068 of 1985, Ashok Kumar Dixit Vs.
State of U.P. and others

## Text

214 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
against government in power. This
complaint has not been verified and there
is nothing on record to show that the
Chief Secretary had found any substance
in the same. The transfer in the instant
case as such has not been made on any
administrative exigency or in public
interest. Moreover, this was not a request
or complaint made by a sitting MLA or
MP
who
may
be
said
to
be
a
representative of the public. It is a letter
by the former MP which does not
represent anybody as on date. He is
nobody to inter meddle with the affairs of
the department concerned on behalf of the
public. In view of the aforesaid facts and
circumstances
the
decision
of
the
Supreme Court in the case of Mohd
Masood Ahmad (Supra) would not be
applicable in the present case. A former
M.P., on whose request the transfer is
made is not a person who represents the
public in general. He is only a political
person and therefore his letter if being
acted upon would result in giving political
mileage to such a person and would not
be an action in public interest or
administrative exigency. I am therefore of
the view that the power of transferring an
officer can not be wielded arbitrarily,
malafidly or at the instance of politicians
who no longer represent the public. If it is
for the better administration that the
employee concerned must have freedom
from fear of being harassed by repeated
transfer or transfer orders at the instance
of someone who has nothing to do with
the administration of the department
concerned. Thus, in the above facts and
circumstances the impugned order is
unsustainable and suffers from total non
application of mind which has been
passed only to please a leader affiliated to
the Ruling party. The impugned order
dated 31.1.2008 (Annexure-1 to the writ
petition) is therefore quashed.

14. However, before parting it
would be suffice to add that the
contention raised by Sri Naqvi that the
petitioner is a resident of district Bijnor
and therefore he should not be posted in
the home district is a matter which is
required
to
be
considered
after
verification of the facts. Therefore, it is
not necessary to deal with the said aspect
of the matter in exercise of the writ
jurisdiction. The respondents are left free
to take necessary action in this regard in
accordance with law.

Petition allowed. No order is passed
as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.02.2009

BEFORE
THE HON'BLE R.K. RASTOGI, J.
THE HON'BLE A.K. ROOPANWAL, J.

Habeas Corpus Petition No. 45113 of
2008

Anil Pal

...Petitioner(In Jail)
Versus
Superintendent, District Jail, Basti and
others

...Respondents

Counsel for the Petitioner:
Sri Daya Shanker Mishra
Sri Chandra Kesh Mishra

Counsel for the Respondents:
Sri R.D. Tiwari
A.G.A.
Addl. Solicitor General of India

Constitution of India-Art. 226-National
Security
Act-Section
3
(2)-Detention
1 All] Anil Pal V. Suprientendant Distt. Jail and others
215
order-challanged on various groundincluding
non
application
of
mindcriminal
case
relied
by
District
Magistrate-fair
acquittal
non
consideration-vitiate entire finding only
on this ground-detention order-quashed.

Held: Para 9

Learned
counsel
for
the
petitioner
submitted that this reply is vague .He
further
submitted
that
the
District
Magistrate could not deny this fact that
the petitioner had been acquitted in the
above case, and he has simply taken a
plea that it was not taken as a basis for
passing the detention order he pointed
out that it t is clear from the report of
the Inspector as well as from the order
passed by the District Magistrate that
the above case in which the petitioner
has been acquitted has also been taken
into
consideration
for
passing
the
detention order mentioning this fact that
the charge sheet had been submitted
against the petitioner and other co
accused persons but the acquittal order
passed in favour of the petitioner has not
been considered by the authorities and
so the detention order is vitiated. In
support of this contention, the learned
counsel for the petitioner cited before us
a ruling of the Hon'ble Supreme Court
dated 22.11.1985 in Criminal Appeal No.
72 of 1985 arising out of Special leave
petition (Crl) no. 3068 of 1985, Ashok
Kumar Dixit Vs. State of U.P. and others.
In this case it was held that where the
rival version, which was certainly a vital
circumstance to be considered by the
detaining authority before passing any
order of detention was not taken into
account
and
was
ignored,
it
is
a
circumstance that vitiates the order of
detention. The acquittal order passed in
favour of the petitioner in the above case
has not been taken into account and so
the detention order stands vitiated on
this ground also.
Case law discussed:
2000 (1) A.Cr.R. 611, (1985) 1 SCC 561,
(2006)1 SCC (Cri) 61, Criminal Appeal No. 72
of 1985 arising out of Special leave petition
(Crl) no. 3068 of 1985, Ashok Kumar Dixit Vs.
State of U.P. and others

(Delivered by Hon'ble R.K. Rastogi, J.)

1. This Habeas Corpus Petition has
been filed by the petitioner for quashing
the order dated 1.5.2008 passed by the
District Magistrate, Basti against him
under section 3(2) of the National
Security Act and for his release from
detention.

2. It has been alleged in the petition
that the petitioner is a peace loving and
law abiding citizen and he has not been
convicted in any case so far. On 16.2.08
at about 9.30 A.M. a F.I.R. was lodged by
Sri Yashwant Chaudhary against him and
other co-accused persons under sections
147, 148,149,302 I.P.C. at police station
Lalganj District Basti and on the basis of
that report case crime No. 63/08 was
registered against him. On the basis of
this report the District Magistrate, Basti,
the respondent no.2, passed an order
against him for his detention under
section 3(2) of the National Security Act
on 1.5.08. The petitioner has challenged
the validity of this order on several
grounds in the present Habeas Corpus
petition.

3. Separate counter affidavits have
been filed on behalf of the respondents
no. 1, 2,3 and 4 and the petitioner has
filed rejoinder affidavits also in reply to
those counter affidavits.

We have heard the learned counsel
for both the parties and have gone through
the record.

4. Learned counsel for the petitioner
first of all submitted before us that the
216 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
District Magistrate, Basti, respondent no.
2 did not apply his mind before passing
the impugned order and he simply signed
the detention order in a mechanical
manner. He further submitted that a
perusal of the grounds of detention
contained in the order dated 1.5.08
(Annexure -2) shows that these are
verbatim reproduction of the report of the
Inspector of Police Station Lalganj dated
30.4.2008 (Annexure-4).

5. In support of this contention he
cited before us a Division Bench Ruling
of
this
Court
in
Tunnu
Vs.
Superintendent, District Jail, Ballia and
others: 2000 (1) A.Cr.R. 611. In this case
also in the grounds of detention, there was
almost verbatim reproduction of the
report submitted by sponsoring authority
with this charge only that the name of the
petitioner in the report was substituted by
word 'Aap' in the grounds of the detention
order. The Court, relying upon a ruling of
the Hon'ble Apex Court in Jai Singh vs.
State of J & K : (1985) 1 SCC 561, held
that apparently the detention order had
been passed in mechanical manner,
casually and without application of mind
and so it stood vitiated. He also cited
before us another ruling of Hon'ble
Supreme Court in Rajesh Vashdev
Adnani Vs. State of Maharashtra and
others: (2006)1 SCC (Cri) 61. This was a
case in which the detention order was
passed under section 3(1)(i) & (iii),
COFFPOSA and the detention order was·
verbatim reproduction of the proposal at
the sponsoring authority except use of the
word 'Aap' in the order for the word 'he' in
the proposal. It was held that such a
detention
order
suffers
from
non
application at mind on the part of the
detaining authority at the time of actual
preparation of the detention order and
grounds thereof and so it was not
sustainable.

6. We have gone through the
proposal for detention of the petitioner
submitted by the Inspector of P.S. Lalganj
(Annexure-4)
and
the
grounds
for
detention furnished to the petitioner on
1.5.08 along with the detention order
which is annexure-2. A comparative
reading of both these documents reveals
that the contents of paras 1 and 2 of
Annexure -4 have been almost virtually
reproduced in paras 1 and 2 of Annexure2 with this change only that the word
'Aap' has been used in the grounds
(Annexure 2) in place of reference to the
petitioner either by name or by pronoun in
the report .It was submitted by the learned
counsel for the petitioner that the
aforesaid facts go to show that there was
no application of mind on the part of the
District Magistrate at the time of passing
the order of detention so he simply signed
the order casually in a mechanical manner
and J therefore, the order stands vitiated.
We agree with this contention in view of
the discussion attempted above.

7. Learned counsel for the petitioner
further submitted that in para 2 of the
report of the Inspector (Annexure 4) as
well as in the grounds of detention
furnished by the District Magistrate
(Annexure 2) there is reference of case
Crime No. 69/88, P.S. Lalganj under
sections 302,307,394 I.P.C. and it has
been stated in it that the charge sheet was
submitted against the petitioner and his
colleagues in that case and this fact has
also been taken into consideration for
passing the detention order against the
petitioner.
1 All] Anil Pal V. Suprientendant Distt. Jail and others
217
8. Learned counsel for the petitioner
submitted that the above case was tried in
the court of Sessions at Basti as S.T. No.
193/88 and the petitioner was acquitted in
this case vide judgement and order dated
18.9.90. He has asserted this fact in para
28 of the petition. He pointed out that no
reply to this assertion made in para 28 of
the petition has been given by respondents
no. 1,3 and 4 in their counter affidavits,
and in the counter affidavit filed on behalf
of the District Magistrate, respondent no.
2 the following reply has been given in its
para 14:

"That the contents of paragraphs no.
27 and28 of the writ petition, as stated,
are not admitted. In reply thereto, it is
submitted that the detention order has
been passed on the basis of the incident
relating to the Case Crime No. 63 of 2008
under sections 147,148,149,302,506,34
I.P.C., P.S. Lalganj, District Basti."

9. Learned counsel for the petitioner
submitted that this reply is vague .He
further
submitted
that
the
District
Magistrate could not deny this fact that
the petitioner had been acquitted in the
above case, and he has simply taken a
plea that it was not taken as a basis for
passing the detention order he pointed out
that it t is clear from the report of the
Inspector as well as from the order passed
by the District Magistrate that the above
case in which the petitioner has been
acquitted has also been taken into
consideration for passing the detention
order mentioning this fact that the charge
sheet had been submitted against the
petitioner and other co accused persons
but the acquittal order passed in favour of
the petitioner has not been considered by
the authorities and so the detention order
is vitiated. In support of this contention,
the learned counsel for the petitioner cited
before us a ruling of the Hon'ble Supreme
Court dated 22.11.1985 in Criminal
Appeal No. 72 of 1985 arising out of
Special leave petition (Crl) no. 3068 of
1985, Ashok Kumar Dixit Vs. State of
U.P. and others. In this case it was held
that where the rival version, which was
certainly a vital circumstance to be
considered by the detaining authority
before passing any order of detention was
not taken into account and was ignored, it
is a circumstance that vitiates the order of
detention. The acquittal order passed in
favour of the petitioner in the above case
has not been taken into account and so the
detention order stands vitiated on this
ground also.

10. Learned counsel for the
petitioner
challenged
the
order
of
detention on several other grounds also,
but since the detention order has been
found by us to be invalid on the above
grounds of verbatim reproduction of the
report of the Inspector in the grounds of
detention and for non consideration of the
acquittal order of the petitioner in the
above case Crime No. 69/88 as well as for
non application of mind by the detaining
authority, in view of the law laid down in
the rulings referred to above, we need not
consider those other points and we are
allowing this petition on these grounds
only.

11.

Hence,
for
the
reasons
aforementioned,
this
Habeas
Corpus
Petition
is
allowed.
The
impugned
detention order dated 1.5.2008 passed by
the District Magistrate, Agra under
section 3(2) of National Security Act is
hereby quashed. Let the petitioner be set
at liberty forthwith if he is not required to
218 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
be detained in connection with any other
case.

Petition allowed.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.02.2008

BEFORE
THE HON'BLE S.U. KHAN, J.

First Appeal No.18 of 2008

Hirdaya Narain Rai and others

...Appellants/Defendants
Versus
Ratanjay Pradhan
...Opposite Party

Counsel for the Appellants:
Sri Awadh Narain Rai

Counsel for Opposite Party:
Sri Rakesh Pande
Sri C.K. Rai
Sri Faujdar Rai
Sri A.K. Rai

Hindu Marriage Act 1956-Section 13
(i)(iii)-Divorce-Since the first day of
marriage-No
response
of
natural
behaviour
given
by
wife-due
to
schizophrenia-fully
proved
by
documentary evidence-finding recorded
by the Trail Court-fully justified-need no
interference-considering
her
welfarehusband to deposit Rs.50,000/- in F.D.
for 10 years-conditional direction for
release of interest issued.

Held: Para 13

The court below has recorded finding
that the lady since the first day of
marriage did not respond to normal
situations in a normal way. From the
evidence on record, it was fully proved
that schizophrenia suffered by the lady
was of such magnitude which warranted
divorce as held by the Supreme Court in
AIR 1988 SC 2260 "Ram Narain Gupta
Vs. Rameshwari Gupta" referred in AIR
2006 SC 1662 "Vineeta Saxena Vs.
Pankaj Pandey" (Para-12).
Case law discussed:
AIR 1988 SC 2260, AIR 2006 SC 1662

(Delivered by Hon'ble S.U. Khan. J.)

1. Heard learned counsel for the
appellants as well as learned counsel for
the respondent, who has appeared through
caveat.

2. This appeal is directed against
judgment and decree dated 27.11.2007
passed by A.D.J. Court No.2, Ghazipur in
matrimonial case No.84 of 2003, Ratanjay
Pradhan Vs. Smt. Suman and others.
Through
the
impugned
judgment,
marriage in between plaintiff respondent
and appellant No.2/ defendant No.1 has
been annulled and declared void mainly
under Section 13 (1)(iii) of Hindu
Marriage Act, which is quoted below:

"13. Divorce. (1) Any marriage
solemnized, whether before or after the
commencement of this Act, may, on a
petition presented by either the husband
or the wife, be dissolved by a decree of
divorce on the ground that the other
party-
(i) & (ii) not relevant.

(iii) has been incurably of unsound
mind, or has been suffering continuously
or intermittently from mental disorder of
such a kind and to such an extent that the
petitioner cannot reasonably be expected
to live with the respondent.

Explanation. -In this clause,-

(a) the expression "mental disorder"
means
mental
illness,
arrested
or
incomplete
development
of
mind,
psychopathic disorder or any other