# Kamlesh Pathak v. District Magistrate, Auraiya and others

- **Citation:** (2009) 1 ILRA 315
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2009-04-15
- **Case number:** Criminal Misc. Parole Application No. 80925 of 2009
- **Bench:** R.K. Rastogi, A.K. Roopanwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kamlesh-pathak-v-district-magistrate-auraiya-and-others-41372
- **Pages:** 8

## Headnote

Constitution of India Article-226-Habeas
Corpus
Petition-challenging
detention
order-during pendency of petition-Parole
application-on ground to contest the
election of M.P. And for campaign of
election held-grant of bail and parole are
quite distinct-proceeding grant of bail
316 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
can not be grant for parole-application
rejected.

Held: Para 19:

In view of the discussion attempted
above, we are of the opinion that it is not
such a rare case where parole should be
granted to the petitioner for doing his
election
campaign
which
can
be
efficiently done by his party-men and so
we are rejecting the application for grant
of parole.
Case law discussed:
1998 CRI.L.J.1052, 2001(2) A.W.C. 1610,
7778 Of 2009 State of U.P. Vs. Atique Ahmad,
1980 Supreme Court Cases (Cri) 777, 1987
Supreme Court 1748, Sunil Fulchand Shah Vs.
Union of India & others 2000 Cri. L.J. 1444,
Kamleshkumar Ishwardas Patel Vs. Union of
India & others 1996 Supreme Court Cases
(Cri) 86, Santosh Anand Vs. Union of India
1981 SCC (Cri) 456.

## Text

1 All] Kamlesh Pathak V. District Magistrate, Auraiya and others
315
to be considered which is disclosing the
offence. The present application is devoid
of the merit, the same may be dismissed.

7. Considering the submission made
by learned counsel for the applicants, the
learned
A.G.A.,
learned
counsel
appearing on behalf of O.P.2 and from the
perusal of the record, it appears that the
material collected by the I.O. during
investigation, prima facie, discloses the
commission of the offence. The fabric of
the case is of purely criminal in nature,
therefore, on the basis of pendency of the
civil suit, the proceeding of this case not
be quashed because the filing of the civil
suit is a proper remedy for cancelling the
sale deed. The I.O. has not committed any
error in submitting the charge sheet
because there is sufficient material to
proceed further against the applicants.
The learned Magistrate has also not
committed any error in taking the
cognizance and summoning the applicants
to face the trial. So far as the withdrawal
of the money from the Bank account of
applicant nos. 1 and 2 is concerned, it
may be a ground of defence which may be
considered at the stage of the trial. The
application filed by the applicants is
having no substance, the prayer for
quashing the charge sheet case crime no.
897 of 2008 under section 420,467,468
and 471 I.P.C. P.S. Jansath, District
Muzaffar
Nagar
and
the
criminal
proceedings arising out of charge sheet
pending in the court of learned A.C.J.M.
1st Muzaffarnagar vide criminal case no.
3821 of 2008 is refused.

8. However, considering the facts,
circumstances of the case and submission
made
by
learned
counsel
for
the
applicants that the arrest of the applicants
was stayed during investigation of the
case by a Division Bench of this Court on
1.10.2008 in Criminal Misc. Writ Petition
No. 18127 of 2008, it is directed that the
applicants shall appear before the court
concerned within 25 days from today, till
then the bailable warrant/N.B.W., if any,
issued against the applicants shall be kept
in abeyance. In case they apply for bail,
the same shall be heard and disposed of
on the same day by the courts below.

9.

With
this
direction,
this
application is disposed of finally.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.04.2009

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

Criminal Misc. Parole Application No.
80925 of 2009

Kamlesh Pathak

...Petitioner

Versus
District Magistrate, Auraiya and others.

 ...Respondents

Counsel for the Petitioner:
Sri Viresh Misra
Sri Nirvikar Gupta
Sri Amit Misra

Counsel for the Respondents:
Poonam Singh
Addl. Solicitor General Of India
A.G.A.

Constitution of India Article-226-Habeas
Corpus
Petition-challenging
detention
order-during pendency of petition-Parole
application-on ground to contest the
election of M.P. And for campaign of
election held-grant of bail and parole are
quite distinct-proceeding grant of bail
316 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
can not be grant for parole-application
rejected.

Held: Para 19:

In view of the discussion attempted
above, we are of the opinion that it is not
such a rare case where parole should be
granted to the petitioner for doing his
election
campaign
which
can
be
efficiently done by his party-men and so
we are rejecting the application for grant
of parole.
Case law discussed:
1998 CRI.L.J.1052, 2001(2) A.W.C. 1610,
7778 Of 2009 State of U.P. Vs. Atique Ahmad,
1980 Supreme Court Cases (Cri) 777, 1987
Supreme Court 1748, Sunil Fulchand Shah Vs.
Union of India & others 2000 Cri. L.J. 1444,
Kamleshkumar Ishwardas Patel Vs. Union of
India & others 1996 Supreme Court Cases
(Cri) 86, Santosh Anand Vs. Union of India
1981 SCC (Cri) 456.

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

1. This parole application has been
moved by the petitioner Kamlesh Pathak
on 26.3.09 for grant of parole of three
months to enable him to contest the
election for Lok Sabha.

2. The facts relevant for disposal of
this application are that the petitioner has
been a member of the Legislative
Assembly from the Samajwadi Party in
the State of U.P. on two occasions. He is
an active worker of the Samajwadi Party
and he has been declared as a candidate
by the Samajwadi Party from Akbarpur
Constituency in the ensuing Lok Sabha
election. The petitioner's case is that some
highly placed persons of the ruling
Bahujan Samaj Party are inimical towards
him and they wanted to taint his image.
Hence, two cases were registered against
him. The first was crime no, 487 of 2008
under Section 147, 148, 149, 307, 436,
336,332,353 IPC, Section 7 of Criminal
Law Amendment Act & Section 3/6
Prevention of Damage to Public Property
Act at police station kotwali, District
Auraiya. This case was registered against
thirty five accused persons. Out of them
twenty five persons were arrested on the
spot and ten persons were shown to have
run away from the spot after the incident.
The name of the petitioner finds place as
accused No. 1 in the column of those
accused persons who had allegedly run
away from the spot. On the same day
another FIR was also registered at police
station kotwali, District Auraiya as crime
No, 487 A of 2008 under Sections
147,148,149, 307,436,336,332,353 IPC,
Section 7 of Criminal Law Amendment
Act and were named as accused persons
in this FIR and the name of the petitioner
stated that 100 to 150 unknown has also
participated in the incident. It may also be
mentioned in connection with this FIR
that ten persons who had been listed as
accused No. 11 to 20 were arrested on the
spot and the remaining accused persons
No. 1 to 10 including the petitioner had
allegedly run away from the spot. It was
further alleged that due to these incidents
public order was disturbed. Hence, on
account of these two incidents as well as
due to petitioner's prior involvement in
case crime no. 43 of 1991 of police
station kotwali, District Auraiya, in case
crime no. 92 of 1985 police station
Navagarh District Farrukjabad and in
some other cases, a report was sent for his
detention under the National Security Act
by the SHO of police station Kotwali
Auraiya to the District Magistrate Auraiya
through proper channel and the District
Magistrate Auraiya after considering this
report as well as recommendations of the
concerned authorities passed an order on
28.1.09 under section 3(2) of the National
1 All] Kamlesh Pathak V. District Magistrate, Auraiya and others
317
Security Act for his detention. The
petitioner
moved
his
representation
against the above order but since he did
not receive favourable decision from the
concerned authorities, he filed habeas
corpus writ petition no. 13411 of 2009
challenging the detention order as well as
the grounds of detention. It was also
pleaded that the petitioner is a law abiding
citizen and that he has not been convicted
in any case so far, and he has been falsely
implicated
on
account
of
political
vengeance.

3. The petitioner had also moved an
application fro parole along with the
above
petition.
Objections
on
this
application were invited and a date was
fixed for its disposal. A counter affidavit
of Sri D.K. Rai, C.O., City, Auraiya on
behalf of respondent no. 2 the State of
U.P. was filed in reply to the parole
application. A counter affidavit was also
filed by Sri Rajiv Kumar Singh, Deputy
Jailor, District jail, Pilibhit on behalf of
respondent no.3, but that is in reply to the
petition and not the parole application. No
counter affidavit or objections has been
filed any other respondent. However, at
the time of Government Advocate that
under Section 15 of the National Security
Act, the petitioner has got right to move
an application for parole before the
appropriate Government, and so he should
first move the parole application before
the
Government,
and
his

parole
application moved before this Court was
premature and not maintainable.

4. The Court agreeing with the
above contention of the Government
Advocate, rejected the above parole
application as premature with this option
to the petitioner to move his parole
application before the Government, and a
direction
was
also
issued
to
the
Government
to
decide
the
parole
application of the petitioner at an early
date preferably within a period of one
week from the date of moving it before
the
Principal
Secretary,
Home
UP
Government; and a further direction was
issued that this application should be
decided by a speaking order. The above
parole application moved before this
Court stood decided in the aforesaid
manner vide order dated 18.3.09.

5. On 26.3.09 the petitioner moved a
fresh parole application which was
registered as criminal misc. application
No. 80925 of 2009 in which it was stated
that he had moved the parole application
before the Principal Secretary Home on
20.3.09 and since no order had been
passed on that application, he was moving
this fresh parole application before this
Court.
Objections
to
this
parole
application were invited and the State
filed a reply mentioning that the parole
application had been rejected by the
Government on 30.3.09. Thereafter when
this parole application was taken up for
hearing, a preliminary objection was
again raised by the learned Government
Advocate that the parole application had
not challenged the order passed by the
Government on his parole application
unless and until he challenges the order
passed by the Government on the parole
application. This plea was upheld by this
Court vide order dated 31.3.09 and the
petitioner was provided an opportunity to
take suitable steps in the light of the
order.

6. Then the petitioner filed a
supplementary affidavit on 1.4.09 with
which the rejection order dated 30.3.09
passed by the Government was enclosed
318 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
as Annexure SA 1 and it was challenged
on the ground stated in para 3 that it had
been passed without application of mind
in an arbitrary manner with ulterior
motives
and
malafide
intentions.
Thereafter arguments of both the parties
were heard on this parole application on
1.4.09 and the order was reserved.
Learned counsel for the parties wanted
time to file photo copies of the rulings
relied upon by them, and they were
provided time upto 2.4.09 to file them.

7. There were holidays on 3.4.09,
4.4.09 & 5.4.09 and on 6.04.09 Sri
Nirvikar Gupta, learned counsel for the
petitioner appeared before us and stated
that the petitioner had been granted bail in
the case under the U.P. Gangster and Anti
Social Activities (Prevention) Act, by this
Court vide order dated 6.4.09 in criminal
misc. bail application No. 8114 of 2009.
He further submitted that the Special
Judge (Gangsters Act) Kanpur Nagar had
vide his order dated 21.3.09 in case crime
No. 23 of 2009 under Section 2/3 of the
U.P. Gangster Act of Police Station
Kotwali, District Auraiya State Vs.
Kamlesh Pathak permitted the petitioner
to be taken to Akbarpur in police custody
for filing his nomination papers on 5.4.09.
He submitted that he may be granted time
to file copies of these orders with a
supplementary affidavit and so orders
may not be passed on the parole
application in the meantime. He was
granted time for this purpose. Thereafter,
he filed photo copies of these orders vide
his supplementary affidavit dated 8.4.09.
A copy of that supplementary affidavit
was ordered to be given to the learned
counsel for the Union of India as it had
not been given to him by that time, and
the date 10.4.09 was fixed for hearing of
further arguments on the point. The
argument of both the parties were heard
on that date. Now we are deciding this
parole application on merits.

8. Learned counsel for both the
parties have also submitted their written
arguments before us and filed photo
copies of the rulings relied upon by them.
It has also been argued by the learned
counsel for the petitioner that the
detention order had been passed out of
political vendetta and no ground has been
made out for detention of the petitioner
under the National Security Act. We are
of the view that these aspects which
pertain to merits of the habeas corpus
petition cannot be considered at this stage
of consideration of the parole application
and the only question which is to be
considered at this stage is whether parole
should be granted to the petitioner for the
purpose of view by the following
observation of a full bench of this court in
Jokhu Lal Vs. Superintendent Central
Jail Naini, Allahabad and others 1998
CRI. L.J.1052, the relevant portion of
which has been underlined by us to lay
emphasis on it;

"After
considering
various
submissions made by learned counsel for
the parties and going through all the
aspects of this case as also the relevant
case law, our answer to question no. 1 is
in the negative and it is held that a person
detained under a preventive detention law
is not period of his detention is less than a
month. However, we also make it clear
that under a given circumstance in a rare
case, it may be possible for the High
Court in exercise of its jurisdiction under
Art. 226 of the Constitution to direct
release of a person detained under the
preventive law without entering into the
question of validity of the detention order,
1 All] Kamlesh Pathak V. District Magistrate, Auraiya and others
319
if the Court finds that exigency of the
situation
demands
release
of
the
petitioner forthwith without considering
the question of validity of the detention
order."

9. It is thus clear that without
entering into the question of validity of
the detention order, we have to find out as
to whether the exigency of the situation
demands
release
of
the
petitioner
forthwith. In this connection it is to be
seen that the petitioner has already filed
his nomination as a candidates from the
Akbarpur Constituency of the Lok Sabha
as permitted by the Special Judge
(Gangsters Act) Kanpur Nagar. The
Election is going to take place in the
above constituency on 30th April, 2009 as
stated by the learned counsel for the
petitioner. Not the question is whether the
petitioner should be released to enable
him to do the election campaign as prayed
by him.

10. It was contended by the learned
Government Advocate that the petitioner
is detained under the National Security
Act and he is not an independent
candidate who may have to arrange for
his election campaign himself, but he is a
candidate of the Socialist Party and the
members of that party can efficiently do
the election campaigning for him and
there is no necessity of personal election
campaign of the petitioner. He also
submitted that as laid down in the above
ruling of this Court parole is to be granted
in a rare case only. He contended that
election campaign is not such a ground as
to come within the term "rare case" for
which parole should be granted. He also
cited before us a Division Bench Ruling
of this Court in the case of Atique Ahmad
Vs. Election Commission of India &
Others 2001 (2) A.W.C. 1610. In this case
permission were refused to the petitioner
Atique Ahmad for being taken to the
office of the Returning Officer from the
jail where he was detained at that time for
filling the nomination, as their Lordships
were of the view that there is no necessity
of personal appearance of the candidate
before the Returning Officer for filing the
nomination papers if he is in jail. The
same view has been followed by this
Court in its order dated 29.3.09 in Crl.
Misc. No. 7778 of 2009 State of UP Vs.
Atique Ahmad.

11. Learned counsel for the
petitioner has cited before us ruling of the
Hon'ble Apex Court in the case of Icchu
Devi Choraria Vs. Union of India (writ
petition No. 2030 of 1980) decided on
9.9.1980 and in Sunil Batra (II) Vs.
Delhi Administration 1980 Supreme
Court Cases (Crl) 777. Both these ruling
are on the merits of the detention order
and have got no application to grant of
parole.

12. Learned counsel for the
petitioner
submitted
before
us
that
according to the detention order passed
against the petitioner his activities are
detrimental to public order in the district
of Auraiya. Learned counsel for the
petitioner
also
submitted
that
the
petitioner is ready to give an undertaking
that during the period of release on parole
he shall not visit Auraiya. He further
submitted
that
the
Constituency
of
Akbarpur is situated at Kanpur Dehat at a
distance from district Auraiya and during
the period of release on parole, he shall
remain busy in his election campaign at
Akbarpur and so he will not get any
opportunity or time to go to Auraiya and
so there is no chance of detriment to
320 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
public order if he is released on short term
parole to enable to him to do his election
campaign at Akbarpur.

13. In reply the Government
Advocate relied upon the following
observations on the Hon'ble Apex Court
in the case of Pushpadevi M. Jatia Vs.
Additional Secretary, Government of
India & others AIR 1987 Supreme Court
1748;

"Preventive
detention
is
an
extraordinary measure resorted to by the
State on account of compulsive factors
pertaining to maintenance of public life
and the welfare of the economy of the
country. The need for this extraordinary
measure i.e. detention without trial was
realised by the founding fathers of the
Constitution as an inevitable necessity for
safeguarding the interests of the public
and the country and hence a specific
provision has been made in clause (3) of
Article 22 providing for preventive
detention being imposed in appropriate
cases notwithstanding the fundamental
right of Constitution. The entire scheme of
preventive detention is based on the
bounden duty of the State to safeguard the
interests of the country and welfare of the
people from the canker of anti-national
activities by anti-social elements affecting
the maintenance of public order or the
economic welfare of the country. Placing
the interest of the nation above the
individual liberty of the anti-social and
dangerous elements who constitute a
grave menace to society by their unlawful
acts, the preventive detention laws have
been made for effectively keeping out of
circulation
the
detenus
during
a
prescribed period by means of preventive
detention.
The
objective
underlying
preventive detention cannot be achieved
or fulfilled if the detenu is granted parole
and brought out of detention. Even if any
conditions are imposed with a view to
restrict the movements of the detenu while
on parole, the observance of those
conditions can never lead to an equation
of the period of parole with the period of
detention. One need not look far off to see
the reason because the observance of the
conditions of parole, wherever imposed,
such as reporting daily or periodically
before a designated authority, residing in
a particular town or city, travelling within
prescribed limits alone and not going
beyond etc. will not prevent the detenu
from moving and acting as a free agent
during the rest of the time or within the
circumscribed limits of travel and having
full scope and opportunity to meet people
of his choice and have dealing with them,
to correspond with one and all, to have
easy and effective communication with
whomsoever he likes through telephone,
telex
etc.
Due
to
the
speculator
achievements in modern communication
system, a detenu, while on parole, can sit
in a room in a house or hotel and have
contacts with all his relations, friends and
confederates in any part of the country or
even any part of the world and thereby
pursue his unlawful activities if so
inclined.

14. Learned counsel for the
petitioner submitted that the above ruling
of the Hon'ble Apex in Pushpadevi has
been overruled in the case of Sunil
Fulchand Shah Vs. Union of India &
others 2000 Cri. L.J. 1444 and so no
reliance should be placed upon it.

15.

The
learned
Government
Advocate submitted in reply that it had
been held by the Hon'ble Apex Court in
the case of Pushpadevi (supra) that the
1 All] Kamlesh Pathak V. District Magistrate, Auraiya and others
321
period of parole is not to be counted as a
part of the period of detention, and on that
point the view taken by the Hon'ble Apex
Court in Pushpadevi's case has been
overruled in the case of Sunil Fulchand
Shah but the entire ruling in the case of
Pushpadevi has not been overruled and so
the above observations which are on the
point of effect and consequences of grant
of parole still hold good. We have
carefully gone through both these rulings
of the Hon'ble Apex Court and we find
sufficient force in the above contention of
the learned Government Advocate. As
such we are of the view that it is not
possible to release the petitioner on parole
on this condition that after his release on
parole he shall not visit Auraiya.

16. Learned counsel for the
petitioner further submitted that the
petitioner is not a criminal, he has got no
criminal history nor he has been convicted
in any criminal case so far, and he has
been falsely implicated in the cases under
reference, only on account of political
rivalry,
and
his
activities
are
not
detrimental to the security of the State,
and the detention order passed against
him is totally illegal and so parole should
be granted to him. It is, however, to be
seen that, as laid down by the Full bench
of this Court in the case of Jokhu Lal Vs.
Superintendent
Central
jail
Naini,
Allahabad and others (supra), the merits
of the detention order are not to be
considered at the stage of considering the
matter of grant of parole to the detenu.
The merit and demerits of the detention
order will have to be considered at the
appropriate stage while deciding the
habeas corpus writ petition, but here at
this stage while deciding the application
for parole, the merits of the detention
order are not to be considered as laid
down in the aforesaid ruling of Jokhu
Lal's case (supra) and so it is not possible
to release the petitioner on parole on this
ground that the detention order passed
against him is illegal as alleged by him.

17. It was further submitted by the
learned counsel for the petitioner that the
petitioner has already been granted bail in
the case under Section 2/3 of the Gangster
Act by this very Court and he has also
been permitted by the Special Judge
(Gangster Act) Kanpur Nagar to go in
police custody to the Returning Officer's
office
at
Akbarpur
for
filing
his
nomination papers, and so he should also
be permitted to do the election campaign.
We do not find any force in this
contention. It is to be seen that the criteria
for grant of bail for an offence as well as
for grant of parole under the preventive
detention are quite different, and a detenu
can not be granted release on parole on
the ground that he has already been
granted bail in any criminal case pending
against him. So far as this fact is
concerned
that
the
Special
Judge
(Gangsters
Act)
had
permitted
the
petitioner to go to the office of the
Returning
Officer
for
filing
his
nomination papers, it is to been that the
correct legal position is that personal
appearance of a candidate who is detained
in jail is not necessary before the
Returning
Officer
for
filing
his
nomination papers as laid down by this
Court in the case of Atique Ahmad Vs.
Election Commission of India (supra).
However, if he has been permitted to go
to the Returning Officer's Office at
Akbarpur for filing nomination paper on
the basis of permission granted by the
Special Judge (Gangster Act), he cannot
claim on the basis of the above
permission that he should now be granted
322 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
release on parole for election campaign
also. It is also to be seen that during the
entire process of going to the aforesaid
Constituency from the District Jail
Pillibhit,
the
petitioner
remained
constantly in custody of the police, but if
he is granted parole, he shall come out of
the police as well as judicial custody; and
the permission to file nomination papers
under police custody and he release on
parole for short term for doing election
campaign cannot be equated. Hence, we
are of the view that the petitioner cannot
get any benefit on the question of grant of
parole by these facts that he has been
granted bail in the case under the
Gangster Act and that he has been
permitted to go to the office of the
Returning Officer, Akbarpur for filing his
nomination papers.

18. Learned counsel for the
petitioner also cited before us a ruling of
the Hon'ble Apex Court in the case of
Kamleshkumar Ishwardas Patel Vs.
Union of India & others 1996 Supreme
Court Cases (Cri) 86. In this case the
petitioner who was detained under the
COFEPOSA Act and whose period of
detention was to expire shortly was
ordered to be released on parole on
certain conditions giving benefit of the
decision of the Hon'ble Apex Court in
Santosh Anand Vs. Union of India 1981
SCC (Cri) 456. It is to be seen that in the
above case the period of detention was to
expire shortly while in the present case,
the detention order was passed on 28.1.09
and the period of 2 months only has
expired as yet, and so it cannot be said
that the detention period is going to expire
shortly, and so the above ruling is not
applicable to this case and it does not
render any help to the petitioner.

19. In view of the discussion
attempted above, we are of the opinion
that it is not such a rare case where parole
should be granted to the petitioner for
doing his election campaign which can be
efficiently done by his party-men and so
we are rejecting the application for grant
of parole.

20. Let the case be listed in the next
cause list for orders on the writ petition.
--------