# Shera v. Union of India and others

- **Citation:** (2010) 1 ILRA 161
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-02-05
- **Case number:** Civil Misc. Habeas Corpus Writ Petition No. 27725 of 2009
- **Bench:** Imtiyaz Murtaza, S.S. Tiwari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shera-v-union-of-india-and-others-41531
- **Pages:** 6

## Headnote

Constitution of India Art. 226-Habeas
Corpus-detention order-inordinate delay
in disposal of representation-delay of 40
days-explanation the dealing clerk on
medical leave-can not be plasible -and
justified
explanation
in
such
vitally
important of fundamental right-order
quashed.

Held: Para 16
162 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
It brooks no dispute that it was a matter
involving
the
vitally
important
fundamental right of a citizen. There is a
delay of more than forty days. The
explanation that the dealing assistant
was on long medical leave, hence the
delay occurred cannot be said to be
plausible and justifiable. All the decided
cases
discussed
above,
yield
the
conclusion that the representation must
be decided with utmost expedition.
Merely because the dealing assistant
was on leave, the representation could
not be processed is unacceptable when it
involves
the
vitally
important
fundamental right of a citizen. Hence,
the explanation offered for the delay
does not commend for acceptance and
on this ground alone, the detention is
clearly unsustainable and is liable to be
set aside and the petition deserves to be
allowed.
Case law discussed:
1999 SCC (Crl.) 93, (AIR 2008 SCW 2189),
(2006 (5) SCC 676, (1981(3) SCC 317, (1980)
(2) SCC 275, (1991) (1) SCC 128, (1993) (1)
SCC 272.

## Text

1 All] Shera V. Union of India and others
161
is also rejected. The trial is however
expedited. The Court concerned shall
conclude the trial within three months of
filing of the certified copy of this order.

19. Before parting I would like to
record my appreciation of the Additional
Sessions Judge/ FTC-2, Kaushambi, Dr.
Bal Mukund, who passed the impugned
order for his timely and pro-active attempt
at dispensing justice in the wake of the
determined
bid of the
mischievous
accused to subvert the course of justice.
With this objective on the very date that
the witness turned hostile, the Court
issued notice to the witness as to why he
should not be punished under section 181
IPC, encouraging the witness to come out
with the true reason for his hostility, and
thereafter by issuing notice to the accused
asking them to explain why their bail be
not
cancelled,
and
eventually
by
cancelling their bail. This appears to have
emboldened the subsequent witness PW-2
Ramraj to affirm his earlier version in the
First Information Report, and to have
prevented him from also turning hostile.
The judge thereby fulfilled the mandate of
the Supreme Court in letter and spirit, by
not functioning as a passive tape recorder
and by affirmatively searching for the
truth.

20. In view of the aforesaid remarks
about the Judge, let a copy of the
judgment be placed before the Inspecting
Judge of Kaushambi.

21. Let the copy of the order also be
sent to the Judicial Training and Research
Institute and the Legal Services Authority
for communication to the concerned
judicial authorities within a month as a
guidance on how to act in a timely and
proactive manner when dealing with
situations where attempts are being made
to brow beat witnesses and to compel
them to turn hostile, as hostility of
witnesses by threats or inducements is
becoming the bane of our judicial system.

22. The copy of this order should be
sent to the Additional Sessions Judge/
FTC-2, Kaushambi within a week for
compliance.

The Registrar is also directed to
circulate copies of the judgment before all
the
subordinate
Courts
within
two
months.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.02.2010

BEFORE
THE HON'BLE IMTIYAZ MURTAZA, J.
THE HON'BLE S.S. TIWARI, J.

Civil Misc. Habeas Corpus Writ Petition
No. 27725 of 2009

Shera

...Petitioner
Versus
Union of India Thru' Secy. and others

 ...Respondent

Counsel for the Petitioner:
Sri Sudhakar Shukla

Counsel for the Respondents:
A.S.G.I., G.A.

Constitution of India Art. 226-Habeas
Corpus-detention order-inordinate delay
in disposal of representation-delay of 40
days-explanation the dealing clerk on
medical leave-can not be plasible -and
justified
explanation
in
such
vitally
important of fundamental right-order
quashed.

Held: Para 16
162 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
It brooks no dispute that it was a matter
involving
the
vitally
important
fundamental right of a citizen. There is a
delay of more than forty days. The
explanation that the dealing assistant
was on long medical leave, hence the
delay occurred cannot be said to be
plausible and justifiable. All the decided
cases
discussed
above,
yield
the
conclusion that the representation must
be decided with utmost expedition.
Merely because the dealing assistant
was on leave, the representation could
not be processed is unacceptable when it
involves
the
vitally
important
fundamental right of a citizen. Hence,
the explanation offered for the delay
does not commend for acceptance and
on this ground alone, the detention is
clearly unsustainable and is liable to be
set aside and the petition deserves to be
allowed.
Case law discussed:
1999 SCC (Crl.) 93, (AIR 2008 SCW 2189),
(2006 (5) SCC 676, (1981(3) SCC 317, (1980)
(2) SCC 275, (1991) (1) SCC 128, (1993) (1)
SCC 272.

(Delivered by Hon'ble S.S. Tiwari, J.)

1. The present petition has been
preferred against the detention order dated
17.12.2008 passed by District Magistrate,
Agra, district Agra (arrayed as respondent
no.3 in the instant petition).

The reliefs sought herein are as
under:

(i) issue a writ, order or direction in the
nature of habeas corpus commanding
the opposite parties to release the
petitioner forthwith ;

(ii) issue a writ, order or direction in the
nature
of
certiorari
quashing
impugned detention order dated
17.12.2008 passed by opposite party
no.3.
2. The brief facts giving rise to the
present petition are that the petitioner has
been slapped with detention order after he
was falsely implicated in a criminal case
under section 302, 307 I.P.C and 3 (2)(v)
of SC/ST (Prevention of Atrocities) Act
vide
case
Crime
No.926
of
2008
registered at P.S. Etmaddaula, Agra,
pursuant to F.I.R. dated 18.12.2008. The
informant Radhey Lal Jatav submitted a
written
report
at
police
station
Etmaddaula
to
the
effect
that
on
02.03.2009 at about 6.00 p.m. the son of
the informant Lokesh alongwith his friend
Praveen was going to drop Praveen at his
residence and when he reached near Tedhi
Baghiya Bazar, he found Bolero vehicle
No. UP-83L-5953 standing on the middle
of the road with Shera and Sonu and two
others sitting inside the vehicle Lokesh
asked Shera to remove the vehicle from
the middle of the road, Shera was
annoyed and after casting aspersions by
addressing the caste of his father refused
to remove the vehicle from the middle of
road. Lokesh and Praveen protested to it.
Shera took out his country made pistol
and threatened them. When Lokesh and
Praveen started going back on their
motorcycle, the person inside the Bolero
vehicle hit that motorcycle on the 100 Ft.
road with the result Lokesh and Praveen
fell down on the road and they were
repeatedly crushed down by the Bolero
vehicle. In the meantime, one Ram Das
and Suleman passed through that road and
they were also hit by that vehicle.
Consequently, Lokesh and Ram Das
succumbed to the injuries and Praveen
and Suleman were seriously injured. The
respondents escaped away in that vehicle
from the spot. The incident was seen by
several persons of the locality.
1 All] Shera V. Union of India and others
163
3. We have also traversed upon the
impugned order of detention in which it is
stated that due to this incident the traffic
was completely stopped due to fear of the
accused persons and the persons of the
locality hide themselves inside their
houses. Drivers of the vehicles ran away
leaving the vehicles on the road. Public
order was fully disturbed. Additional
police force was called on the spot. The
public peace was fully disturbed and
normalcy could be restored with great
difficulty in that locality.

4. We have heard learned counsel
for the petitioner and also the learned
AGA. They have argued at length
bandying their respective contentions.

5. The arguments advanced across
the bar in nut shell are that the petitioner
has falsely been implicated i this case.
The father of the deceased Radhey Lal
Jatav is a local leader of ruling party and
due to his influence the petitioner has
been detained under section 3/2 of the
National Security Act. The petitioner has
got no previous criminal history. He was
still detained in jail and only on the basis
of conjectures and surmises he has been
detained in this case. The Station Officer
of Police Station concerned has submitted
the report for detention of the petitioner in
the aforesaid Act only under the political
influence.
The
higher
authorities
including the respondent no.3 did not
apply their mind. They have passed the
orders in a mechanical way and in a
routine manner. However, the main brunt
of the argument advanced across the bar
is that there was inordinate delay in the
disposal of representation dated 14.3.2009
which was decided on 14.5.2009 at the
hand of the Union Government.

6. From the submissions advanced
across the bar, it would crystalize that
there was no unreasonable delay in
disposing of the above representation on
the part of the State Government. The
main grievance of the petitioner pivots on
inordinate delay in disposing of the
representation by the Union Government.

7. We have scrutinised the counter
affidavit filed by Sri L.P. Srivastava,
Under Secretary, Ministry of Home
Affairs, Government of India, New Delhi.
In paragraph-5 of the counter affidavit it
is averred that the representation of the
detenue dated 14.3.2005 was received by
the Central Government in the concerned
Desk of Ministry of Home Affairs on
2.4.2009 through State of U.P. vide their
letter
No.108/2/80/2009-CX-7
dated
24.3.2009. The same was considered
together with report under section 3(5) of
the National Security Act and the matter
was processed at the level of Under
Secretary and Joint Secretary and was
placed before the Union Home Secretary
on 13.5.2009 (who has been delegated
with powers of the Central Government to
decide such cases). The Union Secretary,
it is averred, considered the representation
along with connected papers. The Union
Home
Secretary
after
careful
consideration of the matter through the
material on record including the grounds
for the same, the representation of the
detenue and the comments of the
detaining authority thereon found that the
detenue has been unable to bring forth
any material cause or grounds in his
representation to justify revocation of the
order by exercising of powers of the
Central Government under Section 14 of
the Act, and accordingly rejected the
representation on 14.5.2009 and the file
was sent for onward transmission of the
164 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
order of Joint Secretary. The file reached
the concerned Desk in the section on
15.5.2009.
Accordingly,
a
wireless
message No.II/15028/259/09 NSA dated
15.5.2009
was
sent
to
the
Home
Secretary, Government of U.P. and
Superintendent,
District
Jail,
Agra
informing that the representation of the
detenue Sonu was considered and rejected
by Union Government Home Secretary on
14.5.2009. It is further averred that the
matter could not be processed earlier, as
the dealing hand concerned proceeded on
medical leave and after his return he
could put up the case only on 11.5.2009.
The section had received large number of
representations
during
the
period
especially from U.P. The work of the
dealing hand could not be fully attended
to due to non availability of alternative
arrangements.

8. Keeping in view that fresh cases
continued to be received, there was
resultant backlog of a large number of
cases, hence, it took further 3-4 weeks
time to clear the backlog.

9. It would thus transpire that
whatever has occurred is attributable to
explanation that the dealing assistant had
proceeded on long leave i.e. on medical
ground and also that during that period
large number of representations had been
received and there was accumulation of
work. Now the question remains whether
the explanation offered for the delay is
plausible one and was occasioned due to
permissible reasons and unavoidable
causes.

10. Under the constitutional scheme,
the representation of the detenue has to be
considered without any delay. Article 22
of the Constitution does not envisage any
specific period constituting the delay. The
phrase used in clause (5) of Article 55 is
"as soon as may be" In Rajammal v. State
of T.N. And another 1999 SCC (Crl.) 93,
the Apex Court observed that the "test is
not the duration or range of the delay but
how it is explained by the authority
concerned." In para 9 of the said decision
the Apex Court recapitulating the facts of
that case observed as under:

"In
the
present
case,
the
representation was sent by the detenue on
13.1.1998 which reached the Secretary to
the Government of Tamil Nadu on
5.2.1998.
The
Government
which
received
remarks
from
different
authorities submitted the relevant file
before the under secretary for processing
it on the next day. The under Secretary
forwarded it to the Deputy Secretary on
the next working day. Thereafter, the file
was submitted before the Minister who
received it while he was on tour. The
Minister passed the order only on
14.2.1998. Though there is explanation
for the delay till 9.2.1998 there is no
explanation whatsoever as for the delay
which occurred thereafter. Merely stating
that the Minister was on tour and hence he
could pass orders only on 14.2.1998 is not
a justifiable explanation when the liberty
of a citizen guaranteed under Article 21 of
the Constitution is involved. Absence of
the Minister at the Headquarters is not
sufficient to justify the delay since the
file could be reached the Minister with
utmost promptitude in cases involving the
vitally important fundamental right of a
citizen.?

11. Per contra, the decision cited is
Union of India v. Laishram Lincola Singh
(AIR 2008 SCW 2189). It is a decision of
the Apex Court in which ratio of various
1 All] Shera V. Union of India and others
165
other decisions have been noticed with
approval. The first decision noticed is
Senthamilselvi v. State of T.N. And Anr
(2006 (5) SCC 676 in which it was
substantially held ?there can be no hard
and fast rule as to the measure of
reasonable time and each case has to be
considered from the facts of the case and
if there is no negligence or callous
inaction or avoidable red tapism on the
facts of a case, the Court would not
interfere.?
The
Apex
Court
further
observed that ?It needs no reiteration that
it is the duty of the Court to see that the
efficacy of the limited, yet crucial,
safeguards provided in the laws of
preventive detention is not lost in
mechanical routine, dull casualness and
chill indifference on the part of the
authorities
entrusted
with
their
application. When there is remissness,
indifference or avoidable delay on the part
of the authority, the detention becomes
vulnerable."

12. Another decision noticed with
approval is L.M.S. Ummju Saleema v.
B.B. Gujarat (1981(3) SCC 317 in which
it was quintessentially held that there can
be no doubt that the representation made
by the detenue has to be considered by the
detaining authority with the utmost
expedition but as observed in Frances
Coralie Mullin v. W.C. Khambra (1980(2)
SCC 275 "the time imperative can never
be absolute or obsessive. Likewise other
decisions relied upon are Kamarunnissa v.
Union of India (1991) (1) SCC 128,
Birendra Kumar Rai v. Union of India
(1993(1) SCC 272) etc.

13. A brief survey of all the decided
cases considered in judicial crucible yield
the conclusion the representation has to be
decided with utmost expedition.
14. In the light of the above decision
the question that remains is whether the
explanation offered for the delay by the
Government was such from which an
inference of inaction or callousness on the
part of the authorities could be inferred.

15. Reverting to the facts of the
present case, the explanation substantially
is that the dealing assistant was on leave
for about 38 days on medical ground and
also that in or about the time, large
number of representations had been
received which led to accumulation.

16. It brooks no dispute that it was a
matter involving the vitally important
fundamental right of a citizen. There is a
delay of more than forty days. The
explanation that the dealing assistant was
on long medical leave, hence the delay
occurred cannot be said to be plausible
and justifiable. All the decided cases
discussed above, yield the conclusion that
the representation must be decided with
utmost expedition. Merely because the
dealing assistant was on leave, the
representation could not be processed is
unacceptable when it involves the vitally
important fundamental right of a citizen.
Hence, the explanation offered for the
delay does not commend for acceptance
and on this ground alone, the detention is
clearly unsustainable and is liable to be
set aside and the petition deserves to be
allowed.

17. The other grounds urged by the
learned counsel for the petitioner are that
no public order was disturbed by the
aforesaid
incident.
The
concerned
authorities did not apply their mind to the
facts and circumstances of the case and
the incident was not within the category
of cases to invoke provisions of National
166 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
Security Act. The District Magistrate
rejected the representation on hypertechnical ground and not on merits. Since
we are allowing the petition on the ground
of unjustifiable delay, we do not propose
to go into other aspects in detail.

18. In view of the foregoing
discussions, the petition is allowed and it
is directed that the petitioner shall be set
at liberty forthwith unless wanted in any
other case.
---------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 18.02.2010

BEFORE
THE HON'BLE RAJESH CHANDRA, J.

Criminal Misc. Application No. 33249 of 2009

Mohd. Yameen and another ...Petitioner
Versus
State of U.P. and another ...Respondents

Counsel for the Petitioner:
Sri S.D. Kautilya

Counsel for the Respondents:
Govt. Advocate

Code of Criminal Procedure-Section 362Power to recall the order-once the
judgment singed in open Court-except
clerical error-court has no power to
recall/alter
the
same
in
garb
of
correction.

Held: Para 5

A perusal of the said section makes it
clear that once the judgment or final
order disposing of a case has been
signed by a court, it will not be altered or
reviewed except for correcting a clerical
or arithmetical error. The Hon'ble Apex
Court in Suraj Devi Vs. Pyare Lal, 1981
Cr.L.J, 269 has observed that a clerical or
arithmetical error is an error occasioned
by an accidental slip or omission of the
court. It represents that which the court
never intended to say. It is an error
apparent on the face of the record and
does not depend for its discovery on
argument or disputation. An arithmetical
error is a mistake of calculation, and a
clerical error is a mistake in wring or
typing.
In
view
of
the
above
observations, it is clear that under
Section 482 Cr.P.C. only clerical or
arithmetical errors can be corrected.
Case law discussed:
AIR 1990 SC 1605, AIR 2001 SC 2145, AIR
2001 SC 43, (2005)12 SCC 361, (2008) 2 SCC
705, (2008) 8, SCC 673.

(Delivered by Hon'ble Rajesh Chandra, J.)

1. This Criminal Misc. Correction
Application No. 26950 of 2010 has been
moved with a prayer that the order dated
23.3.09
passed
in
Criminal
Misc.
Application No.33249/09, Mohd. Yameen
& another Vs. State of U.P. & another
may be recalled.

2. A perusal of the record shows that
after the filing of the charge sheet in
Crime
no.390/08
under
Sections
420,467,471 and 120B IPC, PS Civil
Lines, District Meerut in the court of
Addl. CJM Ist, Meerut, the applicants
filed Criminal Misc. Application No.
33249/09, under Section 482 Cr.P.C. to
quash the said charge sheet. That petition
was finally disposed of vide order dated
23.3.09.

3. Now the counsel for the
applicants by way of this correction
application no.26950/10 wants that the
said order may be recalled.

4. I have heard learned counsel for
the applicants as well as the learned AGA.