# Singh v. State of U.P. 2003 (i) AWC

- **Citation:** (2003) 2 ILRA 507
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2003-07-09
- **Case number:** Habeas Corpus Writ Petition No. 44365 of 2002
- **Bench:** U.S. Tripathi, V.N. Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/singh-v-state-of-u-p-2003-i-awc-40155
- **Pages:** 6

## Headnote

Constitution
of
India,
Article
226Criminal
Law-detention
ordersatisfaction
of
detaining
authoritynature
of
incident
antecedents
and
apprehension of repeating tendency, are
relevant factors-indicate that petitioner
would again indulge in similar activitiesCompelling necessity before detaining
authority- petition dismissed.

Held- Para 16

Therefore, the previous as well as
subsequent conduct of the petitioner
indicated
that
he
was
indulged
in
realizing Chowth from the shopkeepers
and he who dared to oppose him and his
associates, he would be done to death.
These activities of the petitioner were
thus
sufficient
material
to
record
satisfaction of the detaining authority
that on release on bail the petitioner
would again indulge in similar activities
prejudicial to the maintenance of public
order and thus there were compelling
necessary before the detaining authority
to pass the detention order.
Case laws discussed:
1990 SCC (Crl.) 372;
2000 (Suppl.) ACC 266
JT 1999 (8) SC 252;
1990 SCC 249;
1990 (27) SCC 67;
1998 SCC (Crl.) 178

## Text

2 All] Raju V. District Magistrate, Mathura and others
507
7. As held in Bai Malimabu v. State
of Gujrat AIR 1978 SC 515 and Kashi
Nath and others versus State of U.P. 1193
ALJ 154 the word land in section 3 (a)
includes the superstructures on the land.
This view has been reiterated in Manveer
Singh Vs. State of U.P. 2003 (i) AWC
116 and in Horam Singh V. State of U.P.
Writ petition no. 24627 of 2003 dismissed
on 2.7.2003. Thus the constructions on
the land in dispute are certainly land
within the meaning of Section 3 (a).

8. The matter has been dragging on
since 1980 and it is not proper for this
Court to interfere again and again. There
is no force in this petition. The writ
petition is dismissed.
---------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 09.07.2003

BEFORE
THE HON'BLE U.S. TRIPATHI, J.
THE HON'BLE V.N. SINGH, J.

Habeas Corpus Writ Petition No. 44365 of
2002

Raju

...Petitioner
Versus
District Magistrate, Mathura and others

 ...Respondents

Counsel for the Petitioner:
Sri S.K. Agarwal

Counsel for the Respondents:
Sri B.N. Singh, S.S.C.
Sri P.K. Sharma
A.G.A.

Constitution
of
India,
Article
226Criminal
Law-detention
ordersatisfaction
of
detaining
authoritynature
of
incident
antecedents
and
apprehension of repeating tendency, are
relevant factors-indicate that petitioner
would again indulge in similar activitiesCompelling necessity before detaining
authority- petition dismissed.

Held- Para 16

Therefore, the previous as well as
subsequent conduct of the petitioner
indicated
that
he
was
indulged
in
realizing Chowth from the shopkeepers
and he who dared to oppose him and his
associates, he would be done to death.
These activities of the petitioner were
thus
sufficient
material
to
record
satisfaction of the detaining authority
that on release on bail the petitioner
would again indulge in similar activities
prejudicial to the maintenance of public
order and thus there were compelling
necessary before the detaining authority
to pass the detention order.
Case laws discussed:
1990 SCC (Crl.) 372;
2000 (Suppl.) ACC 266
JT 1999 (8) SC 252;
1990 SCC 249;
1990 (27) SCC 67;
1998 SCC (Crl.) 178

(Delivered by Hon'ble U.S. Tripathi, J.)

1. This writ petition has been filed
by the petitioner for quashing his
detention order dated 12.7.2002, passed
by
District
Magistrate,
Mathura,
respondent no. 1, under Section 3 (2) of
National Security Act.

2. The petitioner was served with the
grounds of detention along with the order
of detention, which stated that on
28.4.2002
at
about
3.30
p.m.
the
petitioner along with his associates
Jamuna, Kanja and Jatwar armed with fire
arms came to the grocery shop of Pachan
Kumar Agarwal, situated at Mohalla
Hathi Darwaza Bazar, Goverdhan for
realizing Chowth. The petitioner and his
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INDIAN LAW REPORTS ALLAHABAD SERIES [2003
508
associates abused and said Pachan Kumar
Agarwal for refusal to pay 500/- as
Chowth and caused injuries to them. He
also exhorted his associates Jamuna and
Kanja to kill and fire on Govind Prasad .
Govind Prasad was seriously injured and
fell down. Complainant, Pachan Kumar,
his father Lakkhi Lal and other customers
were also injured. The petitioner and his
associates threw away the articles stored
in the shop of complainant. The incident
took place in a busy market situate at
Parikrama Marg and a sense of fear and
terror was created. Shopkeepers left their
shop and started running helter skelter.
The pilgrims performing parikrama of
Goverdhan Parvat were also affected and
they started running helter skelter in the
mid of parikrama. On account of dare
devil act of the petitioner and his
associates, a sense of fear and terror was
created
in
Kasba
Goverdhan
and
shopkeepers were forced to pay chowth to
him. On previous occasions also the
petitioner
and
his
associates
had
terrorized the complainant and his family
members regarding realization of chowth.
During treatment of his injuries Govind
Prasad died. On the report of the incident
a case at crime no. 216 under section 384,
307, 323 and 504 IPC was registered at
P.S. Goverdhan, which was altered under
section 302/34 IPC, after the death of
Govind Prasad.

3. On 30.4.2003 at about 7.30 p.m.
when the complainant Om Prakash was
taking out some articles from his godown, situated at Barsana Road the
petitioner and his associates went there
and threatened him saying that he was
doing pairvi in the case of death of his
brother and in case he did not stop doing
pairvi, he would not be spared alive. The
above incident was witnessed by nearby
shopkeepers. Feeling them unsecured on
account of act of petitioner and his
associates several traders and citizen of
Kasba Goverdhan had moved a joint
application before the Station Officer,
P.S. Goverdhan that they apprehended
danger of their life from the petitioner and
his associates. On the above report a case
at crime no. 217 of 2002, under section
504 and 506 IPC was registered at the
police station.

4. The petitioner was detained in
District Jail Mathura in connection with
case crime no. 216 of 2002 and 217 of
2002 and was attempting to get him
released
on
bail.
There
was
real
possibility of his being released on bail
and after release on bail of indulging him
in similar activities prejudicial to the
maintenance
of
public
order.
The
petitioner was also informed that he had a
right to make representation to the
Detaining Authority, State Government,
Central Government and Advisory Board.

5. We have heard Sri S.K. Agarwal,
learned counsel for the petitioner, learned
AGA for the respondent no. 1,2 and 3 and
learned
Standing
Counsel
for
the
respondent no. 4, Union of India and have
perused the record.

6. Learned counsel for the petitioner
raised following grounds for challenging
the detention order:-

1. The detention order was passed on
some extraneous consideration which
were not based on any material on
record and the aforesaid extraneous
material placed before the detaining
authority might have influenced his
mind,
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2 All] Raju V. District Magistrate, Mathura and others
509
2. At the time of passing of detention
order no bail application moved on
behalf of the petitioner was pending
and the police had concocted a forged
bail application to create a ground for
passing detention order,
3. There were no sufficient material and
compelling
necessity
before
the
detaining authority to record his
satisfaction that after release on bail
the petitioner would indulge in similar
activities
prejudicial
to
the
maintenance of public order.

Point No. 1.

7. It was contended by the learned
counsel for the petitioner that detaining
authority had passed the detention order
on some extraneous consideration as the
material placed before him indicated that
the petitioner and his associates had
terrorized the complainant and his family
members on the point of realization of
chowth, but there was no material on
record and, therefore, the detention order
is bad in law. He also placed reliance on
Apex Court decision in Vashistha Narain
Karwaria Vs. State of U.P. and another,
1990 SCC (Crl.) 372. In the said case the
letters submitted by the SHO to the Senior
Superintendent
of
Police
contained
averments that Vashistha Narain Karwaria
@ Bhukkhal was a hardened criminal and
had a gang. In his gang his son Kapil and
two other big offenders Ram Chandra
Tripathi and Gaya Prasad were included.
Those people often used to commit
heinous crime by which terror and fear
prevailed in the people. Many crime were
registered
against
Vashistha
Narain
Karwaria in may police stations. On the
above facts it was held that no particulars
or details were given in the documents
enclosed with the ground of detention in
regard
to
the
alleged
many
of
cases/offences
said
to
have
been
registered in various police stations
against him and in regard to the
allegations that he was hardened criminal
and had a gang often committing heinous
crimes and it had become habit to
detenue, though not referred to in the
grounds
of
detention
might
have
influenced the mind of the detaining
authority to some extent one way or the
other in reaching subjective satisfaction to
take decision of directing the detention of
the detenue.

8. Further reliance was placed on
Division Bench decision of this Court in
Sabit Vs. District Magistrate, Rae Bareli,
2000 (suppl) ACC 266. In the said case
SHO who was the sponsoring authority in
his letter addressed to the Superintendent
of Police Rae Bareli which was ultimately
sent to the District Magistrate had
mentioned that the petitioner had become
a person of criminal tendency. On the
above facts it was held that the District
Magistrate considered the extraneous
material while passing the detention order
against the petitioner, which vitiated the
subjective
satisfaction
rendering
the
detention order invalid. In the instant case
the report of the Station Officer P.S.
Goverdhan has not been annexed along
with writ petition. However, the report of
the Sponsoring Authority (SSP, Mathura)
dated 8.7.2002 has been annexed along
with the writ petition which contained
mention of the incident in question. The
facts mentioned in the report of the
Sponsoring Authority are based on the
report of the case crime no. 217 of 2002
lodged by Om Prakash at P.S. Goverdhan
as well as the report of case crime no. 216
of 2002, under section 384, 307, 323 and
504 IPC. It is clearly mentioned in the
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INDIAN LAW REPORTS ALLAHABAD SERIES [2003
510
said report that prior to ten days of the
occurrence of the said case the petitioner
had come to the shop of the complainant
and had demanded Rs 500/- as Chowth.
When the complainant refused to pay the
above money, the petitioner threatened
him. It is also mentioned in the said report
that prior to it the petitioner and his
associates had realized Chowth from the
Shopkeepers of the market and due to fear
and terror of petitioner and his associates
no body could dare to raise voice against
him. It is also mentioned in the report of
case crime no 217 of 2002 that on
30.4.2002 (after incident of case crime no.
216 of 2002) the petitioner along with his
associates
came
to
the
shop
of
complainant, Om Prakash, the brother of
Govind Prasad deceased at about 7.30
p.m. and threatened him saying that he
was doing pairvi in the murder case of his
brother and in case he did not stop doing
pairvi of the said case he would not be
spared. As such the facts mentioned in the
grounds of detention are based on
material placed before the detaining
authority and it can not be said that there
was any extraneous matter in the report of
the sponsoring authority which could
prejudice the mind of the detaining
authority in passing detention order. The
decisions relied on by the learned counsel
for the petitioner are thus not applicable
to the facts of the present case.

Point No. 2.

9. Learned counsel for the petitioner
contended that the petitioner had not
moved any bail application in the court
and no bail application was pending at the
time of passing of the detention order. He
further contended that the informant of
the case in collusion with the police got
some application on behalf of the
petitioner moved so that the petitioner
could be detained under National Security
Act, that the petitioner on coming to know
this fact made a complain to the Sessions
Judge to the effect that the petitioner had
never engaged Sri Chhiddi Singh Jais as
his Advocate. The said Advocate was
own man of the police and informant,
therefore, there was no ground for the
detaining authority to pass detention order
as the petitioner was in jail and had not
applied for bail.

It may also be mentioned at this
stage that in para 23 of the writ petition
the petitioner has alleged that he never
applied for bail and no application for bail
on behalf of the petitioner was pending at
the time his detention order was passed,
but it is also mentioned in the writ petition
that the petitioner was granted bail on
7.9.2002. The bail order dated 7.9.2002
has also been annexed as Annexure -6 to
the writ petition. It is not the case of the
petitioner that the bail order dated
7.9.2002 was passed on any application
which was not moved by him. However,
the petitioner has not filed bail application
on which the order dated 7.9.2002 was
passed.

10. The pendency of bail application
is not necessary for recording satisfaction
of the detaining authority that there was
real possibility that the petitioner would
be released on bail.

11. It has been held by Apex Court
in the case of Ahmad Nassar Vs. State of
Tamil Nadu and others, JT 1999 (8) SC
252 that the matter of testing satisfaction
of any detaining authority it has to be
decided on the facts and circumstances of
each case in spite of rejection of bail by a
court once it is open to the detaining
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2 All] Raju V. District Magistrate, Mathura and others
511
authority to come to his satisfaction based
on the contents of the bail application that
there is likelihood of defence being
released on bail. Merely because no bail
application was then pending is no
premises to hold that there was no
likelihood of his being released on bail.
The words ' likelihood to be released'
connote chance of being bailed out in case
the pending bail application or in case it
is moved in future is decided. The word
likely' shows that it can be either way. So
without taking any such risk if on the
facts and circumstances, the type of crime
to be dealt under the criminal law
including contents of the bail application,
each and compositely all would constitute
to be relevant material for arriving at the
conclusion.
The
contents
of
bail
application would vary from one case to
the other coupled with the different set of
circumstances in each case. It may be
legitimately possible in a given case for
the detaining authority to draw an
inference that there is likelihood of
detenue being released on bail.

12. In the instant case the detaining
authority has recorded his satisfaction as
below:-

"That you Raju are detained in
District Jail in connection with case crime
no. 216 of 2002 under section 383, 307,
323, 504 and 302/34 IPC, relating to P.S.
Goverdhan and are attempting to obtain
bail. There is possibility that you would
be released on bail very shortly and would
come out "......

13. In view of the facts and
circumstances of the case and wordings of
the above satisfaction of the detaining
authority that there is likelihood of the
petitioner being released on bail can not
be said to be based on no relevant
material.
It
is
also
evident
that
subsequently the petitioner was granted
bail in the above case on 7.9.2002. The
point is answered accordingly.

Point No. 3

14. The contention of the learned
counsel for the petitioner was that there
was no material on record to the effect
that the petitioner if released on bail
would
likely
indulge
in
activities
prejudicial to the maintenance of public
order and, therefore, the satisfaction of the
detaining authority on this score was
wrong. Reliance was placed on the Apex
Court decision in Dharmendra Sugan
Chandra Chelawat Vs. Union of India
1990 SCC 249, Smt. Shashi Agrawal Vs.
State of U.P. 1988 SCC (Crl.) 178 and
Agya Ram Verma Vs. Union of India.

15. It is ruled out in the above
decision that the detention order can be
passed against a person if he is in jail
provided (i) the detaining authority was
aware of the fact that the detenue is
already in detention (ii) there were
compelling
reasons
justifying
such
detention despite the fact that the detenue
was already in detention that expression
compelling reasons in context of making
of an order of authority concerned of a
person already in custody implies that
there must be cogent material before the
authority on the basis of which it may be
satisfied that (a) the detenue is likely to be
released from custody in the near future
and (b) taking into account the nature of
the antecedent activities of the detenue, it
is likely that after his release from
custody be would indulge in prejudicial
activities and it is necessary to detain him
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INDIAN LAW REPORTS ALLAHABAD SERIES [2003
512
in order to prevent him from engaging in
such activities.

16. The satisfaction of the detaining
authority that the petitioner, if released on
bail would indulge in similar activities
prejudicial to the maintenance of public
order depends upon the nature of incident
and antecedents and apprehension of
repeating tendency. In the instant case
there were materials before the detaining
authority that prior to the incident of
28.4.2002 the petitioner had demanded
chowth from the brother of the deceased
as well as from other shopkeepers. It is
also clear from the material on record that
after above incident of 28.4.2002 again
the petitioner threatened the complainant
of the case with dire consequences, in
case he did pairvi of the murder case of
his brother. Therefore, the previous as
well as subsequent conduct of the
petitioner indicated that he was indulged
in realizing Chowth from the shopkeepers
and he who dared to oppose him and his
associates, he would be done to death.
These activities of the petitioner were thus
sufficient material to record satisfaction
of the detaining authority that on release
on bail the petitioner would again indulge
in similar activities prejudicial to the
maintenance of public order and thus
there were compelling necessary before
the detaining authority to pass the
detention order.

17. In view of our findings on the
above points we find no force in the writ
petition.

18. The writ petition is accordingly
dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.07.2003

BEFORE
THE HON'BLE A.K. YOG, J.
THE HON'BLE UMESHWAR PANDEY, J.

Civil Misc. Writ Petition No. 24112 of 1988

Kailash Nath Gupta

...Petitioner
Versus
Enquiry Officer (Sri R.K. Rai) Allahabad
Bank, Regional Officer, Allahabad and
others.

 ...Respondents

Counsel for the Petitioner:
Sri A.S. Rai
Sri Rajendra Kumar

Counsel for the Respondents:
Sri R.K. Kakkar
Sri S.K. Kakkar

Constitution
of
India
Article
226-
Service- dismissal- for infraction at dutycharges not gravious warrant dismissalService record unbleshished- petitioner
compelled to enter into litigation upto
Apex
Court-meanwhile
retired-heldpetitioner
entitled
to
notional
reinstatement-and all benefit, privileges
in terms of money, arrears of salary etc.-
treating him in continues service till his
reinstatement-entitled to all post retiral
benefit as if without break in serviceBank,
however,
entitled
to
deduct
Rs.46,000 for losses on account of
petitioners
negligence-petition
partly
allowed.

Held- Para 9, 10

(A) The petitioner had throughout an
unblemished service record.

(B) Infraction
of
duty,
if
any,
responsible for loss to the Bank was not
of a gravity or of serious/extreme nature
which warranted dismissal from service.

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