# Verma v. State of U.P. and others

- **Citation:** (2002) 2 ILRA 453
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2002-07-19
- **Bench:** S.K. Agarwal, K.K. Misra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/verma-v-state-of-u-p-and-others-39951
- **Pages:** 5

## Headnote

National Security Act 1980- Section 3
(2)- Detention Order simply based on
apprehension
that
detune
shall
be
allowed on bail- and if allowed on bail
there shall be possibility of Public Order-
not simply illogical but also unsound-
detention
order
being
passed
on
mechanical manner quashed.

Held - para 11

In this connection the learned counsel
also submitted that since the detenu was
already in custody in connection with a
heinous murder case no reasonable
person can arrive at the conclusion that
he was likely to be released on bail and
the statement of the detaining authority
in the ground that the detenu is likely to
be released on bail or he is released on
bail there is possibility of public order
being in danger is not only simply
illogical but also unsound.
Case law discussed:
JT 1994 (I) ASC 350

## Text

http://www.allahabadhighcourt.nic.in
2 All] Malkhan Singh V. D.M., Fatehpur and others
453
Justice to direct the writ petition, which
has been instituted at Lucknow to be
transferred to Allahabad.

31. Considering the aforesaid
glaring
situation
and
facts
and
circumstances of the case, I am of the
opinion that this is a fit and appropriate
case where order should be made for
hearing of the writ petition at Allahabad.

32. Accordingly, the petition under
Clause 14, of the Amalgamation Order is
allowed and the writ petition, being writ
petition no. 1678 (SB) of 1998,Dr. Manju
Verma Vs. State of U.P. and others,
which has been filed at Lucknow Bench,
is directed to be transferred to Allahabad
for hearing, which shall be listed for
hearing before the appropriate Court.

33. Office is directed to transmit the
necessary records forthwith to Allahabad
High Court.
---------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 19.7.2002

BEFORE
THE HON'BLE S.K. AGARWAL, J.
THE HON'BLE K.K. MISRA, J.

Habeas Corpus writ petition no. 324 of 2002

Malkhan Singh

...Petitioner
Versus
District Magistrate, Fatehpur and others

 ...Respondents

Counsel for the Petitioner:
Sri Jagdish Singh Sengar
Sri Ajit Kumar Singh Solanki

Counsel for the Respondents:
Sri A.K. Tripathi
A.G.A.
National Security Act 1980- Section 3
(2)- Detention Order simply based on
apprehension
that
detune
shall
be
allowed on bail- and if allowed on bail
there shall be possibility of Public Order-
not simply illogical but also unsound-
detention
order
being
passed
on
mechanical manner quashed.

Held - para 11

In this connection the learned counsel
also submitted that since the detenu was
already in custody in connection with a
heinous murder case no reasonable
person can arrive at the conclusion that
he was likely to be released on bail and
the statement of the detaining authority
in the ground that the detenu is likely to
be released on bail or he is released on
bail there is possibility of public order
being in danger is not only simply
illogical but also unsound.
Case law discussed:
JT 1994 (I) ASC 350

(Delivered by Hon'ble K.K. Misra, J.)

1. Heard Mr. J.S. Sengar, learned
counsel for the petitioner and Mr. A.K.
Tripathi, appearing for the State.

2. The petitioner Malkhan Singh
Thakur has filed this Habeas Corpus
petition for being set at liberty and
quashing of the order of detention dated
27.2.2001 annexed as Annexure-1 to the
writ petition passed under section 3 (2) of
the National Security Act, 1980 (in short
theAct)
by
the
District
Magistrate,
Fatehpur.

3.

The
petitioner
made
a
representation which was made in the
month of November 2001. Precise date
cannot be known since it is not dated. It
was rejected. The State Government
approved the order of detention on
30.10.2001, i.e. within 12 days from the
http://www.allahabadhighcourt.nic.in
 INDIAN LAW REPORTS ALLAHABAD SERIES [2002
454
date of passage of detention order. The
approval of the detention order was
communicated to the petitioner through
the District authorities by the State
Government by a Radiogram message and
a letter both dated 5.10.2001. The paper
received
by the
District Magistrate
Fatehpur were also sent to the Central
Government which were received by the
Secretary Ministry of Home Affairs, New
Delhi on 7.10.2001, within 7 days from
the date of its approval by the State
Government that is within the period
required under section 3 (5) of the Act.
All this goes to show that the provision of
Section 3 (4) and 3(5) of the Act referred
to above were duly complied with. The
matter was referred to the Advisory Board
by the State Government well within a
period of 21 days to be reckoned from the
date of actual detention in pursuance to
the above order. The Advisory Board
found that there was sufficient cause for
the detention of the petitioner. It thus
approved the aforesaid detention order.
After
taking
into
consideration
the
recommendation of the Advisory Board
and
other
material
on
record, the
detention of the petitioner for a period of
12 months was approved by the State
Government. The representation made by
the petitioner was rejected and there was
no delay in forwarding and processing it
by the competent authority nor any such
challenge towards it was ever pressed.
Three under noted points have been
convassed before this Court by learned
counsel for the petitioner.

1.
The detention order is vague and was
passed without application of mind.
2.
That in the detention order it has not
been mentioned that the petitioner has
applied for bail or is likely to apply and
likely to be released on bail and thus the
detention order is perse bad and illegal as
well. Since there was no urgency. He was
already in jail.
3.
The incident in respect of which the
petitioner was detained under section 3 of
the Act does not pertain to the disturbance
of public order, but at best it could be
treated as an incident of breach of law and
order and consequently the provision of
Section 3 (2) of the Act should not have
been invoked.

4. A perusal of the detention order
would show that the detenu was in
judicial custody in connection with an
offence under section 396 IPC and while
he was in jail, impugned' detention order
was served upon him. An order of
detention can validly be passed against a
person in custody depending upon the
circumstances of each case. In case of
Kamrunnissa and another vs. Union of
India and others, reported in JT 1990 (4)
SC 7 it has been held by the Hon'ble
Supreme Court that in case a person is in
custody a detention order can validly be
passed (1) if the authority passing the
order is aware of the fact that he is
actually in custody, (2) if he has reason to
believe on the basis of reliable material
placed before him (a) that there is a real
possibility of his being released on bail
and (b) that on being so released he would
in all probability indulge in prejudicial
activity and (3) if it is felt essential to
detain him to prevent him from so doing.
If the authority passes an order after
recording his satisfaction in this behalf,
such an order cannot be struck down on
the ground that the proper course for the
authority was to oppose the bail and if
bail is granted notwithstanding such
opposition, to question it before a higher
Court.
http://www.allahabadhighcourt.nic.in
2 All] Malkhan Singh V. D.M., Fatehpur and others
455
5. From a catena of decision of this
Court it is clear that even when a person
is in custody a detention order can validly
be passed, if the authority passing the
order is aware of the fact that he is
actually in custody, if he has reason to
believe on the basis of reliable material
that there is possibility of him being
released on bail and on being so released
the detenu in all probability will indulge
in prejudicial activity disturbing public
order and if the authority passes an order
after recording his satisfaction, the same
cannot be struck down. But the facts of
the present case are quite different from
the above case. The detenu was involved
in case Crime No. 138 of 2001 under
Section 396 IPC PS Khaga, district
Fatehpur. In such type of cases in which
the detenu was involved no subordinate
court
ordinarily
grants
bail.
The
satisfaction of the detaining authority
arrived at in the detention order is quite
baseless which goes to show that he has
not properly applied his mind while
passing the detention order.

6. There is no mention in the
detention order that the detenu has made
any attempt to secure bail for himself. The
fact of pendency of any bail application
was not asserted in at all. It only refers to
that on being released on bail there is
every possibility of breach of public order
by him. Thus presence of pendency of a
bail application and a possibility of his
release on bail were crucial circumstances
for the detaining authority to draw any
such conclusion that on being so released
he is likely to indulge in any activity
prejudicial to public order. Unless, these
two facts are present in the case the above
conclusion is not permissible in law. In
grounds
of
detention
above
two
circumstances are totally lacking therefore
the inference about the last ingredient is
wholly without any basis. It clearly
indicates that the impugned order was
mechanically passed.

7. Learned A.G.A. tried to divert us
by taking us through the report of the
S.H.O. wherein as annexure a bail
application is mentioned. We have given
our
anxious
consideration
to
the
submission. We find ourselves unable to
accept it. On the contrary we are
convinced that it further supports the fact
that the detaining authority has not
examined it at all otherwise this fact must
have found a mention in the grounds of
detention. We are fortified in our
conclusion from this fact also that the
report of the S.H.O. P.S. Khaga, Fatehpur
did refer to these facts, therefore, the
omission by detaining authorities to
mention these two facts in his grounds
clearly
prove
that
he
has
just
mechanically signed the grounds prepared
by member of his staff. He apparently did
not even examine any report or appended
to accordingly rectify the grounds.

8. We are further supported in our
conclusion by yet another fact. The
observation
made
by
the
detaining
authority in the detention order, AAP
DWARA
PURV
ME
BHI
LOMHARSHAK GHATNAI KI GAI
HAIN'. To support its contention the
prosecuting agency did not send any
material with the recommendation for his
detention. The police agency has also sent
an extract relating to crime number 3082
of 1984 showing only this much that in
the year 1984 the petitioner was challaned
vide charge sheet no. 79 of 1984 dated
26.7.1984. This extract was filed by the
petitioner as Annexure 29 to his writ
petition.
http://www.allahabadhighcourt.nic.in
 INDIAN LAW REPORTS ALLAHABAD SERIES [2002
456
9. In this connection it is to be added
that police agency withheld the relevant
material from the detaining authority. It
exposes the hollowness of this charge
because in S.T. No. 299 of 1994
pertaining to above challan the petitioner
was acquitted because the so called got up
witness did not come to support the
prosecution case. The relevant judgement
was filed by the petitioner as Annexure 30
to the writ petition. The copy of the
judgement was not sent to the detaining
authority by recommending authority.
This goes to show that the satisfaction
made by the detaining authority in his
grounds that 'AAP DWARA PURVA ME
BHI
LOMHARSHAK
GHANTNAI
KIGAI HAIN' was not only baseless but
also without any supportive material order
was, therefore, passed without applying
its mind in a most mechanical manner. A
reckless order differs in many ways from
a mechanical order. A mechanical order
may be protected from a civil, criminal
action but a reckless order cannot be so
guaranteed by our Constitution to be free.
Therefore,
any
recklessly
careless
exercise of its authority to detain any
citizen by a competent authority is not
simply to be decried but something more
is required to be done by the courts in
such cases. The case at hand is a glaring
example of such reckless exercise of
authority.

10. Despite the fact that the bail
application moved by the applicant in
court of Session had no chance of its
success in view of the trend prevailing in
the lower court and also due to offence's
heinous character. The district authorities
just to shut the true version got a
detention order dated 27.9.2001 slapped
on the detenu. The purpose behind
recommending
his
detention
under
National Security Act was positively
altered. He was released on bail long after
the service of this order by one of us
(Hon'ble S.K. Agarwal, J.).

11. In a recent judgement of
Supreme Court reported in JT 1994 (1)
AS C. 350, Veeramani Vs. State of Tamil
Nadu it has been held that by making a
sweeping statement that the petitioner is
likely to be released on bail the detaining
authority cannot pass a detention order
and when there is no likehood of the
detenu being released on bail from
custody, the order of detention is illegal in
as much as there is no proper application
of mind. In this connection the learned
counsel also submitted that since the
detenu was already in custody in
connection with a heinous murder case,
no reasonable person can arrive at the
conclusion that he was likely to be
released on bail and the statement of the
detaining authority in the ground that the
detenu is likely to be released on bail or if
he is released on bail there is possibility
of public order being in danger is not only
simply illogical but also unsound.

12. In this context learned counsel
has also relied upon a unreported
judgement in Writ petition no. 604 of
1992- Rivadeneyra Recardo Agustin Vs.
Government of the National Capital
Territory of Delhi and others decided on
8.4.1993. In that case in the grounds it
was only mentioned that there was a
possibility of the detenu being released in
case he moves a bail application. This
Court observed that since the grounds did
not indicate that such release was likely or
that it was imminent and that on a mere
possibility the detention order could not
have been passed. The Bench also
examined the relevant file and observed
http://www.allahabadhighcourt.nic.in
2 All] Sabir V. Jaswant and others
457
that there was no material indicating that
the release of the petitioner was likely.

13. The third contention raised by
the learned counsel for the petitioner that
the facts of the present case do not in any
manner cause any breach or apprehension
of breach of public order. It is not a
breach of public order but is a case of
breach of law and order. We are not
inclined to go into the merits of this last
submission made by detenu's counsel,
particularly when the Session Trial is
pending in the court below and if we enter
into
the
merits
of
the
case,
any
observation made by us may prejudice the
parties in prosecuting its case in the court
below. Suffice it to say that from the facts
and circumstances discussed above we are
fully inclined to accept the submission.

14. In the light of the discussion
made above we find that the subjective
satisfaction arrived at by the District
Magistrate, Fatehpur in passing the
impugned detention order dated 27.9.2001
is unwarranted in the eyes of law. It is
passed mechanically without applying its
mind. It is hereby quashed.

15. The petitioner is in jail and has
already served out more than 8 months in
pursuance to this impugned detention
order, he shall be set at liberty forthwith
unless wanted in some other case or cases.
--------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 18.7.02

BEFORE
THE HON'BLE B.K. RATHI, J.

Criminal Misc. writ petition No. 6302 of
2002

Sabir

...Petitioner
Versus
Jaswant and others
 ...Respondents

Counsel for the Petitioner:
Sri Tej Pal

Counsel for the respondents:
Sri S.P. Tiwari
Sri Veer Singh
A.G.A.

Code of Criminal Procedure- Section 156
(3)- an order u/s 156 (3) of the Code has
the complexion of a judicial order
amenable to revision jurisdiction under
section 397 of the Code.
Held in para 10

There is no illegality in the order of
Incharge Sessions Judge in admitting
the
revision
and
also
staying
the
operation of the order.
Case law referred:
JT 1997 (7) SC 85
2000 (41) ACC 435

(Delivered by Hon'ble B.K. Rathi, J.)

1. Heard Sri Tejpal , learned counsel
for the petitioner, Sri S.P. Tiwari and Sri
Veer Singh, learned counsel for the
respondents.

2.

The
petitioner
moved
an
application under section 156 (3) Cr.P.C.
for
registration
of
the
case
and
investigation against the respondents for
offences under sections 147, 148, 149,