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Bhawani Shankar Pandey Vs. State of U.P. and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad High Court
Decided On
Judge
Reported in1982CriLJ1830
AppellantBhawani Shankar Pandey
RespondentState of U.P. and ors.
Cases ReferredHansmukh v. State of Gujarat
Excerpt:
.....him the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order to the appropriate government. the failure of the detaining authority to supply such copy was held to vitiate the detention and the habeas corpus petition was allowed. 9. it is also well settled that even though a document or some material is not expressly referred to in the grounds of detention, yet if an express demand for its supply is made by the detenu and the court is not of the opinion that it is irrelevant, such document or material must be supplied. this right was clearly recognised in the case of bhawarlal ganeshmalji v. state of tamil nadu 1979crilj462 in which the detenu asked for better par ticulars and the court held that if the detenu..........would also entail non-compliance of the other requirement, namely, affording an opportunity of making representation. it is platitudinous that the opportunity, of representation means the opportunity of making effective representation. therefore, if the grounds themselves refer to any document or material on which the detention is based, it is a necessary corollary that those documents or materials must also be communicated to the detenu, otherwise the detention order would be doubly vitiated. firstly, it will not be a compliance of the requirement of furnishing the grounds and secondly, it would also erode the detenu's right of making an effective representation. in the case, of smt. ichhu devi choraria v. union of india : [1981]1scr640 , it was observed, in paragraph 6 of the.....
Judgment:

M.N. Shukla, J.

1. This is a petition under Article 226 of the Constitution praying for the issue of a writ of Habeas Corpus for the release of Bhawani Shankar Pandey, who had been detained by an order of detention dated 28-7-1981 passed by the District Magistrate, Basti under Section 3(2) of the National Security Act, hereinafter referred to as 'the Act'.

2. A number of points were canvassed before us but since the main ground on which the detention is based is the first ground mentioned in Annexure 1 to the petition and the case can be disposed of on that point alone, it is not necessary to refer to the other grounds and submissions that were raised. Ground No. 1 of the impugned detention order reads:

On 8-2-1979 at about 8.45 in the morning in village Amarha Police Station Mehandabal district Basti you and your four other companions armed with guns, lathis and Kattas formed an unlawful assembly and reached the fields of Sarvjit Pandey in the same village and committed the murder of Sarvjit and Suryasheshar and caused injuries to Dhruv Narain Pandey, After the assault the assailants fled. A report was lodged by Dhruv Narain son of Jugeswar Fandey at Police station Mehandabal under Sections 147/148/149/302 and 323 I. P. C The case was investigated and the accused were charge-sheeted and prosecuted but in trial the eye witnesses turned hostile on account of the horror of the accused and by its judgment dated 13-3-1980 the Court acquitted the accused on account of paucity of evidence.

3. The order of detention concludes with the observation of the District Magistrate that on account of the grounds noted in his order he was satisfied that the accused were likely to commit such acts as would be prejudicial to the maintenance of public order and therefore it was necessary that an order should be passed directing that the accused persons (including the petitioner) be detained. The gravamen of the charge, therefore, against the petitioner was that he was responsible for a series of acts particularly the one incorporated in ground No. 1 which caused such a terror that evidence could not be procured against the petitioner and he could not be brought to book. In other words, the petitioner had become such a terror in the locality that nobody could dare to come in the witness box against him. The accent was clearly on the reputation or notoriety which the petitioner had earned on account of his subversive and violent activities which stood in the way of an effective trial and dispensation of justice. In the circumstances according to the subjective satisfaction recorded by the District Magistrate in the impugned order it was necessary for the maintenance of public order that such person should be detained, It needs be emphasised that in ground No. 1 of the detention order served on the petitioner there was a specific reference to the judgment of acquittal dated 13-3-1980. Therefore so far as ground No. 1 is concerned, it would have to be examined as to whether there was any material before the Dist. Magistrate on the basis of which it could be reasonably held that the petitioner was really such a terror as alleged and whether this had resulted in persuading the witnesses to keep away or resile from their statements. In other words, it has to be seen whether the judgment of acquittal was based on non-availability of evidence, the alleged cause of which was the horror excited by the petitioner.

4. Although the detention order had been passed earlier, the petitioner actually surrendered in the Court of the Chief Judicial Magistrate, Basti on 14-10-1981 on which date the detention order along with the grounds and other materials was served on him. The petitioner sent two representations against the detention order, one on 16-10-1981 and the other on 20-10-1981. In the latter representation dated 20-10-1981 the petitioner assailed the veracity of the incident which formed the basis of ground No. 1 of detention. In paragraph 10 of the representation it was specifically stated that the report dated 8-2-1979 which formed the basis of the prosecution was based on false allegations and that the petitioner had not committed any offence. It was further stated that in the Sessions Court all the prosecution witnesses had given their deposition freely and independently and it was wrong to allege that the eyewitnesses had turned hostile on account of the terror of the petitioner. On the other hand, it was averred, that all the accused persons had been honourably acquitted. In the representation dated 15-10-1981 the petitioner gave a list of documents, the copies whereof were demanded by him. Item No. 2 of this list was the order dated 13-3-1980 by which the Sessions Judge had acquitted the accused persons in the case relating to the murder of Sarvajit and others which was the foundation of ground No. 1. A counter-affidavit in the case was filed by Sri K.K. Randhar, District Magistrate, Basti in which be mentioned the documents of which copies had been supplied to the petitioner but, curiously enough, it does not contain any mention of a copy of the acquittal order dated 13-3-1980 being supplied to the petitioner. On the basis of these facts it has been strenuously urged by the learned Counsel for the petitioner that the crux of the charges against the petitioner on which the order of detention appears to have been passed was the terror attributed to him which made evidence not available and which eventually resulted in his acquittal in a heinous crimp. This allegation was emphatically refuted by the petitioner in his representation and, what is more, he expressly demanded a copy of the judgment of acquittal. It is transparent that the judgment alone could have revealed as to whether the petitioner had been acquitted because the witnesses were afraid of deposing freely against him and had, therefore, turned hostile. In the absence of that document there is absolutely no material on record on the basis of which the District Magistrate could have founded his subjective satisfaction that the petitioner was a menace to the public order.

5. It was submitted by the learned Government Advocate that the judgment aforesaid had been delivered, in a case in which the petitioner himself was, an accused and he could not possibly pretend ignorance thereof and so it was not the requirement of law that a copy of such judgment should have been supplied to him. Of course, the learned Government Advocate did not contend that the copy had actually, been supplied to him. The question, therefore, arises as to whether under the law it was incumbent on the detaining authority to supply a copy of this document, and whether in the absence of such copy the petitioner, would have been prevented from making an effective representation. After all the procedural safer guards provided under different statutes of preventive detention stem from the fundamental guarantee embodied in Article 22(5) of the Constitution. In case of failure to observe these safeguards the inevitable result would be that a detenu would be precluded from making an effective representation and a reasonable opportunity would be denied to him of attacking the order of detention. Courts have been extremely jealous in defence to the mandate of the Constitution in preserving the liberty of the citizen and where there is the slightest invasion of such liberty by failing to conform to the Constitutional imperatives the detention has always been struck down. We are unable to accede to the submission on behalf of the learned Government Advocate that it was not the requirement of law that a copy of judgment dated 13-3-1980 by which the petitioner was acquitted in the case under Section 302 I.P.C. should have, been supplied to the detenu. Section 8 of the Act which in essence is a reproduction of Article 22(5) provides:

8. Grounds of order of detention to be' disclosed to persons affected by the order; (1) When a person is detained in pursuance of a detention order, the authority making the order shall, as soon as may be, but ordinarily not later than five days and in exceptional circumstances and for reasons to be recorded in writing, not later than ten days from the date of detention, communicate to him the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order to the appropriate Government.

(2) Nothing in Sub-section (I) shall require the authority to disclose facts which it considers to be against the public interest to disclose.

6. The above provision enjoins two things. Firstly, that the grounds on which the detention order has been made shall he communicated to the detenu and secondly, that he shall be afforded the earliest opportunity of making a representation against the order to the appropriate Government. It follows that furnishing of the grounds of detention is not a routine formality. The grounds have to be clear, unambiguous and intelligible and if they suffer from vagueness or are unintelligible, it would amount to non-compliance of this requirement of law Secondly, furnishing of inadequate grounds would also entail non-compliance of the other requirement, namely, affording an opportunity of making representation. It is platitudinous that the opportunity, of representation means the opportunity of making effective representation. Therefore, if the grounds themselves refer to any document or material on which the detention is based, it is a necessary corollary that those documents or materials must also be communicated to the detenu, otherwise the detention order would be doubly vitiated. Firstly, it will not be a compliance of the requirement of furnishing the grounds and secondly, it would also erode the detenu's right of making an effective representation. In the case, of Smt. Ichhu Devi Choraria v. Union of India : [1981]1SCR640 , it was observed, in paragraph 6 of the report:

If there are any documents, statement or other materials relied upon, in the grounds of detention, they must also be communicated to the detenu, because being incorporated in the grounds of detention, they form part of the grounds and the grounds furnished to the detenu cannot be said to be complete without them. It would not therefore be sufficient to communicate to the detenu a bare recital of the grounds of detention but copies of the documents, statements and other materials relied upon on the grounds of detention must also be furnished to the detenu within the prescribed time.

7. The dictum was reiterated in the case of Kamla Kanhaiya Lal Khushalani v. Stale of Maharashtra : 1981CriLJ353 in these words:

It means that the detenu is to be informed not merely, as we said, of the inferences of fact but of all the factual materials which have led to the inferences of fact. If the detenu is not to be so informed the opportunity so solemnly guaranteed by the Constitution becomes reduced to an exercise in futility. Whatever angle from which the question is looked at, it is clear that 'grounds' in Article 22(5) do not mean were factual inferences but mean factual inferences plus factual material which led to such factual inferences.

8. In the instant case ground No. 1 furnished to the petitioner actually adverts to the decision dated 13-3-1980 by which the petitioner was acquitted in the criminal trial. Hence there could not be any justification for denying to the petitioner a copy of that document, particularly when it was specifically demanded. There is no substance in the contention of the State that since the petitioner himself was a party to that decision which ended in his acquittal, it would be a mere formality to ask for such a copy and to draw an adverse inference in the event of non-supply of the same. In the case of Mehrunissa v. State of Maharashtra : 1981CriLJ1283 the detenu made a grievance of the fact that a copy of the statement made by him in the enquiry under Section 108 of the Customs Act was not supplied to him. The argument ad dressed on behalf of the State was that the copy of the statement was not sup plied to the detenu as he was already aware of the contents of the document it being his own statement. This contention was repelled and it was held that the detenu was entitled to be supplied a copy of the document containing his statement. The failure of the detaining authority to supply such copy was held to vitiate the detention and the Habeas Corpus petition was allowed.

9. It is also well settled that even though a document or some material is not expressly referred to in the grounds of detention, yet if an express demand for its supply is made by the detenu and the Court is not of the opinion that it is irrelevant, such document or material must be supplied. This right was clearly recognised in the case of Bhawarlal Ganeshmalji v. State of Tamil Nadu : 1979CriLJ462 in which the detenu asked for better par ticulars and the Court held that if the detenu wanted any more particulars such as the name of the Intelligence Officer or other information, he could have well asked for the particulars be fore making his representation. In Icchu Devi Choraria v. Union of India : [1981]1SCR640 the grounds of detention referred, inter alia, to statements including two tape recorded conversations be tween the detenu and some other per sons. The detenu sent a representation to the Deputy Secretary requesting him to supply those statements and other materials to the detenu in order to en able him to make an effective represen tation, specifically requesting him to furnish copies of tape as also produce the original tapes for inspection. The representations were already disposed of and rejected but the copies of tapes were not supplied to the detenu, on the plea that since the tapes had been made available for inspection and played be fore the delenu, the request for supply of copies of the same was redundant. On these facts a contention was urged that since copies of tapes were not supplied to the detenu, it could not be said that the grounds of detention were served on him. This contention found favour with the Supreme Court and the Habeas Corpus petition was allowed. The same view was also expressed in Hansmukh v. State of Gujarat : 1980CriLJ1286 .

10. To sum up, the principal ground of detention of the petitioner was that he was such an incubus and a perpetra for of nightmarish depredations as to shake the citadel of public order. The basic material on which this charge was founded appeared to be the judgment of acquittal dated 13-3-1980 adverted to earlier, which is alleged to have been passed on account of the fact that the eye witnesses of the murder case had turned hostile. This judgment was manifestly the most important incriminating material which could have lent support to the charge against the petitioner and it was the primary duty of the State to supply a copy of that judgment to the petitioner. The failure to do so was a clear breach of the procedural safeguards provided in Section 8 of the Act which only reflects the fundamental guarantee enshrined in Article 22 of the Constitution. The petitioner was on that account materially handicapped in making an effective representation; hence his detention is illegal and cannot be sustained, We, therefore, allow this petition, set aside the order of detention and direct that the petitioner shall be set at liberty forthwith, unless wanted in any other case.


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