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Sohrab Ali Molla Vs. District Magistrate 24-parganas and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata High Court
Decided On
Judge
Reported in1976CriLJ1614
AppellantSohrab Ali Molla
RespondentDistrict Magistrate 24-parganas and ors.
Excerpt:
- .....lethal weapons formed ,an unlawful assembly at mayda, joynagore p. s. and attempted to kidnap one bipra patra of mayda from the local high school at the point of pipe gun with a view to killing him as bipra patra had refused to participate with you in your act of vandalism. some local men came forward to save shri patra from your clutches whom you started firing indiscriminately from your pipe gun at them. as a result the local people became panicky and some of the villagers left the village temporarily. thus your act of violence created much panic and terror in the locality which disturbed the public order.2. mr. mookerjee, learned advocate appearing for the petitioner raised various contentions. however for the purpose of disposal of this case we need refer to only one of them. it was.....
Judgment:

Bimal Chandra Basak, J.

1. In this application for a writ in the nature of Habeas Corpus the detenu has challenged an order of detention passed by the District Magistrate, 24-Parganas on 18th September, 1974 in exercise of the powers conferred under Sub-section (1) read with Sub-section (2) of Section 3 of the Maintenance of Internal Security Act, 1971 (hereinafter referred to as the said Act). The said order was passed with a view to preventing the detenu from acting in any manner prejudicial to the maintenance of public order. The solitary incident referred to in the ground is set out hereinbelow:

On 12-7-74 at about 17-30 hrs. you along with your associates being armed with pipe gun, bombs, and other lethal weapons formed ,an unlawful assembly at Mayda, Joynagore P. S. and attempted to kidnap one Bipra Patra of Mayda from the local High School at the point of pipe gun with a view to killing him as Bipra Patra had refused to participate with you in your act of vandalism. Some local men came forward to save Shri Patra from your clutches whom you started firing indiscriminately from your pipe gun at them. As a result the local people became panicky and some of the villagers left the village temporarily. Thus your act of violence created much panic and terror in the locality which disturbed the public order.

2. Mr. Mookerjee, learned Advocate appearing for the petitioner raised various contentions. However for the purpose of disposal of this case we need refer to only one of them. It was alleged by Mr. Mookerjee, with reference to the averments to that effect in the petition, that there is no such person named Bipra Patra in village Mayda and accordingly the ground must be held to be baseless. This is a very serious allegation and everything centres round the person known as Bipra Patra. In this case the Rule was issued as long back as on 8th of January, 1975. Notices of the Rule were issued on the 18th of January, 1975. The matter was mentioned before us on 24th of June, 1975 and it was directed that this matter would appear in the list on 4th of July, 1975. Since then it has been appearing in our list. In spite of that the District Magistrate concerned, whose headquarter is not far off from here, has not chosen to affirm any affidavit in this proceeding. Generally speaking the sufficiency or correctness of the ground of detention cannot be gone into. But it cannot be said that the ground is completely immune from judicial reviewability. If the ground is found to be baseless, the Court can set aside the order. Accordingly if there are allegations to that effect in the petition, it is incumbent upon the detaining authority to affirm an affidavit controverting such allegations. In the absence of any such affidavit the said allegations remain uncontroverted and unanswered and the Court must accept the correctness of the same. Accordingly in the present case, we must accept the allegations made in the petition in the absence of such affidavit. For the reasons aforesaid we must hold the detention to be illegal. Accordingly we allow the application and make the Rule absolute. Let the detenu be released forthwith.

N.C. Mukherji, J.

3. I agree.


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