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2009 Supreme(All) 2415
[2009(7) ADJ 359 (DB)]
ALLAHABAD HIGH COURT
BEFORE : VINOD PRASAD AND Y.C. GUPTA, JJ.
ANJANI KUMAR SRIVASTAVA ....Petitioner
Versus
STATE OF U.P. AND OTHERS ....Respondents
(Criminal Misc. Habeas Corpus Writ Petition No. 881 of 2009,
decided on 5th June, 2009)
Counsel :
Anil Kumar Singh for the Petitioner; Ashok Kumar Rai, Additional Solicitor General of India, A.G.A. for the Respondents.
Headnote:(A) National Security Act, 1980—Sections 3(2) and 3(3)—Order of detention—Murder of D.I.O.S. by a teacher—Death of D.I.O.S. on same day in hospital—Order of detention was passed after four months of incident—As such, ground of detention was stale because during this period of four months, no prejudicial activity was done by him—There was no likelihood even of it—High Court found that order of detention was passed on hypothetical reasons without any concrete material justifying it—There was no live link between incident and order of detention—It was a matter related with 'law and order' and not 'public order'—Therefore, the order of detention quashed. [Paras 27 and 30 to 36]
(B) Constitution of India, 1950—Articles 14 and 21—Detention order—Legality of—Detention order passed by misusing the power, would be violative of Articles 14 and 21 of the Constitution of India. [Para 35]
(C) Detention order—Subjective satisfaction—Since detaining Authority considered non-existent material to detain the petitioner, her subjective satisfaction was vitiated for the reason—There was no likelihood of petitioner being released on bail in near future, hence in absence of material for likelihood repetition of prejudicial activities by the petitioner non-consideration of detenu’s representation makes detention order invalid. [Paras 35 and 36]
Honble Vinod Prasad, J.—Challenge in this Habeas Corpus Petition, by the detenu petitioner Anjani Kumar Srivastava, is the order of his detention under National Security Act, 1980 (hereinafter referred as the Act) dated 25.9.2008 passed by District Magistrate, Jaunpur/Detaining Authority, respondent No. 2, vide Annexure 2 to this petition.
2. The prejudicial activities which are the grounds for detaining the petitioner are contained in Annexure 4 and a perusal of the same reveals that, on 28.5.2008 Yashwant Pandey along with his elder cousin brother Prem Chandra Pandey had gone to the office of Sri Dinesh Chandra Pandey, the then District Inspector of Schools, Jaunpur, to meet him and was having a family chat with him, on the second floor of his office, when at 2.30 p.m., two people came in the said office. The petitioner vituparising District Inspector of Schools Dinesh Chandra Pandey informed him that his name is Anjani Kumar Srivastava and he is a teacher in Raj Inter College and how dare he (DIOS) had stopped his salary and college grant. By the time Dinesh Chand Pandey, DIOS, could pacify, the other accompanied person Sri Prakash Singh, abusing the DIOS uttered that DIOS will not understand like this and now they will tell the result of stoppage of salary. He also instigated to shoot dead the DIOS. No sooner thereafter whisking their country made pistols from their pants both, the petitioner and his fellow culprit, opened indiscriminate firing at DIOS, causing him injuries on the head and in the abdomen. Petitioner had shot the DIOS in his head. Brothers of the victim Yashwant Pandey and Prem Chandra Pandey, raised hue and cry and tried to apprehend the shooters but they were kept at bay at pointed gun and threatening utterances. Both the accused, thereafter, made their escaped good. Hue and cry attracted Ram Jawahar Kanaujiya, Assistant Inspector of School, Madan Chandra, Clerk and many other persons at the spot who all had witnessed the incident. Injured Dinesh Chandra Pandey informed his brother Yashwant Pandey that the petitioner was serving because of fraud and he had stopped his salary because of which he (Petitioner) had dealt with him like that. Prem Chandra Pandey and Yashwant Pandey along with other people transported injured Dinesh Chandra Pandey to the district hospital. Because of day light incident in the office of DIOS an atmosphere of terror and fear engulfed the locality, and shop owners pulled down their shutters.
3. Yashwant Pandey lodged the FIR of the incident at 3.30 p.m. at P.S. Kotwali, district Jaunpur as Crime No. 897 of 2008, under Sections 307, 504, 506, IPC and Section 7, Criminal Law Amendment Act, naming the petitioner and one unknown person (Later on came to be known as Sri Prakash Singh) as accused. Investigation of the crime was commenced by Sub-lnspector Sagir Ahmad, who was in-charge Inspector, and he immediately rushed to the spot. Reaching martiar Uma Nath Singh District Hospital, I.O. found, besides informant and Prem Chandra Pandey, many photographers, Officers and employees and a lot of crowd. Injured was lying on a stature in emergency ward and was reeling in pain. In the presence of all those people, injured Dinesh Chandra Pandey, informed that the petitioner was a teacher in Raj Inter College, Jaunpur and he along with one other person, whose name he did not know, had shot him. When asked for the motive he informed that the motive was stoppage of salary of the petitioner along with many other teachers. Besides aforesaid statement, injured also wrote in the yearly diary of the I.O. following words “DIOS Dinesh Chandra Pandey s/o Nagwa, Brijmanganj, Anjani Shankar, Sonkar R/o Pistol Raj College is a teacher in that college” and had signed it. 161 Cr.P.C. statement of informant was recorded the same day and at his pointing out spot inspection was conducted and a site plan was prepared. Three empty cartridges, two pieces of bullets, blood stained mat and table etc. was recov
