INDU MISHRA vs UNION OF INDIA - 2010 Supreme(All) 4125

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2010 Supreme(All) 4125

[2012(7) ADJ 784 (FB)]
ALLAHABAD HIGH COURT
(Full Bench)
BEFORE : SUNIL AMBWANI AND IMTIYAZ MURTAZA AND KASHI NATH PANDEY, JJ.
Km. INDU MISHRA ....Petitioner
Versus
UNION OF INDIA AND OTHERS ....Respondents
(Habeas Corpus Writ Petition Nos. 35555, 38506, 38508, 38509 and 44741 of 2002, decided on 26th November, 2010)

Advocates:
Counsel :
Prem Prakash for the Petitioner; A.G.A., A.S.G.I., B.N. Singh, C.S.C., D.S. Lal and S.C. Srivastava for the Respondents.

Headnote:(A) National Security Act, 1980—Sections 3(2), 3(3), 3(4), 8 and 14—Constitution of India, 1950—Articles 22 (4) to 17—Criminal Procedure Code, 1973—Section 364—General Clauses Act, 1897—Section 21—Preventive detention—Right to make re-presentation—Period of communication for—Power of detaining authority to revoke detention order after its approval by State Government—Power of detaining authority to consider detention order after its approval by State Government—In view of Santosh Shankar Acharya’s case (2000 (8) JT 374 (SC) until detention order is approved by State Government detaining authority can entertain re-presentation from detenu—Non-communication of fact to detenue that he has right to make a re-prsentation to detaining authority—Would constitute an infraction of valuable constitutional right guaranteed under Article 22(5)—Communicate to detenu, his right for making re-presentation to him is upto date of approval of detention order by State Government or before 12 days—Non-communication of period will not render detention order invalid—Detaining Authority does have power to revoke/modify detention order passed by him after its approval by State Government—He is not under obligation to consider/decide re-presentation after approval to detention order by State Government—In present case maximum specified period of detention has long expired—Bail bonds stand discharged.
        [Paras 23, 26, 34, 38, 39 and 40]
       (B) Words and Phrases—Preventive detention—Meaning of—Detention of a person without trial. [Para 11]
       (C) Words and Phrases—Preventive detention—Object of—Is not to punish a person—But to prevent him from doing something—Which comes within Entry of constitution. [Para 11]
       (D) Words and Phrases—Preventive detention—Justification for—It is suspicious or reasonable proability and not criminal conviction—Which may be warranted only by legal evidence. [Para 11]
       (E) Constitution of India, 1950—Articles 21 and 22—Preventive detention—Exercising power of—It cannot be ordered by executive without authority of law. [Para 12]
       (F) Constitution of India, 1950—Article 22 (5)—Detention—Representation—Right of—Article 22(5) gives a right to detenu to make a re-presentation—But, does not give a right to be heard by an independent Tribunal. [Para 14]
       (G) Constitution of India, 1950—Article 22 (5)—Detention—Right to make re-presentation—Nature of—Right to make re-presentation against order of detention is a fundamental right—Confined upon a detenu is liable to be released. [Para 15]
       (H) Constitution of India, 1950—Article 22 (5)—Detention—Re-presentation—Before whom it is to be made—Article 22(5) does not State, before whom re-presentation is to be made—It depends upon nature of legislation—Whereby and whereunder order of detention has been passed. [Para 16]
       Result; Petitions Disposed of.

JUDGMENT

By the Court.—A Division Bench of this Court noticed a conflict of opinion in the judgments of the Court delivered in Ram Lal v. State of U.P., 2000 (41) ACC 1715 and in Idrish v. Secretary, Ministry of Home Affairs, Government of India, New Delhi and others, 2002 (44) ACC 1117 and has referred the following questions to be considered by a Larger Bench :

“(1) Whether the District Magistrate/Detaining Authority acting under Section 3 (2) of the National Security Act is required to communicate to the person detained, regarding right of making re-presentation to him in view of Apex Court’s decision in Kamlesh Kumar’s case (supra)? If so, non-communication would infringe fundamental right guaranteed under Article 22 (5) of the Constitution?

(2) If the answer of question No. 1 is in the affirmative, whether there is obligation on the District Magistrate (Detaining Authority) to communicate the detenu’s right within which the detenu is required to make re-presentation to him i.e. before approval of the detention order by the State Government or before 12 days ? If so non-communication of above period will render the detention order invalid?

(3) Whether the District Magistrate/Detaining Authority has power to revoke or modify the detention order passed by him after its approval by the State Government?

(4) Whether there is obligation on the District Magistrate/Detaining Authority to consider and decide the re-presentation of the detenu even after approval of the detention order by the State Government ?

2. The maximum period of detention of the petitioners has long expired and thus the questions raised before us so far as the petitioners are concerned have become academic in nature. We are, however, deciding them as these questions may arise, in the habeas corpus petitions to be decided in future.

3. The relevant facts giving rise to the questions posed before us, as narrated by the Division Bench in referring the order dated 22.4.2003 are as follows :

“The grounds of detention served upon each of the petitioner separately alongwith order of detention common in all the writ petitions, stated that on the night of 22/23.1.2002 at about 10.10 p.m. Dr. Deepak Agrawal, Child Specialist was going to his residence from his clinic situate at Mohalla Unchamandi, P.S. Muthiganj, Allahabad, alongwith his security guard Kamlesh Narain Mishra, in his Maruti Zen Car. The petitioner Ashok Mishra alongwith his associates Ashok Singh, Dinesh Tewari @ Pappu Shooter, Sandeep Singh, Amit @ Brijesh Singh and others in order to carry out their criminal conspiracy, kidnapped him (Dr. Deepak Agarwal) alongwith his Maruti Car at about 10.30 p.m. for ransom. The petitioner Ashok Mishra and his associates kept kidnappees Dr. Agrawal and his Security Guard Kamlesh Narain Mishra, at the official residence of petitioner Km. Indu Mishra (Constable) at Police Lines Sultanpur. Her associates demanded Rs. 50 lacs as ransom from the family members of Dr. Agrawal and his relatives on telephone. On the report of Smt. Savita Agrawal, wife of Dr. Deepak Agarwal a case at crime No. 18 of 2002 was registered under Section 364 IPC at 3.10 a.m. on 23.1.2002 at P.S. Muthiganj, Allahabad. The matter was negotiated at Rs. 30,00,000/-, on payment of Rs. 15,10,000/- and promise to pay remaining Rs. 14,90,000/- later on. Dr. Agarwal and his Security Guard were released on the night of 26/27-10-2002 at 11.00 p.m. on Sultanpur - Pratapgarh road. Shocks, belt and buckle of Security Guard Kamlesh Narain Mishra were recovered from official residence of petitioner Km. Indu Mishra. On 3.2.2002 on the pointing out of petitioner Indu Mishra, a sum of Rs. One lac, share of ransom money, was recovered by the Investigating Officer. A sum of Rs. 8,800/-, share of ransom money, was recovered from petitioner Jagdamba Prasad Pande and he told that he had spent Rs. 1200/-.

During investigation of above case evidence was collected that telephone (mobile) No. 9838095939 belonged to Dinesh Te

Click Here to Read the rest of this document

2010 Supreme(All) 4125

Cases Referred (36)