Sri Mehru vs Government of India & Ors.

These two writ petitions were heard together as common points of law stood involved in these two matters. By this single judgment these two petitions are being disposed of.

By an order dated 23597 the District Magistrate, Muzaffarnagar, directed detention of Mehru under the provisions of Section 3(2) of the National Security Act. The grounds for such arrest were indicated by the District Magistrate stating that one Km. Kamesh had gone to the house of one Islam to work as a maid on 8597 and she was forcibly detained and attempted to be ravished by Mehru, Islam, Irfan, Sajid, Hanif and Shamim, and on her obstruction, she was done to death in a cruel manner. When she was being searched by her family members, her deadbody was removed to another place in a completely naked condition. An FIR was lodged against these persons for offences including Sections 354 and 302, IPC. It was further stated that at the instance of Mehru, Shamim and others the weapon of offence, a gandasa, was recovered on 10597. It was further stated that this attempted rape and murder of a girl of a Schedule Caste community had created an atmosphere of terror and insecurity in the locality, resulting in disturbance of public order. The girls of Balmiki caste had stopped working as house maids. The victim had been a member of the Hindu community and the accused were of Muslim community and the incident had created a communal tension in the area. For Mehru, it was further stated that the District Magistrate was satisfied from perusal of the bail applications that Mehru and his associates had been trying for bail and there was likelihood of their being released on bail and there was further likelihood of their acting in a manner prejudicial to public order. Only under these circumstances, the detention order was passed.

For Shamim also the detention order was passed on 23597 by the District Magistrate, Muzaffarnagar and grounds similar to those indicated in the case of Mehru were indicated for Shamim''s detention as well. Here also it was stated that Shamim and his associates were trying for bail as was evident from their bail applications and there was chance of their obtaining bail and there was further an observation that if released on bail, he would indulge in activities prejudicial to the maintenance of public order.

So far Mehru is concerned, it was argued that he had never applied for bail and the bail application to which the District Magistrate had made a reference in the grounds of detention was, in fact, moved on behalf of Shamim and Sajid, and is not for Mehru. As such, there was no material before the District Magistrate to infer that a bail application had been moved before the Court by Mehru or on his behalf. There was, therefore, no question of his being released on bail.

The law on the point of recording a detention order against a person who is already in custody has been made clear by several judgments of the Supreme Court and four criteria have been indicated upon which such a detention order could be made. The detaining authority must be satisfied (1), that the person proposed to be detained is in custody, (2) that he was trying to get himself out on bail, (3) that there was likelihood of a bail order in his favour and (4) that there was likelihood of his further action to the prejudice of maintenance of public order. In the instant case, the second criteria, according to the learned Counsel, is absent as the petitioner Mehru had not moved for bail at all. It was contended by the learned State Counsel with reference to a decision of the Supreme Court in the case of Kamrunnisa that the mere mention that he was trying for bail on the basis of a. bail application filed by coaccused may not vitiate the detention order as in Kamrunnisa''s case there was no bail application on behalf of the detenu and the detaining authority was of the view that it was a bailable offence for which he was in custody although it was a nonbailable one. The court held in that case that the two coaccused persons had been released on hail and there was, therefore, a reason for the detaining authority to believe that on the same ground this applicant was also to be released on bail. The case at our hand is distinguishable of facts. The District Magistrate does not say that he was satisfied about the likelihood of Mehru being released on bail on the ground of the prayers made by his associates. The grounds definitely stated that Mehru and his associates had moved for bail as per the bail applications presented in court. This suggests that he had the bail application before hint and he would have known from a reading of the bail application that Mehru had not moved for bail. This may be interpreted in two ways ; firstly, that there was no material before the District Magistrate to infer that Mehru had applied for bail and, secondly, that there was absolute nonapplication of mind so far Mehru was concerned as the District Magistrate arrived at a satisfaction on the bail application of two coaccused person that Mehru had also applied for bail. Without going into the question, so far Mehru is concerned, if it was a question of prejudice to the maintenance of public order or was a question of law and order alone, we may hood that for the absence of materials for satisfaction on the part of the District Magistrate that Mehru had moved for bail, the conclusion that he was likely to be released on bail, was not proper and, as such, two necessary criteria, as indicated above, were not fulfilled. Mehru being already in custody, this detention order on him must be and is quashed,

So far Shamim is concerned, this point is not available to him as definitely there had been a prayer for bail made by him and there was no misapplication of mind by the District Magistrate or no absence of material for satisfaction of the District Magistrate that he was trying for bail and there was likelihood of his getting bail. That the offence was a heinous one and would have a repercussion in the society is clear from the prima facie allegations. Materials were there before the detaining authority as to how terror and insecurity spread amongst the young women of the Balmiki community. Materials were also there to indicate that the communal balance at the locality was disturbed as the victim was of one community and the assailants were of another community. It may not, therefore, be stated that it was a simple question of law and order and not of disturbance of public order. .

For Shamim, however, the learned Counsel pressed the petition on another ground. It was stated that a representation was made by Shamim on 9697 and the Central Government decided it on 20897 with a delay which has not been explained. In reply to this, the learned Counsel for the Union Government submitted that the representation of the petitioner reached the hands of the Union Government on 23697 and comments were called for from the State Government, which were sent by the State Government on 15797 and received by the Union Government on 21797. The representation was rejected on 4897 and not on 20897, as alleged. There was, according to the learned Counsel for the Union Government, no delay for which the continued detention could be held to be vitiated. The learned AGA Sri Arvind Kumar Tripathi further elaborated this point with an argument that a right of representation as guaranteed under Article 22(5) of the Constitution of India is to be exercised before the State Government and there had been no delay by the State Government in deciding that representation and there was, thus, no violation of the constitutional right nor had there been any delay which may be deemed a violation of such right. So far the Central Government is concerned, the right of representation is a creation of Section 14 of the National Security Act and even though there had been any delay, which on factsis denied, the continued detention of the petitioner may not be vitiated. We hold on facts that there had been no delay on the part of the Central Government as explained by Sri J. Nagar and we further hold that even for a violation of this statutory right the continued detention of the petitioner may not be challenged. The detention order of Shamim is, therefore, not open to challenge.

In view of the above, HCWP No. 38384 of 1997 of Mehru stands allowed. He must be set at liberty forthwith unless required to be detained in any other case. HCWP No. 38386 of Shamim stands dismissed. Order accordingly.