Vikram Pratap Singh vs State of U.P. and Others

A.S. Srivastava, J.—By means of this petition filed under Article 226 of the Constitution of India, the Petitioner Vikram Pratap Singh has challenged the order of his detention dated 11-2-1985 passed u/s 3(2) of the National Security Act (hereinafter referred to as the Act) by the District Magistrate, Varanasi (hereinafter referred to as the detaining authority).

The order of detention was served on the Petitioner the same day. It was based only on one ground which related to an incident which had taken place on 10-10-1984 at 2.30 A.M. outside the Tato Gate of the Railway Station, Varanasi Cantt. in which the Petitioner is alleged to have pushed Sri O.P. Gupta, Divisional Engineer Mechanical, North-Eastern Railway, Varanasi when he was about to board a jeep after getting down from his saloon for his residence. The Petitioner did not only push Sri Gupta but also fired at him with his revolver causing him fatal injury. The FIR of this incident was lodged at PS GRP Cantt. by Sri S.K. Mukerjee, on the basis of which Crime case No. 322 of 1984 u/s 302 IPC was registered. The Petitioner was, however, not named in this FIR. A test identification parade was, however, held on 7-2-1985 in which the Petitioner was not picked up by any witness. However, on a report made to the detaining authority by the police, the detaining authority was satisfied that the above activity of the Petitioner created a terror in the locality which was prejudicial to the maintenance of public order. On being thus satisfied, he passed the impugned order against the Petitioner.

The Petitioner challenged the above detention order passed against him by means of Habeas Corpus Writ Petition No. 2758 of 1985 which was dismissed by a Division Bench of this Court on 24-5-1985. The Petitioner has again filed this petition with the same prayer on the basis of grounds not taken in his earlier petition.

The main ground on which the Petitioner has challenged his detention by means of this petition is that the result of test identification parade of 7-2-1985 in which the Petitioner was not picked up by any witness v\\as not placed before the detaining authority when he passed the order of detention. Not only this, this material was also not placed before the State Government either at the time of according its approval u/s 3(4) of the Act or at the time of its confirmation u/s 12(1) of the Act. It is urged that since this ground was not taken by the Petitioner in his earlier petition, he is entitled to agitate the same by means of this petition.

The first objection to this petition that it is not maintainable on account of the dismissal of the Petitioner''s earlier Habeas Corpus Writ petition No. 2758 of 1985 cannot, in view of the decision of the Supreme Court in Kirit Kumar Chaman Lal Kundaliya Vs. Union of India (UOI) and Others, be accepted. This question was also raised in the case of Shri. Lallubhai Jogibhai Patel Vs. Union of India (UOI) and Others, a case relied upon by the Supreme Court in Kirit Kumar''s case. In Lallubhai Jogibhai''s case, the Supreme Court, after considering various pronouncements on this question, summed up the legal position as under:

The position that emerges from a survey of the above decisions is that the application of the doctrine of constructive res judicata is confined to civil actions and civil proceedings. This principle of public policy is entirely inapplicable to illegal detention and does not bar a subsequent petition for a writ of habeas corpus under Article 32 of the Constitution on fresh grounds, which were not taken in the earlier petition for the same relief.

The above question has also been considered by a Division Bench of this Court in Sushil Kumar Vs. Adhikchhak, Kendriya Karagar and Others, .

In view of the above decisions, it is now too late in the day to contend that the second Habeas Corpus petition filed by a detenu is not competent if he files the same on an entirely fresh ground.

The next question is whether the ground mooted by the Petitioner by the instant petition is a fresh ground or not. And, if it is a fresh ground, whether it has the effect of vitiating the continued detention of the Petitioner.

It appears that though the identification-memo was not before the detaining authority when he passed the order of detention, he had an information of the fact that the Petitioner was not picked up by any witness at the test identification and this information was considered to be sufficient for maintaining the detention of the Petitioner by this Court while deciding Habeas Corpus Writ petition No. 2758 of 1985. Therefore, this ground cannot now be permitted to be raised as a fresh ground by means of this petition.

However, it is a fact that when the detaining authority reported the matter to the State Government for approval, neither the identification-memo nor the result of the test identification of the Petitioner were communicated to the State Government. This fact is alleged in para 2 of the supplementary-affidavit dated 22-11-85 of the Petitioner. It is admitted in the supplementary counter-affidavit dated 4-12-1985 of the detaining authority filed in this Court on 9-12-1985. A perusal of the judgment of Habeas Corpus Writ petition No. 2758 of 1985 shows that this ground was neither raised nor decided in that petition. Obviously, therefore, this is a fresh ground. The Petitioner is, therefore, entitled to raise this question by means of this petition.

The question whether it is obligatory on the part of the detaining authority to place a material fact before the State Government or not has been considered by this Court in a series of decisions. In the case of Bhajan Lal v. State of U.P. Civil Misc. Writ petition No. 15799 of 1984 decided on 25-3-1985 this Court has held as under:

The fact that he was not picked up by anyone in that test identification was not placed by the detaining authority before the State Government. Not only this, the State Government itself ignored this fact while according approval of the detention order of the Petitioner. This was undisputedly a material fact showing non-involvement of the Petitioner in that case such a fact could have influenced not only the satisfaction of the detaining authority at the time of passing the detention order but also of the State Government while according approval to such an order of detention. As observed by the Lucknow Bench of this Court in Om Prakash Gupta v. State of U.P. Habeas Corpus Writ petition No. 3196 of 1984 decided on 18-9-84 the approval of an order of detention necessarily implies consideration of not only the grounds of detention but also other paiticulars having bearing on the material facts. In fact, this position is clear from the language of Section 3(4) of the Act which reads as under-

When any order is made under this section by an officer mentioned in Sub-section (3) he shall forthwith report the fact to the State Government to which he is subordinate together with the grounds on which the order has been made and such other particulars as in his opinion have a bearing on the matter and no such order shall remain in force for more than twelve days after the making thereof unless, in the meantime it has been approved by the State Government.

The words ''and such other particulars as...have a bearing on the matter'' leave no room for doubt that all such facts which have bearing on the matter have to be placed before the State Government. Since the material facts which have bearing on the matter were not placed before the detaining authority, the detaining authority could not have placed the same before the State Government while making a report to the Government u/s 3(4) of the Act. If the material fact which ought to have been placed before the State Government and considered by it is not placed, the validity of the approval made by the State Government of such an order of detention can be questioned on the same principle on which the order of detention can be questioned. The principle of law laid down in this regard in Nanha Singh v. Superintendent District Jail, Kanpur 1984 ALJ 898 will apply in such a case. In other words the validity of approval of an order of detention passed by the State Government can be questioned on the ground that the approval has been made by the State Government without considering the material circumstances, which, in the circumstances of the case, ought to have been placed before it for consideration. The approval in such a case can be held to be made mechanically.

The decision of Bhajan Lal''s case has been relied upon in Shiv Ram Singh v. Superintendent District Jail, Fatehpur 1985 ALJ 1166. In fact, as observed in Om Prakash Gupta v. State of U.P. 1984 LLJ 379 the emphasis on the application of mind by the State Government either at the the time of according approval u/s 3(4) of the Act or at the time of confirming an order of detention u/s 12(1) of the Act is obvious. An authority who has to apply its mind while according approval to an order of detention or while confirming the same cannot be held to be anything but mechanical unless the facts having a bearing on the matter are not placed before it. Since this question has been discussed in detail in the cases cited above, it is suffice to state that in this case also the non-communication of either the identification-memo itself or the result of identification of the Petitioner at the test parade has afforded a ligitimate ground to the Petitioner to question the approval of his detention by the State Government u/s 3(4) of the Act and confirmation thereof u/s 12(1) of the Act. The Petitioner can question the validity of the approval of the detention as well as the confirmation thereof by the State Government on the same principle on which the order of detention itself is questioned. The principle of law laid down in this regard in Nanba Singh v. Superintendent, District Jail Kanpur 1984 ALJ 898 will also apply in such a case. The approval of the Petitioners'' detention accorded by the State Government u/s 3(4) of the Act and its subsequent confirmation u/s 12(1) of the Act were consequently made mechanically. Therefore, the continued detention of the Petitioner cannot be upheld.

In the result, the petition succeeds and is allowed. The Petitioner shall be set at liberty forthwith unless required to be detained in some other case.

Petition allowed.