YOGENDRA MURARIversusSTATE OF U.P.

                       YOGENDRA MURARI
                                                                             A
                              v.
                         STATE OF U.P.

                           AUGUST 8, 1988

       [LALIT MOHAN SHARMA AND N.D. OJHA, JJ.]                               B

      Jllational Security Act, 1980: Section 3(2)-Detention Order-
Not to be mechanically struck down if passed after delay-Circums-
tances of case to be ,considered-Allegation that detaining authority
making detention order for defeating bail order by Court-Considera-
tion of by Court-Deteriorating law and order situation-Witnesses not         C
having courage in assisting the administration of justice by appearance
in Court.

      The petitioner was involved in two incidents of attempt to murder
which created a public order problem. In a third incident the petitioner
with his colleagues killed one person. The party, when challenged,           D
hurled bombs and the petitioner tired indiscriminately. This incident
seriously disturbed public order. Criminal cases were registered against
the petitioner in respect of each of the three incidents, but the evidence
against the petitioner was not forthcoming.

      The District Magistrate after considering the relevant circums-        E
lances came to the conclusion that the petitioner was likely to be
enlarged on b_ail, and since he was_ further of the view that if the
petitioner was not detained, he would be indulging in activities pre-
judicial to the maintenance of public order, the Districi Magistrate
made the impugned order of detention under section 3(2) of the
National Security Act,_ 1980.                                                F

      The order of detention has been challenged on the following
grounds: (1) that only.the third incident could be connected witli the
public order problem and the mention of the first two incidents in the
grounds of detention renders the order bad; (2) the order having been
passed more than four months aft_er the third incident must be set aside     G
on the ground of undue delay alone; (3) in view of the fact that the
petitioner's bail application was not opposed, the District Magistrate
had no jurisdiction for detaining the petitioner with a view to frustrate
the Court'•·order enlarging-him on bail; (4) the authority had illegally
discriminated against the petitioner in detaining him while the others
!taye been left free; (5) the relevant records were not placed before the    H
                                   251
    252         SUPREME COURT REPORTS                I1988] Supp. 2 S.C.R.
A District Magistrate before passing the detention order; (6) the copy of
    the application filed at the instance of the petitioner by way of counter
    case was not served on him; and (7) the petitioner's representation was
    not considered and disposed of by the Central Government at all.

B         Dismissing the petition, it was,

          HELD: (I) The impugned order could not be struck down
    because the grounds of detention referred to the first two incidents also,
    specially when the first incident appeared to have created a public order
    problem. l255B-C]

C         (2) An order of detention has not to be mechanically stru£k down
    if passed after some delay. It is necessary to consider the circumstances
    in each individual case whether the delay has been satisfactorily
    explained, which, in this case, has been done. [255D]

D         (3) A perusal of the detention order and of the affidavit of the
    Distriet Magistrate in the instant case makes it abundantly clear that he
    did not act for defeating the bail order. He was of the view that having
    regard to the entire circumstances appearing from the records plac;ed
    before him, the petitioner when let out on bail was likely to create
    public order problem. [256C-D]
E
           (4) The roles of the petitioner and that of others were not iden-
    tical and the reasonable apprehension as to their future conduct must
    depend on the relevant facts and circumstances which differed from
    individual to individual. It would have been wrong on the part of the
    detaining authority to take a uniform decision in this regard only on the
F   ground that the persons concerned were all joined together as accused
    in a criminal case. [256G-HJ

           (5) The detaining authority has denied the allegation that rele-
    vant material was not placed before it and there is no reason to disbe-
    lieve the said authority. [257A-BJ
G
         (6) It cannot be presumed that the petitioner was prejudiced for
    non-service of a copy of his own application. [257B I

        (7) The error in. the date referred to by the petitioner was cle_rical
  in nature, and the Central Government, in fact, rejected the peti-
H tionel"'s representation after duly considering it. l257E]
         YOGENDRA MURARI v. STATE 01' U.P. [SHARMA, J.]           253

      Shibban Lal Saksena v. The State of U.P..; [19541 SCR 418'i k.
                                                                         A
Aruna Kumar! v. Government of Andhra Pradesh, [1988] l SCC 296;
Rajenarakumar Natvarlal Shah v. State of Gujarat, [1988] 3 SCC 153;
Maiedath Bhar~than·Malyali v. The Commissioner of Police, AIR 1950
Born. 202; Alijan Mian & A.Qr. v. District Magistrate, Dhanbad, [1983]
J SCR 939 and Poonam Lata v. M.L. Wadhawan, [1987] 4 SCC 48,
referred to.                                                             B

      ORIGINAL JURISDICTION: Writ Petition (Criminal) No.
     259 of 1988.

      (Under Article 32 of the Constitution of India).

      B. Datta, Additional Solicitor General and Ms. A. Subhashini
                                                                         c
for the Petitioner.

      Yogeshwar Pra$ad and Dalveer Bhandari for the Respondents.

      The Judgment ,of the Court was delivered by                        D

      SHARMA, .I. 1. The writ pe.titioner has by the present applica-
tion under Article 32 of the Constitution challenged the order of his
detention dated 7.12.1987, passed under Section 3(2) of the National
Security Act, 1980. Earlier he had unsuccessfully moved the
Allahabad High Court under Article 226.                                  E

      2. The District Magistrate has mentioned three incidents in the
grounds served on the petitioner: (i) the petitioner is alleged to have
fired with his revolver at one Sri Azam with the intention to kill hiin
but he narrowly escaped. As a result of this attack at 5.00 P.M. dn.
17.12.1986, according to the detaining authority, "terror spread over F.
in the entire area and all the shopkeepers who had their .shops in the
nearby locality closed down their shops out of panic and fear. This ,
incident created a public order problem."; (ii) the petitioner is said to
have made another bid on 21.6.1987 to kill anothe,t person named Aziz
who also narrowly escaped; and (iii) on 27.7.1987, at about 7.45 P.M.
the petitioner with his colleagues killed Shri Aziz in front of the G
Lucknow District Jail. The persons who were present there ran away
out of fear. The jail authorities returned the fire .~nd the petitioner
then threw a handgrenade. On being challenged again, the party
hurled bombs and the petitioner indiscriminately fired from his pistol.
This incident 'seriously disturbed the public order. The details of the
panic which struck the locality are mentioned in the grounds.             H
    254         SUPREME COURT REPORTS               [1988] Supp. 2 S.C.R.

A       3. Criminal cases were registered against the petitioner with
  respect to each of· the three incidents but it appears that evidence
  against the petitioner was not forthcoming, although several persons
                                                                    '


  supported the prosecution version of the third incident dated
  27.}.1987 by their statements recorded under Section 161 of tije Cri-
  minal Procedure Code. The petitioner was, howe\Cer, in custody and
B moved an application for bail. The District Magistrate after consider-
  ing the relevant circumstances came to the conclusion th?! the
  petitioner was likely to be enlarged on bail by the Criminal Court and
  since he was further of the view that if the petitioner was not detained,
  he would be indulging in activities prejudicial to the maintenance of
  public order, the order of detention was made.
c        4. Mr. R.K. Garg, learned counsel for the petitioner has con-
   tended that the order of detention is vitiated on several counts. The
   learned counsel argued that as only one of the three incidents,
   mentioned in the grounds, can be held to be connected with the public
   order problem, the order must be held to be bad and further it was
D wrong for the District Magistrate and the High Court to have referred
   to the first two incidents. Besides, the order having been passed on
   account of the third incident which happened more than four m,onths
   earlier ought to be set aside on the ground of undue delay alone. It was
   further said that the order was vitiated as the petitioner's bail applica-
   tion in the Criminal Court was not opposed by the State; and in any
E\ view the District Magistrate had no jurisdiction for detaining the
   petitioner with a view to frustrate the Criminal Court's order enlarging
   the petitioner on bail. Referring to the first information report about
   the July occurrence it was pointed out that 14 persons besides' the
   petitioner were made accused in the case and the authority has illegally
   discriminated against the petitioner in detaining him while the others
f have been left free. It was also stated that all the relevant records were
   not placed before the District Magistrate before passing the detention
   order and a copy of the application filed at the instance of the
   petitioner by way of counter case was not served on him. Lastly it was
   suggested that in view of the respondent's reply it appears that pro-
   bably the petitioner's representation was not considered and disposed
G of by the Central Government at all.

          5. The High Court has not considered it essential to decide
   whether the first two incidents mentioned in the grounds served op the
   petitioner are referable to public order problem as the third ground by
   itself is capable of sustaining the order. Although Mr. Garg indicated
ff that in his· view the provisions of Section SA introduced in the Act by
                  YOGENDRA MURARI v. STATE OF U.P. !SHARMA, J.)               255

         an amendment in 1984 must be held to be ultra vires, and referred to
                                                                                     A
         the observations in Shibban Lal Saksena v. The State of U.P. & Ors.,
         (1954] SCR 418, he did not invite us to decide this point and suggested
         that we may refrain from making any observation on this aspect, as the
         question may have to be decided by a larger Bench. Since the Act
         before the Court in the above case did not contain any provision cor-
         responding to Section 5A of the present Act, the ·decision cannot be of     B
_,       any help to the petitioner. However, so far as the first incident of the
         17th December, 1986 is concerned, it appears to have created a public
         order problem. In any view the impugned order cannot be struck down
         on the ground that the second incident or for that matter both the first
         and the second incidents did not relate to disturbance of public order ..

                6. We also do not find any merit in the plea that the impugned
                                                                                     c
         order is bad on account of delay. It is true that the ground which led
         the District Magistrate to pass the detention order became available in
         July and the order was passed only in December but it is not right to
         assume that an order of detention has to be mechanically struck down
         if passed after some delay. (See K. Aruna Kumari v. Government of D
         Andhra Pradesh & Ors., [1988] 1 SCC 296 and the cases mentioned
         there) It is necessary to consider the circumstances in each individual
         case to find out whether the delay has been satisfactorily explained or
         not. In the present case the petitioner was in custody and.there could
         not be any apprehension of his indulging in illegal activities requiring
         his detention until the grant of bail by the Criminal Court became E
         imminent. Besides, enquiry was also proceeding. This aspect has been
         explained in the detention order itself as also by the District Magis-
         trate in his affidavit and it is clear that there has been no undue delay
         on his part in taking action. Besides, the distinction between such
         delay and the delay in complying with the procedural safeguards of
         Article 22(5) of the Constitution as pointed out in Rajendra Kumar F
         Natvarlal Shah v, State of Gujarat & Ors., [1988] 3 SCC 153, is also
     <   relevant here especially because of the background of the petitioner's
 '       antecedents taken into account by the detaining authority showing his
         propensity for acts which were likely to disturb public order. We do
         not see any objection to the District Magistrate referring the first two
         incidents in this context, specially when the first incident related to G
         disturbance of public order.

              7. So far the allegation that the petitioner's prayer for bail was
         not opposed; it is strongly denied in the Counter Affidavit. The
         apprehension of the District Magistrate that .the prayer in this regard
         was likely to be granted does not mean that the application was             H
    256         SUPREME COURT REPORTS                [1988] Supp. 2 S.C.R.

    unopposed. The District Magistrate was expecting an adverse order on
A
    account of the fact that the witnesses of the incident appeared to be
    reluctant to support their earlier statements. The situation can be well
    appreciated as it is common knowledge that due to deteriorating law
    and order situation in the country and mounting aggressive intimidat-
    ing postures of accused persons, witnesses are failing to summon cour-
B   age in assisting the administration of justice by going before a court of
    law to state what they have seen or heard.

          8. It has been contended on behalf of the petitioner that the
    detention order was passed with a view to frustrate the bail allowed to
    the petitioner in the criminal case. Reliance was placed on the obser-
C   vations in Maledath Bharathan Malyali v. The Commissioner of Police,
    AIR 1950 Bombay 202. A perusal of the detention order in the case
    before us and of the affidavit of the District Magistrate, makes it
    abundantly clear that he did not act for defeating the bail order. He
    was of the view that having regard to the entire circumstances appear-
    ing from the records placed before him, the petitioner when let out on
D   bail, was likely to create public order problem. The District Magistrate
    came to this conclusion on the consideration of relevant materials.
    Copies of the documents were served on the petitioner along with the
    grounds. The scope for passing an order of detention against an ac-
    cused immediately after he is allowed bail or at a p0int of time when he
    is likely to be enlarged on bail has been considered by this Court in
E   several decisions, (Alijan Mian & another v. District Magistrate,
    Dhanbad, [1983] 3 SCR 939; Poonam Lata v. M.L. Wadhawan &
    another, [1987) 4 SCC 48, and several other cases) and we do not
    consider it necessary to again discuss the point. It is true that in such
    cases great caution should be exercised in scrutinising the validity of
    the order, which is based on the very same charge which is to be tried
F   by a criminal court, and accordingly we have given our anxious consi-
    deration to the entire circumstances of the case but do not find any
    fault with the impugned order.

        9. There is no merit whatsoever in the petitioner's grievance of
  discrimination on the ground that the other co-accused persons have
G not been detained. The role of the petitioner and that of the others are
  not identical and the reasonable apprehension as to their future con-
  duct must depend on the relevant facts and circumstances which differ
  from individual to individual. It would have been wrong on the part of
  the detaining authority to take a uniform decision in this regard only
  on the ground that the persons concerned are all joined together as
H accused in a criminal case.
                  YOGENDRA MURARI v. STATE OF U.P. ·(SHARMA, J.]              257.

               10. The plea of the petitioner that all the relevant materials were· A
         not placed before and considered by the District Magistrate is made in·
         vague terms and is not fit to be accepted. The detaining authority in his
         counter affidavit has denied the allegation.and we see no reason to
         disbelieve him. The learned counsel further urged .that the petitioner
         was not supplied with a copy of the applicati!>n filed at hisinstance as a
         cross-case and he was, therefore, prejudiced in effectively. making his B
         representation. We do not find any force in.this argument as it cannot.
         be presumed that the petitioner was prejudiced by non-service of, a.
         copy of his own application.

    ;.         11. So far the last point mentioned above is concerned it was
         argued that since the petitioner filed his representation on 22.12.1987     c
         and according to the statement of the Central Government, it disposed
         of some representation of another date, it must be assumed that that
         representation was not considered and disposed of. We do not find any
         merit in the presumption raised by the petitioner on account of the
         error in the date mentioned by the Central Government as the matter
         stands clarified by the Counter Affidavit of Shri Shiv Basant, Deputy       D
         Secretary, Ministry of Home Affairs, Government of India stating that
         it was the petitioner's representation which was disposed of and the
    •            '
         error pointed  out was accidental. We are satisfied that the error in the
         date referred to by the petitioner was clerical in nature and that the
         Central Government had, in fact, rejected the petitioner's representa-
         tion after duly considering it.                                             E
-..t',


  '            12. In the result, we do not find any merit in any of the points
         pressed on behalf of the petitioner and the writ application is, there-
         fore, dismissed.

         R.S.S.                                               Petition dismissed.    F
 ~:.
   ,.