Murari Vs. State of U.P  INSC 209 (8 August 1988)
L.M. (J) Sharma, L.M. (J) Ojha, N.D.
1988 AIR 1835 1988 SCR Supl. (2) 251 1988 SCC (4) 559 JT 1988 (3) 351 1988
INFO : R 1990 SC 225 (10) R 1990 SC1446 (14)
Securiry Act, 1980: Section 3(2)-Detention Order- Not to be mechanically struck
down it passed after delay-Circums-tances of case to be considered-Allegation
that detaining authority making detention order for defeating bail order by
Court Consideration of by Court- Deteriorating law and order siruation-Witnesses
not having courage in assisting the administration of justice by appearance in
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, hurled bombs and the petitioner
fired 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.
District Magistrate after considering the relevant circumstances came to the
conclusion that the petitioner was likely to be enlarged on bail, 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
District Magistrate made the impugned order of detention under section 3(2) of
the National Security Act. 1980.
order of detention has been challenged on the following grounds:
only the third incident could be connected with the public order problem and
the mention of the first two incidents in the grounds of detention renders the
order having been passed more than four months after the third incident must be
set aside on the ground of undue delay alone;
view of the fact that the petitioner's bail application was not opposed. the
District Magistrs had no jurisdiction for detaining the petitioner with a view
to frustrate the Court's order enlarging him on bail;
authority had illegally discriminated against the petitioner in detaining him
while the others have been left free;
relevant records were not placed before the District Magistrate before PG NO
251 PG NO 252 passing the detention order;
the copy of the application filed at the instance of the petitioner by way of
counter case was not served on him; and
petitioner's representation was not considered and disposed of by the Central
Government at all.
the petition, it was,
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. [255B-C]
order of detention has not to be mechanically struck 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]
perusal of the detention order and of the affidavit of the District 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 played before him, the petitioner when
let out on bail was likely to create public order problem. [256C-D]
The roles of the petitioner and that of others were not identical and the
reasonable apprehension as to their future conduct must depend on the relevant
facts and circumstances which differed from individual to individual.
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 were all
joined together as accused in a criminal case. [256-H]
The detajning authority has denied the allegation that relevant material was
not placed before it and there is no reason to disbelieve the said authority.
cannot be presumed that the petitioner was prejudiced for non-service of a copy
of his own application. [257B]
The error in the date referred to by the petitioner was clerical in nature, and
the Central Government, in fact, rejected the petitioner's representation after
duly considering it. [257E] PG NO 253 Shibban Lal Saksena v. The State of U.p.,  SCR 419; K.Aruna Kumari v. Government of
Andhra Pradesh,  1 SCC 296; Rajendra kumar Natvatlal Shah v. State of Gujarat,  3 SCC 153; Maledath Bharathan
Malyali v. The Commissioner of Police, AIR 1950 Bom. 202; Alijan Mian & Anr.
v. District Magistrate, Dhanbad,  3 SCR 939 and Poonam Lata v. M.L. Wadhawan,
 4 SCC 48,referred to.
JURISDICTlON: Writ Petition (Criminal) No. 259 of 1988.
Article 32 of the Constitution of India).
Additional Solicitor General and Ms. A. Subhashini for the Petitioner.
Prasad and Dalveer Bhandari for the Respondents.
Judgment of the Court was delivered by SHARMA, J. 1. The writ petitioner has by
the present application under Article 32 of the Constitution challenged the
order of his detention dated 7. 11. 1987, passed under Section 3(2) of the
National Security Act, 1980. Earlier he had unsuccessfully moved the Allahabad
High Court under Article 226.
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 hill him but he narrowly escaped. As a
result of this attack at 5.00
P.M. on 17. 12.1986,
according to the detaining authority. "terror spread over in the retire
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.
to kill another person named Aziz who also narrowly escaped and (iii) on 17.7.
1987. at about 7.45
P.M. the petitioner
with this colleagues killed Shri Aziz in front of the Lucknow District Jail.
The persons who were present there ran away out of fear. The jail authorities
returned the fire and the petitioner then threw a hand grenade. 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.
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 27.7.1987 by their statements recorded under Section 161
of the Criminal Procedure Code.
petitioner was, however, in custody and moved an application for bail. The
District Magistrate after considering the relevant circumstances came to the
conclusion that 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.
R.K. Garg, learned counsel for the petitioner has contended 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 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 months 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 application in the Criminal
Court was not opposed by the State; and in any 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 other,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 probably the petitioner's representation was
not considered and disposed of by the Central Government at all.
High Court has not considered it essential to decide whether the first two
incidents mentioned in the grounds served on the petitioner are referable to
public order problem as the third ground by itself is capable of sustaining the
order. Although Mr. Garg indicated that in his view the provisions of Section
5A introduced in the Act PG NO 255 by an amendment in 1984 must be held to be
ultra vires, and referred to the observations in Shibban Lal Saksena v. The
State of U.P. & Ors., 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 corresponding
to Section 5A of the present Act, the decision cannot be of 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.
also do not find any merit in the plea that the impugned 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' 1) Andhra Pradesh & Ors..  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 that 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 imminent.
Besides, enquiry was also proceeding. This aspect has been explained in the
detention order itself as also by the District Magistrate 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 Natvarlal Shah v. State of Gujarat & Ors.,  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 disturbance of public order.
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 unopposed.
256 The District Magistrate was expecting an adverse order on 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 intimidating postures of accused persons, witnesses are
failing to summon courage in assisting the administration of justice by going
before a court of law to state what they have seen or heard.
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
was placed on the observations in Maledath Bharatman Malyuli v. The
Commissioner of Police,AlR 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 appearing from the
records placed before him, the petitioner when let out on 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 serve of
on the petitioner along with the grounds. The scope for passing an order of
detention against an accused immediately after he is allowed bail or at a point
of time when he is likely to be enlarged on bail as been considered by this
Court in several decisions. (Alijun Mian .& another v. District Magistrate,
Dhanbad,  3 SCR 939: Poonam Lata v. M.L.
& another,  4 SCC 48, and several other cases) and we do not consider
it necessary to again discuss the point. It is true that inn such cases great
caution should be exercised inn scrutinising the validit of the order, which is
based on the very same charge which is to be tried b a criminal court, and
according we have given our anxious consideration to the entire circumstances
of the case but do not find any fault with the impugned order.
There is no merit whatsoever in the petitioners grievance of discrimination on
the ground that the other co- accused persons have not been detained. The role
of the petitioner and that of the others are not identical and the reasonable
apprehension as to their future conduct 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
accused in a criminal case.
The plea of the petitioner that all the relevant materials were 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
application filed at his instance as a cross-case and he was, therefore,
prejudiced in effectively making his 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.
far the last point mentioned above is concerned it was argued that since the
petitioner filed his representation on 22.12.1987 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 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 representation after duly
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.