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Madan Gopal Alias Madan Bhaiya v. Union of India & Others

Madan Gopal Alias Madan Bhaiya
v.
Union of India & Others

(High Court Of Delhi)

Criminal Writ No. 139 of 1992 | 23-11-1992


Usha Mehra, J.

1. Shri Madan Gopal @ Madan Bhaiya, the peti­tioner herein, has assailed the order of his detention by the present Crimesminal writ petition. The detention order was passed against him on 3rd January, 1992 under Section 3(2) of the National Security Act, 1980 (hereinafter called 'the Act'). The impugned order was passed with a view to preventing him from acting in any manner prejudicial to the maintenance of public order. The impugned order was passed by Shri Arun Bhagat, the then Commissioner of Police, Delhi, and was served upon him in Central Jail, Delhi, on 3rd January, 1992. The grounds of detention were served on the petitioner on 7th January, 1992.

2. The facts germane to the present petition are that the petitioner resident of Village Jawali, Police Station Loni, District Ghaziabad (U.P.) had been an active Crimesminal indulging in acts of violence, murder, attempt to murder, planning for dacoity, attack on public servant, Crimesminal intimidation, robbery and use of Explosive Substances. He was involved in as many as 14 cases. From these activities it was found that he was restless, 'desperate and highly dangerous Crimesminal. He had planned heinous Crimesmes like dacoity and also conspired to kidnap for ransom. He did not hestitate to attack and snatch Government arms from the Government servants engaged in the per­formance of their lawful duties. Under these circumstances, it was considered that his activities were a menace to the public at large as he had created a sense of terror and insecurity. Though he was a permanent resident of U.P. but he used to commit Crimesmes in Delhi which were highly prejudicial to the maintenance of public order. It was also found that he was in custody in case F.I.R. No. 79 dated 28th July, 1991 under Sections 364/365/34/368/341/342/386/506/171/120-B, I.P.C. P.S. Alipur, Delhi. It was also consider­ed that since he had been granted bail by the High Court, there was every possibility that after being released from the Jail, he will again indulge in the activities which were highly prejudicial to the maintenance of public order.

3. From the above facts, it is clear that while the petitioner was still in judicial custody, the impugned detention order was passed under Section 3(2) of the Act and was served on him. In the grounds of detention he was also made aware that if he so liked, he could make representation to the Administrator of Delhi and/or of the Advisory Board of Delhi High Court against his detention. He was further informed that in case he desired to make representation to the Central Government, he could do so through Superintendent Central Jail, Tihar. The relied upon documents were supplied to him.

4. In this petition the petitioner has raised several grounds challeng­ing his detention. However Mr. Rohit Kochhar during the course' of arguments restricted his points on the following grounds namely:

1. There has been a suppression of vital and material facts and documents from the detaining authority which vitiates the detention.

2. That all the relied upon documents mentioned in the ground of detention were not supplied to the detenu in Hindi transla­tion, which is the only language the detenu can read, write and understand and that there has been a long and unreason­able delay in consideration of the petitioner's representation dated 15th January, 1992.

5. Taking up the ground No. 2 first. Mr. Rohit Kochhar Counsel for the petitioner contended that the non supply of Hindi translation of the relied upon documents would vitiate the detention. The petitioner is from U.P. and knows only Hindi. A duty is cast, under Article 22 (5) of the Constitution of India, on the respondents to ascertain at the time of arrest of the detenu, as to what is his mother tongue. After having ascertained the same the documents in that very language have to be supplied to the detenu. In this case, the relied upon documents particularly the Hindi translation of these documents (annexures VII, XX, XXII, XXIV, XXVI, XXXVI, XXXIX and XXXI) were not supplied to the detenu and therefore the detention is vitiated. In order to strengthen his arguments, Mr. Rohit Kochhar has placed reliance on various decisions of the Supreme Court which arc listed as follow:—

1. Mehrunissa v. State of Maharashtra, reported in AIR 1981, SC 1861.

2. Ibrahim Ahmed Bhatti v. State of Gujarat and Ors. reported in AIR 1982 Supreme Court page 1500.

3. Nainmal Pratap Mal Shah v. Union of India & Ors. reported in AIR 1980 Supreme Court page 2129.

4. Hadibandhu Das v. District Magistrate reported in AIR 1969 Supreme Court page 43.

5. Haji Zaffar v. Union of India& Ors., reported in 1984(1) Crimesmes page 886.

6. Tsering Dolkar v. Union of India & Ors., reported in AIR 1987 Supreme Court page 1192.

He also placed reliance on the decisions of this Court in the case of Dev Prakash v. Union of India & Ors reported in 1988 (2) Delhi Lawyer page 333 and Sat Pal Shah v. Union of India and Ors. reported in Crl. W. 236/87 decided on September. 2, 1987. In all these authorities it has been held that the relied upon documents mentioned in the grounds of detention are to he supplied along with their translation in the language known to the detenu. Relying on these judgments, Mr. Kochhar contended that the non supply of the Hindi translation of these documents would vitiate the detention. This plea was raised in paras 6 and 23 as well as ground IV and XII of the petition. In the counter affidavit, the respon­dent has admitted that the Hindi translations of the documents referred in those paras were not supplied. The reason given for non supply of Hindi translation is that these were the bail applications filed by the petitioner. In view of this admission, the detention of the petitioner be­comes illegal. It amounts to depriving him his fundamental right of having documents in the language known to him. The communication dated 20th February. 1992 was also not supplied to the detenu in Hindi language. This also violated his fundamental right. Hence his detention and continuance detention has become illegal and bad in law. The petitioner can only rend, write and understand fluently the Hindi language. He cannot read, write and understand English language.

6. Mr. Sharma appearing for the respondent, Delhi Administration contended that all the documents relied upon by the respondents were supplied to the detenu in English as well as in Hindi In order to strengthen his arguments Mr. Sharma drew the attention to the admission made by the petitioner of having received all the relied upon documents in Hindi. In para 3 of the petition, the petitioner has admitted that the Hindi transla­tion of most of the accompanied relied upon documents were supplied to him. Para 3 of the petition is reproduced as under:

“The petitioner respectfully submits that on 7th January, 1992 i.e. after a period of four days, the petitioner was also served with the grounds of detention and the accompanying documents as per the list enclosed. It is relevant to mention that a Hindi translation of most of the accompanying “relied upon” documents were also served upon the petitioner on 7th January, 1992 in Central Jail, Tihar, New Delhi. A copy of the English version of the grounds of detention is enclosed.”

7. Coupled with this admission of the petitioner, Mr. Sharma also placed on record the photo copy of the acknowledgement dated 7th January, 1992, issued by the petitioner at the time of receipt of documents in Jail. Acknowledgement is reproduced under:

“I have received the copies of the grounds of detention in English and Hindi along with copies of its annexures 1 to 44 in Hindi and English upon Madan Baiya against proper receipt. The documents have been read over to him and contents of the same has also been explained to him in Hindi and he is understood of the same. He has also been informed that he has a right of appeal against his detention to the Lt. Governor, Delhi Advisory Board of Delhi High Court and Central Government.”

From the bare reading of this acknowledgement it is clear that he admitted having received 79 pages consisting of Annexures 1 to 44 in English as well as copies of Hindi translation of these annexures enclosed with the grounds of detention. From this acknowledgement it is also clear that he became aware of the contents of all the documents. He was also made aware that he could make a representation to 'he Lt. Governor Delhi Advisory Board. Delhi High Court as well as to the Central Government. Mr. Sharma there­fore contended that in view of the acknowledgement / admission of having received translated copies of all the documents in Hindi:

It does not lie in the mouth of the petitioner now to say that he was not supplied with the copies of relied upon anncxures in Hindi translation. Mr. Sharma further contended that the petitioner never raised any such protest at the first available opportunity. To strengthen his arguments he drew my attention to the represen­tation made by the petitioner dated 15th January. 1992 to the Lt. Governor of Delhi as well as to the Secretary. Ministry of Home Affairs. Government of India, Delhi. This representation is in English signed by the petitioner. Through this representation, the detenu contested the grounds of detention and supported his defence by placing reliance on varions decisions of this Court. In his representation he also mentioned that he was a social and political activist, newly elected M L.A. No where he stated that he did not know English or that Hindi translation of all the relied upon documents have not been supplied. Therefore, Mr. Sharma contended that the plea now taken up by the petitioner is after­thought.

8. I find force in the submission of Mr. Sharma, firstly, because of the acknowledgement/endorsement dated 7.1.1992 made in his own hand­writing, the petitioner has admitted having received annexures 1-44 relied upon and enclosed with the grounds of detention, in English as well as its Hindi translation consisting of 79 pages, and, secondly the petitioner did not even once protested of non supply of Hindi translation at the first available opportunity i.e. when he made his representation on 15th January, 1992, There is no mention rather complete silence on this aspect. He has in fact in no uncertain words admitted the supply of Hindi translation of the relied upon documents. That is the reason in the counter affidavit filed by the UOI it has been specifically mentioned that the Hindi Translation of the documents were supplied to the petitioner as required. To the same effect is the reply to para 6 and ground IV in the counter affidavit filed by the respondent. The documents were supplied to him on 7th January, 1992 and he made a representation on 15th January, 1992. Relying on this representation he is taking up the plea that there was delay in disposal of his representation which ought to have been decided with promptitude and expeditiously. As pointed out above in his representation not even a suggestion had been given that he had not been supplied the Hindi transla­tion of the documents.

9. So far as the decision cited by Mr. Koch bar, of Mehrurissa v. State of Maharashtra reported in AIR 1981 Supreme Court page 1861 the Supreme Court was dealing with the case where the material documents were not supplied to the detenu at all. In the case of Ibrahim Ahmed Bhatti (supra) the urdu translation of the documents were supplied, late for which no reason was assigned. The Supreme Court was not dealing with the case like the present one, where the translated copies of the bail applica­tions filed by the petitioner were not supplied. In the case of Ibrahim Ahmed Bhatti. the statements and the documents which were very material and incoporated in the grounds were not supplied in Urdu but that is not the case in hand. On the other hand, in the case of Abdul Sathar Ibrahim Manik v. Union of India and Ors, reported in 1 (1992) CCR 12 (SC) it has been held by the Supreme Court that failure to supply documents namely bail application and Order refusing bail does not deprive the petitioner of making effective representation nor will it make the detention illegal and violative of Article 25 (2) of the Constitution of India. Mr. Kochhar, however tried to draw distinction by urging that the Supreme Court in the case of Abdul Sathar Ibrahim Manik was dealing with case where bail applications were rejected and, therefore, the Court was of the view that non-placement of these orders and applications was not material. Therefore, even if those documents were not supplied it did not prejudice the petitioner. I am afraid, this distinction will not in any manner, effect the law laid down by Supreme Court in that case. In Abdul Sathar (supra) Supreme Court held that:

“If the detenu had moved for bail, then the application and the order thereon refusing bail even if not placed before the detaining authority, it does not amounts to suppression of relevant material”. “Accordingly the non supply of copies of bail application or the orders refusing bail to the detenu can not affect the detenu's right of being afforded a reasonable opportunity guaranteed under Article 22 (5) where it is clear that the authority has not relied or referred to the same. When the detaining Authority has merely referred to them in the narration of events and has not relied upon them, failure to supply bail application and order refusing bail will not cause any prejudice to the detenu in making an effec­tive representation”.

Relying on these observations, it cannot be said that the documents referred to and relied upon in the grounds had not been supplied to the detenu. On the basis of these observations it can be said that the documents mentioned in para 6 and ground IV of the petition, to ray mind, even if the copies in Hindi were not supplied it will not make the detention illegal nor it vitiates Article 22(5) of the Constitution of India. Relied upon documents, as already observed above, were supplied to the detenu in jail on 7.1.1992 in order to facilitate him to make purposeful and effective representation. However, if the Hindi translations of the applications for bail filed by the petitioner himself were not supplied, to my mind, it has not caused any prejudice to the petitioner. From the ground of detention, it is clear that the factum of petitioner being in jail and having got bail from the High Court was made known to the detaining authority. Hence no right of the petitioner has been violated.

10. In the case of Ibrahim Ahmed Bhatti (supra), the Supreme Court observed that:

“the prevention detention is a serious invasion of personal liberty and the normal methods open to a person charged with commission of any offence to disprove the charge or to prove his innocence at the trial are not available to the person preventively detained and therefore in preventive detention jurisprudence whatever little safeguards the Constitution and the enactment authorising such detention provide assume utmost importance and must be strictly adhered to”.

These observations make it clear that the documents are to be supplied expeditiously and within the shortest possible time, unless exceptional circumstances exist, in order to make the detenu aware as to on what ground he has been detained and to enable him to make a purposeful representa­tion. Since the detenu at times is served with the grounds of detention when he is in Jail he may not be having an excess to a lawyer, and therefore, the intention to supply the document in his language arises. In this case though the detenu was in Jail, he was supplied Hindi translations of all the relied upon documents. Moreover, it cannot be said that he did not know Eng­lish. He is an M.L.A. He made his representation in English on 15th January, 1992. In this representation he nowhere stated he did not know English. Even otherwise the bail applications and the bail bonds were filed by him. Therefore, even if the copies of these bail bonds and appli­cations were not supplied in Hindi, it will not make his detention illegal nor it would amount to violation of any of his fundamental right. He was not handicapped in any manner in making his representation. Documents were received by him on 7.1.92 and he made his detailed representation on 15.1.92 this shows he knew the contents of the documents mentioned in para 6 of the petition. He had the Hindi translation of all the relied upon documents and, therefore, could submit the detail representation by 15.1.92. So far as non supply of order of confirmation dated 20.2.92 is concerned the respondent's contention has a force. The petitioner raised this ground in para 23 of the petition. In reply to para 23 respondent took the stand which is reproduced as under :

Reply to para 23

“That allegations made in para No. 23 of the writ petition are mis-conceived, irrelevant and are denied. With respect, it is submitted that prior to the communication of order of confirmation . of 20.2.1992, the petitioner had already made the representation on 16.1.1992 and 11.2.1992. The order of confirmation, in any way, cannot be considered a relevant document for consideration while passing the order of detention. It can not be a document relevant to the grounds of detention. It is wrong that the funda­mental rights of the petitioner had been invaded.”

To my mind, the contention of the respondent has a force. So far as the order passed by the Administrator of the Union Territory of Delhi under Section 3(4) is concerned, the Hindi copy of the same was supplied to the detenu. Therefore, the authority cited by the petitioner of this Court in the case of Virender @ Jatta v. Union of India & Ors. reported in 1988 (2) Delhi Lawyer 226 is not applicable to the facts of this case.

11. The other ground taken by Mr. Rohit Kochhar is suppression of material facts and documents from the detaining authority. In para 13 of his petition the petitioner has enumerated as many as XIV documents which according to him were not placed before the detaining authority. According to him had these documents been placed it would have a material bearing on the mind of the detaining authority at the time of taking the decision. These documents in short are enumerated as under:

(i) All bail application and bail orders pertaining to 14 cases in which the petitioner was charged.

(ii) The order by which the petitioner was released on bail,

(iii) Conditional bail order dt. 4.12.1991

(iv) Copy of the bail application,

(v) Release order

(vi) Bail application

(vii) Conditional bail order dt. 27.11.1991.

(viii) The factnm of petitioner being not identified in the Identifi­cation Parade.

(ix) Discharge order passed by the A.D.J. Mcerut.

(x) Discharge order by the A.D.J. Delhi.

(xi) The petitioner contesting the election as M.L.A. from Khekhra constituency. District Mecrut, U.P.

(xii) All the statements recorded by the police under Section 161 of the Cr. P.C.

(xiii) Retraction dated 9th October, 1991 of Shri Sarder Singh in respect of case being F.I.R. No. 79 of 1991.

(xiv) Copy of the order passed by the A.S.J. New Delhi on 31.10.1991 in F.I.R. No. 560/91.

12. In reply to para 13, the respondent in its counter affidavit admitted that the order granting bail was not in the knowledge of the respondent therefore not placed before the detaining authority. Similarly the state­ments recorded under Section 161 Cr. P.C. in F.I.R. No. 144/91 were also not placed before the detaining authority. The plea raised by the respondent is that this F.I.R. pertains to Police Station, Civil Line, Meerut and since the case was not investigated by the Delhi Police, therefore, the statement recorded under Section 161 Cr. P.C. were not placed before the detaining authority. Similarly, the retraction statement of Shri Sardar Singh in case F.I.R. No. 79/91 of P.S. Alipur, Delhi was also not placed before the de­taining authority. According to respondent the fact regarding retraction of his statement by Sardar Singh co-accused was not in the knowledge of the Sponsoring Authority, therefore, it was not placed before the detaining authority. The admission on the part of the respondent that the order granting bail and statements recorded under Section 161, Cr.P.C. in F.I.R. No. 144/91 were not placed before the detaining authority nor the retraction statement, to my mind, amounts to suppression of vital and material facts. Non placing of these documents before the detaining authority would vitiate the detention, making the detention illegal. The petitioner has placed on record the attested copy of the retraction statement made by Shri Sardar Singh in F.I.R. No. 79 dated 28.7.1991 of P.S. Alipur, a case registered in Delhi. That case is based on the disclosure statement of Shri Sardar Singh, a co-accused of the petitioner, involving the petitioner. Therefore, Sardar Singh's retraction statement was very material and vital document which, to my mind, ought to have been placed before the detaining autho­rity. The contention of the respondent that this document was not in the knowledge of the sponsoring authority, to my mind, shows the casual atti­tude of the respondent. This retraction statement was filed before the C.M.M. Delhi. The State is always represented and when this retraction statement was filed, State must have been supplied a copy of the same. So it does not lie in the mouth of the respondent now to say that this document was not in their knowledge. By merely denying the knowledge of the existing of this document, the respondent cannot shirk its responsi­bility. This fact rather proves the case of the petitioner that the respondent had adopted a very callous attitude to this case. After all the case of the petitioner in case F.I.R. No. 79/91 was investigated by Delhi Police and this document was filed in the Court. The State cannot shirk its respon­sibility by saying that this document was not supplied to it. It is the duty of the Sponsoring Authority to collect all the relevant material and place it before the detaining authority. Having not done so, to my mind, the detention of the petitioner has become illegal. In this regard I am suppor­ted by the decision of our own High Court in the case of Andrew Simon King v. Union of India & Ors., reported in 1988 (1) Delhi Lawyer 50 (DB).

13. On this ground alone I am of the view that the petition is liable to be allowed. The impugned detention is illegal and violative of Article 22 (5) of the Constitution of India. Therefore, the detention of the petitioner and the continuous detention are declared illegal and bad in law. The rule is made absolute. The petitioner, if not required in any other caw, be released forthwith.

Advocates List

For the Petitioner Rohit Kochhar, Harminder Chawla, Sunil Gautam, Manjula Chawla, Advocates. For the Respondents P.S. Sharma, Advocate.

For Petitioner
  • Shekhar Naphade
  • Mahesh Agrawal
  • Tarun Dua
For Respondent
  • S. Vani
  • B. Sunita Rao
  • Sushil Kumar Pathak

Bench List

HON'BLE MS. JUSTICE USHA MEHRA

Eq Citation

(1993) 49 DLT 174

(1993) 25 DRJ 269

(1993) CRILJ 818

1993 (1) CRIMES 483

(1993) RLR 15