"Delay In Deciding Representation": Allahabad HC Quashes NSA Detention Of Accused In 'Journalist Shubham Tripathi Murder Case'

Tripathi, who was a journalist by profession and the district correspondent of a news daily 'Kampumali' published from Unnao and who used to cover stories related to land mafias, was allegedly murdered by Awasthi and other co-accused persons.

The Bench of Justice Ramesh Sinha and Justice Saroj Yadav quashed the NSA detention, noting that there had been a cumulative delay in disposal of Awasthi's representation by the District Magistrate, Unnao as well as Central Government.

Facts in brief

Allegedly, on June 19, 2020, Shubham Tripathi was murdered by Awasthi and others and a First Information Report (FIR) was registered against him under Sections 147, 148, 149, and 302 read with Section 34 and Section 120B of the Indian Penal Code.

Pursuant to this, Awasthi was arrested and detained in judicial custody and while he was in jail, the Inspector In-charge, Police Station Gangaghat, District Unnao forwarded a dossier to the Superintendent of Police (SP), Unnao, which was further forwarded to the District Magistrate, Unnao, recommending his detention under National Security Act, 1980.

The impugned detention order was passed on September 6, 2020, and opposing the same, he moved a representation dated September 22, 2020, before the concerned authorities, however, the Court found that the process of deciding this representation was delayed by the local authorities and central Government.

Submissions made before the Court

It was argued by Awasthi's counsel that the proceedings recommending invocation of N.S.A. had been initiated by the sponsoring authority much belatedly after two and half months of the alleged solitary incident of 19.06.2020 (murder).

Further, it was contended that a perusal of the impugned order of detention passed by the detaining authority as well as the impugned order of affirmation passed by the State Government revealed that it does not specify the period for which detention had been ordered.

Lastly, it was argued that there was an inordinate and unexplained delay in adjudication of the representation of the detenue by the Central Government, hence constitutional safeguard provided to the detenue under Article 22 (5) of the Constitution of India was violated.

Court's observations

The Court observed that it is true that neither Article 22(5) of the Constitution of India nor N.S.A. has prescribed time limit for consideration of representations, however, the Court remarked thus:

"…if one looks at various provisions of N.S.A., prescribing specific periods for furnishing grounds of detention, approval of the detention by the State Government, submitting a report to the Central Government and Advisory Board, the period prescribed for considering the detention order and representations by the Advisory Board, etc. the intention of the legislature can safely be inferred those representations of detenues have to be considered with all promptitude"

"Suffice is to hold that even though there is no fixed period of time for disposal of representation, the underlying message in the law is that all the concerned authorities, who are empowered to issue, approve or revoke detention orders, are duty-bound to consider and dispose of the representations as expeditiously as possible," the Court further added.

Importantly, the Court did not find any substance in Awasthi's contention that the detention order and the order confirming the detention order were bad in law as they did not mention the period of detention at the first instance.

However, the Court was of the view that there had been an unexplained delay of seven days on by the District Magistrate, Unnao in forwarding Awasthi's representation to the Central and State governments.

Further, the Court was informed that the Central Government received his representation on October 5, 2020 but it came to be rejected only on November 16, 2020 and therefore, in this way, 43 days' time was taken by the Central Government to perform its legal duty and for which no valid explanation had been put forth, noted the Court.

Lastly, quashing his detention, the Court opined thus:

" …we are of the view that the plea of the detenue/petitioner that there is a delay in forwarding the petitioner's representation on the part of the District Magistrate, Unnao, and also delay in disposal of the petitioner's representation on the part of respondent no.1 (Union of India), has substance and on this count alone, the impugned detention order is liable to be quashed," the Court said.

In the result, the instant Habeas Corpus Petition was allowed and the impugned order of detention dated September 6, 2020 and the consequential orders were quashed.

Awasthi was ordered to be set at liberty forthwith unless required in connection with any other case.

Case title - Kanhaiya Awasthi Thru Next Friend Shivangi Awasthi v. UOI Thru Secy. Home Affairs New Delhi & Ors.

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