The Allahabad High Court has quashed the detention of Kanhaiya Awasthi under the National Security Act (NSA), an accused in the Shubham Tripathi murder case. (Kanhaiya Awasthi Thru Next Friend Shivangi Awasthi v. UOI Thru Secy. Home Affairs New Delhi & Ors.)
Justices Ramesh Sinha and Saroj Yadav quashed the NSA detention, finding that there was a cumulative delay on the side of the District Magistrate, Unnao and the Central government in deciding a representation made by Awasthi against the NSA detention order of September 6, 2020.
The detention was set aside solely on this ground, with the Court observing that,
"... 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. By now, it is also the settled principle of law that even if some delay in consideration of the representation may not become fatal to the detention but non-explanation of the same would certainly impeach the detention order."
The Court was hearing a habeas corpus petition moved by Kanhaiya Awasthi, who has been accused of murdering Shubham Tripathi, a district correspondent who was working with a news daily, ‘Kampu Mail’.
On June 19, 2020, Tripathi, who is known for having covered stories pertaining to the "land mafia", was shot dead. Awasthi has been accused of being part of the killing.
Shubham Tripathi's brother, Rishabh Mani Tripathi, had lodged a First Information Report (FIR) on the same day, which was registered under Sections 147, 148, 149, and 302 read with Section 34 and Section 120B of the Indian Penal Code and Section 7 of the Criminal Law Amendment Act, 1932.
Later, Awasthi was arrested and detained in judicial custody during which time, the Inspector In-charge, Police Station Gangaghat, District Unnao forwarded a dossier to the Superintendent of Police (SP), Unnao.
The SP, in turn, forwarded the same to the District Magistrate, Unnao, recommending that the detention of Awasthi may be ordered under the appropriate provisions of National Security Act, 1980. The NSA detention order was issued on September 6, 2020.
Opposing the move, Awasthi moved a representation dated September 22, 2020, before the concerned authorities.
The Central government and local authorities delayed the process of deciding this representation, Awasthi contended before the High Court. The petition was moved through his sister-in-law (next of kin).
That the proceedings recommending the invocation of NSA was initiated by the sponsoring authority belatedly, after two and half months from the alleged solitary incident (the killing of Shubham Tripathi).
That the detention order of affirmation passed by the State government did not specify the period for which detention has been ordered, and was, hence, bad in law.
That there was an inordinate and unexplained delay in adjudication of Awasthi's September 22, 2020, representation by the government. Hence, the Constitutional safeguard provided to the detenue under Article 22 (5) of the Constitution of India was violated.
While deciding the matter, the Court found that neither Article 22(5) of the Constitution of India nor the NSA prescribed a time limit for considering representations against the detention. However, the Court emphasised that such representations should be decided expeditiously.
"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 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 that representations of detenues have to be considered with all promptitude," the Court held
The Court found that there is no 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 proceeded to conclude that the detention ought to be quashed since there was a disproportionate delay in deciding on Awasthi's September 22, 2020, representation.
The Court found that there was an unexplained delay of about seven days on the side of the Unnao Magistrate in forwarding Awasthi's representation to the Central and State governments. The Court was further informed that while the Centre received Awasthi's representation around October 5, 2020, it was rejected only on November 16, 2020 (after a gap of 43 days).
While the Centre explained some of the time taken in this regard, the Court found no satisfactory explanation was given with respect to several other days when the representation remained unprocessed.
Allegations of delay were also made by Awasthi against the State government. However, the Court found that the State had satisfactorily explained the time it took to decide on Awasthi's representation.
The Court proceeded to quash the NSA detention order against Awasthi, opining that, "both the District Magistrate, Unnao and the Central Government were at fault."
"We are of the view that the plea of the detenue/petitioner that there is 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.
The Court ordered that Awasthi be set free, unless he is required in connection with any other case.