- (1.) M. Katju, J. We have heard Sri D. S. Mishra learned Counsel for the petitioner and learned Government Counsel.
(2.) THIS writ petition has been filed against the impugned detention order dated 27-5-2002 Annexure-1 to the petition passed under the National Security Act. The grounds of detention are given in Annexure-2 to the writ petition. The allegations against the petitioner as mentioned in the ground of detention Annexure-2 to the writ petition is that on 18-4-2002 at about 6. 15 p. m. the petitioner and his sons approached one Manoj Kumar Srivastava, Junior Engineer, Allahbad Development Authority and petitioner ordered his son to shoot Manoj Kumar Srivastava, at which the petitioner son Manoj Goswami shot Manoj Kumar Srivastava dead with a rifle. This caused panic in the locality and terror and even tempo of life was affected. It has been firstly submitted by Sri Mishra that the representation to the District Magistrate dated 1- 6-2002 copy of which is Annexure-RA-2 to the rejoinder affidavit has not been decided by the District Magistrate. This allegation has been made in paragraph 39 of the writ petition.
(3.) IN the counter-affidavit of the District Magistrate (in paragraph 20) it is stated that the representation of the petitioner addressed to the District Magistrate was considered and in view of the facts and circumstances the same was not accepted. We asked learned Government Counsel whether the District Magistrate has passed any order rejecting the petitioners representation but it appears that there is no such order. Hence we are of the opinion that in fact the representation of the petitioner to the District Magistrate was not decided by the District Magistrate. It has been held by a Division Bench of this Court in Idrish v. Secretary, Ministry of Home Affairs, 2002 (2) JIC 65 (Al): 2002 U. P. Crl. Rulings 718 (vide paragraph 4) that the power of the District Magistrate in deciding the representation of the detenue is completely independent of the power of the State Government in granting approval. It was the duty of the District Magistrate to have decided the petitioner's representation made to him on the merits of that representation. In Idrish's case (supra) the District Magistrate had rejected the representation because of the earlier approval of the State Government of the detention order. In the present case the District Magistrate has not even decided the representation dated 1-6-2002. In Kamlesh Kumar v. Union of India, 1995 SCC (Crl.) 643, it has been held by the Supreme Court that the right of the detenue to make representation to the District Magistrate is in addition to his right to make representation to the State Government and Central Government. Obviously when the detenue makes a representation to the District Magistrate the District Magistrate must apply his mind and decide the representation but in the present case the District Magistrate has not decided the same.;