R.K. Rastogi, J. - (1.) THIS parole appli cation has been moved by the petitioner Kamlesh Pathak on 26.3.2009 for grant of parole of three months to enable him to contest the election for Lok Sabha.
(2.) THE facts relevant for disposal of this application are that the petitioner has been a member of the Legislative Assembly from the Samajwadi Party in the State of UP on two occasions. He is an active worker of the Samajwadi Party and he has been declared as a candidate by the Samajwadi Party from Akbarpur Constitu ency in the ensuing Lok Sabha election. THE petitioner's case is that some highly placed persons of the ruling Bahujan Samaj Party are inimical towards him and they wanted to taint his image. Hence, two cases were registered against him. THE first was crime No. 487 of 2008 under sections 147, 148, 149, 307, 436, 336, 332 and 353 IPC, section 7 of Criminal Law Amendment Act & sec tion 3/6 Prevention of Damage to Public Property Act at Police Station Kotwali, District Auraiya. This case was registered against thirty five accused persons. Out of them twenty five persons were arrested on the spot and ten persons were shown to have run away from the spot after the incident. THE name of the petitioner finds place as accused No. 1 in the column of those accused persons who had allegedly run away from the spot. On the same day an other FIR was also registered at Police Sta tion Kotwali, District Auraiya as crime No. 487-A of 2008 under sections 147, 148, 149, 307, 436, 336, 332 and 353 IPC, section 7 of Criminal Law Amendment Act and sec-tion-3/6 Prevention of Damage to Public Property Act. Twenty persons were named as accused persons in this FIR and the name of the petitioner finds place at Serial No. 1 in the column of the accused persons. It was further stated that 100 to 150 un known persons had also participated in the incident. It may also be mentioned in con nection with this FIR that ten persons who had been listed as accused No. 11 to 20 were arrested on the spot and the remain ing accused persons Nos. 1 to 10 including the petitioner had allegedly run away from the spot. It was further alleged that due to these incidents public order was disturbed. Hence, on account of these two incidents as well as due to petitioner's prior involve ment in case crime No. 43 of 1991 of police station Kotwali, District Auraiya, in case crime No. 92 of 1985 Police Station Nava-garh District Farrukhabad and in some other cases, a report was sent for his deten tion under the National Security Act by the SHO of Police Station Kotwali, Auraiya to the District Magistrate, Auraiya through proper channel and the District Magistrate Auraiya after considering this report as well as recommendations of the concerned authorities passed an order on 28.1.2009 under section 3 (2) of the National Security Act for his detention. THE petitioner moved his representations against the above order but since he did not receive favourable de cision from the concerned authorities, he filed habeas corpus writ petition No. 13411 of 2009 challenging the detention order as well as the grounds of detention. It was also pleaded that the petitioner is a law abiding citizen and that he has not been convicted in any case so far, and he has been falsely implicated on account of po litical vengeance. The petitioner had also moved an application for parole along with the above petition. Objections on this application were invited and a date was fixed for its disposal. A counter affidavit of Sri O.K. Rai, C.O. City, Auraiya on behalf of respondent No. 2 the State of UP was filed in reply to the parole application. A counter affidavit was also filed by Sri Rajiv Kumar Singh, Deputy Jailor, District Jail, Pilibhit on behalf of respondent No. 3, but that is in reply to the petition and not the parole application. No counter affidavit or objec tion has been filed by any other respon dent. However, at the time of arguments on this parole application, it was pointed out by the learned Government Advocate that under section 15 of the National Security Act, the petitioner has got right to move an application for parole before the appropri ate Government, and so he should first move the parole application before the Government, and his parole application moved before this Court was premature and not maintainable. The Court agreeing with the above contention of the Government Ad vocate, rejected the above parole applica tion as premature with this option to the petitioner to move his parole application before the Government, and a direction was also issued to the Government to de cide the parole application of the petitioner at an early date preferably within a period of one week from the date of moving it be fore the Principal Secretary, Home, U.P. Government; and a further direction was issued that this application should be de cided by a speaking order. The above pa role application moved before this Court stood decided in the aforesaid manner vide order dated 18.3.2009.
(3.) ON 26.3.2009 the petitioner moved a fresh parole application which was regis tered as Criminal Misc. Application No. 80925 of 2009 in which it was stated that he had moved the parole application before the Principal Secretary Home on 20.3.2009 and since no order had been passed on that application, he was moving this fresh pa role application before this Court. Objec tions to this parole application were invited and the State filed a reply mentioning that the parole application had been rejected by the Government on 30.3.2009. Thereafter when this parole application was taken up for hearing a preliminary objection was again raised by the learned Government Advocate that the petitioner had not chal lenged the order passed by the Govern ment on his parole application, and so no relief could be granted to the petitioner in this parole application unless and until he challenges the order passed by the Gov ernment on the parole application. This plea was upheld by this Court vide order dated 31.3.2009 and the petitioner was provided an opportunity to take suitable steps in the light of the order. Then the petitioner filed a sup plementary affidavit on 1.4.2009 with which the rejection order dated 30.3.2009 passed by the Government was enclosed as Annexure SA-1 and it was challenged on the ground stated in para 3 that it had been passed without application of mind in an arbitrary manner with ulterior motives and mala fide intentions. Thereafter arguments of both the parties were heard on this pa role application on 1.4.2009 and the order was reserved. Learned Counsel for the parties wanted time to file photo copies of the rulings relied upon by them, and they were provided time upto 2.4.2009 to file them.;