J.S.SEKHON,J - (1.) THROUGH this writ petition, Joga Singh petitioner seeks the quashment of the order dated 2.2.1989 of the State Government (Annexure P-1) passed under section 268 of the Code of Criminal Procedure, 1973, directing the authorities not to move out the petitioner out of Central Jail, Ambala, inter alia, on the ground that the order Annexure P-1 is not a speaking order and suffers from the vice of nonapplication of mind.
(2.) ON notice, return has been filed by Shri R. S. Rajan, Superintendent of Police, Kurukshetra, questioning the maintainability of this petition in view of the ratio of the decision of the Supreme Court in Usmanbhai Dawoodbhai Memon v. State of Gujarat, 1988(1) RCR(Crl.) 540 (SC) : AIR 1988 SC 922. On merits, it is maintained that the Government had passed the order after full application of mind to the facts and circumstances of the case. I have heard the learned counsel for the parties. The ratio of the decision of the Apex Court in Usmanbhai Dawoodbhai's case (supra) is not applicable to the facts of this case. In that case the controversy before the Apex Court was, whether the High Court had the jurisdiction to grant bail to an accused-person facing trial under the provisions of the Terrorists and Disruptive Activities (Prevention) Act, 1987, whereas in the case in hand, the petitioner is not seeking quashment of the case or bail etc., but he has challenged the order of the State Govt. passed under section 268 of the Code for his confinement in the Central Jail, Ambala. Obviously, the impugned order Annexure P-1 was not passed under any provision of the Terrorists and Disruptive Activities (Prevention) Act. Thus, the present petition under section 482 of the Code of Criminal Procedure for the quashment of the order is maintainable in this Court.
(3.) THE Haryana Government had passed order Annexure P-1 which reads as under :- "Whereas the persons mentioned in the Schedule given below have been confined in the Central Jail, Ambala as under trial in connection with various offences indicated against their names. And whereas having regard to the nature of the offences for which they have been ordered to be confined and from the material placed before him the Governor of Haryana is satisfied that there is likelihood of the disturbance of public order if the persons mentioned in the said schedule are allowed to be removed from the jail (Prison). Now, therefore, in exercise of powers conferred by section 268 Cr.P.C. 1973 the Governor of Haryana hereby directs that till further orders, the persons mentioned in the said schedule shall not be removed from the Central Jail, Ambala in which they are confined. (Relevant portion of the Schedule pertaining to present petition reads as under)." SCHEDULE Sr. No. Name and Percentage FIR No. and dated P.S. Offence 6. Joga Singh s/o Jarnail Singh 277 dt. 8.5.88 City Panipat 302/307/148/149/120-B/216 IPC 3/4/5 TD Act. 168 dated 20.6.88 Pehowa 302/307 IPC 3/4/6 TD Act. 173 dated 11.6.88 Safidon 392 IPC A bare glance through this order or the schedule appended thereto leaves no doubt that the concerned authority has not applied its mind to the facts and circumstances of the case which prompted it to confine the petitioner in the Central Jail, Ambala. It is noteworthy that the return has not been filed by the official or authority who had passed the impugned order but by S.H.O. of P.S. City Panipat and Superintendent of Police, Kurukshetra who are not expected or supposed to know the contents of .the memorandum on the original file which prompted the concerned authority to pass the impugned order although in the return filed by these persons it is averred that the order was passed after full application of mind to the facts and circumstances of the case yet all the same such application of mind being not spelt out in the impugned order itself clearly leads to the conclusion that this order was passed in a mechanical manner and not after full application of mind. The matter does not rest here as even in schedule figuring towards the fag end of this order, gist of circumstances of the case does not figure. ;