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Allahabad High Court has recently upheld the detention order against Mohseen Saleem Sheikh, one of the accused in the criminal conspiracy of 'brutal murder' of the President of the Hindu Samaj Party, Kamlesh Tiwari.

District Magistrate, Lucknow on July 12, 2020, passed a detention order against Sheikh under Section 8 of the National Security Act on the ground that he was a part of the 2-3 year-long conspiracy of Tiwari’s murder and even arranged the pistol and cartridges for its execution.

Sheikh has already completed his detention period on July 1, 2021, however, he is confined in jail because of a criminal case against him. Even though Sheikh’s period of detention is already over, the High Court found justification in DM’s detention order.

Refusing to interfere in the matter as the detention period was already over, the Bench of Justice Ramesh Sinha and Justice Saroj Yadav however upheld the detention order and stated,

“…it can't be held on the facts of the case that the detention order could not have been passed or the order so passed was not valid or not in accordance with law.”

Court was hearing a petition filed by Sheikh, through his relative Pathan Saeed challenging DM Lucknow’s detention order on the grounds that the detaining authorities had failed to appreciate that Sheikh had no criminal antecedents and the preventive order had been passed in a mechanical manner without application of mind.

It was also alleged by Sheikh that the order of detention was patently punitive and not preventive as it failed to address the issue as to why no such order was issued against any other co-accused, who had already been enlarged on bail before Sheikh.

However, the respondent State counsel had submitted that Kamlesh Tiwari was a renowned Hindu leader and on account of his brutal murder in a broad daylight, the normal life of the area was completed deteriorated and public order was disturbed.

He had said that therefore, after going through the reports of the sponsoring authority, the Detaining Authority had minutely considered the matter and had rightly passed the order of detention recording subjective satisfaction that if Sheikh was released on bail, there was every possibility to disturb the communal harmony as well as public order in the area.

Thereafter, considering the rival submissions of both the parties and material on record, Court held,

“It transpires from the record that the detenue/petitioner is the main culprit in making conspiracy in the brutal murder of the President of the Hindu Samaj Party, Kamlesh Tiwari.”

Further adding that the detaining authority had considered the series of the events in Tiwari’s murder and had rightly concluded that if Sheikh is enlarged on bail, he would create a public order situation, court held,

“Hence the grounds are made out for detaining the detenue under the provisions of N.S.A.”

Resultantly, finding the writ petition sans merit, the court dismissed the same.

The Murder

On October 18, 2019, two men Asfaq and Moinuddin, in a planned manner, entered Kamlesh Tiwari’s house in Lucknow’s Khursheed Bagh neighborhood and in broad daylight, brutally murdered him by slitting his throat and shooting him.

Sheikh is accused of arranging pistol and cartridges for his co-accused for the murder.

Reportedly, as per the investigators, Tiwari’s murders were influenced by a Maharashtra-based youth, Sayyed Asim, who is an activist and also used to post inflammatory videos on social media. Ashfaq was allegedly radicalised by those videos and speeches.

The present plea 

A charge sheet in this incident was filed on December 21, 2019, against thirteen persons including the present petitioner Sheikh under various sections of IPC including Section 302 and 120-B.

Sheikh, who was arrested for allegedly conspiring to commit the murder of Tiwari, filed a bail plea on June 23, 2020, before the lower court, however, the same was dismissed for want of prosecution vide order dated July 21, 2020.

Thereafter, he moved High Court with his application for bail, which is pending adjudication.

Meanwhile, on June 24, 2020, a dossier was submitted by the Police Station in Charge against the petitioner to the Commissioner, Lucknow with recommendations of preventive detention on the ground that he was trying to get bail in the matter.

It was further requested to forward the same to the District Magistrate, Lucknow so that a detention order under N.S.A. could be passed against him.

Pursuant to this recommendation, DM, Lucknow had passed the detention order against Sheikh challenging which, Sheikh had moved the High Court by filing the present writ.

Case Title: Mohseen Saleem Sheikh v. U.O.I. Thru Secretary, Min. Of Home Affairs, New Delhi & Ors.