Shyam Lal Yadav vs Union Of India Thru Secy. And 3 ...
2015 Latest Caselaw 5594 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 40
 
                                                                                                  Reserved
 
Case :- HABEAS CORPUS WRIT PETITION No. - 38427 of 2015
 

 
Petitioner :- Shyam Lal Yadav
 
Respondent :- Union Of India Thru Secy. And 3 Others
 
Counsel for Petitioner :- Anurag Yadav,Mahendra Pratap
 
Counsel for Respondent :- Govt.Advocate,A.S.G.I.(2015/1383),Deepak Mishra
 

 
Hon'ble Bala Krishna Narayana,J.

Hon'ble Naheed Ara Moonis,J.

(Delivered by Naheed Ara Moonis.J.)

The instant petition has been filed on behalf of the petitioner seeking the relief in the nature of Habeas Corpus directing the respondents to set him at liberty forthwith and also quashing the order dated 19.4.2015 passed by the District Magistrate Bhadohi and the approval order dated 29.4.2015 as well as the confirmation order dated 5.6.2015 passed by the State Government whereby the petitioner has been ordered to be detained in captivity for twelve months in exercise of power under section 3 (2) of the National Security Act 1980.

The emanation of facts unfolded compendiously is that ground of detention dated 19.4.2015 was served upon the petitioner while he was in judicial custody pursuant to the first information report registered against him vide Case Crime No. 181 of 2014 under section 302 IPC read with section 7 of Criminal Law Amendment Act . The basis of the detention besides the aforesaid case was another Case Crime No.182 of 2014 under sections 147/148/341/353/332 IPC read with section 7 Criminal Law Amendment Act and section ¾ Prevention of Damages to Public Property Act .

The first information report dated 5.8.2014 was lodged by Mani Lal Maurya at Police Station Gopiganj ,District Bhadohi with the allegation that his son Satish Maurya had gone at Hanuman Mandir situate at Jakhaon Police Station Gopiganj District Bhadohi on 5.8.2014 at about 2.00 p.m. to offer prayer and on the issue of recital of Ram Charitra Manas, the accused persons namely Sanjay Pandey, Shyam Lal Yadav, K.L.Yadav and Satish Chanra Maurya were adamant to start this programme at noon. On the exhortation of Sanjay Pandey, the petitioner caused injury to his son by firing. K.L.Yadav had also fired several round. They developed tremendous panic-stricken scene by opening firings indiscriminately in the air with revolver. The injured son of the complainant while being taken to the hospital at Varanasi succumbed to injuries on the way. The case was registered under sections 302 IPC vide Case Crime No. 181 of 2014 against the applicant and three others on the same day i.e. on 5.8.2014 at about 6.30 p.m. The incident allegedly took a wild form causing panic and terror at the police station. On getting information about indiscriminate firings which took place contiguous to the Hamuman Mandir Jakhaon on the issue of playing of loud speaker and one Satish was fatally wounded and succumbed to injuries while being taken to hospital at Varanasi. Police personnel of various police stations were directed to be deployed through R.T. set by Inspector Incharge.The village folk of Jakhaon could not digest the sad demise of Satish and protested outside unleashing a reign of terror causing great rampage and arson. The unruly mob could not squeeze their ire and indignation and caused blockade on the main road of Gyanpur Gopiganj. On getting the information about terrible scene, the Incharge Inspector reached at Gyanpur Gopiganj Road where police personnel were already present . The agitated and irate melee obstructed ingress and egress of Gyanpur Gopiganj Road. The police officials tried their best to assuage and pacify their wrath and anguish but the unruly mob instead of receding from igniting the horrendous scene, developed awful and terrible scene by pelting stones on the police personnel and also raising slogan stigmatizing the image of the police authorities as well as police personnel. They damaged the vehicles of the police authorities by breaking their glasses and other parts. The police officials and other administrative authorities sustained injuries on account of pelting of stones and also thrashing with lathi and danda. There was horrific and horrendous scene as they were raising slogan against the police administration causing helter and skelter in the nearby areas and the shop keepers also shut down their shutters closing the shops. In respect of the aforesaid incident occurred on 5.8.2014 at 7.00 p.m. another FIR was lodged on 6.8.2014 at 1.15 p.m. against Rakesh Kumar Pasi and twenty one named persons vide Case Crime No. 182 of 2014 under sections 147/148/341/353/332 IPC read with section 7 Criminal Law Amendment Act and section ¾ Prevention of Damages to Public Property Act. The said incident was flashed in the newspapers "Dainik Jagran and Hindustan branding the petitioner as main architect of the crime.

The petitioner has been subjected to detention order on the basis of the aforesaid cases. The ground of detention was served upon the petitioner vide order dated 19.4.2015 passed by the District Magistrate with a view to prevent him from indulging in such activities which is prejudicial to the interest of the public welfare. The petitioner challenged the validity and authenticity of the aforesaid detention order by means of the present petition.

The main thrust mooted from the side of the petitioner is that the public order has not been disrupted in any manner as alleged in the detention order. The petitioner cannot be made accountable in any manner. No material was placed before the detaining authority showing the activities of the petitioner prejudicial to the maintenance of public order and the absence of subjective satisfaction of the detaining authority would constitute an infraction of the valuable constitutional right guaranteed under Article 22 (5) of the Constitution of India. The petitioner surrendered before the concerned court on 14.8.2014 and was taken on remand for recovery of fire arm weapon allegedly used by him but nothing was recovered at his instance. The solitary incident which is said to have occurred on 5.8.2014 is the offshoot of personal vendetta. It is conspicuous from the ground of detention itself that the petitioner has been made solely accountable for disrupting law and order. There is nothing on record necessitating the detaining authority to put the petitioner in captivity with a view to prevent him from indulging in any manner prejudicial to the maintenance of public order. The petitioner moved a representation on 27.4.2015 which was received through jailor in the office of the District Magistrate Bhadohi on the same day and at the same time the representation was sent by the District Magistrate to the Superintendent of Police Bhadohi for comments. The District Magistrate Bhadohi rejected the representation of the petitioner by order dated 6.5.2015. There is undue delay in deciding the representation by the State Government on 14.5.2015 which was communicated to the petitioner at the belated stage. The petitioner was also deprived of being communicated that he can produce any witness before the advisory board. The petitioner was not informed about his personal appearance before the advisory board thus the petitioner could not produce relevant material before the advisory board. The detention of the petitioner is per se illegal as there is also delay of seven days in deciding the representation by the Central Government on 20.5.2015 and the petitioner was communicated with delay about the decision though the petitioner had represented to the Central Government on 27.4.2015. The representation of the petitioner ought to have been decided by the detaining authority before it is approved by the State Government. An application was moved under section 156 (3) Cr.P.C. by the father of the petitioner Jagannath Yadav and wife of K.L. Yadav on 8.9.2014 and 15.9.2014 respectively against the complainant and other accused persons in respect to the incident dated 5.8.2015. The aforesaid application under section 156 (3) Cr.P.C. contained the counter version of the petitioner which could have changed the mind of the detaining authority in forming subjective satisfaction . The relevant materials viz. cross version were not placed by the forwarding authority before the District Magistrate, the State Government and the Central Government which could have made a lot of difference and would have vitiated the detention order itself. There is delay of nine days in sending the representation . There are a catena of decision when there is inordinate and unexplained delay in communicating the detention order and in deciding the same by the Central Government, the detention order has been quashed.

It has been submitted by the learned counsel for the petitioner that any unexplained delay in disposing of the representation of the detenue would amount to breach of constitutional protection guaranteed under Article 22 of the Constitution of India and would render the detention order nugatory . Moreover, the unexplained delay in disposing of the representation is fatal which has been brushed aside by this Hon'ble Court and the gamut of authorities of the Hon'ble Apex Court. The District Magistrate Bhadohi has passed the order under section 3 (2) of National Security Act in a very mechanical and pedantic manner directing the petitioner to be put in simple captivity for twelve months. The order dated 19.4.2015 passed by the District Magistrate Bhadohi suffers from material perversity and vulnerability as the District Magistrate has put his signature without scrutinizing the material placed before him and also the report which was not submitted correctly by the police officials. The onus would lie upon the detaining authority to prove that there was imminent danger to prevent him from acting in a manner prejudicial to the public safety as well as maintenance of law and order at the time of passing the detention order. The irate and unruly mob is alleged to have caused public nuisance by pelting stones on the police personnel taking into hands the law and order and also bursting the anger and ire disrupting peace and tranquillity on 5.8.2014 but the FIR of such incident came into light only on 6.8.2014 at 1.15 p.m. and the detention order was passed on 19.4.2015. The petitioner did not have any role in the said incident thus the petitioner cannot be held answerable for the act of unruly mob. The District Magistrate has not passed the detention order on the subjective satisfaction that in case the petitioner is released on bail, there is every likelihood of causing public nuisance and disturbing law and order . Had the entire materials been placed before the detaining authority as there was no live link with the incidents occurred on 5.8.2014 , the order dated 19.4.2015 would not have come into existence. Merely on the basis of subjective satisfaction of the detaining authority that in all probability, the petitioner would indulge in prejudicial activities, unless there is credible information and cogent reason apparent on record, order of detention cannot validly be passed against him . There is no incriminating material having been used or made the basis for formulating the grounds of detention. The satisfaction must reach on the basis of cogent material that there is a real possibility of the detenue being released on bail would indulge in particular activity if not detained. No order of detention can validly be passed against a person merely on the subjective satisfaction of the detaining authority to circumvent enlargement on bail which can be dealt with under the ordinary law. The probability of disrupting the public safety amounting to breach of public tranquillity forcing the detaining authority to pass detention order on the basis of one stale case is in contravention of fundamental right to life and liberty enshrined under Article 21 of the Constitution of India.

There is no live link of the incident that occurred on 5.8.2014 to persuade the detaining authority to pass the order impugned after more than 8 months. The petitioner has been subjected to captivity creating a false notion of resorting the act of wide spread disturbances with regard to maintenance of public safety as well as law and order. It is only the police personnel who were accountable for causing public disruption and ruckus. The detaining authority has also failed to consider as to whether the activities of the petitioner fall within the realm of maintenance of public order or law and order. There is nothing on record to substantiate any cogent reason that there was strong and real possibility of the petitioner indulging in prejudicial activities causing snarl in maintenance of public order after being released on bail,. The petitioner's bail application has already been rejected after the detention order . No bail application is pending before any competent court and the right to life and liberty of the petitioner is being abridged on account of wrongful captivity hence the detention order is not tenable in the eye of law and deserves to be vitiated.

Learned counsel for the petitioner to buttress his argument has relied upon a catena of decisions delineated hereunder :-

1.Kamleshwar Ishwardas Patel Vs. Union of India & others (1995) S.C.C.51,

2.State of Maharashtra & others Vs., Santosh Shankar Acharya (200) 7,SCC 463,

3.Rattan Singh & another Vs. State of Punjab & others AIR 1982 SC.1

4.Aslam Ahmed Zahire Ahmed Shaik Vs. Union of India & others AIR 1989 SC 1403.

5.Julia Jose Mavely Vs. Union of India & others AIR 1992 SC 139,

6.Kundanbhai Dulabhai Shaikh Vs. District Magistrate Ahmedabad & others 1996 SCC (Cri) 470.

7.Rajammal Vs. State of Amil Nadu & another AIR 1999 SC ,684.

8.Ram Manohar Lohia Vs. State of Bihar & another AIR 1996 SC 740.

9.Jawaharmal Vs. State of Rajasthan AIR 1966 SC 764 (V.53 C.141)

10.Ashok Kumar Vs. Delhi Administration & others AIR 1982 SC 1143.

11.Bachau Yadav Vs. District Magistrate Ghazipur & others 2004 (50) ACC 31.

12.Habeas Corpus Petition No. 8909 of 2007 (Suleman Vs. Union of India and others) decided on 7.5.2007.

13.Inamul Haq Vs. Superintendent Prison/District Jail Azamgarh (2001) 43 ACC.67

14.A.Sowkath Ali Vs. Union of India & others Writ Petition (Cr.)No.45 of 2000 decided on 1st August 2000.

Per contra learned AGA appearing on behalf of opposite parties no. 2, 3 and 4 and Sri Deepak Mishra, learned counsel appearing on behalf of Union of India submitted that normally this Court should not interfere with the subjective satisfaction reached by the detaining authority except in peculiar and extremely limited circumstances. The Court should keep off from substituting its own finding petering out the order of the detaining authority when the grounds of detention are precise, pertinent, proximate and relevant. The detaining authority has perceived that detention of the petitioner with a view to prevent him from indulging in any manner prejudicial to the public order is such satisfaction which is only preventive and not punitive. The subjective satisfaction of the detaining authority is concerned to be of paramount importance with certain relaxation in exercise of his discretion. The order of detention is a precautionary measure based on a reasonable prognosis of the future behaviour of a person resting on his past conduct in the light of the nature of the incidents and the connecting circumstances. The purposes of preventive detention and prosecution are different. The authorities are different and the nature of proceedings are different. The delay has duly been explained by the respondent no.3 District Magistrate, in para 8 of the counter affidavit, as at the relevant time he has passed the impugned order dated 19.4.2015 exercising the power under section 3(2) of the National Security Act 1980. The District Magistrate has categorically mentioned that the petitioner's representation dated 27.4.2015 given to the respondent no.4, Superintendent of District Jail Gyanpur was forwarded on the same day and the parawise comments were called from the Superintendent of Police Bhadohi . The comments of the said representation was forwarded to the respondent no.3 by the sponsoring authority on 6.5.2015 and after considering the representation and also comments obtained from the sponsoring authority , the representation was found having no substance and was accordingly rejected on 6.5.2015. The ground was taken by the petitioner that he was maliciously roped in Case Crime No.182 of 2014 under sections 147/148/348/355/332 IPC read with section 7 Criminal Law Amendment Act and section ¾ Public Property Damages Act and the allegations made in the first information report does not come within the precinct of National Security Act. The said ground was considered by the respondent no.3 (District Magistrate) and after taking into account the facts and the circumstances of the case in its entirety that the fallout of the said incident had culminated into chaos disrupting the congenial atmosphere regarding maintenance of public order, the representation of the petitioner was rejected with speaking order. The decision of the State Government was duly communicated to the petitioner through Jail Superintendent Gyanpur through FAX and the information regarding rejection of the representation of the petitioner was received by him on 16.5.2015 itself. The representation moved to the Central Government was rejected on 22.5.2015 was also informed by the office of respondent no.3 on 25.5.2015 which was forwarded to the jail authority who in turn duly communicated to the petitioner . Following the norms of the National Security Act, the matter of the petitioner was placed before the State Advisory Board and the State Advisory Board intimated on 21.5.2015 with respect to the date fixed for hearing of the petitioner. The date so fixed by the State Advisory Board was duly communicated to the petitioner on 22.5.2015. The State Advisory Board had fixed 25.5.2015 as the date of hearing. On that date, the petitioner was taken to Lucknow and his case was heard before the State Advisory Board at Lucknow. The state Government after considering the entire material facts and the report of the Advisory Board upheld the detention order dated 19.4.2015 on 5.6. 2015 which was duly communicated to the petitioner through jail authority on 9.6.2015 thus it cannot be said that there is travesty of law on the part of the respondent authorities in passing the detention order and in its due communication to the petitioner.

The detenue will be tried in a criminal court for the commission of the criminal offences but it will not debar the preventive authority from taking action under the Act as the likelihood of such a person indulging in prejudicial activities would imperil the maintenance of the law and order under ordinary circumstances. The detaining authority was conscious of all his past conduct and has passed the order of detention in order to prevent him from indulging in the activities detrimental to the interest and welfare of the public at large. The cases relied upon by the learned counsel for the petitioner are based on quite different set of facts and circumstances of the case which do not have any applicability with the present set of facts. There is no illegality or vulnerability in the order impugned . The detention order has been passed following the provisions of law as the same was already approved by the competent authority. The entire material has been considered by the District Magistrate while passing the detention order . The cross version set up in defence by the petitioner would not effect the subjective satisfaction of the detaining authority for passing the detention order. He had also taken into account the bail application moved on behalf of the petitioner for which the date was fixed for hearing as such there was all likelihood that in case the petitioner would be released on bail , he would again indulge in similar activities prejudicial to the maintenance of public order . The incident in which Satish Maurya lost his life created very tremendous and horrific situation and the agitated melee attacked the house of co-accused Sanjay Pandey and thereafter resorted to Chakka Jam at Gyanpur Gopiganj Road. The Police authorities had to resort mild force to control the unruly mob but the unruly and agitated mob disrupted the maintenance of law and order by pelting the bricks and stones whereby a number of police officials sustained injuries. The incident was duly flashed in the widely circulated daily news papers. The petitioner was one of the accused in Case Crime No.181 of 14 under sections 302 IPC read with section 7 Criminal Law Amendment Act. Another FIR was also lodged by the police official vide Case Crime No. 182 of 2014 under sections 147/148/341/353/332 IPC read with section 7 Criminal Law Amendment Act and section ¾ Public Property Damages Act ,thus it cannot be said that there is no live link between the date of detention order and the date of incident. The writ petition sans merits and may be dismissed and the detention order may be affirmed .

Learned AGA to buttress his argument has placed reliance upon a Full Bench decision of this Court in Km. Indu Misra Vs. Union of India & others 2012 (7) ADJ 784 (FB) wherein it has been categorically held that

1) the District Magistrate/Detaining Authority acting under Section 3 (2) of the National Security Act, 1980 is required to communicate to the person detained, his right of making representation to him, and that non-communication of such right will infringe fundamental right of the detenue under Article 22 (5) of the Constitution of India.

2. The obligation of the District Magistrate/ Detaining Authority is to communicate to the detenue, his right for making representation to him, is upto the date of approval of the detention order by the State Government, or before 12 days. The non-communication of the period will not render the detention order invalid.

3. The District Magistrate/ Detaining Authority does not have power to revoke or modify the detention order passed by him, after it is approved by the State Government.

4. The District Magistrate/ Detaining Authority is not obliged to consider and decide the representation, after approval of the detention order by the State Government."

Sri Deepak Mishra, learned counsel appearing on behalf of the opposite party no.1 has re-iterated the averments made by the learned AGA by filing the counter affidavit of Under Secretary, Ministry of Home Affairs and the report submitted under section 3 (5) of the National Security Act by the State Government dated 29.4.2015 received by the Central Government i.e. Ministry of Home Affairs on 13.5.2015. The representation of the petitioner dated 27.4.2015 along with parawise comments of the detaining authority sent on 6.5.2015 were received by the Central Government on 13.5.2015. The report of the detenue and the representation was processed for consideration of the Union Home Secretary and the file reached before the Under Secretary (NSA) on 15.5.2015 . Under Secretary with his comments forwarded the same to the Joint Secretary (Security) on 15.5.2015. Thereafter the file was sent to the Union Home Secretary on 18.5.2015 . During the interregnum 16th & 17th May 2015 were holidays on account of being Saturday and Sunday. The representation was duly considered in the light of the detention order and the ground and was rejected by the Central Government on 20.5.2015 which in turn was communicated through wireless to the Home Secretary of U.P.State Government and to the Superintendent District Jail Gyanpur on 22.5.2015 and informing the petitioner through post and wireless also with utmost promptitude thus the delay in deciding the representation has been explained in an unambiguous terms ,hence the detention order deserves to be maintained . The petitioner was afforded ample opportunity and there is no infraction of provisions of law. The detention order has been passed keeping in mind the maintenance of public order and also preventing him to indulge in such activities which are based on reasonable prognosis of his future behaviour viz.a.viz. his past conduct in the light of surrounding circumstances. The detention order was passed by the competent authority who was empowered to do so. The activities of the petitioner were prejudicial to the maintenance of law and order problem causing disruption of public tranquillity and peace hence the District Magistrate has exercised his power well within his jurisdiction.

We have given our anxious consideration to the submission advanced by the learned counsel for the parties. The grounds for passing the detention order against the petitioner were that the petitioner in association with some miscreants resorted to indiscriminate firings as a result of which Satish Maurya succumbed to injuries. The incident took place in broad day light causing panic and chaos in the area adversely affecting safety of public and maintenance of law and order . The petitioner had caused infernal situation on the trivial issue of recital programme of Ramayan which was monitored and resisted by the son of the complainant Satish Maurya. The petitioner burst his wrath and anger by resorting to firings taking life of an innocent person. On account of said incident a sense of terror and fear prevailed forcing the people to cause disruption in the normal life by causing blockade in the high way. In the chain of the circumstances another FIR was lodged on 6.8.2014 vide Case Crime No. 182 of 2014 under sections 147/148/348/355/332 IPC read with section 7 Criminal Law Amendment Act and section ¾ Public Property Damages Act. The order of detention is preventive in nature. The order of detention has been passed by the detaining authority so as to highlight the harshness of the incident occurred on 5.8.2014 vide Case Crime No.181 of 2014 under section 302 IPC and the first information report dated 6.8.2014 vide Case Crime No.182 of 2014 under sections 147/148/348/355/332 IPC read with section 7 Criminal Law Amendment Act and section ¾ Public Property Damages Act. The satisfaction of the detaining authority is not based on the reasonable prognosis of indulging in similar activities inflaming the safety, security of the public at large, the state or the country. The object of the detention is not to punish a person but to prevent him from indulging in similar activities causing jeopardy to the security and maintenance of the public order. The authority may pass the order after recording his satisfaction in this behalf.

From the prolix discussion of the case in hand, it emerges out that peace and the tranquillity was disrupted on account of insouciant and lackadaisical attitude of the administrative authorities for which the petitioner alone cannot be held responsible. The onus lies upon the prosecution to corroborate the charges against the petitioner during the course of trial and the trial court is fully competent to award capital punishment on the proof of the accusations. No doubt, the petitioner is shown to be involved in some offence for which the criminal court would hold the trial on the basis of legal evidence justifying his complicity but the captivity of the petitioner merely on the so-called subjective satisfaction of the detaining authority would constitute an infraction of a valuable right of the detenue under section 22 (5) of the Constitution of India . The family members of the petitioner were trying him to be released on bail as mentioned in the detention order, then proper course open to the authority was to oppose the bail application or to challenge the order in the proper forum and not to curtail his right to move bail application to pre-empt or circumvent the orders granting the bail if he is granted bail. The cases which are essentially criminal in nature can be dealt with under the ordinary law. Prosecution in a criminal court is conducted by a trial and the proof of guilt is based on the basis of legal evidence and the standard of proof is beyond reasonable doubt whereas preventive detention is an action to prevent the act justifying the satisfaction that there is an imminent danger and the detenue would indulge in similar activities if set at liberty putting in jeopardy the security and safety of the entire society. In the instant case the order dated 19.4.2015 has been passed without analysing the complete materials placed before the detaining authority. There is no live link with the incident dated 5.8.2014 and the order of detention dated 19.4.2015. The procedural safeguards were also not strictly followed by the detaining authority. The agitated melee had broken the law by developing unruly and disruptive scene on 5.8.2014 for which an FIR was lodged by the Station House Officer Police Station Gopiganj on 6.8.2014 against Ramesh Kumar Pasi and 21 others. The petitioner cannot be held responsible for causing any sort of annoyance and breach in the normal tempo of life. The detaining authority must satisfy himself that there is a real possibility of causing jeopardy and imminent danger to the safety and security of the society at large or the State or the welfare of the nation otherwise it would be an easy tool in the hands of police to lodge an FIR against some unruly mob and then recommend the name of any person against whom a case was already registered previously to be detained under the National Security Act. It is conspicuous that detention order dated 29.4.2015 has been passed by the detaining authority without his satisfaction and without any legal proof justifying his detention merely on the basis of the recommendation of the Station Police Officer dated 15.4.2015 that if the petitioner is not kept in captivity, there is possibility of causing imminent danger to the public at large or the State or the welfare of nation. The power so given to detaining authority must be exercised in exceptional cases with great deal of circumspection failing which it would defeat the objects and reasons for enacting the Act.

Having regard to the overall facts and circumstances and also the catena of authorities cited by the learned counsel for the parties, we hold that the detaining authority was not conscious of all the relevant aspects of the case and has passed the order impugned merely sensing the alleged activity of the petitioner, in which he was not involved to be prejudicial and deleterious to the society if not detained. The counter version was a vital circumstance, which has not been disputed, could be considered by the detaining authority which aberration on the part of the detaining authority renders the impugned detention order nugatory and the same is liable to be vitiated.

Resultantly, the writ petition succeeds and is accordingly allowed. The impugned order dated 19.4.2015 passed by the respondent no.3 District Magistrate Bhadohi contained in Annexure-1 to the writ petition is hereby quashed.

Let the petitioner Shyam Lal Yadav be released from jail forthwith, if he is not wanted in any other case.

No order as to costs.

Order Date :- 21.12.2015

Naim