Arun @ Alli @ Arun Kumar Arya vs District Magistrate, G.B. Nagar ...
2015 Latest Caselaw 2964 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No.40
 
Reserved on 01.10.2015
 
Delivered on 07.10.2015
 

 

 
Habeas Corpus Writ Petition No. 12116 of  2015
 

 

 

 
Arun @ Alli @ Arun Kumar Arya                          ..................Petitioner
 

 
Vs.
 

 

 
District Magistrate and others                           ..................Respondents
 

 

 

 
Hon'ble Bala Krishna Narayana,J.

Hon'ble Mrs. Vijay Lakshmi,J.

(Delivered by Hon'ble Bala Krisnha Narayana,J.)

Heard Sri A.K.Sachan, learned counsel for the petitioner, Sri A.S.Azmi, learned counsel for the respondent no.5/Union of India and learned AGA for the State/ respondent nos. 1 to 4.

None has appeared on behalf of the respondent nos. 6, 7 and 8.

Pleadings between the parties have been exchanged and with the consent of the learned counsel for the parties, this writ petition is being finally disposed of at the stage of admission.

This writ petition has been filed by the petitioner Arun @ Alli @ Arun Kumar Arya with a prayer to issue a writ, order or direction in the nature of habeas corpus commanding the respondents to produce the petitioner before this Court and set him at liberty forthwith. A further prayer has been made for quashing the detention order dated 07.10.2014 (Annexure-9 to the writ petition) passed by respondent no.1 and the orders dated 16.10.2014 and 27.11.2014 (Annexure Nos.- 13 & 15 to the writ petition) passed by respondent no.4 by which the impugned order was approved.

The brief facts of this case are that while the petitioner was in Gautam Budh Nagar jail on account of his being accused in case crime no. 321 of 2014, under Sections 147, 148, 149 and 302 IPC and case crime no. 889 of 2014, under Section 25/27 Arms Act, P.S. registered at Dadri, District Gautam Budh Nagar, the petitioner was served with the impugned detention order dated 07.10.2014 passed by District Magistrate, Gautam Budh Nagar/ respondent no.1 in the exercise of his power under Section 3(3) of the National Security Act, hereinafter referred to as the NSA along with the grounds of detention under Section 8 of the NSA through Superintendent, District Jail, Ghaziabad. The detention order dated 07.10.2014 was forwarded by the respondent no.1 to the State Government along with his letter dated 07.10.2014 (Annexure -10 to the writ petition). The petitioner filed a representation before the District Magistrate, Gautam Budh Nagar, respondent no.1 on 16.10.2014 (Annexure-16 to the writ petition). The detention order was approved by the State Government by order dated 16.10.2014 (Annexure-13 to the writ petition). The representation moved by the petitioner before the District Magistrate, Gautam Budh Nagar, respondent no.1 was rejected by him by his order dated 31.10.2014 (Annexure-14 to the writ petition) which was communicated to the petitioner by the respondent no.1 along with the letter dated 06.02.2015. The State Government by its order dated 27.11.2014 approved the detention order for a period of 12 months after the same was approved by the respondent no.4/ U.P.Advisory Board.

Learned counsel for the petitioner submitted that the subjective satisfaction recorded by the detaining authority/District Magistrate, Gautam Budh Nagar, respondent no.1 in the impugned order is based upon irrelevant, insufficient and non existent grounds which has totally invalidated the same. He next submitted that the order of preventive detention passed in respect of the a detenu who is in judicial custody in order to be a valid order should disclose that the detaining authority not only should be aware of the said fact but there should be some material on record for his belief that he may be released on bail and the detenu would indulge in similar activities if set at liberty. He further submitted that since on the date of the passing of the impugned detention order, the petitioner was in jail on account of his being accused in two criminal cases, namely, 321 and 889 of 2014 registered against him at P.S. Dadri and there being no material before the respondent no.1 showing that the petitioner had moved his bail applications in both the cases, even if his bail application filed by him before the Sessions Judge, Gautam Budh Nagar in the main case i.e. case crime no. 321 of 2014 was allowed, he could not have actually come out of jail, thus the subjective satisfaction recorded by the detaining authority/respondent no.1, District Magistrate, Gautam Budh Nagar that there was strong possibility of the petitioner coming out from jail on bail and re-indulging in activities prejudicial to the maintenance of public order and tranquility was not based on any cogent and reliable material and in the absence of cogent and reliable material, the impugned detention order has to be accepted as based on mere epse dixit of the detaining authority. In support of his aforesaid contention learned counsel for the petitioner has placed reliance on a Division Bench decision of this Court rendered in the case of Radhey Shyam Parcha Vs. Union of India, 2014 (3) ACR, Page 2774.

He lastly submitted that since the respondent no.3 (detaining authority) has exercised power arbitrarily the impugned order cannot be sustained and liable to be quashed.

Per contra, learned AGA and learned counsel for the Union of India made their submissions in support of the impugned detention order.

We have heard the learned counsel for the parties and perused the pleadings of the parties.

From the perusal of the impugned order and the grounds of detention upon which the same is founded, it transpires that the impugned order has been passed on account of alleged involvment of the petitioner in an incident which had taken place on 07.06.2014 at about 7.45 p.m. near Shiv Mandir Dharmshala within the limits of P.S. Dadri in which one Vijay Kumar Pandit was shot dead and on the basis of the FIR lodged by Ajay Kumar, the real brother of the deceased, case crime no. 321 of 2014, under Sections 147, 148, 149 and 302 IPC was registered at P.S. Dadri, District Gautam Budh Nagar against unknown persons. The investigating officer recorded the statement of informant Ajay Kumar Sharma under Section 161 Cr.P.C. on 08.06.2014 in which he reiterated the same facts which he had stated in the FIR. The name of the petitioner as an accused in the aforesaid case surfaced for the first time on 08.06.2014 on the basis of the confidential information received by the police that the petitioner and four other persons had committed the murder of Vijay Kumar Pandit and on the basis of which the petitioner was arrested on the same day and sent to jail. Thereafter on 24.06.2014, the Investigating Officer has recorded the statement of one Dinesh Sharma, another real brother of the deceased who was also nominated as an eye witness in the FIR, in which the aforesaid Dinesh Sharma stated that the petitioner along with the co-accused Ankit, Avneesh @ Anni, Deepak and Nitin had committed the murder of Vijay Shankar Pandit due to old enemity. After the petitioner had been arrested, on his pointing out one of the weapons allegedly used in the commission of the crime was allegedly recovered on the petitioner's pointing out and another case namely case crime no. 889 of 2014, under Section 25/27 Arms Act was registered against the petitioner at P.S. Dadri, Gautam Budh Nagar.

The grounds of detention further reflect that the incident had created an atmosphere of fear and terror in the area, normal life was disrupted and public order was totally shattered. The news about the heinous crime allegedly committed by the petitioner was published in several national and district level newspapers which created a situation which could be effectively controlled only after recquisitioning additional police force and companies of PAC from the other police stations and adjoinging districts.

Under identical circumstances a Division Bench of this Court in the case of Radhey Shyam Parcha Vs. Union of India reported in 2015 (1) ALJ 714, had in paragraphs 14, 15,16 and 22 of its aforesaid judgement, which are relevant for out purpose, has held as hereunder:

" 14. This Court has perused the detention order in question and the documents so supplied in respect of the same and the detention order in question reflects that the detaining authority has proceeded to form opinion of preventive detention of petitioner and therein reference has been given of the three criminal cases along with the details of the case being Case Crime No. 262 of 2013 under Sections 147/148/149/302/307/323/324/504/153-A IPC and Section 7 Criminal Law Amendment Act and then reference has been given of Case Crime No. 263 of 2013 under Sections 147/427/323/504/153-A IPC and, thereafter, reference has been given of Case Crime No. 264 of 2013 under Sections 147/ 148/ 149/ 307/ 342/ 336/ 436/ 392/ 427/ 323/ 504/ 506/ 153-A IPC and Section 3/4 Prevention of Public Property Damages Act and Section 7 Criminal Law Amendment Act and investigation of said criminal case is being made by Narendra Singh. It has been mentioned therein that during the course of investigation statement of Om Prakash has been recorded by IO concerned, wherein it is reflected that petitioner and his associates have participated in the aforementioned criminal cases with the object of disturbing communal harmony and in the said direction damaging property, arsoning facts have been substantiated. Large scale shoes, motorcycles, scooties etc. have been recovered and the investigation reflects complicity of petitioner. It has also been mentioned that such activities of petitioner and his associates has resulted in various counter acts of arsoning and looting in Shamli area and on account of the same there has been serious apprehension of life and property in public at large and details have also been given that Vedpal, Prakash Chandra, Smt. Sevati, Manish Goyal, Shishir Jain, Mukesh Kumar Jain and M/s. Suresh Chandra have also given reports of the looting and arsoning that has taken place and it has also been mentioned that all the activities of petitioner are of daredevil nature and same have also been widely published in newspapers. It has also been mentioned therein that petitioner has spread hatred and on account of provocation given by him under his leadership large scale criminal activities have been carried out by the mob against a particular community and on account of which life of hundreds have been disturbed and sense of insecurity has been there. It has also been mentioned therein that at large places fires have been opened and on account of arsoning and looting entire public order has been disturbed and as a reaction of the same members of other community have also indulged in similar activities for which apart from local police additional forces have been deployed in the area and as petitioner is detained in jail in Case Crime No. 262 of 2013 under Sections 147/ 148/ 149/ 302/ 307/ 323/ 324/ 504/ 153-A IPC and Section 7 Criminal Law Amendment Act and in Case Crime No. 263 of 2013 under Sections 147/ 427/ 323/ 504/ 153-A IPC as well as in Case Crime No. 264 of 2013 under Sections 147/ 148/ 149/ 307/ 342/ 336/ 436/ 392/ 427/ 323/ 504/ 506/ 153-A IPC and Section 3/4 Prevention of Public Property Damages Act and Section 7 Criminal Law Amendment Act and details have been given that petitioner has moved bail application in Case Crime No. 262 of 2013 under Sections 147/148/149/302/307/323/324/504/153-A IPC and Section 7 Criminal Law Amendment Act before the Chief Judicial Magistrate concerned and same has been rejected by the competent court and on 13.09.2013 Constable Kunwar Pal Singh has given beat information that petitioner through his pairokar is trying to get himself bailed out and come out from jail and petitioner would be moving bail application at Muzaffarnagar and Kairana courts and hearing this public is under duress and fear in case petitioner comes out again after obtaining bail there can be violence and the said beat information has been inquired by SI Satyapal Vats and he has ratified the same.

15. Based on the same it has been mentioned that petitioner is attempting to come out from jail and if he comes out from the jail, then there are possibility of communal clashes on the provocation of petitioner and there is lot of fear and insecurity and there would be again disturbance of public on a order and, in view of this, satisfaction so recorded, petitioner has been detained in jail.

16. The detention order in question clearly reflects that as far as petitioner is concerned, he has been detained in three criminal cases being Case Crime No. 262 of 2013 under Sections 147/ 148/ 149/ 302/ 307/ 323/ 324/ 504/ 153-A IPC and Section 7 Criminal Law Amendment Act and in Case Crime No. 263 of 2013 under Sections 147/427/323/504/153-A IPC as well as in Case Crime No. 264 of 2013 under Sections 147/ 148/ 149/ 307/ 342/ 336/ 436/ 392/ 427/ 323/ 504/ 506/ 153-A IPC and Section 3/4 Prevention of Public Property Damages Act and Section 7 Criminal Law Amendment Act and only in one criminal case i.e. Case Crime No. 262 of 2013 under Sections 147/148/149/302/307/323/324/504/153-A IPC and Section 7 Criminal Law Amendment Act, he has moved application for bail and same has been rejected on 13th of September, 2013. This much is also reflected that after the said bail application has been rejected on the very next day i.e. 14th of September, 2013, the detaining authority has proceeded to pass an order of preventive detention of petitioner. This much is also reflected that in order to form such a opinion as to there are possibility of petitioner coming out from jail on bail reliance has been placed on the beat report given by Constable Kunwar Pal Singh and confirmed by SI Satyapal Vats and the same has been made foundation and basis to form such an opinion that there is possibility of petitioner coming out from jail on bail.

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22. Once such is the factual situation that there were three criminal cases pending against the petitioner and only in one case bail application in question has been moved and same has been rejected by the court concerned and in two other matters at no point of time any bail application has been moved, then merely on the report submitted by the beat personnel and affirmance of the same by the officer concerned in mechanical manner, such a detention order could not have been passed by forming the opinion that there were possibilities of petitioner being released on bail, as forming of such an opinion ought to have been based on some cogent and reliable material and on objective consideration by the detaining authority and in absence of the same, the detention order has to be accepted based on mere ipse dixit of the detaining authority. Here in the present case, the opinion of likelihood of petitioner being released on bail is not at all based on relevant cogent material. "

Thus what follows from the reading of the aforesaid judgement is that where several cases are pending against a detenu and bail application has been moved in only one case and in the other matters no bail application is moved, then merely on the report that the detenu has applied for bail in one of the several criminal cases pending against him and there is likelihood of his being granted bail in that case detention order cannot be passed by forming the opinion that there was possibility of the detenu coming out of the jail.

A perusal of the impugned order passed by the respondent no.1 detaining authority/ District Magistrate, Gautam Budh Nagar in the exercise of his power under Section 3(3) of the National Security Act and the grounds of detention under Section 8 of the Act shows that while the petitioner was in judicial custody on account of his being accused in two criminal cases registered against him at P.S. Dadri, District Gautam Budh Nagar, namely, case crime no. 321 of 2014, under Sections 147, 148, 149 and 302 IPC and case crime no. 889 of 2014, under Section 25/27 Arms Act, he had moved a bail application in main case, namely, case crime no. 321 of 2014 only and the detaining authority was satisfied on the basis thereof that there was all likelihood of the petitioner's bail application being allowed and in case he was released on bail, he would again indulge in activities prejudicial to the maintenance of public order, and in order to prevent him from indulging in any such activities, it was imperative to pass an order for his detention under the National Security Act. There is neither any recital in the grounds of detention nor any tangible material on record which may indicate that the petitioner had moved bail application in the other criminal case, namely case crime no. 889 of 2014 also which was pending against him on the date of the passing of the impugned order, thus even if the petitioner was granted bail by the learned Sessions Judge in case crime no. 321 of 2014, there was no possibility of his coming out of the jail on account of his being accused in another criminal case, namely, case crime no. 889 of 2014 as he had not applied for bail in the aforesaid case and hence the subjective satisfaction recorded by the detaining authority/ District Magistrate, Gautam Budh Nagar, respondent no.1 in the impugned order and in the grounds of detention that there was strong possibility of the petitioner coming out of the jail and indulging in activities prejudicial to maintainance of public order, in our opinion is not based upon any cogent and reliable material and the impugned order which has been passed on non existent and irrelevant grounds suffers from the vice of total non application of mind.

In view of the foregoing discussions, writ petition succeeds and is allowed. The impugned order dated 07.10.2014 (Annexure No.1 to the writ petition) passed by respondent no.1 and orders dated 16.10.2014 and 27.11.2014 passed by respondent no.4 are hereby quashed. The petitioner shall be forthwith releassed, if he is not wanted in any other case.

There shall however be no order as to costs.

Order Date : 07.10.2015

Abhishek Sri/-