Vinod Valmiki vs State Of U.P. And 5 Ors
2015 Latest Caselaw 2240 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

									AFR    Reserved
 
Case :- CRIMINAL MISC. WRIT PETITION No. - 4357 of 2015
 
Petitioner :- Vinod Valmiki
 
Respondent :- State Of U.P. And 5 Ors
 
Counsel for Petitioner :- Vikash Chandra Tiwari
 
Counsel for Respondent :- Govt.Advocate
 

 
Hon'ble Bala Krishna Narayana,J.

Hon'ble Mrs. Vijay Lakshmi,J.

Heard learned counsel for the petitioner, learned A.G.A. for the State and Sri Brij Lal, learned counsel for the Union of India.

The petitioner has been detained by the District Magistrate, Ghaziabad vide his order dated 20.09.2014 passed by him in the exercise of his power under Section 3(3) of the National Security Act (hereinafter referred to as the 'Act').

The relevant facts giving rise to this writ petition as narrated in the grounds of detention under Section 8 of the Act which were served upon the petitioner along with the detention order on 20.09.2014 while he was in District Jail, Ghaziabad on account of his being accused in Case Crime no. 2233 of 2014, P.S. Loni, district-Ghaziabad are that following lodging of an F.I.R. at P.S. Loni, district-Ghaziabad under Section 354(B) and 506 I.P.C. by one Smt. Kishan Kumari against one Sayeed Mohammad alleging there in that aforesaid Sayeed Mohammad had committed rape of her minor daughter Rakhi, aged about ten years, which was later converted under Section 376(2) (D) I.P..C and Section 4 The Protection of Children From Sexual Offences Act and aforesaid Sayeed Mohammad being arrested and sent to jail, the petitioner along with his associates, with the object of giving a communal complexion to the whole incident and disturb communal harmony started indulging in hooliganism against the muslim community as a result fear and terror prevailed amongst the public causing a stampede with people running helter-skelter leaving behind their shoes and slippers on the road and hiding themselves in their houses and shops by closing the doors of their houses and downing the shutters of their shops. Apart from the aforesaid, the movement of vehicles deployed for supplying milk and vegetables to Baghpat, ambulance and vehicles engaged in supplying gas was totally disturbed. However the situation was brought under control by the police force which had reached the place of occurrence.

The grounds of detention further reveal that on 28.8.2014 the petitioner along with his associates (about 150 in number) with the common intention of disturbing the communal harmony reached Sunita Vihar shouting slogans of 'Jai Sri Ram' and organised a road block at no.2. Bus Station Indrapuri on Loni-Delhi Saharanpur National Highway. Upon being informed about the activities of the petitioner and his companions Gorakh Nath Yadav, Inspector Incharge, PS Loni reached the place of road block with his force and tried to coax and persuade the petitioner and his associates to lift the road block but instead of listening to him they became agitated and started firing at the police force and created obstruction in the performance of their official duties by the police officers and the members of the police force. They also set ablaze old tyres and wooden benches of the shops of public by pouring kerosene oil thereon and indulged in arson and looting in the nearby shops. Government vehicles of the police officers who had reached the spot were also damaged. Not only this the petitioner and his associates had pelted stones at Mustafa Masjid and Ek Minar Masjid situate in Mangal Bazar, Sunita Vihar 100 fit road and Saraswati Vihar (Kirti Vihar) respectively and shouted anti-muslim slogans which caused a commotion forcing shop keepers to close their shops. Fear and terror prevailed all over and communal harmony was totally disturbed and public order shattered.

People were prevented from going to their offices and establishments and an atmosphere of undeclared curfew prevailed Additional forces had to be requisitioned from other police stations and adjoining districts after Senior Superintendent of Police, Ghaziabad was compelled to enforce Red Scheme and it was only after three or four hours that situation could be brought under control on the arrival of additional police forces. The aforesaid incident had caused tremendous resentment amongst the muslim community. On the basis of F.I.R. of the aforesaid incident lodged by the Inspector Incharge Gorakh Nath Yadav at police station-Loni Case Crime no. 2235 of 2014, under sections 147, 148, 149, 436, 341, 336, 332, 353, 153A, 395, 397, 307 and 427 I.P.C. and section ¾ Prevention of Damages to Public Property Act and section 7 Criminal Law Amendment Act was registered against the petitioner and his associates.

Grounds of detention also indicate that complicity of the petitioner and his associates in the commission of the aforesaid offences was fully established from the statements of the witnesses recorded during free and fair investigation of the aforesaid incident and after completion of investigation charge sheet was submitted against the petitioner and all his associates under the aforesaid offences. News of the aforesaid incident was published in several national level news papers. The petitioner who was in Ghaziabad District Jail had moved an application for being released on bail before the Sessions Judge, Ghaziabad after his bail application was rejected by the Chief Judicial Magistrate-Ist, Ghaziabad and there was real possibility of petitioner indulging in similar activities prejudicial to the public order on his being enlarged on bail.

On account of the above the detaining authority was satisfied that detention of the petitioner under the Act was essential for preventing the petitioner from indulging in activities prejudicial to maintenance of public order. The detention order dated 20.09.2014, grounds of detention under Section 8 of the Act and other relevant papers were sent by the respondent no. 2 through a special messenger to the State Government on the same day which were received in the Home Department of the State Government on 21.09.2012. Petitioner was produced before the U.P. Advisory Board on 13.10.2014. After the detention order was approved by the U.P. Advisory Board, the report of the U.P. Advisory Board and the record of the case were transmitted to the State Government along with a letter of Registrar, U.P. Advisory Board (detention) dated 30.10.2014 which was received in the concerned section of the State Government on 03.11.2014. On receipt thereof the State Government took a decision on 07.11.2014 to confirm the detention order and keep the petitioner under detention for a period of twelve years from the date of passing of the order of detention on 20.09.2014.

Learned counsel for the petitioner submitted that the District Magistrate, Ghaziabad has not applied his mind to the facts of the case and the material on record and he has passed the impugned order in a routine manner on the report submitted to him by the police authorities. The detention authority has failed to record any satisfaction in the impugned order that there was real possibility of the petitioner, who was already in judicial custody, being released on bail. Further the material before the detaining authority was not sufficient to satisfy him that after being released on bail the petitioner shall again indulge in activities prejudicial to the public order and hence, the impugned order which is per-se illegal may be set aside and the petitioner be set at liberty forthwith.

Per contra, learned A.G.A. submitted that the impugned order has been passed by the detaining authority on the basis of petitioner's involvement in two incidents which had taken place on 27.08.2014 and 28.8.2014 in Ghaziabad city along with his associates (approximately 150 in number). The F.I.R. of the aforesaid incident which was lodged by the Inspector Incharge Gorakh Nath Yadav was registered as Case Crime no. 2235 of 2014, under Section 354(B) and 506 I.P.C. against the petitioner and his associates at police station-Loni, district-Ghaziabad. The allegations against the petitioner were that he along with his associates had indulged in activities on both the aforesaid dates which had the effect of totally disturbing the communal harmony and shattering public order as they had tried to give communal complexion to an isolated incident which had taken place on 27.08.2014, in which a minor girl Rakhi aged about ten years was raped by one Sayeed Mohammad although on the basis of the first information report lodged by the mother of the victim Case Crime no. 2233 of 2014, was registered at PS-Loni, district-Ghaziabad initially under section 354(B) & 506 IPC against the aforesaid Sayeed Mohammad which was later converted into section 376(2)(D) and Section 4 of POCSO Act and aforesaid Sayeed Mohammad was arrested and sent to jail. There was no inaction or any laxity on the part of the local police in taking necessary action against the accused warranting the activities in which petitioner and his associates had indulged on 27.8.14 & 28.8.14 which had totally disturbed the public order and tranquility.

Learned A.G.A. further submitted that in the aforesaid incidents the petitioner and his associates had not only indulged in acts of arson and looting but had also illegally blocked the Loni-Delhi-Saharanpur highway disrupting the movement of the vehicles deployed for supplying vegetables and milk to Hapur and supplying gas and ambulance services as well. Not only this the petitioner and his associates had fired at the police officers and the members of the police force, who had reached the place of incident and tried to persuade him and his associates to stop their activities and they had also caused damage the government vehicles.

Learned A.G.A. lastly submitted that detaining authority had passed the impugned order after being fully satisfied on the basis of the material produced before him that on being released on bail the petitioner may again indulge in activities prejudicial to the public order and the same does not suffer from any illegality or infirmity, hence the present writ petition which is devoid of any merits is liable to be dismissed.

After having very carefully examined the submissions made by learned counsel for the parties and perused the impugned order as well as the other material brought on record, we find that the only issue involved in this writ petition is that whether the failure of the District Magistrate to record in the impugned order that there was strong possibility of the petitioner, who was already in judicial custody on account of his being accused in Case Crime no. 2235 of 2014, under sections 147, 148, 149, 436, 341, 336, 332, 353, 153A, 395, 397, 307 and 427 I.P.C. and section ¾ Prevention of Damages to Public Property Act and section 7 Criminal Law Amendment Act being released on bail has vitiated the impugned order and whether the subsequent recording of his satisfaction that on being released on bail there was possibility of the petitioner's indulging in similar activities which were prejudicial to the public order on his being enlarged on bail would validate the impugned order.

The Hon'ble Supreme Court of India in paragraph 35 of its judgment rendered in the case of Haradhan Saha & Another vs The State Of West Bengal & Ors. reported in (1975) 3SCC 198 observed that where the concerned person is actually in jail custody at the time when the order of detention is passed against him, and is not likely to be released for a fairly long time, it may be possible to contend that there could be no satisfaction on the part of the detaining authority as to the likelihood of such a person indulging in the activities which would jeoparadise the security of the State or the public order.

The Hon'ble Supreme Court has laid down the principles as to when a detention order can be passed with regard to a person already in judicial custody in the case of Kamarunnissa vs. Union of India and another reported in 1990(27) ACC 621 SC and in paragraph 13 of the aforesaid case the The Hon'ble Supreme Court has held as hereunder :-

"13. From the catena of decisions referred to above, it seems clear to us that even in the case of a person in custody a detention order can validly be passed(1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him(a) that there is real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in prejudicial activity; and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in his behalf, such an order can not be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition to question of before a higher Court."

What follows from the above is that a valid preventive detention order passed against a person in judicial custody must fulfill the conditions spelt out herein above by the Apex Court and one such essential condition is that there should be real possibility of the person being released on bail.

In the present case the detaining authority has merely mentioned in the ground of detention that the bail application filed by the petitioner before the Chief Judicial Magistrate-Ist, Ghaziabad was rejected and thereafter the petitioner had moved his bail application before the Sessions Judge, Ghaziabad and there was possibility of the petitioner's indulging in similar activities prejudicial to the maintenance of public order on his being enlarged on bail. He has not recorded his satisfaction in the impugned order that there was real possibility of his being released on bail which omission in our opinion has totally vitiated the impugned order.

The writ petition accordingly succeeds and is allowed. The impugned order dated 20.09.2014 passed by District Magistrate, Ghaziabad is hereby quashed.

Let the petitioner, Vinod Valmiki be released from jail forthwith, if he is not wanted in any other case. There shall be however, no order as to costs.

dt. 10/09/2015

Farid/Abhishek