Gyanchandra Pandey vs Adhikshak, Janpad Kaaragaar, ...
2015 Latest Caselaw 2697 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 

 
Court No. - 40
 

 
Case :- HABEAS CORPUS WRIT PETITION No. - 49307 of 2015
 

 
Petitioner :- Gyanchandra Pandey
 
Respondent :- Adhikshak, Janpad Kaaragaar, Mirzapur And 3 Others
 
Counsel for Petitioner :- Chandrakesh Mishra,Daya Shanker Mishra
 
Counsel for Respondent :- Govt. Advocate,A.S.G.I./2015/1866,V.K.S.Chandel
 

 
Hon'ble Bala Krishna Narayana,J.

Hon'ble Vijay Prakash Pathak,J.

Heard Sri Daya Shanker Mishra, learned counsel for the petitioner, learned A.G.A. and Sri V.K.S. Chandel, learned counsel for the Union of India.

Counter affidavit in this case has been filed only on behalf of respondent nos. 1 and 3. Despite time being granted on several occasions and passing of stop order, no counter affidavit has been filed on behalf of Union of India and respondent no. 2.

This writ petition has been filed by the petitioner Gyanchandra Pandey with a prayer to issue a writ of Habeas Corpus directing the respondents to produce the corpus of the detenue Gyanchandra Pandey before this Court and set him at liberty. A further prayer has been for issuing a writ, order or direction in the nature of certiorari quashing the order dated 18.04.2015 passed by the respondent no. 2, District Magistrate, Mirzapur in the exercise of his power under Section 3(3) of the National Security Act (hereinafter referred to as N.S.A.), annexure 1 to the writ petition.

Briefly stated the facts of this case are that on the basis of F.I.R. Lodged by one Durwasa Dwivedi at P.S. Vindhyachal, District Mirzapur on 11.12.2014, Case Crime No. 1206 of 2014, under Sections 307/302 I.p.c. & 7 Criminal Law Amendment Act was registered against the petitioner and his son Shubham Pandey. According to the prosecution case as spelt out in the F.I.R. the incident had occurred on 11.12.2014 at about 10:30 P.M.in front of the petitioner's house in Purani V.I.P. Road locality in which two persons Mritunjay Dwivedi, brother of the informant and Shiv Shankar Giri had lost their lives while Dhananjay Dwivedi another brother of the informant had received injuries. The role of firing at Mritunjay Dwivedi and Shiv Shankar Giri by a double barrel gun was specially attributed to the petitioner while the part of assaulting the Mritunjay Dwivedi and Dhananjay Dwivedi with "bhujali" was assigned to both the petitioner and his son Shubhan Pandey. F.I.R. further reflected that the incident was preceded by a quarrel between the deceased, injured and the petitioner, when the petitioner insisted that the pilgrims whom the deceased and the injured were taking to the temple for 'darshan' would go to the temple with him only and started hurling abuses at them. When they objected, they were assaulted by the petitioner and his son with fire arm and "bhujali". Upon the informant, who had also reached the place of incident, raising cries for help, large number of people gathered at the place of occurrence. Shopkeepers of the locality started closing their shops. The pilgrims who had assembled there for having 'darshan' started running away and the people hid themselves inside their houses. The petitioner was arrested on account of his being main accused in the aforesaid case and sent to jail on 15.12.2014.

While the petitioner was in District Jail Mirzapur, the impugned detention order dated 18.04.2015 was served on him through the concerned Jail Superintendent on the same day along with the grounds of detention under Section 8 of N.S.A.

Learned counsel for the petitioner submitted that the District Magistrate, Mirzapur 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 detaining 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. and Sri V.K.S. Chandel, learned counsel for the Union of India made their submissions in support there impugned order and submitted that detaining authority has 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 habeas corpus 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. 1206 of 2014, under Sections 307/302 I.P.C. and 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) 3 SCC 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."

Another leading authority on the same issue is the judgment of Apex Court rendered in the case of Huidrom Konungjao Singh Vs. State of Manipur; (2012) 7 SCC 181 wherein the Supreme Court has held as under :

"If the detention order, passed against a person who is already in custody in respect of criminal case is challenged the detaining authority has to satisfy the Court the following facts :

1.The authority was fully aware of the fact that the detenue was actually in custody.

2.There was reliable material before the said authority on the basis of which it could have reasons to believe that there was real possibility of his release on bail and further on being released he would probably indulge in activities which are prejudicial to public order.

3. In view of the above the authority felt it necessary to prevent him from indulging in such activities and therefore, detention order was necessary.

In case either of these facts does not exist, the detention order would stand vitiated and liable to be quashed.

Merely because somebody else in similar cases had been granted bail, there could be no presumption that in the instant case had the detenue applied for bail, he could have been released on bail. If the said bail orders do not relate to the co-accused of the same case crime number, the accused released on bail in these cases of similar nature, having no concern with the present case, their bail orders can not be a ground to presume that the detenue may also be released on bail.

The appeal succeeds and is allowed. The impugned detention order is set aside."

In Dharmendra Suganchand Chelawat Vs. Union of India; AIR 1990 SC 1196 the Supreme Court has observed as under :

"21. .....an order for detention can be validly passed against a person in custody and for that purpose it is necessary that the grounds of detention must show that -

1.The detaining authority was aware of the fact that the detenue is already in detention.

2.There were compelling reasons justifying such detention despite the fact that the detenue is already in detention.

The expression "compelling reasons" in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that the detenue is likely to be released from custody in the near future and taking into account the nature of the antecedent activities of the detenue, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities."

In Rivadeneyta Ricardo Agustin Vs. Government of the National Capital Territory of Delhi and others; 1994 Supp. (1) SCC 597, the Hon'ble Supreme Court has observed :

"if there is no material before the detaining authority indicating that the detenue is likely to be released or such release is imminent, the detention order, passed without such satisfaction is liable to be quashed."

In Vijay Narain Singh Vs. State of Bihar; (1984) 3 SCC 14, the Apex Court has observed that :

"the law of preventive detention being a drastic and hard law, must be strictly construed and should not ordinarily be used for clipping the wings of an accused if, criminal prosecution would suffice."

In Binod Singh Vs. District Magistrate, Dhanbad; (1986) 4 SCC 416, the Apex Court has emphasised that :

"before passing a detention order in respect of a person who is in jail the concerned authority must satisfy himself and that satisfaction must be reached on the basis of cogent material that there is a real possibility of the detenue being released on bail and further if released on bail he will indulge in prejudicial activity if not detained."

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 in its numerous pronouncements on the issue 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 petitioner has filed his bail application before the Sessions Judge, Mirzapur and there was possibility of the petitioner indulging in similar activities prejudicial to the maintenance of public order on his coming out of jail. 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 habeas corpus writ petition accordingly succeeds and is allowed.

The impugned order dated 18.04.2015 passed by respondent no. 2, District Magistrate, Mirzapur (annexure no. 1 to the writ petition) is hereby quashed.

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

Order Date :- 28.9.2015

M/A.