Chand And Anr. vs State Of U.P. And 6 Others
2017 Latest Caselaw 731 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 40
 

 
Case :- HABEAS CORPUS WRIT PETITION No. - 31278 of 2016
 

 
Petitioner :- Chand And Anr.
 
Respondent :- State Of U.P. And 6 Others
 
Counsel for Petitioner :- Pradip Narain Singh
 
Counsel for Respondent :- G.A.,Raj Kumari Devi
 

 
Hon'ble Bala Krishna Narayana,J.

Hon'ble Arvind Kumar Mishra-I,J.

The order of the Court was delivered by:-

Hon'ble Bala Krishna Narayana,J. - The arguments of this case concluded at the close of the Court hours on 16.05.2017. We then made the following order:-

"Heard Sri Pradip Narain Singh, learned counsel for the petitioner, Smt. Raj Kumari Devi, learned counsel for respondent no.8 and Sri Rajiv Gupta, learned counsel for respondent nos. 1 to 7.

We will give reasons later but we are making the operative order now.

The impugned detention order dated 13.06.2016 passed by District Magistrate, Muzaffarnagar is quashed.

The petitioner no.1 is set at liberty forthwith. Respondents are directed to release petitioner no.1 from District Jail, Muzaffarnagar, unless he is wanted in any other case."

Here are the reasons:

By means of this habeas corpus writ petition, the petitioner has challenged the legality and validity of the order dated 13.06.2016 passed by District Magistrate, Muzaffarnagar (respondent no.2), marked as Annexure No.6 to this writ petition, in the exercise of power under Section 3(2) of National Security Act, 1980 and has made the prayer to quash the same.

Briefly stated, the facts of this case, as emerging from the perusal of the pleadings of the parties and the grounds of detention are that on the basis of written report lodged by one Vinod on 06.05.2016 at about 23.30 hours at Police Station- Khatoli, District- Muzaffarnagar in respect of an incident which had taken place on 05.05.2016 at about 08.30 P.M. in the house of the informant in which the petitioner, along with his companions, had forcibly entered into the house of the informant and after abusing and threatening the informant and his family members with dire consequences, they started firing at them with their firearms, causing firearms injuries to Smt. Chunni Devi and others. As a result of hue and cry raised by them, other people of the locality also came to the spot, on which the petitioner and his companions started throwing stones at them. On receiving information about the incident, the police also arrived at the spot. The petitioner and his companions also targeted the police force by pelting stones at them. This incident had taken place as a fallout of the occurrence which had taken place about half an hour before at about 8.00 P.M. in Mohalla Sharafat Colony, in which while Himanshu (son of informant Vinod) and his younger sister were returning after purchasing medicine for their sister, his motorcycle collided with the petitioner's e-rickshaw in which 3-4 persons were sitting and on account of aforesaid collusion, an altercation had taken place between Himanshu and the persons sitting in the e-rickshaw, including the petitioner, which had led to a scuffle between the petitioner and Himanshu (son of informant Vinod Kumar).

On the basis of the aforesaid incident, Case Crime No.428 of 2016 under Sections 147, 148, 149, 452, 504, 323, 506, 307, 336 IPC read with Section 7 of Criminal Law Amendment Act and Case Crime No.430 of 2016 under Sections 147, 148, 149, 452, 504, 323, 506, 307, 336 IPC and Section 7 of Criminal Law Amendment Act, read with Section 3(2) 5 SC/ST Act, at 23.30 hours on 05.05.2016 were registered at Police Station- Khatoli, District- Muzaffarnagar.

The grounds of detention further reveal that during the investigation of the aforesaid case, one Sudhir Kumar s/o Om Prakash who had received injuries in the aforesaid incident, gave a written complaint at Police Station- Khatoli on 05.05.2016 at 23.30 hours that while he was tying his buffalo in the shed on 05.05.2016 at about 8.00 P.M., suddenly 50-60 unknown persons belonging to he Muslim community arrived at his house and started pelting stones, causing damage to his car, injuring him as well as his cattle. The respondent no.3 (SSP, Muzaffarnagar) found that the aforesaid activities of the petitioner had totally shattered the public order in Kasba- Khatoli and had totally disturbed the communal harmony of the area, which had led to a scuffle between members of the two communities and with regard to one such incident, the first information report was lodged by one Nawab s/o Garif r/o Siddiqnagar Khatoli, District- Muzaffarnagar at Police Station- Khatoli, District- Muzaffarnagar on 05.05.2016 at about 23.30 hours, alleging therein that his brother Shadab had been beaten mercilessly on 05.05.2016 at about 8.00 P.M. by members of the Hindu community at Case Crime No. 429 of 2016 under Sections 147, 148, 149, 307, 324, 504 and 506 I.P.C. (State Vs. Akash and 6 others).

On account of being accused in Case Crime No. 430 of 2016, the petitioner was arrested on 02.06.2016 at about 16.00 hours and on his being searched, one country-made pistol and two live cartridges were recovered from him and on the basis of the recovery so made, a case was registered against him at Case Crime No. 545 of 2016 under Section 25, Arms Act at Police Station- Khatoli, District- Muzaffarnagar.

While the petitioner was in jail on account his being accused in aforesaid crimes, the impugned detention order was passed by respondent no.2 (District Magistrate).

Learned counsel for the petitioner submitted that the District Magistrate, Muzaffarnangar 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.

Learned counsel for the petitioner further submitted that the petitioner having admittedly not moved any bail application in Case Crime No. 545 of 2016 under Section 25 of the Arms Act, the satisfaction recorded by the detention authority in the grounds of detention that there was strong possibility of the petitioner being granted bail on the ground of parity with the accused in Case Crime No. 428 of 2016 and Case Crime No. 430 of 2016 registered against him at Police Station- Khatoli, District- Muzaffarnagar, as the petitioner's father Zahid Hussain, who was also accused in the aforesaid two cases, had been granted bail by the Sessions Judge is, per se, illegal and not warranted by the material brought on record.

He has lastly submitted that the material brought before the detaining authority was not sufficient to satisfy him that in the case of his 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, cannot be sustained.

Per contra, learned A.G.A. and Sri P.N. Singh, learned counsel for the Union of India made their submissions in support of 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 no.1- Chand 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, deserves 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 issues involved in this writ petition, inter-alia, are that whether the failure on the part of the detaining authority to record his satisfaction in the impugned detention order that there was imminent possibility of the petitioner no.1 being released on bail has totally vitiated the detention order and whether recording of his satisfaction therein by the detaining authority that there was a strong possibility of his indulging in similar activities which were prejudicial to the public order on his being released 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 judicial 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 jeopardise 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 here under:-

"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 detenu is likely to be released from custody in the near future and taking into account the nature of the antecedent activities of the detenu, 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 detenu 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 grounds of detention that the petitioner no. 1 was making efforts to obtain bail from the District & Sessions, Muzaffarnagar for hearing of his bail application and there was possibility of the petitioner no. 1 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 any real possibility of his being released on bail which omission in our opinion has totally vitiated the impugned order. Recording of his satisfaction in the impugned order that on being released on bail, there was a strong possibility of his indulging in similar activities prejudicial to the public order would not validate the impugned order.

The respondent no. 1 having failed to record any satisfaction in the impugned order that there was real possibility of the petitioner no. 1 coming out of jail, hence the impugned order can not be sustained and is liable to be quashed. The writ petition is accordingly allowed.

These were the reasons upon which we quashed the order of detention.

Order Date :- 16.5.2017

I. Batabyal