Ankit Tiwari vs Union Of India Thru' Home Thru' ...
2017 Latest Caselaw 894 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 40
 

 
Case :- HABEAS CORPUS WRIT PETITION No. - 54733 of 2016
 

 
Petitioner :- Ankit Tiwari
 
Respondent :- Union Of India Thru' Home Thru' Secy. & 6 Others
 
Counsel for Petitioner :- Hanuman Prasad Mishra
 
Counsel for Respondent :- G.A.,A.S.G.I.,Ashish Pandey,Raghuraj Kishore Mishra
 

 
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 19.05.2017. We then made the following order. We then made the following order:-

"Heard Sri Samit Gopal, assisted by Sri Hanuman Prasad Mishra, learned counsel for the petitioner and Sri Rajiv Gupta, learned A.G.A. for the State.

Counter-affidavit has been filed today on behalf of Union of India (respondent no.1), the same is kept on record.

Learned counsel for the petitioner has filed rejoinder-affidavit in reply to the counter-affidavit on behalf of respondent no.1, which is also kept on record.

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

The Habeas Corpus Writ Petition is allowed. The impugned order dated 31.08.2016 passed by District Magistrate, Farrukhabad (respondent no.3) under Section 3(2) of National Security Act is hereby quashed.

The petitioner- Ankit Tiwari shall be released forthwith, if not wanted in any other case."

Here are the reasons:

By means of the present Habeas Corpus Writ Petition, the petitioner has challenged the validity of the detention order dated 31.08.2016 by District Magistrate, Farrukhabad (respondent no.3) in the exercise of his power under Section 3(2) of the National Security Act, which, along with the ground of detention was served on the petitioner while he was in District Jail, Farrukhabad on account of his being accused in Case Crime No. 798 of 2016 under Sections 147, 148, 149, 354B, 323 and 504 I.P.C. read with Section 7 of Criminal Law Amendment Act; Case Crime No. 800 of 2016 under Sections 147, 148, 149, 307, 336, 186, 353, 332, 427 I.P.C read with Section 7 of Criminal Law Amendment Act and Section 3/4 of Social Property Damage to Protection Act, 1984 and Case Crime No. 801 of 2016 under Sections 147, 148, 149, 323, 504 and 336 I.P.C., which were registered vide three different first information reports lodged by informant/complainant Km. Nisha, S.I. Sanjeev Singh Rathore and Sri Islam Chaudhary, respectively, in respect of the incidents, which had allegedly taken place on 13.08.2016, containing allegations against the petitioner and his accomplices regarding eve-teasing and abusing girls and thereafter causing damage to public property.

The grounds of detention further reveal that on account of aforesaid activities of the petitioner, an atmosphere of fear and terror had engulfed the whole area. Parents had stopped sending their children to school; peace and tranquility of vicinity and public law and order was totally shattered.

A perusal of grounds of detention further indicates that the petitioner was in District Jail, Farrukhabad on account of his being involved in Case Crime Nos. 798, 800 and 801 of 2016 was making efforts through his pairokar to obtain bail and in this regard, he had moved a bail application before the lower court, which was rejected by order dated 17.08.2016 and thereafter, he had moved an application before District and Sessions Judge, Farrukhabad, which was pending before him and 01.09.2016 was the date fixed for its hearing and in case the petitioner was released on bail, there was strong possibility of the petitioner again indulging in activities which will disturb public order and hence, the detaining authority found it imperative to pass an order of preventive detention against the petitioner.

Learned counsel for the petitioner submitted that the District Magistrate, Farrukhabad 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, Sri Raghuraj Kishore Mishra, learned counsel appearing for Union of India and learned learned A.G.A. submitted that the impugned order has been passed by the detaining authority on the basis of petitioner's involvement in the incidents, which had taken place on 13.08.2016 in Farrukhabad city (along with his associates). Three F.I.Rs. of the aforesaid incidents, which were lodged by Km. Nisha, S.I. Sanjeev Singh Rathore and Sri Islam Chaudhary were registered as Case Crime Nos. 798 of 2016 under Sections 147, 148, 149, 354B, 323 and 504 I.P.C. read with Section 7 of Criminal Law Amendment Act; Case Crime No. 800 of 2016 under Sections 147, 148, 149, 307, 336, 186, 353, 332, 427 I.P.C read with Section 7 of Criminal Law Amendment Act and Section 3/4 of Social Property Damage to Protection Act, 1984 and Case Crime No. 801 of 2016 under Sections 147, 148, 149, 323, 504 and 336 I.P.C., respectively against the petitioner and his accomplices at Police Station- Kotwali Farrukhabad, District- Farrukhabad. The allegations against the petitioner were that he (petitioner) along with his accomplices had indulged in eve-teasing, abusing girls and causing damage to public property, which had the effect of totally disturbing the communal harmony and shattering public order.

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. 798 of 2016 under Sections 147, 148, 149, 354B, 323 and 504 I.P.C. read with Section 7 of Criminal Law Amendment Act; Case Crime No. 800 of 2016 under Sections 147, 148, 149, 307, 336, 186, 353, 332, 427 I.P.C read with Section 7 of Criminal Law Amendment Act and Section 3/4 of Social Property Damage to Protection Act, 1984 and Case Crime No. 801 of 2016 under Sections 147, 148, 149, 323, 504 and 336 I.P.C., 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 jeopardize 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 District and Sessions Judge, Farrukhabad was rejected and thereafter the petitioner had moved his bail application before the District and Sessions Judge, Farrukhabad 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, an omission, which in our opinion has totally vitiated the impugned order.

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

Order Date :- 19.5.2017

I. Batabyal