Kallu vs Union of India and Others

Naheed Ara Moonis, J.—1. The instant petition has been filed on behalf of the petitioner seeking the relief in the nature of Habeas Corpus directing the respondents to set him at liberty forthwith and also quashing the order dated 6.6.2015 passed by the District Magistrate Jalaun, respondent No. 3 whereby the petitioner has been ordered to be detained in captivity for twelve months in exercise of power under section 3(2) of the National Security Act 1980 (hereinafter referred to as N.S.A.).

We have heard learned counsel for the petitioner Sri Mahendra Pratap and Sri Syed Murtaza Ali, learned A.G.A. for the State as well as Sri N.D. Rai, learned counsel appearing on behalf of the Union of India.

The emanation of facts unfolded compendiously is that ground of detention dated 6.6.2015 along with detention order was served upon the petitioner while he was in judicial custody pursuant to the first information report registered against him vide Case Crime No. 1850 of 2014 under sections 147, 148, 149, 452, 302, 504, 323/34, 506 IPC read with section 7 of Criminal Law Amendment Act, P.S. Jalaun, District Jalaun and also in Case Crime No. 440 of 2015, under Section 2/3 of U.P. Gangsters and Anti Social Activities (Prevention) Act, 1986.

The first information report vide Case Crime No. 1850 of 2014, P.S. Jalaun, District Jalaun was registered by Hafiz Munna Shah against the petitioner and other accused persons on 27.12.2014 stating therein that on the fateful day at about 9 am Rafiq S/o Rasool came near Mosque on motorcycle along with associates and asked for removal of materials and machines which were kept there in the way for construction of the Mosque. On account of which some heated words were exchanged. Thereafter the petitioner along with other accused persons entered into the house of the complainant armed with lethal weapons. They grappled along with family of the complainant. They were severely beaten by them and they had also fired indiscriminately resulting into the death of nephew of the complainant Nafees @ Babba. Other persons had also sustained serious injuries. The First Information Report was lodged at 5.30 P.M. under sections 147, 148, 149, 452, 302, 504, 323/34, 506 IPC read with section 7 of Criminal Law Amendment Act. The incident was flashed by the control room on account of the horrendous scene. There was great agitation. The communal harmony in the area was disturbed and public order was shattered. The police force was deployed from different police stations of different districts for maintaining public order. On account of the activities of the petitioner who is a history sheeter a case under Section 2/3 of U.P. Gangsters and Anti Social Activities (Prevention) Act, 1986 was also registered as Case Crime No. 440 of 2015.

Learned counsel for the petitioner submitted that the impugned order of preventive detention was passed by the respondent No. 3 against the petitioner while he was in prison under judicial custody in the aforesaid cases. In Case Crime No. 1850 of 2014 the bail application was rejected by the court below and only notice of bail application was served to the State before the Hon''ble High Court. The petitioner had also moved a bail application in the case under Section 2/3 of U.P. Gangsters and Anti Social Activities (Prevention) Act, 1986 vide case crime No. 440 of 2015 but the court below had rejected the bail application of the petitioner by order dated 11.5.2015. The respondent No. 3 while passing the detention order has only recorded his satisfaction that on the release of the petitioner in all probability he would indulge in prejudicial activities. There was no material placed before the detaining authority for recording his satisfaction about the release of the petitioner from the jail in near future. The detaining authority has made only speculation that the bail application would be moved by the petitioner before the Hon''ble High Court.

There is no live link between the alleged incident dated 27.12.2014 and the detention order dated 6.6.2015. Hence the detention order deserves to be quashed on this ground alone.

It is further submitted that from the bare perusal of the First Information Report which has been made the basis of passing the detention order neither the petitioner disturbed the public order nor there was any intention to disturb the public order, if any, as alleged in the grounds of detention. The approval and confirmation of the detention order by the authorities are based on extraneous consideration. The cross version has not been placed before the detaining authority nor supplied to the petitioner. An application was moved by Israil S/o Ibrahim under Section 156(3) Cr.P.C. on 1.1.2015 pursuant to which the order was passed by the learned Magistrate and a cross-case case was registered as Case Crime No. 1850-A of 2014, under Sections 147, 148, 323, 504, 352 IPC on 27.2.2015. Three persons, namely, Israil, Riyazuddin and Hashim on the side of the petitioner received grievous injuries. They were taken to the district hospital Orai for medical examination. On account of serious injuries they were referred to the medical college, Jhansi. This cross-version has neither been placed nor considered by the detaining authority, consequently, the detention order is vitiated in law. The petitioner had placed the material judgment in respect of the acquittal in the cases shown as criminal history of the petitioner before the Central Government, State Government and the Advisory Board, which has not been considered and the detention order has been approved and confirmed in an illegal and malafide manner by rejecting the representation.

Learned counsel for the petitioner has placed explicit reliance on the decision of this Court dated 21.12.2015 in Khursheed v. State of U.P. And others in Habeas Corpus Writ Petition No. 51840 of 2015 wherein the detention order passed by the District Magistrate, Moradabad under the N.S.A. was quashed as no satisfaction was recorded that there was real possibility of the detenu being released on bail would indulge in particular activity if not detained.

Learned counsel for the petitioner has also placed reliance upon the Full Bench Decision of Hon''ble the Apex Court rendered in Rekha v. State of Tamil Nadu through Secretary to Government and another , 2011(5) Supreme Court Cases 244 wherein it has been held that if no bail application is pending, then there is no likelihood of the person in custody being released on bail. In the case in hand the detaining authority has made speculation that the bail application of the petitioner would be filed and therefore, there is likelihood that the petitioner on being released on bail he would again indulge in similar activities disturbing the public peace and tranquility. This bald observation of the detaining authority cannot be made basis to keep the petitioner in captivity which is contravention of fundamental right under Article 21 of the Constitution of India. The subjective satisfaction of the detaining authority was irrational, without application of mind, irrelevant, extraneous beside there was delay of about 6 months in passing the detention order. This detention is punitive rather than preventive as in substance such detention of one year is a punishment of one year''s imprisonment. It has been further submitted that under the ordinary law the petitioner can be prosecuted if found guilty, therefore, detention order in question is illegal. The detention of the petitioner is merely on speculation and probability, therefore, the impugned order deserves to be quashed.

Per contra learned A.G.A. Sri Syed Murtaza Ali and learned counsel appearing on behalf of the Union of India Sri N.D. Rai contended that normally this Court should not interfere with the subjective satisfaction reached by the detaining authority except in peculiar and extremely limited circumstances. The Court should keep off from substituting its own finding petering out the order of the detaining authority when the grounds of detention are precise, pertinent, proximate and relevant. The detaining authority has perceived that detention of the petitioner with a view to prevent him from indulging in any manner which is only preventive and not punitive. The order of detention is a precautionary measure based on a reasonable prognosis of the future behaviour of a person resting on his past conduct in the light of the nature of the incidents and the connecting circumstances. The purposes of preventive detention and prosecution are different. The authorities are different and the nature of proceedings are different.

The respondent No. 3 after taking into account the facts and the circumstances of the case in its entirety that the fallout of the said incident had culminated into chaos disrupting the congenial atmosphere regarding maintenance of public order, the detention order was passed by him. The representation of the petitioner was placed before the State Advisory Board and before the Central Government which has been duly considered and the detention order has been approved and confirmed which has been duly communicated to the petitioner. It will not debar the preventive authority from taking action under the Act merely because the detenu will be tried in a criminal case for the commission of the offence as the likelihood of such a person indulging in prejudicial activities would imperil the maintenance of the law and order particularly when the detaining authority was conscious about the past conduct and long criminal history of the petitioner. There was all likelihood that in case the detention order is not passed the petitioner will again indulge in the activities detrimental to the interest and welfare of the public at large. There is no illegality in the order impugned. The detention order has been passed by following the provisions of law as the same has already approved by the competent authorities. The writ petition lacks any merit and it may be dismissed. The detention order may be affirmed.

We have given our anxious consideration to the submission advanced by the learned counsel for the parties.

In our opinion the detention order has been passed by the detaining authority so as to highlight the harshness of the incident occurred on 27.12.2014 vide Case Crime No. 1850 of 2014 under sections 147, 148, 149, 452, 302, 504, 323/34, 506 IPC read with section 7 of Criminal Law Amendment Ac. The object of the detention is not to punish a person but to prevent him from indulging in similar activities causing jeopardy to the security and maintenance of the public order. The authority may pass the order after recording his satisfaction in this regard. No doubt, the petitioner is shown to be involved in some offence for which the criminal court would hold the trial on the basis of legal evidence justifying his complicity but the captivity of the petitioner merely on the so-called subjective satisfaction of the detaining authority would constitute an infraction of a valuable right of the detenu under section 22(5) of the Constitution of India. The onus lies upon the prosecution to corroborate the charges against the petitioner during the course of trial and the trial court is fully competent to award capital punishment on the proof of the accusations.

From perusal of the impugned order there is only apprehension that the petitioner would be released on bail without making any reference whether any bail application is pending this alone will invalidate the impugned order.

The Apex Court has examined the legal impact of the failure of the detaining authority to record in the order of the preventive detention passed with regard to a detenu already imprisoned as a person in the judicial custody "that there was real possibility of the detenu being released on bail from the judicial custody" in several decisions.

The Hon''ble Apex Court observed in the case of Haradhan Saha Versus State of Bengal, , (1975) 3 SCC 198; AIR 1975 S.C. 2151 in paragraph No. 35 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 fair 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 jeopardised the security of the State or the public order."

The Hon''ble Apex Court has laid down principles as to when the such detention order can be passed, In this regard, the leading case is reported in , (1991) 1 SCC 128, Kamarunnissa v. Union of India and another; which has been followed in the case of Veeramani v. State of Tamil Nadu; , (2006) 2 SCC 664, T.V. Sravanan alias S.A.R. Prasana Venkatachaariar Chaturvedi v. State through Secretary and another; , JT 2003 (Suppl 2) SC 503 Union of India v. Paul Manickam and another. It has been held by the Supreme Court of India in paragraph 13 of Kamarunnisa case;

"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 this 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 if before a higher court."

The above mentioned conditions should be satisfied for the above valid detention or against the person in custody, one of the condition is that there should be real possibility of the person being released on bail."

Thus what follows is that an order of detention passed in respect of a person under judicial custody must satisfy the three conditions spelt out by the Apex Court in the case of Kamarunnissa (supra) and one such essential condition is that authority passing the order of detention in respect of a person in custody should have reason to believe on the basis of reliable material placed before him that there is real possibility of his being released on bail. In the present case, the respondent No. 3/District Magistrate, Jalaun has failed to record any such satisfaction in the impugned order.

Learned counsel for the Union of India Sri N.D. Rai and learned A.G.A. for the State Sri Syed Murtaza Ali despite having made elaborate submissions before us have failed to demonstrate that the detaining authority was justified by recording his satisfaction in the impugned order that there was real possibility of his being released on bail or his coming out of jail when no bail application was pending. In the absence of giving any reference about the pendency of bail application when once the bail had already been rejected the impugned detention order suffers from the vice of total non application of mind cannot be held to be a valid order. In other words if no bail application is pending then there is no likelihood of the petitioner in custody being released on bail and hence the impugned detention order is illegal. Further in our opinion there is no live link with the alleged incident dated 27.12.2014 and the order impugned dated 6.6.2015 passed by the respondent No. 3.

Having regard to the overall facts and circumstances and also the catena of authorities cited by the learned counsel for the parties, we hold that the detaining authority was not conscious of all the relevant aspects of the case and has passed the order impugned merely on the subjective satisfaction sensing the activities of the petitioner to be prejudicial and deleterious to the society if not detained. He has made speculation that the bail application would be moved and recorded satisfaction in the order impugned that there is all probability of imminent danger and peril to the public at large in case of the petitioner being released on bail, which aberration on the part of the detaining authority vitiates the impugned order.

In the result the writ petition succeeds and is accordingly allowed.

The impugned order dated 6.6.2015 passed by the respondent No. 3 District Magistrate Jalaun at Orai is hereby quashed.

Let the petitioner Kallu @ Navi Baksha be released from jail forthwith, if he is not wanted in any other case.

No order as to costs.