Anuj vs The Union of India and Others

B.K. Narayana, J.—Heard Sri D.R. Chaudhary, learned counsel for the petitioner and learned A.G.A. for the State as well as Sri K.P. Pathak, learned counsel for the respondent No. 2 to 6.

This writ petition has been filed by the petitioner with the prayer to issue a writ, order or direction in the nature of habeas corpus commanding the respondents to release the petitioner from his illegal detention in pursuance of the order dated 30.4.2015 (Annexure 6 to the writ petition) passed by the respondent No. 3, District Magistrate, Baghpat and set him at liberty forthwith. A further prayer has been made for quashing the impugned order dated 30.4.2015 passed by the respondent No. 3, District Magistrate, Baghpat (Annexure 6 to the writ petition).

The brief facts of the case are that on 31.1.2014 at about 3.30 P.M. while Smt. Sarla Devi, wife of Satyapal Singh was sitting in the gallery of her house in village Wajidpur within the limits of P.S.-Kotwali Baraut, district-Baghpat along with Ravindra, S/o Shyam Singh, R/o Gram Chunsa, P.S.-Bhaurakalan, district-Muzaffar Nagar and Dharmendra, S/o late Ram Niwas, R/o Gram-Kalina, district-Meerut, the petitioner along with Ankit alias Montu, S/o Narendra Singh and Nitin alias Ganja, S/o Rajendra alias Jhodha and Kuldeep alias Tori, S/o Omveer Singh, all residents of village-Wajidpur, Sonu, R/o Teekri, P.S.-Doghat and Mohit, R/o Bijraul armed with lethal weapons forcibly entered into the house of Smt. Sarla Devi and started firing indiscriminately with their firearms at her husband Satyapal Singh causing his immediate death. Before the occupants of the house could realize what was happening, the petitioner and his companions brandishing their weapons dragged the dead body of Satyapal Singh in the east of the deceased''s house. Upon Sarla Devi and others raising cries for help and chasing the assailants, they left the dead body of the deceased and ran away in different directions. On the basis of the first information report lodged by Smt. Sarla Devi at P.S.-Kotwali Baraut on 31.1.2014, Case Crime No. 72 of 2014, under Sections-147 , 148 , 149 , 452 , 302 and 120B I.P.C. was registered against the petitioner and seven other persons. The motive of the murder was attributed to an old enmity between Narendra Singh father of Ankit alias Montu and the deceased emanating from a dispute which had arisen several years ago between them over money lending in which the deceased Satyapal Singh had thrashed Narendra Singh. During the investigation of the aforesaid case the statement of informant Smt. Sarla Devi was recorded in which she fully supported the prosecution case as spelt out in the F.I.R. The news regarding the aforesaid incident was published in daily newspapers namely Amar Ujala and Dainik Jagran. The other eyewitnesses of the incident namely Ravindra, Dharmendra, Jitendra, Jay Prakash, Yogendra and Upendra also fully supported the prosecution case in their statements recorded under Sections 161 Cr.P.C. According to the post mortem report of the deceased he had died as a result of firearm injuries sustained by him in the incident. The petitioner was arrested on 20.3.2014 during random checking of vehicles at Sarai Road railway crossing and on his pointing out, one country made revolver of twelve bore was allegedly recovered. The petitioner during his interrogation had confessed having fired at the deceased along with the other co-accused. He was however not sure whether the shot fired by him had hit the deceased or not. While the petitioner was confined in district Jail Meerut on account of his being accused in the aforesaid Case Crime No. 72 of 2014 he was served with the impugned detention order dated 30.4.2015 passed by the District Magistrate, Baghpat in exercise of his power under Section 3(2) of National Security Act along with the grounds of detention under Section 8 of the National Security Act.

A perusal of the impugned order as well as the ground of detention reflects that the detention order was passed by the respondent No. 3 against the petitioner on the basis of his involvement in two criminal cases namely, Case Crime No. 72 of 2014, under Sections-147 , 148 , 149 , 452 , 302 and 120B I.P.C. and Case Crime No. 347 of 2015, under Section-506 I.P.C. both registered at P.S.-Kotwali. As far as the incident dated 31.1.2014 was concerned, the respondent No. 3, District Magistrate, Baghpat was of the view that the daring and diabolic manner in which the petitioner along with the other co-accused, had committed the murder of Satya Pal Singh by lethal weapons with common intention in broad-day-light and thereafter dragged his dead body upto the lane of the village brandishing their weapons, had caused a stampede in the village. People had run away leaving their shops and articles due to fear and hid themselves in their houses. Feeling of fear, insecurity and terror had engulfed the residents of Wajidpur and other nearby areas. An atmosphere of fear and terror pervaded and after sometime angry people came out on the road and blocked Baraut-Binauli-Meerut road totally disrupting the movement of traffic. Public peace and public order was totally shattered in the nearby areas also. The grounds of detention further reflect that despite being in judicial custody the petitioner was putting pressure upon Smt. Sarla Devi through his brother to withdraw the case filed by her against the petitioner or to face dire consequences which had created a feeling of fear, terror and insecurity amongst the informant and the other eyewitnesses of the incident and on the basis of the first information report lodged by Smt. Sarla Devi regarding threats extended to her by the petitioner through his brother Ashwini, Case Crime No. 347 of 2015, under Section 506 I.P.C. was also registered against the petitioner. The Local Intelligence Unit (L.I.U.) had vide report dated 25.4.2014 had reported that on account of the aforesaid incident, the atmosphere of anger and fear had engulfed the nearby villages which had affected the normal life of the residents of village-Wajidpur and other nearby villages. All kinds of rumours were floating in the area on account of which there was possibility of public tranquillity being adversely affected and in case the petitioner succeeded in obtaining bail, the same would adversely affect public order. The petitioner preferred representations before the detaining authority (District Magistrate), State Government, U.P. Advisory Board constituted under the National Security Act and Central Government through Superintendent of District Jail, Meerut. The representations made by the petitioner against the order of detention to the State of U.P. through District Magistrate, Baghpat, U.P. Advisory Board, U.P., Lucknow and the Central Government were rejected.

Learned counsel for the petitioner submitted that the District Magistrate, Baghpat 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 the impugned order and submitted that the 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 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 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. 72 of 2014, under Sections-147 , 148 , 149 , 452 , 302 and 120B I.P.C. and Section-232 of 2014, under Section-25 of Arms 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, 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 Vs. The State of West Bengal and Others, 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 and Others Vs. Union of India and another, 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 and Others, 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:

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

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.

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 and another Vs. Union of India and others, 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-

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

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 and Others, , 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, Bihar and Others, , 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 was making effort to obtain bail 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 30.04.2015 (Annexure No. 6 to the writ petition) passed by respondent No. 3, District Magistrate, Baghpat is hereby quashed.

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