Devpriya vs State of U.P. and Others

B.K. Narayana, J.—1. Heard Sri Pankaj Kumar Srivastava, learned counsel for the petitioner, Sri Syed Ali Murtaza, learned counsel for the respondent Nos. 1,2 and 3 and Sri Alok Ranjan Mishra, learned counsel for the Union of India/respondent No. 4.

This writ petition has been filed by the petitioner Devpriya with a prayer to issue a writ of certiorari quashing the impugned orders dated 16.08.2015 and 06.10.2015 passed by respondent Nos. 2 and 1 (Annexure Nos. -1 & 2 to the writ petition). A further prayer has been made for issuing a writ of habeas corpus commanding the respondents to produce the corpus of the detenue Devpriya and set him at liberty.

Brief facts of this case are that one Babu Ram son of Ilam Singh, r/o of village Biharipur district Baghpat had gone to the weekly vegetable market held in village Biharipur along with his brother Vedpal, his wife Smt. Madhubala, his son Kalloo, Vinod son of Raghuveer Singh, a friend of Vedpal and Manoj brother of Vinod for making weekly purchases on 19.06.2015 at about 7.00 p.m. A huge crowd had gathered at the place where the weekly market was being held. While aforesaid Babu Ram along with his relatives and friends was going towards the vegetable shop, he saw Satveer, resident of the same village, armed with pistol running towards him along with his wife Ramesho, Devpriya (petitioner) and Deovart both sons of Braham Singh, Priyavart son of Satveer, Mintoo son of Niranjan, Azad son of Bheem all residents of village Biharipur, P.S. and district Baghpat and Adesh son of Braham Pal resident of Bhaurakalan, district Muzaffar Nagar and on reaching near him, he and his wife Ramehso exhorted their companions to kill Vedpal and his friend Vinod, who belonged to Ninane as they were creating lot of troubles for them. Before Babu Ram and his other relatives could realise what was happening, the petitioner and his associates Deovart, Priyavart, Mintoo, Azad and Adesh riddled Vedpal and Vinod with bullets fired from their weapons which resulted in their instantaneous death. At the time of the incident a huge crowd comprising of men, women and children had gathered in the market area. Sounds of the gun shots caused stempede in the market. Shop keepers ran away leaving behind their merchandise. The womenfolk and the children present in the market fled to save their lives leaving behind their belongings, shoes and sleepers and hid themselves. The assailants ran towards their houses extending death threats to Babu Ram and his other relatives. On account of terror and the fear created in the village as a result of the incident no one was willing to open the door of his house. On the basis of the FIR lodged by Babu Ram at P.S. Kotwali, District Baghpat with regard to the aforesaid incident, case crime No. 578 of 2015, under Sections 147, 148, 149, 302, 506, 34 IPC and 7 Crl. Law Amendment Act was registered against the petitioner and eight other persons. As soon as the aforesaid case was registered against the petitioner and other co-accused, Krishna Murari Dohare, Inspector Incharge of the police station who was entrusted with the investigation of the aforesaid case, swung into action and reached the place of occurrence in village Biharipur and commenced the investigation. After preparing the inquest reports of the deceased Vedpal and Vinod, he got the dead bodies of the deceased sealed and despatched the same to the District Mortuary, Baghpat for conducting post mortem. He recorded the statement of the complainant Babu Ram under Section 161 Cr.P.C. and at the instance of the complainant inspected the place of occurrence and prepared the site plan. The place of incident was found to be in the centre of village Biharipur which indicated that the petitioner alongwith other co-accused had committed the double murder in a densely populated area in an extremely, daring and cruel manner. As a result of the aforesaid incident public order was totally shattered in village Biharipur, Ladhwadi, Fazullapur, Faizpur Ninana and other adjacent areas. Superintendent of Police, Baghpat, Additional Superintendent of Police and C.O., Baghpat had reached the place of incident on 19.06.2015 and pursuant to the order issued by the Superintendent of Police, Baghpat Police Force, QRT, Extra Mobile and Second Mobile also reached the place of occurrence for restoring public order in village Biharipur. The aforesaid incident was widely published in several news papers on 20.06.2015 including Dainik Jagran and Amar Ujala.

While the petitioner was in jail on account of his being accused in the aforesaid case, he was served with the order dated 16.08.2015 passed by District Magistrate, Baghpat respondent No. 2 in the exercise of his power under Section 3(2) of the National Security Act hereinafter referred to as the "NSA" along with the grounds of detention under Section 8 of the National Security Act, copy whereof has been brought on record as Annexure SA-1 to the supplementary affidavit. The detention order was confirmed by the State Government by order dated 06.10.2015, Annexure-2 to the writ petition.

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 Alok Ranjan Mishra, learned counsel for the Union of India/respondent No. 4 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 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. 578 of 2015, under Sections 147, 148, 149, 302, 406, 34 IPC and 7 Crl. Law Amendment Act was registered against the petitioner and eight other persons at P.S. Kotwali, District Baghpat being released on bail has vitiated the impugned order.

The Hon''ble Supreme Court of India in paragraph 35 of its judgment rendered in the case of Haradhan Saha & Another v. 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 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 v. Union of India and another reported in , 1990(27) ACC 621 SC and in paragraph 13 of the aforesaid case 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 v. 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:

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 v. 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 -

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 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 v. 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 v. 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 v. 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 has filed his bail application before the Sessions Judge, Baghpat 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 any 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 detention order.

In the absence of any such satisfaction having been recorded in the impugned order by the detaining authority/respondent No. 2, the impugned detention order which suffers from the vice of total non application of mind cannot be held to be a valid order. Since the detention order dated 16.08.2015 passed by respondent No. 2 cannot be sustained, the order dated 06.10.2015 passed by State Government approving the detention order is also liable to be quashed.

The habeas corpus writ petition accordingly succeeds and is allowed.

The impugned orders dated 16.08.2015 and 06.10.2015 passed by respondent Nos. 2 & 1 respectively (annexure Nos. 1 & 2 to the writ petition) are hereby quashed.

Let the petitioner, Devpriya be released from jail forthwith, if he is not wanted in any other case.

There shall be however, no order as to costs.