Malkhan Singh vs District Magistrate and Others

K.K. Misra, J.—Heard Mr. J. S. Sengar, learned Counsel for the Petitioner and Mr. A. K. Tripathi, appearing for the State.

The Petitioner Malkhan Singh Thakur has filed this habeas corpus petition for being set at liberty and quashing of the order of detention dated 27.9.2001 annexed as Annexure-1 to the writ petition passed u/s 3(2) of the National Security Act, 1980 (in short the Act) by the District Magistrate, Fatehpur.

The Petitioner made a representation which was made in the month of November, 2001. Precise date cannot be known since it is not dated. It was rejected. The State Government approved the order of detention on 30.10.2001, i.e., within 12 days from the date of passage of detention order. The approval of the detention order was communicated to the Petitioner through the District authorities by the State Government by a Radiogram message and a letter both dated 5.10.2001. The papers received by the District Magistrate, Fatehpur, were also sent to the Central Government which were received by the Secretary, Ministry of Home Affairs, New Delhi on 7.10.2001, within 7 days from the date of its approval by the State Government, that is, within the period required u/s 3(5) of the Act. All this goes to show that the provision of Sections 3(4) and 3(5) of the Act referred to above were duly complied with. The matter was referred to the Advisory Board by the State Government well within a period of 21 days to be reckoned from the date of actual detention in pursuance to the above order. The Advisory Board found that there was sufficient cause for the detention of the Petitioner. It thus approved the aforesaid detention order. After taking into consideration the recommendation of Advisory Board and other material on record, the detention of the Petitioner for a period of 12 months was approved by the State Government. The representation made by the Petitioner was rejected and there was no delay in forwarding and processing it by the competent authority nor any such challenge towards it was ever pressed. Three under noted points have been canvassed before this Court by learned Counsel for the Petitioner:

(1) The detention order is vague and was passed without application of mind.

(2) That in the detention order, it has not been mentioned that the Petitioner has applied for bail or is likely to apply and likely to be released on bail and thus the detention order is per se bad and illegal as well. Since there was no urgency. He was already in jail.

(3) The incident in respect of which the Petitioner was detained u/s 3 of the Act does not pertain to the disturbance of public order, but at best it could be treated as an incident of breach of law and order and consequently, the provision of Section 3(2) of the Act should not have been invoked.

A perusal of the detention order would show that the detenu was in judicial custody in connection with an offence u/s 396, Indian Penal Code and while he was in jail, impugned detention order was served upon him. An order of detention can validly be passed against a person in custody depending upon the circumstances of each case. In case of Kamarunnissa and Others Vs. Union of India and another, , it has been held by the Hon''ble Supreme Court that in case, a person is 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 a 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 cannot 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 it before a higher Court.

From a catena of decision of this Court, it is clear that even when a person is in custody, a detention order can validly be passed, if the authority passing the order is aware of the fact that he is actually in custody, if he has reason to believe on the basis of reliable material that there is possibility of him being released on bail and on being so released the detenu in all probability will indulge in prejudicial activity disturbing public order and if the authority passes an order after recording his satisfaction, the same cannot be struck down. But the facts of the present case are quite different from the above case. The detenu was involved in case Crime No. 138 of 2001 u/s 396, Indian Penal Code, P. S. Khaga, district Fatehpur. In such type of cases in which the detenu was involved, no subordinate court ordinarily grants bail. The satisfaction of the detaining authority arrived at in the detention order is quite baseless which goes to show that he has not properly applied his mind while passing the detention order.

There is no mention in the detention order that the detenu has made any attempt to secure bail for himself. The fact of pendency of any bail application was not asserted in it at all. It only refers to that on being released on bail, there is every possibility of breach of public order by him. Thus, presence of pendency of a bail application and a possibility of his release on bail were crucial circumstances for the detaining authority to draw any such conclusion that on being so released, he is likely to indulge in any activity prejudicial to public order. Unless these two facts are present in the case, the above conclusion is not permissible in law. In grounds of detention, above two circumstances are totally lacking, therefore, the inference about the last ingredient is wholly without any basis. It clearly indicates that the impugned order was mechanically passed.

Learned A.G.A. tried to divert us by taking us through the report of the S.H.O. wherein as annexure a bail application is mentioned. We have given our anxious consideration to the submission. We find ourselves unable to accept it. On the contrary, we are convinced that it further supports the fact that the detaining authority has not examined it at all otherwise this fact must have found a mention in the grounds of detention. We are fortified in our conclusion from this fact also that the report of the S.H.O., P. S. Khaga, Fatehpur did refer to these facts, therefore, the omission by detaining authorities to mention these two facts in his grounds clearly prove that he has just mechanically signed the grounds prepared by member of his staff. He apparently did not even examine any report or appended to accordingly rectify the grounds.

We are further supported in our conclusion by yet another fact. The observation made by the detaining authority in the detention order. ''Aap dwara purva me bhi lomharshak ghatnayein ki gai hai''. To support its contention, the prosecuting agency did not send any material with the recommendation for his detention. The police agency has also sent an extract relating to Crime No. 82 of 1984 showing only this much that in the year 1984, the Petitioner was challaned vide charge-sheet No. 79 of 1984 dated 26.7.1984. This extract was filed by the Petitioner as Annexure-29 to his writ petition.

In this connection, it is to be added that police agency withheld the relevant material from the detaining authority. It exposes the hollowness of this charge because in S.T. No. 299 of 1994 pertaining to above challan, the Petitioner was acquitted because the so called got up witness did not come to support the prosecution case. The relevant judgment was filed by the Petitioner as Annexure-30 to the writ petition. The copy of the judgment was not sent to the detaining authority by recommending authority. This goes to show that the satisfaction made by the detaining authority in his grounds that ''aap dwara purva me bhi lomharshak ghatnayein ki gai hain'', was not only baseless but also without any supportive material order was, therefore, passed without applying its mind in a most mechanical manner. A reckless order differs in many ways from a mechanical order. A mechanical order may be protected from a civil, criminal action but a reckless order cannot be so protected. Detention order restricts or curtails the right of a citizen as guaranteed by our Constitution to be free. Therefore, any recklessly careless exercise of its authority to detain any citizen by a competent authority is not simply to be decried but something more is required to be done by the Courts in such cases. The case at hand is a glaring example of such reckless exercise of authority.

Despite the fact that the bail application moved by the applicant in Court of Session had no chance of its success in view of the trend prevailing in the lower court and also due to offence''s heinous character. The district authorities just to shut the true version got a detention order dated 27.9.2001, slapped on the detenu. The purpose behind recommending his detention under National Security Act was positively altered. He was released on bail long after the service of this order by one of us (Hon''ble S. K. Agrawal, J.).

In a recent judgment of Supreme Court in Veeramani v. State of Tamil Nadu, JT 1994 (1) SC 350, it has been held that by making a sweeping statement that the Petitioner is likely to be released on bail, the detaining authority cannot pass a detention order and when there is no likelihood of the detenu being released on bail from custody, the order of detention is illegal in as much as there is no proper application of mind. In this connection, the learned Counsel also submitted that since the detenu was already in custody in connection with a heinous murder case, no reasonable person can arrive at the conclusion that he was likely to be released on bail and the statement of the detaining authority in the ground that the detenu is likely to be released on bail or if he is released on bail there is possibility of public order being in danger is not only simply illogical but also unsound.

In this context learned Counsel has also relied upon a unreported judgment in Writ Petition No. 604 of 1992, Rivadeneyra Ricardo Agustin v. Government of the National Capital Territory of Delhi and others, decided on 8.4.1993. In that case in the grounds, it was only mentioned that there was a ''possibility'' of the detenu being released in case he moves a bail application. This Court observed that since the grounds did not indicate that such release was likely or that it was imminent and that on a mere possibility, the detention order could not have been passed. The Bench also examined the relevant file and observed that there was no material indicating that the release of the Petitioner was likely.

The third contention raised by the learned Counsel for the Petitioner that the facts of the present case do not in any manner cause any breach or apprehension of breach of public order. It is not a breach of public order but is a case of breach of law and order. We are not inclined to go into the merits of this last submission made by detenu''s counsel, particularly when the Session Trial is pending in the court below and if we enter into the merits of the case, any observation made by us may prejudice the parties in prosecuting its case in the court below. Suffice it to say that from the facts and circumstances discussed above, we are fully inclined to accept the submission.

In the light of the discussion made above, we find that the subjective satisfaction arrived at by the District Magistrate, Fatehpur, in passing the impugned detention order dated 27.9.2001 is unwarranted in the eyes of law. It is passed mechanically without applying its mind. It is hereby quashed.

The Petitioner is in jail and has already served out more than 8 months in pursuance of this impugned detention order, he shall be set at liberty forthwith unless wanted in some other case or cases.