Shekhu (Detenue) and Others vs District Magistrate and Others

Heard learned counsel for the petitioners, Sri K.P. Pathak, learned counsel for the Union of India and learned A.G.A. for the respondent Nos. 1 to 5.

This writ petition has been filed by the petitioners, Shekhu and Afsar with a prayer to issue a writ of habeas corpus commanding the respondents to release the petitioner No. 1, Shekhu and to quash the detention order dated 5.2.2015 passed by the District Magistrate, Hathras in the exercise of his power under Section 3(2) of the National Security Act (hereinafter referred to as the NSA).

Briefly stated the facts of the case are that the petitioner along with his companion had enticed away Km. Mantasha aged about six years on 16.1.2015 at about 8:00 p.m. and after committing rape with her had strangulated her to death. An unidentified dead body of a minor girl was found lying near Rambagh Mandir on the next date, i.e. 17.1.2015 at about 11:30am by children who were playing cricket there. The dead body was identified by Mohd. Haneef as that of his daughter Km. Mantasha and on the basis of the written complaint filed by him Case Crime No. 49 of 2015 was registered at police station-Sidandararau, district-Hathras under Sections 364 , 302 , 201 , 376 and 376D I.P.C. and Section 6 of POCSO Act at about 12:30 p.m. on 17.1.2015 against the petitioners and several other unknown persons. According to the postmortem report of the deceased Km. Mantasha she was subjected to rape before being strangulated to death. As a result of the aforesaid incident and after the recovery of the dead body of the deceased Km. Mantasha on 17.1.2015 at about 11:30 a.m., an atmosphere of fear and terror had gripped the area where the dead body of the deceased was found and the adjoining localities. Thousands of people had come out on the road protesting against the ghastly crime. Road block was organized which disrupted the traffic movement. In order to maintain public order and dispel the fear and terror which had gripped the women folk as well as the general public of the area, P.A.C., Q.R.T. and other additional forces had to be requisitioned from police stations-Hasayan, Mahila Thana, P.S. Hathras Junction, Police Line, police outposts-Agsauli, Wajidpur, Purdilnagar. The aforesaid incident was widely published in various local and national level newspapers.

While the petitioner No. 1 was in District Jail, Hathras, the impugned detention order dated 5.2.2015 was served on him through Superintendent, District Jail, Aligarh, respondent No. 4 on the same day along with grounds of detention under Section 8 of the N.S.A.

Learned counsel for the petitioners submitted that the District Magistrate, Hathras 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 reports 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 No. 1, 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 No. 1 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 No. 1 be set at liberty forthwith.

Per contra, learned A.G.A. and Sri K.P. Pathak, learned counsel for the Union of India 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 No. 1 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 deserves 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 No. 1, who was already in judicial custody on account of his being accused in Case Crime No. 49 of 2015, under Sections 364 , 302 , 201 , 376 and 376D I.P.C. and Section 6 of POCSO Act registered at police station-Sidandararau, district-Hathras 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 No. 1 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 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 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 here under:-

"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 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 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 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 No. 1 was making efforts to obtain bail and 6.2.2015 was the date fixed before the District & Sessions Judge-Ist, Hathras for hearing of his bail application filed by him on 30.1.2015 and there was possibility of the petitioner No. 1 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 any real possibility of his being released on bail which omission in our opinion has totally vitiated the impugned order.

The respondent No. 1 having failed to record any satisfaction in the impugned order that there was real possibility of the petitioner No. 1 coming out of jail, hence the impugned order can not be sustained and is liable to be quashed.

This habeas corpus writ petition accordingly succeeds and is allowed.

The impugned order dated 5.2.2015 passed by respondent No. 1, District Magistrate, Hathras (annexure No. 1 to the writ petition) is hereby quashed.

Let the petitioner No. 1, Shekhu be released from jail forthwith, if he is not wanted in any other case.

There shall be however, no order as to costs.