Urmilaben Champaklal Jaiswal vs Commissioner of Police and Another

S.B. Majmudar, J.—The petitioner who is the wife of detenu Champaklal Manilal Jaiswal, has filed this petition under Article 226 of the Constitution seeking a writ of habeas corpus or any other suitable writ, order or direction against the respondents directing them to set at liberty the said detenu after the detention order is quashed and set aside by this Court.

The detenu has been detained under the provisions of the Gujarat Prevention of Antisocial Activities Ordinance, 1985, (''the Ordinance'' for short). The order of detention is at annexure ''A'' to the petition. It is dated 11-7-1985. It was issued by the Commissioner of Police, Vadodara City. The said order recites that the detaining authority is satisfied with respect to the detenu that with a view to preventing him from acting in any manner prejudicial to the maintenance of public order covered under the Ordinance, it is necessary to make an order directing that the said detenu be detained. The aforesaid detention order has been passed by the Commissioner of Police in exercise of his powers u/s 3(2) of the Ordinance, in the light of the delegated authority by virtue of the State Government order in the Home Department dated 28-5-1985 recited in the order of detention. On the very same day, the detaining authority directed that the detenu be detained in Vadodara Central Prison and should be treated as class II prisoner. The said order is at annexure ''B'' to the petition. Alongwith the detention order, the petitioner was supplied grounds of detention. The grounds of detantion are in Gujarati. Relevant recitals of the grounds when translated in English read as under:

You are cutting jokes with young girls residing in Sindhunagar Society and Jambudi Kui area with a view to have illicit connection with them.

If your object of having illicit connection with them is not fructified, you are threatening these girls to defame them and to kill them.

You are a very headstrong person. You are threatening to kill the people residing in this area by show of pen-knife and you are occasionally quarrelling with them.

On 12-6-1985 by about 6 p. m. you instigated your accomplices and other 400 to 500 persons to assault and damaged houses situated in Jambudi Kui area. As a result thereof, great hubbub had ensued in that area. People had got afraid and hence they had run to their houses and closed their doors. Thus, atmosphere of fear and harassment was generated in this area and normal life of the people was paralysed. When the police reached the spot, people heaved a sigh of relief.

Earlier, you were carrying on business of illicit liquor.

You are also habituated to commit offences as mentioned in chapter XVI of the I.P.C.

Because of your aforesaid activities, you are established as a dangerous and headstrong Goonda.

Because of your aforesaid anti-social activities and as you are known as a dangerous and headstrong Goonda, people do not come forward to give evidence against you in public on account of your fear. You had formerly also committed similar acts and you were arrested under ordinary laws. Still however, your anti-social activities have continued and have not stopped. Consequently, it is established that ordinary laws are inadequate for you.

On account of the aforesaid facts, I am satisfied that with a view to preventing you from acting in a manner prejudicially affecting maintenance of public order, you are required to be detained under the provisions of the Ordinance.

In support of the aforesaid grounds, the detenu was supplied with three sets of documents which are listed below the grounds of detention and which have been supplied to the detenu by way of annexures to the grounds. In the first set are found four statements of witnesses recorded on 11-7-1985. The first statement is of one Khetsing Rajput. According to this witness, the detenu is a headstrong person and he threatens people by show of pen-knife and he also terrorises people residing in the locality through help of hirelings. He has been known in the locality as Goonda and anti-social person. It is further stated therein that prior to 2l/i years, the detenu had quarrelled with his daughter Rampyari who was quite young. That quarrel was on account of the fact that the detenu wanted to have illicit relations with her. As the said design of his could not be fructified, he had threatened the daughter of the witness with dire consequences and because of his fear, his daughter had consumed poison and had committed suicide. That similarly, the detenu was giving threats to one Shobhaben widow of Sunderdas Genimal Sadarangani, residing in the same society where the witness is residing and he was harbouring a bad intention for her and he was threatening Shobhaben to kill her if his desire is not satisfied. He further stated that during the time of communal riots in the city on 12-6-1985, the detenu alongwith his 10 accomplices whose names are mentioned in the statement and also with the help of 400 to 500 persons, had indulged in rioting in Jambudi Kui Tekra area. House of one Lallubhai Khushalbhai Parmar was attacked by this crowd armed with deadly weapons. Great hubbub had ensued in Jambudi Kui area. People had run helter-skelter. Public order was disturbed and atmosphere of fear and harassment prevailed and because of fear, people had shut themselves in their houses. After some time, police came and the atmosphere was normalised. The detenu was not in the crowd but he had got committed the aforesaid act by instigating his assistants. The other statement recorded on the same date was of Shobhaben. She broadly corroborated the say of Khetsing Rajput. She further stated that as she was afraid of the detenu, she could not file complaint against him. That the detenu had given a threat on 4-5-1985 to the witness and had threatened to kill her. Ultimately, when she was persuaded by other people, she had filed the complaint before the police. That the detenu had also quarrelled with Rampyari who was residing in the same locality that she was the daughter of witness Khetsing and she had committed suicide by taking poison. On 12-6-1985 she had gone to the place of her sister-in-law in Jambudi Kui area by about 6-00 p.m. The detenu had instigated his accomplies listed therein and other 400 to 500 persons and that crowd had raided the house of the Lallubhai Khushalbhai in Jambudi Kui area and had damaged the same. There was great hubbub. People were afraid. They had, therefore, closed the doors of their houses that had shut themselves inside their houses and atmosphere of terror and fear had pervaded the entire area and public order was disturbed and the traffic was also disturbed. The next statement was of Parvatiben wife of Lallubhai Khushalbhai Parmar. She generally stated that the detenu was a headstrong person. He was harassing the people residing in the locality and was beating them. He was occasionally misbehaving with young girls and was threatening them with dire consequences. On 12-6-1985 when she was at her house, the detenu had instigated his accomplices and about 400 to 500 persons. The crowd had come to their house at about 6 p.m. and assaulted them. They ransacked the house and damaged it. Great hubbub ensued. Big disturbance took place. Traffic on the road was disturbed and atmosphere of fear and terror prevailed. People confined within their houses. Ultimately, when the police arrived, people got relief. The other statement dated 11-7-1985 is of a person whose name is not disclosed to the detenu in public interest. That statement also has broadly alleged that the detenu''s activities were nefarious and that he was an anti-social element. He was engineering mischief through his accomplices. The statement further recited that on 12-6-1985 when the witness was at his residence, the detenu instigated his accomplices and about 400 to 500 persons to attack his house. Riot ensued and the aforesaid crowd attacked the house of Lallubhai Khushalbhai and also the house of the witness. They damaged his house and other houses in the locality. People ran helter skelter and atmosphere of fear and harassment prevailed. People shut themselves within their house out of fear. Public life was disturbed. When the police van arrived on the scene, atmosphere got normalised.

The aforesaid is the summary of the four statements copies of which have been supplied to the detenu alongwith the grounds.

The second set of documents relied upon by the detaining authority pertains to a copy of FIR dated 26-2-1984 recorded by the police station officer, Vadi police station, Vadodara. The complainant in that case was Rajan Kerali. The complaint was filed against the detenu under Sections 451, 504 and 506, I.P.C. It was alleged that on the day previous to the date of the complaint i.e. on 25-2-1984, the detenu had come to the house of the complainant by night time and had given a kick to the complainant and had threatened him with dire consequences.

The last set of documents consists of copy of another complaint dated 4-6-1985 given by Shobhaben, widow of Sunderlal Sadarangani. It alleges that the detenu who was staying in the nearby premises was having an evil eye on the complainant who was a widow and was residing with her minor children in that locality. The detenu was quarrelling with her on account of his bad intention and she had complained in that connection to the police on 22-1-1985 and 24-5-1985. In those applications, she had stated that the detenu had given threat to the complainant to kill her and to kidnap her minor children. She had further alleged that on the date of the complaint, the detenu had come by about 8 p.m. near the house of the complainant and given vulgar abuses and threats to the complainant.

Aforesaid are the relevant documents and material relied upon by the detaining authority in support of the grounds of detention.

The petition was admitted to final hearing by this Court on 24-7-1985. Pursuant to the rule issued in this petition, the detaining authority has filed various affidavits-in-reply, supporting the detention order. The detenu has filed his affidavits-in-rejoinder. By subsequent amendment to the petition, certain new grounds were permitted to be added and that has brought in its turn additional affidavits-in-reply and rejoinder. When this petition reached final hearing before us, Mr. J.G. Shah for the petitioner raised as many as 10 contentions in support of the petition. We have heard Mr. Shah on various contentions canvassed by him. However, in our view, this petition is required to be allowed on one of these contentions which we will refer to presently and consequently, we have not thought it fit to express any opinion on the rest of the contentions.

The contention which has found favour with us runs as under:

The detaining authority has not considered certain relevant facts which have a direct bearing on the incidents taken into account by the detaining authority for the purpose of passing the impugned order of detention and as these vital facts have a direct bearing on the subjective satisfaction of the detaining authority, in connection with the relevant grounds, the subjective satisfaction based on truncated facts has resulted in vitiation of the detention order.

In order to appreciate the grievance of the petitioner voiced by Mr. Shah in connection with this contention, it is necessary to recapitulate that the grounds of detention as furnished to the detenu, when considered in the light of the supporting material consisting of three sets of documents detailed by us earlier, indicate that the detaining authority was satisfied about the need to preventively detain the detenu under the provisions of the Ordinance on account of the four material circumstances; (i) that the detenu was involved somewhere in 1983-84 in the unnatural death of one Rampyari, daughter of witness Khetsing Rajput who is alleged to have committed suicide by taking poison on account of the threat administered to her by the detenu, (ii) involvement of the detenu in criminal offences under Sections 451, 504 and 506, 1. P. Code in connection with the complainant Rajan Kerali who is said to have been kicked and threatened by the detenu on the night of 25-2-1984; (iii) involvement of the detenu in harassing and threatening Shobhaben, widow of Sunderlal Sadarangan on 4-5-1985 and (iv) involvement of the detenu in the incident of 12-6-1985 wherein detenu''s accomplices aided by 400 to 500 persons had committed riot in Jambudi Kui area and had damaged the houses and other properties of persons residing therein especially having trespassed into the houses of Lallubhai Khushalbhai Parmar and other witness whose name was not disclosed to the detenu and which event disturbed the public order in the said locality. It becomes obvious that the subjective satisfaction of the detaining authority in connection with the need to preventively detain the detenu is based on the aforesaid four events as reflected by the relevant grounds and the material supporting the grounds furnished to the detenu. Mr. Shah for the petitioner submitted that in connection with each of the aforesaid four events, the sponsoring authority had not placed certain material and vital documents for the scrutiny and consideration of the detaining authority. Had these documents been considered, they could have been likely to tilt the balance for the detention. These documents were favourable to the detenu and they bad been withdrawn from the consideration of the detaining authority. Consequently, the subjective satisfaction arrived at by the detaining authority is vitiated. Non-placing of this relevant and favourable material in connection with each of these events for the scrutiny and consideration of the detaining authority has resulted into truncated subjective satisfaction and has also resulted in denying an opportunity to the detenu to make an effective representation against the order of detention not only before the detaining authority but also before the State Government which is the authority entrusted with the duty of confirming the order as well as with the duty of placing the matter before the Advisory Board.

It is now well settled by a series of judgments of the Supreme Court that if the sponsoring authority does not place before the detaining authority relevant and vital material which was likely to tilt the balance in favour of the detenu and against the need to detain, the subjective satisfaction of the detaining authority in the absence of consideration of this relevant material which was favourable to the detenu would vitiate the subjective satisfaction qua the relevant circumstances. In the case of Ashadevi v. K. Shivraj AIR 1979 S.C. 447. Tulzapurkar, J. had to consider the effect of non-consideration by the detaining authority of the fact that the detenu had retracted his earlier statement implicating him in the activity of illicit smuggling of articles. The sponsoring authority in that case had not placed before the detaining authority the circumstance that confessional statement of the detenu was actually retracted. Considering the effect of that omission on the ultimate detention order, Tulzapurkar, J. made the following pertinent observations:

It is well settled that the subjective satisfaction requisite on the part of the detaining authority, the formation of which is a condition precedent to the passing of the detention order will get vitiated if material or vital facts which would have a bearing on the issue and would influence the mind of the detaining authority one way or the other are ignored or not considered by the detaining Authority before issuing the detection order.

In that connection, it was further observed in para 7 of the report as under:

It cannot be disputed that the fact of retraction would have its own impact one way or the other on the detaining authority before making up its mind whether or not to issue the impugned order of detention. Questions whether the confessional statements recorded on December 13 and 14, 1977 were voluntary statements or were statements which were obtained from the detenu under duress or whether the subsequent retraction of those statements by the detenu on December 22, 1977 was in the nature of an afterthought, were primarily for the detaining authority to consider before deciding to issue the impugned detention order but since admittedly,'' the aforesaid vital facts which would have influenced the mind of the detaining authority one way or the other were neither placed before nor considered by the detaining authority it must be held that there was non-application of mind to the most material and vital facts vitiating the requisite satisfaction of the detaining authority thereby rendering the impugned detention order invalid and illegal.

In our recent decision in Special Criminal Application No. 551 of 1985 decided on 8th October 1985, we have held that when it is alleged on behalf of the detenu that certain relevant documents or material were withdrawn from the scrutiny of the detaining authority when it passed the detention order, it has to be ascertained as to whether the material which was withdrawn was such which was likely to tilt the balance one way or the other in connection with the detention of the detenu. If the withdrawn material was either innocuous or adverse to the detenu, its non-consideration by the detaining authority would have no effect on the ultimate detention order. However, if the withdrawn material was representing any aspects which were favourable to the detenu, it would necessarily be required to be considered by the detaining authority to arrive at a comprehensive and fair subjective satisfaction on the need to detain the detenu and if such favourable material was withdrawn from the scrutiny of she detaining authority by the sponsoring authority, it would have vitiating effect on the ultimate subjective satisfaction culminating into the impugned detention order.

In the light of the aforesaid legal position, we proceed to examine the grievance voiced by Mr. Shah for the petitioner on this aspect. So for as the first incident viz. involvement of the detenu in the unnatural death of Rampyari somewhere in 1983 is concerned. Mr. Shah submitted that this very incident was made the subject matter of criminal proceedings against the detenu and other co-accused. It was Sessions Case No. 59 of 1983. In that case, the detenu was acquitted. That this fact stands in favour of the detenu. It was not at all considered by the detaining authority while passing the impugned order of detention based on this ground and that adversely affected the subjective satisfaction arrived at by the detaining authority qua the detenu. So far as this grievance is concerned, general ground is raised at point No. 7 on page 3 of the petition to the effect- Whether non-consideration of several relevant factors render the impugned order of detention liable to be set aside?" This grievance is further highlighted at page 14A of the petition at ground Nos. (t), (u) and (v). It has been stated therein that the detaining authority was not supplied with the judgment of the Criminal Court in the case instituted against the detenu in connection with the incident that is alleged to have happened in regard to Rampyari and the judgment of the Criminal Court in the criminal case instituted on the basis of the FIR dated 26-2-1984. In the first case, the detenu was acquitted and in the second case, based on the FIR dated 26-2-1984, there was settlement between the detenu and the informant Rajan Kerali. That if these judgments had been placed and/or considered by the detaining authority, it would have certainly influenced the mind of the detaining authority and be might not have passed the order of detention against the detenu. So far as the incident centering round unnatural death of Rampyari is concerned, it is not in dispute that the detenu was prosecuted in Sessions Case No. 59 of 1983 and was ultimately acquitted by the Sessions Court. So far as this aspect of the matter is concerned, the detaining authority in the affidavit-in-reply at page 47, para 28, stated as under:

I do not admit the contentions raised by the petitioner. I say that the incidents have been shown and taken into account to show the conduct of the detenu that he terrorised the people and causes harm, danger alarm and a feeling of insecurity among the people by acting in a manner prejudicial to maintenance of public order and thus it is not necessary to wait for the results of the cases tried against the petitioner. I say that the impugned order of detention was passed after considering all the materials and copies of which were supplied to the detenu...

The detaining authority has further highlighted this aspect of the matter in his additional affidavit at page 64 at para 3 as under:

With reference to ground (t) Clause (i) of the petition, I say that it is true that the fact that Rampyari committed suicide due to the danger and alarm generated by the detenu has been taken into account relying upon the mention made of mis fact in the statement of the father of the deceased, I say mat this was a matter which had figured in the crime records of the police station, a verification of the facts was made by me. I say that to say that the daughter of Khetsing Rajput had died as a result of some altercation that took place between the detenu and Rampyari is an under statement.

It is further stated in the said para that Rampyari had complained to the police on 31-8-1982 and as a result thereof a criminal case was filed against the detenu. Thereafter, in para 4 of the affidavit-in-reply it has been further stated:

I had also taken into account the contents of the statement of Khetsing where he has stated that Rampyari, his daughter, had committed suicide due to the fear of Champaklal which on verification by me was found to be very precise and correct. Therefore, in fact, the case u/s 306 IPC was not taken into account and therefore, the complainant in that case was not made the basis. Had that been so, a copy of that complaint would have been furnished to the detenu which was not difficult at all for the detaining authority.

The aforesaid stand taken by the detaining authority in affidavits-in-reply clearly shows that the detaining authority had thought it fit not to consider the criminal proceedings against the detenu in connection with suicide of Rampyari and the proceedings in Sessions Case No. 59 of 1983 which had resulted into acquittal of the detenu. Mr. Panchal for the respondents vehemently contended that these proceedings were totally irrelevant for the present purpose of detention as in sessions case, the detenu alongwith other accused was tried for an offence u/s 306, LP. Code. But as there was no evidence of instigation by the detenu which resulted into ultimate suicide by Rampyari, the detenu was acquitted while the present order is based not on the instigation of the detenu which had resulted into suicide by Rampyari but was based on the fact that the detenu had threatened Rampyari and because of his fear, she committed suicide. In our view, this type of difference which is sought to be spelt out by the learned Advocate for the respondents between the earlier criminal proceedings and the present detention proceedings centering round the very same incident viz. suicide by Rampyari and the involvement of the detenu therein, is more imaginary than real. The fact remains that the detenu is sought to be detained on account of his involvement in the incident in which Rampyari met an unnatural death by committing suicide and wherein the detenu is said to have contributed his mite either by threatening her or instigating her. The involvement of the detenu in this unnatural death of Rampyari was the subject matter of sessions case which resulted in his acquittal. This circumstance cannot, therefore, be said to be totally irrelevant or not in favour of the detenu. When the detaining authority based the order of detention, amongst others, on the involvement of the detenu in the unnatural death of Rampyari that took place couple of years earlier, non-consideration by the detaining authority of the result of criminal proceedings against the detenu in connection with the very same incident can certainly be said to amount to a truncated consideration by the detaining authority of the relevant facts and can certainly amount to keeping aside the circumstance favourable to the detenu and only considering rest of the circumstances centering round the same incident. Thus, the ratio of the decision of the Supreme Court in Ashadevi''s case (supra) will directly get attracted on the facts of this case. The vital material which had a propensity to tilt the balance one way or the other and which would have affected the subjective satisfaction of the detaining authority, was admittedly kept out of consideration by the detaining authority. May be, that might have happened on account of the fact that this vital material might not have been placed by the sponsoring authority for consideration of the detaining authority or might be, the detaining authority itself in its discretion might have kept it out of consideration. In either case the process of subjective satisfaction based on the incident in question would get adversely affected and get truncated. Acquittal of the detenu in Sessions Case No. 59 of 1983 pertaining to the very same incident of unnatural death of Rampyari cannot be said to be an innocuous circumstance or circumstance which was not in favour of the detenu. Its consideration, therefore, was a must for the detaining authority and as that has not been done, it would have an adverse effect on the resultant subjective satisfaction of the detaining authority based on that incident.

However, Mr. Panchal for the respondents vehemently contended, placing reliance on a few decisions of the Supreme Court, that non-consideration of the acquittal order will have no effect on the subjective satisfaction of the detaining authority. Mr. Panchal submitted that so far as the incident pertaining to suicide of Rampyari is concerned, there were statements of Khetsing and Shobhaben on the point and they have been relied upon by the detaining authority. Copies of the statements are also furnished to the detenu. This is no doubt true. But the question remains as to whether acquittal of the detenu by the Sessions Court in connection with the very same incident could have any effect on the subjective satisfaction of the detaining authority or not. Mr. Panchal for the respondents submitted that it would have no effect. In support of that stand of his, he invited our attention to a decision of the Supreme Court in the case of Prakash Chandra Mehta v. Com. and Section Government of Kerala 1985 Cr. L.R. (S.C.) 301. That was a case in which detenus were-father and his two children-one daughter and one son. This family was detained under the provisions of the COFEPOSA Act, 1974. Various grounds of detention were furnished to the detenu. The Supreme Court speaking through Sabyasachi Mukharji, J., noticed applicability of Section 5A of the COFEPOSA Act which created a legal fiction about the detention order being based on certain relevant grounds when other grounds were found to be vague, non-existing or irrelavant etc. Amongst others, it was contended in the aforesaid case on behalf of the detenu that retracted statements of the detenus were not placed before the detaining authority and that vitiated the subjective satisfaction of the detaining authority in connection with confessional statements of the detenus. In support of that contention, reliance was placed on the case of Ashadevi (supra), the Supreme Court made the following observations in Prakash Chandra Mehta''s case (supra) at para 77 of the report:

The confessional statements of course were retracted. But in this case, the confessional statement was not the only fact upon which the detaining authority had passed an order. In the premises even if the confessional stalements which were retracted as such could not be taken into consideration, there are other facts independent of the confessional statement as mentioned hereinbefore which can reasonably lead to the satisfaction that the authorities have come to.

Placing strong reliance on the aforesaid observations, Mr. Panchal for the respondents submitted that in the present case also, there is independent material in the form of statements of Khetsing Rajput and Shobhaben showing involvement of the detenu in the incident about Rampyari''s unnatural death and it was open to the detaining authority to rely upon this independent material without considering the order of acquittal passed by the Sessions Court in favour of the detenu. It is not possible to agree with this submission for the obvious reason that the aforesaid observations of the Supreme Court in Prakash Chandra''s case (supra) proceeded in the light of the provisions u/s 5A of the COFEPOSA Act. It cannot be disputed that even if subjective satisfaction qua one of the grounds is vitiated on account of non-consideration of vital material favourable to the detenu, the said subjective satisfaction can be deemed to be rested on the remaining grounds if they validly hold the field. In the present case also, there is similar section like Section 2A of the COFEPOSA Act, in the shape of Section 6 of the Ordinance. Thus, it would be open to the respondents to effectively sustain the order of detention on other valid grounds even if one ground is found to be vitiated. But it has nothing to do with ths question with which we are concerned at this stage. So far as the incident about Rampyari''s suicide is concerned, when the detaining authority considered involvement of the detenu in that incident on the basis of the statements of Khetsing Rajput and Shobhaben, it was incumbent upon the detaining authority to consider the fact that the detenu was acquitted by the Sessions Court in connection with the very same incident. This was a circumstance which was favourable to the detenu. However, the same was not considered by the detaining authority. That vitiated its subjective satisfaction qua this ground. Whether subjective satisfaction of the detaining authority can be sustained on other grounds would be an independent question. Mr. Panchal next invited our attention to the decision of the Supreme Court in the case of Suresh Mahato Vs. The District Magistrate, Burdwan and Others, . In that case, Bhagwati, J. (as he then was) bad to consider the question as to whether the discharge of the detenu in a criminal case was a circumstance which was required to be considered by the detaining authority before ordering his preventive detention. In para 4 of the report, it was observed that the order of detention was based on two incidents of theft. One was an incident of theft of three iron telephone posts which took place on 24-8-1971 and the other was an incident of theft of over-head electric copper wire which took place on 5-9-1971. Two criminal cases were filed in connection with these incidents. Name of the detenu did not figure but his participation was revealed in the course of investigation. No charge-sheet could be filed against the detenu though there was sufficient evidence against him because the witnesses were not prepared to come forward to give evidence against him for fear of danger to their lives. Criminal case had, therefore, to be dropped and the detenu had to be discharged. It was in these circumstances that the detention order was passed. In the light of the aforesaid facts, the following observations were made in para 4 of the report:

If the criminal cases were dropped and the petitioner was discharged before the making of the order of detention, then obviously it was not a material fact which ought to have been placed before the District Magistrate.

Placing strong reliance on the aforesaid observations, Mr. Panchal submitted that the Supreme Court had ruled in clearest term that earlier discharge by the Criminal Court of the detenu in connection with the incident cannot have any effect on the subsequent detention order and this event of discharge is irrelevant and was not required to be placed before the detaining authority. It must be noticed that the aforesaid observations of the Supreme Court have proceeded in the light of the peculiar facts of that case. In connection with the criminal case in question, the detenu had to be discharged as no witnesses were coming forward to give evidence, though there was sufficient evidence to involve him. Thus, the criminal case could not be effectively tried and had to be nipped in the bud and proceedings had to be dropped and consequently, he was discharged. There was no decision of the Criminal Court on merits. It is in the light of these peculiar facts that the aforesaid observations came to be made. However, these observations do not cover a case in which the detenu in connection with the incident in question is already tried by a competent court and is acquitted on merits. The question with which we are concerned is as to whether despite acquittal of the detenu in the criminal case pertaining to the very same incident of suicide of Rampyari, the said circumstance is so irrelevant that it was not required to be noticed by the detaining authority for arriving at its subjective satisfaction one way or the other. It is not in dispute and Mr. Shah for the petitioner fairly stated that it is not his contention that despite the acquittal order, the detenu cannot be detained for the very same incident. All that he submitted was that atleast that circumstance should have been taken into consideration by the detaining authority. If that was done, it was quite likely that the detaining authority in its subjective satisfaction could have reached a contrary conclusion. Even that apart, having considered that circumstance, if the detaining authority had thought it fit all the same to detain the detenu, the detenu could have been supplied with a copy of the acquittal order alongwith grounds of detention and on that basis, he could have an effective representation under Article 22(5) of the Constitution and Section 9(2) of the Ordinance before appropriate authority, even including the detaining authority. He would have got a chance to convince these authorities to have a second look at the matter in the light of his acquittal by the Criminal Court and in any case he could have submitted before the Advisory Board in that connection. All these opportunities were lost to him merely because the detaining authority thought it fit to totally disregard this vital circumstance. The aforesaid contention of Mr. Shah is unanswerable. The decision of the Supreme Court in Suresh Mahate''s case (supra) cannot advance the case of the respondents in this connection. Mr. Panchal next invited our attention to the decision of the Supreme Court in the case of Haradhan Saha Vs. The State of West Bengal and Others, . The Supreme Court speaking through Ray, C.J. made the following pertinent observations in para 32 of the report:

The power of preventive detention is qualitatively different from punitive detention, the power of preventive detention is a precautionary power exercised in reasonable anticipation. It may or may not relate to an offence. It is not a parallel proceeding. It does not overlap with prosecution even if it relies on certain facts for which prosecution may be launched or may have been launched. An order of preventive detention may be made before or during prosecution. An order of preventive detention may be made with or without prosecution and in anticipation or after discharge or even acquittal. The pendency of prosecution is no bar to an order of preventive detention. An order of preventive detention is also not a bar to prosecution.

In our view, the aforesaid observations of the Supreme Court touch upon entirely a different question. That question is-as to whether pendency of criminal proceedings against the detenu or their termination prior to the order of detention can be treated to be a bar to invoking powers of preventive detention. Mr. Shah for the petitioner made it clear that it was not his contention that despite the acquittal of the detenu, preventive detention cannot be ordered in connection with the very same incident. His contention was entirely different. He submitted that at least that acquittal cannot be said to be totally irrelevant so that it cannot be placed in balance by the detaining authority for arriving at its subjective satisfaction one way or the other. That was his only limited grievance. Consequently the aforesaid general observations of the Supreme Court cannot be of any assistance to Mr. Panchal. He then invited our attention to the decision of the Supreme Court in the case of Mohd. Salim Khan Vs. Shri C.C. Bose and Another, . In the aforesaid case, the question before the Supreme Court was as to whether detaining authority can pass detention order despite the fact that the detenu was earlier discharged by the Criminal Court in connection with the very same incident. Answering this contention in favour of the detaining authority, Shelat, J. speaking for the Supreme Court made the following pertinent observations in para 8 of the report:

It might well be that a Magistrate trying a particular person under the Code of Criminal Procedure has insufficient evidence before him and, therefore, has to discharge such a person. But the detaining authorities might well feel that though there was not sufficient evidence admissible under the Evidence Act for a conviction the activities of that person, which they had been watching were of such a nature as to justify an order of detention. From the mere fact, therefore, that the Magistrate discharged the petitioner from the criminal case lodged against him it cannot be said that the impugned order was incompetent, nor can it be inferred that it was without a basis or mala fide.

In para 10 of the report, further contention canvassed on behalf of the detenu was examined viz. whether earlier order of discharge should have been considered by the detaining authority before ordering detention of the detenu. It was submitted that earlier order of discharge did not appear to have been placed before the detaining authority. Repelling this contention, on the facts of that case, the Supreme Court observed at para 10 of the report as under:

It is, therefore, not possible to say that the detaining authorities did not have before them all the relevant materials before each of them passed its respective order. The very fact that the impugned order was made on the very day that the petitioner was discharged in the said criminal case would prima facie indicate that the District Magistrate had before him the fact of such discharge and hence passed the impugned order believing it to be necessary for preventing the petitioner from acting in a manner prejudicial to the maintenance of public order. It is, thus, impossible to say that the District Magistrate was induced to make the impugned order wimout his being aware of the said case and the discharge order passed therein by the trying Magistrate.

On the facts of the case, the Supreme Court held that the detaining authority was alive to the order of discharge of the detenu in the criminal case and having considered that discharge, it thought it fit in its subjective satisfaction to order preventive detention of the detenu. Thus, on the facts before the Supreme Court, the question about effect of non-consideration of the order of discharge in favour of the detenu by the Criminal Court and its effect on the ultimate subjective satisfaction of the detaining authority never arose for consideration. It is not in dispute that dispute acquittal order or discharge order, the detaining authority in appropriate cases can still order detention of the detenu. All that is required to be assured is that all relevant factual circumstances pertaining to the incident in question were kept before the mind''s eye of the detaining authority so that its subjective satisfaction can be said to be comprehensive and fair. The decision of the Supreme Court in M.S. Khan''s case (supra), also, therefore, cannot be of any assistance to the respondents. In this connection, we may, also refer to a later decision of the Supreme Court in the case of Bimla Dewan Vs. Lieutenant-Governor of Delhi, . In that case, the Supreme Court speaking through Varadarajan, J. had to consider, the legality of detention order passed against the detenu on account of his involvement in various activities listed at instances Nos. 1 to 32, in the grounds of detention. Out of these instances, instances Nos. 1 to 22, 24 and 28 related to criminal cases in all of which the detenu was found not to be guilty and was acquitted, while instance No. 23 related to a case in which the detenu was discharged. Considering the effect of these acquittal and discharge orders on the ultimate detention order based on these instances, the following pertinent observations were made by the Supreme Court:

Since all these instances relate to cases in which the detenu has been found to be not guilty and acquitted one of these instances can legitimately be taken into consideration for detaining the detenu u/s 3(2) of the National Security Act. Mr. Ram Jethmalani, senior advocate who appeared for the petitioner in this case submitted that in the National Security Act there is no provision like Section 5A in COFEPOSA (Conservation of Foreign Exchange and Prevention of Smuggling Activities) Act and therefore, if one of the grounds is bad the order of detention has to be quashed in its entirety and that as the detaining authority has based the order of detention on grounds Nos. 1 to 24 and 28 also, the order of detention is unsustainable. The learned Counsel for the respondent did not submit anything to controvert that submission of Mr. Ram Jethmalani. We are of the opinion that since the detaining authority would naturally have been influenced by these grounds as well for coming to the conclusion that the detenu requires to be detained under the provisions of the Act, the entire order of detention is unsustainable.

But even leaving aside this aspect, the limited question that has been posed for our consideration by Mr. Shah for the petitioner is as to whether previous acquittal of the detenu rendered by the competent Sessions Court in connection with the very same incident of Rampyari''s suicide, can be treated to be wholly irrelevant so that the detaining authority could ignore the same and would not be enjoined to throw it in scales for arriving at its own subjective satisfaction. As discussed above the said contention is found to have lot of force therein and has to be accepted. Consequently, the subjective satisfaction of the detaining authority as based on the incident about Rampyari''s suicide and the involvement of the detenu therein must be held to be vitiated, on account of the non-consideration of vital and relevant aspect viz. acquittal of the detenu by the competent criminal court in sessions trial was in connection with the very same incident.

In view of the fact that provision of Section 5 of the ordinance is on the statute book, the aferesaid conclusion of ours will not affect the subjective satisfaction of the detaining authority on other grounds if it can be validly sustained on these grounds. We have therefore, to turn to the consideration of the remaining three incidents on the basis of which subjective satisfaction is also based.

The second incident pertained to the complaint filed by Rajan Kerali. A copy of that complaint as discussed earlier was served on the detenu along with grounds of detention. It refers to the incident on the night of 25-2-1984. So far as this complaint is concerned, a criminal case pursuant to the complaint resulted in acquittal of the detenu. The matter, ofcourse, was settled between parties. At page 14-C of the petition, a contention has been raised on behalf of the petitioner that the complaint of Rajan Kerali as per FIR dated 26-2-1984 had resulted in the settlement between the detenu and the informant Rajan. It is thus obvious that the complaint which was relied upon by the detaining authority for basing its subjective satisfaction about the in-volvement of the detenu in that incident resulted in a truncated subjective satisfaction on the part of the detaining authority. The detaining authority relied upon the complaint of Rajan but did not consider the ultimate result thereof and the acquittal rendered in the very same case because of amicable settlement by parties. It cannot be gainsaid that acquittal of the detenu in the very same criminal case pursuant to the FIR relied upon by the detaining authority would be a very material favourable circumstance for the detenu. Ignoring this material aspect of the matter cannot but be said to have resulted in lopesided and truncated subjective satisfaction of the detaining authority. A very vital circumstance in favour of the detenu was scrupulously kept out of consideration by the detaining authority and only the complaint was considered. It must, therefore, be held that so far as the subjective satisfaction of the detaining authority is based against the detenu in connection with involvement in the criminal case instituted against him by complainant Rajan, it is vitiated on account of non-consideration by the detaining authority of the relevant subsequent fact viz. acquittal of the detenu in that very case.

This brings us to the consideration of other two incidents. We proceed to deal with the same. Third material circumstance relied upon by the detaining authority for supporting the detention order is the complaint of Shobhaben dated 4-5-1985 about the alleged nefarious activities of the detenu and the statement which she gave before the sponsoring authority on 11-7-1985. Copies of these statements have been given to the detenu along with the grounds of detention. However, one material aspect of the matter which has been completely lost sight of the detaining authority in connection with the complaint of Shobhaben is that as early as on 27-5-1985, the detenu had given an application to the detaining authority alleging enmity and belligerence of Shobhaben qua the detenu and making serious allegations against her. On page 14-D of the petition, at ground No. (v), it has been submitted that the detenu had made an application to the police inspector on 27-5-1985. A copy of the said application was also sent to the first respondent herein. The said application was sent by registered post to both the aforesaid authorities and that they received the same on or about 28th May 1985 that is much prior to the impugned order of detention was made. It was alleged in the said application that on 24-5-1985, Shobhaben and other persons who are shown as opponents in the said application had collected in the terrace of the building in which the detenu and Shobhaben are residing at midnight and they were shouting and were creating nuisance which made it impossible for the detenu and the members of his family to sleep. It was also alleged that Shobhaben and others also threatened the detenu and gave vulgar abuses. Several allegations were made in the said application and, therefore, Shobhaben could not be said to be an independent person and was actuated with malice towards the detenu and that, therefore, her statement could not have been accepted by the first respondent as a reliable piece of evidence in regard to the facts stated by her in her statement dated 11-7-1985. The contention of Mr. Shah for the petitioner in this connection was that once the detenu had alleged as early as on 27-5-1985 in his application addressed to the detaining authority that he had a serious grievance against Shobhaben, if the detaining authority on the basis of the later statement of Shobhaben dated 11-7-1985 thought it fit to detain the detenu relying upon the version of Shobhaben, it was fair and proper for the detaining authority to have also considered the detenu''s application against her which was previous in point of time and which exposed the later interested version of Shobhaben. If this aspect of the matter had been considered, the detaining authority could have come to a comprehensive and fair estimate about the veracity of Shobhaben''s version. Mr. Shah submitted that the allegations contained in the detenu''s application dated 27-5-1985 against Shobhaben did contain diverse grievances of the detenu against Shobhaben. In fairness to the detenu, the said aspect of the matter should have been considered by the detaining authority. Having considered it, the authority concerned could have come to the some conclusion. But as the detaining authority did not consider this aspect of the matter, its subjective satisfaction got vitiated. So far as this aspect of the matter is concerned, at page 83, the detaining authority in para 3 of the affidavit-in-reply stated as under:

With reference to para (v) of petition, I say that the detenu has made an application against Shobhaben and others on 27-5-1985 which was addressed to the police inspector, Vadi police station and a copy thereof was sent to the police commissioner, Vadodara City. The said application was received in the office of the police commissioner on 31-5-1985. The same was sent to the Police Inspector, Vadi police station for further inquiry on 31-5-1985. The Police Inspector, Vadi police station received the said application on 31-5-1985. The police inspector, Vadi police station himself went to the residence of the detenu on 31-5-1985 when the detenu was not available. I deny that no inquiry was conducted on the said application. I say that the police inspector, Vadi police station had tried to contact the detenu at his residence but he was not available. I say that on 4-6-1985, Shobhaben gave a complaint against the detenu and Satish Ramanlal Jaiswal under Sections 506 (2) and 114 of Indian Penal Code which was registered as CR No. 585/85 at Vadi police station. I say that the police inspector, Vadi police station made a proposal for the detention of the detenu, relying inter alia on the statement of Shobhaben recorded on 11-7-1985 and het complaint dated 4-6-1985.1 say that Shobhaben''s statement dated 11-7-1985 was truthful and reliable one. I say that I have not considered and taken into account the incident of 24-5-1985 for detaining the detenu. I say that I have only considered the complaint of Shobhaben dated 4-6-1985 and her statement dated 11-7-1985.1 say that Shobhaben had been to see me personally immediately after the incident of 4-6-1985 and I had an opportunity to make a personal assessment of her reliability. I say that since the application of the detenu dated 27-5-1985 was not taken into consideration before passing the order of detention, the question of furnishing the copy of the same to the detenu did not arise. I deny that Shobhaben could not be said to be an independent person and was actuated with malice towards the detenu and, therefore, her statement could not be accepted as a reliable piece of evidence.

In view of the aforesaid stand taken by the detaining authority, it becomes obvious that the detenu''s application dated 27-5-1985 which had already reached the detaining authority was totally kept aside and was not considered by the detaining authority before it decided to accept the version of Shobhaben as revealed in her statement dated 11-7-1985. Thus, a very vital circumstance in favour of the detenu was scrupulously and studiedly kept aside and not considered by the detaining authority before accepting the version of Shobhaben against the detenu. While arriving at its subjective satisfaction on this aspect, therefore, a vital circumstance in favour of the detenu was kept out of consideration. That naturally vitiated the subjective satisfaction centering round the version of Shobhaben. Consequently, even on that aspect, it must be held that the subjective satisfaction of the detaining authority is vitiated.

That leaves out the last circumstance viz. the incident of 12-6-1985. In that case, four statements were relied upon by the detaining authority viz. those of Khetsing Rajput, Shobhaben, Parvatiben and one witness whose name was not disclosed. They clearly involved the detenu in the incident of 12-6-1985 when a large crowd had attacked the houses of the concerned witnesses and had created atmosphere of terror and fear and had disrupted public order. So far as this incident is concerned, there was already a criminal complaint filed by one of the victims. In that criminal complaint, name of the detenu was not at all revealed. That complaint was not taken into consideration by the detaining authority. This grievance is clearly made by the petitioner in the petition. In para (w) at page 14-D. It has been stated therein that:

The detaining authority relied upon an incident which is said to have taken place on 12-6-1985. That to show the implication of the detenu in the said incident, the detaining authority has placed reliance on the four statements, copies of which have been supplied to the detenu along, with the memorandum of grounds. However, the police inspector of Wadi police station should have placed before the detaining authority the fact that the said incident was the subject matter of a criminal case which was registered at Wadi police station at crime register No. 434 of 1985. That in the said case, one Shri Ballubhai Khushalbhai Parmar of Jambu Kui appears as an informant who happens to be the father of one Parvatiben whose statement is said to have been recorded on 11-7-1985 and which has been relied upon by the detaining authority for passing the impugned order. That the said statement of Parvatiben appears on page 25 of this petition. That in the said F.I.R. about 10 persons are named as accused persons and about 4 persons are named as witnesses. That it was the duty of the police inspector Wadi to supply to the detaining authority the copy of the aforesaid F.I.R. and the statement of the informant and other witnesses recorded by the police authorities in the course of their investigation of the aforesaid case u/s 161 of the Code of Criminal Procedure. That it is significant to note that in the said F.I.R. the name of the detenu does not appear as an accused person. That this was a very material and relevant fact which deserved to be placed before the detaining authority for its consideration.

So far as this aspect of the matter is concerned, in the affidavit-in-reply at page 84, para 4, the detaining authority has stated that the complainant did not give the name of the detenu in his complaint but when the statement of Lallubhai''s wife Smt. Parvatiben was recorded on 11-7-1985, she disclosed that the incident was caused by the associates of the detenu at his instigation from outside. As the detenu was not involved directly in the incident dated 12-6-1985, the investigation facts of that case were not taken into consideration before passing the order of detention. The aforesaid stand taken by the detaining authority in his reply affidavit clearly shows that before being subjectively satisfied about the involvement of the detenu in the incident of 12-6-1985, it had admittedly not considered the vital fact that in the criminal complaint lodged in connection with the very same incident, the detenu''s name was not mentioned as accused and the detenu was not shown to have been involved in the incident. That circumstance, therefore, cannot be said to be totally irrelevant consideration of which would not have any propensity to tilt the balance one way or the other so far as the subjective satisfaction of the detaining authority goes. Reliance placed by Mr. Panchal in the case of Jainal S. v. Dist. Mag. W. Dinajpur AIR 1975 S.C. 229 cannot be of any assistance to him in view of the fact that in that case, the only argument placed before the Supreme Court was that because detenu''s name was not shown in the FIR, the statements recorded of witnesses which involved him should not be relied upon. Rejecting that contention, the Supreme Court held that merely because the name of the detenu was not mentioned in the FIR, it would not mean that statements of witnesses recorded by the detaining authority cannot be relied upon for the purpose of passing the detention order, in the aforesaid case, the Supreme Court was not concerned with one question with which we are concemed.

It does not appear from the report in the above case that the determing authority had not considered the fact that the name of the detenu did not appear in the FIR. On the contrary, it appears that the fact that the FIR did not disclose the name of the detenu was very much before the mind''s eye of the detaining authority and despite this fact, it had thought fit to rely upon the statements of witnesses recorded by the said authority in connection with the very same incident. Thus, the question of the effect of non-disclosure of the vital fact regarding absence of the name of the detenu in the FIR in connection with the very same incident did not arise for consideration before the Supreme Court. Consequently, the decision in the said case cannot be of any assistance to Mr. Panchal for the respondents.

As a result of the aforesaid discussion, it must be held that even so far as the last incident is concerned, non-consideration of a very material circumstance in favour of the detenu that his name was not shown in the FIR pertaining to the said incident, relied on by the sponsoring authority had a vitiating effect on the subjective satisfaction of the detaining authority in connection with the involvement of the detenue in that incident. That disposes of the last ground on which subjective satisfaction against the detenu is based. As the subjective satisfaction of the detaining authority based on the aforesaid four circumstances is found to have been vitiated in connection with each of them, nothing is left to the detaining authority to fall back upon to sustain the detention order u/s 6 of the Ordinance. Consequently, the entire exercise has failed. Result is inevitable. The impugned order of detention is quashed and set aside. Rule issued in the petition is made absolute. Respondents are directed to set the detenu at liberty forthwith if not otherwise required in connection with any other case.