Vishal Waman Mhatre vs The Commissioner of Police and Others

A.S. Oka, J.—By this Writ Petition under Article 226 of the Constitution of India, the Petitioner who is the brother of the detenue is seeking a writ of habeas corpus for challenging the order dated 24th April, 2012 passed by the Commissioner of Police, Thane u/s 3 of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, [Drug-offenders, Dangerous Persons and Video Pirates] Act, 1981 (hereinafter referred to as "the said Act"). By the said order, the detenue was directed to be detained with a view to prevent him from acting in any manner prejudicial to the maintenance of public order. Learned counsel appearing for the Petitioner has us taken through the grounds supplied to the detenue in accordance with Section 8 of the said Act. He invited our attention to the various grounds of challenge in the Petition. He pointed out that the first ground of challenge has been set out in Ground (a). He submitted that crucial parts of the grounds which are in English language have been omitted while translating the same into Marathi language. He pointed out that substantial portions of certain paragraphs in the grounds have been omitted in the Marathi translation supplied to the detenue. He, therefore, submitted that furnishing of wrong translation violates the right guaranteed under Article 22(5) of the Constitution of India of making effective representation. He submitted that though in Paragraph 4(b)(ii) of the Grounds of detention details about injury to the complainant and his friend Ram Mhatre along with two or three other persons have been narrated, the medical certificates were neither placed before the detaining authority nor copies thereof were furnished to the detenue. Thirdly, he submitted that Sub-paragraph (v) of Paragraph 4(a) of the grounds of detention make a reference to the bail application filed by the detenue and bail granted by the Court. He submitted that a copy of the order granting bail was not placed before the detaining authority. He submitted that this vital document was not placed before the detaining authority which vitiated subjective satisfaction of the detaining authority. He invited the attention of the Court to amended ground (h) in the Petition.

The learned APP opposed the Petition and supported the impugned order of detention. The learned APP submitted that a copy of the Application for bail made by the detenue was placed before the detaining authority. Her submission is that whether a bail order is a vital document or not depends on facts and circumstances of each case and in the present case, it was not a vital document.

We have carefully considered the submissions. Learned counsel appearing for the Petitioner tendered across the bar a compilation of documents served to the detenue along with grounds. He pointed out that on pages 126 to 132, the Application for bail made by the detenue has been annexed. However, a copy of the order granting bail passed on 7th October, 2011 was not placed before the detaining authority and in any case, a copy thereof has not been supplied to the detenue.

This ground has been specifically taken in amended Ground (h) incorporated in the Petition. In the affidavit of detaining authority, in Paragraph 9, it is contended that the bail order was furnished in the compilation of documents at pages 126 to 132. We have, therefore, perused the said pages. We find that the bail order is not in the compilation.

There is an additional affidavit filed by the detaining authority in response to the amended ground (h). The detaining authority in Paragraph 3 of the additional affidavit has stated that the order granting bail in C.R. NO. I-151 of 2011 dated 7th October, 2011 was not placed before him and hence, he has not relied upon the same. He has stated that pages 126 to 132 of the compilation of documents reflect that the bail was granted in the sum of Rs. 15,000/-.

A copy of the order dated 7th October, 2011 is placed on record of this Petition. It shows that apart from directing the detenue to execute PR bond of Rs. 15,000/-, there are other conditions imposed including the condition of giving attendance to Vishnu Nagar Police Station on every alternate day in between 3.00 p.m. to 5.00 p.m. until further orders.

Thus, the admitted position which emerges is that the order granting bail was not placed before the detaining authority. Moreover, the condition of attendance incorporated in the bail order is not reflected on any of the pages 126 to 132 of the compilation of documents. On this aspect, it will be necessary to make a reference to the decision of the Apex Court in the case of Abdul Sathar Ibrahim Manik Vs. Union of India and others, . After considering the law on the aspect, reflected from the various decisions, the Apex Court has crystalised legal position in Paragraph 12 of the judgment.

.....Having regard to the various above-cited decisions on the points often raised we find it appropriate to set down our conclusions as under:

(1) A detention order can validly be passed even in the case of a person who is already in custody. In such a case, it must appear from the grounds that the authority was aware that the detenu was already in custody.

(2) When such awareness is there then it should further appear from the grounds that there was enough material necessitating the detention of the person in custody. This aspect depends upon various considerations and facts and circumstances of each case. If there is a possibility of his being released and on being so released he is likely to indulge in prejudicial activity then that would be one such compelling necessity to pass the detention order. The order cannot be quashed on the ground that the proper course for the authority was to oppose the bail and that if bail is granted notwithstanding such opposition the same can be questioned before a higher court.

(3) If the detenu has moved for bail then the application and the order thereon refusing bail even if not placed before the detaining authority it does not amount to suppression of relevant material. The question of non-application of mind and satisfaction being impaired does not arise as long as the detaining authority was aware of the fact that the detenu was in actual custody.

(4) Accordingly the non-supply of the copies of bail application or the order refusing bail to the detenu cannot affect the detenu''s right of being afforded a reasonable opportunity guaranteed under Article 22(5) when it is clear that the authority has not relied or referred to the same.

(5) When the detaining authority has merely referred to them in the narration of events and has not relied upon them, failure to supply bail application and order refusing bail will not cause any prejudice to the detenu in making an effective representation. Only when the detaining authority has not only referred to but also relied upon them in arriving at the necessary satisfaction then failure to supply these documents, may, in certain cases depending upon the facts and circumstance amount to violation of Article 22(5) of the Constitution of India. Whether in a given case the detaining authority has casually or passingly referred to these documents or also relied upon them depends upon the facts and the grounds, which aspect can be examined by the Court.

(6) In a case where detenu is released on bail and is at liberty at the time of passing the order of detention, then the detaining authority has to necessarily rely upon them as that would be a vital ground for ordering detention. In such a case the bail application and the order granting bail should necessarily be placed before the authority and the copies should also be supplied to the detenu.

(underline supplied)

It will be also necessary to make a reference to another decision of the Apex Court in the case of Sunila Jain Vs. Union of India (UOI) and Another, . In Paragraphs 12 and 18 of the said decision, it is held thus:-

The question as to whether an offence is bailable or not is not a vital fact whereupon an order of bail can be passed. Application of mind to the averments made in a bail application may be relevant where the grounds stated therein reveal certain facts which are vital for passing an order of detention. In a case of such nature, it may be said that the application for bail was necessary to be placed before the detaining authority and non-furnishing a copy thereof to the detenu would vitiate the order of detention.

The decisions of this Court referred to hereinbefore must be read in their entirety. It is no doubt true that whether a detenu on the date of the passing of the order of detention was in custody or not, would be a relevant fact. It would also be a relevant fact that whether he is free on that date and if he is, whether he is subjected to certain conditions in pursuance to and in furtherance of the order of bail. If pursuant to or in furtherance of such conditions he may not be able to flee from justice, that may be held to be relevant consideration for the purpose of passing an order of detention but the converse is not true. Some such other grounds raised in the application for bail and forming the basis of passing an order of bail may also be held to be relevant. It would, however, not be correct to contend that irrespective of the nature of the application for bail or irrespective of the nature of the restrictions, if any, placed by the court of competent jurisdiction in releasing the detenu on bail, the same must invariably and mandatorily be placed before the detaining authority and the copies thereof supplied to the detenu.

(underline supplied)

In the present case, the offences under Sections 147, 148, 149, 307 and 363 of the Indian Penal Code were alleged against the detenue. Perusal of the order granting bail to the detenue shows that there is an observation made that there is no possibility of the detenue fleeing away. Moreover, a condition of attendance on every alternate day at the concerned police station has been incorporated. Considering the observation made in the order and the conditions imposed, had the order granting bail placed on record before the detaining authority, it may have certainly influenced the subjective satisfaction of the detaining authority. Every material which is relevant and which may have some bearing on the subjective satisfaction of detaining authority must be produced before the detaining authority. In the facts of the case, the Bail Order was a vital document which ought to have been placed before the detaining authority.

In the facts and circumstance of the case narrated above, for the reasons which we have recorded, the subjective satisfaction of the detaining authority is vitiated on the ground of failure to place the order granting bail before the detaining authority. Hence, it is not necessary to deal with other grounds agitated by the Petitioner. The Petition must succeed and we pass the following order:-

ORDER:

(a) The Rule is made absolute in terms of prayer clause (c) which reads thus:-

That the order of detention being D.O. No. TC/PD/MPDA/05/2012 dated 24/4/ 2012 issued u/s 3(1) of M.P.D.A. Act, 1981 by the commissioner of Police, Thane against the detenu, be quashed and set aside and on quashing the said order of detention the detenu be released forthwith.