Allahabad High Court Judgement

Allahabad High Court Judgement

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JUDGEMENT HEADLINE : Person In Custody, No Bail Application Pending - When Preventive Detention Possible.
JUDGEMENT TITLE : Sandeep Vs. State Of U.P. & Others On 02/04/2008 By Allahabad High Court
CASE NO : HABEAS CORPUS WRIT PETITION NO. 57692 OF 2007
CORAM : Hon'ble Yatindra Singh,J. And Hon'ble Ran Vijai Singh,J.

HIGH COURT OF JUDICATURE AT ALLAHABAD

Court No. 36
Habeas Corpus Writ Petition No. 57692 Of 2007
Sandeep Vs. State Of UP And Others

HON'BLE YATINDRA S INGH, J.
HON'BLE RAN VIJAY SINGH, J.
(Delivered By Hon'ble Yatindra Singh, J)
1. An Incident Took Place In Village Chaingravati District Bulandshahar At About 4.30 Pm On 13.6.2007; A Person Was Killed. An FIR Was Registered On The Same Date. On The Basis Of It A Case, Crime No. 176 Of 2007 Under Sections 302/ 34, 147, 148, 149, 120-B IPC At Police Station Siyana, District Bulandshahar Was Instituted.

2. The Petitioner Was Arrested In Connection With The Aforesaid Criminal Case On 25th June, 2007. A Bail Application Was Filed. It Was Rejected On 23.7.2007. Subsequently A Detention Order Was Passed Against The Petitioner On 31.7.2007 Under Section 3(2), Of The National Security Act, 1980 (the Act). It Was Approved By The State Government On 9.8.2007.

3. The Petitioner Filed A Representation On 11.8.2007 Before The State Government As Well As Central Government. The Central Government And The State Government Rejected The Representation Of The Petitioner On 31.8.2007 And 6.9.2007 Respectively.

4. The Case Of The Petitioner Was Also Considered By The Advisory Board. On The Basis Of The Report Of The Advisory Board, The Detention Was Confirmed By The State Government. The Petitioner Was Informed About The Confirmation By The Radiogram Dated 28.9.2007.

5. The Petitioner Has Filed The Present Habeas Corpus Writ Petition Challenging His Detention Under The Act.

PETITIONER'S SUBMISSIONS
6. We Have Heard Sri MP Yadav, Counsel For The Petitioner; Sri SK Katiyar, Counsel For The Union Government; And The AGA For The State Government And State Officials. We Also Wish To Record Our Appreciation For Sri DS Misra Who Has Made Submissions As The Friend Of The Court. The Counsel For The Petitioner Submitted That The Detention Of The Petitioner Is Illegal For The Following Reasons:-
(i)No Bail Application Was Pending On The Date Of The Detention And There Was No Possibility Of The Petitioner Being Released On Bail. The Satisfaction Of The Detaining Authority In This Regard Is Vitiated.
(ii)The Grounds Of Detention Relate To Law And Order Rather Than To Public Order.
(iii)There Is Delay In Deciding The Representation Of The Petitioner.

IST SUBMISSION: SATISFACTION IS VITIATED
7. There Is No Dispute On The Question Whether A Detention Order Can Be Passed Or Not If A Person Is In Custody. The Courts Have Laid Down The Principle As To When Such A Detention Order Can Be Passed. In This Regard, The Leading Case Is Reported In (1991) 1 SCC 128; Kamarunnissa Vs. Union Of India And Another (the Kamarunnissa Case), JT 1994 (1) SC 350. This Has Been Followed In Veeramani Vs. State Of Tamil Nadi, (2006) 2 SCC 664; TV Sravanan Alias SAR Prasana Venkatachaariar Chaturvedi Vs. State Through Secretary And Another, JT 2003 (Suppl 2) SC 503; Union Of India Vs. Paul Manickam And Another.

8. The Supreme Court In Paragraph 13 Of The Kamarunnissa Case Has Held :
'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 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 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 If Before A Higher Court.'

9. The Aforementioned Conditions Should Be Satisfied Before A Valid Detention Order Can Be Passed Against A Person In Custody. One Of The Conditions Is That There Should Be Possibility Of The Person Being Released On Bail. According To The Counsel Of The Petitioner,
The Bail Application Of The Petitioner Was Rejected;
No Other Bail Application Was Filed;
There Was No Possibility Of The Petitioner Being Released On Bail;
The Satisfaction Of The Detaining Authority In This Regard Is Vitiated.

10. In Support Of The Aforesaid Submissions, The Following Rulings Have Been Cited.
(i)TV Saravanan Vs. State Through Secretary: 2006 (2) EFR 410 (the Saravanan Case).
(ii)A Shanthi Vs. Government Of Tamil Nadu: 2006 (3) SCC (Criminal) 371 (the Shanthi Case).
(iii)Abdul Razak Abdul Wahab Sheikh Vs. SN Sinha, Commissioner Of Police, Ahmedabad And Another: (1989) 2 SCC 222 (the Razak Case).
(iv)Dharmendra Suganchand Chelawat Vs. Union Of India And Others: 1990 SCC (Cril) 249 (the Chelawat Case).
(v)Desh Raj Verma Vs. The State Of UPL LLJ 2004 (1) 297.
(vi)Raj Bahadur Vs. State Of UP: LL Report 2004 (1) 284.
(vii)Raj Nath Pandey Vs. District Magistrate Faizabad: CRI 2003 2052.
(viii)Mumtaj Ahamad Khan Vs. State Of UP: LL Report 2002 550.

11. The AGA Submits That;
Even If The Bail Application Is Rejected; And
No Fresh Bail Application Is Filed.
It Is Open To The Detaining Authority To Come To The Conclusion That There Is Likelihood Of Detenue Being Released On Bail. In Order To Support His Submission He Has Cited The Following Decisions:
(i)Ahamed Nassar Vs. The State Of Tamil Nadu And Others: 2000 (4) ACC 53 (the Ahamed Case).
(ii)Ibrahim Nazeer Vs. State Of Tamil Nadu And Another: 2006 (56) ACC 227 (the Ibrahim Case).
(iii)Abdul Sathar Ibrahim Manik Vs. Union Of India: AIR 1991 SC 2261 (the Abdul Case).
(iv)Rakshpal Singh Vs. State Of UP And Others: 2000 (41) ACC 614.

12. The First Four Cases Cited On Behalf Of The Petitioner And The First Three Cases Cited By The AGA Are Supreme Court Decisions; Rest Of The Decisions Are Division Bench Decisions Of Our Court.

13. The Chelawat Case, The Fourth One Cited On Behalf Of The Petitioner, Is A Decision Of A Bench Consisting Of Three Judges Of The Supreme Court And Rest Of Them Are The Decisions Of A Bench Consisting Of Two Judges Of The Supreme Court. The Chelawat Case Has Been Considered In The Ahamad Case (the Second Case Cited On Behalf Of The AGA).

14. Apart From The Chelawat Case That Has Been Considered In The Ahmad Case, The Rest Of The Supreme Court Decisions, Cited By The Petitioner On One Hand And The One Cited By The AGA On The Other Hand Do Not Refer To Each Other. There Are Some Contrary Observations In These Decisions.

15. The AGA Submits That Latest Decision Is The Two Judge Decision In The Ibrahim Case And It Should Be Followed. In Support Of This Proposition He Has Cited Two Full Bench Decisions Of Our Court Reported In UPSRTC Vs. STA: AIR 1977 Allahabad 1 And Gopal Krishna Vs. District Judge: AIR 1981 Allahabad 300 Where It Has Been Held That In Such A Situation It Is The Later Decision That Should Be Followed.

16. The Counsel For The Petitioner Submits That In Case Of Conflict Of Decisions Of Equal Strength Of The Judges Of The Supreme Court It Is Decision Which Is Correct In Principle Should Be Followed. He Has Also Cited Latest Full Bench Decision Of Our Court Reported In Ganga Saran Vs. Civil Judge: AIR 1991 Allahabad 114. This Full Bench Decision Differs From The Other Two Cited In The Preceding Paragraph.

17. These Three Full Bench Decisions Are Of Equal Strength And The Third Full Bench Decision Does Not Refer The Earlier Two Full Bench Decisions. This Question Requires Reconsideration By A Larger Bench. However, It Is Not Neceaary To Refer This Case To A Larger Bench, As There Is A Common Thread In The Supreme Court Decisions Cited By The Parties. In Our Opinion, Instead Of Referring The Matter To The Larger Bench, This Common Thread Can Be Adopted In Deciding The Question Whether The Detaining Authority Can Be Satisfied That A Detenue Is Likely To Be Released On Bail, Even If No Bail Application Is Pending.

18. The Supreme Court In The Ahamed Case Observed:
' In The Matter Of Testing Satisfaction Of Any Detaining Authority, It Has To Be Tested On The Facts And Circumstances Of Each Case.
...
Thus, In Spite Of Rejection Of The Bail Application By Court Once, It Is Open To The Detaining Authority To Come To His Own Satisfaction Based On The Contents Of The Bail Application That There Is Likelihood Of Detenue Being Released On Bail. The Words "likely To Be Released" Connote Chances Of Being Bailed Out In Case Pending Bail Application Or In Case It Is Moved In Future Is Decided. The Work "likely" Shows It Can Be Either Way. So Without Taking Any Such Risk If On The Facts And Circumstances, The Type Of Crime To Be Dealt Under The Criminal Law, Including Contents Of The Bail Application, Each And Compositely All Would Constitute To Be Relevant Material For Arriving At The Conclusion. The Contents Of Bail Application Would Vary From One Case To The Other, Coupled With The Different Set Of Circumstances In Each Case, It May Be Legitimately Possible In A Given Case For A Detaining Authority To Draw An Inference That There Is Likelihood Of Detenue Being Released On Bail.'
This Has Been Observed In All Cases Cited By The Parties, Though In Different Words And In Different Ways.
19. The Cases Cited By The Parties Indicate That Despite Rejection Of The Bail Application Or In The Event Of Its Non-filing, The Detaining Authority Can Be Satisfied That:
The Detenue Is Making Efforts To Obtain Bail, And
In Case Bail Application Is Filed Then He Is Likely To Be Released.
However This Depends On The Facts And Circumstances Of The Case.
20. In The Cases Cited Before Us, The Courts, On The Basis Of The Facts Of The Each Case, Have Upheld Or Set Aside The Satisfaction Recorded By The Detaining Authority. This Is The Common Thread Passing Through The Decisions Cited By The Parties. In Our Opinion This Is Not Only The Correct Law As Well As The Latest Decision Of The Supreme Court. It Is This Principle That Should Be Applied Here.

21. We Must Add That Before The Detaining Authority Can Be So Satisfied, He Should Have Knowledge About The Fact The Bail Application Is Rejected Or No Bail Application Was Filed. Otherwise Why Will He Consider The Facts And Circumstances That The Detenue Is Making Efforts To Obtain Bail And May Be Released On The Same.

22. The Detention Order In The Ahamed Case Clearly Indicated That The Detaining Authority Was Aware Of The Fact That The Bail Application Of The Detenue Was Rejected. The Detaining Authority After Considering The Entire Circumstances Of The Case Was Satisfied That Nothing Prevented The Detenue For Filing Any Bail Application And In Case Bail Application Is Filed Then It Was Likely To Be Allowed. In The Other Cases Cited By The AGA, The Court Has Recorded Similar Finding. But This Is Not The Situation In The Present Case.

23. The District Magistrate In This Case Has Recorded The Satisfaction In The Following Terms:
'आप वर्तमान में थाना स्याना के उपरोक्त मु० अ० सं० १७६/२००७ धारा १४७/१४८/१४९/३०२/५०६/१२०बी० भा० दं० वि० के अपराध में जिला कारागार बुलन्दशहर में न्यायिक अभिरक्षा में निरूद्व है। आपके द्वारा सक्षम न्यायालय में जमानत प्रार्थनापत्र प्रस्तुत कराया गया, जिससे स्पष्ट है कि आप जेल से बाहर आने के भरसक प्रयास कर रहे है, आपके जमानत पर छूटने की प्रबल सम्भावना को देखते हुए मै वरिष्ठ पुलिस अधीक्षक , पुलिस उपाधीक्षक तथा प्रभारी निरीक्षक के इस मन्तव्य से पूरी तरह सहमत हूं कि यदि आप जमानत पर छूटकर बाहर आ गये तो आप अपने विरूद्व आई साक्ष्य को नष्ट करने के लिए ऎसे जघन्य अपराध की पुनरावृत्ति करेगें जिससे जन सामान्य में पुन: भय व आतंक व्याप्त हो जायेगा तथा लोक व्यवस्था के अनुरक्षण पर प्रतिकूल प्रभाव पडेगा।'

24. This Clearly Shows That In This Case The District Magistrate Was Not Even Aware That The Bail Application Had Been Rejected And No Other Bail Application Was Filed. Had He Considered This Fact And Thereafter On The Facts And Circumstances Of The Case Had Come To The Conclusion--on The Likelihood Of Bail Being Granted Then The Matter Would Have Been Different. However, This Is Not The Case. In Absence Of The Same, The Satisfaction Of The District Magistrate That The Detenue Is Likely To Be Granted Bail Is Vitiated.

2nd & 3rd SUBMISSIONS; NOT NECESSARY TO DECIDE
25. In View Of Our Finding On The First Point, It Is Not Necessary For Us To Decide The Second And Third Submission On Behalf Of The Petitioner.

CONCLUSIONS
26. Our Conclusions Are As Follows:
(a)Despite Rejection Of Bail Application Or In The Event Of Its Non-filing, The Detaining Authority Can Be Satisfied That:
(i)The Detenue Is Making Efforts To Obtain Bail; And
(ii)In Case The Bail Application Is Filed, Then He Is Likely To Be Released On Bail.
However This Depends On The Facts And Circumstances Of Each Case.
(b)Nevertheless, Before The Detaining Authority Can Be So Satisfied, He Should Be Aware Of The Fact That A Bail Application Has Been Rejected Or No Bail Application Has Been Filed. It Is Only Then A Concious Satisfaction Can Be Recorded.
(c)In The Present Case There Is No Indication That The Detaining Authority Had Knowledge That The Bail Application Had Been Rejected And No Bail Application Was Pending. His Satisfaction That The Detenue Is Likely To Be Released Is Vitiated.
ORDER
27. In View Of Our Conclusions, The Detention Order Is Vitiated. The Habeas Corpus Writ Petition Is Allowed And Detention Order Is Quashed. Let The Petitioner Be Released Unless He Is Wanted In Some Other Case.

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