Rajasthan High Court - Jodhpur
Salman Khan vs State & Ors on 27 January, 2017
Author: Gopal Krishan Vyas
Bench: Gopal Krishan Vyas
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Habeas Corpus No. 161 / 2016
Salman Khan S/o Anwar Khan, Aged About 21 Years, R/o Behind
Majo Puran Singh, Dera Dargaa Wali Gali, Bhutto Ka Bass, Bikaner
(Rajasthan) Through Brother Mosim Khan S/o Anwar Khan Age 29
Years R/o Behind Majo Puran Singh, Dera Dargaa Wali Gali, Bhutto
Ka Bass, Bikaner (Rajasthan)
----Petitioner
Versus
1. State of Rajasthan Through Secretary, Department of Homes,
Secretariat Jaipur, Rajasthan
2. Dy. Secretary, Department of Homes, State of Rajasthan
Secretariat, Jaipur, Rajasthan
3. The District Magistrate, Bikaner
4. The Superintendent of Police, Bikaner
5. The Station House Officer, Police Station Panchu, Bikaner
----Respondents
_____________________________________________________
For Petitioner(s) : Mr. SK Verma
For Respondent(s) : Mr. SK Vyas, AAG
_____________________________________________________
HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS
HON'BLE MR. JUSTICE GOVERDHAN BARDHAR Judgment Per Hon'ble Mr. Justice Gopal Krishan Vyas Date of judgment :: 27th Jan., 2017 In this habeas corpus writ petition, the detenu Salman Khan has prayed for quashing order dated 15.9.20016 passed by the District Magistrate, Bikaner whereby while exercising powers conferred under sub-Section (1) of Section 3 of the Rajathan Prevention of Anti-Social Activities Act, 2006 (hereinafter referred (2 of 15) [HC-161/2016] to as the Act of 2006 for short), the District Magistrate, Bikaner passed detention order against the petitioner. A notice was also given to the petitioner dentue that if you want to file any representation, you may file because detention order will be placed before the advisory board by the Government. The petitioner also challenged the order dated 23.9.2016 passed by the Home Department, Government of Rajasthan whereby the order of detention passed by the District Magistrate was approved, so also, the order dated 3.11.2016 passed by the Home Department, Government of Rajasthan whereby after confirmation of detention order by the advisory board on 19.10.2016, the order dated 3.11.2016 was passed whereby order for detention of petitioner Salman Khan for one year w.e.f. 23.9.2016 to 22.11.2017 has been passed.
As per facts of the case, the petitioner Salman Khan is 21 years old student, residing in Bhutto Ka Bas, Bikaner. The SHO, Police Station Sadar, Bikaner submitted a complaint against him on 18.9.2015 before the Superintendent of Police, Bikaner under Section 3(1) of the Act of 2006 alleging therein that detenu is involved in criminal activities from last many years and number of criminal cases are registered against him in which he is facing trial, therefore, action may be taken against him under the Act of 2006 because he is become "dangerous person".
Upon above complaint, the Superintendent of Police, Bikaner made recommendation to the District Magistrate, Bikaner against the petitioner detenu to take action against him under the Act of 2006 to maintain public order.
(3 of 15) [HC-161/2016] The respondent no.3 after considering the material made available by the Superintendent of Police, Bikaner with regard to the criminal activities of the petitioner passed an order on 15.9.2016 to detain him while observing in the order that to maintain public order it is felt necessary to detain Salman Khan under the provision of the Act of 2006.
The petitioner was arrested and detained in the Central Jail, Bikaner. After taking him in custody an opportunity was granted to file representation against the detention order.
In the complaint recommended by the Superintendent of Police, Bikaner to the District Magistrate, Bikaner details of 16 cases registered against petitioner were brought to the notice of the District Magistrate to take action under the Act of 2006 for detention.
The petitioner detenue filed his representation against the detention order. The said representation was placed before the advisory board on 19.10.2016. The petitioner also appeared before the advisory board and submit that in none of the cases, he has been convicted by any court, so also, in some of the cases registered against me from 1993 to Feb., 2015, he has been acquitted after compromise and in one case registered against him under Sections 323, 341, 347 and 34 IPC, after trial acquitted from the charges levelled against him, therefore, upon assessment of entire record submitted by the Superintendent of Police, Bikaner it is not a case in which he be treated as "dangerous person" as defined under the Act of 2006. The learned Advisory Board gave its opinion that there exists sufficient (4 of 15) [HC-161/2016] material to justify the detention order passed against the detenue, therefore, order of detention is hereby confirmed.
In pursuance of aforesaid confirmation by the advisory board, State Government issued detention order dated 3.11.2016 to detain the petitioner Salman for one year w.e.f. 23.9.2016 to 22.11.2017.
Learned counsel for the petitioner vehemently argued that a complaint was filed by the SHO Police Station Sadar, Bikaner on 18.9.2015 before the Superintendent of Police, Bikaner. The Superintendent of Police Bikaner recommended the case of petitioner to the District Magistrate, Bikaner vide communication dated 28.9.2015, alongwith details of 16 cases registered against the petitioner, upon that recommendation after one year, District Collector, Bikaner exercised its power under Section 3 of the Act of 2006 and passed the order of detention against the petitioner on 15.9.2016. Admittedly, in between 15.9.2015 to 15.9.2016 no case was registered against the petitioner in spite of that District Collector, Bikaner passed an order for detention of one year.
Learned counsel for the petitioner argued that detention order has been passed by the District Collector, Bikaner in very casual manner, that too, without applying its mind, upon the fact that out of 16 cases in none of the case, the petitioner has been convicted. More so, out of 16 cases, in three cases, he was acquitted on compromise and after trial by the competent trial court. Therefore, the day on which detention order was passed, only 13 cases were pending against the petitioner and upon perusal of list of the cases it will reveal that most of the cases (5 of 15) [HC-161/2016] registered against the petitioner are for the bailable offence and only one case was registered under Section 307 IPC, that too, in the year 2014, some of the cases were registered under Section 4/25 of the Arms Act, in which petitioner is facing trial, therefore, on the basis of material placed before the District Magistrate, Bikaner it cannot be said that petitioner falls under the definition of "dangerous person" as provided under Section 2(c) of the Act of 2006 so as to take action against him for detention.
The learned counsel for the petitioner submits that it is a question of liberty of citizen. It is true that right from the year 2009 to 2015 although 16 cases were registered against the petitioner but in most of the cases are registered for bailable offences under Section 323, 324 and 341 IPC. Therefore, the order of detention is not only illegal but also contrary to spirit of the Act because petitioner does not fall under the definition of "dangerous person" nor he can be treated "habitual offender" so as to invoke the provision of the Act of 2006.
According to learned counsel for the petitioner, the order of detention has been passed by the District Magistrate has been approved by the State Government and confirmed by the advisory board in very casual manner, that too, without application of mind, so also without taking into consideration the whole intention of the Act of 2006, therefore, the detention order may kindly be quashed and set aside. In support of his arguments, the learned counsel for the petitioner invited our attention towards the judgments of the Division Bench of this court in the case of (i) Ajay Rinwa Vs. State (DB Habeas Corpus Writ Petition (6 of 15) [HC-161/2016] No.143/2016), decided on 19.9.2016, (ii) Swaroop Ram Vs. State of Rajasthan & ors, (DB Habeas Corpus Writ Petition No.53/2015), decided on 4.2.2016 and (iii) Aarab Khan Vs. State of Rajasthan & ors (D.B. Habeas Corpus Writ Petition No.69/2016), decided on 1.8.2016.
In the reply filed by the respondent-State it is submitted that detenue Salman Khan engaged in criminal activities continuously and caused eminent danger to the public order, therefore, due to his criminal activities, history-sheet has been proposed to be opened. The people victimized due to his criminal activities time to time lodged cases against him, but petitioner did not stop his criminal activities prejudicial to the public order. It is also argued that the petitioner keeps deadly arms and ammunition, so also engaged in getting the lands vacated on consideration right from the year 2009 to 2016 which is evident from the fact that 16 cases were registered against him, therefore, upon complaint made by Superintendent of Police, Bikaner it is felt necessary by the District Magistrate, Bikaner to exercise power under Section 3(c) of the Act of 2006. The action was taken by the District Magistrate, Bikaner so as to detain the petitioner under the provisions of the Act of 2006 has been approved by the advisory board, so also, by the State Government. As such, there is no question to say that action taken against the petitioner under the Act of 2006 to detain him for one year till upto Sept., 2017 is illegal.
Learned Addl. Advocate General vehemently argued that the criminal activities of the detenue Salman Khan disturbed the peace and tranquility, so also caused eminent danger to the (7 of 15) [HC-161/2016] maintenance of public order, therefore, the District Magistrate, Bikaner after due satisfaction passed the impugned detention order under the provision of the Act of 2006, therefore, it cannot be said that order has been passed in casual manner. More so, the District Magistrate after taking into consideration entire record of the case rightly passed an order for detention because the petitioner falls under the category of habitual offender under Section 2(g) of the Act of 2006, so also, due to his activities eminent danger created in public, therefore, the advisory board considered the case of the petitioner upon material evidence available on record and after due satisfaction, confirmed the order of detention. The order of detention does not suffer from any illegality nor it has been passed without any application of mind. In view of the above submission, it is submitted that this writ petition may kindly be dismissed.
After hearing the learned counsel for the parties, first of all, we have perused the complaint (Annex.1) submitted by the SHO Police Station Sadar, District Bikaner before the Superintendent of Police, Bikaner on 18.9.2015 and the recommendation letter sent by the Superintendent of Police, Bikaner to the District Magistrate, Bikaner on 21.9.2015. In the complaint there is detail of 16 cases, which is said to be registered against the petitioner. Admittedly, the case of the petitioner for taking action was recommended by the Superintendent of Police, Bikaner to the District Magistrate, Bikaner on 21.9.2015 and after one year, the order of detention was passed by the District Collector, Bikaner on 15.9.2016. For good one year no action was taken by the District Magistrate, (8 of 15) [HC-161/2016] Bikaner in spite of the fact that case of the petitioner for taking action under Section 3(c) of the Act of 2006 was recommended on the ground that petitioner become dangerous for public order. The following details of the cases was submitted before the District Magistrate, Bikaner by the Superintendent of Police, Bikaner, which reads as under:-
Ø- eq- ua- e; fnukad uke /kkjk pktZ'khV e; fnukad pkyku QSlyk U;k;ky;
la- Fkkuk fnukad
1- 78@07-04-09 lnj 19/54 Ex Act 94@12-05-09 pkyku 15-10-15
2- 102@17-06-09 chNoky 323, 341 IPC 70@10-07-09 pkyku jkthukek
3- 222@01-09-09 lnj 323,324,341,326,34 Hkknl 121@29-05-10 pkyku 08-10-15
4- 14@10-01-11 dksVxsV 341, 323,382,435,324 IPC 15@14-01-11 pkyku 19-09-15
5- 9@13-01-11 JNVC 323,341,427,34 IPC 03@21-01-11 pkyku cjh
6- 166@13-9-11 chNoky 4/25 Arms ACT 150@10-12-11 pkyku
7- 313@27-10-11 lnj 323,341 IPC 333@30-11-11 pkyku jkthukek
8- 224@16-06-13 lnj 451,427,336,323,382 IPC 287@02-09-13 pkyku 06-11-15
9- 212@28-08-13 chNoky 4/25 Arms Act 193@15-09-13 pkyku 29-10-15
10- bLrxklk lnj 122 CrPC is'k 2-7-13
11- 01@2-1-14 chNoky 279,336,34 IPC 85@29-05-14 pkyku 12-10-15
12- 5@2-1-14 lnj 336,504 IPC 139@29-04-14 pkyku 06-11-15
13- 56@9-2-14 u;k'kgj 307,341,323,143,452 IPC 114@30-04-14 pkyku 18-11-15
14- 372@16-10-14 lnj 452,436,336,427,143 IPC 369@31-10-14 pkyku 19-09-15
27 Arms Act
15 182@17-10-14 dksyk;r 3/25 Arms Act 161@25-05-14 pkyku
16- 50@04-02-15 lnj 307,341,323,147,148,149 vuqla/kku
IPC 27 Arms Act tkjh gSA
Upon perusal of the above cases, two cases were registered against the petitioner under Section 307 IPC, out of two, in one case registered at Police Station Sadar on 4.2.2015, the investigation was pending, on the date of taking action under the Act of 2006. It is also obvious that out of 16 cases, in two cases petitioner was acquitted after compromise under Section 323 and 341 IPC and in one case registered in the year 2011 under Section 323, 341, 427and 34 IPC at Police Station JNV, the petitioner was acquitted from the charges levelled against him.
Meaning thereby, the day on which the detention order was passed, 13 cases were pending but in none of the case, the detenue was convicted or held guilty. More so, he is facing trial in (9 of 15) [HC-161/2016] those cases. Upon perusal of list of cases it is further revealed that most of the cases are for the offence triable by magistrate. In none of the case, incorporated, is of the nature to hold that accused petitioner is hard core criminal or dangerous person as defined under the provisions of the Act of 2006. The following definition is incorporated under Section 2(c) of "dangerous person" in the Act of 2006, which reads as under:
"(c) 'dangerous person' means a person, who either by himself or as member or leader of a gang, habitually commits, or a attempts to commit or abets the commission of any of the offences punishable under Chapter XVI or Chapter XVII of the Indian Penal Code, 1860 (Central Act No.45 of 1860) or any of the offences publishable under Chapter V of the Arms Act, 1959 (Central Act No.54 of 1959) or any of the offences punishable under first proviso to sub-sec. (1), and sub-sec. (1-A) of Sec. 51 of the Wild Life (Protection) Act, 1972 (Central Act No.53 of 1972) or any offence punishable under sec. 67 of the Information Technology Act, 2000 (Central Act No.21 of 2000).
Similarly, under Section 2(g) there is definition of „habitual‟, which also reads as under:
"(g) „habitual‟ with all its grammatical variations, includes acts or omissions committed repeatedly, persistently and frequently having a threat to continuity stringing together similar repetitive acts or omission but shall not include isolated, individual and dissimilar acts or omission;"
The case of the petitioner, placed before the advisory board was decided by the advisory board vide order dated 19.10.2016 whereby the order of detention dated 15.9.2016 passed by the District Magistrate, Bikaner under Section 3 of the Act of 2006 and approved by the Government vide order dated 23.9.2016 was confirmed vide order dated 19.10.2016. We have called record of (10 of 15) [HC-161/2016] advisory board for perusal of the court. The advisory board observed in the order that from the year 2009 cases were registered against the detenue almost in ever year except in the year when action was pending before District Magistrate. The cases registered against the detenue are mostly for the offence under the IPC and few of the cases for Arms Act, 1959. The advisory board after taking into consideration the definition of "dangerous person" held that detenue repeatedly committed offence, therefore, became "habitual" as defined under Section 2(g) of the Act of 2006. The advisory board gave finding that detenue is found to be "dangerous person" affecting pubic order adversely so also, his conduct has been shown in the recommendation made by the Superintendent of Police, Bikaner to take action against him for detention.
After perusing the finding of the advisory board and list of cases, first of all, it emerges from the facts that in none of the case registered against the petitioner, he has been held guilty by any of the court after trial. More so, it is one of the important fact that case of the petitioner for taking action was recommended by the Superintendent of Police, Bikaner on 15.9.2015 but action was taken by the District Magistrate, Bikaner on 21.9.2016 after one year, in the said period, no case was registered against the petitioner, in spite of that, the detention order was passed on 15.9.2016 against him.
It is true that action can be taken against the "dangerous person" as defined in the Act of 2006 if he is habitual to commit offence. But in this case, most of the cases registered (11 of 15) [HC-161/2016] against the petitioner are not related with the public order, more so, cases were registered against petitioner with regard to dispute with individual. Only two cases were registered under Section 4/25 of the Arms Act and one case was registered under Section 19/54 of the Excise Act. After perusal of list of cases, we are of the view that finding of the learned advisory board to confirm the detention order is not in consonance with the intention of legislature under which the Act of 2006 was enacted. The purpose for which the Act was enacted is incorporated in the bottom of the Act of 2006, which reads as under:
"An Act to provide for preventive detention of boot-leggers, dangerous persons, drug offenders, immoral traffic offenders and property grabbers for preventing their anti-social and dangerous activities prejudicial to the maintenance of public order."
Upon perusal of the list of cases it will reveal that none of the case is related with offence for drug, immoral traffic and property grabbing. Most of the case are related to the offence of personal dispute. Therefore, upon consideration of the report submitted by the Superintendent of Police, Bikaner before the District Magistrate, Bikaner for taking action under the Act of 2006 are not sufficient to hold the petitioner as "dangerous person" as defined under Section 2(c) of the Act of 2006.
The Division Bench of this Court at Jaipur bench in the case of Ajay Rinwa (supra) held that in a matter where liberty of person is at stake, the court would take liberal approach in the procedural aspect.
In the case of Manohar Lal Vs. State of Rajasthan & Ors (12 of 15) [HC-161/2016] reported in 2013 (3) RLW 1864 (Raj.), the coordinate bench of this Court while considering number of judgments of the Hon'ble Supreme Court gave the following verdict, which reads as under:
"8. It has also been held by the Apex Court in case of Madhu Garg Vs. Union of India & Anr. (2005 (2) WLC (SC) Criminal 109) that when one of the ground of detention is found to be based on irrelevant materials not germane for passing the order of detention, the entire order of detention shall stand vitiated in law.
9. So far as the definition of "dangerous person"
is concerned, Section 2(c) of the said Act reads as under :-
"2(c) "dangerous person" means a person, who either by himself or as member or leader of a gang, habitually commits, or attempts to commit or abets the commission of any of the offences punishable under Chapter XVI or Chapter XVII of the Indian Penal Code, 1860 (Central Act No. 45 of 1860) or any of the offences punishable under Chapter V of the Arms Act, 1959 (Central Act No. 54 of 1959) or any of the offences punishable under first proviso to sub-section (1), and subsection (1A), of section 51 of the Wild Life (Protection) Act, 1972 (Central Act No. 53 of 1972) or any offence punishable under section 67 of the Information Technology Act, 2000 (Central Act No. 21 of 2000)"
10. The powers of the State Government to make orders for detaining certain persons under the said Act have been conferred under Section 3 of the said Act. In this regard, it is pertinent to note that the District Magistrate of the concerned area could also pass the order of detention under Section 3(2) of the said Act, if he is satisfied with respect to any person that such person was acting in the manner prejudicial to the maintenance of public order. As per Section 3(4) a person is deemed to be acting in any manner prejudicial to the maintenance of the public order, if such person is engaged in the activities interalia as a dangerous person which are likely (13 of 15) [HC-161/2016] to effect adversely the maintenance of public order.
11. Now so far as the facts of the present case are concerned, the respondent No. 2 had passed the order dated 21.11.11 in exercise of his power under Section 3(2) of the said Act, on his having been allegedly satisfied that the petitioner was a dangerous person, and his activities were likely to effect adversely the maintenance of the public order. In the annexure to the said order, the respondent No. 2 had shown that there were seven cases pending against the petitioner. Now admittedly, the petitioner was already discharged from the case No. 10/11 shown at serial No. 6 on the date of passing of the said order and that no charge-sheet was filed in case No. 193/11 shown at serial No.7 of the said order. The other cases shown pending against the petitioner were the offences of similar nature, registered under Section 457 and 380 of IPC,and in all the said cases, the petitioner was already released on bail by the concerned court. If the cases at serial No. 6 and 7 are not taken into consideration, the last case registered against the petitioner being case No. 303/10 shown at serial No. 5 was registered on 4.12.10, and the impugned order was passed by the respondent No.2 under Section 3(2) of the said Act on 21.11.11 for detaining him. As rightly submitted by the learned counsel Mr. Yogesh Kumar Sharma for the petitioners, relying upon the decision of the Apex Court, in case of Rajinder Arora Vs. Union of India & Ors. ((2006) 4 SCC
796), there was no explanation coming forth from the respondents as to what activities, adverse to the maintenance of the public order were found to have been committed by the petitioner, requiring his detention and as to why there was so much of delay in passing the order of detention for the alleged illegal activities after 4.12.10. The learned Government counsel also was not in a position to explain as to what were the compelling circumstances requiring detention of the petitioner on 21.11.11. Under the circumstances and as held by the Apex Court, in the aforesaid decision, passing of the detention order after the delay of more than one year to the (14 of 15) [HC-161/2016] alleged offence committed by the petitioner itself was a ground to set aside the detention order." While considering the entire material available on record, we are of the opinion that the finding of the District Magistrate, Bikaner to treat the petitioner detenu as "dangerous person" so as to take action under the Act of 2006, is not in consonance with law for the reason that in none of the cases, the petitioner was convicted, so also, all the cases registered against the petitioner does not relate with the drug offences, immoral traffic, property grabbing, so also action was taken by the District Magistrate, Bikaner after one year from the date of recommendation of the Superintendent of Police, Bikaner against the petitioner and in that period, admittedly, no case was reported against the petitioner.
On the basis of above discussion, we are of the opinion that the detention order dated 15.9.2016 passed by the District Magistrate, Bikaner, approved by the sag vide order dated 23.9.2016 and subsequently confirmed by the advisory board on 19.10.2016 and the order of Government vide order dated 3.11.2016 are not sustainable in law.
Consequently, this habeas corpus writ petition is hereby allowed. The order of detention dated 15.9.2016 passed by the District Magistrate, Bikaner, approved by the State Government vide order dated 23.9.2016 and subsequently confirmed by the State Government vide order dated 3.11.2016 upon confirmation by the advisory board are hereby quashed and set aside and the (15 of 15) [HC-161/2016] petitioner detenue be released forthwith, if not needed in any other case.
(GOVERDHAN BARDHAR)J. (GOPAL KRISHAN VYAS)J. Cpgoyal/ps