Sanju Yadav Alias Sanjay vs State Of U.P. And Another on 1 December, 2017

[Cites 21, Cited by 3]

Allahabad High Court

Sanju Yadav Alias Sanjay vs State Of U.P. And Another on 1 December, 2017

This is a petition framed as one for a writ of Habeas Corpus seeking to challenge the continued detention of the petitioner Sanju Yadav Alias Sanjay under an order dated 05.02.2017 passed by the District Magistrate, Etawah ( for short the "Detaining Authority") in exercise of his power under Section 3(2) of the National Security Act, 1980 (hereinafter referred to as the 'Act'). The order dated 05.02.2017 shall hereinafter be referred to as the "detention order".

Though the petition is one for a writ of Habeas Corpus the petitioner has sought the following material relief alone:

"(i) Issue an appropriate writ order or direction in the nature of certiorari quashing the order dated 05.02.2017 passed by the respondent no.4, under Section 3(2) of the National Security Act, 1980 as well as order dated 19.04.2017 passed by the respondent no. 1 under Section 3(3) of the The National Security Act (Annexure No. 1 & 2 to this writ petition.)"

To our mind the relief claimed which is one for a writ, order or direction in the nature of certiorari with no relief claimed for a writ, order or direction in the nature of Habeas Corpus is absolutely misplaced and does not accord with the frame of the writ petition that is entirely in substance one for a writ, order or direction in the nature of Habeas Corpus.

We have said much about this issue in our judgment rendered in Habeas Corpus Writ Petition No. 6366 of 2017, Pankaj Singh vs. State of U.P. and three others, decided on 02.11.2017 and would, therefore, not dwell in detail over it here. Nevertheless, we are constrained to say that we are not in isolation over the issue of appropriate frame of a Habeas Corpus writ petition vis-a-vis the relief required to be sought. A Division Bench of this Court in Salam Waris @ Gatte vs. State of U.P. and others, 2009 (5) ADJ 464 has disapproved in the strongest terms, the ill-framing of a Habeas Corpus writ petition by asking for a writ, order or direction in the nature of certiorari to quash the detention order. In that case their Lordships refused to proceed with the petition on merits compelling the petitioner to appropriately amend relief. We do not intend to do so. We think that in a Habeas Corpus writ petition where the issue of liberty is involved, rules of procedure should not detain us in determining the claim that is one based on violation of the petitioner's fundamental right to liberty guaranteed under Article 21 of the Constitution by the letter of it, let alone the spirit.

We have the approval of their Lordships of the Supreme Court to the course of action we have chosen to take expressed in re: Cherukuri Mani vs. Chief Secretary, Govt. of Andhra Pradesh and others, (2015) 13 SCC 722 where confronted with the same issue of ill-framing a Habeas Corpus petition as to the relief sought, their Lordships held:

"6. When the appellant challenged the detention of her husband before the High Court in a habeas corpus writ petition, the High Court dismissed the same with a cryptic order. In our considered view, when habeas corpus writ petition is filed, even though the petitioner has not properly framed the petition and not sought appropriate relief, it is expected from the court to at least go into the issue and decide on merits. Normally, in such matters where liberty of a person is at stake, the courts would take a liberal approach in the procedural aspects. But unfortunately in the instant case, the High Court has dismissed the writ petition at the threshold itself."

Accordingly, we proceed to determine this petition as one for a writ, order or direction in the nature of Habeas Corpus ignoring the technicality of the law as to form of the relief sought.

The basis for the detention order is an incident that led the Station House Officer, P.S. Bharthana, District Etawah to lodge a first information report on 26.01.2017 at 18:45 hours giving rise to Case Crime No. 80 of 2017, under Sections 147, 148, 323, 307, 504, 506, 332, 353 IPC, Section 7 Criminal Law Amendment Act, 1932 and Section 3(2) of Prevention of Damage to Public Property Act, 1984. It was reported by the Station House Officer, Bharthana, Etawah that the informant was participating in the republic day parade in the police lines on 26.01.2017 when he received information from the control room that a road accident has taken place involving a Wagon-R (car) and a motorcycle over the Baherpura Canal Bridge, in consequence of which the riders of the motorcycle have fallen into the canal and died as a result of drowning. It is further said in the first information that on receipt of the information after intimating higher officials of the incident he gave requisite instructions to his subordinate at P.S. Bharthana who vide G.D. Entry No. 17 dated 26.01.2017 timed at 9.40 a.m. left with full particulars of the personnel entered and in good strength for the place of incident in the official jeep. At the same time the informant himself left the Etawah police lines promptly.

The informant goes on to report that when he and his companion policemen reached the place of occurrence the S.D.M. Bharthana, Etawah, the Circle Officer, Bharthana, Etawah, the Station House Officer, P.S. Bakewar, Etawah, the Station House Officer, P.S. Lavedi, Etawah, the Station House Officer, P.S. Chaubia, Etawah, the Station House Officer, P.S. Usrahar, Etawah, the Inspector Incharge, P.S. Ekdil, Etawah, a strong force of the Provincial Armed Constabulary, fire brigade and QRT had already arrived there. The informant went on to say that all available police force and divers set about to search the drowned victims, the two riders on the ill-fated motorcycle. The public also joined hand in the rescue effort. Members of the public in large numbers gathered suddenly at about 13:40 hours near the place of incident. Five named persons mentioned in the FIR hailing from adjoining villages detailed in the report along with an aggressive multitude of 30-40 unknown persons forming an unlawful assembly and with a common object armed with Lathi and Danda abusing and threatening the police and administrative officials with death, suddenly assaulted the authorities and set ablaze government vehicles.

The canal that was in high spate was nevertheless searched by those in effort that led to recovery of bodies of the two victims of the accident, to wit, Satendra Kumar and Akhilesh Kumar, both sons of Shiv Dayal and both residents of village Nagla Baha, P.S. Civil Lines, Etawah. It is further reported that on recovery of the dead bodies of the unfortunate victims the unlawful assembly commanded by the five nominated accused placed the dead bodies in the centre of the road, thus obstructing a public road. The crowd of aggressors commanded by the five nominated accused reportedly resorted to thrashing the police and administrative officials with their Lathi and danda beating them up mercilessly. It is further reported that in consequence of violence unleashed, the S.D.M. Bharthana suffered grievous injury to his head while his driver and orderly also suffered grievous injuries. It is also said that the police personnel suffered injuries in consequence of mob violence which are mentioned in the first information report with full particulars, in graphic detail. The information goes on to speak of the full particulars of government vehicles that were damaged as a result of mob violence. The informant after reporting facts of the incident proceeds to say that as a result of mob violence where police and administrative officials were beaten with Lathi and Danda by the unruly crowd led to shattering of the law and order, in consequence of which movement of traffic on the public road came to a complete standstill. There was a long queue of vehicles on both ends of the road where the incident had occurred. The occupants of waiting cars as a result of fear abandoned their vehicles and ran pell mell in panic to save their lives. The information also says that natives in the vicinity were also struck by fear and took to their heals in an atmosphere of commotion and fear; terror ruled the roost. The informant goes on to say in the information that in consequence of mob violence there was vitiation of public order. It is also said in the information that since police and administrative officials/employees had received grievous injuries, they were dispatched for immediate medical aid/medical examination to the Community Health Centre, Bharthana resourcefully avoiding the still aggressive mob and escaping attention of the accused. The informant says that on reaching his station he dictated the first information report that was registered at P.S. Bharthana on 26.01.2017 at 16.45 p.m. The petitioner was nominated in the first information report dated 26.01.2017 as accused no. 3 along with four others named and 35 to 40 unnamed offenders.

The detention order which is one dated 05.02.2017 annexed as Annexure No.1 to the petition was passed by the Detaining Authority and served upon the petitioner while he was in jail in connection with the case crime in question. The detention order dated 05.02.2017 was accompanied by grounds of detention along with certain documents enclosed. The enclosed documents are annexed to the writ petition as annexure no. 4.

This writ petition was filed on 14.06.2017 and came up for admission on 16.06.2017. The following order was recorded on 16.06.2017 by a Division Bench of this Court:

"Learned A.GA. Prays for and is granted four weeks' time to file counter affidavit on behalf of respondent no. 1, 3 & 4. Same time is allowed to respondent No. 2 to file counter affidavit.

Rejoinder affidavit may be filed within two weeks thereafter.

List after expiry of aforesaid period before appropriate Bench."

The aforesaid order would, therefore, constitute issue of rule nisi requiring the respondents to justify the continued detention of the petitioner by virtue of the detention order.

The earliest in chronology is the return filed on behalf of the Detaining Authority being a counter affidavit filed by one Shamim Ahmad Khan, posted at the time of swearing the affidavit as Special Secretary, Medical Education, Govt. of U.P. Lucknow and was at the relevant time the incumbent officer at Etawah who made the detention order. The next return is the one filed on behalf of the Union of India being an affidavit of one Sri Balraj, Under Secretary, Ministry of Home Affairs, Govt. of India, New Dehli. The said counter affidavit has been brought on record through an office report that bears no date but is endorsed after an earlier office report dated 13.07.2017 on the order sheet. There is then a counter affidavit dated 25.08.2017 filed on behalf of the State being an affidavit sworn on 12.07.2017 but formally signed by the Additional Government Advocate on 25.08.2017. It is an affidavit sworn by one Om Prakash Pandey, posted at the relevant time as Under Secretary, Home (Confidential Department), U.P. Civil Secretariat, Lucknow. This is followed by a supplementary counter affidavit on behalf of the State dated 04.09.2017 sworn on 29.08.2017 by the same Secretary to the Government as the counter affidavit filed on behalf of State last mentioned. The supplementary counter affidavit on behalf of State brings on record orders of the State Government dated 24.05.2017 confirming the detention order on the basis of the report of the advisory board in exercise of powers under Section 12 (1) of the Act, an order dated 19.04.2017 enlarging the period of detention from three months to six months and an order dated 25.07.2017 further extending the period of detention to nine months from date of the detention order.

Three rejoinder affidavits have been filed by the petitioner, one being in reply to the counter affidavit filed on behalf of the Detaining Authority, the other being in reply to the counter affidavit on behalf of the Union of India and the third being a combined rejoinder affidavit in reply to the counter affidavit and the supplementary counter affidavit filed on behalf of the State. Each of the aforesaid affidavits detailed hereinbefore are available on record and have been carefully perused by us.

We have heard Sri Jadu Nandan Yadav,, learned counsel for the petitioner, Sri Arun Kumar Upadhayay, learned counsel for the Union of India-respondent no. 2 and the learned Additional Government Advocate for the State.

Sri Jadu Nandan Yadav, learned counsel for the petitioner has assailed the detention order primarily on two counts which we may summarize as under:

"(i) At best the entire incident on the basis of facts and circumstances attendant taken as a whole make it to be a case of violation of law and order but not public order. Therefore, no action could validly be taken under Section 3(2) of the Act.

(ii) Non application of mind to relevant material by the Detaining Authority that there was a real likelihood of the petitioner being enlarged on bail and once released on bail the petitioner would indulge again in conduct prejudicial to the maintenance of public order, particularly so as the petitioner has no criminal history and a law abiding citizen who has no special influence over a members of the public in general.

Having heard learned counsel for the parties, we proceed to determine the grounds urged in challenge to the detention order.

The petitioner has contended that even if the occurrence forming basis for the Detaining Authority to proceed under the Act is considered to be true, no case of violation of public order is made out against him. At the most, the incident merely affects law and order. In the submission of the learned counsel for the petitioner, therefore, powers under Section 3 (2) of the Act could not validly be invoked by the Detaining Authority against the petitioner considering the entire occurrence detailed in the first information report. The petitioner has pleaded a specific case in the writ petition to support his ground of challenge on this score vide paragraph nos. 8 and 23 which are quoted below:

"8. That even if his involvement is assumed to be true, through denied as regards the criminal case mentioned in the grounds of detention as aforesaid, even then no case of public disorder is made out against him. At the most the above mentioned case merely effects law and order and it cannot be presumed even by a great deal of imagination, that this incident can effect public order and could effect the even temp of life/society or its general tranquility.

23. That even if the entire incident as narrated in the first information report is taken at its face value and accepted in its entirely even then with any stretch of imagination disturbance of public order cannot be stated."

Paragraph no. 8 of the writ petition has been answered in paragraph no. 9 of the counter affidavit filed on behalf of the Detaining Authority, while paragraph no. 23 of the petition has been answered in paragraph no. 17 of the counter affidavit filed on behalf of the Detaining Authority.

Learned AGA and Sri Arun Kumar Upadhayay appearing for the Union of India in one voice have refuted the worth of this ground of challenge. It is the contention of the learned counsel defending the detention order that the enormity of the incident and the extent of the damage, the impact created by it in the locality and surrounding areas, safely classes the incident as one of violation of public order. It has in their submission clearly crossed the line of violation of mere law and order. The answer to this point need not detain us as we have had occasion to deal with the aforesaid issue relating to the same incident as the one giving rise to the detention order in Habeas Corpus Writ Petition No. 25784 of 2017 (Deepu Alias Kuldeep Yadav vs. Union of India and 5 others) decided on 06.11.2017. In the aforesaid decision while judging impact of the the incident that forms substratum for the detention order, it was held by us:

"Though our conclusion on the first point pressed by Sri Chaturvedi effectively turns the event in favour of the petitioner but we feel it imperative to deal with the 4th point urged by him to assail the petitioner's continued detention. We proceed to do so briefly because the point is the most fundamental in the realm of preventive detention. He has urged that entire detention order and grounds together with other material in support make it to be a case of violation at best of 'law and order' but the same does not travel to place the petitioner's case in the inner wheel that constitutes 'maintenance of public order'. It may be true that there were gross acts of vandalism by a mob of unruly natives of the adjoining village showing savage reaction to a road accident that led to wide spread pillage, damage to public property, and, injury to public servants, including police officials but we are of opinion that howsoever grossly an act may violate the law and order it has to be something much more to render it into an act vitiating public order. It is equally true that because some public authorities and officials of the police have been assaulted, an act of violation of law and order would not on that account alone escalate to the level of an act violating the maintenance of public order. On this score too we find the detention order to be bad in law and vitiated."

Learned AGA has not been able to demonstrate at the hearing anything so different as may persuade us to take a different view of the same incident regarding its impact on the even tempo of life for the purposes of Section 3 (2) of the Act. We, therefore, hold that detention order under challenge is based on an incident which constitutes nothing more than violation of law and order. On this score alone the detention order is found to be bad in law and vitiated.

Although, we find the detention order to be bad on the first count urged by the learned counsel for the petitioner, we think that the second ground urged in challenge to the validity of the same also deserves to be evaluated. In order to substantiate his challenge to the detention order on the ground that there was no application of mind by the Detaining Authority to relevant material on the basis of which he could reach a valid subjective satisfaction that there was a real possibility of the petitioner being released on bail and that there was also no material for the further subjective satisfaction of the Detaining Authority, that the petitioner upon being released on bail would, in all probability, indulge in activity prejudicial to the maintenance of public order, the learned counsel for the petitioner Sri Jadu Nandan Yadav has drawn attention of this Court to paragraph no. 26 of the writ petition. Paragraph no. 26 of the writ petition reads:-

"26. That the State Advisory Board has also not applied his mind in giving the opinion that there was sufficient cause to pass the impugned order. There was no subjective satisfaction of detaining authority to record that there was a real possibility of releasing the petitioner on bail, it was based on information given by the petitioner. There was no sufficient material before the detaining authority to satisfy him that after releasing on bail the petitioner shall indulge in prejudicial activities. In such circumstances impugned order may be set aside and petitioner may be set a liberty forthwith."

The aforesaid assertion of the petitioner has been refuted by the Detaining Authority in his counter affidavit vide paragraph no. 2- that reads as follows:

"That the contents of paragraph no. 26 and 27 of the writ petition are denied being incorrectly stated. In reply thereto, it is stated that there was sufficient ground for passing the impugned detention order by the deponent against the petitioner. The deponent considered possibility of petitioner being released on bail from concerned court and upon release, his further indulgence in similar type of activities , which will be pre-judicial to the public order, with a view to prevent the petitioner form acting in any manner prejudicial to the maintenance of public order, the petitioner has been rightly detained under Section 3(2) of National Security Act after complete subjectively satisfaction on the basis of material available on the record."

A reading of paragraphs no. 20 of the counter affidavit filed on behalf of the Detaining Authority does not show at all that the Detaining Authority had any material much less cogent material before him to reach a valid subjective satisfaction that there was a real possibility of the petitioner being released on bail. The Detaining Authority has said in paragraph no. 20 of his return concerning the issue that "The deponent considered possibility of petitioner being released on bail from concerned court and upon release, his further indulgence in similar type of activities , which will be pre-judicial to the public order, with a view to prevent the petitioner form acting in any manner prejudicial to the maintenance of public order, the petitioner has been rightly detained under Section 3(2) of National Security Act .............."

The aforesaid assertion in the opinion of this Court does not disclose, like the detention order or the grounds, any cogent material to form that subjective satisfaction by the Detaining Authority which is sine quo non for the valid exercise of power under Section 3(2) of the Act. The assertion under reference is no more than a paraphrasing of the statutory requirement with no specific material being indicated, even remotely, to which mind was applied by the Detaining Authority while recording his subjective satisfaction proclaimed in the detention order. Thus, we find that there was no subjective satisfaction recorded by the Detaining Authority on the basis of relevant material that there was a real possibility of the petitioner being released on bail.

In this connection we have a stronghold for our view to be found in Rivadeneyta Ricardo Agustin vs. Government of the National Capital Territory of Dehli and others, 1994 Supp. (1) SCC 597, wherein it has been held that if there is no material before the detaining authority indicating that the detenue is likely to be released or such release is imminent, the detention order, passed without such satisfaction is liable to be quashed.

The aforesaid view of the Supreme Court has been followed by a Division Bench of this Court in Sanjay @ Sanju vs. Union of India and others, 2015 (91) ACC 853. Paragraphs 16 and 17 of the report in re: Sanjay @ Sanju (supra) are pertinent:

"16. What follows from the above is that a valid preventive detention order passed against a person in judicial custody must fulfill the conditions spelt out herein above by the Apex Court in its numerous pronouncements on the issue and one such essential condition is that there should be real possibility of the person being released on bail.

17. In the present case the detaining authority has merely mentioned in the grounds of detention that the petitioner has filed his bail application before the Sessions Judge, Amroha and there was possibility of the petitioner indulging in similar activities prejudicial to the maintenance of public order on his coming out of jail. He has not recorded his satisfaction in the impugned order that there was real possibility of his being released on bail which omission in our opinion has totally vitiated the impugned order."

There is then the further facet of the issue as the learned counsel for the petitioner would urge that the Detaining Authority had no material before him to conclude that in the event of his release from custody on bail, the petitioner would indulge in pre-judicial activities to the maintenance of the public order and it is necessary to detain him to prevent him from doing so. In order to support the aforesaid contention, the learned counsel has depended upon assertions in paragraph nos. 20 and 21 of the writ petition which are being quoted in extenso:

"20. That petitioner is not previous convicted and falsely implicated in case Crime in which on the basis of one case N.S.A. Imposed against the petitioner.

21. That it is not worthy to mention that none from public has even complained against the petitioner."

The aforesaid paragraphs have been answered by the Detaining Authority in paragraphs no. 14 and 15 of the counter affidavit. The said paragraphs run as follows:

"14. That the contents of paragraph no. 20 of the writ petition are denied being incorrectly stated. In reply thereto, it is stated that the first information report of criminal case in question was registered against Shivendra Yadav, Gajendra Yadav, Sanju Yadav @ Sanjay (petitioner), Baba, Pravesh and other unknown 35-40 accused persons and after due investigation, the charge sheet was forwarded by the concerned investigating officer on the basis of evidences collected during the course of investigation establishing the guilt of accused petitioner as well as other accused persons."

Further, it is stated that the accused appellant is a man of criminal nature and the petitioner has other criminal history, except the criminal case in question according to the records of DCRB, District Etawah, which is being quoted below:-

i. Case crime no. 127 of 2017 under Section 3(1) of Gangster Act, Police Station Bharthana, District Etawah.

ii. Case crime no. 125 of 2017 under section 3(2) of National Security Act, Police Station Bharthana, District Etawah.

Iii. N.C.R. No. 323, 504 of I.P.C. Police Station Bharthana, District Etawah.

However, considering the facts and circumstances of the case, the nature of offence and the manner, in which the offence has been committed by the petitioner, he is not entitled to get any relief by this Hon'ble Court.

15. That the contents of paragraph no. 21 of the writ petition need no comments."

The criminal history of three cases relating to the petitioner set out in paragraph no. 14 of the counter affidavit filed on behalf of the Detaining Authority has been effectively refuted by the petitioner vide paragraph no. 13 of his rejoinder affidavit filed in reply to the counter affidavit by the Detaining Authority. Paragraph no. 13 of the relevant rejoinder affidavit reads as follows:

"13. That the contents of the paragraph nos. 13 and 14 of the counter affidavit are not admitted being incorrect, false and are denied and in reply thereto the contents of paragraph nos. 18, 19 and 20 of the writ petition are reiterated and reaffirmed once again. It is further stated that cases shown against the petitioner in paragraph no. 14 of the counter affidavit i.e. (i) Case Crime no. 80 of 2017, under Sections 147, 148, 323, 307, 504, 506, 332, 352 I.P.C., Section 7 Criminal Law Amendment Act and Section 3(2) of Damages of Public Property Act is present case and (ii) Case crime no. 127 of 2017 under Section 3(1) Gangster Act has been registered after the present case and case (iii) N.C. R under section 323, 504 I.P.C. is concocted case as the petitioner is not aware regarding N.C.R. Case and no N.C.R. Number is mentioned in this case."

We find that all the three cases under reference that are projected as criminal antecedents of the petitioner are referable to the same incident on the basis of which the detention order has been passed. It is no more than a contemporaneous implication. Such contemporaneous registration of crimes relating to the same incident that has led to the impugned order, in the opinion of the Court, does not serve as relevant objective material as to the antecedents of the detenue on the basis of which the Detaining Authority may form valid subjective satisfaction that the detenue after release from custody would indulge in prejudicial activities.

We may draw support for the view of the law taken by us from the authority of the Supreme Court in Dharmendra Suganchand Chelawat vs. Union of India, AIR 1990 (SC) 1196 where in paragraph 21 of the report it is held thus:

"21............. an order for detention can be validly passed against a person in custody and for that purpose it is necessary that the grounds of detention must show that-

1. The detaining authority was aware of the fact that the detenue is already in detention.

2. There were compelling reasons justifying such detention despite the fact that the detenue is already in detention.

The expression "compelling reasons" in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that the detenue is likely to be released from custody in the near future and taking into account the nature of the antecedent activities of the detenue, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities."

The facts before us in this case lead us to conclude that subjective satisfaction of the Detaining Authority that there was a real possibility of the petitioner being released on bail and that if released on bail he would indulge in actions prejudicial to the maintenance of public order is not based on any material. The subjective satisfaction is, thus, vitiated and renders the continued detention of the petitioner bad in law.

In the result, the petition succeeds and is allowed. Rule is made absolute. The continued detention of the petitioner by dint of the detention order dated 05.02.2017 is declared illegal. The petitioner is directed to be set at liberty forthwith unless wanted in any other case.

Let certified copy of this order be supplied today to learned counsel for the parties.

Order Date :- 01.12.2017 Deepak

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