Allahabad High Court
Puneet vs State Of U.P. And Others on 7 January, 1999
Equivalent citations: 1999(1)AWC739, 1999CRILJ1360
Author: Brijesh Kumar
Bench: Brijesh Kumar
ORDER Brijesh Kumar, A.C.J. and R.R.K. Trivedi, J.
1. This petition is preferred against the order of detention passed by District Magistrate, Etawah under Section 3(2) of the National Security Act. A copy of the order of detention has been filed as Annexure-1 to the writ petition.
2. The grounds of detention are contained in Annexure-2 dated February 9, 1998. Only one ground, which is indicated in the grounds of detention, is the incident which is said to have taken place on 11.1.1998 at about 5.45 a.m. near Chhimara Tiraha, police station, Vedpura, district Etawah. The case as indicated, is that the detenu along with others entered into a private bus which was going from Etawah to Mainpuri and resorted to firing as a result of which two persons sitting behind the seat of the driver, namely, Man Singh and Smt. Mahur wife of Chandra Bhan Singh died. A Case Crime No. 2 of 1998 under Section 302, I.P.C. was registered at the police station, Vedpura, district Etawah. The petitioner, it appears, was prosecuted and the criminal trial ended in acquittal. A copy of the judgment of acquitta! in Sessions Trial No. 167 of 1998 has been filed along with Misc. Application No. 76379 of 1998 with the request that the same may be taken on the record. A perusal of the judgment of the Sessions Trial dated 21.11.1998 shows that eye-witnesses of the incident had turned hostile having denied to have seen the occurrence as a whole and the Court held that the prosecution failed to prove the charges against the accused persons, hence the order of acquittal was passed.
3. Learned counsel appearing for the petitioner submits that on acquittal of the detenu in the criminal trial for the offence which was the sole ground in the detention order, there remains no material on the basis of which the order of detention could be sustained. The submission is that it is a case where the detention order is rendered without any basis and material in support thereof. In this connection, reliance has been placed on a Full Bench decision of this Court in Ram Prasad Chaudhary v. State of U. P.. 1986 (23) ACC 186. The factual position was almost similar in that case as well. namely, the detenu was acquitted in the criminal trial during currency of the period of detention. The Full Bench after considering several authorities came to the conclusion that if the order of acquittal passed in favour of the detenu is found to be based on charges which have not been substantiated in regular trial, then that incident cannot be made the basis of ground of detention.
4. Learned State Counsel has. however, submitted that acquittal in trial does not mean that one cannot be detained on that ground. It is submitted that the scope of two spheres is different, namely, criminal trial is meant for the purposes of punishment for a crime and the object of the order of preventive detention Is to prevent repetition of similar incidents by the detenu. It is further submitted that for the purpose of preventive detention, there should be subjective satisfaction of the detaining authorities and they are the sole judges of the same. Thus, once an order of detention was passed and there is subjective satisfaction of the concerned authority on the basis of the facts and circumstances of the case, it cannot be said that the order of detention is rendered invalid due to subsequent order of acquittal passed in the Sessions Trial. He has placed reliance upon two decisions ; one in Ashok Kumar v. Delhi Administration and others, A.I.R 1982 SC 143, our attention has particularly been drawn to paragraphs 12, 13 and 14 of the decision. The concluding part of paragraph 14, upon which much stress has been laid by the State Counsel is reproduced as under :
"There is no reason why the executive cannot take recourse to its power of preventive detention in those, cases where the Court is genuinely satisfied that no prosecution could possibly succeed against the detenu because he is a dangerous persons who has overawed witnesses or against whom no one is prepared to depose."
5. There cannot be any dispute about the proposition to which our attention has been drawn by the State Counsel that in case of trial ending in acquittal because of the fact that the witnesses were terrorised by the accused persons, hence they turned hostile or did not dare to depose, the executive authority will have to be satisfied about it and such ground will have to be there in the detention order as one of the grounds of detention. By mere acquittal due to the reason that the prosecution witnesses have not supported the case would not necessarily lead to only inference that it was because of the terror and awe of the accused persons. In the present case, there is neither any such averment in the counter-affidavit about the terror or overawing effect of the detenu due to which trial ended in acquittal nor there is any such finding or observation in the judgment of the trial court acquitting the accused persons.
6. There is yet another decision which has been in Shri Shiv Ratan Makim v. Union of India and others, AIR 1986 SC 610, and our attention has been pointedly drawn to the observations made by the Hon'ble Supreme Court in paragraph 6 of the decision. The observations are to the effect ; this argument completely overlooks the fact that the object of making an order of detention is preventive while the object of a criminal prosecution is punitive. Even if a crimtnal prosecution fails and an order of detention is then made, it would not invalidate the order of detention....."
7. The Full Bench in the case of Ram Prasad Chaudhary (supra) has relied upon the decision of the Supreme Court in Ramesh Yadav v. District Magistrate, Etah, 1985 SCC (Cri) 514, wherein it was observed that if the incident, which is the basis of detention, has ended in acquittal, then that incident cannot be available to be used as a basis of detention. In our view, the position that emerges is that it is permissible to pass an order of detention even after acquittal of the detenu in the criminal trial, provided there is subjective satisfaction of the detaining authority that the prosecution has failed because of awe of the accused persons or due to tampering with the evidence by them or in the circumstances where the detaining authorities are satisfied that nobody dared to come forward to depose against such accused persons. In the present case, there is no such ground or satisfaction of the detaining authority that the criminal prosecution failed due to awe of or tampering with the evidence by the detenu and it could not be there, since at the time of passing of the detention order, the order of acquittal was not there. In the present case, merely on the basis of the fact that the prosecution witnesses have not supported the prosecution case as a result of which the trial ended in acquittal, it is inferred or presumed that there was awe of the accused persons or there was tampering with the evidence and this is read in the order of detention which was already in operation, in our view, this will amount to adding a ground in the detention order for detaining the detenu. We are also of the firm view that it is not permissible as by doing so, a detenu would be deprived of an opportunity to explain through representation or otherwise that there was no tampering with the evidence on his part nor criminal trial ended in acquittal because of his influencing the witnesses or winning over them by terror. The fact that if detention of a detenu is necessary even after the acquittal of the accused, all such reasons have to be stated in the grounds which, in this case, is neither permissible nor can be added. The result is that the sole ground on which the petitioner was detained has become non-existent, hence it is a case where there exists no ground nor any material in support thereof. As observed earlier, there is no material for the inference that there was any tampering with the evidence on the part of the accused persons by overawing witnesses by reason of which witnesses did not support the prosecution case or they were won over by the accused forcibly which necessitate continued detention.
8. In view of the discussions held above, the petition is liable to be allowed as the continued detention of the petitioner is rendered Invalid.
9. The writ petition is allowed and the continued detention of the petitioner is held to be invalid. He shall be set at liberty forthwith unless wanted in some other case.