Madhya Pradesh High Court
Manish Rai S/O Laxman Rai Thru. Next ... vs Home Affairs on 7 January, 2019
HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE
W P No. 27216 / 2018
MANISH RAI S/O LAXMAN RAI VS. STATE OF MP & ORS.,
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INDORE, Dated : 07/01/2019
Mr. Manuraj Singh, learned counsel for the petitioner.
Mr. Vivek Patwa, learned counsel for the respondent -
State.
The petitioner before this Court has filed this present writ petition being aggrieved by the order of detention dated 05/10/2018 passed in exercise of the powers conferred u/S. 3 of the National Security Act, 1980.
The contention of the petitioner is that there was no material before the respondent No.2 for passing the impugned order and in all the cases referred to against the petitioner, he has been acquitted barring two cases which are of trivial nature.
Learned counsel for the petitioner has also argued before this Court that the District Magistrate has acted in a mechanical manner by relying upon the report submitted by the Superintendent of Police who has furnished details of as many as 16 cases and without going through the record, as he was acquitted in most of the cases, barring two cases, the order passed by the District Magistrate is bad in law.
Learned counsel for the petitioner has also placed reliance upon the judgment delivered by this Court in the case of Usman S/o Gani Khan Vs. State of M.P. Reported in ILR (2012) MP 1594 and his contention is that no affidavit of the District Magistrate has been filed and, therefore, in the light of the judgment delivered by the coordinate Bench of HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE W P No. 27216 / 2018 MANISH RAI S/O LAXMAN RAI VS. STATE OF MP & ORS.,
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this Court in the case of Usman (supra), the impugned order deserves to be set aside.
Paragraph 5 of the judgment delivered in the case of Usman (supra), reads as under :
5. In the instant case, the District Magistrate who passed the order of detention has not filed his affidavit. It is well established by catena of decisions of the Supreme Court that in answer to a Rule issued in a habeas corpus petition, the counter affidavit on behalf of the State should be sworn by the District Magistrate who had passed the detention order.
In the present case, there is a direct allegation that the detention order was passed without application of mind and there was no material before the detaining authority to reach the subjective satisfaction. There is no parawise reply. The affidavit in support of the reply does not say that the City Superintendent of Police personally dealt with the matter. He has merely sworn the affidavit on the information gathered from the record. No explanation has been offered for not filing the affidavit of the District Magistrate. The reply also does not show that all procedural steps, as required under the Act, were taken within the specified time. Except for news- paper cuttings (which have no evidentary value), no other cogent material has been placed before us to judge the legality of the detention order. In this unsatisfactory state of affairs, we have no hesitation to hold that the District Magistrate passed the detention order in a most cavalier manner without any application of mind, and was confirmed by the State Government in equally callous manner as such, it is difficult for us to sustain the detention order. Yet there is another ground which makes the detention order unsustainable. In this connection, we may refer to the earlier division Bench decision of this Court in W. P. No.3426/2008 decided on 22.7.2008 wherein it is held that the detenue must be appraised of his right to make representation to Central Government. We find even this was not fulfilled in the case on hand.
In the present case, the respondents though have stated that there were 18 offences registered against the petitioner, but the facts reveals that in a mechanical manner the order has been passed on the basis of report submitted by the HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE W P No. 27216 / 2018 MANISH RAI S/O LAXMAN RAI VS. STATE OF MP & ORS.,
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Police and in most of the cases the petitioner has been acquitted. There appears to be total non application of mind in passing the impugned order. Not only this, in the light of the judgment delivered in the case of Usman (supra), the impugned order deserves to be set aside.
Learned counsel for the petitioner has placed reliance upon the judgment delivered by the Division Bench of this Court in the case of Rinku @ Kuldeep Shukla Vs. State of M.P. And others reported in 2015 (3) MPLJ 157. Paragraph 7 of the aforesaid judgment reads as under :
7. Now in the backdrop of aforesaid authoritative pronouncement of law, let us now examine the grounds ex facie supplied to the petitioner.
Allegations against the petitioner are cataloged with reference to the following crime cases:-
1. Crime No. 19 / 2002 : under Sections 341, 294, 323, 506 and 34 of IPC.
2. Crime No. 376 / 2008 : under Sections 294, 323, 324, 325, 506 and 34 of IPC.
3. Crime No.5/2009: under Sections 294, 353 and 34 of IPC.
Writ Petition No.1603/2015 (Rinku @ Kuldeep Shukla vs. State of Madhya Pradesh and others)
4. Crime No.315/2009: under Sections 294, 324 and 506 of IPC.
5. Crime No.71/2013: under Sections 294, 353 and 506 of IPC. (As per para 7, the criminal case No.731/2013 arising therefrom has been decided and petitioner has been acquitted)
6. Complaint No.2/2013: under Section 110 Cr.P.C.
7. Crime No.719/2014: under Sections 147, 186, 294 and 506 of IPC. (for theft of sand)
8. Crime No.720/2014: under Sections 294, 323, 506, 147, 148 and 149 of IPC.
9. Complaint No.60/2014: under Section 110 Cr.P.C.
10. Forest Offence No.475/2015: an information dated 6/6/2014 with the allegation that the petitioner-Rinku alias Kuldeep Shukla is engaged in illegal excavation and sale of sand and threatening the officials with dire consequences. The impugned order is sought to be justified on the aforesaid HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE W P No. 27216 / 2018 MANISH RAI S/O LAXMAN RAI VS. STATE OF MP & ORS.,
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allegations, which ex facie reveal the incidents of the trivial nature alleging acts of obscene acts and songs, simple hurt, threat to life and punishment for wrongful restraint. The remaining allegations are related to theft of sand and certain complaints under Section 110 of Cr.P.C. As such, the allegations made against the petitioner are of trivial nature and Writ Petition No.1603/2015 (Rinku @ Kuldeep Shukla vs. State of Madhya Pradesh and others) do not admit of grave and serious offences having implications of serious repercussions on the life and liberty of larger sections of the community causing disturbance to the even tempo of life and liberty of the community, so that the same may be classified as the acts intended to subvert the public order. Further, we find that in the grounds of detention there is "no other material" referred to which would justify the apprehension of the Detaining Authority that the petitioner has engaged in a manner so as to subvert public order or that the witnesses were not coming forward to depose against him due to fear and more so that the petitioner is likely to engage himself in the activities which may affect public order. In absence of any contemporaneous material in this behalf it is unfathomable as to how the subjective satisfaction reached by the Detaining Authority regarding involvement of the petitioner in subversion of public order can be justified. As a matter of fact, an act by itself is not determinant of its own gravity: in its quality it may not differ from other, but in its potentiality it may be very different. [Arun Ghosh v. State of W.B., [(1970) 1 SCC 98]. Therefore, such sporadic and stale instances referred to and relied upon by the Detaining Authority of assault, abuse, simple hurt, which are of trivial nature, cannot be construed to have the potential of causing threat to the maintenance of public order. These are the instances, at best of breach of law and order and they do not establish any live and proximate link to the threat to the public order nor does it pass the test of detention order Writ Petition No.1603/2015 (Rinku @ Kuldeep Shukla vs. State of Madhya Pradesh and others) passed for the right purpose. The nature of allegations with reference to the alleged offences are of the nature which can be dealt with under the powers to maintain law and order. They are not of such a nature which may be perceived to have the intensity of causing threat to public order.
Therefore, in the opinion of this Court, issuance of impugned order in the purported exercise of power under Section 3(2) of the Act of 1980 is an instance of colourable exercise of power for collateral and extraneous purpose, as it is evident that on the one hand despite order passed by the Single Bench in Writ Petition No.19956/2014 HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE W P No. 27216 / 2018 MANISH RAI S/O LAXMAN RAI VS. STATE OF MP & ORS.,
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dated 20/12/2014 the Collector is sitting tight over the appeal pending consideration against disqualifying the petitioner for contesting the elections for six years under the purported exercise of powers under Section 40 of the Adhiniyam of 1993 and on the other hand the impugned detention order has been passed to send him to jail.
This Court in the light of the aforesaid, as the allegations made by the petitioner have not been replied with by the District Magistrate by filing appropriate affidavit, the petitioner was acquitted in most of the criminal cases referred in the report of the Superintendent of Police, is of the opinion that the impugned order passed by the respondent deserves to be set aside and is accordingly hereby set aside. The petitioner shall be released forthwith, if not required in any other case.
With the aforesaid, the present petition stands allowed and disposed of. No order as to costs.
(S. C. SHARMA) (VIRENDER SINGH)
JUDGE JUDGE
KR
Digitally signed by Kamal Rathor
Date: 2019.01.07 16:49:27 +05'30'