Allahabad High Court
Atul Gupta vs State Of U.P. And 3 Others on 22 February, 2016
Bench: Bala Krishna Narayana, Naheed Ara Moonis
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved AFR Court No. - 40 Case :- HABEAS CORPUS WRIT PETITION No. - 69681 of 2015 Petitioner :- Atul Gupta Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Ajay Singh Sengar Counsel for Respondent :- G.A.,A.S.G.I.,K.P.Pathak Hon'ble Bala Krishna Narayana,J.
Hon'ble Naheed Ara Moonis,J.
(Delivered by Hon'ble Naheed Ara Moonis.J) The instant petition has been filed on behalf of the petitioner seeking the relief in the nature of Habeas Corpus directing the respondents to set him at liberty forthwith and also quashing the order dated 18.5.2015 passed by the District Magistrate Jalaun at Orai (respondent no.3) whereby the petitioner has been ordered to be detained in captivity in exercise of power under section 3 of the National Security Act 1980.
The emanation of facts divulged in a short conspectus is that a first information report was registered against one Gaurav vide Case Crime No.3259 of 2014 under sections 363/366 IPC on 31.8.2014 in respect of kidnapping Neetu Shukla, the minor daughter of Rajeev Shukla on 29.8.2014. Another first information report was also lodged on 24.9.2014 by Rajeev Shukla against the petitioner and three others in respect of the incident dated 22.9.2014 vide Case Crime No. 3603 of 2014 under sections 364/363/328 IPC for kidnapping of his two minor daughters namely Neetu Shukkla & Vaishali. After registration of the case, the investigating officer swung into action and on 8.10.2014 the police had recovered the victims and their statements were recorded before the Magistrate under section 164 Cr.P.C. in which they disowned the prosecution story and explicitly stated that they were not kidnapped by the petitioner. They had gone out of their own free volition. Separate charge sheets were submitted in both the cases on 1.11.2014 . The statement of victim Neetu was again recorded under section 164 Cr.P.C. on 18.11.2014. In the meantime on the basis of the initial first information report, two decomposed dead bodies of female were recovered from the Nala Atrakala falling within the territorial jurisdiction of Churkhi . Both the dead bodies were identified by the informant Raju Shukla confirming that these dead bodies are of his daughters Neetu Shukla and Vaishali. After conducting the necessary formalities, both the dead bodies were sent to the mortuary for autopsy. After post-mortem of both the bodies, wrath and indignation of the public exploded against the police authorities on account of inaction and insouciant attitude in discharge of their duties. The public at large could not squash their fury and ire. They aggravated the situation by developing ugly scene causing damage to the public property and also attacking on the police personnel. Both the victims namely Neetu Shukla and Vaishali , the daughters of the complainant were recovered alive by the police personnel. After recovery of both the victims, the Station House Officer moved an application in the court of Chief Judicial Magistrate Jalaun for recording their statements under section 164 Cr.P.C. The statement of both the victims under section 164 Cr.P.C was recorded wherein they did not support the prosecution version rather disowned the prosecution case in toto. The police personnel had not found any offence showing the complicity of the petitioner under section 302 and 201 IPC. The learned Magistrate found that there was gross negligence and dereliction on the part of the police personnel in discharge of their duties hence passed order dated 9.10.2014 for taking appropriate action against the erring police officials for not recovering the actual victims rather substituting two dead female bodies giving tinge of two kidnapped girls. The petitioner applied for bail before the Additional Sessions Judge Jalaun at Orai in both the cases. The learned Additional Sessions Judge rejected both the bail applications. Against the rejection of both the bail applications by the court below, the petitioner applied for bail before High Court being Bail Application nos .15665 of 2015 in Case Crime No. 3259 of 2014 and 15664 of 2015 in Case Crime No. 3603 of 2014. Both the bail applications were allowed on 7.5.2015 by the Hon'ble High Court granting bail to the petitioner on the ground that the medical report does not corroborate the statement of the victim. The victim appears to be consenting party as she had travelled at various places along with her real sister. On the strength of two cases, the applicant was implicated in another case vide Case Crime No. 3931 of 2014 under sections 2/3 U.P.Gangster & Anti-social Activities (Prevention) Act, Police Station Kotwali Orai District Jalaun . The petitioner was also enlarged on bail by order dated 10.6.2015 passed by this Court.
The thrust of argument of Sri Ajay Singh Sengar, the learned counsel for the petitioner is that on the basis of the first information report lodged by Raju Shukla , the father of the victims, two female dead bodies recovered by the police from the Nala Atrakala falling within the territorial jurisdiction of Churkhi. Those dead bodies were identified by the complainant claiming them to be the corpse of his daughters namely Neetu Shukla and Vaishali which caused great infuriation and anguish in the mind of the public at large taking ugly turn of damaging the public property and attacking the police station. In consequence of developing disorderly scene by the public at large, a number of police persons were injured and the public property was also ruined. An F.I.R. was lodged by S.O. Mohit Dwivedi at P.S.Kotwali Orai, as Case Crime No. 3714 of 2014 on 5.10.2014 at 10.45 a.m. against a number of named and unnamed persons ranging about 100 to 150 under sections 147/ 148/ 149/ 307/ 332/ 353/ 341/ 427 IPC read with section 7 Criminal Law Amendment Act. During investigation, the investigating officer Santosh identified seven persons involved in the aforesaid incident. Another first information report was lodged by the Inspector Incharge Kotwali Orai Sri Santosh Kumar Singh on the same day at 11.50 a.m. as case crime no.3715 of 2014 against 400 to 500 unknown persons under sections 147/148/149/307/332/353/341/436 IPC read with section 7 Criminal Law Amendment Act. Brief report was given to the Incharge Police Station unfolding the facts that petitioner along with his associates are in the habit of kidnapping minor girls and also exploiting them by ravishing their modesty and virginity. Case was also registered under the Gangster Act vide Case Crime No.3931 of 2014. In such a grim and horrific situation, it is necessary to keep the petitioner in captivity so as to maintain law and order problem.
The submission of the learned counsel for the petitioner is that the aforesaid report of the Station House Officer Kotwali Orai was forwarded to the Additional Superintendent of Police Jalaun at Orai on 11.5.2015 and on 12.5.2015, the proposal was forwarded to the District Magistrate Jalaun by Superintendent of Police Jalaun . On the basis of the said report, the District Magistrate Jalaun passed the order under section 3 (2) of National Security Act in a very mechanical and pedantic manner directing the petitioner to be put in simple captivity . The order dated 18.5.2015 passed by the District Magistrate Jalaun suffers from material perversity and vulnerability as the District Magistrate has put his signature without examining the material placed before him and also the report which was not submitted correctly by the police officials. The peace and tranquillity was disturbed on account of inaction and callousness on the part of the police officials who recovered two female corpse from the Nala Atrakala falling within the jurisdiction of Police Station Churkhi and got them identified by the informant Raju connecting them with Case Crime No. 3259 of 2014 under sections 363/366 IPC and Case Crime No. 2603 of 2014 under sections 364/363/328 IPC with regard to kidnapping of Neetu Shukla andVaishali for which the petitioner cannot be held responsible as the investigation was not done by the police authorities fairly. It is only when the Chief Judicial Magistrate concerned passed the order for taking action against the erring police officials, the order dated 18.5.2015 has been passed by the District Magistrate Jalaun taking into account the aforesaid first information reports lodged on 5.10.2014 of Case Crime No. 3715 of 2014 under section 147/148/149/307/332/353/436/341 IPC read with section 7 Criminal Law Amendment Act culminating into demonstration made by a melee against the recovery of two female corpse. The unruly mob caused public nuisance by pelting stones on the police personnel taking into hands the law and order and also bursting the anger and ire disrupting peace and tranquillity. The petitioner did not have any role in the said incident thus the petitioner cannot be held answerable for the act of unruly mob.
The District Magistrate has passed the detention order on the subjective satisfaction that in case the petitioner is released on bail, there is every likelihood of causing public nuisance and disturbing law and order . Had the entire materials been placed before the detaining authority that there was no live link with the incidents occurred on 5.10.2014 , the order dated 18.5.2015 would not have come into existence. Merely on the basis of subjective satisfaction of the detaining authority that in all probability,the petitioner would indulge in prejudicial activities, unless there is credible information and cogent reason apparent on record, order of detention cannot validly be passed against him . There is no incriminating material having been used or made the basis for formulating the grounds of detention. The satisfaction must reach on the basis of cogent material that there is a real possibility of the detenue being released on bail would indulge in particular activity if not detained. No order of detention cannot validly be passed against a person merely on the subjective satisfaction of the detaining authority to circumvent enlargement on bail which can be dealt with under the ordinary law. The probability of disrupting the breach of public tranquillity necessitating the detaining authority to pass detention order is in contravention of fundamental right to life and liberty enshrined under Article 21 of the Constitution of India as there is no live link of the incident occurred on 5.10.2014 to persuade the detaining authority to pass the order impugned. The detaining authority has neither been apprised about the medical examinations of the victim and their statements under section 164 Cr.P.C. The public peace and tranquillity was disrupted when the post mortem of two female dead bodies were conducted and on account of inaction, lackadaisical and lethargical attitude of the police officials in tracing out the victim, the petitioner has been subjected to captivity creating a false notion of panic among the public. It is only the police personnel who were accountable for causing public disruption and ruckus. The learned Magistrate has conspicuously failed to record any cogent reason that there was strong and real possibility of the petitioner indulging in prejudicial activities causing snarl in maintenance of public order after being released on bail, hence the detention order is not tenable in the eye of law and deserves to be vitiated.
Learned counsel for the petitioner to buttress his argument has relied upon a catena of decisions delineated hereunder :-
i.Rivadeneyta Ricardo Agustin Vs. Government of the National Capital Territory of Delhi & others 1994 Supp. (1) SCC 597.
ii.Huidrom Konungjao Singh Vs. State of Manipur & others 2012 (7) SCC 181.
iii.Dharmendra Suganchand Chelawat Vs.Union of India (1990) 1 S.C.C.746, iv.Binod Singh Vs. District Magistrate Dhanbad & others (1986) 4, SCC 416.
Per contra Sri Ali Murtaza learned AGA appearing on behalf of opposite parties no. 2, 3 and 4 and Sri K.P. Pathak, learned counsel appearing on behalf of Union of India submitted that normally this Court should not interfere with the subjective satisfaction reached by the detaining authority except in peculiar and extremely limited circumstances. The Court should keep off from substituting its own finding petering out the order of the detaining authority when the grounds of detention are precise, pertinent, proximate and relevant. The detaining authority has perceived that detention of the petitioner with a view to prevent him from indulging in any manner prejudicial to the public order. Such satisfaction is only preventive and not punitive. The subjective satisfaction of the detaining authority is concerned to be of paramount importance with certain relaxation in exercise of his discretion. The order of detention is a precautionary measure based on a reasonable prognosis of the future behaviour of a person resting on his past conduct in the light of the nature of the incidents and the connecting circumstances. The purposes of preventive detention and prosecution are different. The authorities are different and the nature of proceeding is different. . Obviously, the petitioner was already enlarged on bail in Case Crime No. 3259 of 2014 and 3603 of 2014 by this Court by two separate orders dated 7.5.2015 . The petitioner was also enlarged on bail under the Gangster Act vide Case Crime No. 3931 of 2014 by order dated 10.6.2015. The detenue will be tried in a criminal court for the commission of the criminal offences but it will not debar the preventive authority from taking action under the Act as the likelihood of such a person on being released would be indulging in prejudicial activities which will imperil the maintenance of the public order. The detaining authority was conscious of all the past conduct of the petitioner and has passed the order of detention in order to prevent him from indulging in the activities detrimental to the public at large. The cases relied upon by the learned counsel for the petitioner are based on quite different set of facts and circumstances of the case which do not have any applicability with the present set of facts. There is no illegality or vulnerability in the order impugned . The detention order has been passed following the provisions of law as the same was already approved by the competent authority. The writ petition sans merits and may be dismissed and the detention order may be affirmed .
Learned AGA to buttress his argument has also placed reliance upon a gamut of decisions delineated hereto below i.Huidrom Konungjao Vs. State of Manipur & others 2012 Law Suit (SC) 317 ii.Baby Devassy Chully alias Bobby Vs. Union of India & others (2013) 4,SCC 531 iii.Kareshpal alias Billu Vs. District Magistrate Meerut & others 2002(1) A.Cr.R.573.
We have considered the rival submission advanced by the learned counsel for the parties. Indisputably in those cases which were registered against the petitioner the charge sheet was submitted against him. In all the cases referred in the foregoing paragraphs ,the petitioner was already admitted to bail .In our opinion, detention order can be passed to prevent the detenue from engaging in similar activity if set at liberty observing the following norms :
1.if the preventive authority passing the order is conscious of the fact that the detenue is in jail.
2.If the preventive authority has reason to believe on the basis of reliable materials placed before him.
i) There is a real possibility of his being released on bail.
ii) If the detenue is released on bail, he would indulge in all probability in similar activities creating disruptive situation prejudicial to the society.
3.In case it is felt necessary to detain him or prevent him from doing such activities causing jeopardy to the security and maintenance of the public order, the authority may pass the order after recording his satisfaction in this behalf.
From the prolix discussion of the case in hand, it emerges out that peace and the tranquillity was disrupted on account of insouciant and casual approach of the police officials who did not discharge their duties devotedly shouldering their responsibility against whom order was passed by the Chief Judicial Magistrate on 9.10.2014 for taking appropriate action . Merely because the petitioner was granted bail, proper course open to the authority is to challenge the order in the proper forum and not to pre-empt or circumvent the orders granting the bail to the petitioner. The cases which are essentially criminal in nature can be dealt with under the ordinary law. Prosecution in a criminal court is conducted by a trial and the proof of guilt is based on the basis of legal evidence and the standard of proof is beyond reasonable doubt whereas preventive detention is an action to prevent the act justifying the satisfaction that the detenue would indulge in similar activities if set at liberty putting in jeopardy the security and safety of the society. In the instant case all the materials were not placed before the detaining authority prior to passing the order of detention curtailing liberty of the petitioner. There is no live link with the incident dated 5.10.2014 and the detention order dated 18.5.2015. The procedural safeguards were also not strictly followed by the detaining authority. Peace and tranquillity as well as law and order was disturbed due to casual approach of the police officials who had recovered two female corpses to be the victim of cases registered against the petitioner. The agitated melee had broken the law by developing unruly and disruptive scene for which the petitioner cannot be held responsible for causing any sort of annoyance and breach in the normal tempo of life.
Having regard to the overall facts and circumstances and also the catena of authorities cited by the learned counsel for the parties,we hold that the detaining authority was not conscious of all the relevant aspects of the case and has passed the order impugned merely on the subjective satisfaction sensing the activities of the petitioner to be prejudicial and deleterious to the society if not detained. He has not recorded satisfaction in the order impugned that there is all probability of imminent danger and peril to the public at large in case of being released on bail which aberration on the part of the detaining authority vitiates the impugned order.
In the result the writ petition succeeds and is accordingly allowed. The impugned order dated 18.5.2015 passed by the respondent no.3 District Magistrate Jalaun at Orai contained in Annexure-5 to the writ petition is hereby quashed.
Let the petitioner Atul Gupta be released from jail forthwith, if he is not wanted in any other case.
No order as to costs.
Order Date :- 22.02.2016.
Faridul