Deepu Alias Kuldeep Yadav vs Union Of India And 5 Others on 6 November, 2017

[Cites 16, Cited by 3]

Allahabad High Court

Deepu Alias Kuldeep Yadav vs Union Of India And 5 Others on 6 November, 2017

(Delivered by Hon'ble J.J. Munir, J.) This is a petition framed as one for a writ of Habeas Corpus seeking to challenge the continued detention of the petitioner Deepu @ Kuldeep Yadav under an order dated 11.02.2017 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 11.02.2017 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 a writ, order or direction in the nature of certiorari quashing the detention order dated 11.02.2017 passed by the respondent no.3 vide letter no. 743/JA-NSA/2017, by which an order has been passed by exercising power under Section 3(3) of the National Security Act, 1980, by which the petitioner has been directed to be detained under Section 3(2) of The National Security Act, 1980."

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. It may be mentioned here that a perusal of the first information report dated 26.01.2017 does not nominate the petitioner as one of the accused. He was connected to the crime during the course of investigation being identified as one of the mob of unnamed 35-40 attackers who had allegedly indulged in mayhem.

The detention order which is one dated 11.02.2017 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 hereinbefore referred. The detention order was accompanied by grounds of detention also dated 11.02.2017 that is a document running into 12 pages carrying 43 documents as annexures. The grounds of detention are annexed to the writ petition as Annexure-6.

It appears from a perusal of the record that behind the bureau of the sponsoring authority the entire exercise of recommendation was carried out in a single day; the Detaining Authority too proceeded to pass the detention order on the same day. All this happened from lowest in the rank of the sponsoring authority to the bureau of the Detaining Authority on 11.02.2017. The recommendation to detain under the Act was made by the Inspector, Incharge, Bharthana through his report dated 11.02.2017 submitted to the Senior Superintendent of Police through proper channel. The channel took the report through the Circle Officer, Bharthana who made his recommendation in a document carrying two leaves also dated 11.02.2017. The Additional Superintendent of Police, Etawah in turn made his recommendations running into two pages also dated 11.02.2017. The cyclostyled recommendation of all in the hierarchy of sponsoring authority finally landed in the hands of the Senior Superintendent of Police who reiterated the same to the District Magistrate, Etawah in the same words as he had received the recommendation through his memo also dated 11.02.2017. The District Magistrate as already noticed, proceeded to clamp the detention order dated 11.02.2017 during course of that day supported by grounds of the same date to which allusion has already been made hereinbefore.

This writ petition was filed on 29.05.2017 before the registry of this Court and came up for admission on 31.05.2017. The following order was recorded on 31.05.2017 by a Division Bench of this Court:

"Heard Sri Ronak Chaturvedi learned counsel for the petitioner.

Notice on behalf of the respondent no. 1 has been accepted by Sri Gautam Chaudhary whereas learned AGA has appeared for the respondent nos. 2 to 6. They pray for and are allowed four weeks' time to file counter affidavit. Rejoinder affidavit, if any, may be filed within a week thereafter.

List this petition for admission before the appropriate Court on 6.7.2017."

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 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 dated 04.08.2017. The next return is the one filed on behalf of the Detaining Authority. It is 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 passing the detention order. There is then a counter affidavit filed on behalf of the State of U.P. sworn on 12.07.2017 but formally completed on 24.08.2017 by the learned Additional Government Advocate and a copy of this counter affidavit has been served upon the learned counsel for the petitioner on 08.08.2017. This affidavit is also available on record. There is a supplementary counter affidavit on behalf of the State of U.P. sworn on 29.08.2017 by one Om Prakash Pandey, posted at Under Secretary, Home (Confidential Department), U.P. Civil Secretariat, Lucknow, a copy of which was served upon learned counsel for the petitioner on 01.09.2017. This affidavit is also available on record. The supplementary affidavits filed on behalf of State Government bring on record orders extending the period of detention and confirming the same.

Three rejoinder affidavits have been filed by the petitioner one being in reply to the counter affidavit on behalf of the Union of India, the other being in reply to the counter affidavit on behalf of the State of U.P. and the third being in reply to the counter affidavit on behalf of the Detaining Authority. These rejoinder affidavits are also on record.

We have heard Sri Ronak Chaturvedi, learned counsel for the petitioner in support of the writ petition, Sri Gautam Chaudhary, learned Senior Panel counsel appearing for the Union of India and the learned Additional Government Advocate for respondent nos. 2 to 6.

Sri Ronak Chaturvedi has assailed the detention order on no less than five counts which we may summarize as under:

"(i) 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 is a student of the intermediate course.

(ii) The issue of public order, without prejudice, that was alive at the time of the incident due to the then forthcoming State Assembly election lost consequence with passage of time. Therefore, there was no material before the State Government, on the basis of which they could arrive at a valid subjective satisfaction to extend the period of detention.

(iii) The first information report nominates five accused and a mob of no less than 35-40 unknown offenders. The authorities have invoked the provisions of the Act against the petitioner who is not a nominated accused whereas they have not done so against all other accused except one more on the basis of no differentiating material that could be taken into consideration by the Detaining Authority to form his subjective satisfaction.

(iv) 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.

(v) The representation to the Union of India was made on behalf of the petitioner on 26.02.2017 through the Jail Superintendent that was received in the office of the Central Government on 01.03.2017. It reached the concerned Secretary on 07.03.2017. The concerned Secretary to the Central Government on 08.03.2017 sought comments from the State Authorities. Information in response was furnished by the State to the Central Government on 24.04.2017. The case was finally considered by the Central Government on 27.04.2017 and the representation came to be rejected on 28.04.2017. Rejection of the petitioner's representation by the Central Government was communicated to the petitioner through the Jail Superintendent on 02.05.2017. The delay, therefore, is unexplained and vitiates the detention.

Having heard learned counsel for the parties we deem it proper to consider the first and the fourth of the five points made by Sri Ronak Chaturvedi to assail the detention order before turning to other points, if at all.

Taking up the issue of non-application of mind by the Detaining Authority to relevant material that would enable him to form good subjective satisfaction that there was a real likelihood of the petitioner being released on bail and that once released, he would again indulge in conduct prejudicial to the maintenance of public order, we find from a reading of the grounds of detention, particularly para 16 thereof that the Detaining Authority has merely recited in a mechanical manner that the petitioner has filed an application for bail to the Sessions Judge on 08.02.2017, where the date fixed is 20.02.2017 and that he was satisfied that there are good chances of the petitioner being released on bail in the near future and that once released on bail the petitioner would repeat such offences that would subvert maintenance of public order. In recording the aforesaid subjective satisfaction the Detaining Authority has not at all shown that he has reached the same on the basis of cogent material−cogent material to believe that there was a real possibility of the petitioner being released on bail, and, further cogent material to believe that on being released he would indulge in activities which would be prejudicial to public order. We find no such satisfaction recorded by the Detaining Authority in the grounds of detention. The satisfaction recorded is very mechanical. It is nothing more than a repetition of the sponsoring authority's recommendation, bereft of application of mind to the two relevant factors essential to the exercise of power under Section 3(2) of the Act.

What further needs to be noticed concerning the point of assail in hand is the specific averment in paragraphs 30 and 40 of the writ petition insofar as the satisfaction of the Detaining Authority as to the real possibility of the petitioner being released on bail. Paragraphs 39 and 40 of the writ petition run to the following effect:

"39. That the detaining authority has not recorded any satisfaction in the impugned order that there was a real possibility of the petitioner, who was already in judicial custody being released on bail.

40. That the District Magistrate, Etawah has passed the impugned order in a routine manner on the report submitted to him by the police authorities."

Paragraphs 39 and 40 of the writ petition have been answered by the Detaining Authority in an omnibus manner vide paragraph 31 of his counter affidavit that proceeds to answer paragraphs 38, 39, 40 and 41 of the writ petition together and reads thus:

"31. That the contents of paragraph nos. 38, 39, 40 and 41 of the writ petition are denied being incorrectly stated. In reply thereto, it is stated that the act of the petitioner developed awful and terrible scene and had demolished the public order in the whole locality and ultimately, additional police forces were deployed to control the situation. It was an organized act, which was prejudicial to the maintenance of public order. Hence after being subjectively satisfied; the deponent took preventive action against the petitioner under section 3(2) of the National Security Act on 11.02.2017. The said detention order dated 11.02.2017 alongwith grounds of the detention with all relevant materials was served to the petitioner through the jail authorities on the same day i.e. on 11.02.2017, as he was in judicial custody at District Jail, Etawah to afford him the earliest opportunity for making an effective representation. Moreover, when the detention order was served, the petitioner was informed not only regarding the grounds of the detention but also regarding the right of the representation to the different authorities including the District Magistrate, Etawah (deponent). 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 from 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 and there is no violation of any fundamental right as provided in Constitution of India to every citizen of this country."

A conjoint perusal of paragraphs 39 and 40 of the writ petition and paragraph 31 of the counter affidavit put in by the Detaining Authority leaves us in no manner of doubt that the Detaining Authority had no cogent material before him to reach a valid subjective satisfaction that there was a real possibility of the petitioner being released on bail.

Again, the petitioner under the same head of challenge has pleaded in paragraphs 31 to 34 of the writ petition to the effect that he is a student pursuing the intermediate course with no criminal history; that he is a law abiding citizen and has got the highest regard and respect for the police and the administration; that he is not connected with any political party; and, that at the time of the alleged incident the petitioner was present at the Government Inter College, Etawah participating in the Republic Day parade. These specific averments in paragraphs nos. 31 to 34 of the writ petition have been answered by the Detaining Authority vide paragraph nos. 25, 26 and 27 of the counter affidavit by the Detaining Authority which read to the following effect:

"25. That the contents of paragrpahs nos. 31 and 32 of the writ petition are denied being incorrectly stated. In reply thereto, it is stated that the petitioner is the person of criminal nature and 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) Gangster Act, Police Station Bharthana, District Etawah. ii. Case crime no. 129 of 2017, under Section 3(2) of National Security Act, 1980, 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 alongwith other accused persons, he is not entitled to get any relief by this Hon'ble Court.

26. That the contents of paragraph no.33 of the writ petition need no comments.

27. That the contents of paragraph no.34 of the writ petition are denied being incorrectly stated. In reply thereto, it is stated that the first information report dated 26.01.2017 was registered against Shivendra Yadav, Gajendra Yadav, Sanju Yadav @ Sanjay, Baba, Pravesh and other unknown 35-40 accused persons and after due investigation, the name of the petitioner, namely, Deepu @ Kuldeep Yadav was came into light, therefore, 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."

The mention of the criminal history of two cases in paragraph 25 of the counter affidavit aforesaid does not find mention at all in the grounds of detention so as to show that it was material that was considered by the Detaining Authority to form his subjective satisfaction that the petitioner once released on bail would again indulge in conduct subversive to the maintenance of public order. It is trite that law does not permit the Authority to supplement by affidavit that what is not mentioned in the order (that would include the ground of detention here) which is subject matter of challenge. Moreover, regarding the two cases referred to in paragraph 25 of the counter affidavit of the Detaining Authority it has been rightly answered by the petitioner in paragraph 11 of his rejoinder saying that case crime no. 127 of 2017, under Section 3(1) of the Gangster Act is a case that has been slapped upon the petitioner only on the basis of the crime that had led to passing of the detention order. It has been also rightly said that mention of the other case bearing Case Crime No. 129 of 2017, under Section 3(2) of the National Security Act is misconceived inasmuch as there can be no crime registered under the Act against a person which only involves preventive detention. Thus reference to the purported criminal history of two cases against the petitioner is no criminal history at all. It is contemporaneous implication relating to the same incident that has led to the detention order.

We are on this state of facts, material and pleadings also satisfied on the second limb of the contention that there was no material before the Detaining Authority, on the basis of which a valid subjective satisfaction could be formed that once released, the petitioner would again indulge in activities that would be prejudicial to the maintenance of public order. Thus, indubitably the subjective satisfaction of the Detaining Authority necessary to the exercise of power under Section 3(2) of the Act is vitiated on account of non-application of mind to relevant material.

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."

Likewise, there is an echo of the same principle 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."

The facts before us in this case as already noticed hereinbefore lead us to conclude that subjective satisfaction of the Detaining Authority on the fact 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.

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.

Though we have not turned our attention to the point made by Sri Chaturvedi regarding delay in the disposal of his representation by various authorities of the State Government and the Central Government for reason that the petition is liable to succeed on the first and the fourth points urged by him, we feel it to be our duty to place on record that the Union of India in their counter affidavit have well explained for their part the time spent in disposal of the petitioner's representation. We place on record our appreciation of the fairness and ability with which learned counsel for the petitioner Sri Ronak Chaturvedi has put forward the petitioner's case and also no less good, fair and able assistance rendered to the Court by Sri Gautam Chaudhari, learned Senior Standing Counsel for the Union of India.

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 11.02.2017 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 :- 06.11.2017 Imroz

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