Rajasthan High Court - Jodhpur
Smt. Vinod Kanwar vs State Of Rajasthan & Ors on 11 May, 2017
Author: Gopal Krishan Vyas
Bench: Gopal Krishan Vyas, G.R. Moolchandani
HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
D.B. Habeas Corpus No. 12 / 2017
Smt. Vinod Kanwar W/o Kishan Singh,, Aged About 34 Years, By
Caste Rajput, Resident of Bhakharwala, Borunda District Jodhpur.
At Present Residing At Plot No. 521, B.J.S. Colony, P.S.
Mahamandir, Jodhpur.
----Petitioner
Versus
1. The State of Rajasthan Through Secretary,, Department of
Home, Government of Rajasthan, Secretariat, Jaipur.
2. The District Magistrate,, Jodhpur
3. The Commissioner of Police,, Jodhpur
4. The Dy. Commissioner of Police (East),, Jodhpur
5. Station House Officer,, Police Station Mahamandir, Jodhpur.
----Respondents
_____________________________________________________
For Petitioner(s) : Mr. Naresh Chhangani
For Respondent(s) : Mr. S.K. Vyas, AAG
_____________________________________________________
HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS
HON'BLE MR. JUSTICE G.R. MOOLCHANDANI
Judgment
[Per Hon'ble Mr. Justice Gopal Krishan Vyas]
Date of Judgment: 11th May, 2017
In this habeas corpus petition filed by the petitioner Smt.
Vinod Kanwar wife of detenu Kishan Singh, the order dated
19.11.2016 (Annex.2) passed by the Commissioner of Police,
Jodhpur (respondent no.3) and order dated 23/25.11.2016
(2 of 13)
[HC-12/2017]
(Annex.3) and order dated 27/28.12.2016 (Annex.6) passed by
the State of Rajasthan is under challenge. The petitioner has
prayed to quash the impugned orders passed against the detenue
Kishan Singh because it is violative of Articles 19, 21 and 226 of
the Constitution of India.
As per facts of the case, the Dy. Commissioner of Police
(East), Jodhpur submitted a report before Police Commissioner,
Jodhpur, giving details of 22 criminal cases and disclosed the fact
that a complaint under Section 110 of the Cr.P.C. has been filed
against the detenue Kishan Singh for taking action for detention
under the provisions of Rajasthan Prevention of Anti-Social
Activities Act, 2006 (hereinafter referred to as the Act of 2006 for
short).
The Police Commissioner, Jodhpur after considering details
of the cases reported by the Dy. Commissioner of Police (East),
Jodhpur passed an order on 19.11.2016 whereby the husband of
the petitioner, Kishan Singh was arrested and sent in the custody.
The State Government approved the said order while observing
that there are sufficient material to take such action under
Section 3 of the Act of 2006. The approval order was passed by
the State Government on 23/25.11.2016, the copy of the order
was served upon the detenue Kishan Singh alongwith notice
(Annex.4) dated 2.12.2016 whereby an opportunity was granted
to the detenue Kishan Singh to appear before the advisory board
on 7.12.2016 at Jaipur and submit reply against the order of
detention. The detenue Kishan Singh petitioner filed a
representation (Annex.5) to the effect that there was no sufficient
(3 of 13)
[HC-12/2017]
material to detain him or to declare him as "dangerous person" so
as to take action under Section 3 of the Act of 2006.
The Advisory Board after providing an opportunity of hearing
to the detenue Kishan Singh, confirmed the order passed by the
Police Commissioner, Jodhpur and, thereafter, the State
Government issued final order on 27/28.12.2016of detention for
one year w.e.f. 19.11.2016 to 18.11.2017, which is placed on
record as Annex.6.
Learned counsel for the petitioner vehemently argued that
detention of the petitioner‟s husband Kishan Singh is ex-facie
illegal because it has been passed without application of mind
upon baseless, false complaint submitted by the Dy.
Commissioner of Police (East), Jodhpur, therefore, all the orders
impugned may kindly be quashed. Learned counsel for the
petitioner invited our attention towards the fact that in the
representation filed by the detenue Kishan Singh, explanation was
given against 22 cases registered against him, so also, it wass
brought to the notice of the advisory board that out of 22 cases, in
six cases, the detenue has already been acquitted after trial and
remaining cases are false because he was falsely implicated in
those cases.
Learned counsel for the petitioner further submitted that the
complaint was filed by the respondent no.3 on 19.11.2016 and on
the same day, the Commissioner of Police, Jodhpur passed an
order under Section 3 of the Ac tof 2006 for arrest of the detenue
Kishan Singh. Meaning thereby, the Commissioner of Police,
Jodhpur without application of mind passed an order for detention
(4 of 13)
[HC-12/2017]
against the detenue Kishan Singh without even applying its mind
towards the facts stated in the complaint filed by the respondent
no.3. It is also submitted that under Section 12 of the Act of 2006
there is procedure to place the matter before the advisory board
and it is further provided that advisory board shall after
considering the material placed before it and after calling for such
further information as it may deemed necessary from the State
Government or from the person called for the purpose thorugh
State Government or from the detenue and if, in any particular
case the advisory board considers it essential so as to do or if the
detenue deserves to be heard, after hearing the detenue in
person, submit its report to the State Government within 15 days
from the date of detention of the detenue. The Advisory Board
passed an order on 23/25.11.2016 in mechanical manner that too
without considering the grounds raised by the detenue, therefore,
the detention order dated 27/28.12.2016 is bad in the eyes of law
and liable to be quashed.
The crux of the argument of learned counsel for the
petitioner is that order of detention has been passed without
any sufficient material and without providing proper opportunity of
hearing and considering the grounds raised by the detenue inhis
representation, therefore, the action of the respondents amounts
to violation of Article 22(5) of the Constitution of India, therefore,
the order impugned may kindly be quashed. Learned counsel for
the petitioner submits that in case of Rupnarayan Vs. State of
Rajasthan & Ors (DB Habeas Corpus Petition No.261/2014), the
Jaipur Bench of this Court passed an order in which it is held that
(5 of 13)
[HC-12/2017]
authorities are required to apply its mind before passing detention
order and held that if order has been passed without application of
mind then it is not sustainable in law because by such order, the
respondents are restricting freedom of the citizen. On the basis
of above arguments, it is submitted that all the orders impugned
in this habeas corpus petition may kindly be quashed.
In reply, it is submitted by the learned AAG that all the
orders impugned in this habeas corpus petition are in consonance
with law because there is jurisdiction left with the Police
Commissioner under Section 3(1) of the Act of 2006 to exercise
such powers if a person regularly remained engaged in criminal
activities for years together and if he causes eminent danger to
the public order. In this case, the respondent no.3 submitted a
complaint on 19.11.2016 in which it is brought to the notice of
Police Commissioner, Jodhpur that since 2005 to 2016, 22 cases
were registered against the detenue Kishan Singh S/o Sumer
Singh, resident of village Bhakharwala, Police Station Borunda and
most of the cases relates to serious offences of 307, 395 IPC and
under Section 8/15 of the NDPS Act, so also, Arms Act and other
offences of IPC. Therefore, while considering the definition of
"dangerous person", enumerated in the Act of 2006 it is felt
necessary by the Police Commissioner, Jodhpur to take action
against the detenue Kishan Singh under Section 3 of the Act of
2006. While inviting attention towards the fact that not only 22
cases were registered against the detenue Kishan Singh, a
complaint under Section 110 Cr.P.C. has also been filed on
15.1.2016 against the petitioner‟s husband detenue Kishan Singh
(6 of 13)
[HC-12/2017]
in which bailable warrant has been issued to secure his presence.
It is also submitted that a history-sheet was also opened on
13.1.2016 against the detenue Kishan Singh for the reason that
22 cases are registered against him since 2005 for various cses
for offences of causing physical assaults with deadly weapons,
threatening to face consequences, causing massive injuries,
attacks on government employees, kidnapping and administering
threatening for ransom keeping illgal arms and ammunitions,
fleeing from the police custody remained engaged in smuggling of
narcotics drugs were registered and due to criminal activities of
the detenue Kishan Singh eminent danger was created in public,
therefore, after recording satisfaction, the action was taken by the
Police Commissioner, Jodhpur to detain the detenue Kishan Singh
which is in consonance with law. It is also submitted that out of
22 cases registered against the detenue Kishan Singh in five cases
he was acquitted either after trial or on compromise, but still 17
cases are pending against him and as per general law it is not
possible to restrict his criminal activities, therefore, Police
Commissioner while treating the detenue Kishan Singh as
"dangerous person" as per definition given in the Act of 2006,
passed an order for detention which is subsequently approved by
the State Government and advisory board of three sitting judges
of the Rajasthan High Court, therefore, no interference is required
in the petition.
Learned AAG further argued that under Section 2(g) of the
Act of 2006 there is definition of "habitual", which provides that
with all its grammatical variations, includes acts or omissions
(7 of 13)
[HC-12/2017]
committed repeatedly, persistently and frequently having a thread
of continuity stringing together similar repetitive acts or omission
but shall not include isolated, individual and dissimilar acts or
omissions. Therefore, as per material available on record, the
detenue Kishan Singh falls under the definition of "dangerous
person" so also habitual provided in the Act of 2006, therefore,
for keeping peace in the city, the action has been taken to detain
him for one year under Section 3 of the Act of 2006 in which there
is no illegality, therefore, the instant writ petition may kindly be
dismissed.
In the rejoinder, an explanation has been submitted by the
petitioner so as to prove that all the cases registered against him
are false and in order to prove the said facts certain documents
are also annexed with the rejoinder.
After hearing learned counsel for the parties, first of all, we
have perused the list of cases submitted by the respondent no.3
before Police Commissioner, Jodhpur which are said to be
registered against the detenue Kishan Singh, which reads as
under:
fd'kuflag iq= Jh lqesjflag jktiwr mez 35 lky fuoklh Hkk[kjokyk ¼jkofu;kuk½ xkao]
Fkkuk ckS:Unk tks/kiqj] gky IykV u- 521 U;w chts,l dksyksuh tks/kiqj dk vkijkf/kd
fjdkMZ
Fkkuk dksVZ dsl
¼tgka dh fLFkfr
Ø- rkjh[k vfHk;ks U;k;ky; o vkxkeh
/kkjk urhtk dksVZ ist ua-
la- dk;eh x ntZ dk uke rkjh[k
fnukad
gqvk
gks½ fnukad
U;k;ky;
341]323]427 mn;eaf 87/ vkfFkZd 20.12.201
1 162 26.03.2005
08.04.2005
83/15 iSf.Mx Vªk;y 6
01-33
Hkknl nj vijk/k
tks/kiqj
xzke
jkthukek
147]341]323 egkeafn 202/ U;k;ky;
2 267 29.05.2005
23.08.2005
88/13 fnukad 30-07- - 34-47
Hkknl j e.Mksj
2015
tks/kiqj
147]148]149]4 egkeafn 142/ ,-lh-,e-,e- 09.12.201
3 499 10.09.2005
20.05.2006
05/15 iSf.Mx Vªk;y 6
48-34
52]436]323]30 j la[;k 3
(8 of 13)
[HC-12/2017]
7 Hkknl o tks/kiqj
3@27 vkElZ
,DV
327]323]336 egkeafn 124/ ,lh,e,e
4 154 18.04.2006
29.04.2006
305/16 - 95-112
Hkknl j 03 tks/kiqj 06-02-2013
341]147]149]4
27 Hkknl o Mkafx;k 121/ lhts,e 28.11.201
5 74 23.05.2010
07.12.2011
139/14 iSf.Mx Vªk;y 6
113-133
3ihMhihih okl tks/kiqj
,DV
147]148]149]3
32]336]353]42
7 Hkknl o
Mkafx;k 122/ lhts,e 06.02.201
6 75 23.05.2010 3ihMhihih 07.12.2011
208/14 iSf.Mx Vªk;y 7
134-165
okl ftyk
,DV o 8ch
jktekxZ vf/k-
397]353]332]1 Mh-ts-
Mkafx;k 47ch/ 25.11.201
7 38 25.06.2010 48]149]224]22 17.01.2011
33/14 ckyksrjk iSf.Mx Vªk;y 6
166-206
okl
5 Hkknl ckM+esj
341]323]379 e.Myh 102/ xzke U;k;k-
8 138 31.08.2010
25.05.2011
1010/12 207-220
Hkknl ckM+esj e.Mksj 27-11-2012
143]352]427 Mkafx;k 117/ lhts,e
9 139 31.08.2010
15.12.2010
94/11 221-237
Hkknl okl tks/kiqj 27-02-2013
8@15
,uMhih,l
,DV o ,uMhih,l
Mkafx;k 43/ 25.11.201
10 217 04.10.2010 3]4@25 vkElZ 30.03.2011
26/11 dksVZ iSf.Mx Vªk;y 6
238-263
okl
,DV o /kkjk tks/kiqj
279]337]420]
Hkknl
143]341]323]3 526/ ,lh,e,e iSf.Mx Vªk;y 16.01.201
11 563 01.11.2013 e.Mksj 15.12.2013
50/14 7
264-286
25] Hkknl 03 tks/kiqj
307]332]353 iSf.Mx Vªk;y
Hkknl o egkeafn 33/ lh,e,e 16.01.201
12 174 17.12.2013
21.03.2014
499/14 7
287-304
3@25 vkElZ j tksa/kiqj
,DV
3]7@25 vkElZ ,lh,e,e iSf.Mx Vªk;y
5/ 22.11.201
13 173 26.12.2013 ,DV o 5@9ch cukM+ 28.02.2014
99/14 ua-01 6
305-324
foLQks-vf/k- tks/kiqj
307]452]341]1 iSf.Mx Vªk;y
Mkafx;k 390/ ,Mhts ua- 1 15.12.201
14 154 16.04.2014 47]148]149 27.11.2014
14/15 6
325-352
okl tks/kiqj
Hkknl
jkthukek
egkeafn 255/ ,lh,e,e 3
15 149 04.04.2015 341]323 Hkknl 30.06.2015
416/15 fnukad 12-08- 353-362
j tks/kiqj
2016
395]365]323]3 iSf.Mx Vªk;y
egkeafn 197/ Mh-ts 30.01.201
16 238 11.06.2015 25]427]148]14 24.08.2015
40/14 7
363-398
j tkyksj
9 Hkknl
dksrok iSf.Mx Vªk;y
3@25 vkElZ 92/ ts,e 2 08.12.201
17 120 01.07.2015 y 28.08.2015
410/16 6
399-412
,DV ikyh
tkyksj
332] 353 iSf.Mx Vªk;y
jksgV 35/ lhts,e 07.12.201
18 356 28.09.2015 324@34 09.03.2016
236/16 6
413-4
ikyh tks/kiqj
Hkknl
dfeV iSf.Mx Vªk;y
307]440]147]1
48]149]379]45 U;k;ky;
8]427 Hkknl o ,llh
izrkiu 129/ 16.12.201
19 18 12.01.2016
16.05.2016
175/16 ,lVh 6
431-4
3 ¼2½¼V,½ xj
¼vR;kpkj
,llh ,lVh fuokj.k½
,DV izdj.k
tks/kiqj
143] 427 mn;eaf 323/ ,e-,e- iSf.Mx Vªk;y 02.12.201
20 30 12.01.2016
23.08.2016
331/16 6
451-4
Hkknl nj 03 tks/kiqj
308]143]341]3 18/ Mh-ts ftyk iSf.Mx Vªk;y 21.01.201
21 07 15.01.2016 cks:Unk 12.04.2016
56/16 7
465-4
23]149 Hkknl tks/kiqj
izrkiu 48/ ,lhts,e ua- iSf.Mx Vªk;y 01.12.201
22 81 19.02.2016 224 Hkknl 29.02.2016
112/16 6
484-4
xj 02 tks/kiqj
Ø- bLrxklk
/kkjk Fkkuk ist ua-
la-
U;k;ky; lgk;d iqfyl vk;qDr ¼eq[;ky;½ ,oa
-
01/ 01-
1 110 nizla- egkeafnj 500-51
15.01.2016 -11-2016
fu;r gSA tekurh okj.V xSj lk;y vius ldwur ls
(9 of 13)
[HC-12/2017]
Upon perusal of the aforesaid cases, it emerges from the facts that case no.1,2 and 3 were registered against the petitioner in the year 2005, out of these three cases, the case no.2 was registered on 29.5.2005 at Police Station Mahamandir under Sections 147, 341 and 323 IPC in which he was discharged on the basis of compromise but other two cases are still pending from last 12 years. In case registered on 18.4.2006 registered at Police Station Mahamandir for the offences under Sections 327, 323 and 336 IPC, the petitioner was acquitted from the charges levelled against him by the ACMM No.3,Jodpur vide judgment dated 6.2.2013. It appears from the facts that from 2005 to 2010 in five years only one case was registered against the detenue Kishan Singh in which he was acquitted from the charges levelled against him. In the year 2010 cases nos.5 to 98 were registered against the detenue Kishan Singh and out of those six cases in two cases mentioned at S.No.8 and 9, the detenue Kishan Singh was acquitted by the competent court.
In the year 2011-12 no case was registered against the detenue Kishan Singh and, thereaer, on 1.11.2013 FIR was registered against the detenue Kishan Singh under Section 143, 341, 323, 325 IPC and in the month of Dec., two cases were registered against him for the offences under Sections 307, 332, 353, IPC and under Sections 3/25, 3, 7/35 of the Arms Act at Police Station Banad, Jodhpur. In the year 2014 only one case was registered against the detenue Kishan Singh under Section 307, 452, 3412, 147, 148 and 149 IPC which is said to be pending. In the year 2015, three cases were registered. The first (10 of 13) [HC-12/2017] case was registered on 6.4.2015 under Section 341 and 323 IPC. Second case was registered on 11.6.2015 for the offences under Sections 395, 365, 323, 325, 427, 148 and 149 IPC but according to the detenue Kishan Singh, no charge was farmed against him for said offences. Third case was registered on 1.7.2015 for the offence under Section 3/25 of the Arms Act. In the month of Jan., 2016 three cases were registered against the detenue Kishan Singh at Police Station Partapnagar, Udimandir and Bordunda on 12.1.2016 and 15.1.2016 and all these cases are pending.
Another case was registered against detenue Kishan Singh under Section 224 IPC on 19.2.2016 at Police Station Partapnagar which is also pending against him. Admittedly from 19.2.2016 to the date of passing order on 19.11.2016 no case was registered against the detenue Kishan Singh.
It is admitted fact of the case that in none of the case registered against the detenue Kishan Singh he was convicted, more so, in some cases either after trial or on compromise, he was acquitted by the trial court. It is also obvious that most of the cases were registered against the detenue Kishan Singh for the offences triable by magistrate. Only in six cases, the detenue Kishan Singh is facing trial before the District & Sessions Judge or Special Judge, Jodhpur but fact remains that in none of the case, he was convicted for any serious offence. We have also perused the FIRs submitted before us for perusal, upon which action has been taken. In our opinion, at the time of passing order of detention, it was incumbent upon the Dy. Commissioner of Police to apply its mind upon seriousness of the case and the fact (11 of 13) [HC-12/2017] that in the year 2005, three cases were registered against the detenue Kishan Singh and in between five years from 2005 to 2010 only one case was registered in the year 2006 and in that case, the detenue Kishan Singh has already been acquitted from the charges after trial.
In the year 2016, five cases were registered against the detenue Kishan Singh, thereafter, in the year 2011-12 no case was registered against him for committing any offence. Similarly, in the year 2013, three cases were registered. In the year 2014 only one case was registered against the detenue Kishan Singh but in all cases, detenue Kishan Singh was released on bail by the trial court. We have perused the order of advisory board also coupled with the cases registered against the detenue Kishan Singh. We have also perused the definition of "dangerous person"
enumerated in the Act of 2006, which is as under:
"(c) 'dangerous person' means a person, who either by himself or as member or leader of a gang, habitually commits, or a attempts to commit or abets the commission of any of the offences punishable under Chapter XVI or Chapter XVII of the Indian Penal Code, 1860 (Central Act No.45 of 1860) or any of the offences publishable under Chapter V of the Arms Act, 1959 (Central Act No.54 of 1959) or any of the offences punishable under first proviso to sub-sec. (1), and sub-sec. (1-A) of Sec. 51 of the Wild Life (Protection) Act, 1972 (Central Act No.53 of 1972) or any offence punishable under sec. 67 of the Information Technology Act, 2000 (Central Act No.21 of 2000).
It is true that aforesaid definition is given to treat a person as "dangerous person" but at the same time, we cannot lose sight of the fact that at the time of treating any citizen as "dangerous person" nature of the cases is required to be seen, effecting the (12 of 13) [HC-12/2017] public order adversely. In the aforesaid background, we have perused the FIRs, registered against the detenue Kishan Singh since 2005 to the month of Jan., 2016. In our opinion, in all the cases, which is triable by Sessions Court detenue Kishan Singh has already been released on bail. It is also admitted fact that since 2005 to 2010 only one case was registered against the detenue at Police Station Mahamandir on 11.4.2016 and in that case also he was acquitted after trial by the ACMM No.3, Jodhpur. In view of above, we are of the opinion that detenue Kishan Singh cannot be treated as "habitual" or "dangerous person" on the basis of material available on record because registration of the FIR cannot be treated sufficient to conclude that detenue Kishan Singh is „dangerous person‟ because detenue has not been convicted till today. After considering the fact that in none of the cases, the petitioner has been convicted since 2005, we are of the opinion that the order of detention of the petitioner, which is said to be approved by the advisory board does not require any confidence because question of liberty of citizen is in question.
Consequently, the instant habeas corpus petition is allowed and the impugned orders dated 19.11.2016 (Annex.2) passed by the Commissioner of Police, Jodhpur (respondent no.3) and order dated 23/25.11.2016 (Annex.3) and order dated 27/28.12.2016 (Annex.6) passed by the State of Rajasthan are hereby quashed and set aside and the detenue Kishan Singh be released forthwith, if not needed in any other case. However, it is made it clear that in the event of registration of two fresh cases in furtuer the then the respondents will be at liberty to file an application for (13 of 13) [HC-12/2017] cancellation of bail through Public Prosecutor in pending criminal cases against the detenue Kishan Singh. In the event of filing such application, it is expected from the learned trial court that the said application should be considered objectively on merit so as to cancel the bail granted to the detenue Kishan Singh after providing an opportunity of hearing to him, further it is ordered that after release the detenue Kishan Singh shall furnish undertaking before the Dy. Commissioner of Police (East), Jodhpur to the effect that he will maintain peace.
(G.R. MOOLCHANDANI)J. (GOPAL KRISHAN VYAS)J. cpgoyal/-ps