Allahabad High Court
Suresh Mani Tripathi And Another vs State Of U.P. And 6 Others on 16 September, 2019
Bench: Manoj Misra, Manju Rani Chauhan
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 42 Case :- HABEAS CORPUS WRIT PETITION No. - 3542 of 2018 Petitioner :- Suresh Mani Tripathi And Another Respondent :- State Of U.P. And 6 Others Counsel for Petitioner :- Anwar Hussain,Avinash Mani Tripathi Counsel for Respondent :- G.A. Hon'ble Manoj Misra,J.
Hon'ble Mrs. Manju Rani Chauhan,J.
Heard both sides.
This habeas corpus petition was filed by alleging that the petitioners have been detained in connection with proceedings under Section 107/116 CrPC, without any authority of law, even though they had furnished surety bonds.
It appears that a challani report was submitted by the Sub-Inspector of police station Sonauli, district Maharajganj on 11th August, 2018 to the Sub-Divisional Magistrate, Nautanwa, district Maharajganj in which it was alleged that as the petitioners were trying to fill up a pit in connection with which there was a dispute and, despite request they were not willing to stop their activity, which had given rise to serious threat to breach of public tranquillity in the locality, the petitioners were being produced after arrest under Section 151 CrPC. On their production before the Sub-Divisional Magistrate concerned, they submitted bail bonds. It appears that pending verification of the bail bonds, they were sent to judicial custody by fixing 18th August, 2018 as the date for further enquiry. At this stage, the petitioners filed this habeas corpus petition claiming that there was no legal justification for sending the petitioners to judicial custody pending verification of the bail bonds, more so when the notice served upon them was not in compliance with the provisions of Section 111 of the CrPC and no satisfaction was recorded as is mandatorily required by sub-section (3) of Section 116 CrPC to detain the petitioners.
On 18th August, 2018, this Court directed release of the petitioners forthwith on production of certified copy of the order and the Sub-Divisional Magistrate concerned was directed to file his personal affidavit. The order of the Court dated 18th August, 2018 was complied with. Thereafter, on exchange of affidavits, on 19th August, 2019, a detailed order was passed, which is self explanatory and is, therefore, extracted below:
"The instant habeas corpus petition has been filed on behalf of petitioners, namely, Suresh Mani Tripathi and Anurag Mani Tripathi.
Briefly stated the facts giving rise to the petition are as follows. The Sub-Inspector of police station Sonauli, district Maharajganj, on 11th August, 2018, submitted a challani report to the Sub-Divisional Magistrate, Nautanwa, district Maharajganj in which it was alleged that the petitioners were trying to fill up the pit in connection with which there was already a dispute and despite request they were not willing to stop their activities and therefore there was serious threat of breach of public tranquillity in the locality hence the petitioners were arrested under Section 151 CrPC. A request was therefore made to draw appropriate proceeding. On the basis of the said challani report, on 11th August, 2018, the petitioners were produced before the Sub-Divisional Magistrate, tehsil Sadar, district Mahrajganj as the Sub-Divisional Magistrate, tehsil Nautanwa, Maharajganj was on leave and his link officer, namely, Sub-Divisional Magistrate, tehsil Farenda, Maharajganj was also on leave, upon which, he directed issuance of notice under Section 111 CrPC.
It appears from the order-sheet of the proceedings which has been brought on record at page 53 of the rejoinder affidavit that on 11th August, 2018, the petitioners had submitted bail bonds to the tune of Rs.50,000/-. The learned Magistrate directed for verification of the bail bonds and sent the petitioners to judicial custody in District Jail, Maharajganj and fixed 18th August, 2018 as the date for further enquiry. On 18th August, 2018, it appears from the order-sheet that the bail bonds that were submitted were verified and therefore release order in respect of petitioner no.1 (Suresh Mani Tripathi) was passed. It is the case of the Sub-Divisional Magistrate that another petitioner, namely, Anurag Mani Tripathi, had not submitted bail bonds.
In between the petitioners filed this habeas corpus petition. On 18th August, 2018, after considering the submissions advanced on behalf of the petitioners, following order was passed:
"As prayed, one month time is allowed to A.G.A. to file counter affidavit. Rejoinder affidavit may be filed within two weeks thereafter.
List before appropriate Bench in week commencing 29.10.2018.
Counsel for the petitioners submits that the petitioners made a complaint against Shiv Narayan Das and Dhruv Prasad Modanwal. In that connection, against them, the police initiated proceeding u/s 151 CrPC on 11.8.2018. The petitioner were produced before the Executive Magistrate on 11.8.2018, then the petitioners submitted personal bonds and sureties, to the tune of Rs. 50,000/-. Instead of releasing the applicants, SDO, Sonauli has directed for verification of the sureties and sent the petitioners to jail. He submits that it was a preventive action and the petitioners ought to have been released instead of sending them to jail.
In the facts of the case, SDM, Sadar, Maharajganj, is directed to release the petitioners forthwith on production of a certified copy of this order and file his personal affidavit before this Court.
So far as verification of the sureties is concerned, it may be verified, without waiting for release of the petitioners.
Certified copy of this order be supplied to counsel for the petitioners today itself, on payment of usual charges."
Pursuant to the above order, counter affidavit and rejoinder affidavits were filed. However, as it was not clear from the counter affidavit as to whether proper enquiry was conducted or not, on 30th July, 2019, the Court passed the following order:
"On 18.08.2018, following order was passed:-
"As prayed, one month time is allowed to A.G.A. to file counter affidavit. Rejoinder affidavit may be filed within two weeks thereafter.
List before appropriate Bench in week commencing 29.10.2018.
Counsel for the petitioners submits that the petitioners made a complaint against Shiv Narayan Das and Dhruv Prasad Modanwal. In that connection, against them, the police initiated proceeding u/s 151 CrPC on 11.8.2018. The petitioner were produced before the Executive Magistrate on 11.8.2018, then the petitioners submitted personal bonds and sureties, to the tune of Rs. 50,000/-. Instead of releasing the applicants, SDO, Sonauli has directed for verification of the sureties and sent the petitioners to jail. He submits that it was a preventive action and the petitioners ought to have been released instead of sending them to jail.
In the facts of the case, SDM, Sadar, Maharajganj, is directed to release the petitioners forthwith on production of a certified copy of this order and file his personal affidavit before this Court.
So far as verification of the sureties is concerned, it may be verified, without waiting for release of the petitioners.
Certified copy of this order be supplied to counsel for the petitioners today itself, on payment of usual charges."
Pursuant to the above order, an affidavit has been filed by the Sub-Divisional Magistrate, Tehsil Sadar, District Maharajganj stating that the petitioners were produced before him on 11.08.2018 with Chalani report in connection with proceedings under Sections 151, 107, 116 Cr.P.C. as the concerned SDM, Nautanwa and his Link Officer, SDM, Pharenda were not present on the date concerned. It is stated that there could be no proper verification of the bail bonds submitted and, therefore, the petitioners had to suffer incarceration. At page 27 of the affidavit, order dated 20.08.2018 passed by the Sub-Divisional Magistrate, Nautanwa has been annexed which indicates that the earlier warrant dated 11.08.2018 has been recalled and direction has been issued for release of the petitioners.
The order directing release of the petitioners was passed by this Court on 18.08.2018 but from the order sheet it appears that the copy of the said order was issued to the Advocate on 23.08.2018.
The order dated 20th August, 2018 does not indicate that the petitioners were released pursuant to the order passed by this Court.
We therefore deem it appropriate to require the learned A.G.A. to file a better affidavit of the Sub-Divisional Magistrate, Sadar, Maharajganj explaining the circumstances and the provisions of law under which the petitioners were kept in custody for about 9 days and thereafter released without due enquiry. For the said purpose, two weeks time is allowed.
List this matter, again, on 19th August, 2019.
Let a copy of this order be supplied to the learned A.G.A. for information and compliance."
Pursuant to the order dated 30th July, 2019, Satyam Mishra, Sub-Divisional Magistrate, tehsil Nichlaul, district Maharajganj has filed his affidavit today, which has been taken on record. In the affidavit it is stated that he was holding the charge of office of the Sub-Divisional Magistrate, tehsil Nautanwa, Maharajganj on 11th August, 2018 as the Sub-Divisional Magistrate, tehsil Nautanwa was on leave and his link officer, namely, Sub-Divisional Magistrate, tehsil Farenda, Maharajganj was also on leave. In paragraph 5 of the affidavit it is stated that the petitioners were produced before the Sub-Divisional Magistrate, Nautanwa along with challani report dated 18th August, 2018 in connection with proceedings under Sections 151, 107/116 CrPC. It is stated that on the said date the deponent, namely, Satyam Mishra was holding charge of office of the Sub-Divisional Magistrate, Nautanwa, Maharajganj. It is further stated in paragraph 5 that the petitioner no.1, namely, Suresh Mani Tripathi had submitted personal bond and sureties to the tune of Rs.50,000/- and under the provision of Section 122 CrPC order was passed for verification of the sureties submitted by the said petitioner. In paragraph 7 it is stated that consequent to the verification of the sureties, on 18th August, 2018, he had directed for release of petitioner no.1, if he was not wanted in any other case.
In respect of petitioner no.2, it has been stated in paragraph 8 that he had not submitted any sureties or bonds. In paragraph 10 of the affidavit it has been stated that the order of this Court dated 18th August, 2018 was brought to his notice through an application dated 19th August, 2018 and the said application was placed before the Sub-Divisional Magistrate, Nautanwa, Maharajganj on 20th August, 2018, whereupon he immediately passed release order by recalling the warrants.
Learned counsel for the petitioners has invited the attention of the Court to the provisions of the Code of Criminal Procedure (for short 'Code'). He has submitted that under Section 111 of the Code 'when a Magistrate acting under section 107, section 108, section 109 or section 110, deems it necessary to require any person to show cause under such section, he shall make an order in writing, setting forth the substance of the information received, the amount of the bond to be executed, the term for which it is to be in force, and the number, character and class of sureties (if any) required'. It has been pointed out to us, by referring to page 51 of the rejoinder affidavit, that the notice that has been issued on 11th August, 2018 and alleged to have been readover to the noticee concerned fails to comply with the mandatory requirements of Section 111 of the Code, inasmuch as, it does not set forth the substance of the information received and merely makes a statement that report has been received without referring to the nature of the information in respect of which the report has been received.
Learned counsel for the petitioners has also invited our attention to the order dated 11th August, 2018, which is at page 53 of the rejoinder affidavit. It has been urged that the order dated 11th August, 2018 simply states that the accused (noticee) have submitted bonds of Rs.50,000/- and in the interest of justice the bonds are required to be verified. Till verification of the bonds, the noticee be kept in judicial custody in District Jail, Maharajganj. It has been submitted that such an order is in the teeth of the provisions of Section 116 CrPC, inasmuch as, sub-section (1) of section 116 CrPC provides 'when an order under section 111 has been read or explained under section 112 to a person in Court, or when any person appears or is brought before a Magistrate in compliance with, or in execution of, a summons or warrant, issued under section 113, the Magistrate shall proceed to inquire into the truth of the information upon which action has been taken, and to take such further evidence as may appear necessary'. It has been pointed out to us that under sub-section (3) of section 116, the Magistrate has been conferred power of detention. Sub-section (3) of section 116 CrPC is extracted below:
"After the commencement, and before the completion, of the inquiry under sub-section (1), the Magistrate, if he considers that immediately measures are necessary for the prevention of a breach of the peace or disturbance of the public tranquillity or the commission of any offence or for the public safety, may, order under section 111 has been made to execute a bond, with or without sureties, for keeping the peace or maintaining good behaviour until the conclusion of the inquiry, and may detain him in custody until such bond is executed or, in default of execution, until the inquiry is concluded:
Provided that---
(a) no person against whom proceedings are not being taken under section 108, section 109, or section 110 shall be directed to execute a bond for maintaining good behaviour;
(b) the conditions of such bond whether as to the amount thereof or as to the provision of sureties or the number thereof or the pecuniary extent of their liability, shall not be more onerous than those specified in the order under section 111."
It has been urged that under sub-section (3) of section 116 CrPC, the reasons are to be recorded in writing before a person is detained in custody. It has been submitted that there are no reasons recorded in writing for the sake of preventive detention of the petitioner pending verification of the surety bonds. It has been urged that, firstly, the notice that has been served is not in compliance with the provisions of section 111 of the CrPC and, secondly, there is no satisfaction recorded by the Magistrate concerned to detain the petitioner in custody as is the requirement of sub-section (3) of section 116 CrPC.
Having perused the record and considered the submissions of learned counsel for the petitioners, we are prima facie satisfied that the detention of the petitioners was not in conformity with the provisions of the Code of Criminal Procedure. We, therefore, deem it appropriate to require Satyam Mishra, Sub-Divisional Magistrate, Tehsil Nichlaul, district Maharajganj to show cause as to why compensation/costs be not awarded to the petitioners for illegal detention of the petitioner no.1 between 11th August, 2018 and 19th August, 2018 and of petitioner no.2 between 11th August, 2018 and 20th August, 2018.
The notice on behalf of the said officer has been accepted by learned AGA. He shall communicate the order passed today to the officer concerned, who shall file his personal affidavit in response to the notice by or before 5th September, 2019.
List the matter on 5th September, 2019 showing the name of Sri Ritesh Srivastava as one of the counsels for the petitioners.
Let a copy of this order be supplied to the learned AGA for compliance."
Pursuant to the order dated 19th August, 2019, Satyam Mishra, Sub-Divisional Magistrate, Nichlaul, district Maharajganj, the officer concerned who had passed the order, has filed an affidavit in which he has tendered unconditional apology but has not furnished any legal justification for the order whereunder the petitioners were sent to jail pending verification of the bail bonds.
Sri Deepak Mishra, learned AGA, who has appeared on behalf of the officer concerned, has submitted that the officer had passed the said order in good faith, in exercise of the powers vested under the statute, therefore, it would not be appropriate to impose penal costs upon him, particularly when he has submitted unconditional apology.
Having considered the facts and circumstances of the case, as the petitioners have already been released, though we deprecate the casual approach of the officer in sending the petitioners to jail without recording satisfaction and reasons as is the requirement of law but considering that an apology has been tendered, we deem it appropriate to close these proceedings and discharge the notice issued to the Sub-Divisional Magistrate concerned. He is, however, warned that in future he shall be careful.
The habeas corpus petition stands disposed off.
Order Date :- 16.9.2019.
Rks.