Allahabad High Court
Amit Jani vs State Of U.P. And 4 Others on 6 March, 2020
Bench: Pankaj Naqvi, Samit Gopal
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 43 Reserved on 14.01.2020 Delivered on 06.03.2020 HABEAS CORPUS WRIT PETITION No. - 1045 of 2019 Amit Jani ..........Petitioner Versus State Of U.P. & Others .........Respondents For Petitioner : Sri Yogesh Kumar Mishra Advocate For respondent / State : Sri S.K. Pal, G.A, assisted by Dr. S.B. Maurya, A.G.A. Hon'ble Pankaj Naqvi,J.
Hon'ble Samit Gopal,J.
Per: Samit Gopal, J.
1. This habeas corpus petition has been filed directing the respondent authorities to produce the corpus of the petitioner and to set him free from illegal detention of respondent no.5 / City Magistrate, Noida, Gautam Budh Nagar.
2. On 16.11.2019, at the request of the learned A.G.A, the matter was posted for 19.11.2019 in order to enable him to obtain instructions. The learned A.G.A, on 19.11.2019 informed that he could not communicate the earlier order dated 16.11.2019 to the authorities, but the learned counsel for the petitioner stated that the detenu was released in the evening of 16.11.2019. We on 5.12.2019 called upon the learned A.G.A, to file a personal affidavit of respondent no.5. A counter affidavit of respondent no.5 was filed on 6.1.2020, to which a rejoinder is filed.
3. The petitioner was arrested from his residence by police of P.S, Sector 20 NOIDA, Gautam Budh Nagar on 9.11.2019 at about -2:00 A.M. No reason for arrest is disclosed to the family members of the petitioner, who approached the higher authorities to ascertain his whereabouts and reasons of arrest. The police informed the family members of the petitioner that he has been sent to District Jail, Gautam Budh Nagar under Sections 107/116 and 151 CrPC on 9.11.2019. The reasons for arrest as recorded in the report under Section 151 CrPC is extracted hereinbelow:-
"v;ks/;k jke efUnj izdj.k ij eku0 loksZPp U;k;ky; }kjk fu.kZ; fn0 09-11-19 dks vkuk lEHkkfor gSA iwoZ esa vfer tkuh mijksDr lkEiznkf;d o 'kkfUr 'kkSgknZ ds eqn~nks dks Tofyr djus o xqIr lw=ks ls tkudkjh gq;h gSA bl izdkj dh iqujko`fÙk vfer tkuh mijksDr dj ldrk gS tuin es 'kkfUr O;oLFkk cuk;s j[kus gsrq vfer tkuh mijksDr dk pkyku tfj;s /kkjk 151 Cr.P.C. fd;k tkrk gSA"
The brother of the petitioner filed a bail application before the City Magistrate, Noida, Gautam Budh Nagar/ respondent no.5, along with bail bonds and sureties on 11.11.2019, but the petitioner was not released. The brother approached respondent no.5, again on 12.11.2019 and 13.11.2019 for release of the petitioner, but no orders for release were passed.
4. We have heard Sri Yogesh Kumar Mishra, learned counsel for the petitioner, Sri S.K. Pal, the learned Government Advocate assisted by Dr. S.B. Maurya, the learned A.G.A.
5. The precise issue, which has now fallen for consideration is as to whether the detention of the petitioner from 11.11.2019 (on which bail bonds / sureties were filed) to 16.11.2019 (date of release) is justified by law or not.
6. To answer the above issue, we will have to revert to the provisions under which the petitioner has been challaned. The petitioner has been challaned under order dated 9.11.2019 in proceedings under Sections 107/116 and 151 CrPC. Sections 107/116 are contained in Chapter- VIII of the Code, which relates to "security" for keeping the peace and for good behaviour.
Scheme of Chapter-VIII of the Code in brief is as under:-
7. Section 106 of the Code gives power to a Court of Sessions or Court of a Magistrate of first class or appellate / revisional court for directing a person, while convicting him for offences referred to sub-section (2) of Section 106 of the Code, to execute a bond with or without sureties for keeping the peace for a period not exceeding 3 years.
Section 107 of the Code confers powers on an Executive Magistrate to issue a show cause to a person in the manner provided under Chapter- VIII, in the event an information is received that such a person is likely to commit breach of peace or disturb the public tranquillity, requiring such a person as to why he be not ordered to execute a bond with or without sureties. The life of such an order is for a period not exceeding one year as the Magistrate may think fit. An order under Section 107 shall be in writing, setting forth the substance of the information received, the amount of bond to be executed, the term for which it is to be enforced, number, character and class of sureties, if any. Section 108 provides for taking security for good behaviour from persons disseminating seditious matters, for a period not exceeding one year. Sub-section (2) of Section 108 exempts certain persons. Section 109 is for suspected persons, who are concealing themselves in order to commit cognizable offence and Section 110 is for habitual offenders of offences mentioned in Clause (a) to (g) of Section 110. Section 111 provides that an order to require any person to show cause shall be in writing, setting forth the substance of information, amount of bond to be executed and its term, the number, character and class of sureties (if any) required. Section 112 provides that if the person, against whom such an order is passed, is present in the Court, it shall be read over to him or if he so desires, substance thereof shall be explained to him. Section 113 provides that if such a person is not present in the Court, the Magistrate shall issue summons requiring him to appear, or when such a person is in custody, a warrant directing the officer, in whose custody he is to bring him before the Court. A proviso appended to Section 113 confers powers on the Magistrate that he had reasons based on a police report or other information, which shall be recorded by the Magistrate that there is reason to fear the commission of breach of peace, which cannot be prevented, but by way of immediate arrest of such person, the Magistrate may issue a warrant for arrest. Section 114 provides that every summon or warrant under Section 113 shall be accompanied by copy of the order made under Section 111. Section 115 gives power to magistrate to dispense with the personal attendance of any person, who has been called upon to show cause.
8. Section 116 of the Code empowers a Magistrate to conduct an inquiry against a person after passing of an order under Section 111. The inquiry is regarding the ascertainment of the truthfulness of the information forming the basis for which action has been taken. The procedure contemplated for trial in evidence would be that of summons case. The Magistrate is also empowered to pass orders relating to immediate measures as are necessary for prevention of breach of peace, public tranquillity, commission of any offence or public safety by directing a person against whom an order under Section 111 has been passed to execute a bond with or without sureties for maintaining peace, good behavior untill the conclusion of the inquiry and while doing so detain him in custody untill such bond is executed or in default of the execution, untill the inquiry is concluded. The two provisos appended to sub-section (3) of Section 116 lay down certain restrictions as to the class of persons, who can be ordered to execute a bond for maintaining good behaviour or the extent of pecuniary liability of the bond and sureties should be proportionate to order passed under Section 111. The inquiry under this section is to be completed within 6 months from the date of its commencement, failing which proceedings shall be terminated unless the Magistrate, for reasons to be recorded, directs otherwise. Any person detained, pending inquiry, the proceedings against that person shall be terminated, unless terminated earlier, on the expiry of period of six months of such detention. A power is conferred upon the Sessions Judge to vacate a direction made under sub-section (6) of Section 116 on an application by an aggrieved party, if he is satisfied that the order of continuance of the proceedings is not based on special reasons or was perverse. Once in an inquiry under Section 116, veracity of the allegation is found to be true, the Magistrate under Section 117 is empowered to direct the person concerned against whom, inquiry was made to execute his personal bonds with or without sureties for maintaining peace and good behaviour. Section 118 relates to discharge of the person informed, if he is exonerated in the inquiry. Section 119 relates to the commencement of period, for which security is required. Section 120 deals about contents of bond. Section 121 gives power to Magistrate to reject sureties. Section 122 relates to imprisonment in default of security. Section 123 relates to the power of District Magistrate and Chief Judicial Magistrate to release persons imprisoned for failing to give security and lastly Section 124 provides for taking security for unexpired period of bond.
9. A conjoint reading of the aforesaid provisions manifests that the executive magistrate on receipt of information that any person is likely to commit a breach of peace, public tranquillity, such person shall be put to notice as to why he be not directed to execute a bond with or without sureties. The Executive Magistrate is not obliged to issue a notice on mere ipse dixit.The object of proceedings under Chapter-VIII is of prevention of crime, disturbance of public tranquillity and breach of peace. The provisions are preventive in nature based on apprehended danger.
10. Section 151 is contained under Chapter-XI, which deals about the "preventive action of police"
"151. Arrest to prevent the commission of cognizable offences.
(1) A police officer knowing of a design to commit any cognizable offence may arrest, without orders from a Magistrate and without a warrant, the person so designing, if it appears to such officer that the commission of the offence cannot be otherwise prevented.
(2) No person arrested under sub- section (1) shall be detained in custody for a period exceeding twenty- four hours from the time of his arrest unless his further detention is required or authorised under any other provisions of this Code or of any other law for the time being in force."
Sub-section (2) of Section 151 clearly indicates that no person shall be detained in custody for a period exceeding 24 hours unless his further detention is required or authorised under the Code or any other law.
11. It is well settled that when an act is to be done in a particular manner, then the act is to be performed only in the manner provided under the statute or not at all and all other modes are necessarily forbidden. Thus, the phraseology employed in Section 107 " in the manner hereinafter provided" cannot be ignored, on the contrary conveys the intent of the legislature that while exercising the powers under Section 107 of the Code the Executive Magistrate shall adhere to the procedure laid down in Chapter- VIII of the Code.
12. The powers under Section-107, 108 and 109 of the Code to issue a show cause is to be exercised according to the defined procedure. Section 116 of the Code contemplates an inquiry to ascertain the veracity of the information, which led to the issuance of a show cause under Section 107. Vide sub-section (3) of Section 116, power is conferred on the magistrate for passing orders relating to immediate measures in case of breach of peace, disturbance, public tranquillity or commission of any offence or public safety calling upon the persons to keep peace or maintain good behaviour until conclusion of the inquiry. Power is also conferred on the Magistrate to detain the person concerned in custody until such bond is executed or in default of execution, until the inquiry is concluded.
13. The Apex Court in Madhu Limaye & others vs. S.D.M, (1970) 3 SCC 746 while upholding the Constitutional validity of Chapter-VIII of the Code held that the orders made under this Chapter are judicial orders unlike the detention order under Article 22(5) of the Constitution, which is administrative in nature. The order of detention under Chapter - VIII can be passed only in default of execution of bond and not otherwise . Thus, the sine qua non for detention under Chapter VIII of the Code is failure to execute a bond.
14. We have already set forth undisputed factual matrix. The petitioner came to be arrested on 9.11.2019 at 2:00 A.M, from his house. No reasons for detention were communicated. The alleged reason, i.e, the petitioner was a potential threat in view of pending Ayodhya Verdict surfaced for the first time on 11.11.2019 by way of show cause notice dated 9.11.2019, which is as under:
"न्यायालय नगर मजिस्ट्रेट गौतमबुद्ध नगर वाद सं० 4040/2019 अन्तर्गत धारा 151,107/116 दं०प्र० सं० सरकार बनाम अमित जानी कोतवाली-Sec20 नोएड़ा आदेश अन्तर्गत धारा 111 दं० प्र० सं०
प्रभारी निरीक्षक कोतवाली Sec 20 नोएड़ा गौतमबुद्धनगर ने अपनी आख्या दिनांक 9-11-19 के द्वारा अवगत कराया है कि निम्नलिखित विपक्षीगण धार्मिक सौहार्द को लेकर विवाद है। जिसको लेकर तनाव व्याप्त है। जिससे शान्ति भंग किए जाने की प्रबल सम्भावना है। प्रभारी निरीक्षक की आख्या से मै संतुष्ट हूँ और मेरा समाधान हो गया है कि निम्नलिखित विपक्षीगणों से उक्त आधारो पर शान्ति भंग किये जाने की प्रबल सम्भावना है। अत: विपक्षीगण के विरूद्ध दं०प्र० सं० की धारा 151,107,116 के अन्तर्गत कार्यवाही किये जाने का पर्याप्त आधार है।
अत: मै नगर मजिस्ट्रेट गौतमबुद्धनगर आदेश देता हूँ कि निम्नलिखित विपक्षीगण कारण दर्शित करे कि क्यों न उनसे 06 माह तक शान्ति व्यवस्था बनाऐ रखने के लिये अंकन 50,000 के निजी बन्ध पत्र एवं समान धनराशी की दो प्रतिभूतियां जो स्थानीय संम्पन एवं ऐसे व्यक्तियों द्वारा निष्पादित की गयी हो जो विपक्षीगणों पर शान्ति बनाये रखने के निर्मित उस पर पर्याप्त नियंत्रण रखने मे सक्षम हो, से पाबन्द किया जाये।
वाद मे दिनांक- 22.11.19 नियत की जाती है।
दिनांक- 9.11.19 ह० अपठनीय नगर मजिस्ट्रेट गौतमबुद्ध नगर नोटिस/आदेश विपक्षीगण को पढ़कर सुनाया व समझाया गया जो उसने अस्वीकार किया।"
15. A perusal of the aforesaid manifests that the notice is dated 9.11.2019 calling upon the petitioner to furnish a personal bond of Rs.50,000/- and 2 sureties of the like amount for maintenance / ensuring of peace and tranquillity for a period of 6 months. The date fixed in the notice was 22.11.2019, i.e, the petitioner had time till 22.11.2019 to comply the show cause. Respondent no.5 has not placed any material, but for Annexure-CA-2 (show cause) that the circumstances were so grave and imminent that on the date of issuance of notice itself, immediate detention of the petitioner was warranted. On the contrary, the notice/ challan under Section 107/116 /151 CrPC (Annex.-CA-II) is on a printed proforma, on which name and address of the petitioner, name of PS, the date of report, the alleged ground, i.e, for maintaining communal harmony and the date fixed are only hand written, leaving the remaining recitals to be on a printed format including the amount of personal bond to be furnished by the petitioner. The order sheet of 9.11.2019 is also on a printed format. It appears that respondent no.5 mechanically issued notice / challan without any application of mind.
The passing of orders in printed proforma/cyclostyled formats have been deprecated by various High Courts including this court as they do not reflect application of mind. Reference is made to the following judgments:-
1. 2000 ILR (Kar) 4773, Vijaya Bank Vs. State.
2. 2010(9) ADJ 594, Abdul Rasheed Vs. State of U.P. & another.
3. 2009 (67) ACC 532, Ankit Vs. State of U.P. & another.
4. 2010 (3) ADJ 622, Saurabh Dewana Vs. State of U.P.
16. The authority was statutorily obliged to reduce its reasons in writing, warranting an immediate action, no such reasons were ascribed. The petitioner submitted his personal bonds and sureties before Respondent no.5 on 11.11.2019, which was sought to be controverted by alleging that it was submitted on 13.11.2019. The respondent no.5 was well within his limits to verify sureties. But he had no authority to continue the detention of the petitioner once he had submitted his personal bonds on 11.11.2019. The statutory mandate of Section 116 (3) is that once the person concerned tenders his personal bond in compliance to order passed under Section 111, he has to be released. The petitioner was released only on 16.11.2019, when the matter was taken up in this Court. Thus the detention of the petitioner from 11.11.2019 to 16.11.2019 is in brazen defiance of the statutory mandate of sub-section (3) of Section 116 Sub-section (2) of Section 151 of the Code, and that of Articles 20 and 21 of the Constitution of India.
17. The Respondent no.5 is a senior officer exercising quasi judicial powers.
18. Law abhors illegal detention. The Courts cannot be a mute spectator to an illegal detention in flagrant violation of basic constitutional norms. The Courts in such eventualities are constitutionally obliged to rise to the occasion to award such compensation, as it deems fit. The Apex Court in D.K. Basu Vs. State of West Bengal (1997) 1 SCC 416, has held that the constitutional courts in an appropriate case involving illegal detention, in exercise of jurisdiction under Article 32/226 of the Constitution of India, can award compensation.
19. The instant case is one such illustration. We, on available material including the apology of respondent no.5, are of the view that the illegal detention of the petitioner from 11.11.2019 to 16.11.2019 was perpetuated by respondent no.5 / City Magistrate, NOIDA, Sector 19, Noida, District Gautam Budh Nagar.
20. We deem appropriate to direct the State Government to recover Rs.25000/- from the salary of respondent no.5/ Mr. Shailendra Kumar Mishra (City Magistrate, NOIDA, Sector 19, Noida, District Gautam Budh Nagar) and pay the same to the petitioner forthwith as compensation for illegal detention.
The petition is disposed of accordingly.
Order Date :- 06.03.2020
N.S.Rathour
(Samit Gopal,J.) (Pankaj Naqvi,J.)