Rajasthan High Court - Jodhpur
Chandrashekhar vs State Of Rajasthan & Ors on 22 May, 2017
Author: Gopal Krishan Vyas
Bench: Gopal Krishan Vyas, Inderjeet Singh
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Habeas Corpus No. 50 / 2017
Chandrashekhar S/o Shri Prakash,, Aged About 55 Years, By
Caste Balmiki, Resident of Tilak Nagar, Udaimandir Harijan Basti,
Police Station Nagauri Gate, Jodhpur Metropolitan.
----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 Nagauri Gate, Jodhpur.
----Respondents
_____________________________________________________
For Petitioner(s) : Mr. Naresh Chhangani
For Respondent(s) : Mr. SK Vyas, AAG
_____________________________________________________
HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS
HON'BLE MR. JUSTICE INDERJEET SINGH Judgment Per Hon'ble Mr. Justice Gopal Krishan Vyas 22/05/2017 The instant habeas corpus petition has been filed by the petitioner- father of the detenue Abhimanyu @ Dhabiya to (2 of 10) [HC-50/2017] challenge the order dated 19.2.2017 passed by the Commissioner of Police, Jodhpur and order dated 27.2.2017 and order dated 5/6.4.2017 passed by the Secretary, Department of Home, Government of Rajasthan, Jaipur whereby the son of the petitioner, detenue Abhimanyu @ Dhabiya was ordered to be detained for one year w.e.f. 19.2.2017 to 18.2.2018.
As per facts of the case, the respondent no.4 Dy. Commissioner of Police, Jodhpur submitted a complaint on 10.2.2017 before the Commissioner of Police, Jodhpur against the petitioner's son Abhimanyu @ Dhabiya for taking action under Section 3 of the Rajasthan Prevention of Anti-Social Activities Act, 2006 (hereinafter referred to as the Act of 2006 for short) . In the said complaint while giving details of 15 cases registered against the detenue Abhimanyu @ Dhabiya, it was prayed that action may be taken against the Abhimanyu @ Dhabiya because due to his criminal activities, the peace of public is disturbed. The respondent no.3 while exercising powers conferred under Section 3 of the Act of 2006 passed an order to detain the son of the petitioner Abhimanyu @ Dhabiya for one one year on 19.2.2017.
After passing the aforesaid order, the Police Commissioner, Jodhpur sent the order to the State Government for its approval under Section 3(3) of the Act of 2006 with the stipulation that if the approval will not be given within the period of 12 days, the order will come to an end, automatically. The State Government vide order dated 27.2.2017 approved the order dated 18.2.2017 passed by the Commissioner of Police, Jodhpur after satisfying itself. After approval by the State Government, the case was (3 of 10) [HC-50/2017] placed before the advisory board under Section 11 of the Act of 2006.
The order of detention was supplied to the detenue Abhimanyu @ Dhabiya also to provide an opportunity to make representation against the said order, before the advisory board. The detenue appeared before the advisory board and prayed that order passed by the Police Commissioner and State of Rajasthan is not sustainable in law. The State Government prayed to confirm the order of detention approved by the State Government.
The advisory board granted an opportunity of hearing to the detenue Abhimanyu @ Dhabiya upon his representation, so also, to the State Government. In the representation, the detenue Abhimanyu @ Dhabiya prayed that the order of detention is illegal because the Police Commissioner, Jodhpur has passed an order under Section 3 of the Act of 2006 without recording objective satisfaction or considering the nature of cases registered against the detenue Abhimanyu @ Dhabiy and complaint filed under Section 110 Cr.P.C. is per-se illegal and prayed that order of detention may kindly be quashed. The advisory board after hearing both the parties confirmed the order of detention passed by the Police Commissioner, Jodhpur on 21.3.2017 while considering the definition of "dangerous person" incorporated in the Act of 2006.
After confirmation of the order by the advisory board, the order of detention has been passed to detain the son of petitioner for one year with effect from 19.2.2017 to 18.2..2018.
Learned counsel for the petitioner vehemently argued that (4 of 10) [HC-50/2017] order of detention is per-se illegal because it has been passed without application of mind only on the ground of registration of 15 cases since 2006 and submits that in six cases which are said to be registered against the detenue Abhimanyu @ Dhabiya from the year 2006 to 2012 are considered in spite of the fact that out of 7 cases, registered from 7.3.2006 to 1.11.2012, the detenue Abhimanyu @ Dhabiya was acquitted from the charges levelled against him. It is further submitted that the remaining 7 cases are pending in which the detenue Abhimanyu @ Dhabiya is facing trial, but not convicted so far, therefore, the order of detention for one year is unconstitutional because it restricts freedom of the petitioner, therefore, the orders may kindly be quashed.
Learned counsel for the petitioner vehemently argued that order of detention has been passed by the respondent no.3 without application of mind solely on the basis of complaint submitted by the respondent no. 4 without granting opportunity of hearing before passing the detention order by the Police Commissioner, therefore, the action of respondents amounts to violation of Article 22(5) of the Constitution of India because it has been passed in mechanical manner, therefore, all the orders impugned may kindly be quashed.
Per contra, while inviting attention towards the reply it is submitted by the learned Addl. Advocate General that 15 cases were registered against the detenue Abhimanyu @ Dhabiya from the year 2006 to 2017 for different offences of IPC and Arms Act. Though in five cases the detenue Abhimanyu @ Dhabiya has been acquitted but those acquittal order were passed upon compromise (5 of 10) [HC-50/2017] of the parties and in two cases detenue was convicted with fine and condemnation and seven cases are pending trial against the detenue Abhimanyu @ Dhabiya and in one case, investigation is still pending, therefore, due to aforesaid criminal activities, it is felt necessary by the Police Commissioner, Jodhpur to pass an order for detention against son of petitioner because the detenue Abhimanyu @ Dhabiya involves in the cases of attack with deadly weapon, causing injury to the property and offences for attempt to commit homicidal deaths, forgery and Arms Act, therefore, after due application of mind, the Police Commissioner, felt it necessary after subjective satisfaction that detention of detenue Abhimanyu @ Dhabiya is necessary.
It is also submitted that proceedings under Section 110, 107(3) and 151 Cr.P.C. are also pending and despite being bound to maintain good behavior, the criminal activities of detenue Abhimanyu @ Dhabiya are going on, therefore, it is a case in which no interference is warranted.
Learned Addl. Advocate General further argued that before passing the order of detention, an opportunity was granted to the detenue Abhimanyu @ Dhabiya to file representation before the advisory board and after taking into consideration entire facts of the case, the order of detention has been affirmed by the advisory board, therefore, this habeas corpus petition may kindly be dismissed.
After hearing learned counsel for the parties, we have perused the list of cases filed alongwith the Annex.1 of the writ petition. The details of those cases are as follows:
(6 of 10) [HC-50/2017] vfHkeU;w mQZ <fc;k iq= Jh pUn'ks[kj] tkfr okfYedh] mez 26 lky] fuoklh fryduxj] mn;efUnj gjhtu cLrh] iqfyl Fkkuk ukxkSjhxsV] tks/kiqj egkuxj ds fo:) ntZ vkijkf/kd izdj.kA ifjf'k"V ^v* Ø- la- iz-la- rkjh[k /kkjk Fkkuk pktZ 'khV ts-,Q- U;k;ky; urhtk dksVZ dsl ist ua-
dk;eh ¼tgka uEcj o uEcj dk uke dksVZ dh fLFkfr
vfHk;ksx fnukad o vkxkeh
ntZ gqvk rkjh[k
gks½ is'kh
fnukad
1 121 07-03-06 392@34 mn;eafnj 82@ 130@ fizUlhiy fnukad 1&24
Hkknl 31-03-06 06 eftLVªsV 26-10-
tks/kiqj 2015 dks
ltk
2 203 27-04-07 352] 341] egkeafnj 126A@ 22@08 ckyd fnukad 25&39
323 Hkknl 30-04-07 U;k;ky; 17-10-
tks/kiqj 2011 dks
ltk
3 05 06-01-09 323] 379] mn;eafnj 11@ 268@ ihlhih, nks"keqDr 40&64
147 Hkknl 08-02-09 13 uMhVh fnukad
¼896@1 tks/kiqj 27-07-16
5½
4 353 24-09-09 341] 323] egkeafnj 356@ 632@0 ,lhts,e nks"keqDr 65&91
427] 509] 12-11-09 9 ua0 3 fnukad
147] 148] tks/kiqj 06-11-15
149 Hkknl
5 402 27-10-09 307] 143] egkeafnj 463@ 45@ ,Mhts tfj;s 92&114
509] 323] 25-12-09 10 QkLV jkthukek
427] 324] Vªsd ua0
nks"keqDr
326 Hkknl 1 fnukad
tks/kiqj
15-04-10
6 34 17-02-11 427] 435] lnj 52@ 76@ lS'ku lansg dk 115&137
436@34 dksrokyh 30-03-11 2011 U;k;k/kh'
ykHk
Hkknl k tks/kiqj
nsdj
egkuxj nks"keqDr
fnukad
24-07-13
7 361 01-11-12 341] 323] egkeafnj 406@ 204@ ,lh,e, tfj;s 138&164
325@34 28-12-12 13 e ua0 3 jkthukek
Hkknl tks/kiqj cjh 25-
07-16
8 103 08-03-13 341] 323] mn;eafnj 133@ 149@ ,e,e iSf.Max 23-02- 165&191
427@34 29-05-13 13 ua0 3 Vªk;y 2017
Hkknl tks/kiqj
egkuxj
9 144 27-03-13 341] 323] egkeafnj 167@ 25@13 ,Mhts iSf.Max 03-03- 192&214
307 Hkknl 03-06-13 ua0 2 Vªk;y 2017
tks/kiqj
10 267 15-05-15 323] 147] izrkiuxj 537@ 03@ ,Mhts iSf.Max 22-02- 215&238
148] 149] 17-11-15 16 ua0 3 Vªk;y 2017
427] 324] tks/kiqj
325] 307 egkuxj
Hkknl
11 269 27-06-15 /kkjk 435 jkrkukMk 75@ 284@ lh,e,e iSf.Max 19-05- 239&253
Hkknl 08-05-16 16 tks/kiqj 2017
(7 of 10)
[HC-50/2017]
egkuxj Vªk;y
12 337 11-07-15 323] 341] egkeafnj 411@ 46@17 ,lhts,e iSf.Max 28-02- 254&269
427] 147] 30-09-15 lhchvkbZ Vªk;y 2017
148] 149 dslSt
Hkknl tks/kiqj
egkuxj
13 379 13-07-15 147] 148] izrkiuxj 526@ 06@ ,Mhts iSf.Max 04-03- 270&296
149] 307] 30-10-15 16 ua0 6 Vªk;y 2017
323] 324] tks/kiqj
341] 420] egkuxj
467] 468]
471] 474]
482] 483]
485 Hkknla-
o 3@25]
4@25] 27
vkElZ ,DV
14 38 24-03-16 341] ukxksjh 39@ 397@ ,e,e iSf.Max 25-02- 297&315
323@34 xsV 21-04-16 16 ua0 10 Vªk;y 2017
Hkknl tks/kiqj
egkuxj
15 20 08-02-17 143] 323] lnj tSj 316&318
341] 308 cktkj vuqla/kk
Hkknl u
vfHk;qDr vfHkeU;w mQZ <fc;k ds fo:) dh xbZ fujks/kkRed dk;Zokgh ifjf'k"V ^c* Ø- balnknh dk;Zokgh is'k djus ljdkj cuke@ dksVZ dk ts0,Q0 ua0 urhtk U;k;ky; ist ua-
la- dh fn0 uke
1 110 lhvkjihlh 23-09-2016 vfHkeU;w mQZ 3059@16 vkxkeh rkjh[k is'kh 319&325
iqfyl Fkkuk ukxksjh <fc;k@lgk;d iqfyl fn0 20-02--2017
xsV tks/kiqj iwoZ vk;qDr eq[;ky; ,oa
dk;Zikyd eftLVªVs
iqfyl dfe'ujsV tks/kiqj
2 107] 151 lhvkjihlh 23-11-2016 vfHkeU;w mQZ 3675@16 ikcUn fnukad 23- 326&328
iqfyl Fkkuk ukxksjh <fc;k@lgk;d iqfyl 11-2016
xsV tks/kiqj iwoZ vk;qDr eq[;ky; ,oa
dk;Zikyd eftLVªVs
iqfyl dfe'ujsV tks/kiqj
Upon perusal of the item no.1 to 7 it is obvious that in five cases detenue Abhimanyu @ Dhabiya was acquitted from the charges levelled against him either on compromise or after facing and in two cases he was convicted in the year 2006-07 and he has (8 of 10) [HC-50/2017] served whatever punishment made against him.
Admittedly, seven cases are pending against the detenue Abhimanyu @ Dhabiya and in one case investigation is going on. The cases pending against the detenue Abhimanyu @ Dhabiya are mostly relates to the offence under Sections 323, 325 and 341 IPC and in three cases, charge-sheet was filed under Section 307, 149/34 IPC and those cases are still pending in which detenue Abhimanyu @ Dhabiya has already been released on bail. We have perused the definition of "dangerous person" enumerated in the Act of 2006, so also, considered the facts of all the cases registered against the detenue Abhimanyu @ Dhabiya. In our opinion, seven cases pending against the detenue Abhimanyu @ Dhabiya are mostly for the offences under Sections 323, 325, 341 and 147 IPC and in three cases the charge-sheet has been filed under Section 307 IPC with the aid of Section 149 IPC in which the detenue Abhimanyu @ Dhabiya has already been released on bail, upon consideration of complaint submitted by the respondent no.4 before Police Commissioner, we are of the opinion that seriousness of the offences is required to be seen before passing any order of detention. In most of the pending cases are for bailable offences, three cases are registered for non-bailable offence in which the detenue Abhimanyu @ Dhabiya has already been released on bail and still facing trial, therefore, we are of the opinion that there is no valid justification for passing detention order against the detenue Abhimanyu @ Dhabiya for one year. In our opinion, at the time of judicial scrutiny right of liberty of a citizen is required to be seen as per facts, there is no (9 of 10) [HC-50/2017] dispute that out of 15 cases, 7 cases has already been decided upto the year 2012 and most of the pending cases are related with the bailable offences, therefore, it cannot be said that case of detenue Abhimanyu @ Dhabiya falls under the definition of "dangerous person" and become problem for the law and order situation.
The criminal activities upon which action has been taken cannot be based so as to consider detenue Abhimanyu @ Dhabiya as "dangerous person" at this stage. It is true that an accused granted bail cannot misuse the benefit of bail and required to maintain peace, at the same time, it cannot be said that number of cases of private quarrel registered against the detenue Abhimanyu @ Dhabiya can be considered for passing order of detention for one year. The seriousness of offense is required to be seen.
In the totality of the circumstances, we are of the firm opinion that order of detention is not based upon justified reasons so as to achieve the object to maintain peace.
Consequently, this habeas corpus writ petition is hereby allowed. The order dated 19.2.2017 (Annex.2) passed by the respondent no.3 and the orders dated 27.2.2017 (Annex.3) and dated 5/6.4.2016 (Annex.4) passed by the State Government are hereby quashed and set aside, the detenue Abhimanyu @ Dhabiya may be released forthwith, if not needed in any other case. However, a liberty is granted to the Police Department that in the event of registration of two cases against the detenue Abhimanyu @ Dhabiya within six months from the date of this order, the (10 of 10) [HC-50/2017] prosecution will be at liberty to file an application for cancellation of bail in the cases wherein the detenue Abhimanyu @ Dhabiya is facing trial in non-bailable offences and enlarged on bail. In the event of filing such application for cancellation of the bail, the concerned trial court shall consider the prayer of the prosecution so as to cancel the bail after providing an opportunity of hearing to the detenue Abhimanyu @ Dhabiya, son of the petitioner for misusing the benefit of bail. It is further directed that father and mother of detenue Abhimanyu @ Dhabiya shall file an undertaking before the Commissioner of Police, Jodhpur within a period of one week from the date of release that detenue Abhimanyu @ Dhabiya will maintain peace and not disturb the peace. (INDERJEET SINGH)J. (GOPAL KRISHAN VYAS)J. Cpgoyal/ps