JUDGMENT R.B. Mehrotra, J.
1. Munna, the petitioner in the present case, has filed the habeas corpus petition in this Court challenging the order of the District Magistrate, Kanpur City, dated 15th of February, 1994 exercising powers under Section 3(3) of the National Security Act (hereinafter referred to as the Act) and directing that the petitioner will be detained under Section 3(2) of the Act in Kanpur jail in ordinary class and has prayed for a relief of declaring the aforesaid detention order and the order approving/confirming the detention of the petitioner by the advisory Board/Government, dated 7-4-1994 to be illegal and also for a writ of habeas corpus calling upon the respondents to present the petitioner in Court and set him at liberty.
2. The grounds of detention were also served on the petitioner along with the order of detention.
3. The grounds of detention served on the petitioner along with the detention order recite :
On 1-2-94 at about 7.45 A.M. Km. Rizwana aged 14 Years was going to Usmania School, Bekanganj from her house and as soon as she reached the shop of Nairn Panwala in front of Colonelganj road, you were standing near the shop of Nairn Panwala and seeing that Km. Rizwana is coming, you stood up infront of her and with a motive of molesting her, you began dragging her which was protested by Km. Rizwana and she tried to free herself from your clutches, but she was not able to get herself freed. You dragged her towards the side of Nisar Market and after beating and threatening her you dashed her on an wooden plank with an intention of molesting her. Due to your fear and terror, the locality people did not dare to get Km. Rizwana freed from you from this criminal act. However, some people showing courage got Km. Rizwana freed from you. You have committed this crime on the main road due to which fear and terror struck amongst the people living there and feeling of insecurity was created. The guardians of the area got a feeling that it is not safe to send their daughters to school and amongst common people a feeling of fear and insecurity has crept in due to this nefarious act of yours. In the area, your fear and terror was so much that despite seeing this nefarious act of yours during day light, the people of the area could not protest against you. Even then Sarfuddin, Abdul Hakim, Hafiz and Haji Hashmati by mustering courage, got Km. Rizwana freed from your clutches. In this connection, a case has been registered against you at police station Colonelganj being Case Crime No. 25/94 under Sections 354, 323, 506 I.P.C. The copy of the first information report is annexed as Annexure '2' and the statements of Sarfuddin, Abdul Hakim, Hafiz alias Raju, Haji Hashmati and Km. Rizwana recorded under Section 161 verified the aforesaid facts which are Annexures 9 to 14. The case is under investigation.
In connection with the aforesaid incident, Sri Dinesh Kumar Yadav, Incharge Police Chauki Chhontey Mian Hata, Police Station Colonelganj, who is Investigating Officer of the crime has recorded in his report No. 11 at 23.30 hour on 3-2-94 that when he went to search you in connection with the aforesaid case, witness Sri Hafiz alias Raju told him that you have terrorised him forgiving evidence. The shop keepers are closing their shops. The doors and windows of the houses are being closed. The aforesaid report has been recorded in the general diary by S. I. Sri Dinesh Kumar Yadav, a certified copy of which is enclosed as Annexure '3'.
In connection with the aforesaid incident, almost in all the newspapers being published from Kanpur city, the said incident has been published prominently with different headings. Consequent thereto, ladies organisations have taken out processions, have gheraoed the Thana and such problems have cropped up that it is difficult to maintain the public order. Copies of the news items published in the news papers along with different headings are enclosed as Anneures '4' to '6'.
Due to the aforesaid incident, a terror has struck in the people of the nearby area and they have feeling of insecurity. The ladies and girls are purturbed and public order has been completely disturbed.
From the aforesaid facts, it is clear that you are hardened criminal and you fire on the police party without any hitch with an intention to kill and molest the girls publicly and threaten on the common citizens and due to your criminal actions, the public order is disturbed and you have become problem for maintaining public order. Therefore, it has become necessary to detain you.
Your aforesaid criminal act is contrary to maintaining public order.
At present you are in detention in district jail, Kanpur in Case Crime No. 190/93, under Section 307 I.P.C. and case crime No. 25/94, under Sections 354, 323, 506 I.P.C. police station Colonelganj and you have filed bail applications in the aforesaid cases, certified copies of which are enclosed as Annexures 7 and 8 from which it is clear that you will be released on bail and coming out from the jail, you will again indulge in such criminal acts by which public order will be disturbed, therefore, it is necessary to detain you.
On the aforesaid facts I am satisfied that you can act in any such manner which will be contrary to maintaining of public order and for preventing you in acting in any such manner, which is contrary to maintaining public order, it is necessary to detain you with the aforesaid object. (English version).
4. Rest of the contents of the order aforesaid are not relevant for the purposes of pointing out the grounds of detention of the petitioner.
5. We have heard learned counsel for the petitioner Sri Prahlad Khare and the learned Addl. Government Advocate.
6. The counsel for the petitioner has made submission in support of his contention that the order of detention passed against the petitioner is illegal and continuance of the petitioner under detention in pursuance of the aforesaid order is also illegal. The submissions of the petitioner's counsel are being noticed in seriatim hereinbelow :
1. The petitioner's bail application in Case Crime No. 25 of 1994 was rejected by the learned Magistrate on 14-2-1994. The said important material was not placed before the detaining authority at the time he passed the order of detention against the petitioner, consequent thereto the order of detention passed against the petitioner is based on incorrect information that in both the cases the petitioner's applications are pending and the petitioner is likely to be released on bail.
2. The alleged incident on the basis of which the petitioner has been detained under the National Security Act at best makes out a case of disturbing of law and order and not disturbing public order, as such the provisions of National Security Act could not have been invoked against the petitioner for the purpose of detaining him under Section 3(2) of the Act.
3. The Government has not submitted the report of the District Magistrate to the advisory Board as per requirements of Section 10 of the Act.
4. The Government has rejected the petitioner's representation without waiting for the report of the Advisory Board, as such the order rejecting the petitioner's representation is bad in law.
7. We propose to consider the submissions made by the petitioner in the same order in which the submissions have been made.
8. In paragraph ' 17' of the writ petition, it has been categorically stated that the detaining authority was not aware of the fact that the bail application of the petitioner in Case Crime No. 25 of 1994 was rejected by the learned Magistrate on 14-2-1994 and the detaining authority was not aware of the fact if any application for bail has. been moved before the Sessions Judge, as such the detaining authority has not applied his mind to relevant material necessitating the petitioner's detention under the National Security Act. Sri Kapil Dev, the then District Magistrate, Kanpur City, has filed his counter affidavit and in reply to the statement made in paragraph '17' of the writ petition, it has been stated in his counter affidavit that it is true that the detenu had made an application for release on bail in case Crime No. 25 of 1994 before Metropolitan Magistrate, Kanpur City from which it was clear that the detenue is going to be released from jail in near future and keeping this in mind, it became necessary to detain the petitioner under National Security Act. Ordinarily in an offence under Section 354, 323 and 506 I.P.C. the bail is accepted from the Court. If the Magistrate, therefore, as soon as the bail application was moved before the Metropolitan Magistrate, there was enough reason to believe that the detenu is going to be released on bail in near future. Therefore, the action was taken on the basis of the application filed by the detenu before the Magistrate. The statement made in the counter affidavit makes it clear that the detaining authority passed the detention order against the petitioner only on the basis that the petitioner has filed an application for bail before the Metropolitan Magistrate in Case Crime No. 25 of 1994. The vital fact that the petitioner's bail application was rejected before passing of the detention order was not brought in the knowledge of the detaining authority.
9. In the aforesaid background, the question which calls for consideration in the present matter is that if the detaining authority has passed the detention order ignoring the material fact or under a wrong assumption that petitioner's bail application is pending before the Metropolitan Magistrate, can a detention order passed under Section 3(3) of the Act is sustainable in law?
10. The whole purpose and object of the preventive detention law, authorising preventive detention of a person, is to ensure, that the person from whom it is apprehended that he will indulge in activity which is prejudicial in respect of defence, security, public order and. services essential to the community etc., he can be detained for a period prescribed under a particular statute. Since such a detention is permitted only in extra ordinary circumstances, a constitutional safeguard has been provided by Article 22 of the Constitution of India for ensuring that the power of preventive detention is not misused by the State Authorities and even a restriction has been put on the legislature to ensure, safeguards contemplated by Article 22 of the Constitution are incorporated in the enactments provided for preventive detention of a person. In this view of the matter, it is necessary that the detaining authority must have material before it on the basis of which it is satisfied that if a person is allowed to remain free, he is likely to commit such acts which are prejudicial to defence, security, public order etc. In the aforesaid background as far back as in the year 1985 in the case of Ramesh Yadav v. District Magistrate (1985)2 Scale 486 : 1986 Cri LJ 312 the Hon'ble Supreme Court held (at p. 313 of Cri LJ):
...Merely on the ground that an accused in detention as an under trial prisoner was likely to get bail an order of detention under the National Security Act should not ordinarily be passed....
11. However, the question came up for consideration before a Full Bench of this Court in Birendra Kumar Rai v. Union of India 1982 Cri LJ 3866 this Court after review of entire case law took a view that if there is material before the detaining authority to be satisfied that the person already in detention is likely to be released on bail, then in appropriate cases, the detaining authority shall be justified in passing the detention order against such a person. The said decision of the Full Bench has been affirmed by the Hon'ble Supreme Court in Birendra Kumar Rai v. Union of India AIR 1993 SC 962 : 1993 Cri LJ 158.
12. However, for appreciating the proposition of law laid down by the Full Bench of this Court in Birendra Kumar Rai's case (1992 Cri LJ 3866) (Supra), it is useful to quote the following from the said decision (at p. 3895 of Cri LJ):
From the aforesaid decision it is clear that merely a detenue is under detention cannot in validate the order of detention under preventive detention law if the detaining authority is otherwise satisfied on the basis of cogent material on the record for compelling reasons that he must be detained in order to prevent him indulging in such prejudicial activities and further he is aware of the fact that the detenu is already under detention. In the present case, we find, the grounds of detention records awareness of the detaining authority that the petitioner is already in jail in the district jail, Ghazipur and further records its satisfaction that there is compelling necessity of detaining him under detention as there is likelihood of the detenu indulging in illicit traffic of narcotics drugs in view of the trend of the detenu's activities in case he comes out of jail. Further, the fact that the petitioner was under detention as undertrial in the district jail, Ghazipur only for offences under the Arms Act and the Motor Vehicles Act, it therefore, cannot be said that the passing of the detention order suffers from any illegality.
13. Approving the said decision in Birendra Kumar Rai's case (1993 Cri LJ 158) (Supra), the Hon'ble Supreme Court held (at p. 161 of Cri LJ) ...The detaining authority was aware that a bail application had already been filed by the petitioner and the same was to come up for hearing on 7-12-1990 and in these circumstances the detaining authority was justified in recording the satisfaction of compelling necessity of issuing the detention order as it could not have been predicted with certainty that the petitioner would not be released on bail shows that if the detaining authority has compelling necessity of issuing detention order as it could not have been predicted with certainty that the petitioner would not be released on bail.
14. An analysis of the aforesaid decisions shows that if the detaining authority has comperling necessity of issuing detention order as it could not have been predicted with certainty that the petitioner would not be released on bail, it can pass the detention order. In the aforesaid context, the present case need be examined.
15. The detention order was passed against the petitioner on 15-2-1994 on the premise that the bail applications of the petitioner are pending in Case Crime No. 190 of 1993 under Section 307 I.P.C. and also in case crime No. 25 of 1994, under Sections 354, 323 and 506 I.P.C. The pendency of the applications in both the cases was the basis of forming the satisfaction of compelling necessity of issuing the detention order as the detaining authority has formed his subjective opinion that the detenu is likely to come out of jail and his detention is necessary, for preventing him from indulging in such criminal" acts by which the public order "will be disturbed.
16. The admitted position is that even before passing of the detention order, the bail application of the petitioner was rejected by the Metropolitan Magistrate in case Crime No. 25 of 1994 on 14-2-1994. Subsequent thereto, there was no material before the detaining authority on the basis of which the detaining authority could have recorded its satisfaction that there is compelling necessity to pass the order of preventive detention as the petitioner was likely to come out of jail and there was every likelihood that after coming out of jail, the petitioner will indulge in such criminal acts by which the public order will be disturbed. There was no further material available with the detaining authority for recording such satisfaction of petitioner being released on bail as it is not mentioned in the detention order nor in counter affidavit filed by the District Magistrate that the petitioner is likely to be released from jail either on the basis, that the petitioner has moved another bail application before the same court or before the Sessions Judge or on the basis that the police is going to file a final report. The basis of forming satisfaction of the detaining authority as alleged in the detention order itself is that the bail applications of the petitioner in both the case crimes are pending. The detaining authority was not conscious of the fact that the bail application of the petitioner has been rejected by the Metropolitan Magistrate, neither it is in the knowledge of the detaining authority that any other effort is being made by the petitioner to get out of jail. The only reason reiterated in the counter affidavit of the District Magistrate is that since the petitioner was detained only in an offence like sections 354, 323 and 506 I.P.C. there was every likelihood of his being released on bail, but the counter affidavit fails to disclose as to what was the immediate compelling necessity of passing a detention order against the petitioner. Unless there was some material placed before the detaining authority for recording its satisfaction that the release of the petitioner from the jail is almost imminent, the order of detention cannot be justified. In the present case, the bail application of the petitioner having been rejected and there being no other material for coming to the conclusion that the petitioner is likely to be released from jail, the necessary of passing the detention order could not be said to be compelling necessity merely on the ground, stated in the counter affidavit, i.e., Ordinarily in an offence under Sections 354, 323 and 506 I.P.C. bail is accepted from the court of the Magistrate, therefore, as soon as the bail application was moved before the Magistrate, there was enough reason to believe that the detenu was going to be released in near future.
17. Since the order of detention as well as the counter affidavit both shows that the detention order was passed on the basis that the petitioner's bail application is pending before the Magistrate, which was factually incorrect. The detention order was passed by the detaining authority without acquainting himself with the latest position of the pendency of the bail application, as such the order of detention was passed on a non-existent fact and as such is vitiated in law.
18. The above view finds support in a Division Bench decision of this Court in Shakil Akhtar v. State of U.P. 1991 All Cri C 511 : 1991 Cri LJ NOC 28 where in similar circumstances, the Division Bench of this Court held :
On the proved facts we are constrained to hold that there has been no subjective satisfaction in the instant case, by the detaining authority on consideration of relevant material. In fact the so called satisfaction is based upon an irrelevant material while ignoring the relevant ones. The bail application dated 21-4-1990 having been rejected on 24-4-1990 by the Additional Chief Metropolitan Magistrate, Kanpur Nagar ceased to be of any relevance for the purposes of making preventive detention order under Section 3(3) of the Act on 29-4-1990. The order dated 24-4-1990 rejecting the bail application though relevant was admittedly not placed before the Detaining Authority, nor was any material placed before him to show that any application for bail was moved and pending before the Sessions Court on 29-4-1990. It is true that the application for bail was moved in the Sessions Court on 25-4-1990, but this having not been placed before the Detaining Authority, the subjective satisfaction arrived at by it, can by no stretch of imagination be said to be a valid subjective satisfaction for the purposes of sustaining the order of preventive detention under Section 3(3) of the Act.
19. However, in this connection it may also be mentioned that in the present case after reciting the incident in relation to Case Crime No. 25 of 1994, the detaining authority referred to the report of the Sub-Inspector to the effect that the petitioner has terrorised the witness Hafiz Ullah, thereafter noticed the publication of the news papers regarding the said incident and then recorded its satisfaction on the aforesaid basis that terror has struck in the people of nearby area and they have feeling of insecurity. Immediately thereafter the detaining authority in the detention order states ---
From the aforesaid facts, it is clear that you are hardened criminal and you fire on the police party without any hitch with an intention to kill and molest the girls publicly and threaten the common citizens and due to your criminal actions, the public order is disturbed and you have become problem for maintaining public order. Therefore, it has become necessary to detain you.
20. The narration of order clearly shows that there was no mention in the facts stated earlier on the basis of which a conclusion could be arrived at that the petitioner fired on the police party without any hitch with an intention to kill. This also shows that the detaining authority has passed the detention order without applying its mind to the facts on the basis of which the petitioner's detention is required. There was no whisper in the earlier part of the detention order alleging anything against the petitioner regarding firing by him on the police party with an intention to kill. It is also not indicated in the detention order as to on what' basis the detaining authority has arrived at the aforesaid conclusion. The detention order does not refer to any document in regard to the said allegation. No particulars were given in the detention order regarding firing by the petitioner on the police party without any hitch with an intention to kill. In these circumstances, it was difficult for the petitioner to make an effective representation against the detention order and this also violated the guarantee contemplated by the Constitution under Article 22(5) of the Constitution of India.
21. Now the petitioner's contention that the alleged incident did not create any public order problem but at best it can be attributed that by the said incident the law and order was disturbed require consideration. For judging it, a Division Bench decision of this Court in Abhishek Malviya alias Munnu v. State of U.P. 1990 All Cri C 187 : 1990 Cri LJ 747 has to be referred wherein it has been held (at p. 757 of Cri LJ):
...In order to draw an inference whether a particular activity amounts to breach of law and order or breach of public order depends on its extent and reach to the society. So long it is restricted to a particular individual or a group of individuals it breaches the law and order problem but if the effect and reach and potentiality of the act is so deep as to affect the community at large or even tempo of the community then it becomes breach of the public order. Thus, whether an act is law and order or public order depends upon the impact of the act on the life of the community or in other words the reach and effect and potentiality of the act if so put as to disturb the even tempo of the life of the community.
One of the broad criteria for judging this is to see whether the activity of the detenu is such which is done with open defiance and the defiance is such that it created terror in the vicinity and/or creates panic in the mind of the public that he would not desist from committing the offence even in future and fear in the mind of the public should be such that if they tried to resist such an act would be detenu's offensive to the public at large would be unabated.
22. In the above background the present incident on the basis of which the detention order has been passed against the petitioner is to be examined. The detention order itself state that on petitioner's attempt to molest Km. Rizwana, some people showing courage got Km. Rizwana freed from the petitioner and subsequently as many as four witnesses of the locality gave statements to the police under Section 161 Cr. P.C. supporting the prosecution case of the petitioner's attempt of molesting Km. Rizwana. This also goes to show that the petitioner is not such a dare devil that people were scared of him and his attempt to molest a girl openly created a problem of public order.
23. We may hasten to add that we are not laying down that in a particular set of circumstances, if somebody makes an attempt to molest a girl then it will never be a public order problem but in the facts of the present case where instantaneously the locality people got freed Km. Rizwana from the clutches of the petitioner and also readily gave statements to the police in support of the prosecution case show that the public at large was not so scared as to desist them from saving a girl from the clutches of the petitioner and also that they were not afraid of the petitioner to this extent as they gave statements to the police under Section 161 Cr. P.C, against the petitioner.
24. The other two circumstances mentioned in the detention order for holding the incident to be a public order problem are that the shop keepers are closing their shops, the doors and windows of the houses are being closed and that the newspapers of the city published the incident prominently and consequent thereto the ladies organisations have taken out processions and have gheraoed the Thana. So far as the the closure of the shops is concerned, in the case of Abhishek Malviya alias Munna, (1990 Cri LJ 747) (All) (Supra), a Division Bench of this Court took the view that mere closure of the shops or commotion in the absence of any evidence or statement made under Section 161 need not necessarily lead to the conclusion that it is a case of public order.
25. So far as the protests of ladies organisations are concerned, the protests are not the indication of public order problem. The newspapers cuttings only show that the protests of the ladies organisations were in respect of inefficiency of the police regarding their inability to check the molestation of women in general and with particular reference to the incident of Km. Rizwana. These newspapers reports also do not make out any case on the basis of which a satisfaction could have been recorded by the detaining authority that on the aforesaid basis the incident created a problem of public order. On the aforesaid basis, we are satisfied that there was no material before the detaining authority to arrive at the conclusion that the detention of the petitioner was necessary for maintaining public order. We are also of the view that the detaining authority in the present case has only on the basis of the report of the Sub-Inspector of Police, dated 14-2-1994 has recorded its satisfaction, the detaining authority has failed to apply its independent mind on the basis of the material placed before it for coming to the satisfaction that if the petitioner remains at large, he is likely to create a public order problem.
26. Since we are of the opinion that the petitioner's detention order is vitiated in law on the points already discussed above, we are not addressing ourselves on the other submissions made by the petitioner's counsel in support of the writ petition.
27. We allow the habeas corpus writ petition and set aside the order of detention, dated 15th of February, 1994 passed by the District Magistrate, Kanpur City and direct the respondents to set the petitioner at liberty forthwith unless the petitioner is wanted in some other case.