Hon'ble Shashi Kant,J.
Radhey Shyam Parcha s/o Sheetal Prasad is before this Court with a request to quash the detention order dated 14th of September, 2013 passed by the District Magistrate, Shamli under Section 3 (2) (3) of the National Security Act, 1980 and further prayer has been made to direct release of the petitioner forthwith.
Brief background of the case as is emanating in the present case is that an FIR was lodged by Jai Bhagwan s/o Ram Kishore at police station Kotwali Shamli, district Shamli being Case Crime No. 261 of 2013 under Sections 147/148/149/323/504/506/153-A IPC and Section 3 (1) X of SC/ST Act on 3.9.2013 at 19.45 PM against Israr, Intezar both sons of Iliyas and Azam as well as other unknown persons stating therein that Israr, Intezar and Azam and other dozens persons of Muslim community came armed with weapons and country made pistols and after using 'Jati Suchak' abuses with intention to cause death committed marpeet in which Sagar son of Mohan has sustained grievous injuries. Petitioner has proceeded to mention that thereafter on 3.9.2013 at 19.45, a first information report was lodged by one Syed son of Abdul Rahman at police station Kotwali Shamli, district Shamli being Case Crime No. 262 of 2013 under Sections 147/148/149/302/307/323/324/504/153-A IPC and Section 7 Criminal Law Amendment Act against the 11 named and other unnamed persons including the petitioner mentioning therein that on 3.9.2013 at Timurshah there has been some clashes with members of Valmiki community, thereafter, Ghanshyam Parcha has asked members of Valmiki community to assemble with arms, and pursuant thereto petitioner and other members and dozen of unknown members of unlawful assembly opened fire with common intention wherein fire arm injuries has been received by Ehsan, who died, and dozen of other persons received fire arm injuries. Petitioner has further submitted that on 3.9.2013 an FIR was lodged by Rampal at police station Kotwali Shamli, district Shamli being Case Crime No. 263 of 2013 under Sections 147/427/323/504/153-A IPC and therein it was mentioned that while he was returning with his relatives and friends from Nozal to his village, then 10-15 persons intercepted the vehicle and the vehicle in question was damaged and when Mohd. Harun tried to prevent it then he was attacked and when people started collecting there, said persons fled from the scene.
Petitioner has contended that after the said incident in question has taken place the public order and public tranquility was disturbed by the persons of Muslim community and, consequently, there was communal tension in between both the communities and both the community rushed near Shiv Chowk and raised slogans against each other and also thrown stones against each other. In respect of the incident, a first information report was lodged by Om Prakash, Inspector, police station Kotwali Shamli on 3.9.2013 at 23.40 PM being Case Crime No. 264 of 2013 under Sections 147/148/149/307/342/336/436/392/427/323/504/506/153-A IPC and Section 3/4 Prevention of Public Property Damages Act and Section 7 Criminal Law Amendment Act mentioning therein that communal harmony had been completely disturbed, and it was free for all, shops, houses, motorcycles were being burnt and entire incident was orchestrated by petitioner, his brother and about 100-150 persons, who all were armed. Details have also been given that one could hear shrieks of children, women folk and there has been complete anarchy and incident of loot and arsoning has also been committed by the members of Muslim community and large scale reinforcement had to be asked for.
Petitioner has proceeded to mention that in reference of the aforementioned three criminal cases that have been so registered petitioner has been arrested and has been detained in jail. Thereafter, petitioner has moved an application for bail before the Chief Judicial Magistrate concerned in Case Crime No. 262 of 2013 under Sections 147/148/149/302/307/323/324/504/153-A IPC read with Section 7 of Criminal Law Amendment Act and his bail application was rejected on 13th of September, 2013. This much is also reflected that after the said bail application was rejected on 13th of September, 2013, a beat report was submitted by Constable Kunwarpal Singh mentioning therein that through his pairokar he is trying to get bail and come out from jail, and petitioner would move bail application in Muzzafarnagar Court as well as Kairana Court. After hearing this people are afraid and are under fear as after being released on bail, petitioner can again flare up communal violence. The information of said beat report has been confirmed by SI Satyapal Vats and, accordingly, the District Magistrate, Shamli on 14th of September, 2013 has proceeded to pass an order for preventive detention of petitioner and this very action of preventive detention is impugned in the present writ petition.
Shri Jitendra Kumar Shishodia, learned counsel for the petitioner, submitted with vehemence that in the present case the order of preventive detention is totally unjustifiable and based on totally irrelevant considerations, inasmuch as, the authority of preventive detention has been exercised on the parameters that there are possibilities of petitioner being released on bail and petitioner's submission before this Court is that said foundation and basis is unfounded as there was no material to support the same and, in view of this, it is being contended that detention order is based on mere whims and fancies and on mere ipse dixit of detaining authority, accordingly, detention order is liable to be quashed and writ petition deserves to be allowed.
Petitioner's counsel has further questioned the validity of the detention order on the ground that in the present case the statement of fact mentioned in the detention order that petitioner was leading the mob is incorrect and the same is fully substantiated from the FIR in question wherein details have been mentioned that petitioner was not at all leading the mob rather he has been shown as one of the member of the mob and this shows non application of the mind on the part of the detaining authority. Learned counsel for the petitioner has further submitted that in the present case detention order is bad as the Central Government has failed to decide the representation with all efficacy and there has been great delay in communicating the same, after detention order has been confirmed.
Learned AGA, Shri Syed Ali Murtaza, on the other hand contended that in the present case detaining authority has rightly exercised its authority of preventive detention as there has been possibility of bail being moved on behalf of petitioner, as per the beat report that has been affirmed in further enquiry, and this fact has been found to be truthful as after detention order has been passed bail application in effect has been moved but same has been withdrawn and in the facts of the case whatever activities of petitioner has been, same had the effect of disturbing public peace and tranquility and also disturbing public order and here with all efficacy decision has been taken, as such, no interference should be made by this Court and writ petition is liable to be dismissed.
After respective arguments have been advanced this Court proceeds to consider the issue no. 1 that has been so raised on behalf of petitioner that in the present case detaining authority without any foundation and basis has formed opinion that there are possibilities of petitioner coming out of jail on bail being moved and, in view of this, the detention order is bad.
To consider this particular argument we proceed to examine the viewpoint of the Apex Court on the said subject matter as to whether a person, who is in jail, can he be detained under detention law on the possibility and probability of bail being granted. Said issue has been engaging the attention of Apex Court time and again and the leading case on the point is Kamarunnissa Vs. Union of India 1991 Crl.L.J. 2058, wherein Apex Court has proceeded to take a view that even in cases of person in custody a detention order can validly be passed but in such a situation the detaining authority has to record his satisfaction on following matters (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition to question it before a higher Court.
Apex Court in the case of Ahmed Nassar Vs. State of Tamil Nadu AIR SC 3897 keeping in view the peculiar characteristic of the case in hand, wherein before the detaining authority there existed not only order dated 12.04.1999 rejecting his bail application but the contents of bail application dated 01.04.1999, concluded that the conclusion of detaining authority on the facts of the case "there is likelihood of his being released on bail" cannot be said to be based on no relevant material. In the said case the words "likely to be released" has been explained as chances of being bailed out, in case there is pending bail application or in case if it is moved in future to be decided. The judgment of Kamarunnissa (Supra), thereafter, once again has been followed by the Apex Court in the case of T.V. Sravanan @ S.A.R. Prasana Venkatachaariar Chaturvedi Vs. State (through Secretary) and another 2006 (2) SCC 664. In the said case also Apex Court reiterated that once detenu is already in jail or custody, the detention order can be passed but conditions laid down in the case of Kamarunnissa (Supra) has to be fulfilled and the possibility of his release on bail should be imminent and apprehension of detaining authority regarding the same must be based on cogent material and in absence of such material, detention order based on mere ipse dixit of detaining authority regarding imminent possibility of detenu's prayer for bail being granted cannot be sustained. Relevant extract of the said judgment is hereby quoted below;
"We are satisfied that for the same reason the order of detention cannot be upheld in this case. The bail applications moved by the appellant had been rejected by the Courts and there was no material whatsoever to apprehend that he was likely to move a bail application or that there was imminent possibility of the prayer for bail being granted. The "imminent possibility" of the appellant coming out on bail is merely the ipse dixit of the detaining authority unsupported by any material whatsoever. There was no cogent material before the detaining authority on the basis of which the detaining authority could be satisfied that the detenue was likely to be released on bail. The inference has to be drawn from the available material on record. In the absence of such material on record the mere ipse dixit of the detaining authority is not sufficient to sustain the order of detention. There was, therefore, no sufficient compliance with the requirements as laid down by this Court. These are the reasons for which while allowing the appeal we directed the release of the appellant by order dated 13.12. 2005.
The said judgment has once again been approved by the Apex Court in the case of Rekha Vs. State of Tamil Nadu through Secretary to Government and another 2011 (5) SCC 244 and therein it has been clearly mentioned that only if there is real possibility of release of a person on bail, who is already in custody, provided he has moved a bail application, which is pending and if no bail application is pending, then there is no likelihood of the person in custody being released on bail and hence the detention order will be illegal. However, there can be an exception to this rule, that is, where a co-accused whose case stands on the same footing had been granted bail. In such cases, the detaining authority can reasonably conclude that there is likelihood of the detenu being released on bail even though no bail application of his is pending, since most courts normally grant bail on this ground. However, details of such alleged similar cases must be given, otherwise the bald statement of the authority cannot be believed.
Apex Court once again in the case of Huidrom Konungjao Singh Vs. State of Manipur and others 2012 (7) SCC 181 has revisited the entire law on the subject of real possibility of detenu's release on bail and therein clearly it has been mentioned that there is no prohibition in law to pass the detention order in respect of a person, who is already in custody in respect of criminal case. However, if the detention order is challenged the Court has to satisfy itself that the authority is fully aware of the fact that the detenu is actually in custody and there should be reliable material before the authority on the basis of which it could have reasons to believe that there was real possibility of his release on bail and he would probably indulge in activities which are prejudicial to public order and, in view of the above, the authority felt it necessary to prevent him from indulging in such activities and, therefore, detention order was necessary. In the said case Apex Court has also found that merely, because somebody else in similar cases had been granted bail, there could be no presumption that in the instant case had the detenu applied for bail could have been released on bail. Thus, as the detenu in the instant case has not moved the bail application and no other co-accused, if any, had been enlarged on bail, resorting to the provisions of Act was not permissible. Therefore, the impugned order of detention is based on mere ipse dixit statement in the grounds of detention and cannot be sustained in the eyes of law.
Once such are the parameters of consideration on the said subject, on the touchstone of the above-noted parameters the present detention order is being examined.
This Court has perused the detention order in question and the documents so supplied in respect of the same and the detention order in question reflects that the detaining authority has proceeded to form opinion of preventive detention of petitioner and therein reference has been given of the three criminal cases along with the details of the case being Case Crime No. 262 of 2013 under Sections 147/148/149/302/307/323/324/504/153-A IPC and Section 7 Criminal Law Amendment Act and then reference has been given of Case Crime No. 263 of 2013 under Sections 147/427/323/504/153-A IPC and, thereafter, reference has been given of Case Crime No. 264 of 2013 under Sections 147/148/149/307/342/336/436/392/427/323/504/506/153-A IPC and Section 3/4 Prevention of Public Property Damages Act and Section 7 Criminal Law Amendment Act and investigation of said criminal case is being made by Narendra Singh. It has been mentioned therein that during the course of investigation statement of Om Prakash has been recorded by IO concerned, wherein it is reflected that petitioner and his associates have participated in the aforementioned criminal cases with the object of disturbing communal harmony and in the said direction damaging property, arsoning facts have been substantiated. Large scale shoes, motorcycles, scooties etc. have been recovered and the investigation reflects complicity of petitioner. It has also been mentioned that such activities of petitioner and his associates has resulted in various counter acts of arsoning and looting in Shamli area and on account of the same there has been serious apprehension of life and property in public at large and details have also been given that Vedpal, Prakash Chandra, Smt. Sevati, Manish Goyal, Shishir Jain, Mukesh Kumar Jain and M/s. Suresh Chandra have also given reports of the looting and arsoning that has taken place and it has also been mentioned that all the activities of petitioner are of daredevil nature and same have also been widely published in newspapers. It has also been mentioned therein that petitioner has spread hatred and on account of provocation given by him under his leadership large scale criminal activities have been carried out by the mob against a particular community and on account of which life of hundreds have been disturbed and sense of insecurity has been there. It has also been mentioned therein that at large places fires have been opened and on account of arsoning and looting entire public order has been disturbed and as a reaction of the same members of other community have also indulged in similar activities for which apart from local police additional forces have been deployed in the area and as petitioner is detained in jail in Case Crime No. 262 of 2013 under Sections 147/148/149/302/307/323/324/504/153-A IPC and Section 7 Criminal Law Amendment Act and in Case Crime No. 263 of 2013 under Sections 147/427/323/504/153-A IPC as well as in Case Crime No. 264 of 2013 under Sections 147/148/149/307/342/336/436/392/427/323/504/506/153-A IPC and Section 3/4 Prevention of Public Property Damages Act and Section 7 Criminal Law Amendment Act and details have been given that petitioner has moved bail application in Case Crime No. 262 of 2013 under Sections 147/148/149/302/307/323/324/504/153-A IPC and Section 7 Criminal Law Amendment Act before the Chief Judicial Magistrate concerned and same has been rejected by the competent court and on 13.09.2013 Constable Kunwar Pal Singh has given beat information that petitioner through his pairokar is trying to get himself bailed out and come out from jail and petitioner would be moving bail application at Muzaffarnagar and Kairana courts and hearing this public is under duress and fear in case petitioner comes out again after obtaining bail there can be violence and the said beat information has been inquired by SI Satyapal Vats and he has ratified the same.
Based on the same it has been mentioned that petitioner is attempting to come out from jail and if he comes out from the jail, then there are possibility of communal clashes on the provocation of petitioner and there is lot of fear and insecurity and there would be again disturbance of public on a order and, in view of this, satisfaction so recorded, petitioner has been detained in jail.
The detention order in question clearly reflects that as far as petitioner is concerned, he has been detained in three criminal cases being Case Crime No. 262 of 2013 under Sections 147/148/149/302/307/323/324/504/153-A IPC and Section 7 Criminal Law Amendment Act and in Case Crime No. 263 of 2013 under Sections 147/427/323/504/153-A IPC as well as in Case Crime No. 264 of 2013 under Sections 147/148/149/307/342/336/436/392/427/323/504/506/153-A IPC and Section 3/4 Prevention of Public Property Damages Act and Section 7 Criminal Law Amendment Act and only in one criminal case i.e. Case Crime No. 262 of 2013 under Sections 147/148/149/302/307/323/324/504/153-A IPC and Section 7 Criminal Law Amendment Act, he has moved application for bail and same has been rejected on 13th of September, 2013. This much is also reflected that after the said bail application has been rejected on the very next day i.e. 14th of September, 2013, the detaining authority has proceeded to pass an order of preventive detention of petitioner. This much is also reflected that in order to form such a opinion as to there are possibility of petitioner coming out from jail on bail reliance has been placed on the beat report given by Constable Kunwar Pal Singh and confirmed by SI Satyapal Vats and the same has been made foundation and basis to form such an opinion that there is possibility of petitioner coming out from jail on bail.
At this juncture this Court proceeds to take note of the beat report dated 13.09.2013 as well as its confirmation report. Same is as follows;
udy jiV uEcj&7 le; 6-15 cts jkstukepkvke fnukad 13-09-2013 Fkkuk dksrokyh 'kkeyh] tuin 'kkeyh%& okilh dk0 bl le; dk0 634 dqaojiky flag] OP uanq izlkn us Fkkuk vkdj rgjhj djk;k fd tuin 'kkeyh esa yksxksa dks HkM+dk dj lkEiznkf;d naxk HkM+dkus okys vfHk;qDr /ku';ke ikpkZ] jk/ks';ke ikpkZ iq= 'khry izlkn vius iSjksdkjksa ds ek/;e ls viuh&viuh tekur djkdj tsy ls ckgj vkus dk iz;kl dj jgs gSa] ;g Hkh irk pyk gS fd buds iSjksdkj vkt eqtQ~Qjuxj U;k;ky; esa tkdj budh tekur dk izkFkZuk i= nsxsa vkSj mlds ckn dSjkuk U;k;ky; esa Hkh tekur dk izkFkZuk i= nsxsa yksx bl ckr dks lqudj Hk;Hkhr gS Mjs lges ls gS] vxj ;g tekur ij NqVdj vk x;s rks iqu% naxk HkM+dk ldrs gSA chV lwpuk vafdr dh xbZA chV dh tkap ,l0vkbZ0 Jh lriky cLr dks nsdj jokuk fd;k x;kA ,lMh lhlh 436 fot; dqekjA udy jiV uEcj&11 le; 7-10 cts jkstukepkvke fnukad 13-09-2013 Fkkuk dksrokyh 'kkeyh] tuin 'kkeyh%& okilh ,l0vkbZ0 ,l0vkbZ0 Jh cLr j¶rkjiV jks0vke rkjh[kh bejkstk ls ckn tkap chV lwpuk ls okfil vk;s rgjhj djk;k fd dk0 634 dqaoj iky flag }kjk vafdr djk;h xbZ chV lwpuk dh tkap gLo vkns'k izHkkjh fujh{kd 'kkeyh egksn; ds esjs }kjk dh xbZ rks okD;kr lgh ik;s x;s irk pyk gS fd ?ku';ke ikpkZ] jk/ks';ke ikpkZ ds iSjksdkj dSjkuk] eq0uxj U;k;ky; ls tekur djkus esa yxs gS] {ks= esa yksxks esa dkQh jks"k O;kIr gS] ;fn ?ku';ke ikpkZ] jk/ks';ke ikpkZ dh tekur gks xbZ rks iqu% yksxksa dks HkM+dkdj lkEiznkf;d naxk djsxsa leLr rF;ks ls ,l-,p-vks- egksn; dks voxr djk;k tk;sxkA ,lMh lhlh 436 fot; dqekj In the present case this much is clearly reflected from the facts and circumstances that bail in question has been moved only in one case i.e. Case Crime No. 262 of 2013 under Sections 147/148/149/302/307/323/324/504/153-A IPC and Section 7 Criminal Law Amendment Act before the Chief Judicial Magistrate and the same has been rejected by the Chief Judicial Magistrate only in reference of one case whereas petitioner has been detained in jail in two other cases. The opinion that has been formed by the detaining authority is based on the report of the beat personnel and of its affirmance by SI concerned, whereas the fact of the matter is that on the date when detention order has been passed no bail application whatsoever has been filed and neither any bail application has been pending and detention order was passed on the ground that through their pairokars they are trying to get bail and come out of jail.
At this juncture we proceed to scrutinize the two reports. Beat report proceeds to mention that through their pairokars they are trying to get themselves bailed out. It has also been mentioned therein that today his pairokar would move bail application and thereafter would move bail application in Kairana Court. Beat report is completely silent as to what was the name of pairokar who was to move bail application on the same day and from where such an information has been gathered. Beat report proceeds to mention that on hearing the factum of moving of bail application, people are under fear that after they are released, communal violence will flare up. Not even a single detail has been given from where such an opinion has been formed. Report of Sub Inspector proceeds to mention that he confirms the report that his pairokars are attempting for getting bail for petitioner and after hearing that the bail is to be moved, there is lot of resentment. Beat report mentions that amongst member of public there is fear and the Sub Inspector has mentioned that there is resentment. Both have given different reasons but at the end it has been added in both the report that after coming out they can flare up communal clashes. The District Magistrate has placed reliance on these reports, even without verifying as to whether any bail application in effect had been moved on 13.09.2013, as has been mentioned in beat report, and the different reason was being given by Constable and by Sub Inspector of its impact in public after being released. After receiving such report, District Magistrate was obligated to apply his independent mind, instead of mechanically accepting the same. Circumstances are speaking for itself that in a hot haste manner by calling for tailor made report detention order has been passed. Such detention order on such presumption cannot be approved of as the opinion of there being likelihood of being released on bail cannot be said to be based on relevant reliable material. In the facts of present case satisfaction of detaining authority of imminent possibility of petitioner being released on bail is completely mechanical one and there is no cogent/reliable material to sustain such opinion.
Even otherwise the Apex Court in the case of Rekha (Supra) mentioned that if no bail application is pending, then there is no likelihood of the person in custody being released on bail and hence the detention order will be illegal and therein exception has been carved out that if co-accused, whose case stands on the same footing had been granted bail, in such cases, the detaining authority can reasonably conclude that there is likelihood of the detenu being released on bail even though no bail application of his is pending, since most courts normally grant bail on this ground. However, details of such alleged similar cases must be given, otherwise the bald statement of the authority cannot be believed.
In the present case, this is not at all the case of the detaining authority that any other co-accused has been granted bail and case of petitioner also stands on same footing and he could be accorded bail on parity and bail application could be moved. The fact of the matter is that no bail application whatsoever has been filed by the petitioner on the date when detention order has been passed and on mere apprehension and ipse dixit of detaining authority, detention order has been passed. It has been submitted that subsequent to the same bail had been moved and then withdrawn. Validity of detention order has to be tested on the material that was before the detaining authority when he proceeded to record his satisfaction. By collateral material satisfaction so recorded cannot be justified and said material cannot be relied upon.
Once such is the factual situation that there were three criminal cases pending against the petitioner and only in one case bail application in question has been moved and same has been rejected by the court concerned and in two other matters at no point of time any bail application has been moved, then merely on the report submitted by the beat personnel and affirmance of the same by the officer concerned in mechanical manner, such a detention order could not have been passed by forming the opinion that there were possibilities of petitioner being released on bail, as forming of such an opinion ought to have been based on some cogent and reliable material and on objective consideration by the detaining authority and in absence of the same, the detention order has to be accepted based on mere ipse dixit of the detaining authority. Here in the present case, the opinion of likelihood of petitioner being released on bail is not at all based on relevant cogent material.
For the reasons given above, writ petition is allowed, the impugned detention order dated 14th of September, 2013 passed by the District Magistrate, Shamli under Section 3 (2) (3) of the National Security Act, 1980, is hereby quashed and in case petitioner is not wanted in any other case, he is directed to be released forthwith.
As on issue no. 1, writ petition has been allowed, other issues raised have not been answered.
No order as to cost.
Order Date :- 25.7.2014 Shekhar