JUDGMENT Vishnu Sahai, J.
1. Through this writ petition, preferred under Article 226 of the Constitution of India, petitioner-detenu Sonu alias Ajai Vikram Upadhayay has impugned the order dated 31-5-2003, passed by Mr. Ram Kumar, District Magistrate, Sultanpur (opposite party No. 3) detaining him under Section 3(2) of the National Security Act.
The detention, order, along with the grounds of detention, which are also dated 31-5-2003, was served on the petitioner-detenu on 31-5-2003 itself and their true copies have been annexed as Annexure Nos. 1 and 2 respectively to this writ petition.
2. The prejudicial activities of the petitioner-detenu impelling the 3rd opposite party (District Magistrate, Sultanpur) to issue the impugned detention order against him, are contained in the grounds of detention (Annexure No. 2). A perusal of the grounds of detention would show that the Impugned detention order Is founded on a solitary C.R. namely, C.R. No. 163 of 2003, under Section 302, I.P.C. and Section 7; Criminal Law Amendment Act, registered on the basis of a complaint dated 1-3-2003, lodged at 11.10 a.m., at Police Station Dostpur, by Smt Indrapati, wife of Ram Nayak. In short, the details pertaining to the said C.R. are as under ; --
On 1-3-2003, at 10.00 a.m., detenu Sonu alias Ajai Vikram Upadhayay along with his associate Sonu alias Pawan Kumar Shukla went to the shop of Tilthu Agrahari in Kasba Chitepatti within the limits of police station Dostpur, district Sultanpur. The detenu sent Spnu alias Pawan Kumar Shukla to call Ghirau alias Ram Nayak Vishwakarma from his shop. The latter forcibly brought Ghirau alias Ram Nayak Vishwakarma to the shop of Tilthu Agrahari, where the detenu was sitting. Thereafter, the detenu abused Ghirau alias Ram Nayak Vishwakarma and the Informant. Ghirau alias Ram Nayak Vishwakarma asked the detenu not to abuse him. Thereupon, Sonu alias Pawan Kumar Shukla caught hold of both the hands of Ghirau alias Ram Nayak Vishwakarma and the detenu fired upon him. Thereafter, the detenu and his associate ran away. Informant made unsuccessful bid to catch them.
In the grounds of detention, it has been mentioned that as a consequence of the prejudicial act committed by the petitioner-detenu and his associate commotion and fear psychosis was created at the place of the incident and in the market and people entered inside their houses and closed their shops.
A perusal of the grounds of detention shows that in order to prevent the petitioner-detenu from committing such prejudicial acts, the Detaining Authority thought it imperative to detain him vide the impugned detention order.
3. We have heard learned counsel for the parties.
4. Mr. Farid Ahmad, learned counsel for the petitioner-detenu invited our attention to paragraph-6 of the supplementary affidavit, filed by Bhanu Pratap Upadhaya, wherein it has been mentioned that since the bail application preferred by the petitioner-detenu dated 12-5-2003 was rejected the same day by Chief Judicial Magistrate, Sultanpur and thereafter, the petitioner-detenu did not prefer any bail application till the passing of the impugned detention order, dated 31-5-2003, there was no cogent material before the Detaining Authority, warranting issuance of the impugned detention order.
Mr. Farid Ahmad, invited our attention to the grounds of detention, wherein the Detaining Authority has mentioned as follows :--
(Vernacular matter omitted.) In English, the aforesaid passage would read thus :--
"You (Sri Sonu alias Ajai Vikram Upadhayay) are in judicial custody in Crime No. 163 of 2003, under Section 302, I.P.C. and Section 7, Criminal Amendment Act of police station Dostpur, district Sultanpur and presently lodged in District Jail, Sultanpur. On 12-5-2003, you have preferred an application for bail in the Court of Chief Judicial Magistrate, Sultanpur. There is imminent likelihood that you are likely to be released on bail and thereafter, you would revert to committing similar activities prejudicial to the maintenance of public order."
Mr. Farid Ahmad strenuously contended that since the aforesaid passage (which we have extracted from the grounds of detention) shows that the detaining authority was labouring under the erroneous premise that the bail application dated 12-5-2003, preferred by the petitioner-detenu, before the Chief Judicial Magistrate, Sultanpur was still pending, though in fact it had been rejected by Chief Judicial Magistrate, Sultanpur on 12-5-2003, the impugned detention order is vitiated by the vice of non-application of mind and, therefore, warrants to be quashed and set aside.
5. The averments contained in paragraph-6 of the supplementary affidavit have been replied to in paragraph-8 of the return of Detaining Authority filed in reply to the averments contained in the supplementary affidavit. In the aforesaid paragraph, the Detaining Authority admits that the detenu's bail application, dated 12-5-2003, preferred before the Chief Judicial Magistrate, Sultanpur was rejected on the said date itself. He, however, has stated therein that since nothing prevented the petitioner-detenu for initiating the bail proceedings before Superior Court and there was possibility of the detenu committing the prejudicial acts subversive to the maintenance of the public order he was subjectively and reasonably satisfied that it was imperative to issue the impugned detention order against the detenu.
In the aforesaid paragraph, the Detaining Authority has also referred to the decision of the Apex Court, rendered in the case of Ahmad Nassar v. State of Tamil Nadu. (1999) 8 SCC 473 : (2000 Cri LJ 33), wherein the Apex Court has taken the view that in spite of rejection of the bail application by a Court it is open to the Detaining Authority to come to his own satisfaction, based on the contents of the bail application, that there is a likelihood of the detenu being released on bail and merely because no bail application was pending would be no premise to hold that there was no likelihood of his being released on bail.
6. We have perused the averments contained in paragraph-6 of the supplementary affidavit and those contained in paragraph-8 of the return of the Detaining Authority filed in response to them. In our view, this writ petition deserves to be allowed.
7. A perusal of the grounds of detention would show that the Detaining Authority passed the Impugned detention order on the premise that the bail application preferred by petitioner-detenu on 12-5-2003, before the Chief Judicial Magistrate, Sultanpur was pending on 31-5-2003, the date on which the impugned detention order was passed by him. We have seen that the Detaining Authority, in paragraph-8 of his return, filed in response to the averment in supplementary affidavit himself admits that it was rejected on 12-5-2003. This means that the aforesaid premise is misconceived and once this is held, then there is no getting away from the fact that the impugned detention order would be vitiated by the vice of non-application of mind.
We are not oblivious to the fact that even had it been brought to the notice of the detaining authority that the bail application of the petitioner-detenu, dated 12-5-2003, was rejected by the Chief Judicial Magistrate, Sultanpur on the said date itself, he may still have passed the impugned detention order. On the converse, we are equally not oblivious to the fact that even had this fact been brought to his notice, he may not have passed the impugned detention order because he may have taken the view that since the petitioner-detenu was in custody, there was no necessity to clamp the impugned detention order on him. Which way the mind of the detaining authority would have worked, we cannot conjuncture, for that was a matter in the realm of his subjective satisfaction.
8. In this connection we would like to advert to the decision of the Apex Court rendered in the case of Ayya alias Ayub v. State of U.P., AIR 1989 SC 364 : (1989 Cri LJ 991). A perusal of paragraph-13 of the said decision would show that a vital document/vital piece of evidence, i.e. a telegram, which had been dispatched by one Mirazuddin, regarding the time of petitioner's arrest was not placed by the sponsoring authority before the detaining authority. On behalf of the respondents it was contended that the telegram was not sent at the purported time. Venkatachaliah, J., as he then was, without dismissing the contention of the respondents counsel held that since the telegram was a vital piece of evidence, which could have reasonably influenced the subjective satisfaction of the detaining authority one way or the other, the failure of the sponsoring authority to place before the detaining authority a copy of the telegram would vitiate the impugned detention order on the vice of non-application of mind.
We feel it pertinent to extract paragraph-13 of the aforesaid decision of the Apex Court in entirety. It reads thus :--
"......... .What weight the contents and assertions in the telegram should carry is an altogether a different matter. It is not disputed that the telegram was not placed before and considered by the detaining authority. There would be vitiation of the detention on grounds of non-application of mind if a Piece of evidence which, was relevant though not binding, had not been considered at all. If a, piece of evidence which might reasonably have affected the decision whether or not to pass on order of detention is excluded from consideration there would be a failure of application of mind which to turn, vitiates the detention. The detaining-authority might very well have come, to the same conclusion after considering this material, but in the facts of the case of omission consider the material assumes materially."
9. In our view, since the sponsoring authority did not place before the detaining authority the vital fact that the bail application of the petitioner-detenu had been rejected by the Chief Judicial Magistrate, Sultanpur, on 12-5-2003, the impugned detention order would be vitiated on the vice of non-application of mind.
10. We would also like to mention that there is another reason, which has prompted us to quash the impugned detention order, namely that there was no cogent material before the detaining authority on the basis of which he could have concluded that the petitioner-detenu was likely to be released from custody in near future. A perusal of the grounds of detention, to which we have adverted to in detail earlier, would show that in C.R. No, 163 of 2003, under Sections 302, I.P.C. and 7, Criminal Law Amendment Act of police station Dostpur, which is the basis of the impugned detention order the petitioner-detenu has been assigned the role of firing the fatal shot on the deceased. It is common knowledge that the main accused in a murder case, especially one who causes fatal fire arm injuries is ordinarily not granted bail, either by this Court or the Supreme Court.
In paragraph 19 of the oft-quoted case of Dharmendra Suganchand Chelawat v. Union of India, AIR 1990 SC 1196 : (1990 Cri LJ 1232), the Supreme Court has laid down thus (Para 19) :--
"The decisions referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for that purpose it is necessary that the grounds of detention must show that (i) the detaining authority was aware of the fact that the detenu is already in detention; and (ii) there were compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression "compelling reasons" in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future and (b) taking into account the nature of the antecedent activities of the detenu,. It is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities."
A perusal of the aforesaid paragraph would show that one of the pre-requisites for claiming a detention order against a person in custody is that there should be a compelling necessity to detain him and one of the facets of compelling necessity is that there should be cogent material to Indicate that the person sought to be preventively detained was likely to be released from custody in near future. The expression of cogent material means plausible material. In our Judgment, considering the role which has been attributed in the grounds of detention to the petitioner-detenu in the aforesaid C.R. and bearing in mind the fact that he had not preferred any application for bail after his bail application had been rejected by the Chief Judicial Magistrate, Sultanpur, it cannot be said that there was any cogent material on the basis of which the detaining authority could have concluded that the petitioner-detenu was likely to be released from custody in near future.
11. We are not oblivious to the fact that this ground has not been pleaded in the writ petition but since it is well-settled that the principle of the strict pleadings does not apply to habeas corpus petitions and if the material for adjudication of a ground is available on the record, then merely because it has not been pleaded would be no impediment in the way of the Court in considering it (See para-2 of AIR 1981 SC 1126 : (1981 Cri LJ 750), Harish Pahwa v. State of U.P. and para 4 of AIR 1980 SC 1983, Icchu Devi Chorasia v. Union of India), we have taken it in consideration.
12. We would be failing in our fairness if before proceeding to the operative part of the Judgment we do not refer to the submission of Mr. Janardan Singh, learned counsel for opposite party Nos. 2 to 4. He urged on the basis of decision of the Apex Court in Ahmad Nassar's case (2000 Cri LJ 33): (AIR 1999 SC 3897) (supra) that even if no bail application of the detenu was pending, it would still be open for the detaining authority to conclude that there was imminent likelihood of the release of detenu on bail, if the case was such that in case he had preferred a ball application he was likely to be released. We do not dispute this, but in his case, are not inclined to accept this submission for two reasons, Firstly, we are primarily allowing this petition on the ground of non-application of mind on the part of the detaining authority and the fact that we cannot conjecture as to what his subjective satisfaction would have been had he been aware that the ball application of the petitioner-detenu was rejected by the Chief Judicial Magistrate, Sultanpur. Secondly, in view of the role of the petitioner-detenu, there was no likelihood of his being released on bail in near future even if a bail application was subsequently preferred by him.
13. In the result, we allow this writ petition; quash and set aside the impugned detention order; and direct that petitioner-detenu Sonu alias Ajai Vikram Upadhayay be released forthwith unless wanted in some other case.