Court No. 52 Reserved on 16.05.2019 Delivered on 29.05.2019 Case :- HABEAS CORPUS WRIT PETITION No. - 4040 of 2018 Petitioner :- Vijay Bahadur Respondent :- Union Of India And 3 Others Counsel for Petitioner :- Pradeep Kumar-IV Counsel for Respondent :-A.S.G.I.,Govt. Advocate, Jitendra Prasad Mishra
Hon'ble Ram Surat Ram (Maurya),J. Hon'ble Rajiv Gupta J.
1. Heard Sri Pradeep Kumar-IV, for the petitioner, Sri Patanjali Mishra, A.G.A. 1st, for State of U.P. and Sri Jitendra Prasad Mishra, Additional Standing Counsel, for Union of India.
2. This Habeas Corpus Petition has been filed for quashing the orders of District Magistrate (respondent-3) dated 23.07.2018, passed in exercise of powers under Section 3 (3) of National Security Act, 1980 (hereinafter referred to as the Act), directing for detention of the petitioner and State of U.P. (respondent-2) dated 31.07.2018, approving the detention order, 28.08.2018, confirming the detention order for a period of three months, from the date of initial order, 15.10.2018, extending detention order for six months, 15.01.2019, extending detention order for nine months, 16.04.2019, extending the detention order for twelve months and for mandamus directing the respondents to set the petitioner at liberty, forthwith.
3. In-charge Inspector, Kotwali, Maharajganj received an information on 05.07.2018 at 11:00 AM that guardians of the students and other general public had blocked the road, leading to Everest English School, situated at Padari road, Maharajganj. Then he along with other police personnel and Kobra Police Force reached on the spot. He found that the people were raising slogans against the school authorities and were demanding that Manager, Principal, Vice-Principal and the teachers to come out for talks with them on the issue indulging in the act of child pornography relating to the girl students of the school, which was made viral on internet. The people were saying that by affixing hidden camera in girls toilet, videography of private parts of the girls was done by the school staff and was uploaded on internet to earn money. The crowd was in an angry mood and threatening to eliminate the existence of the School and the teachers, by setting the school on fire. The people had collected on the main road in front of the School, due to which vehicular traffic on both the sides of the road was blocked, resulting in a traffic jam. Shopkeepers of the locality closed their shops due to terror and ran away. The girl students were searching their guardians covering their faces due to shame and fear. In-charge Inspector gave information to higher officers immediately. On the directions of higher officers, Additional District Magistrate, Additional Superintendent of Police, Circle Officer of Police, Basic Shiksha Adhikari, QRT police force, ladies police force and fire fighters were deployed at the School. Using sound amplifier, the general public was requested not to take law in their hands and maintain peace. The guardians of the students were somehow pacified and assured that legal action would be taken in the matter. The students somehow managed to reach their houses along with their guardians. On the written complaint of one Shachindra Nath Dwivedi, FIR of Case Crime No. 446 of 2018 was lodged, under Section 66, 67 of Information Technology Act, 2000, Section 13, 14, 16, 17 Protection of Children from Sexual Offences Act, 2012, Section 7 of Criminal Law Amendment Act, 1932 on 05.07.2018 at 17:39 hours, at PS Kotwali, Maharajganj against Ofjo, Vijay Bahadur (the petitioner), Ashwani Kumar and Principal of the School. The petitioner was arrested on 07.07.2018. He confessed his guilt and stated that Ofjo had prepared video of child pornography, affixing a hidden camera in the ladies toilets of the School. He got copied the photographs from the chip on his mobile phone and uploaded it on internet. He got recovered his mobile phone used for its download and upload.
4. Local Intelligence Unit submitted its report dated 05.07.2018 to District Magistrate that panic had spread at the School and its nearby locality due to protest of the guardians and general public against shameful act of child pornography. The students and ladies guardian who reached at the School, were weeping loudly. Public order in the locality had been disturbed. Looking to the anger of the guardians, additional police forces were deployed at the school. Local Intelligence Unit submitted another report dated 06.07.2018 to District Magistrate that publication of the news relating to the incident dated 05.07.2018 in newspapers has created resentment amongst the younger section of the society. Looking to the resentment, the shops at town Maharajganj remained closed. Various social organizations namely Bharat Swabhiman Trust, Akhil Bharatiya Udyog Vyapar Mandal, Ladies Organizations and Dahej Virodhi Evam Samaj Sudharak Samiti had protested before District Administration and demanded for taking rigorous action against the culprits. On 09.07.2018, Basic Shiksha Adhikari canceled the recognition of the School. In-charge Inspector, PS Kotwali Maharajganj submitted a report dated 16.07.2018 to District Magistrate through Superintendent of Police that the said incident was widely published in newspapers and electronic media, in which the shameful act of the petitioner and his associates were highlighted. Due to aforesaid acts of the petitioner and his co-accused, a sense of insecurity and terror had spread amongst the students of the School. Cancellation of recognition of the School created sense of insecurity among the students relating to their career being ruined for one year. The fallout of the incident had culminated into chaos, disturbing congenial atmosphere, flaring horrific feeling and affecting the maintenance of public order. Due to the act of the petitioner and his associates, awful and terrible scenes were created in whole of the locality and public order was was terribly disturbed. Additional police forces were deployed to maintain public order. The petitioner was detained in jail but was trying to obtain bail from the Court of Session's Judge and he was likely to be enlarged on bail. On apprehension that after being enlarged on bail, he would again indulge in criminal activity, which would be prejudicial to the maintenance of public order. Superintendent of Police, Maharajganj forwarded this report to District Magistrate, with his recommendation. On the basis of the reports of Local Intelligence Unit, Superintendent of Police, and In-charge Inspector, District Magistrate, was satisfied that with a view to preventing the petitioner from acting in any manner prejudicial to the maintenance of public order, it was necessary to detain him under the Act and he passed detention order dated 23.07.2018, which was served upon him in jail on 24.07.2018.
5. District Magistrate forwarded the copies of the detention order, along with grounds of detention and other concerned papers to State of U.P., according to the provisions of Section 3 (4) of the Act, vide his letter dated 24.07.2018, which were received by the State Government on 26.07.2018. After examining the papers, State of U.P., by order dated 31.07.2018, approved the detention order, i.e. within 12 days as required under Section 3 (4) of the Act. The order was communicated to the petitioner. State Government forwarded the detention order, grounds of detention and concerned papers to U.P. Advisory Board (Detention) and to Central Government, under Section 3 (5) of the Act on 01.08.2018.
6. U.P. Advisory Board (Detention) fixed 13.08.2018 for personal hearing of the petitioner. After hearing the petitioner, U.P. Advisory Board (Detention) submitted its report dated 21.08.2018 to State Government for confirming the detention order. State Government vide its order dated 28.08.2018 confirmed the detention order for a period of three months. State Government, by order dated 15.10.2018, extended it for a period of six months. Thereafter, by order dated 15.01.2019, extended detention order for nine months and by order dated 16.04.2019 extended detention order for twelve months.
7. The petitioner submitted his representation on 01.08.2018 to the various authorities. District Magistrate after considering the representation rejected it on 06.08.2018. District Magistrate forwarded the representation of the petitioner to State Government, along with parawise comments through his letter dated 06.08.2018. It was received in the concerned section on 08.08.2018. The concerned section examined it on 09.08.2018 and forwarded it to Under Secretary along with his comments. Under Secretary examined it on 13.08.2018 (11.08.2018 and 12.08.2018 were holidays) and forwarded with his noting to Special Secretary, who examined it on 14.08.2018. Special Secretary forwarded it on 14.08.2018, with his noting (15.08.2018 was public holiday). The Secretary examined it on 16.08.2018 and submitted to the Government with his noting. State Government rejected it on 16.08.2018. The order was communicated to the petitioner through radiogram on 21.08.2018.
8. Central Government received the representation of the petitioner on 20.08.2018. The concerned section processed and forwarded it to Under Secretary (NSA), who examined it on 21.08.2018 and forwarded it to Deputy Legal Advisor, who examined it on 21.08.2018 and forwarded it to Joint Secretary (Internal Security-II) on the same day. Joint Secretary (Internal Security-II) along with her comments forwarded it to Union Home Secretary on 23.08.2018 (22.08.2018 was public holiday), who rejected the representation of the petitioner on 23.08.2018. The order was communicated to the petitioner through wireless message on 27.08.2018.
9. The counsel for the petitioner submitted that petitioner was suspended by the School Management and he was not attending the School. The petitioner was falsely implicated in Case Crime No. 446 of 2018, in collusion with the School Management. The petitioner has no criminal history, except the present case and Case Crime No. 456 of 2018, which was registered subsequently. The petitioner was arrested on 06.07.2018 and sent to jail. There was no material before the District Magistrate to draw a conclusion that the petitioner would be enlarged on bail and after enlargement on bail, he would again indulge in the activities prejudicial to the maintenance of public order. Preventive detention order was mechanically passed and is liable to be set aside. He relied upon judgment of Supreme Court in Huidrom Konungjao Singh v. State of Manipur, (2012) 7 SCC 181, in which it has been held 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 detaining authority has to satisfy the Court the following facts:
(1) The authority was fully aware of the fact that the detenu was actually in custody. (2) There was reliable material before the said authority on the basis of which it could have reasons to believe that there was real possibility of his release on bail and further on being released he would probably indulge in activities which are prejudicial to public order. (3) In view of the above, the authority felt it necessary to prevent him from indulging in such activities and therefore, detention order was necessary. Division Bench of this Court in Radhey Shyam Parcha Vs. Union of India, 2015 (1) All LJ 716 (DB), Riyazuddin Vs. State of U.P., 2017 (5) ADJ 316 (DB), Ajeet Singh Vs. Union Of India, 2017 (6) ADJ 559 (DB) and Vijay Vs. Union Of India, 2017 (5) All LJ 214 (DB), Habeas Corpus Writ Petition No. 3547 of 2018 (Akhtar Hussain vs. Union Of India and 3 Others), decided on 5.12.2018, Habeas Corpus Writ Petition No. 3181 of 2018 (Sudhir vs. Union of India and 3 others), decided on 4.9.2018 and Habeas Corpus Writ Petition No. 3094 of 2018 (Istakaar and Another vs. Union of India and 5 others), decided on 4.9.2018. in which it has been held that there should be real possibility of the detenu to be released on bail. Failure of detaining authority to record in the impugned order regarding strong possibility of release of the petitioner on bail, vitiates detention order.
10. We have considered the arguments of the counsel for the parties and examined the record. District Magistrate found that after the incident dated 05.07.2018, a sense of panic was created and public order in the locality was disturbed. Various social organizations namely Bharat Swabhiman Trust, Akhil Bharatiya Udyog Vyapar Mandal, Ladies Organizations and Dahej Virodhi Evam Samaj Sudharak Samiti had protested before the District Administration and demanded for taking rigorous action against the culprits. On 09.07.2018, Basic Shiksha Adhikari canceled the recognition of the School. These incidents were widely published in newspapers and electronic media, in which the shameful acts of the petitioner and his associates were highlighted. Due to aforesaid acts of the petitioner and his co-accused, a sense of insecurity and terror had spread amongst the students of the School. Cancellation of recognition of the School created sense of insecurity among the students relating to their career being ruined for one year. The fallout of the incident had culminated into chaos, disturbing congenial atmosphere, flaring horrific feeling, affecting the maintenance of public order. In order to maintain public order, additional police forces were deployed in the locality. Satisfaction of District Magistrate in this respect is based upon police report, electronic media and newspapers reports etc. It was subjective satisfaction of District Magistrate under the Act, as such, this Court has no jurisdiction to interfere with the subjective satisfaction.
11. Constitution Bench of Supreme Court in Ram Manohar Lohia v. State of Bihar, AIR 1966 SC 740, has held that the satisfaction of the Government which justifies the order under the rule is a subjective satisfaction. A court cannot enquire whether grounds existed which would have created that satisfaction on which alone the order could have been made in the mind of a reasonable person. If that is so — and that indeed is what the respondent State contends — it seems to me that when an order is on the face of it not in terms of the rule, a court cannot equally enter into an investigation whether the order of detention was in fact, that is to say, irrespective of what is stated in it, in terms of the rule. In other words, in such a case the State cannot be heard to say or prove that the order was in fact made, for example, to prevent Acts the prejudicial to public order which would bring it within the rule though the order does not say so. In Ayya v. State of U.P., (1989) 1 SCC 374, it has been held that there are well-recognised objective and judicial tests of the subjective satisfaction for preventive detention. Amongst other things, the material considered by the detaining authority in reaching the satisfaction must be susceptible of the satisfaction both in law and in logic. The tests are the usual administrative law tests where power is couched in subjective language. There is, of course, the requisite emphasis in the context of personal liberty. Indeed the purpose of public law and the public law courts is to discipline power and strike at the illegality and unfairness of Government wherever it is found. The sufficiency of the evidentiary material or the degree of probative criteria for the satisfaction for detention is of course in the domain of the detaining authority. To lose sight of the real and clear distinction between the “public order” and “law and order” might lead, in the process of obliteration of their outlines, to the impermissible engrafting of the latter on the former. In Subramanian v. State of T.N., (2012) 4 SCC 699, has held that it is well settled that the court does not interfere with the subjective satisfaction reached by the detaining authority except in exceptional and extremely limited grounds. The court cannot substitute its own opinion for that of the detaining authority when the grounds of detention are precise, pertinent, proximate and relevant, that sufficiency of grounds is not for the court but for the detaining authority for the formation of subjective satisfaction that the detention of a person with a view to preventing him from acting in any manner prejudicial to public order is required and that such satisfaction is subjective and not objective. The object of the law of preventive detention is not punitive but only preventive and further that the action of the executive in detaining a person being only precautionary, normally, the matter has necessarily to be left to the discretion of the executive authority. It is not practicable to lay down objective rules of conduct in an exhaustive manner. The satisfaction of the detaining authority, therefore, is considered to be of primary importance with certain latitude in the exercise of its discretion.
12. So far as the arguments that the petitioner was in jail on the date of detention order dated 23.07.2018; The bail application of the petitioner was not pending; there was no material before District Magistrate to record satisfaction that the petitioner would be enlarged on bail application or after enlargement on bail, he would again indulge in the activities prejudicial to public order, are concerned, under the law, the detaining authority must show its awareness to the fact of subsisting custody of the detenu and take that factor into account while making the order; but, even so, if the detaining authority is reasonably satisfied on cogent material that there is likelihood of his release on bail, detention order can be passed. In the present case, the materials have been placed before the District Magistrate that the petitioner was in jail and was likely to be released on bail. While passing the impugned order, District Magistrate was aware of these facts. Constitution Bench of Supreme Court in Rameshwar Shaw v. D.M., Burdwan, AIR 1964 SC 334, has held that as abstract proposition of law, there may not be any doubt that Section 3(1)(a) does not preclude the authority from passing an order of detention against a person whilst he is in detention or in jail; but the relevant facts in connection with the making of the order may differ and that may make a difference in the application of the principle that a detention order can be passed against a person in jail. The antecedent history and the past conduct on which the order of detention would be based would, in such a case, be proximate in point of time and would have a rational connection with the conclusion drawn by the authority that the detention of the person after his release is necessary. A three Judges Bench in N. Meera Rani v. Govt. of T.N., (1989) 4 SCC 418, has held that we may summarise and reiterate the settled principle. Subsisting custody of the detenu by itself does not invalidate an order of his preventive detention and the decision must depend on the facts of the particular case; preventive detention being necessary to prevent the detenu from acting in any manner prejudicial to the security of the State or to the maintenance of public order etc. ordinarily it is not needed when the detenu is already in custody; the detaining authority must show its awareness to the fact of subsisting custody of the detenu and take that factor into account while making the order; but, even so, if the detaining authority is reasonably satisfied on cogent material that there is likelihood of his release and in view of his antecedent activities which are proximate in point of time he must be detained in order to prevent him from indulging in such prejudicial activities, the detention order can be validly made even in anticipation to operate on his release. This appears to us, to be the correct legal position.
13. Supreme Court in Sama Aruna v. State of Telangana, (2018) 12 SCC 150, has held that the detention order must be based on a reasonable prognosis of the future behaviour of a person based on his past conduct in light of the surrounding circumstances. The live and proximate link that must exist between the past conduct of a person and the imperative need to detain him must be taken to have been snapped in this case.
14. Supreme Court in Subhash Bhandari Vs. District Magistrate, AIR 1988 SC 74 and State of U.P. v. Sanjai Pratap Gupta, (2004) 8 SCC 591, has held that the stand that a single act cannot be considered sufficient for holding that public order was affected is clearly without substance. It is not the number of acts that matters. What has to be seen is the effect of the act on the even tempo of life, the extent of its reach upon society and its impact.
15. In view of aforesaid discussions, writ petition has no merit and is dismissed.
Order Date :- 29..5.2019 Jaideep/-
(Rajiv Gupta) [Ram Surat Ram (Maurya)]