Nanha Singh v. Supdt. Distt. Jail, Kanpur — 1984 DIGILAW 266 (ALL)

JUDGMENT H. N. Seth, J. 1. BY this petition under Article 226 of the Constitution, petitioner Nanha Singh questions the validity of an order dated 12th of December, 1983 passec by District Magistrate, Kanpur authorising his detention under the provisions of Sec. 3 of the National Security Act. 2. PETITIONER was in connection with Crime Case No. 751 of 1981 under Sees. 399/402 and 400 IPC and Crime Case No. 752 of 1981 under Sec. 25/27 of the Arms Act, arrested by the police of police station Moraina, Madhya Pradesh on 21st of November, 1981, subsequently in connection with Crime Case no. 553 of 1981, under Sec. 396 IPC of Police Station Sakheti, District Kanpur Dehat, he was on 4th of February, 1983 brought to district jail Kanpur and lodged there. While the petitioner was still in jail custody in connection with Crime Case no. 553 of 1981, he was served with the impugned order of detention which is dated 12th of December, 1983 along with the grounds thereof on 13th of December, 1983. The District Magistrate, Kanpur supplied to the petitioner following particulars on the basis of which he felt satisfied that it was necessary to detain him with a view to prevent him from action in a manner prejudicial to maintenence of public order :- (1) On 15th August, 1981 at 5.30 P.M. the petitioner along with his companions, armed with rifles, reached village Kotra Makrandpur within the jurisdiction of police station Sakheti, district Kanpur Dehat where a Dangal was taking place and large number of villagers had collected. They went there to kill Chhotey Singh, resident of village Kotra Makrandpur and fired at him while he was watching the Dangal. Fortunately Chhotey Singh escaped being injured and he ran and took shelter in his house. In the meantime, the petitioner and his companions started firing at the head constables of the Armed Guards and three Constables who were posted there and thereafter the petitioner and his companions continued to fire and reached the house of Chhotey Singh. This firing by the petitioner and his companions went on for about 21/2 hours in which 200 rounds were fired. This activity of the petitioner created a panic in village Kotra Makrandpur and other neighbouring villages. This firing by the petitioner and his companions went on for about 21/2 hours in which 200 rounds were fired. This activity of the petitioner created a panic in village Kotra Makrandpur and other neighbouring villages. In this connection Chotey Singh had lodged a written first information report at about 12.15 in the night between 15th/l6th of August, 1981 in which the petitioner had been named. On the basis of the said first information report Crime Case no. 106 of 1981, under Sec. 147/148, 109 and 307 IPC was registered agninst petitioner and 15 or 20 other persons for having committed the crime along with 15 or 20 other unknown persons. The case was pending in the court of A.D.S. J. and 13th of December, 1983 was fixed therein. A copy of the first information report as also that the general diary report by which the case was registered at the police station on 16th of August, 1981 was being attached. Aforementioned activity of the petitioner was very much prejudicial to maintenance of public order. (2) On the night between 4th and 5th of November, 1981 the petitioner along with his companions had committed dacoity at the house of one Harish Chandra, resident of Narsinghpur, police station Ghatampur district Kanpur Dehat. In that dacoity brother of Harish Chandra was killed by the petitioner and his companions. The house of Harish Chandra was located in a densely populated area and the activity of the petitioner and his companions created an atmosphere of scare and panic in the locality. Harish Chandra lodged an F.I.R. on the basis of which Crime Case No. 553 of 1981, under Sec. 396 IPC was registered at police station Ghatampur in which the petitioner was named as one of the dacoits. During investigation of the case, an attempt was made to arrest the petitioner but he continued to abscond. On 21st of December, 1981, the petitioner and others has assembled within the jurisdiction of police station Kotwali, Moraina, Madhya Pradesh with a view to commit dacoity and was arrested by the police of P. S. Moraina. Therealter in the month of January, 1983 he was transferred to district Jail Kanpur and thereafter a charge sheet in connection with the aforementioned case was lodged in the court of the Special Judge, Kanpur on 9th of March, 1983. Therealter in the month of January, 1983 he was transferred to district Jail Kanpur and thereafter a charge sheet in connection with the aforementioned case was lodged in the court of the Special Judge, Kanpur on 9th of March, 1983. The said case is pending before the court and 4th of January, 1984 had been fixed for statement/framing of charge. A copy of the first information report as also that of the general diary entry registering the case against the petitioner on 5th of November, 1981 was being attached. Aforementioned activity of the petitioner was very much prejudicial to maintenance of public order. (3) On the basis of an information received from an informer, the City Inspector Sri B. L. Dhoriaya, Kotwali, Moraina, Madhya Pradesh, with the help of police force, arrested the petitioner from Room no. 33 of Patiram Sitaram Dharamshala on 21st of November, 1981 at 7.15 P.M. ; at that time the petitioner and his companions were making preparations for committing dacoity and an automatic Chinese TMC No. 10047602 along with two magazines in which there were 60 cartridges and a cartridge bag was recovered from their possession. On the basis of a report made by Sri B. L. Ghoraiya on 21st of November, 1981, Crime Case No. 751 of 1981, under Sees. 399/402 and 400 IPC and Crime Case No. 752 of 1981, under Sec. 25/27 of the Arms Act were registered against the petitioner. After completing the investigation, charge-sheets were submitted. However, the petitioner was, in Crime case no. 751 of 1981 under Sec. 399/402/400 IPC, acquitted on 23rd of June, 1983 but in Crime Case No. 752 of 1981, under Sec. 25/27 Arms Act he was convicted and sentenced to four months' R.1. Copies of the first information reports were being attached. Afore-mentioned acts of the petitioner was very much prejudicial to maintenance of public order. 3. ALTHOUGH in petition a number of grounds have been raised for questioning the validity of petitioner's continued detention in pursuance of the order passed by the District Magistrate, Kanpur dated 12th of December, 1983, but then after the respondents had put in appearance and filed their counter-affidavits, learned counsel appearing for the petitioner confined his challenge to the validity of the order of detention dated 12th of December, 1933 on the basis of the submission hereinafter stated. 4. 4. HE contended that a perusal of the particulars served upon the petitioner shows that in arriving at the satisfaction that the petitioner was likely to indulege in an activity prejudicial to maintenance of public order and that it was necessary to detain him, the District Magistrate had placed reliance upon the fact that on 21st of December, 198! the petitioner along with his companions had assembled in Room no. 33 of Patiram Sitaram Dharamshala when he was, on the basis of the information given by an informer, arrested by Sri B.L. Ghoraiya of Kotwali, Moraina and from his possession an automatic Chinese TMC along with two magazines and 60 cartridges were recovered and cases under Sees. 399/402 and 400 IPC and 25/27 Arms Act were registered against him. so far as the case under Sees. 399/402 and 400 IPC was concerned the petitioner was prosecuted and tried before the Special fudge, Moraina and was, vide judgment dated 23rd of June, 1982 honourably acquitted therein. According to the petitioner, the Sessions Judge had found the prosecution case to be wohlly false. So far as the case under Sec. 25/27 Arms Act was concerned, the petitioner was convicted by the Chief Judicial Magistrate, Moraina on 25th of January, 1983 and was sentenced to four months R.I According to the petitioner, the District Magistrate, while passing the order for his detention, could not in arriving at the satisfaction that the petitioner was likely to act in a manner prejudicial to maintenance of public order, take into consideration the facts which were the subject matter of a criminal charge and in respect of which he had been honourably acquitted by a court of law. As in the instant case, the satisfaction of the District Magistrate was also based on such facts, it stands vitiated and the order dated 12th of December, 1983 deserves to be quashed. In the alternative, learned counsel for the petitioner urged that the order dated 12th of December, 1983 passed by the District Magistrate stands vitiated inasmuch as it has been passed in a casual and mechanical manner and by ignoring the relevant material which should have been taken into consideration by the District Magistrate before feeling satisfied that the petitioner was likely to indulge in activities prejudicial to maintenance of public order. So far the first submission made by the learned counsel for the petitioner is concerned, learned counsel for the petitioner strongly relied upon a decision of the Supreme Court in the case of Smt. Bimla Dewan v. The Lieutenant Governor of Delhi, AIR 1982 SC 1257 wherein the requisite satisfaction of the detaining authority was based on a number of instances in respect of which the detenue was tried and acquitted. In this connection the Supreme Court, in paragrph 6' of the Judgment, observed thus:- " Instances nos.1 to 22, 24 and 28 relate to criminal cases, in all of which the detenu has been found to be not guilty and acquitted. Instance no. 23 relates to a case in which the detenu has been discharged. Instance no. 28 relates to a blue film of naked picture for public circulation exhibition alleged to have been recovered on 23/24-64979 by the police from the Kamal Restaurant of the detenu. Since all these instances relate to cases which the detenu has been found to be not guilty and acquitted none of these instances can legitimately be taken into consideration for detaining the detenu under Sec. 3 (2) of National Security Act...................... We are of the opininon that since the detaining authority would naturally have been influenced by these grounds as well for coming to the conclusion that the detenu requires to be detained under the provision of the Act, the entire order of detention is unsustainable." 5. HOWEVER, in the case of Haradhan Saha v. The State of West Bengal, AIR 1974 SC 2154 a Constitution Bench of the Supreme Court consisting of five Judges observed thus:- "The power of preventive detention is qualitatively different from punitive detention The power of preventive detention is a precautionary power excercised in reasonable anticipation. It may or may not relate to an offence. It is not a parallel proceeding. It dose not overlap with prosecution even if it relies on certain facts for which prosecution may be launched or may have been launched. An order of preventive detention may be made before or during prosecution. An order of preventive detention may be made with or without prosecution and in anticipation or after discharge or even acquittal. The pendency of prosecution is no bar to an order of preventive detention. An order of preventive detention is also not a bar to prosecution." 6. An order of preventive detention may be made before or during prosecution. An order of preventive detention may be made with or without prosecution and in anticipation or after discharge or even acquittal. The pendency of prosecution is no bar to an order of preventive detention. An order of preventive detention is also not a bar to prosecution." 6. IN the case of Noor Chand Sheikh v. State of West Bengal, AIR 1974 SC 2120 a Division Bench of the Supreme Court observed thus :- " now seems established on a series of decisions of this Court that the jurisdiction to make orders for preventive detention is different from that of criminal courts seeking to punish the accused for an offence, one depending on the subjective satisfaction of the detaining authority and the other on proof beyond reasonable doubt, and that unsuccessful judicial trial or proceeding would not operate as a bar to a detention order or make it mala fide. The incidents which formed the subject matter of the two criminal cases against the petitioner also constitute the basis of order of detention......" Again a similar view has been expressed by the Supreme Court in the case of Sadhu Roy v. the State of West Bengal, AIR 1975 SC 919 . In the case of Awadh Kumar Shukla v. Supdt. of Central Jail Naini, Allahabad, 1983 Crl. Law Journal 192 reliance was placed on the case of Smt. Bimla Dewan v. The Lt. Governor of Delhi, AIR 1982 SC 1257 In support of the contention that the facts on which a detenu has been acquitted in a criminal trial cannot be taken into consideration in basing an order for preventive detention. A Division Bench of this Court relying on the decision of the Supreme Court in Haradhan Saha's case (supra) observed thus :- "In view of the law laid down in the case of Haradhan Saba as well as in a number of other pronouncements, any acquittal or discharge would not vitiate the detention and we are bound to follow the view taken by the larger Bench Haradhan Saha (supra) relying upon a number of other Supreme Court pronouncements. We therefore, hold that the detention is not vitiated on account of acquittal in any case which also forms the ground of detention." 7. We therefore, hold that the detention is not vitiated on account of acquittal in any case which also forms the ground of detention." 7. IN this view of the matter we are of opinion that the decision of the Supreme Court in Smt. Bimla Dewan's case cannot be construed as laying it down as a proposition of law that invariably and IN all cases where on certain facts a criminal trial has resulted in acquittal of an accused those facts can never be taken into account by the District Magistrate in feeling satisfied that the detenu is likely to act in manner prejudicial to maintenance of public order. We are accordingly not satisfied with the first submission made by the learned counsel for the petitioner for questioning the validity of the order dated 12th of December, 1983. 8. WE now proceed to consider the alternative submission made by learned counsel for the petitioner, namely, that the order in question stands vitiated inasmuch as the same has been passed mechanically and ignoring relevant material. Learned counsel for the respondents placed before us a large number of decisions of the Supreme Court where in it has been laid down that the satisfaction of the District Magistrate that a detenu is likely to indulge in prejudicial activities is a subjective satisfaction of the detaining authority and that once that satisfaction is based on relevant material, it is not open to the Court to in exercise of jurisdcition under Article 226 of the Constitution, look into the sufficiency of that material. This court cannot interfere with the order of detention merely on the ground that it would, on the basis of the materil before the detaining authority, not have felt satisfied that the detenu was likely to indugle in prejudicial activity and that it was necessary to detain him. Learned counsel for the respondents then submitted that in the instant case there was material before the detaining authority in the form of police report, copies of the first information reports and the general diary reports, on the basis of which the detaining authority could feel satisfied that the petitioner had participated in the incident on 21st of Novemebr, 1981 and that in future .also he was likely to act in a manner prejudicial to maintenance of public order. Accordingly it is not open to this court to interefere with the order of detention. 9. Accordingly it is not open to this court to interefere with the order of detention. 9. IT is true that it is now well established that the satisfaction of the detaining authority in this regard is a subjective satisfaction and that this Court can neither examine the sufficiency of the material on which the satisfaction of the detaining authority is based nor can it substitue its own satisfaction in place that of the detaining authority. In our opinion, it is not necessary for us to advert to various decisions cited by the learned counsel for the respondents in this regard. However, it does not follow from those decisions that the only ground on which said satisfaction of the. detaining authority can be questioned before this Court is that the material relied upon by the detaining authority is, in the eye of law, no material. IT is now well settled that apart from the ground that the subjective satisfaction of the detaining authority is not based on no material, the validity of the said satisfaction can be questioned on a number of other grounds as well. For example, in the case of Shaik Hanify. State of West Bengal, AIR 1974 SC 679 , it was observed:- 18-Rep. (Suppl.) "Where mala fides or extraneous considerations are attributed to the Magistrate or the detaining authority, it may, taken in conjunction with other circumstances, assume the shape of a serious infirmity, leading the court to declare the detention illegal." In the case of Bhutnath Mate v. State of West Bengal, AIR 1974 SC 806 , the Court observed : "____detention power cannot be quietly used to subvert, supplant or to substitute the punitive law of the Penal Code. The immune expedient of throwing into a prison cell one whom the ordinary law would take care of, merely because it is irksome to undertake the inconvenience of proving guilt in court is unfair abuse." Likewise in Noor Chand Sheikh v. State of West Bengal, AIR 1974 SC 2120 it was observed :- "We do not think it can be said that the fact that the petitioner was discharged from the criminal cases is entirely irrelevant and of no significance : it is a circumstance which the detaining authority cannot altogether disregard" and held that : inasmuch as the material on the record did not indicate that the detaining authority had taken this relevant material into consideration before it felt satisfied that it was necessary to detain the detenu the order of detention, stood vitiated. 10. IN the case of Sadhu Roy v. State of West Bengal, AIR 1975 SC 919 , a Bench of the Supreme Court laid down the following guidelines for judging the validity of an order of detention passed under a law relating to preventive detention:- "1. The discharge or acquittal by a criminal court is not necessary a bar to preventive detention on the same facts for "security" proposes. But if such discharge or acquittal proceeds on the footing that the charge is false or baseless preventive detention oh the same condemned facts may be vulnerable on the ground that the power under the Maintenance of INternal Security Act has been exercised in a mala fide or colourable manner. 2. The executive authority may act on subjective satisfaction and is immunised from judicial dissection of the sufficiency of the materials. 3. The satisfaction, though attenuated by 'subjectiveity must be real and rational, not random divination, must flow from an advertence to relevant factors, not be a mock recital or mechnical chant of statutorily sanctified phrases. 4. The executive conclusion regarding futuristic prejudicial activities of the detenu and its nexus with his past conduct is acceptable but not invulnerable. The court can lift the verbal veil to discover the true face. 5. One test to check upon the colourable nature or mindless mood of the alleged satisfaction of the authority is to see if the articulated 'grounds' are too groundless to induce credence in any reasonable man or too frivolous to be brushed aside as fictitious by a responsible instrumentality. 5. One test to check upon the colourable nature or mindless mood of the alleged satisfaction of the authority is to see if the articulated 'grounds' are too groundless to induce credence in any reasonable man or too frivolous to be brushed aside as fictitious by a responsible instrumentality. The Court must see through mere sleights of mind played by the detaining authority. 6. More concretely if witnesses are frightened off by a desperate criminal, the Court may discharge for deficient evidence, but on being convinced (on police or other materials coming within his ken) that witnesses had been scared of testifying, the District Magistrate may still invoke his preventive power to protect society. I 7. But if on a rational or fair consideration of the police version or probative circumstances he would or should necessarily have rejected it, the routinisation of the satisfaction, couched in correct diction, cannot carry conviction about its reality or fidelity, as against factitious terminological conformity. And on a charge of mala fides or misues of power being made, the Court can go behind the facade and reach at the factum." Again in the case of Ashadevi v. K. Shivraj, AIR 1979 SC 447 the Supreme Court emphasised that it is well settled that the subjective satisfaction requisite on the pact of the detaining authority, the formation of which is a condition precedent to the passing of the detention order gets vitiated if material or vital facts which would have a bearing on the issue and would influence the mind of the detaining authority one way or the other are ignored or not considered by the detaining authority before issuing the detention order. The same view was reiterated by a Constitution Bench of the Supreme Court in the case of Mohd. Shakeel Wahid Ahmad v. State of Maharashtra, AIR 1983 SC 541 . It proceeded to invalidate a detention order on the ground that an important consideration which should and ought to have been taken into account by the detaining authority was not made available to it (the opinion of the Advisory Board in the case of a detenu whose detention in similar circumstances was held not to be proper by the Advisory Board). 11. 11. IT thus follows that the validity of an order for preventive detention passed by detaining authority can inter alia be questioned on the ground that the same has been passed without consideration of material circumstances which in the circumstances of the case ought to have been placed before the detaining authority and considered by it. IT is not disputed that it can be questioned also on the ground that the order has been passed mechanically or that it was passed for some other ulterior reasons. 12. COMING now to the case before us, the submission of learned counsel for the petitioner is that the grounds supplied to the petitioner mentioning the particulars on which the satisfaction of the District Magistrate, that it was necessary to detain the petitioner, was based, clearly indicate that the District Magistrate did not consider the reasons given by the Special Judge for acquitting the petitioner in respect of the incident dated 21st of November, 1981 as mentioned in Ground no 3'. He had thus ignored material which ought to have been placed before, and considered by him before reaching the requisite satisfaction. Learned counsel for the petitioner also requested us to look into the records of the District Magistrate and to see whether or not the judgment of the Special Judge acquitting the petitioner in that case had been placed before him. Our examination of the record revealed that there was nothing in it to indicate that the judgment of the Special Judge acquitting the petitioner was placed before the District Magistrate and that he had perused the same before passing the impugned order on 12th of December, 1983. Learned counsel for the State, however, urged that the only obligation on the part of the detaining authority was to take the fact that the petitioner had been acquitted in connection with the incident of 21st of November, 1981 into consideration and as In the instant case the order itself indicates that requisite satisfaction was arrived at after taking this fact into consideration, it does not surfer from any infirmity. It is true that the District Magistrate while making the impugned order was aware of the fact that the petitioner had been acquitted by the Special Judgs in the case under sections 399/402 and 4001. It is true that the District Magistrate while making the impugned order was aware of the fact that the petitioner had been acquitted by the Special Judgs in the case under sections 399/402 and 4001. P. C. relating to the incident of 21st of November, 1981 but then as per various decisions of the Supreme Court cited above, the District Magistrate was not merely required to be aware of the fact that the petitioner has been acquitted of a criminal charge in respect of the facts proposed to be relied upon by him but also to evaluate and to take into consideration the effect of such acquittal before deciding to base his satisfaction on facts in respect of which the detenu was acquitted by a court of law. The reasons given by the court in this regard would be relevant material which can, in the normal course, affect the subjective satisfaction of the detaining authority. In such cases, it is obligatory on the District Magistrate to scan the judgment of acquittal and thereafter to form his owe personal opinion either in accordance with the reasons contained in the judgment of the criminal court or, if there be legitimate reasons to do so, even coutrary to it. 13. IN the instant case, there can be no doubt that the District Magistrate did not have the judgment of the Special Judge before him when be passed the impugned detention order. He was thus, before being satisfied that it was necessary to detain the petitioner, not aware of the reason given by the Special Judge for honourably acquitting the petitioner of the offences with which he had been charged. A relevant material has thus been ignored there by affecting the validity of the detention order. 14. LEARNED counsel for the respondents next submitted that the District Magistrate had been made aware that in respect of the incident of 21st of November, 1981 different courts had taken contrary views in respect of petitioner's involvement in the incident of 21st November, 1981. Whereas the Sessions Judge had on finding that the prosecution case was not established, acquitted the petitioner of offences under Sees. Whereas the Sessions Judge had on finding that the prosecution case was not established, acquitted the petitioner of offences under Sees. 399/402 and 400 I.P.C., the Chief Judicial Magistrate had in regard to the same incident held that the prosecution had succeeded in proving its case and convicted the petitioner of an offence under section 25/27 Arms Act and sentenced him to undergo rigorous imprisonment for four months. It thus appears that the District Magistrate had before him contradictory views of two criminal courts and he cannot be blamed for acting in accordance with the view taken by the Chief Judicial Magistrate who had convicted the petitioner of offences under Sec. 25/27 Arms Act, We are unable to accept the submission made by the learned Government Advocate. While it is true that the judgments of the two courts are not binding on the detaining authority, they do furnish material which ought to be considered by the detaining authority before passing an order of detention, based on facts which were involved in those criminal cases. It may be that the detaining authority cannot be blamed if after applying its mind to the reasons contained in the two judgments, it prefers any one of the contradictory reasonings ; but then it can neither prefer nor ignore any of the reasoning arbitrarily. In the instant case, the District Magistrate may have been well within his rights if he had the two judgments before him and he had after considering the reasoning contained therein and for some valid reason preferred the conclusions arrived at in the order of conviction to those contained in the order of acquittal. But then we find that in the instant case, the District Magistrate was totally obvious of the reasons contained in either of the two judgments. In the circumstances, there is no escape from the conclusion that the detaining authority had, before passing the impugned order, ignored relevant material and his satisfaction (based on the incident of 21st of November 1981) that the petitioner was likely to act in a manner prejudicial to maintenance of public order gets vitiated. This clearly has the effect of vitiating the entire order. 15. IN the result, the petition succeeds and is allowed. This clearly has the effect of vitiating the entire order. 15. IN the result, the petition succeeds and is allowed. The respondents are directed not to keep the petitioner under detention in pursuance of the order under section 3 of the National Security Act passed by the District Magistrate, Kanpur (Dehat) on 12th of December, 1983. The petitioner should be released from custody forthwith unless his detention is otherwise required in connection with some other case, Petition allowed.