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2000 DIGILAW 775 (ALL)

RAM LAL v. STATE OF UTTAR PRADESH

2000-05-22

S.R.SINGH, V.K.CHATURVEDI

body2000
S. R. SINGH, J. ( 1 ) CHALLENGE in this group of writ petitions is to the validity of detention pursuant to the order dated 26-6-1999 passed separately in each case, though on identical grounds, under sub-section (2) read with sub-section (3) of Section 3 of National Security Act, 1980 with a view to preventing the detenu from acting in any manner prejudicial to the maintenance of the public order. ( 2 ) THE ground of detention pertains to an incident of murder which took place on 9-6-1999 in broad day light at 11. 30 in which Upendra son of Mam Chandra was brutally murdered and Smt. Shanti wife of Mam Chandra and Anand, brother-in-law of Mam Chandra were seriously injured. Case CRIME number 308 of 1999 under Sections 147, 148, 149, 302, 307, 504, 506, 34 IPC and Section 7 Criminal Law Amendment Act and case Crime No. 310 of 1999 under Section 25 (4) of Arms Act, 1959 were registered at P. S. Loni, district Ghaziabad on the basis of the said incident. The detenu Ram Lal and Man Singh were arrested on the spot along with their respective weapons used in the incident, Satish, petitioner of Habeas Corpus Petition No. 39612 of 1999 was also arrested on the spot. Since the detention orders under challenge in each of these writ petitions are grounded on the same incident and the questions of law and facts being common, these petitions were heard together for convenient disposal by a common order. Writ Petition No. 39581 of 1999 will be treated as the leading case. Facts herein mentioned are given with reference to the leading case of the detenu Ram Lal. ( 3 ) THE detenu was in jail since 9-6-1999 where the order of detention was served on him on 26-6-1999 at 12. 30 P. M. in District Jail, Ghaziabad. The petitioner preferred representation dated 17-7-1999 which was forwarded to the State Government as well as to the Central Government by the District Magistrate, Ghaziabad along with parawise comments vide letter dated 20-7-1999 sent through special messenger. The representation was received by the State Government on 22-7-1999 and the State Government sent it to the Advisory Board vide letter dated 23-7-1999. The representation was received by the State Government on 22-7-1999 and the State Government sent it to the Advisory Board vide letter dated 23-7-1999. The representation was also considered by the State Government at relevant levels on 24-7-1999, 26-7-1999 and finally on 30-7-1999 on which date it was rejected by the State Government and the rejection was communicated to the detenu through district authorities vide Radiogram dated 2-8-1999. The representation along with enclosed character certificate and parawise comments forwarded by the District Magistrate, Ghaziabad to the Central Government as well vide letter dated 20-7-1999 was received at the concerned desk of the Ministry of Home Affairs, Central Government on 23-7-1999 and after due processing and consideration it was put up before the Under Secretary, Ministry of Home Affairs on 27-7-1999 and then before the Joint Secretary on the same day and ultimately before the Home Secretary who rejected the representation on 28-7-1999. ( 4 ) THE report of the Advisory Board that there was sufficient cause for the detention, was received by the State Government in the concerned section on 10-8-1999 and the case was examined once again and it was decided to confirm the order for 12 months. The detenu was prosecuted and the trial in respect of the detention related incident resulted in acquittal vide judgment and order dated 23-1-2000, a certified copy of which has been brought on record along with the rejoinder affidavit. ( 5 ) WE have had heard Sri R. C. Kandpal for the petitioner. The only point that has been urged for the detenu is that in view of the finding recorded by the Sessions Court that truth of the incident i. e. detention related incident and the charge against the detenu could not be proved by the prosecution, it would be deemed that no such incident had taken place and consequently the detention order as also the continued detention pursuant thereto are vitiated. Upon regard being had to the importance of the question as to the effect of the order of acquittal, Sri Daya Shankar Mishra, on our request, appeared as amicus curiae with a view to assisting the Court to decide the vexed question of law involved in the case. The question is whether in view of the judgment and order of acquittal recorded in the detention related criminal case, the continued detention of the detenu is vitiated? The question is whether in view of the judgment and order of acquittal recorded in the detention related criminal case, the continued detention of the detenu is vitiated? It has been submitted by Sri Daya Shankar Mishra that where acquittal is recorded on merit, no order of detention can subsequently be passed on the basis of the incident the judicial trial in respect of which, ultimately resulted in an order of acquittal; and in a case where such order of acquittal is recorded during the currency of the detention, the continued detention would be vitiated for it would be deemed to be based on non existence ground. ( 6 ) IT cannot be gainsaid that the object of making an order of detention is preventive, while that of criminal prosecution is punitive. It is also to be borne in mind that an order of detention under Section 3 of the National Security Act, 1980 is made on subjective satisfaction of the detaining authority, both as to the necessity of preventively detaining the concerned individual as also to the existence of the grounds of detention. The detaining authority is not concerned with the correctness or otherwise of the prejudicial activity on the basis of which it is satisfied that the detention of the detenu is necessary in order to prevent him from repeating the prejudicial activity in future. The purpose of criminal prosecution is punitive and the standard of proof is beyond reasonable doubt whereas the purpose of detention under the Act is to prevent the repetition of the prejudicial activity and the order of detention is passed on the subjective satisfaction of the detaining authority "on grounds of suspicion of commission in future of acts prejudicial to the community in general". In Mohd. Subrati v. State of West Bengal, AIR 1973 SC 207 the Supreme Court after explaining the distinction between preventive detention and criminal prosecution, held as under at page 209; of AIR :"the Act creates in the authority concerned a new jurisdiction to make orders for preventive detention on their subjective satisfaction on grounds of suspicion of commission in future of acts prejudicial to the community in general. This jurisdiction is different from that of judicial trail in Courts for offences and of judicial orders for prevention of offences. This jurisdiction is different from that of judicial trail in Courts for offences and of judicial orders for prevention of offences. Even unsuccessful judicial trial or proceeding would therefore not operate as a bar to a detention order or render it mala fide". (emphasis supplied) ( 7 ) IN Shiv Ratan Makim v. Union of India, AIR 1986 SC 610 : (1986 Cri LJ 813) the order of detention was based on a solitary incident in which two pieces of foreign marked gold were recovered from the pocket of the trousers of the detenu therein. The detention was ordered under Section 3 of the COFEPOSA Act, 1974. One of the arguments raised before the Supreme Court was that the detention was made with a view to circumventing or by-passing the criminal prosecution instituted against the detenu therein. The Supreme Court placing reliance on Mohd. Subrati (Supra) explained the distinction between criminal prosecution and preventive detention in the following words :"this argument completely overlooks the fact that the object of making an order of a criminal prosecution is punitive. Even if a criminal prosecution fails and an order of detention is then made, it would not invalidate the order of detention, because, as pointed out by this Court in Mohd. Subrati v. State of West Bengal, (1973) 3 SCC 250 : ( AIR 1973 SC 207 )"the purpose of preventive detention being different from conviction and punishment and subjective satisfaction being necessary in the former while proof beyond reasonable doubt being necessary in the latter, "the order of detention would not be bad merely because the criminal prosecution has failed. It was pointed out by this Court in the case that" the Act creates in the authority concerned a new jurisdiction to make orders for preventive detention on their subjective satisfaction on grounds of suspicion of commission in future of acts prejudicial to the community in general. This jurisdiction is different from that of judicial trial in Courts for offences and of judicial orders for prevention of offences. Even unsuccessful judicial trial or proceeding would therefore not operate as a bar to a detention order or render it mala fide. This jurisdiction is different from that of judicial trial in Courts for offences and of judicial orders for prevention of offences. Even unsuccessful judicial trial or proceeding would therefore not operate as a bar to a detention order or render it mala fide. If the failure of the criminal prosecution can be no bar to the making of an order of detention, a fortiori the mere fact that a criminal prosecution can be instituted cannot operate as a bar against the making of an order of detention" (emphasis supplied ). ( 8 ) WE, therefore, find no substance in the submission made by Sri Daya Shankar Misra that an order of acquittal recorded by the Criminal Court in respect of the detention related solitary incident would be a complete bar to the passing of an order of detention and uphold the submission of Sri Mahendra Pratap, learned Additional Government Advocate, that despite acquittal, the order of detention could still be passed provided the detaining authority is subjectively satisfied on grounds of suspicion of commission of prejudicial activity in future considering the circumstances attending the incident in respect of which the prosecution failed to bring home the guilt of the detenu and the factors which led to the failure of the criminal prosecution. This, however, does not mean that the order of acquittal is totally irrelevant and the detaining authority is free to ignore it. In Shiv Ratan Makim (supra) the Supreme Court has laid down the necessary parameters in this respect in the following words :"if an order of detention is made only in order to bypass a criminal prosecution which may be irksome because of the inconvenience of proving guilty in a Court of law, it would certainly be an abuse of the power of preventive detention and the order of detention would be bad. But if the object of making the order of detention is to prevent the commission in future of activities injurious to the community, it would be a perfectly legitimate exercise of power to make the order of detention. The Court would have to consider all the facts and circumstances of the case in order to determine in which side of the line the order of detention falls. The Court would have to consider all the facts and circumstances of the case in order to determine in which side of the line the order of detention falls. " ( 9 ) IF the failure of criminal prosecution can be no bar in making of an order of detention, a fortiori, the mere fact that criminal prosecution in respect of the detention related incident has subsequently resulted in acquittal cannot ipso facto vitiate the order of detention. It has been submitted, however, that if the order of acquittal is based on merit, the continued detention will be vitiated. Reliance was placed on Rameshwar Lal Patwari v. The State of Bihar, AIR 1968 SC 1303 : (1968 Cri LJ 1490 ). That was a case under the Preventive Detention Act, 1950. One of the grounds of detention related to a pending case in which the detenu therein was on bail. Subsequently, the detenu therein was tried for the offence and acquitted. Hidayatullah, J. (as His Lordship then was) while dealing with the effect of the order of acquittal observed as under at Page 1306 :"the fourth ground speaks of a pending case in which the appellant is said to be on bail. The grounds were furnished in July, 1967. The appellant was tried for the offence and acquitted as far back as February, 1967. This ground discloses carelessness which is extremely disturbing. . . If the appellant was tried and acquitted Government was required to study the judgment of acquittal to discover whether all these allegations had any basis in fact or not. One can understand the use of the case if the acquittal was technical but not when the case was held to be false. " (emphasis supplied) ( 10 ) IT would be evident that the order of acquittal in that case was recorded in February, 1967 where the grounds were furnished in July, 1967 and it was in this backdrop that carelessness was found on the part of the detaining authority in making the detention order sans any consideration of the order of acquittal. The decision, in our opinion, is not helpful to the detenu in the instant case for the simple reason that non consideration of a pre-existing order of acquittal recorded in the detention related incident would certainly vitiate the subjective satisfaction of the detaining authority and that is why the Apex Court was pleased to hold that the Government was required to study the judgment whether allegations on which the detention was grounded had any basis or not? In the present case the order of acquittal had been recorded during the currency of detention. The Sessions Court held that on the basis of the evidence adduced by the prosecution, the truth of the incident and the charge against the accused could not be established. It is however, an admitted fact that the prosecution witnesses in the instant case were declared hostile even though Ram Lal, Man Singh and Satish were arrested on spot along with their respective weapons. Acquittal in such circumstances cannot render invalid the detention made on subjective satisfaction of the detaining authority on the basis of the report submitted by the sponsoring authority. ( 11 ) RELIANCE was then placed on Ramesh Yadav v. District Magistrate, Etah, (1985) 4 SCC 232 : ( AIR 1986 SC 315 ). That was a case of detention under Section 3 (2) of National Security Act, 1980 in which four out of five grounds were stale and not available to be used for the purpose of making an order of detention. In respect of the incident relating to fifth ground, the trial had taken place and resulted in acquittal. The Supreme Court observed as under at page 316 of AIR :"the only other incident which was subsequent to the quashing of the previous detention and which may have some nexus with the present order of detention is of 1983. Admittedly, a trial had taken place and there has been acquittal. That ground, therefore, was not available to be used. " ( 12 ) WE are afraid, the decision in Ramesh Yadav (Supra) cannot be availed of in the fact situation of the present case where arrests were made on spot and yet the witnesses turned hostile, may be due to the reason that the accused were dangerous persons and had over-awed the witnesses. " ( 12 ) WE are afraid, the decision in Ramesh Yadav (Supra) cannot be availed of in the fact situation of the present case where arrests were made on spot and yet the witnesses turned hostile, may be due to the reason that the accused were dangerous persons and had over-awed the witnesses. ( 13 ) RELIANCE was then placed on the Full Bench decision of this Court Ram Prasad Chowdhary v. State of U. P. , 1986 (23) ACC 186 : (1986 All LJ 916) in which the question arose as to what is the effect of an order of acquittal on the order of detention already passed on a ground relating to an incident which on trial resulted in an order of acquittal. The order of detention under Section 3 of the National Secretary Act, 1980 in that case was based on four grounds, two of which were held not available due to the reason of either being stale or irrelevant. The other two grounds were based on an incident which was the subject matter of judicial trial which resulted in an order of acquittal recorded the currency of the detention. The argument that discharge or acquittal of an accused does not necessarily mean that the grounds on which the detention is sought to be maintained is non est and has to be ignored, was repelled by the Full Bench in the following words at page 927 of All LJ :"if the incident in respect of which the detention order has been passed has already ended in acquittal before passing the detention order, the detention order is liable to be quashed on that account. The same would be the position if the incidents are, to start with, not the subject matter of trial but during detention order the incidents are enquired into by regular trial and are held to be false or the prosecution fails to prove the incidents by reliable evidence. In either case the only conclusion derivable is that such incidents cannot be made the basis of detention. : "the principle deducible from the authority cited on behalf of the parties is that if in a regular trial the finding recorded is that the incident which as is alleged is not supported by any evidence then it will be taken that no such incident took place. . . . . : "the principle deducible from the authority cited on behalf of the parties is that if in a regular trial the finding recorded is that the incident which as is alleged is not supported by any evidence then it will be taken that no such incident took place. . . . . The consequence of such a finding is that there will be no material on record on which it can be stated that incidents No. 2 and 3 mentioned in Annexure 2 really took place. " ( 14 ) AS noticed earlier an order of preventive detention is made on the subjective satisfaction on the ground of suspicion of commission in future of acts prejudicial to community in general. We are unable to subscribe to the view that mere acquittal in respect of the detention related incident would render the continued detention illegal inasmuch as it could still be sustained with reference to the report submitted by the sponsoring authority and circumstances in which the prosecution witnesses turned hostile. The effect of the order of acquittal is to be gauged keeping in view the circumstances in which the crime, though committed, went unpunished as also the likelihood of the prejudicial activity being repeated. A reasonable suspicion that the witnesses were won over or over-awed would be enough to ignore the order of acquittal. Ram Lal, Man Singh and Satish, detenus were arrested on spot with their respective weapons and yet the witnesses turned hostile. The reason is not too difficult to be discerned. The Court is, however, not well equipped to gauge the circumstances which led to an order of acquittal in the criminal prosecution of the detenu. It should be left to the Executive to go into the matter again and see whether the order of detention could be sustained despite the judgment and order of acquittal in the criminal prosecution in respect of the self same incident which the order of detention was based on. It should be left to the Executive to go into the matter again and see whether the order of detention could be sustained despite the judgment and order of acquittal in the criminal prosecution in respect of the self same incident which the order of detention was based on. It cannot be gainsaid that the sponsoring authority may provide fresh material in justification of the continuance of detention despite order of acquittal in the criminal prosecution and thereupon the detaining authority/state Government can, if necessary, take decision as to revocation of the order of detention after examining the matter from every conceivable angle including the effect of the judgment and order of acquittal taken in its true perspective and in the light of the attending circumstances that may be brought to the notice of the detaining authority/state Government. Declaring the continuance of detention after acquittal as illegal without the matter being first examined by the concerned Executive authority may have a large scale ramification vis-a-vis the objectives sought to be achieved by the Act. The Court should act with circumspection and restraint and restraint in declaring the detention illegal merely on the basis of the order of acquittal irrespective of the circumstance which led to the failure of the criminal prosecution. ( 15 ) IN Habeas Corpus Petition No. 49782 of 1999 Sushil Singh alias Sushil Kumar Singh v. District Magistrate, Varanasi decided on 7-3-2000 a Division Bench of this Court had an occasion to consider the effect of the judgment of acquittal on an order of preventive detention. The Division Bench relied upon Shiv Ratan Makim (Supra) and declined to quash the order of detention merely on the basis of the judgment of acquittal which was recorded due to the reason of the witnesses having turned hostile. The decision in Puneet v. State of U. P. , 1991 (38) ACC 338, reliance on which was placed for the detenu, was also considered in Sushil Singh (Supra ). The decision in Puneet v. State of U. P. , 1991 (38) ACC 338, reliance on which was placed for the detenu, was also considered in Sushil Singh (Supra ). In Ashok Kumar v. Delhi Administration, 1982 (19) ACC 262 SC : ( AIR 1982 SC 1143 ), the Supreme Court held as under at page 1148 of AIR :"there is no reason why the Executive cannot take recourse to its power of preventive detention in those cases where the Court is genuinely satisfied that no prosecution could possibly succeed against the detenu because he is a dangerous person who has over-awed witnesses or against whom no one is prepared to depose". ( 16 ) IN the circumstances it is difficult to accept the contention that the judgment of acquittal in the case would ipso facto render the continued detention of the petitioner illegal and void. The Full Bench decision in Ram Prasad Chaudhary (Supra), in our opinion, does not appear to have been correctly decided in so far as the effect of an order of acquittal on continuance of detention is concerned and it needs to be reconsidered on the anvil of the following questions : 1. Whether an order of acquittal recorded on criminal prosecution in respect of detention related incident, would constitute a bar to an order of preventive detention being made grounded on the self same incident? 2. Whether judgment and order of acquittal recorded during the currency of detention in regular trial and criminal prosecution in relation to an incident on which was the order of preventive detention grounded, would ipso facto render the continued detention illegal? 3. Whether this Court should refrain itself from entering into the question as to the effect of order of acquittal recorded during the currency of the detention and leave it to be decided by the executive in exercise of its power under Section 14 of the Act? ( 17 ) LET the file be placed before Honble the Chief Justice for constituting larger Bench for deciding the questions afore-stated. ( 17 ) LET the file be placed before Honble the Chief Justice for constituting larger Bench for deciding the questions afore-stated. In the meanwhile since the Full Bench decision in Ram Prasad Chaudhary (Supra) the correctness of which is to be tested by the larger Bench is in favour of the detenu, it is provided that the detenu shall be released on bail and on his furnishing a personal bond and two sureties in the like amount to the satisfaction of the District Magistrate, Ghaziabad. This order will govern the connected writ petitions as well. Order accordingly. .