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2004 DIGILAW 1213 (AP)

Ram Lal v. State of U. P.

2004-10-15

IMTIYAZ MURTAZA, K.K.MISRA, MARKANDEY KATJU, RAVINDRA SINGH, SUNIL AMBWANI

body2004
ORDER K.K. Misra, J. — In all the writ petitions validity of detention order dated 26.6.99 on identical grounds under sub-section (2) read with sub­-section (3) of Section 3 of National Security Act, 1980 (briefly, the Act) with a view to preventing the detenus from acting in any manner prejudicial to the maintenance of public order was challenged. 2. The grounds of detention relate to an incident which had taken place on 9.6.99 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 No. 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. The detenu Ram Lal and Man Singh were arrested on the spot along with their respective weapons. The detention orders under challenge in each of these writ petitions were grounded on the same incident and the questions of law and facts are also common. 3. We have heard Sri R.C. Kandpal and Sri D.S.Misra for the petitioners and Sri Arvind Tripathi, learned A.G.A. from the side of the State. 4. A Bench consisting of Hon’ble S.R. Singh and Hon’ble V.K. Chaturvedi, JJ. heard the said matter at length and formulated three questions of law as they disagreed with the Full Bench decision in the case of Ram Prasad Chaudhary v. State of U.P.1, in which the Court was of the opinion that the detention order became illegal in view of the acquittal recorded by the trial court in the criminal case. Three questions formulated by the Bench are as follows: 1. Whether an order of acquittal recorded in a criminal prosecution in respect of the detention related incident, would constitute a bar to an order of preventive detention being made grounded on the same incident? 2. Whether a judgment and order of acquittal recorded during the currency of detention in a regular trial and criminal pro-secution in relation to which incident the order of preventive detention ground was passed would ipso facto render the continued detention illegal? 3. 2. Whether a judgment and order of acquittal recorded during the currency of detention in a regular trial and criminal pro-secution in relation to which incident the order of preventive detention ground was passed would ipso facto render the continued detention illegal? 3. Whether this Court should refrain from entering into the question as to the effect of the 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? 5. The argument on behalf of the petitioners is that since the petitioners have been acquitted by the learned Sessions Judge, it would be deemed that no such incident took place, and hence due to the acquittal, the continued de-tention becomes illegal. The further argument is that if there is acquittal on merit, no order of detention can be passed subsequently and if the acquittal is during detention, the continued deten-tion would be illegal. Learned counsel for the petitioners relied upon the decision in the case of Ramesh Yadav v. District Magistrate, Etah and others.2 The detention order in the above noted case was set aside on the ground that there was apprehension of grant of bail to the accused and on the basis of some stale grounds and grounds in respect of which the detenue had already been acquitted. In para 5 of its judgment, the Division Bench had held “admittedly, a trial had taken place and there has been acquittal. That ground, therefore, was not available to be used”. A Full Bench of Lucknow Bench of this Court consisting of Hon’ble K.S.Varma, Hon’ble S.C. Mathur and Hon’ble G.B. Singh, JJ had held that if once the detenue is acquitted by a criminal court on the ground on which the detention order was passed, he cannot be detained on that ground. The Full Bench in para 24 of its judgment went to the extent to hold that as the prosecution witness did not support the case put forward by it, the prosecution failed against the petitioner on account of want of evidence and in view of this finding it cannot be said that the incident as stated in the ground ever really happened and it should be treated that the incident was non­-existent. The Full Bench had also relied upon the judgment of Rameshwar Lal Patwari v. The State of Bihar3, and the contention was that since the incident in respect of which the detention order was passed had already ended in acquittal before the passing of the detention order such order is liable to be quashed on that ground. Learned A.G.A. on the other hand had assailed these arguments on the basis of several judgments of the Hon’ble Supreme Court. 6. Before entering into the real controversy, which is very short in nature, we must keep in mind that the Legislature has purposely enacted the preventive law to empower the adminis-tration for dealing with the problems of society effectively. The National Security Act was enacted in the year 1980 and it has been held in judgment of the Hon’ble Supreme Court in the case of State of U.P. v. Hari Singh Thakur4 , that the approach for deciding the Habeas Corpus Petitions should be an objective approach taking into account all the relevant circum-stances and consideration in order to strike a balance between the need to protect the community on the one hand and the need to preserve the liberty of the citizen on the other. The proceedings for the prosecution and the proceedings for preventive detention are different. In one case the action is punitive and the prosecution is required to prove its case beyond reasonable doubt. The statements have to be recorded, personal hearing is given, cross-examination of witnesses takes place and assistance of lawyers is taken in punitive action and the defence is also considered. However in preven-tive action, the procedure is entirely different. The order is based on the basis of subjective satisfaction of the detaining authority. Thus, in punishment given after conviction in a criminal trial the punishment is given for the past act and a person is convicted for the past conduct, in preventive detention, the action is on the basis of reasonable belief and the past conduct is considered only to consider whether the act was prejudicial to the security of the State, Public Order and Supplies and Services essential the community etc. In preventive detention, the subjective satisfaction arrived at by the detaining authority is purely precautionary to check repetition of similar activities, whereas in detention after conviction in a trial the punitive action is objective which is based on the evidence on record. In preventive detention, the subjective satisfaction arrived at by the detaining authority is purely precautionary to check repetition of similar activities, whereas in detention after conviction in a trial the punitive action is objective which is based on the evidence on record. Thus preventive detention is qualitatively different from punitive detention and is exercised in reasonable anticipation as a precaution-ary measure. The preventive detention can be made before or during the prosecution with or without prosecution and in anticipation or after discharge or even after acquittal.. The purpose of criminal prosecution is punitive and the standard of proof is beyond reasonable doubt, whereas the purpose of detention under the preventive detention Act is to prevent the repetition of prejudicial activities and the order is based on the subjective satisfaction of the detaining authority. 7. In Mohd. Subrati alias Mohd. Karim v. State of W.B.5 the facts were that in the criminal trial the witnesses examined under section 161 Cr.P.C. were reluctant to depose against the petitioner and his associates for fear of danger to their life, and the Investigating Officer submitted a final report. The order of detention for this reason was challenged as being mala fide. The Supreme Court held that unsuccessful judicial trial or proceeding would not operate as a bar to a detention order or render it mala fide. It has also been held that the law of preventive detention has nothing to do with the trial and punishment of persons for commission of an offence. It was further held that it is quite clear that this section carries out the statutory purpose of preventive detention and it has nothing to do with trial and punishment of persons for commission of offences. Indeed, it is precisely because the existing law providing for the punish-ment of persons accused of commission of offences and, for prevention of offences, is not found adequate for dealing with the situation for effectively preventing, in the interest of national security etc., the commission of prejudicial acts in future, that the provisions of this Act were enacted and are intended to be utilized. If, therefore, for any reason it is not possible to successfully try and secure the conviction and imprisonment of the persons concerned for their past activities, which amount to an offence, but which are also relevant for the satisfaction of the detaining authority for considering it necessary that a detention order under section 3 be made for preventing such persons from acting in a prejudicial manner as contemplated by that section, then, the Act would indisputably be attracted and a detention order can appropriately be made. 8. In Haradhan Saha v. State of W.B.&. others6, it was held that the power of preventive detention is qualitatively different from punitive detention. The power of preventive detention is a pre-cautionary power exercised in reasonable anticipation. It may or may not relate to an offence. It is not a parallel proceeding. It does not overlap with the prosecution even if it relies on certain facts for which the 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 anti-cipation 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. In Israil Sk. v. The District Magistrate, West Dinajpur & others7, it was held by the Hon’ble Supreme Court that the mere fact that the detenu was discharged in a criminal case does not mean that a valid order of detention could not be passed against him in connection with those very incidents. 9. In Golam Hussain alias Gama v. Commissioner of Police, Calcutta and others8, it was held that merely because the grounds of detention have been the subject matter of criminal cases which have ended in discharge, it cannot be said that the order of detention is mala fide. The basic imperative of proof beyond reasonable doubt does not apply to the ‘subjective satisfaction’ component of imprisonment for reasons of internal security. 10. In John Martin v. State of West Bengal9, two incidents set out in the grounds of detention were dropped by filing final report. The basic imperative of proof beyond reasonable doubt does not apply to the ‘subjective satisfaction’ component of imprisonment for reasons of internal security. 10. In John Martin v. State of West Bengal9, two incidents set out in the grounds of detention were dropped by filing final report. The Supreme Court held that the criminal case had to be dropped against the detenu because the Investigation could not procure evidence to sustain his conviction but this would not be sufficient to hold that the detention order made against him is mala fide. 11. In Ashok Kumar v. Delhi Adminis-tration and others10, it was observed: “It is difficult to appreciate the argument that the detention here is with a view to punish the detenu for a series of crimes that he is alleged to have committed, but which the law enforcement agency is not able to substantiate. There is no reason why the Executive cannot take recourse to its power of preventive detention in those cases where the Court is genui-nely satisfied that no prosecution could possibly succeed against the detenue because he is a dangerous person who has overawed witnesses or against whom no one is prepared to depose. 12. Thus it can be seen that merely because a person has been acquitted in a criminal case it does not necessarily mean that he had not committed the offence. Acquittal in a criminal case only means that the prosecution has not been able to prove the guilt of the accused beyond reasonable doubt. There are a large number of cases where a person, has actually committed the offence but he was acquitted in the criminal case e.g. because the witnesses were afraid to give evidence or turned hostile for some reason such as fear or intimi-dation,, or there was tampering with the evidence or for some other such reason. 13. A person may be acquitted in a criminal case and yet on the same facts may be held liable on the civil side and may be directed to pay damages in a civil suit. A typical example is of the case of the American footballer O.J. Simpson who was acquitted in a criminal case for the murder of, his wife but against whom the civil suit on the same allegations was decreed and heavy damages were imposed on him. A typical example is of the case of the American footballer O.J. Simpson who was acquitted in a criminal case for the murder of, his wife but against whom the civil suit on the same allegations was decreed and heavy damages were imposed on him. Similarly, a Government employee may be acquitted in a criminal case but he may yet be punished after a departmental enquiry. Hence it is not correct to say that merely because there was acquittal in a criminal case, it necessarily means that the offence was not committed. 14. In the light of above discussion the questions formulated are answered as follows: Reply to question No. l The order of acquittal in a criminal prosecution would not act as a bar to preventive action on the basis of the same incident on which the order of acquittal has been recorded as held by the Hon’ble Supreme Court in various decisions of Constitutional Benches. It has been held that a preventive detention order may be passed with or without prosecution, in anticipation, after dis-charge and even after acquittal. Reply to question No. 2. When the preventive action can be taken with or without prosecution after discharge and even after acquittal, then in view of the aforesaid law laid down by the Hon’ble Supreme Court, if there is acquittal during the detention under preventive detention law, the continued detention will not become illegal. Reply to question No. 3. When the preventive action is legal with or without prosecution and even after discharge or acquittal then the detention order is not liable to be set aside by this Hon’ble Court. The autho-rities who have power to revoke or modify the preventive detention order may not be directed to consider the case of the detenue on the basis of the subsequent order of acquittal particularly since the detenue can make representation at any stage on fresh grounds. It would hence not be desirable for this Court to make any such direction or observation. 15. The decision of the Full Bench in Ram Prasad Chaudhary v. State of U.P. (supra) is hereby overruled. 16. Since by the referring order dated 22.5.2000 in this case the detenues were directed to be released the petition has become infructuous and is dismissed as such. Petitions disposed of. -------------------------------------------------------------------------------- 1. 1986 (23) ACC 186. 2. 1985 4 SCC 232 . 3. 16. Since by the referring order dated 22.5.2000 in this case the detenues were directed to be released the petition has become infructuous and is dismissed as such. Petitions disposed of. -------------------------------------------------------------------------------- 1. 1986 (23) ACC 186. 2. 1985 4 SCC 232 . 3. AIR 1968 SC 1303 . 4. AIR 1987 SC 2080 . 5. AIR 1973 SC 207 . 6. AIR 1974 SC 2154 . 7. AIR 1975 SC 168 . 8. AIR 1974 SC 1336 . 9. AIR 1975 SC 775 . 10. AIR 1982 SC 1143 .