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2014 DIGILAW 58 (MAN)

Wahengbam Ongbi Usharani v. State of Manipur

2014-05-09

L.K.MOHAPATRA, N.KOTISWAR SINGH

body2014
JUDGMENT L.K. Mohapatra, ACJ.:- The petitioner is the wife of the detenu, Wahengbam Ramananda Singh. She has filed this writ application challenging the order passed by the District Magistrate, Imphal East dated 08.01.2014 directing the detention of the husband of the petitioner under Sub Section 3 of Section 3 of the National Security Act, 1980(for short ‘NSA’). 2. From the grounds of detention, it appears that the husband of the petitioner joined a banned organization namely United National Liberation Front (UNLF in short) in Sept.1994 and started working for the said organization. He was arrested once in 1996 and had been released on bail. Subsequently, on three more occasions, i.e. once in 1997, once in 1999 and once in 2012, he had been arrested and released on bail. On 4.12.2013 he was arrested for the 5th time and two Mobile Handsets with Sim cards had been seized from his possession. He was handed over to the local police and FIR No.91(12)13 HNG P.S. was registered for commission of offence u/s 365/447/120-B IPC read with Section 25(1-C) Arms Act and was remanded to police custody upto 18.12.2013. On 18.12.2013 when he was produced before the Court for judicial remand, he was again formally arrested in connection with FIR Case No.226 (7)2009 IPS for commission of offence registered u/s 17/20/UA(P)Act and was again remanded to police custody till 24.12.2013. He was again formally arrested in connection with FIR Case No.78(2) 2011 IPS, u/s 365/368/34 IPC read with Section 16(1-B)/20 UA(P) A. Act and Section 5 of Expl. Subs. Act and was remanded to police custody till 09.1.2014. While he was continuing in police custody, the impugned order of detention was passed on 8.1.2014 and the District Magistrate, Imphal East recorded his subjective satisfaction to the effect that the husband of the petitioner is likely to be released on bail in near future as in similar cases bails are granted by the Court. 3. Challenging the above order of detention, Shri Ph. Sanajaoba, learned counsel appearing for the petitioner submitted that when the husband of the petitioner was in custody and had not moved any application for bail and none of the co-accused persons had been released on bail, the 3 subjective satisfaction recorded by the District Magistrate referring to a bail order not related to the husband of the petitioner or any of the co-accused, cannot be sustained in law. Reliance was placed by the learned counsel on a decision of the Apex Court in Rekha Vs. State of Tamil Nadu : (2011) 5 SCC 244 and another Decision of the same Court in the case of Huidrom Konungjao Vs. State of Manipur : (2012) 7 SCC 181 . 4. Mr. A. Vashum, learned Government Advocate and Mr. Amarjit Naorem, learned CGSC referring to the counter affidavit filed on behalf of the State as well as of the Union of India, submitted that the husband of the petitioner is involved in commission of similar offences being a member of UNLF on several occasions and he had been arrested on several occasions in between 1996 to 2012 and had been released on bail. Therefore, the apprehension of the District Magistrate that in the event the husband of the petitioner moves an application for bail he shall also be released on bail, is based on the fact that for commission of similar offences the husband of the petitioner had earlier been released on bail on more than one occasions. Therefore, there is no reason for this Court to interfere with the order of detention. 5. From the grounds of detention at Annexure-N/2 the following facts emerge and they are not in dispute- (a) The husband of the petitioner was arrested on 25.6.96 for commission of offence u/s 121/121-A of IPC read with Section 25 UA (P)A. Act & Section 13 UA(P)Act. He was released on bail on 21.3.1997; (b) The husband of the petitioner was arrested in April, 1997 for commission of offence u/s 10/13 UA(P)Act and Section 25(I-B) Arms Act and was released on bail on 20.11.1997. (c) The husband of the petitioner was arrested on 01.12.1999 for commission of offence u/s 13 UA(P) Act and he was released on bail by the Court; (d) On 14.2.2002 he was again arrested for the 4th time for commission of offence u/s 121/121-A of IPC u/s 25(I-B) Arms Act & Sect 13 UA(P) Act, but he was released on bail in August, 2012. 6. 6. Apart from the four cases in which husband of the petitioner was arrested and released on bail, there were two other cases in which he had not been arrested, i.e. FIR Case No.226(7)09 IPS registered for commission of offence u/s 17/20 UA(P) Act and FIR No.78(2)2011 IPS registered for commission of offence u/s 365/368/34 IPC & 16(1-B)/20 UA(P) A.Act read with 25(I-B) A.Act and 5 Expl.Act. 7. Therefore, it is evident that prior to his arrest on 4.12.2013 in connection with FIR Case No.91(12)13 HNG P.S., he had been arrested on four occasions for commission of similar offences and had been released on bail. He could not be arrested in connection with two other cases- one registered in 2009 and another registered in 2011 and after his arrest on 4.12.2013, he was formally arrested in connection with the above two cases. Therefore, total number of cases registered against the husband of the petitioner comes to 7(seven) in between 1996-2013. Out of these 7 cases, in four cases for commission of similar offences he had been released on bail. 8. It is not in dispute that in connection with FIR 91(21)13 HNG P.S. husband of the petitioner had been arrested on 4.12.2013 and during custody period, he was again formally arrested in connection two other cases but had not moved for grant of bail in any of the three cases. There is no material to show that any of the co-accused person had moved for bail in these three cases. However, there is also no dispute that earlier on 4(four) occasions in between 1996-2012 he had been arrested four times for commission of similar offence and had been released on bail. 9. In the case of Rekha vs. State of Tamil Nadau (supra) the Apex Court was of the opinion that there is a real possibility of release of a person on bail who is in custody provided he has moved an application for bail which is pending. It follows logically that if no bail application is pending, then there is no likelihood of the person in custody being released on bail and hence, detention order will be illegal. However, there can an exception to this rule, i.e., where a co-accused whose case stands on the same footing, had been granted bail. It follows logically that if no bail application is pending, then there is no likelihood of the person in custody being released on bail and hence, detention order will be illegal. However, there can an exception to this rule, i.e., where a co-accused whose case stands on the same footing, had been granted bail. In such cases, the detaining authority can reasonably conclude that there is likelihood of the detenu being released on bail even though no bail application of his is pending since most Court normally grants bail on this ground. However, details of such alleged similar cases must be given, otherwise, the bald statement of the authority cannot be believed. 10. The above judgment of the Apex Court had been taken note of subsequently in the case of Huidrom Konungjao V. State of Manipur (supra). In the said reported case, the detenu was arrested on 19.6.2011 by the Imphal Police Station for commission of offence u/s 302 of the IPC. While he was in custody, the District Magistrate, Imphal West passed the order of detention on 30.6.2011 under the National Security Act, 1980, recording his subjective satisfaction to the effect that in similar cases accused persons had been enlarged on bail and that the detenu may also be enlarged on bail. Challenging the order of detention, writ application filed before the Gauhati High Court, Imphal Bench which was dismissed giving rise to the Criminal Appeal in which the impugned decision was rendered by the Apex Court. Considering the case, with the above background, the Apex Court in paragraph 15 of the judgment observed that the order of bail on which reliance was placed by the District Magistrate does not relate to any co-accused in the same case. For the above reason the Court further 6 held merely because somebody else in similar case had been granted bail, there could be no presumption that in the instant case had the detenu applied for bail could have been released on bail. Since detenu had not moved for bail and no other co-accused had been enlarged on bail, resorting to provisions of NSA, 1980 is not permissible. Holding thus, the Apex Court set aside the judgment of the Gauhati High Court, Imphal Bench and allowed the appeal. 11. There cannot be any dispute with regard to ratio laid down by the Apex Court in the above two cases. Holding thus, the Apex Court set aside the judgment of the Gauhati High Court, Imphal Bench and allowed the appeal. 11. There cannot be any dispute with regard to ratio laid down by the Apex Court in the above two cases. However, on reading of the grounds of detention it is clear that the husband of the petitioner had been arrested on four occasions in between 1996 – 2012 for commission of similar offences as that of the present one and had been released on bail. There were two other cases against him- one in 2009 and the other in 2011 for commission of similar offences, but he could not be arrested. Only after his arrest on 04.12.2013 in connection with FIR case No.91 (12)13 HNG PS for commission of more or less similar offence he had formally been taken into custody in respect of two other cases in which he could not be arrested. As stated earlier, 7(seven) cases had been registered against the husband of the petitioner in between 1996-2013 for commission of similar offences. Undisputedly, husband of the petitioner had been released on bail on four occasions having committed similar offences and therefore the District Magistrate, Imphal East apprehended that the moment application for bail is filed by the husband of the petitioner, he shall also be released on bail as in similar cases he had been released on bail earlier. 12. It is true that the reference to order of bail in the order of detention relates to some other accused and it does not relate to the case of the husband of the petitioner or any co-accused. But at the same time, we cannot close our eyes to the fact that for commission of similar offences, the husband of the petitioner had been released on bail by the Court on 4(four) occasions and we are, therefore, of the view 7 that apprehension of the District Magistrate, Imphal East that the husband of the petitioner may also be released on bail, he having been released earlier on four occasions for commission of similar offences, is justified. 13. 13. On consideration of the above facts, we are, further, of the view that though presently no application for bail is pending consideration on behalf of the husband of the petitioner, he having been released on bail on four occasions earlier for commission of similar offence, apprehension of the District Magistrate that he shall also be released on bail the moment bail application is filed, cannot be said to be unjustified. We are, therefore, not inclined to accede to prayer of the petitioner and accordingly dismiss the writ application.