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2018 DIGILAW 2040 (ALL)

Hakim Khan v. State of U. P.

2018-09-20

B.K.NARAYANA, CHANDRA DHARI SINGH

body2018
JUDGMENT : B.K. Narayana, J. 1. The argument of this case was concluded on 20.9.2018. We then made the following order :- "Heard Sri Mir Saved, learned Counsel for the petitioner, Sri Jitendra Prasad Mishra, learned Counsel for the Union of India, respondent No. 3, and learned A.G.A. appearing for respondents No. 1, 2 and 4. We are making the operative order now and will give reasons later. This petition is allowed. Impugned detention order 22.10.2017 is quashed. The petitioner is set at liberty forthwith unless he is wanted in any other case." 2. Here are the reasons:- In this petition, the validity of the detention of petitioner Hakim Khan (detenu) has been challenged. He has been detained by the District Magistrate, Kanpur Nagar by an order dated 22.10.2017 made under section 3 (2) of the National Security Act, 1980 (hereinafter referred to as the NSA). 3. The impugned order of preventive detention was passed against the petitioner while he was confined to District Jail, Kanpur Nagar on account of his being accused in following four cases namely: (a) Case Crime No. 278/17 under sections 147, 148, 149, 307, 323, 332, 333, 336, 337, 353, 153-A, 436, 427, 188, 295, 295-A, 504, 506, 186 I.P.C., section 7 Criminal Law Amendment Act, 1932 & section 3/4 Prevention of Damage to Public Property Act, 1984. (b) Case Crime No. 279/17 under section 147, 148, 149, 323, 336, 436, 427 I.P.C. & section 7 Criminal Law Amendment Act. (c) Case Crime No. 281/17 under sections 147, 148, 149, 323, 336, 436, 427 I.P.C. & section 7 Criminal Law Amendment Act. (d) Case Crime No. 282/17 under sections 147, 148, 149, 323, 336, 436, 427 I.P.C. & section 7 Criminal Law Amendment Act. Apart from the aforesaid cases, following three cases were also shown against the petitioner in the detention order namely: (a) Case Crime No. 338/14 under sections 147, 323, 504, 506, 427, 452 I.P.C. (b) Case Crime No. 94/12 under sections 323, 498-A, 506 I.P.C. & 3/4 Dowry Prohibition Act (c) Case Crime No. 17/15 under section 110-G Cr.P.C. 4. Apart from the aforesaid cases, following three cases were also shown against the petitioner in the detention order namely: (a) Case Crime No. 338/14 under sections 147, 323, 504, 506, 427, 452 I.P.C. (b) Case Crime No. 94/12 under sections 323, 498-A, 506 I.P.C. & 3/4 Dowry Prohibition Act (c) Case Crime No. 17/15 under section 110-G Cr.P.C. 4. Learned Counsel for the petitioner submitted that in the instant case, it is evident from the perusal of the grounds of detention that the applicant had moved a bail application in one out of the four cases pending against him namely in Case Crime No. 278/17 under sections 147, 148, 149, 307, 323, 332, 333, 336, 337, 353, 153-A, 436, 427, 188, 295, 295-A, 504, 506, 186 I.P.C., section 7 Criminal Law Amendment Act, 1932 & section 3/4 Prevention of Damage to Public Property Act, 1984 and hence, the satisfaction recorded by the detaining authority in the impugned order that there was possibility of the detenu being released and if released on bail, he was likely to indulge in activities prejudicial to the maintenance of public order, is totally vitiated and suffers from non-application of mind by the detaining authority to the material on record and hence, the impugned detention order cannot be sustained and is liable to be set-aside. In support of his aforesaid submissions, learned Counsel for the petitioner has placed reliance upon decision of the Apex Court in the case of Rekha v. State of Tamil Nadu through Secretary to Government and another 2011 (73) ACC 936 (SC) : 2011 (101) AIC 73 . 5. Per contra Smt. Manju Thakur, learned A.G.A.-I submitted that the impugned detention order does not suffer from any illegality or infirmity requiring any interference by this Court. She further submitted that there was sufficient material before the respondent No. 2 justifying his belief that in case the detenu was released on bail, he would again indulge in activities disturbing the public order. 6. We have very carefully scanned the impugned order and the grounds of detention and also the counter affidavits filed on behalf of the respondent Nos. 1 to 4 in this writ petition and we are constrained to observe that the satisfaction recorded by the respondent No. 2 in the impugned order that there was likelihood of the detenu being released, is not warranted by any material on record. 1 to 4 in this writ petition and we are constrained to observe that the satisfaction recorded by the respondent No. 2 in the impugned order that there was likelihood of the detenu being released, is not warranted by any material on record. Notice may be taken of the fact that the impugned detention order was passed against the petitioner on account of four criminal cases pending against him. The grounds for detention further indicate that the petitioner had moved a bail application before the District and Sessions Judge, Kanpur Nagar in Case Crime No. 278/17 under sections 147, 148, 149, 307, 323, 332, 333, 336, 337, 353, 153-A, 436, 427, 188, 295, 295-A, 504, 506, 186 I.P.C., section 7 Criminal Law Amendment Act, 1932 & section 3/4 Prevention of Damage to Public Property Act, 1984 and 23.10.2017 was the date fixed for disposal of his bail application and since there was a possibility of his being released on bail, he may indulge in activities which would spread hatred between the followers of two religions and disturb the public order as well as the communal harmony, it was imperative to pass an order of preventive detention against him. There is nothing on record which may indicate that the petitioner had applied for bail in Case Crime Nos. 279/17, 281/17 and 282/17. In the absence of any material on record indicating that the petitioner had moved bail application in the other cases in which he was accused and there was likelihood of his being granted bail in those cases as well, the satisfaction recorded by the detaining authority in the impugned order that there was strong possibility of the petitioner being released, is totally vitiated. We stand fortified in our view by the decision of the Apex Court in the case of Rekha (supra). 7. The Hon'ble Apex Court in paragraph 27 of its judgment rendered in the case of Rekha (supra) has observed as hereunder :-- "27. In our opinion, there is a real possibility of release of a person on bail who is already in custody provided he has moved a bail application 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 the detention order will be illegal. 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 the detention order will be illegal. However, there can be an exception to this rule, that is, 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 Courts normally grant bail on this ground. However, details of such alleged similar cases must be given, otherwise the bald statement of the authority cannot be believed." 8. The instant case is not covered under the exception carved out to the general proposition of law laid down by the Apex Court in the case of Rekha (supra). It is nobody's case that in the three cases in which the petitioner had not moved any bail application, any co-accused whose case stood on the same footing, had been granted bail and hence, the detaining authority could not reasonably conclude that there was likelihood of the petitioner being released on bail even though no bail application of his was pending in the aforesaid cases. 9. In view of the above, the impugned order cannot be sustained and is liable to be set-aside. 10. These are the reasons upon which we had set-aside the impugned order dated 22.10.2017 passed by the respondent No. 2, District Magistrate, Kanpur Nagar.