- (1.) U. S. Tripathi, J. This writ petition has been filed by the petitioner for quashing his detention order dated 12-7-2002, passed by District Magistrate, Mathura, respondent No. 1, under Section 3 (2) of the National Security Act.
(2.) THE petitioner was served with the grounds of detention along with the order of detention, which stated that on 28-4-2002 at about 3. 30 p. m. the petitioner along with his associates Jamuna, Kanja and Jatwar armed with fire arms came to the grocery shop of Pachan Kumar Agrawal, situated at Mohalla Hathi Darwaza Bazar, Goverdhan for realizing Chowth. THE petitioner and his associates abused and said Pachan Kumar Agrawal for refusal to pay Rs. 500 as Chowth and caused injuries to them. He also exhorted his associates Jamuna and Kanja to kill and fire on Govind Prasad. Govind Prasad was seriously injured and fell down. Complainant, Pachan Kumar, his father Lakkhi Lal and other customers were also injured. THE petitioner and his associates threw away the articles stored in the shop of complainant. THE incident took place in a busy market situate at Parikrama Marg and a sense of fear and terror was created. Shopkeepers left their shop and started running helter skelter. THE pilgrims performing Parikrama of Goverdhan Parvat were also affected and they started running helter and skelter in the mid of Parikrama. On account of dare devil act of the petitioner and his associates, a sense of fear and terror was created in Kasba Goverdhan and shopkeepers were forced to pay chowth to him. On previous occasions also the petitioner and his associates had terrorized the complainant and his family members regarding realization of chowth. During treatment of his injuries Govind Prasad died. On the report of the incident a case at crime No. 216 under Sections 384, 307, 323 and 504 IPC was registered at P. S. Goverdhan, which was altered under Section 302/34 IPC after the death of Govind Prasad. On 30-4-2002 at about 7. 30 p. m. when the complainant Om Prakash was taking out some articles from his go-down, situated at Barsana Road the petitioner and his associates went there and threatened him saying that he was doing pairvi in the case of death of his brother and in case he did not stop doing pairvi, he would not be spared alive. The above incident was witnessed by nearby shopkeepers. Feeling them unsecured on account of act of petitioner and his associates several traders and citizens of Kasba Goverdhan had moved a joint application before the Station Officer, P. S. Goverdhan that they apprehended danger of their life from the petitioner and his associates. On the above report a case at crime No. 217 of 2002, under Sections 504 and 506 IPC was registered at the police station. The petitioner was detained in District Jail Mathura in connection with case Crime No. 216 of 2002 and 217 of 2002 and was attempting to get him released on bail. There was real possibility of his being released on bail and after release on bail of indulging him in similar activities prejudicial to the maintenance of public order. The petitioner was also informed that he had a right to make representation to the Detaining Authority, State Government, Central Government and Advisory Board.
(3.) WE have heard Shri S. K. Agarwal, learned counsel for the petitioner, learned AGA for the respondent Nos. 1, 2 and 3 and learned Standing Counsel for respondent No. 4, Union of India and have perused the record. Learned counsel for the petitioner raised following grounds for challenging the detention order: - 1. The detention order was passed on some extraneous considerations which were not based on any material on record and the aforesaid extraneous material placed before the detaining authority might have influenced his mind; 2. At the time of passing of detention order no bail application moved on behalf of the petitioner was pending and the police had concocted a forged bail application to create a ground for passing detention order; 3. There are no sufficient and compelling necessity before the detaining authority to record his satisfaction that after release on bail the petitioner would indulge in similar activities prejudicial to the maintenance of public order. Point No. 1. It was contended by the learned counsel for the petitioner that detaining authority had passed the detention order on some extraneous consideration as the material placed before him indicated that the petitioner and his associates had terrorized the complainant and his family members on the point of realization of chowth, but there was no material on record and, therefore, the detention order is bad in law. He also placed reliance on Apex Court decision in Vashistha Narain Karwaria v. State of U. P. and another, 1990 (1) JIC 5 (All); 1990 SCC (Crl.) 372. In the said case the letters submitted by the SHO to the Senior Superintendent of Police contained averments that Vashistha Narain Karwaria @ Bhukkhal was hardened criminal and had a gang. In his gang his son Kapil and two other big offenders Ram Chandra Tripathi and Gaya Prasad were included. Those people often used to commit heinous crime by which terror and fear prevailed in the people. Many crimes were registered against Vashistha Narain Karwaria in many police stations. On the above facts it was held that no particulars or details were given in the documents enclosed with the ground of detention in regard to the alleged many of cases/offences said to have been registered in various police stations against him and in regard to the allegations that he was a hardened criminal and had a gang often committing heinous crimes and it had become habit of detenue to commit offence. Further held that the above averments which are extraneous touching character of the detenue, though not referred to in the grounds of detention might have influenced the mind of the detaining authority to some extent one way or the other in reaching subjective satisfaction to take decision of directing the detention of the detenue. Further reliance was placed on Division Bench decision of this Court in Sabit v. District Magistrate Rae Bareli, 2000 (Suppl.) ACC 266. In the said cases SHO who was the sponsoring authority in his letter addressed to the Superintendent of Police Rae Bareli which was ultimately sent to the District Magistrate, had mentioned that the petitioner had become a person of criminal tendency. On the above facts it was held that the District Magistrate considered the extraneous material while passing the detention order against the petitioner, which vitiated the subjective satisfaction rendering the detention order invalid. In the instant case the report of the Station Officer P. S. Goverdhan has not been annexed with the writ petition. However, the report of the Sponsoring Authority (SSP, Mathura), dated 8-7-2002 has been annexed along with the writ petition which contained mention of the incident in question. The facts mentioned in the report of the Sponsoring Authority are based on the report of the case Crime No. 217 of 2002 lodged by Om Prakash at P. S. Goverdhan as well as the report of case Crime No. 216 of 2002, under Sections 384, 307, 323 and 504 I. P. C. It is clearly mentioned in the said report that prior to ten days of the occurrence of the said case the petitioner had come to the shop of the complainant and had demanded Rs. 500 as Chowth. When the complainant refused to pay the above money, the petitioner threatened him. It is also mentioned in the said report that prior to it the petitioner and his associates had realized Chowth from the shopkeepers of the market and due to fear and terror of petitioner and his associates no body could dare to raise voice against him. It is also mentioned in the report of the case Crime No. 217 of 2002 that on 30-4-2002 (after incident of case Crime No. 216 of 2002) the petitioner along with his associates came to the shop of complainant, Om Prakash, the brother of Govind Prasad, deceased at about 7. 30 p. m. and threatened him saying that he was doing pairvi in the murder case of his brother and in case he did not stop doing pairvi of the said case he would not be spared. As such the facts mentioned in the grounds of detention are based on material placed before the detaining authority and it can not be said that there was any extraneous matter in the report of the Sponsoring Authority which could prejudice the mind of the detaining authority in passing detention order. The decisions relied on by the learned counsel for the petitioner are thus not applicable to the facts of the present case. Point No. 2. Learned counsel for the petitioner contended that the petitioner had not moved any bail application in the Court and no bail application was pending at the time of passing of the detention order. He further contended that the informant of the case in collusion with the police got some application on behalf of the petitioner moved so that the petitioner could be detained under National Security Act; that the petitioner on coming to know this fact made a complaint to the Sessions Judge to the effect that the petitioner had never engaged Shri Chhiddi Singh Jais as his Advocate. The said Advocate was own man of the police and informant, therefore, there was no ground for the detaining authority to pass detention order as the petitioner was in jail and had not applied for bail. It may also be mentioned at this stage that in para 23 of the writ petition the petitioner has alleged that he never applied for bail and no application for bail on behalf of the petitioner was pending at the time his detention order was passed, but it is also mentioned in the writ petition that the petitioner was granted bail on 7-9-2002. The bail order dated 7-9-2002 has also been annexed as Annexure-6 to the writ petition. It is not the case of the petitioner that the bail order dated 7-9-2002 was passed on any application which was not moved by him. However, the petitioner has not filed bail application on which the order dated 7-9-2002 was passed. The pendency of bail application is not necessary for recording satisfaction of the detaining authority that there was real possibility that the petitioner would be released on bail. It has been held by Apex Court in the case of 2000 (1) JIC 221 (SC), Ahmad Nassar v. State of Tamil Nadu and others, JT 1999 (8) SC 252, that the matter of testing satisfaction of any detaining authority it has to be decided on the facts and circumstances of each case in spite of rejection of bail by a Court once it is open to the detaining authority to come to his satisfaction based on the contents of the bail application that there is likelihood of detenue being released on bail. Merely because no bail application was then pending is no premises to hold that there was no likelihood of his being released on bail. The words "likely to be released" connote chance of being bailed out in case the pending bail application or in case it is moved in future is decided. The word "likely" shows that it can be either way. So without taking any such risk if on the facts and circumstances, the type of crime to be dealt under the criminal law including contents of the bail application, each and compositely all would constitute to be relevant material for arriving at the conclusion. The contents of bail application would vary from one case to the other coupled with the different set of circumstances in each case. It may be legitimately possible in a given case for the detaining authority to draw an inference that there is likelihood of detenue being released on bail. In the instant case the detaining authority has recorded his satisfaction as below: - "that you Raju are detained in District Jail in connection with case crime No. 216 of 2002 under Sections 384, 307, 323, 504 and 302/34 IPC, relating to P. S. Goverdhan and are attempting to obtain bail. There is possibility that you would be released on bail very shortly and would come out. ". . . . . In view of the facts and circumstances of the case and wordings of the above satisfaction of the detaining authority that there is likelihood of the petitioner being released on bail cannot be said to be based on no relevant material. It is also evident that subsequently the petitioner was granted bail in the above case on 7-9-2002. The point is answered accordingly. Point No. 3 The contention of the learned counsel for the petitioner was that there was no material on record to the effect that the petitioner if released on bail would likely indulge in activities prejudicial to the maintenance of public order and, therefore, the satisfaction of the detaining authority on this score was wrong. Reliance was placed on the Apex Court decision in Dharmendra Sugan Chandra Chelawat v. Union of India, 1990 (1) JIC 396 (SC); 1990 SCC 249, Anand Prakash v. State of U. P. , 1990 (27) ACC 67, Smt. Shashi Agrawal v. State of U. P. ,, 1988 SCC (Crl.) 178 and Agya Ram Verma v. Union of India. It is ruled out in the above decision that the detention order can be passed against a person if he is in jail provided (i) the detaining authority was aware of the fact that the detenue is already in detention (ii) there were compelling reasons justifying such detention despite the fact that the detenue was already in detention that expression compelling reasons in context of making of an order of authority concerned of a person already in custody implies that there must be cogent material before the authority on the basis of which it may be satisfied that (a) the detenue is likely to be released from custody in the near future and (b) taking into account the nature of the antecedent activities of the detenue, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities. The satisfaction of the detaining authority that the petitioner, if released on bail would indulge in similar activities prejudicial to the maintenance of public order depends upon the nature of incident and antecedents and apprehension of repeating tendency. In the instant case there were materials before the detaining authority that prior to the incident of 28-4-2002 the petitioner had demanded Chowth from the brother of the deceased as well as from other shopkeepers. It is also clear from the material on record that after above incident of 28-4-2002 again the petitioner threatened the complainant of the case with dire consequences, in case he did pairvi of the murder case of his brother. Therefore, the previous as well as subsequent conduct of the petitioner indicated that he was indulged in realizing Chowth from the shopkeepers and he who dared to oppose him and his associates, he would be done to death. These activities of the petitioner were thus sufficient material to record satisfaction of the detaining authority that on release on bail the petitioner would again indulge in similar activities prejudicial to the maintenance of public order and thus there were compelling necessity before the detaining authority to pass the detention order. In view of our findings on the above points we find no force in the writ petition. The writ petition is accordingly dismissed. Petition dismissed. .;