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Job Hamington Vs. Commissioner of Police and ors. - Court Judgment

LegalCrystal Citation
Subject;Criminal
CourtGuwahati High Court
Decided On
Judge
AppellantJob Hamington
RespondentCommissioner of Police and ors.
Prior history
P.D. Desai, J.
1. The petitioner is the detenu. The order of detention was made by the first respondent (Commissioner of Police, Ahmedabad City) on June 12, 1981 under Sub-section (2) read with Sub-section (3) of Section 3 of the National Security Act, 1980 (hereinafter referred to as 'the Act'), on the said respondent being satisfied that it was necessary to detain the petitioner with a view to preventing him from acting in any manner prejudicial to the maintenance of public order in the are
Excerpt:
- - the order of detention was made by the first respondent (commissioner of police, ahmedabad city) on june 12, 1981 under sub-section (2) read with sub-section (3) of section 3 of the national security act, 1980 (hereinafter referred to as 'the act'), on the said respondent being satisfied that it was necessary to detain the petitioner with a view to preventing him from acting in any manner prejudicial to the maintenance of public order in the area of ahmedabad city. 4. to 9. xx xx xx xx xx 10. on a combined reading of the grounds of detention as well as the material portions of the affidavits, it is clear that the first respondent has relied upon the alleged conviction of the petitioner in as many as sixteen different cases, which are referred to by crime register nos......have reached the conclusion that the petitioner was prosecuted and convicted after trial in those cases in regard to the offences specified in paragraph 1 of the grounds. it cannot be overlooked in this connection that a first information report is the first stage in the process of bringing an offender to books. it is followed by investigations, charge-sheet, trial and conviction or acquittal. each one of these stages is material and it may give any turn or twist to the case. on the basis of the first information report alone, therefore, it would be impossible to reach the conclusion that there was prosecution and conviction of the person named in such report for the offences alleged to have been committed by him. the instant, case. therefore, is one of either total non-application- of.....
Judgment:

P.D. Desai, J.

1. The petitioner is the detenu. The order of detention was made by the first respondent (Commissioner of Police, Ahmedabad City) on June 12, 1981 under Sub-section (2) read with Sub-section (3) of Section 3 of the National Security Act, 1980 (hereinafter referred to as 'the Act'), on the said respondent being satisfied that it was necessary to detain the petitioner with a view to preventing him from acting in any manner prejudicial to the maintenance of public order in the area of Ahmedabad City. The grounds of detention dt. June 12,1981 were duly served upon the petitioner together with documents which consist of a large number of First Information Reports lodged against the petitioner at different police stations under the jurisdiction of the first respondent and outside such jurisdiction, and statements of three witnesses. The second respondent (State Government) approved the order of detention under Sub-section (4) of Section 3 of the Act on June 23. 1981. The petitioner's case was referred to the Advisory Board under Section 10 of the Act. The Advisory Board, in its report submitted to the second respondent stated that there was in its opinion sufficient cause for the detention of the petitioner. Thereupon, the State Government confirmed the detention order under Sub-section (1). of Section 12 of the Act, on September 11, 1981. The present petition challenging the order of detention was instituted on Sept, 24, 1981. It was posted for preliminary hearing on Sept, 25, 1981. Rule was ordered to issue on the same day and it was made returnable on Oct. 5, 1981. The petition has now reached final hearing before us and it is being disposed of by this judgment.

2. The order of detention has been challenged on the following grounds:

(1) Paragraph 1 of the grounds of detention served upon the petitioner gives a list of a large number of cases mentioning Crime Register Numbers of offences registered against the petitioner at different police Stations within and without the jurisdiction of the first respondent; the said paragraph contains recitals, the effect of which is that in as many as 16 of the cases listed, the petitioner was convicted, that one case was compounded and that in one case he was acquitted; the incidents covered by the several cases referred to and relied upon accordingly are alleged to have occurred between 1969 and 1980; the grounds and the pleadings do not indicate that that there was any material before the first respondent, other than the First information Reports in respect of those incidents, and on the basis of the First Information Reports alone, it was impossible for the first respondent to have informed his mind as to the outcome of the prosecutions, if any, launched on the basis of those First Information Reports; even assuming that there were any materials before the first respondent on the basis of which his mind was informed on the relevant aspect, the petitioner has not been furnished with copies of such materials; all that the petitioner has been supplied is the copies of First Information Reports relating to those incidents; having regard to the fact that the incidents relied upon are alleged to have occurred within a period of about eleven years commencing from the year 1969, it was impossible for the petitioner while under detention to ascertain whether prosecutions were in fact launched in regard to those incidents and what was the ultimate outcome of those prosecutions under the circumstances the order of detention is vitiated on the ground that it is founded on non-existent materials and alternatively on the ground that there was denial of an opportunity of effective representation.

(2) One of the incidents relied upon against the petitioner in paragraph 1 is alleged to have resulted in his acquittal; the first respondent has not explained why the case in which the petitioner is staled, to have been acquitted has been relied upon to judge the propensity and proclivity of the petitioner. Under the circumstances, the order of detention is rendered invalid because it is apparently made without application of mind and in mala fide exercise of powers.

(3) A large majority of incidents relied upon in paragraph 1 are not relevant, inasmuch as they fall within the domain of law and order and not public, order.

3. In our opinion, the petitioner is entitled to succeed on the first ground of challenge set out above. We are, therefore, not called upon to examine the validity of the other grounds of challenge.

4. to 9. xx xx xx xx xx

10. On a combined reading of the grounds of detention as well as the material portions of the affidavits, it is clear that the first respondent has relied upon the alleged conviction of the petitioner in as many as sixteen different cases, which are referred to by Crime Register Nos. of different police Stations, in arriving at the requisite satisfaction. In other words, what weighed in arriving at the prognosis was not the mere fact that complaints in regard to those cases were lodged at different police Stations against the petitioner but also the further fact that in those cases the petitioner was prosecuted and convicted.

11. Once the aforesaid conclusion is reached, the question immediately arises as to whether there was any material before the first respondent on the basis of which he arrived at the factual conclusion with regard to the conviction of the petitioner in those sixteen cases and, if so. whether such material was communicated to the petitioner in order to enable him to make an effective representation. Now, on this point, it is apparent from the averments made in paragraph 2 of the second affidavit of the first respondent that the only material before him at the time when he made the order of detention consisted of the first information reports of the several cases in which the petitioner is alleged to have been convicted. The material averments in paragraph 2 of the affidavit on this point are in the following terms:

The materials before me in this regard consisted of FIRs of cases in which the petitioner was convicted, FIR of case in which the petitioner was acquitted and the materials pertaining to the incident of 7-6-1981 which incident had resulted in a breach of public order....The FIRs were the statements of the persons who had lodged them. These statements about the involvement of the petitioner I considered along with the materials for the incident of 7-6-1981 and came to the conclusion that the detention of the petitioner was absolutely necessary.

Again, in paragraph 3 of the said affidavit, the first respondent has reiterated that while considering and passing the order of detention he had before him the FIRs of the cases in which the petitioner was convicted, the FIR of the case in which he was acquitted and the statements of persons who had slated about the part played by the petitioner in the incident of 7-6-1981. The learned Public Prosecutor also fairly stated to the Court in the course of his oral submissions, that on a perusal of the record, it appeared that that was the only material before the detaining authority to judge the propensity of the petitioner. It would thus appear that the case of the first respondent appears to be that the only material, at the time when he reached the requisite satisfaction with regard to the need to detain the petitioner inter alia on the basis of his conviction in 16 cases and when he made the order of detention, consisted of the FIRs in the various cases which are ultimately stated to have resulted in the prosecution and conviction or acquittal of the petitioner.

12. It is extremely difficult, if not impossible, to understand as to how on the basis of the First Information Reports alone the first respondent could have reached the conclusion that the petitioner was prosecuted and convicted after trial in those cases in regard to the offences specified in paragraph 1 of the grounds. It cannot be overlooked in this connection that a First Information Report is the first stage in the process of bringing an offender to books. It is followed by investigations, charge-sheet, trial and conviction or acquittal. Each one of these stages is material and it may give any turn or twist to the case. On the basis of the First Information Report alone, therefore, it would be impossible to reach the conclusion that there was prosecution and conviction of the person named in such report for the offences alleged to have been committed by him. The instant, case. therefore, is one of either total non-application- of mind or of acting upon conjectures and surmises, or one in which in all probability, some other material was also taken into consideration, but which having not keen disclosed to the petitioner because copies thereof were not furnished to the petitioner, the true version is not coming forth. Be that as it may, on either ground, the detention is vitiated. If we accept the word of the first respondent at its face value and proceed on the basis that he adjudged the proclivity of the petitioner on the basis of his conviction in as many as sixteen cases and that in arriving at that satisfaction, he merely took into consideration the First Information Reports of the respective cases, then there is no escape from holding that there was complete non-application of mind and also that the satisfaction was based on conjectures and surmises. If we reject his version, even then there is no escape from the conclusion that the detention is still invalid because copies of the material taken into consideration other than the FIRs, has not been supplied to the petitioner. It is true that the petitioner is alleged to have been involved in those cases. However, as stated above, those cases are numerous and they cover a period of approximately eleven years. The petitioner can hardly be expected to recollect, while in detention, whether in all those cases he was convicted or acquitted, and even if the knowledge with regard to the ultimate outcome of the cases can be imputed to him, it would be unreasonable at least to assume that he might remember all the material particulars of such cases, such as whether the conviction was for one or the other offence, etc. It is apparent that under such circumstances the petitioner would not be able to make an effective representation. The petitioner was, therefore, required to be supplied with the relevant materials in that behalf. As to what that material should have been, we are not called upon to decide in the instant case since nothing whatever has been supplied.

13. As a result of the foregoing discussion, we come to the conclusion that the impugned order of detention is liable to be quashed and set aside and that the petitioner is required to be set at liberty forthwith. Accordingly, the impugned order of detention is quashed and the petitioner is directed to be set at liberty forthwith, so far as the present case is concerned. Rule made absolute accordingly.


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