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Noor Mohammad Vs. State of U.P. and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad High Court
Decided On
Judge
Reported in1983CriLJ995
AppellantNoor Mohammad
RespondentState of U.P. and anr.
Cases ReferredPromod Kumar v. State of U.P.
Excerpt:
.....the dentenu from indulging in similar activities affecting public order. in the former category of cases, detention on the same grounds could be held to be bad in law, but in the latter category, the orders of detention could be sustained if the detaining authority was satisfied that the activities of the detenu were such that in order to prevent him from indulging in such activities his detention was considered necessary in order to maintain public order. state of maharashtra 1982crilj150 a contention was raised that the detenu on the facts alleged could be prosecuted for the offence made out and consequently his preventive detention on that score was bad. his subjective satisfaction could have been reached on the basis of any material which he considered to be reliable. 20. in the..........were not forthcoming to depose against the detenu due to his fear. in the former category of cases, detention on the same grounds could be held to be bad in law, but in the latter category, the orders of detention could be sustained if the detaining authority was satisfied that the activities of the detenu were such that in order to prevent him from indulging in such activities his detention was considered necessary in order to maintain public order.12. in hemlata v. state of maharashtra : 1982crilj150 a contention was raised that the detenu on the facts alleged could be prosecuted for the offence made out and consequently his preventive detention on that score was bad. repelling the contention the court observed thus at p. 156 of cri lj:.what is required is that the detaining.....
Judgment:

R.C. Deo Sharma, J.

1. Through this petition under Article 226 of the Constitution the petitioner has challenged the validity of the order of his detention under the provisions of the National Security Act. The District Magistrate Bara Banki by his order dated 24-4-1982 and in exercise of the powers under Section 3 of the National Security Act 1980, ordered the detention of the petitioner on the ground that it was necessary to detain him in order to prevent him from acting in any manner prejudicial to the maintenance of public order. The grounds of detention which were also served on the petitioner the same day, mentioned the following incidents which led to the satisfaction of the District Magistrate in the passing of the aforesaid order.

A. The petitioner along with his associates committed dacoity at the house of Pooranmasi in Subedar purwa hamlet of village Nasirpur on the night between 1st and 2nd June, 1981. They were armed with deadly weapons and assaulted Pooranmasi and his wife and also looted property. When the petitioner was arrested on 19-1-1982 during investigations of the said case he confessed his guilt but when he was put up for identification on 5-4-1982 the witnesses did not identify him due to fear and consequently a final report under Section 169 of the Code of Criminal Procedure was made and the petitioner discharged.

B. On 3-6-1981 the petitioner along with his associates armed with deadly weapons including fire-arms committed dacoity at the house of Bhulai and also caused injuries to his brother Khushi Ram and Mewa Lal. During investigations his complicity in the crime came to be known and when on 19-1-1982 he was arrested he confessed his guilt. On being put up for identification the witnesses did not identify him due to fear and accordingly he was discharged on a final report under Section 169 of the Code of Criminal procedure.

C. Again, on 4-9-1981, the petitioner with his associates armed with deadly weapons committed dacoiiy at the house of Chauhan and when his brother Nankaoo tried to intervene they were fired at as a result of which Chauhan died and! Nankaoo suffered serious injuries. The petitioner was arrested on 19-1-1982 during investigations but when put up for identification on 5-4-1982 the witnesses out of fear did not identify him and accordingly a final report was made and the petitioner discharged.

D. On 10-1-1982 the police received information that a gang of dacoits was to assemble near a tree to commit dacoity at the house of Raja Maharaja and accordingly the police immediately went into action and surrounded the dacoits. Three of the dacoits were arrested including the petitioner and a case under Sections 399 and 402 I.P.C. was pending against the petitioner and others. The petitioner was, however, granted bail in this case but as he was also under detention in another case under Section 400 I.P.C. (belonging to a gang of dacoits) and was likely to be released on bail with the result that he could again indulge into such nefarious activities hence his preventive detention was considered necessary.

2. All these incidents were said to have created panic and resulted into breach of public order and hence with a view to prevent him from acting in a manner prejudicial to the maintenance of public order the District Magistrate felt satisfied and passed the order of detention as aforesaid.

3. It has not been disputed that the petitioner's representation against his detention was considered within reasonable time and rejected and his detention order was confirmed after the matter was referred to the Advisory Board. Although it was alleged in the petition that information about the rejection of the representation was not communicated to the petitioner but after an averment was made in the counter-affidavit indicating that the information about the rejection of the representation was duly communicated to him through wireless and otherwise, this plea had not been pressed.

4. The ground on which the validity of the detention order has been challenged mainly is that there was in fact no valid ground for detention since the petitioner had already been discharged in at least three of the cases of dacoity and therefore the evidence of his complicity in the crime was non-existent. Regarding the fourth incident, for which a case under Sections 399 and 402 I.P.C. was pending against him, the contention was that he was falsely roped in and that the incident in any case did not relate to public order and could at best be one referable to law and order, It was also contended that documents relating to the case under Section 400 I.P.C were not furnished to him and in its absence he could not effectively make a representation so far as that ground was concerned.

5. The State and the District Magistrate in their separate counter-affidavits have denied that the detention was made on the basis of non-existent grounds or that the incidents alleged were not referable to public order. Regarding the case under Section 400 I.P.C. the contention was that this incident was not a ground for the petitioner's detention and a reference to this cases was made only to show that the petitioner was likely to he released on bail in that case and consequently his preventive detention was necessary in view of the incidents referred to in grounds Nos. A to D aforesaid. Their further contention was that the satisfaction of the District Magistrate was reached on account of the fact that witnesses were so much terrified that they were not willing to identify him in jail.

6. Great emphasis has been laid by the petitioner's learned Counsel on the point that the petitioner had been discharged and final reports made in the three cases relating to dacoity and consequently he could not be detained preventively on the basis of the same grounds which in fact should be regarded as completely non-existent. Reliance has been placed on a recent decision of the Supreme Court in Bimla Dewan v. Lieutenant Governor of Delhi AIR 1989 SC 1257 : 1982 Cri LJ 1737. In that case, however, the detenu had been found by the court by a positive finding of fact to be not guilty of the offences and acquitted. It was in these circumstances that the court held that the very same grounds on which he was acquitted by a positive finding of not guilty could not legitimately be taken into consideration for detaining the detenu under the National Security Act. Here, however, the occasion for a finding by the court did not arise for the simple reason that although evidence was available yet the witnesses did not identify the accused in jail due to fear of their lives and consequently on the own request of the police which submitted a final report the accused was discharged. In the absence of judicial finding about the innocence of the accused it was open to the District Magistrate if there was reliable material before him, to feel satisfied that there was evidence of the complicity of the detenu in the crimes but the witnesses out of fear were not willing to identify him.

7. A similar matter came up for decision before the Supreme Court in case of Kamal Pathak v. District Magistrate, Burdwan 1975 SCC (Cri) 224 : 1975 Cri LJ 937. In that case, the detenu was involved in two incidents of theft. Cases were registered against him but the witnesses were not willing to come forward to give evidence for fear of safety of their lives and consequently the police were constrained to drop the cases against the detenu. It was in these circumstances that the District Magistrate Burdwan passed an order of detention. The detention was upheld.

8. In another case of Narayan Debnath v. State of West Bengal 1975 SCC (Cri) 598 : 1976 Cri LJ 632, one of the grounds of challenge to the detention order was that unless the facts stated in the grounds were proved to the satisfaction of the Court no action could be taken for preventive detention. Overruling the contention the Supreme Court observed:.It is because that the act complained cannot perhaps be satisfactorily proved in a Court of law or that the witnesses are unwilling to come forward being already terrified by the enormity of the act perpetrated that action sometimes has to be taken under the Act to prevent further commission of offences of similar nature. Besides, it is not the function of the Court to examine the truth or otherwise of the allegations mentioned in the grounds. The grounds are assumed by the Court to be true and it is well settled that the scope of inquiry in a case of this nature is very limited.

9. In Ashok Kumar v. Delhi Administration : 1982CriLJ1191 , the detention was ordered on account of the gravity of certain crimes committed by the detenu. In two cases of snatching of gold chain and wrist watch, the detenu was facing trial. In another case of snatching of gold chain and a pair of tops, the matter was still under investigation when detention was ordered. Similarly one more case of gold chain snatching was under investigation. The satisfaction of the detaining authority in these circumstances was found to be based on adequate material and 1he Supreme Court observed thus at p. 1196 of Cri LJ:--.There is no reason why the Executive cannot take recourse to its power of preventive detention in those cases where the Court is genuinely satisfied that no prosecution could possibly succeed against the detenu because he is a dangerous person who has overawed witnesses or against whom no one is prepared to depose.

10. Reference may also be made to the case of Milan Banik v. State of West Bengal : 1974CriLJ917 . Two cases were registered against the detenu in that case and they related to the activities mentioned in the grounds of detention. The contention raised was that the detenucould not be detained for the same activities since cases had already beenregistered against him. The contention was repelled by the Supreme Court. TheCourt observed thus (at p. 920):--.It would appear from the affidavit of Shri Shyama Charan Chatterjee District Magistrate that in both the cases final reports were submitted and the petitioner was got discharged as the witnesses were unwilling to give evidence against him in open Court for fear of their lives. In the circumstances there was no legal bar in the way of the District Magistrate in making an order for the detention of the petitioner.

11. Reference was also made in Milan Banik's case 1974 Cri LJ 917 aforesaid to certain other decisions to the same effect where it was held that if the detaining authority was satisfied that evidence though available would not be forthcoming due to fear of the detenu, it was open to the detaining authority to pass an order of preventive detention on being satisfied that such detention was necessary to prevent the dentenu from indulging in similar activities affecting public order. A similar view was taken in Ghulam Hussain v. Police Commr. Calcutta : 1974CriLJ938 . There also the detenu was discharged on the request of the police to the effect that the witnesses due to fear of the detenu did not dare to depose against him. A distinction was drawn between cases where a judicial finding of not guilty has been recorded by a Court and cases where a final report had been made and the accused discharged on the ground that witnesses were not forthcoming to depose against the detenu due to his fear. In the former category of cases, detention on the same grounds could be held to be bad in law, but in the latter category, the orders of detention could be sustained if the detaining authority was satisfied that the activities of the detenu were such that in order to prevent him from indulging in such activities his detention was considered necessary in order to maintain public order.

12. In Hemlata v. State of Maharashtra : 1982CriLJ150 a contention was raised that the detenu on the facts alleged could be prosecuted for the offence made out and consequently his preventive detention on that score was bad. Repelling the contention the Court observed thus at p. 156 of Cri LJ:.What is required is that the detaining authority is to satisfy the Court that it had in mind the question whether prosecution of the offender was possible and sufficient in the circumstances of the case. In some cases of prosecution it may not be possible to bring the culprit to book as in the case of a professional bully, a murderer or a dacoit; as witnesses do not come forward to depose against him out of fear .

13. In the instant case, the detaining authority has already taken into consideration as will appear from the grounds the fact that due to fear of the detenu the witnesses were not prepared to identify him in jail, and consequently the question of successful prosecution for incidents in question did not arise,

14. For the petitioner reliance was was also placed on Srilal Shaw v. State of West Bengal (1975) 1 SCC 336 : 1975 Cri LJ 423. In that case certain, stolen railway property was said to have been recovered from the possession of the detenu and for which a case was registered against him under Section 3 of the Railway Property (Unlawful Possession) Act, 1966. The detaining authority, however, recorded that the witnesses were afraid to depose against him and hence it was considered necessary to preventively detain him. On facts it was found that there was evidence of recovery and the statements recorded by the Railway Protection Force Officers could be proved as they were not hit by the provisions of Section 162 Cr. P.C. The case against the detenu was in the circumstances found to have been dropped out of oblique motives since successful prosecution was not possible in view of the fact that the detenu had during investigations produced receipts in respect of the articles purchased by him and which showed that even sales lax and surcharge on sales tax had been paid by him and shown in the receipts for the purchases of the property alleged to have been stolen railway property. Thus the acquittal of the detenu in the criminal case was a foregone conclusion and it was felt that the authorities did not send the accused to the Court for trial for apprehension of the accused being acquitted and thus the authorities took resort to preventive detention.

15. In the instant case, there is nothing to indicate that the action of the detaining authority was mala fide or that there was no material before the District Magistrate to satisfy him that witnesses were not coming forth to identify him due to fear. There is also nothing to indicate that in case the witnesses had chosen to identify the detenu in jail the detenu could still be acquitted by the Court.

16. As regards the satisfaction of the District Magistrate on the complicity of the detenu in those crimes and also about the witnesses being afraid of the detenu in case they identified him in jail, it would appear from the grounds of detention and the enclosures thereto that the detenu had in all the three cases confessed his guilt and copies of the statements of the detenu recorded during the invetigations had been supplied to him along with the grounds of detention. Similarly, copies of the statements of Sheo Bodhan Singh and Jai Singh who had while confessing their guilt implicated the detenu also in the crime were furnished to him along with the grounds of detention. There was also furnished to the detenu a copy of the general diary No. 25 recorded after the conclusion of the identification proceedings on 5-4-1982 by the Station officer Bindra Singh. It was mentioned in this report that none 6f the witnesses dared identify the detenu in the cases under Sections 395, 396 and 397 I. P. C because the witnesses after the conclusion of the identification proceedings had told the Station Officer that the petitioner wielded great influence and terror in the area and his companions in the village had constantly been threatening them that in case they identified the detenu in jail he would on being released on bail either kill them or would break their arms and legs. The witnesses were accordingly scared of him and did not identify him in jail for that reason. This entry in the general diary and the said confessions to police may not have been admissible pieces of evidence at the trial but there was no bar for the detaining authority to have taken this material into consideration, and if his subjective satisfaction was reached on the basis of these documents that the witnesses did not actually identify the detenu in jail on account of fear of their lives and that the detenu was involved in the commission of those crimes and murder, and consequently the detention order was passed on such satisfaction, it cannot be challenged. In order to satisfy himself about the necessity for detention, the District Magistrate was not bound to take into consideration only such evidence which was legally admissible in a court of law. His subjective satisfaction could have been reached on the basis of any material which he considered to be reliable. It cannot therefore, be said that the detention had been ordered on non-existing grounds.

17. It was further contended for the petitioner that documents relating to the case under Section 400 I. P- C. had not been supplied to the petitioner, but the fact remains that the District Magistrate in arriving at his satisfaction did not consider the case under Section 400 I.P.C. as one of the grounds for detention. A reference to that case was made in Ground No. D aforesaid but that reference is merely to the fact that the detenu was in jail in connection with that case and was likely to be released on bail and consequently his preventive detention was necessary in view of the four incidents referred to in the grounds of detention. It cannot therefore in these circumstances be said that the case under Section 400 I.P.C. had been considered as a ground of detention by the District Magistrate. Moreover, an offence under Section 400 I.P.C. constitutes in a person belonging to a ganng of persons associated for the purpose of habitually committing dacoity. In view of the four incidents referred to in the grounds Nos. A to D above, it was obvious that the allegations against the detenu were that he was a member of a gang of dacoits as his complicity in at least four cases of dacoity including preparation for committing dacoity had been established to the satisfaction of the District Magistrate. He had not in any manner taken this case into consideration as a ground for detention while referring to the case under Section 400, I.P.C. He had only stated the possibility of his being released on bail in that case and thereafter indulging in activities relatable to public order.

18. Another contention of the petitioner's learned Counsel was that the activities complained of, namely, the dacoities in which the detenu was said to have taken part, could not be said to be affecting public order and they could at best be referable to law and order. The contention has obviously no force. In the cases of Gora v. State of West Bengal 1975 SCC (Cri)391 : 1975 Cri LJ 429 : Narayan Debnath v. State of West Bengal, 1976 Cri LJ 632(SC) (supra) : Mohd. Dhana Ali Khan v. State of West Bengal 1975 SCC (Cri) 695 : 1976 Cri LJ 622 and Dhena Hembram v. D. M. West Bengal 1975 SCC (Cri) 825 : 1975 Cri LJ 1549, it was held that cases of dacoity were referable to breach of public order because they did have the effect of disturbing public life and the even tempo of the life of the community of the area in which such acts were committed. The facts alleged in the grounds of detention will indicate that in several of the houses dacoities were committed by a gang of which the petitioner was a member. Fire-arms were used and injuries were caused to several persons and it resulted into the death of one of them. The even tempo of the life of the community was bound to be disturbed due to the commission of such acts where people of almost the entire village or at least the locality in which the dacoity was committed, were disturbed and terrified.

19. Regarding the incident relating 1o the offence under Sections 399 and 402 I.P.C. it was argued that since no dacoity was committed in this case and merely the allegation was about the preparation and assembly of dacoits, it did not affect public order, even if the cases of actual commission of dacoity had such effect. Reliance was placed on a decision of this Court in Promod Kumar v. State of U.P. 1982 All Criminal Judgments 166. In that case, however, reliance was placed by the detaining authority on four incidents. One of them was positively found not relatable to public order but an ordinary offence against an individual, Another incident was also found to be hardly relatable to public order and was more or less an incident which did not disturb the public life. Regarding the incident under Sections 399 and 402 I.P.C. which was also made one of the grounds of detention in that case it was undoubtedly observed that this also did not have the effect of disturbing the public life and the possibility that had the dacoits not been intercepted they would have indulged in committing dacoity was considered to be far too remote to infer a situation creating problem of public order. In that case, there were obviously some grounds which were found to be positively not referable to public order but cases of ordinary crime against individuals and consequently it was hardly necessary to consider in detail the implications of the incident relating to the offence under Sections 399 and 402 I.P.C. Since the action taken by the detaining authority is a preventive action, it was a valid circumstance to consider that in case the dacoits were not intercepted they would have committed dacoity and thereby disturbed public order as in the case of actual commission of dacoity.

20. In the instant case, three incidents relating to dacoity have been enumerated and relied upon by the detaining authority and he felt satisfied about the complicity of the petitioner in those crimes and also about the fact that the witnesses were not coming forward to identify him due to fear of their lives. In the fourth incident in which certain dacoits including the petitioner had made preparations and assembled to commit a dacoity and three of whom including the petitioner had been arrested on spot, their action would have resulted into breach of public order in case they were not intercepted by the police party. That being so, it cannot be said that the District Magistrate while passing the order of detention had taken into consideration any circumstance which was not relevant or was not referable to public order.

21. No other point was pressed before us on behalf of the petitioner and therefore, the petition fails and is accordingly dismissed.


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