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Mer Malde Karna Vs. District Magistrate and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Judge
Reported in1982CriLJ2271; (1981)GLR1201
AppellantMer Malde Karna
RespondentDistrict Magistrate and ors.
Cases Referred(see Golam Hussain v. Police Commissioner
Excerpt:
.....and the order of detention, therefore, suffer from the vice of non-application of mind. 5. the detaining authority failed to consider whether less sterner measures could be taken against the petitioner even assuming that it. on the abovesaid infirmity alone, the order of detention must fail. 1, the petitioner was prosecuted and acquitted and that the said factor does not appear to have been considered by the detaining authority and that even if it is believed that the said fact entered into account, the detaining authority has failed to explain as to why the said circumstance was disregarded and the said incident was still relied upon in arriving at the requisite satisfaction, a bare perusal of ground no. district magistrate, west dinajpur 1975crilj275 ). even proceeding on the..........respect of one of the incidents relied upon in the grounds, there was a trial and acquittal. the detaining authority failed to apply its mind to this relevant aspect and the order of detention, therefore, suffer from the vice of non-application of mind. alternatively, since the incident in respect of which the petitioner was tried and acquitted has been taken into consideration, the order of detention is mala fide.5. the detaining authority failed to consider whether less sterner measures could be taken against the petitioner even assuming that it. was necessary to put the petitioner out of the harm's way for the purpose of maintenance of public order. the order of detention, therefore, suffers from the vice of non-application of mind and/or mala fides.6. the principal, if not the.....
Judgment:

P.D. Desai, J.

1. By an order made on August 26, 1981 by the first respondent (District Magistrate Junagadh) the petitioner was detained Under Sectionub-sec. (2) read with Sub-section (3) of Section 3 of the National Security Act, 1980, with a view to preventing him from acting in any manner prejudicial to the maintenance of public order. The grounds of detention were supplied to the petitioner on August 29, 1981. The State Government approved the order of detention under Sub-section (4) of Section 3 of the National Security Act, 1980, on September 5, 1981. The present petition was instituted on September 14, 1981, Rule was ordered to issue on the petition on September 16, 1981. The petition reached hearing before this Court yesterday and it is being disposed of by this judgment.

2. The following grounds were urged in support of the petition on behalf of the petitioner:

1. The grounds alleged that the petitioner was involved in several criminal cases and for that purpose reference has been made in the grounds to several incidents as reflected in entries made in crime Registers maintained at different Police Stations. The extract of entries supplied with the grounds is vague in material particulars and as such the petitioner has had no opportunity of making an effective representation.

2. Two of the incidents or events relied upon against the petitioner in the grounds are remote, inasmuch as about a decade had elapsed since the happening of those events. The order of detention, therefore, suffers from the vice of staleness.

3. The material relied upon in the grounds is not relevant since it is related to 'law and order' and not 'the maintenance of public order', as required by law.

4. In respect of one of the incidents relied upon in the grounds, there was a trial and acquittal. The detaining authority failed to apply its mind to this relevant aspect and the order of detention, therefore, suffer from the vice of non-application of mind. Alternatively, since the incident in respect of which the petitioner was tried and acquitted has been taken into consideration, the order of detention is mala fide.

5. The detaining authority failed to consider whether less sterner measures could be taken against the petitioner even assuming that it. was necessary to put the petitioner out of the harm's way for the purpose of maintenance of public order. The order of detention, therefore, suffers from the vice of non-application of mind and/or mala fides.

6. The principal, if not the only, consideration which has weighed with the detaining authority is that the petitioner indulges in criminal activities on a large scale and that he is a bully and that therefore no person comes forward to file complaints against the petitioner with the result that it is not possible to deal with the petitioner under the ordinary law and to prevent him from indulging in activities prejudicial to the maintenance of public order. It is evident from the several instances relied upon in the grounds themselves that there is no factual basis for the above assumption and that in fact the assumption is contrary to the material on record. The satisfaction of the detaining authority, therefore, based on such a premise is vitiated by non-application of mind and/or perversity.

3. Though all the grounds urged in support of the petition have been set out above, it is not necessary to deal with all of them. The petitioner is entitled to succeed on consideration of some of those grounds only and we shall, therefore, deal with only such of those grounds as we consider necessary.

4. The most fatal infirmity in respect of the order of detention is that the detention is substantiated by events which are stale. In ground No. 1. at the outset three events are relied upon. One of those events appears to have occurred in 1969 and the other in 1970. So far as the incident of 1969 is concerned, reference is made to the entry dated November 22, 1969 made in the village crime register of village Boriya to the effect that in the year 1969-70, the petitioner had committed offences punishable under Section 307 of the Indian Penal Code and Section 25(1) of the Arms Act, 1959, and that the petitioner had absconded after the commission of the offences. As regards the event of 1970. reference is made to an entry, dated April 13, 1970 in the village crime register of the same village to the effect that in respect of the commission of offences mentioned above, the petitioner was detained and sent to jail custody. The third incident relied upon is based on an entry dated July 2, 1981, in the village crime register of Village Bagayadar, which disclosed that the petitioner had committed offences punishable under Sections 447 and 427 of the Indian Penal Code and Section 25(1) of the Arms Act, 1959. On the basis of these events or incidents, the detaining authority has recorded the satisfaction that the petitioner was carrying on anti-social activities since a long time and that he was indulging in such activities with the end in view of instilling fear in the general public. The detaining authority has recorded the further satisfaction that on account of such fear, the general public shuddered to come forward to lodge public complaint against the petitioner. In the latter part of the same ground, reference is separately made to yet another incident reflected in the entry dated December 22, 1980 in the village crime register of the Jamjodhpur Police Station. No Further particulars in respect of the said entry are furnished. All that is stated is that on a perusal of the said entry, it transpired that the petitioner created an atmosphere of fear and terror in the villages situated in different Talukas of the area and that he was a headstrong and quarrelsome person who indulged in repetitive acts of loot. Be it stated for the purpose of record that though the ground did not contain further particulars of the said entry, a copy of the said entry was supplied to the petitioner.

5. It would appear from what has been stated above that two of the incidents enumerated in ground No. 1 are more than a decade old. They can by no means be said to be proximate enough to enable the detaining authority to reach a rational satisfaction of the nature and character recorded therein and they cannot by any stretch of imagination be pressed into service to sustain an order of preventive detention. Be it noted that the petitioner has made a specific grievance in this behalf in the petition and in the affidavit-in-reply the stand of the detaining authority is that 'even a remote incidents if they are in a series of constant proximate and close gaps only show the nature and character of activities of the detenu'. The further stand of the detaining authority is that the incidents of 1969, 1970 and 1980 and 'many many statements of respectable people of Boricha and other villages disclose that his activities are continuous over this period....The many many statements of respectable people make even the incident of 1969, a relevant and proximate factor because of the continuity of his activities....' We asked the learned Public Prosecutor to draw our attention to any material on record establishing a continuous course of activity on the part of the petitioner covering the entire period from 1969 to 1981 so that the incidents of 1969 and 1970 could not be considered to be remote. The learned Public Prosecutor attempted to draw our attention to two or three statements. Ultimately, however, he fairly conceded that there was no precise evidence before the detaining authority establishing the element of continuity and tending to close the gap between the long years which elapsed between the incidents which occurred in 1969 and 1970 and 1981 which was the point of time when it was considered necessary to detain the petitioner. It appears to us under these circumstances that ground No. 1 relied upon in support of the order of detention suffers from the vice of staleness. A single vicious ground is sufficient to vitiate an order of detention. On the abovesaid infirmity alone, the order of detention must fail.

6. The second infirmity in the order of detention is that in respect of the incident of 1969-70, referred to in ground No. 1, the petitioner was prosecuted and acquitted and that the said factor does not appear to have been considered by the detaining authority and that even if it is believed that the said fact entered into account, the detaining authority has failed to explain as to why the said circumstance was disregarded and the said incident was still relied upon in arriving at the requisite satisfaction, A bare perusal of ground No. 1 gives no indication whatsoever whether the fact that the petitioner was prosecuted and acquitted in regard to the said incident was present to the mind of the detaining authority. If at all, the said ground, if it is read without anything more, leaves an impression on the mind that the said fact possibly was overlooked by the detaining authority. In the affidavit-in-reply, however, the detaining authority has averred that the fact that the petitioner was tried and acquitted in respect of the said incident had been taken into consideration while passing the detention order. This is no more than a bare assertion. No material in support of the assertion has been produced before the Court. Viewed, in the context of the averments made in ground No. 1, we are hesitant to accept the bare assertion. Even assuming, however, that the fact that the petitioner was tried and acquitted in respect of the said incident was present to the mind of the detaining authority and that it entered into account, it would not be sufficient merely to assert that the said fact was taken into consideration while passing the detention order. Something more than a mere assertion to that effect is necessary to be placed on record when the power of detention is challenged on the ground of non-application of mind or mala fides in the context of such a situation. True it is that in a series of cases it has been held that the mere fact that the detenu was discharged in a criminal case relating to certain incidents does not mean that no valid order of detention could be passed against him in connexion with those very incidents. (See Sahib Singh Dugal v. Union of India : 1966CriLJ305 . Mohd. Salim Khan v. C.C. Bose : 1972CriLJ1020 ; Mohd. Subrati v. State of West Bengal : 1974CriLJ397 and Israil Sk. v. District Magistrate, West Dinajpur : 1975CriLJ275 ). Even proceeding on the footing that the principle would be applicable even in the context of a situation where the detenu has been regularly tried and acquitted, it would still be necessary for the detaining authority to explain as to why and under what circumstances the detention order was passed against the detenu in connection with those very incidents in order to effectively meet a challenge based on the ground of non-application of mind or mala fides. This is so because extreme cases can be visualised where a Court has held a criminal case to be false and still a detaining authority with that judicial pronouncement before him may claim to be satisfied (though unreasonably) about prospective prejudicial activities based on what a court has found to be baseless. It would be an abuse of detention powers and virtual nullification of the judicial process to permit that to be done (see Golam Hussain v. Police Commissioner, Calcutta : 1974CriLJ938 . The detaining authority might be well within its bounds, however, in relying upon those very incidents, if it shows, for example, that it was not possible to obtain a conviction because the prosecuting agency was unable to get evidence or sufficient evidence on account of the fear of the detenu, or that the evidence connecting the detenu with the incidents was such as was not legally admissible in a regular criminal trial, or that the acquittal- was on a technical ground, or that there was some such or similar reason for relying upon those very incidents in spite of the acquittal. In the instant case, we find, that the detaining authority, except making a bald assertion that the circumstance with regard to the prosecution and acquittal of the petitioner was taken into consideration, and has said no more. We are not satisfied that there was proper application of mind by the detaining authority to the said circumstance which undoubtedly is relevant. The order of detention is liable to be struck down even on this ground.

7. The third infirmity in the order of detention is that it proceeds upon an assumption which is manifestly contrary to the material appearing in the grounds themselves. If one peruses the grounds, the burden of the song is that 'he petitioner was a habitual offender indulging in anti-social and criminal activities, that by such activities he had instilled fear in the minds of members of general public, that on that account no person came forward to lodge complaints against the petitioner in regard to the offences committed by him, that in respect of several such offences, no complaints were, therefore, found to have been recorded and that under those circumstances it was not possible to bring the detenu to book and to deal with him under the ordinary law of the land and to put him out of the harm's way in that manner. It is significant to note in this connection that the grounds of detention themselves refer to as many as six complaints recorded at different police stations against the petitioner and that they also refer to a complaint in writing made by the residents of village Bakharla to the District Superintendent of Police with regard to the intimidatory conduct of the petitioner. The grounds also reveal that pursuant to such written complaint, the police had recorded statements of several persons some of whom are named in the grounds. It is difficult to comprehend as to how the detaining authority could possibly have reached the satisfaction that it arrived at, with the aforesaid material in its possession, which has been expressly referred to in the grounds. Indeed, it appears to us impossible for any person acting rationally to reach the said satisfaction in the face of the abundant material which was placed before him. The order of detention would therefore appear to suffer from the vice that the requisite satisfaction was arrived at irrationally or perversely. On that ground standing by itself also, the detention could have been held to be invalid.

8. For the foregoing reasons, we are of the view that the detention of the petitioner is illegal and invalid and that he is entitled to be set at liberty. Accordingly rule is made absolute by directing that the petitioner will be released forthwith, so far as the present case is concerned.


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