1988 JTR(SC) 486
1989 1 AICLR 22 ; 1988 AIR(SC) 1835 ; 1988 2 AWC 1115 ; 1988 BLJR 592 ; 1988 CriLR 678 ; 1988 3 Crimes(SC) 174 ; 1988 CrLJ 1825 ; 1989 EastCrC(SC) 57 ; 1988 3 JT 351 ; 1988 2 KLT(SN) 39 1 ; 1988 2 Scale 275 ; 1988 4 SCC 559 ; 1988 SCC(Cri) 992 ; 1988 1 SCC(Cri) 992 ; 1988 Supp2 SCR 251
SUPREME COURT OF INDIA
L.M. SHARMA AND N.D. OJHA, JJ.
Yogendra Murari, Petitioner
Versus
State of U.P. and others, Respondents.
Writ Petn. (Crl.) No. 259 of 1988, D/-8-8-1988.
IMPORTANT POINT
Great caution should be exercised in scrutinising the validity of an order passed u/s 3(2) of National Security Act, 1980, against an accused when he is likely to be enlarged on bail.
Act
Referred
:CONSTITUTION OF INDIA : Art.22(5), Art.14
NATIONAL SECURITY ACT : S.3
(A) The detention of the petitioner was challenged under Article 32 of the Constitution on the basis of an order passed under section 3(2) of the National Security Act, 1980. The challenge was examined in the context of the constitutional guarantees under Article 22(5) and Article 14, assessing the validity of the detention in light of the material relied upon by the authority and the procedural aspects involved. The amendments introducing section 5-A of the Act were noted as not being directly in contention before the Court for interpretation in this instance.
(B) Core legal principles include that an order of detention under the National Security Act must be based on relevant materials and a reasonable apprehension of public order threat; delay in passing the order does not automatically vitiate it if satisfactorily explained; the detaining authority may refer to prior incidents showing a pattern of behavior; an order passed to prevent likely future public order issues does not constitute mala fide frustration of a bail order; and the absence of uniform detention of co-accused does not amount to discrimination where individual circumstances differ. The petitioner is not entitled to bail merely because the criminal court is likely to grant it.
Facts of the case:
The petitioner was detained under section 3(2) of the National Security Act, 1980 on the grounds of three incidents involving alleged attempts to kill and a killing resulting in public order disturbance. Although criminal cases were registered, evidence was not forthcoming except for some statements in the third incident. The District Magistrate, after considering the petitioners bail application and the likelihood of public order issues, passed a detention order. The petitioner challenged the order before the High Court and this Court.
Findings of Court:
The Court found that the third incident alone could sustain the detention order; the reference to the first two incidents was not erroneous; the delay in passing the order was satisfactorily explained given the circumstances; the detention was not mala fide to frustrate bail; and the petitioners grievance of discrimination and non-observance of procedural safeguards was not tenable. The representation of the petitioner was considered and disposed of, with the date error being clerical.
Issues:
Whether the detention order was valid under the National Security Act; whether the order was vitiated by delay; whether the reference to incidents not directly linked to public order was permissible; whether the detention was mala fide to frustrate bail; whether the petitioner was discriminated against; and whether procedural safeguards under Article 22(5) were complied with.
Ratio Decidendi:
An order of detention under the National Security Act based on a reasonable apprehension of public order disturbance is valid if supported by relevant materials and individual circumstances are considered; delay does not automatically invalidate the order; the authority may consider prior incidents showing a pattern; and the order does not constitute mala fide frustration of bail where there is a genuine apprehension of public order threat. The Court must scrutinize the entire record but must defer to the detaining authoritys findings where there is a factual basis.
Result:
The writ petition is dismissed.
(A) The detention of the petitioner was challenged under Article 32 of the Constitution on the basis of an order passed under section 3(2) of the National Security Act, 1980. The challenge was examined in the context of the constitutional guarantees under Article 22(5) and Article 14, assessing the validity of the detention in light of the material relied upon by the authority and the procedural aspects involved. The amendments introducing section 5-A of the Act were noted as not being directly in contention before the Court for interpretation in this instance.
(B) Core legal principles include that an order of detention under the National Security Act must be based on relevant materials and a reasonable apprehension of public order threat; delay in passing the order does not automatically vitiate it if satisfactorily explained; the detaining authority may refer to prior incidents showing a pattern of behavior; an order passed to prevent likely future public order issues does not constitute mala fide frustration of a bail order; and the absence of uniform detention of co-accused does not amount to discrimination where individual circumstances differ. The petitioner is not entitled to bail merely because the criminal court is likely to grant it.
Facts of the case:
The petitioner was detained under section 3(2) of the National Security Act, 1980 on the grounds of three incidents involving alleged attempts to kill and a killing resulting in public order disturbance. Although criminal cases were registered, evidence was not forthcoming except for some statements in the third incident. The District Magistrate, after considering the petitioners bail application and the likelihood of public order issues, passed a detention order. The petitioner challenged the order before the High Court and this Court.
Findings of Court:
The Court found that the third incident alone could sustain the detention order; the reference to the first two incidents was not erroneous; the delay in passing the order was satisfactorily explained given the circumstances; the detention was not mala fide to frustrate bail; and the petitioners grievance of discrimination and non-observance of procedural safeguards was not tenable. The representation of the petitioner was considered and disposed of, with the date error being clerical.
Issues:
Whether the detention order was valid under the National Security Act; whether the order was vitiated by delay; whether the reference to incidents not directly linked to public order was permissible; whether the detention was mala fide to frustrate bail; whether the petitioner was discriminated against; and whether procedural safeguards under Article 22(5) were complied with.
Ratio Decidendi:
An order of detention under the National Security Act based on a reasonable apprehension of public order disturbance is valid if supported by relevant materials and individual circumstances are considered; delay does not automatically invalidate the order; the authority may consider prior incidents showing a pattern; and the order does not constitute mala fide frustration of bail where there is a genuine apprehension of public order threat. The Court must scrutinize the entire record but must defer to the detaining authoritys findings where there is a factual basis.
Result:
The writ petition is dismissed.
A.Subhashini, B.DUTTA, DALVIR BHANDARI, YOGESHAR PRASAD
Judgment
SHARMA, J. :- The writ petitioner has by the present application under Article 32 of the Constitution challenged the order of his detention dated 7-12-1987, passed under S. 3(2) of the National Security Act, 1980. Earlier he, had unsuccessfully moved the Allahabad High Court under Article 226.
2. The District Magistrate has mentioned three incidents in the grounds served on the petitioner : (i) the petitioner is alleged to have fired with his revolver at one Sri Azam with the intention to kill him but he narrowly escaped. As a result of this attack at 5.00 P.M. on 17-12-1986, according to the detaining authority, "terror spread over in the entire area and all the shopkeepers who had their shops in the nearby locality closed down their shops out of panic and fear. This incident created a public order problem;" (ii) the petitioner is said to have made another bid on 21-6-1987 to kill another person named Aziz who also narrowly escaped; and (iii) on 27-7-1987, at about 7.45 P.M. the petitioner with his colleagues killed Shri Aziz in front of the Lucknow District Jail. The persons who were present there ran away out of fear. The Jail Authorities returned the fire and the petitioner then threw a handgrenade. On being challenged again, the party hurled bombs and the petitioner indiscriminately fired from his pistol. This incident seriously disturbed the public order. The details of the panic which struck the locality are mentioned in the grounds.
3. Criminal cases were registered against the petitioner with respect to each of the three incidents but it appears that evidence against the petitioner was not forthcoming, although several persons supported the prosecution version of the third incident dated 27-7-1987 by their statements recorded under S. 161 of the Criminal Procedure Code. The petitioner was, however, in custody and moved an application for bail. The District Magistrate after considering the relevant circumstances came to the conclusion that the petitioner was likely to be enlarged on bail by the Criminal Court and since he was further of the view that if the petitioner was not detained, he would be indulging in activities prejudicial to the maintenance of public order, the order of detention was made.
4. Mr. R. K. Garg, counsel for the petitioner has contended that the order of detention is vitiated on several counts. The learned counsel argued that as only one of the three incidents mentioned in the grounds can be held to be connected with the public order problem, the order must be held to be bad and further it was wrong for the District Magistrate and the High Court to have referred to the first two incidents. Besides, the order having been passed on account of the third incident which happened more than four months earlier ought to be set aside on the ground of undue delay alone. It was further said that the order was vitiated as the petitioners bail application in the Criminal Court was not opposed by the State; and in any view the District Magistrate had no jurisdiction for detaining the petitioner with a view to frustrate the Criminal Courts order enlarging the petitioner on bail. Referring to the first information report about the July occurrence it was pointed out that 14 persons besides the petitioner were made accused in the case and the authority has illegally discriminated against the peritioner in detaining him while the others have been left free. It was also stated that all the relevant records were not placed before the District Magistrate before passing the detention order and a copy of the application filed at the instance of the petitioner by way of counter case was not served on him. Lastly it was suggested that in view of the respondents reply it appears that probably the petitioners representation was not considered and disposed of by the Central Government at all.
5. The High Court has not considered it essential to decide whether the first two incidents mentioned in the grounds served on the petitioner are referable to public order problem as the third ground by itself is capable of sustaining the order. Although Mr. Garg indicated that in his view the provisions of S. 5-A introduced in the Act by an amendment in 1984 must be held to be ultra vires, and referred to the observation in Shibban Lal Saksena v. State of U.P., 1954 SCR 418 he did not invite us to decide this point and suggested that we may refrain from making any observation on this aspect, as the question may have to be decided by a larger Bench. Since the Act before the Court in the above case did not contain any provision corresponding to S. 5A of the present Act, the decision cannot be of any help to the petitioner. However, so far as the first incident of the 17th December, 1986 is concerned, it appears to have created a public order problem. In any view the impugned order cannot be struck down on the ground that the second incident or for that matter both the first and the second incidents did not relate to disturbance of public order.
6. We also do not find any merit in the plea that the impugned order is bad on account of delay. It is true that the ground which led the District Magistrate to pass the detention order became available in July and the order was passed only in December but it is not right to assume that an order of detention has to be mechanically struck down if passed after some delay. (See K. Aruna Kumari v. Govt. of Andhra Pradesh, (1988) 1 SCC 296 : and the cases mentioned there). It is necessary to consider the circumstances in each individual case to find out whether the delay has been satisfactorily explained or not. In the present case the petitioner was in custody and there could not be any apprehension of his indulging in illegal activities requiring his detention until the grant of bail by the Criminal Court became imminent. Besides, enquiry was also proceeding. This aspect has been explained in the detention order itself as also by the District Magistrate in his affidavit and it is clear that there has been no undue delay on his part in taking action. Besides, the distinction between such delay and the delay in complying with the procedural safeguards of Article 22(5) of the Constitution as pointed out in Rajendrakumar Natvarlal Shah v. State of Gujarat, (1988) 3 SCC 153 is also relevant here especially because of the background of the petitioners antecedents taken into account by the detaining authority showing his propensity for acts which were likely to disturb public order. We do not see any objection to the District Magistrate referring the first two incidents in this context, specially when the first incident related to disturbance of public order.
7. So far the allegation that the petitioners prayer for bail was not opposed, it is strongly denied in the counter-affidavit. The apprehension of the District Magistrate that the prayer in this regard was likely to be granted does not mean that the application was unopposed. The District Magistrate was expecting an adverse order on account of the fact that the witnesses of the incident appeared to be reluctant to support their earlier statements. The situation can be well appreciated as it is common knowledge that due to deteriorating law and order situation in the country and mounting aggressive intimidating postures of accused persons, witnesses are failing to summon courage in assisting the administration of justice by going before a court of law to state what they have seen or heard.
8. It has been contended on behalf of the petitioner that the detention order was passed with a view to frustrate the bail allowed to the petitioner in the criminal case. Reliance was placed on the observations in Maledath Bharathan Malyali v. Commr. of Police : AIR 1950 Bom 202. A perusal of the detention order in the case before us and of the affidavit of the District Magistrate, makes it abundantly clear that he did not act for defeating the bail order. He was of the view that having regard to the entire circumstances appearing from the records placed before him, the petitioner, when let out on bail, was likely to create public order problem. The District Magistrate came to this conclusion on the consideration of relevant Materials. Copies of the documents were served on the petitioner along with, the grounds. The scope for passing an order of detention against an accused immediately after he is allowed bail or at a point of time when he is likely to be enlarged on bail has been considered by this Court in several decisions, (Alijan Mian v. District Magistrate, Dhanbad, (1983) 3 SCR 939 :Poonam Lata v. M. L. Wadhawan, (1987) 4 SCC 48 and several other cases) and we do not consider it necessary to again discuss the point. It is true that in such cases great caution should be exercised in scrutinising the validity of the order, which is based on the very same charge which is to be tried by a criminal court, and accordingly we have given our anxious consideration to the entire circumstances of the case but do not find any fault with the impugned order.
9. There is no merit whatsoever in the petitioners grievance of discrimination on the ground that the other co-accused persons have not been detained. The role of the petitioner and that of the others are not identical and the reasonable apprehension as to their future conduct must depend on the relevant facts and circumstances which differ from individual to individual. It would have been wrong on the part of the detaining authority to take a uniform decision in this regard only on the ground that the persons concerned are all joined together as accused in a criminal case.
10. The plea of the petitioner that all the relevant materials were not placed before and considered by the District Magistrate is made in vague terms and is not fit to be accepted. The detaining authority in his counter-affidavit has denied the allegation and we see no reason to disbelieve him. The learned counsel further urged that the petitioner was not supplied with a copy of the application filed at his instance as a cross case and he was, therefore, prejudiced in effectively making his representation. We do not find any force in this argument as it cannot be presumed that the petitioner was prejudiced by non-service of a copy of his own application.
11. So far the last point mentioned above is concerned it was argued that since the petitioner filed his representation on 22-12-1987 and according to the statement of the Central Government, it disposed of some representation of another date, it must be assumed that that representation was not considered and disposed of. We do not find any merit in the presumption raised by the petitioner on account of the error in the date mentioned by the Central Government as the matter stands clarified by the counter-affidavit of Shri Shiv Basant, Deputy Secretary, Ministry of Home Affairs, Government of India stating that it was the petitioners representation which was disposed of and the error pointed out was accidental. We are satisfied that the error in the date referred to by the petitioner was clerical in nature and that the Central Government had, in fact, rejected the petitioners representation after duly considering it.
12. In the result, we do not find any merit in any of the points pressed on behalf of the petitioner and the writ application is, therefore, dismissed.
Application dismissed.
For Citation : 1988 Crl. L.J. 1825 = AIR 1988 SC 1835 = (1988) 4 SCC 559 = 1988 SCC (Crl.) 992= 1988 Crl.L.J. 1825 = 1988 Crl.L.R. (SC) 678.