1986 JTR(SC) 455
1987 AIR(SC) 137 ; 1987 1 AWC 371 ; 1987 1 BomCR(SC) 260 ; 1986 88 BomLR 661 ; 1986 CriLR 549 ; 1986 CriLR(Cal) 194 ; 1986 3 Crimes(SC) 584 ; 1987 CrLJ 323 ; 1987 EastCrC(SC) 122 ; 1987 1 GLH 86 ; 1986 JT 847 ; 1986 1 JT 847 ; 1988 1 RCR(Cri) 619 ; 1986 2 Scale 796 ; 1986 4 SCC 771 ; 1986 SCC(Cri) 535 ; 1987 1 SCR 221
R.S. PATHAK AND V. KHALID, JJ.
Criminal Appeal No. 575 of 1986 (Spl. Leave Petn. (Crl.) No. 2049 of 1986) and Cri Writ Petn. No. 397 of 1986,
D/-14-11-1986.
Anant Sakharam Raut, Appellant
versus
State of Maharashtra and another, Respondents.
AND
Leena Anant Raut, Petitioner
Versus
State of Maharashtra and others, Respondents.
Act Referred :NATIONAL SECURITY ACT : S.3(2)
(A) The National Security Act, 1980, specifically Section 3(2), was invoked as the statutory authority for issuing an order of preventive detention by the Commissioner of Police, Bombay, in respect of the petitioner, who was an under trial prisoner. The detention order was challenged on the ground that the detaining authority proceeded without applying its mind to material facts, including the fact that the petitioner had already been arrested in connection with pending criminal cases, was granted bail on multiple dates immediately preceding the detention order, and was entitled to have those circumstances considered under the Act. The provisions of the Act require that the order of detention must be based on an objective assessment of the facts relating to the persons prejudicial effect on public order and security, and cannot be passed in a vacuum after ignoring relevant, contemporaneous developments in the related criminal proceedings.
(B) The core legal principles arising from the ruling are that an order of detention under the National Security Act must be based on the application of mind by the authority, taking into account all relevant material including the accuseds status as an under trial and prior bail grants; a failure to do so vitiates the order; and the Court retains the power to quash such an order where the detenus liberty is curtailed on an erroneous basis without a fair inquiry into the factual matrix.
Facts of the case:
The petitioner was detained under an order dated 15th Jan. 1986 passed by the Commissioner of Police, Bombay, under Section 3(2) of the National Security Act, 1980, on grounds that his activities were prejudicial to public order in the jurisdiction of Bandra Police Station. The detention was based on three separate incidents involving offences under the Indian Penal Code. At the time the detention order was made, the petitioner was an under trial prisoner who had moved applications for bail in the three pending cases and was released on bail on 13-1-1986, 14-1-1986 and 15-1-1986. The detaining authoritys order did not make any mention of these facts.
Findings of Court:
The Court found that the detaining authority did not apply its mind to the fact that the petitioner was granted bail and was released on three successive days immediately before the detention order was passed. This indicated a total absence of application of mind while passing the order. The Court held that this was not a fit case for preventive detention and that the petitioner was entitled to succeed on this ground. The appeal against the petitioners release and the petition challenging the detention were allowed.
Issues:
Whether an order of detention passed under Section 3(2) of the National Security Act is valid when the detaining authority is not informed of, and does not consider, the fact that the detenu was granted bail and released on prior dates in related criminal cases.
Ratio Decidendi:
Where the detaining authority proceeds to pass an order of preventive detention without considering that the individual was granted bail and was released on prior dates, it amounts to a failure to apply mind, rendering the detention order invalid, and the Court must quash it and direct release of the detenu.
Result:
The order of detention is quashed, the appeal is allowed, and the petitioner is directed to be released forthwith without any order as to costs.
(A) The National Security Act, 1980, specifically Section 3(2), was invoked as the statutory authority for issuing an order of preventive detention by the Commissioner of Police, Bombay, in respect of the petitioner, who was an under trial prisoner. The detention order was challenged on the ground that the detaining authority proceeded without applying its mind to material facts, including the fact that the petitioner had already been arrested in connection with pending criminal cases, was granted bail on multiple dates immediately preceding the detention order, and was entitled to have those circumstances considered under the Act. The provisions of the Act require that the order of detention must be based on an objective assessment of the facts relating to the persons prejudicial effect on public order and security, and cannot be passed in a vacuum after ignoring relevant, contemporaneous developments in the related criminal proceedings.
(B) The core legal principles arising from the ruling are that an order of detention under the National Security Act must be based on the application of mind by the authority, taking into account all relevant material including the accuseds status as an under trial and prior bail grants; a failure to do so vitiates the order; and the Court retains the power to quash such an order where the detenus liberty is curtailed on an erroneous basis without a fair inquiry into the factual matrix.
Facts of the case:
The petitioner was detained under an order dated 15th Jan. 1986 passed by the Commissioner of Police, Bombay, under Section 3(2) of the National Security Act, 1980, on grounds that his activities were prejudicial to public order in the jurisdiction of Bandra Police Station. The detention was based on three separate incidents involving offences under the Indian Penal Code. At the time the detention order was made, the petitioner was an under trial prisoner who had moved applications for bail in the three pending cases and was released on bail on 13-1-1986, 14-1-1986 and 15-1-1986. The detaining authoritys order did not make any mention of these facts.
Findings of Court:
The Court found that the detaining authority did not apply its mind to the fact that the petitioner was granted bail and was released on three successive days immediately before the detention order was passed. This indicated a total absence of application of mind while passing the order. The Court held that this was not a fit case for preventive detention and that the petitioner was entitled to succeed on this ground. The appeal against the petitioners release and the petition challenging the detention were allowed.
Issues:
Whether an order of detention passed under Section 3(2) of the National Security Act is valid when the detaining authority is not informed of, and does not consider, the fact that the detenu was granted bail and released on prior dates in related criminal cases.
Ratio Decidendi:
Where the detaining authority proceeds to pass an order of preventive detention without considering that the individual was granted bail and was released on prior dates, it amounts to a failure to apply mind, rendering the detention order invalid, and the Court must quash it and direct release of the detenu.
Result:
The order of detention is quashed, the appeal is allowed, and the petitioner is directed to be released forthwith without any order as to costs.
A.M.KHANWILKAR, A.S.BHASME, M.S.Gupta, R.S.Desai, S.V.DESHPANDEY, V.B.JOSHI
Judgment
V.KHALID, J.:- The same questions of law and facts are involved in these two cases. One is a Criminal Writ Petition under Art. 32 filed by the detenus wife and the other a Special Leave Petition filed by him against the judgment of the Bombay High Court rejecting his plea to quash the order of detention. Special leave granted. Both are being disposed of by this common judgment. We will refer to the detenu as the petitioner in this Judgment.
2. The petitioner was detained pursuant to an order of detention dated 15th Jan. 1986, issued by the Commissioner of Police, Bombay, who is respondent 2 herein under S. 3(2) of the National Security Act, 1980. The grounds of detention are given in Annexure-C. The detention is based on three incidents; one on 16-9-1985, the other on 1-12-1985 and the third on 25-12-1985; the offences involved in the three cases being 324 & 336, I.P.C., 324 & 506 (ii), I.P.C., and 452, I.P.C., respectively. There are three cases pending in respect of these three incidents.
3. The order of detention discloses that the people within the jurisdiction of Bandra Police Station in Greater Bombay are experiencing a sense of insecurity and fear to their lives due to the petitioners activities which are "prejudicial to the maintenance of public order in the said localities and areas".
4. From the materials placed before us we find that the first two incidents involve the same person between whom and the petitioner there appears to be some enmity. The third incident relates to some other person. The petitioner was an under trial prisoner at the time the detention order was made.
5. We do not think it necessary to go into all the grounds urged before us by the petitioners counsel in support of his prayer to quash the order of detention. The one contention strongly pressed before us by the petitioners counsel is that the detaining authority was not made aware at the time the detention order was made that the detenu had moved applications for bail in the three pending cases and that he was enlarged on bail on 13-1-1986, 14-1-1986 & 15-1-1986. We have gone through the detention order carefully. There is absolutely no mention in the order about the fact that the petitioner was an under trial prisoner, that he was arrested in connection with the three cases, that applications for bail were pending and that he was released on three successive days in the three cases. This indicates a total absence of application of mind on the part of detaining authority while passing the order of detention.
6. In our view this is the short manner in which the two cases can be disposed of. If the petitioner is found disturbing law and order or misusing the bail granted to him, the authorities would be at liberty to move the appropriate Court to get the bail orders cancelled. One does not know how the detaining authority would have acted if he was made aware of the above details.
7. We are not satisfied that this is a fit case to resort to preventive detention. We refrain from referring to the other grounds urged before us and from examining them. The petitioner is entitled to succeed on the first ground.
8. We hold that there was clear nonapplication of mind on the part of the detaining authority about the fact that the petitioner was granted bail when the order of detention was passed. In the result we set aside the judgment of the Bombay High Court under appeal, quash the order of detention and direct that the petitioner be released forthwith. The appeal and the writ petition are allowed without any order as to costs.
Appeal and petition allowed.