# Atul Gupta v. State of U.P. & Ors

- **Citation:** (2016) 3 ILRA 345
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-02-22
- **Bench:** Bala Krishna Narayana, Naheed Ara Moonis
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/atul-gupta-v-state-of-u-p-ors-43533
- **Pages:** 7

## Headnote

Two FIR's were registered u/s 328/363/364/366 of Indian Penal Code, 1860 against the petitioner and
other co-accused - kidnapping of minor daughters of informant were alleged against the petitioner -
victims were recovered by the police alive - allegations disowned by the victims in the statement
under Section 164 of Cr.P.C. 1973 - later on decompose dead bodies were recovered - allegedly
identified as daughters of the informant - which resulted into public outraged and as such the public
damaged public property, attacked on police persons were made- separate FIR registered against the
petitioner and case was registered under Gangster Act in which already enlarge on bail - the SHO
proposed preventive detention and District Magistrate pass an order u/s 3(2) of National Security Act.

Preventive Detention - NSA, 1980 - Subjective satisfaction - Mechanical exercise - Nonconsideration of relevant material - No live link with alleged prejudicial activities - Incident of
5.10.2014 too remote - Public disorder caused by police negligence, not attributable to petitioner -
Bail already granted in all criminal cases - No real or imminent likelihood of release leading to
prejudicial acts recorded - Detention cannot be used to circumvent bail - Procedural safeguards not
complied with - Vital facts not placed before detaining authority - Preventive vs punitive detention
distinguished - Ordinary criminal law adequate - Detention order vitiated and quashed; release
directed. (Paras 4, 5, 7, 9, 10, 11, 12-13)

Writ Petition Allowed.

List of Cases cited:

i. Rivadeneyta Ricardo Agustin Vs. Government of the National Capital Territory of Delhi & others 1994
Supp. (1) SCC 597.
ii. Huidrom Konungjao Singh Vs. State of Manipur & others 2012 (7) SCC 181.
iii. Dharmendra Suganchand Chelawat Vs.Union of India (1990) 1 S.C.C.746,
iv. Binod Singh Vs. District Magistrate Dhanbad & others (1986) 4, SCC 416.
346 INDIAN LAW REPORTS ALLAHABAD SERIES
v. Huidrom Konungjao Vs. State of Manipur & others 2012 Law Suit (SC) 317.
vi. Baby Devassy Chully alias Bobby Vs. Union of India & others (2013) 4,SCC 531
vii. Kareshpal alias Billu Vs. District Magistrate Meerut & others 2002(1) A.Cr.R.573.

## Text

3 All. Atul Gupta Vs State Of U.P. & Ors.
345

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.02.2016

BEFORE

THE HON'BLE BALA KRISHNA NARAYANA, J.
THE HON'BLE NAHEED ARA MOONIS, J.

Habeas Corpus Writ Petition No. - 69681 of 2015

Atul Gupta ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Ajay Singh Senger

Counsel for the Respondents:
G.A., A.S.G.I., K.P.Pathak

Two FIR's were registered u/s 328/363/364/366 of Indian Penal Code, 1860 against the petitioner and
other co-accused - kidnapping of minor daughters of informant were alleged against the petitioner -
victims were recovered by the police alive - allegations disowned by the victims in the statement
under Section 164 of Cr.P.C. 1973 - later on decompose dead bodies were recovered - allegedly
identified as daughters of the informant - which resulted into public outraged and as such the public
damaged public property, attacked on police persons were made- separate FIR registered against the
petitioner and case was registered under Gangster Act in which already enlarge on bail - the SHO
proposed preventive detention and District Magistrate pass an order u/s 3(2) of National Security Act.

Preventive Detention - NSA, 1980 - Subjective satisfaction - Mechanical exercise - Nonconsideration of relevant material - No live link with alleged prejudicial activities - Incident of
5.10.2014 too remote - Public disorder caused by police negligence, not attributable to petitioner -
Bail already granted in all criminal cases - No real or imminent likelihood of release leading to
prejudicial acts recorded - Detention cannot be used to circumvent bail - Procedural safeguards not
complied with - Vital facts not placed before detaining authority - Preventive vs punitive detention
distinguished - Ordinary criminal law adequate - Detention order vitiated and quashed; release
directed. (Paras 4, 5, 7, 9, 10, 11, 12-13)

Writ Petition Allowed.

List of Cases cited:

i. Rivadeneyta Ricardo Agustin Vs. Government of the National Capital Territory of Delhi & others 1994
Supp. (1) SCC 597.
ii. Huidrom Konungjao Singh Vs. State of Manipur & others 2012 (7) SCC 181.
iii. Dharmendra Suganchand Chelawat Vs.Union of India (1990) 1 S.C.C.746,
iv. Binod Singh Vs. District Magistrate Dhanbad & others (1986) 4, SCC 416.
346 INDIAN LAW REPORTS ALLAHABAD SERIES
v. Huidrom Konungjao Vs. State of Manipur & others 2012 Law Suit (SC) 317.
vi. Baby Devassy Chully alias Bobby Vs. Union of India & others (2013) 4,SCC 531
vii. Kareshpal alias Billu Vs. District Magistrate Meerut & others 2002(1) A.Cr.R.573.

(Delivered by Hon'ble Naheed Ara Moonis, J.)

1. The instant petition has been filed on behalf of the petitioner seeking the relief in the
nature of Habeas Corpus directing the respondents to set him at liberty forthwith and also
quashing the order dated 18.5.2015 passed by the District Magistrate Jalaun at Orai
(respondent no.3) whereby the petitioner has been ordered to be detained in captivity in
exercise of power under section 3 of the National Security Act 1980.

2. The emanation of facts divulged in a short conspectus is that a first information
report was registered against one Gaurav vide Case Crime No.3259 of 2014 under sections
363/366 IPC on 31.8.2014 in respect of kidnapping Neetu Shukla, the minor daughter of
Rajeev Shukla on 29.8.2014. Another first information report was also lodged on 24.9.2014
by Rajeev Shukla against the petitioner and three others in respect of the incident dated
22.9.2014 vide Case Crime No. 3603 of 2014 under sections 364/363/328 IPC for
kidnapping of his two minor daughters namely Neetu Shukkla & Vaishali. After registration
of the case, the investigating officer swung into action and on 8.10.2014 the police had
recovered the victims and their statements were recorded before the Magistrate under
section 164 Cr.P.C. in which they disowned the prosecution story and explicitly stated that
they were not kidnapped by the petitioner. They had gone out of their own free volition.
Separate charge sheets were submitted in both the cases on 1.11.2014 . The statement of
victim Neetu was again recorded under section 164 Cr.P.C. on 18.11.2014. In the meantime
on the basis of the initial first information report, two decomposed dead bodies of female
were recovered from the Nala Atrakala falling within the territorial jurisdiction of Churkhi .
Both the dead bodies were identified by the informant Raju Shukla confirming that these
dead bodies are of his daughters Neetu Shukla and Vaishali. After conducting the necessary
formalities, both the dead bodies were sent to the mortuary for autopsy. After post-mortem
of both the bodies, wrath and indignation of the public exploded against the police
authorities on account of inaction and insouciant attitude in discharge of their duties. The
public at large could not squash their fury and ire. They aggravated the situation by
developing ugly scene causing damage to the public property and also attacking on the
police personnel. Both the victims namely Neetu Shukla and Vaishali , the daughters of the
complainant were recovered alive by the police personnel. After recovery of both the
victims, the Station House Officer moved an application in the court of Chief Judicial
Magistrate Jalaun for recording their statements under section 164 Cr.P.C. The statement of
both the victims under section 164 Cr.P.C was recorded wherein they did not support the
prosecution version rather disowned the prosecution case in toto. The police personnel had
not found any offence showing the complicity of the petitioner under section 302 and 201
IPC. The learned Magistrate found that there was gross negligence and dereliction on the
part of the police personnel in discharge of their duties hence passed order dated 9.10.2014
for taking appropriate action against the erring police officials for not recovering the actual
3 All. Atul Gupta Vs State Of U.P. & Ors.
347
victims rather substituting two dead female bodies giving tinge of two kidnapped girls. The
petitioner applied for bail before the Additional Sessions Judge Jalaun at Orai in both the
cases. The learned Additional Sessions Judge rejected both the bail applications. Against the
rejection of both the bail applications by the court below, the petitioner applied for bail
before High Court being Bail Application nos .15665 of 2015 in Case Crime No. 3259 of
2014 and 15664 of 2015 in Case Crime No. 3603 of 2014. Both the bail applications were
allowed on 7.5.2015 by the Hon'ble High Court granting bail to the petitioner on the ground
that the medical report does not corroborate the statement of the victim. The victim appears
to be consenting party as she had travelled at various places along with her real sister. On the
strength of two cases, the applicant was implicated in another case vide Case Crime No.
3931 of 2014 under sections 2/3 U.P.Gangster & Anti-social Activities (Prevention) Act,
Police Station Kotwali Orai District Jalaun . The petitioner was also enlarged on bail by
order dated 10.6.2015 passed by this Court.

3. The thrust of argument of Sri Ajay Singh Sengar, the learned counsel for the
petitioner is that on the basis of the first information report lodged by Raju Shukla , the
father of the victims, two female dead bodies recovered by the police from the Nala Atrakala
falling within the territorial jurisdiction of Churkhi. Those dead bodies were identified by
the complainant claiming them to be the corpse of his daughters namely Neetu Shukla and
Vaishali which caused great infuriation and anguish in the mind of the public at large taking
ugly turn of damaging the public property and attacking the police station. In consequence
of developing disorderly scene by the public at large, a number of police persons were
injured and the public property was also ruined. An F.I.R. was lodged by S.O. Mohit
Dwivedi at P.S.Kotwali Orai, as Case Crime No. 3714 of 2014 on 5.10.2014 at 10.45 a.m.
against a number of named and unnamed persons ranging about 100 to 150 under sections
147/ 148/ 149/ 307/ 332/ 353/ 341/ 427 IPC read with section 7 Criminal Law Amendment
Act. During investigation, the investigating officer Santosh identified seven persons
involved in the aforesaid incident. Another first information report was lodged by the
Inspector Incharge Kotwali Orai Sri Santosh Kumar Singh on the same day at 11.50 a.m. as
case crime no.3715 of 2014 against 400 to 500 unknown persons under sections
147/148/149/307/332/353/341/436 IPC read with section 7 Criminal Law Amendment Act.
Brief report was given to the Incharge Police Station unfolding the facts that petitioner along
with his associates are in the habit of kidnapping minor girls and also exploiting them by
ravishing their modesty and virginity. Case was also registered under the Gangster Act vide
Case Crime No.3931 of 2014. In such a grim and horrific situation, it is necessary to keep
the petitioner in captivity so as to maintain law and order problem.

4. The submission of the learned counsel for the petitioner is that the aforesaid report of
the Station House Officer Kotwali Orai was forwarded to the Additional Superintendent of
Police Jalaun at Orai on 11.5.2015 and on 12.5.2015, the proposal was forwarded to the
District Magistrate Jalaun by Superintendent of Police Jalaun . On the basis of the said
report, the District Magistrate Jalaun passed the order under section 3 (2) of National
Security Act in a very mechanical and pedantic manner directing the petitioner to be put in
simple captivity . The order dated 18.5.2015 passed by the District Magistrate Jalaun suffers
from material perversity and vulnerability as the District Magistrate has put his signature
348 INDIAN LAW REPORTS ALLAHABAD SERIES
without examining the material placed before him and also the report which was not
submitted correctly by the police officials. The peace and tranquillity was disturbed on
account of inaction and callousness on the part of the police officials who recovered two
female corpse from the Nala Atrakala falling within the jurisdiction of Police Station
Churkhi and got them identified by the informant Raju connecting them with Case Crime
No. 3259 of 2014 under sections 363/366 IPC and Case Crime No. 2603 of 2014 under
sections 364/363/328 IPC with regard to kidnapping of Neetu Shukla andVaishali for which
the petitioner cannot be held responsible as the investigation was not done by the police
authorities fairly. It is only when the Chief Judicial Magistrate concerned passed the order
for taking action against the erring police officials, the order dated 18.5.2015 has been
passed by the District Magistrate Jalaun taking into account the aforesaid first information
reports lodged on 5.10.2014 of Case Crime No. 3715 of 2014 under section
147/148/149/307/332/353/436/341 IPC read with section 7 Criminal Law Amendment Act
culminating into demonstration made by a melee against the recovery of two female corpse.
The unruly mob caused public nuisance by pelting stones on the police personnel taking into
hands the law and order and also bursting the anger and ire disrupting peace and tranquillity.
The petitioner did not have any role in the said incident thus the petitioner cannot be held
answerable for the act of unruly mob.

5. The District Magistrate has passed the detention order on the subjective satisfaction
that in case the petitioner is released on bail, there is every likelihood of causing public
nuisance and disturbing law and order . Had the entire materials been placed before the
detaining authority that there was no live link with the incidents occurred on 5.10.2014 , the
order dated 18.5.2015 would not have come into existence. Merely on the basis of subjective
satisfaction of the detaining authority that in all probability,the petitioner would indulge in
prejudicial activities, unless there is credible information and cogent reason apparent on
record, order of detention cannot validly be passed against him . There is no incriminating
material having been used or made the basis for formulating the grounds of detention. The
satisfaction must reach on the basis of cogent material that there is a real possibility of the
detenue being released on bail would indulge in particular activity if not detained. No order
of detention cannot validly be passed against a person merely on the subjective satisfaction
of the detaining authority to circumvent enlargement on bail which can be dealt with under
the ordinary law. The probability of disrupting the breach of public tranquillity necessitating
the detaining authority to pass detention order is in contravention of fundamental right to life
and liberty enshrined under Article 21 of the Constitution of India as there is no live link of
the incident occurred on 5.10.2014 to persuade the detaining authority to pass the order
impugned. The detaining authority has neither been apprised about the medical
examinations of the victim and their statements under section 164 Cr.P.C. The public peace
and tranquillity was disrupted when the post mortem of two female dead bodies were
conducted and on account of inaction, lackadaisical and lethargical attitude of the police
officials in tracing out the victim, the petitioner has been subjected to captivity creating a
false notion of panic among the public. It is only the police personnel who were accountable
for causing public disruption and ruckus. The learned Magistrate has conspicuously failed to
record any cogent reason that there was strong and real possibility of the petitioner indulging
3 All. Atul Gupta Vs State Of U.P. & Ors.
349
in prejudicial activities causing snarl in maintenance of public order after being released on
bail, hence the detention order is not tenable in the eye of law and deserves to be vitiated.

6. Learned counsel for the petitioner to buttress his argument has relied upon a catena
of decisions delineated hereunder :-

i. Rivadeneyta Ricardo Agustin Vs. Government of the National Capital
Territory of Delhi & others 1994 Supp. (1) SCC 597.
ii. Huidrom Konungjao Singh Vs. State of Manipur & others 2012 (7) SCC
181.
iii. Dharmendra Suganchand Chelawat Vs.Union of India (1990) 1 S.C.C.746,
iv. Binod Singh Vs. District Magistrate Dhanbad & others (1986) 4, SCC 416.

7. Per contra Sri Ali Murtaza learned AGA appearing on behalf of opposite parties no.
2, 3 and 4 and Sri K.P. Pathak, learned counsel appearing on behalf of Union of India
submitted that normally this Court should not interfere with the subjective satisfaction
reached by the detaining authority except in peculiar and extremely limited circumstances.
The Court should keep off from substituting its own finding petering out the order of the
detaining authority when the grounds of detention are precise, pertinent, proximate and
relevant. The detaining authority has perceived that detention of the petitioner with a view to
prevent him from indulging in any manner prejudicial to the public order. Such satisfaction
is only preventive and not punitive. The subjective satisfaction of the detaining authority is
concerned to be of paramount importance with certain relaxation in exercise of his
discretion. The order of detention is a precautionary measure based on a reasonable
prognosis of the future behaviour of a person resting on his past conduct in the light of the
nature of the incidents and the connecting circumstances. The purposes of preventive
detention and prosecution are different. The authorities are different and the nature of
proceeding is different. . Obviously, the petitioner was already enlarged on bail in Case
Crime No. 3259 of 2014 and 3603 of 2014 by this Court by two separate orders dated
7.5.2015 . The petitioner was also enlarged on bail under the Gangster Act vide Case Crime
No. 3931 of 2014 by order dated 10.6.2015. The detenue will be tried in a criminal court for
the commission of the criminal offences but it will not debar the preventive authority from
taking action under the Act as the likelihood of such a person on being released would be
indulging in prejudicial activities which will imperil the maintenance of the public order.
The detaining authority was conscious of all the past conduct of the petitioner and has
passed the order of detention in order to prevent him from indulging in the activities
detrimental to the public at large. The cases relied upon by the learned counsel for the
petitioner are based on quite different set of facts and circumstances of the case which do
not have any applicability with the present set of facts. There is no illegality or vulnerability
in the order impugned . The detention order has been passed following the provisions of law
as the same was already approved by the competent authority. The writ petition sans merits
and may be dismissed and the detention order may be affirmed .

8. Learned AGA to buttress his argument has also placed reliance upon a gamut of
decisions delineated hereto below
350 INDIAN LAW REPORTS ALLAHABAD SERIES
i. Huidrom Konungjao Vs. State of Manipur & others 2012 Law Suit (SC) 317
ii. Baby Devassy Chully alias Bobby Vs. Union of India & others (2013)
4,SCC 531
iii. Kareshpal alias Billu Vs. District Magistrate Meerut & others 2002(1)
A.Cr.R.573.

9. We have considered the rival submission advanced by the learned counsel for the
parties. Indisputably in those cases which were registered against the petitioner the charge
sheet was submitted against him. In all the cases referred in the foregoing paragraphs ,the
petitioner was already admitted to bail .In our opinion, detention order can be passed to
prevent the detenue from engaging in similar activity if set at liberty observing the following
norms :

1. if the preventive authority passing the order is conscious of the fact that the
detenue is in jail.
2. If the preventive authority has reason to believe on the basis of reliable
materials placed before him.

i) There is a real possibility of his being released on bail.
ii) If the detenue is released on bail, he would indulge in all probability in similar
activities creating disruptive situation prejudicial to the society.

3. In case it is felt necessary to detain him or prevent him from doing such
activities causing jeopardy to the security and maintenance of the public order, the
authority may pass the order after recording his satisfaction in this behalf.

10. From the prolix discussion of the case in hand, it emerges out that peace and the
tranquillity was disrupted on account of insouciant and casual approach of the police
officials who did not discharge their duties devotedly shouldering their responsibility against
whom order was passed by the Chief Judicial Magistrate on 9.10.2014 for taking appropriate
action . Merely because the petitioner was granted bail, proper course open to the authority
is to challenge the order in the proper forum and not to pre-empt or circumvent the orders
granting the bail to the petitioner. The cases which are essentially criminal in nature can be
dealt with under the ordinary law. Prosecution in a criminal court is conducted by a trial and
the proof of guilt is based on the basis of legal evidence and the standard of proof is beyond
reasonable doubt whereas preventive detention is an action to prevent the act justifying the
satisfaction that the detenue would indulge in similar activities if set at liberty putting in
jeopardy the security and safety of the society. In the instant case all the materials were not
placed before the detaining authority prior to passing the order of detention curtailing liberty
of the petitioner. There is no live link with the incident dated 5.10.2014 and the detention
order dated 18.5.2015. The procedural safeguards were also not strictly followed by the
detaining authority. Peace and tranquillity as well as law and order was disturbed due to
casual approach of the police officials who had recovered two female corpses to be the
victim of cases registered against the petitioner. The agitated melee had broken the law by
3 All. Ram Lakhan Pandey & Anr. Vs State Of U.P. & Ors.
351
developing unruly and disruptive scene for which the petitioner cannot be held
responsible for causing any sort of annoyance and breach in the normal tempo of life.

11. Having regard to the overall facts and circumstances and also the catena of
authorities cited by the learned counsel for the parties,we hold that the detaining authority
was not conscious of all the relevant aspects of the case and has passed the order impugned
merely on the subjective satisfaction sensing the activities of the petitioner to be prejudicial
and deleterious to the society if not detained. He has not recorded satisfaction in the order
impugned that there is all probability of imminent danger and peril to the public at large in
case of being released on bail which aberration on the part of the detaining authority vitiates
the impugned order.

12. In the result the writ petition succeeds and is accordingly allowed. The impugned
order dated 18.5.2015 passed by the respondent no.3 District Magistrate Jalaun at Orai
contained in Annexure-5 to the writ petition is hereby quashed.

13. Let the petitioner Atul Gupta be released from jail forthwith, if he is not wanted in
any other case.

14. No order as to costs.
----------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.03.2016

BEFORE

THE HON'BLE VIVEK KUMAR BIRLA, J.

Writ - A No. - 47748 of 2014

Ram Lakhan Pandey & Anr ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Siddharth Khare, Ashok Khare

Counsel for the Respondents:
C.S.C.

Petitioner worked as seasional collection, Amins - regularisation claim under Rule 5 of U.P. collection
service Rule 1974 was rejected - earlier a writ petition was filed which was disposed of with direction
to the District Magistrate to consider the claim to petitioner for regularisation under Rules of 1974 -
claim of petitioners were rejected citing that they have attained the age of 45 years and taking in
consideration the percentage of recovery they are not eligible for regularisation.

U.P. Collection Amin Service Rules, 1974 - Rule 5(1) proviso & Rule 17-A - Selection of Seasonal
Collection Amins for 35% quota vacancies - Criteria: satisfactory work (≥70% recovery over last 4