# Shiv Kumar alias Mukhiya v. State of U.P. & Ors

- **Citation:** (2015) 2 ILRA 853
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2015-07-28
- **Case number:** Civil Misc. Habeas Corpus W.P. No. 11547 of 2015
- **Bench:** Bal Kirshna Narayana, Mrs. Vijay Lakshmi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shiv-kumar-alias-mukhiya-v-state-of-u-p-ors-43212
- **Pages:** 11

## Headnote

Constitution
of
India,
Art.-226-Habeas
Corpus
Petition-challenging
detention
order-passed by D. M-exercising power u/s
3(2) of N.S. Act-no pertinent of relevant
material placed-complicity of petitioner not
proved-crime so committed not in daring
manner
to
disturb
public
order
or
tranquility-detention order quashed.
Held: Para-26
We have very carefully gone through the
counter affidavits filed by the State and
Union of India, there is nothing therein
which may indicate that the prosecution has
been enable to collect any further evidence
which may indicate at the complicity of the
petitioner in the commission of the crime
which has been made the basis for passing
the impugned detention order apart from the
statement of witness Sunder.
Case Law discussed:
(2010)9 Supreme Court Cases 618; (1987) 3
SCC 502; (1989) 4 SCC 556; (1990) 1 SCC 35;
(1996) 11 SCC 393; (2007) 7 SCC 378; 2012
(2) SCC 176; (2012) 2 SCC 386;

## Text

2 All] Shiv Kumar alias Mukhiya Vs. State of U.P. & Ors.
853
cognizable offence is conveyed. The steps
taken shall also show, how aforesaid officials
have ensured compliance of directions given
by this Court as well as Apex Court in Roop
Ram Vs. State of U.P. (supra) and Lalita
Kumari Vs. Government of U.P. (supra). In
case of lapses on the part of concerned police
officials, how steps would be taken to punish
the guilty officials should also be a part of
the scheme. They shall also submit a
progress report, on expiry of six months from
the date of delivery of this judgment,
showing steps taken by them in this regard
and the consequences thereof. They shall
make inquiry and inform the Court about the
officers who have disobeyed Court's order
regarding registration of first information
report so that separate proceeding of
contempt may be drawn against them.
43. In the present case since conduct
of Investigating Officer is suspicious and
lacks independence and fairness, we
direct the State Government to transfer
inquiry to C.B.C.I.D., who shall proceed
with investigation and complete the same
within a period of three months.
44. We dispose of the writ petition
in the manner as aforesaid and with the
direction as given hereinabove.
45. A copy of this order shall
forthwith be furnished to Chief Secretary,
U.P. Government; Principal Secretary
(Home), U.P. Government; and, Secretary
(Appointment), U.P. Government, for
communication and compliance.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.07.2015
BEFORE
THE HON'BLE BAL KIRSHNA NARAYANA, J.
THE HON'BLE MRS. VIJAY LAKSHMI, J.
Civil Misc. Habeas Corpus W.P. No. 11547 of 2015
Shiv Kumar alias Mukhiya ...Petitioner
Versus
State of U.P. & Ors.
...Respondents
Counsel for the Petitioner:
Sri I.K. Chaturvedi
Counsel for the Respondents:
A.G.A., A.S.G.I.(2015/0403), Sri Firoz Ahmad
Constitution
of
India,
Art.-226-Habeas
Corpus
Petition-challenging
detention
order-passed by D. M-exercising power u/s
3(2) of N.S. Act-no pertinent of relevant
material placed-complicity of petitioner not
proved-crime so committed not in daring
manner
to
disturb
public
order
or
tranquility-detention order quashed.
Held: Para-26
We have very carefully gone through the
counter affidavits filed by the State and
Union of India, there is nothing therein
which may indicate that the prosecution has
been enable to collect any further evidence
which may indicate at the complicity of the
petitioner in the commission of the crime
which has been made the basis for passing
the impugned detention order apart from the
statement of witness Sunder.
Case Law discussed:
(2010)9 Supreme Court Cases 618; (1987) 3
SCC 502; (1989) 4 SCC 556; (1990) 1 SCC 35;
(1996) 11 SCC 393; (2007) 7 SCC 378; 2012
(2) SCC 176; (2012) 2 SCC 386;
(Delivered by Hon'ble B.K. Narayana, J.)
1. Heard Sri I.K.Chaturvedi, learned
counsel for the petitioner, learned AGA
for the respondent nos. 1,2 and 3 and Sri
Firoz Ahmad, learned counsel for the
Union of India/ respondent no.2.
2. Pleadings between the parties
have been exchanged and the matter is
ripe for final disposal.
854
 INDIAN LAW REPORTS ALLAHABAD SERIES
3. By means of this writ petition the
petitioner has challenged the detention
order dated 04.08.2014/14.08.2014 passed
by
the
District
Magistrate,
Banda,
respondent no.3 (Annexure-10) by which
he in exercise of his power under Section
3(2) of the National Security Act, 1980
(hereinafter referred to as the Act) has
ordered that the petitioner be detained in
District Jail, Banda stating the grounds of
detention as required under Section 8 of
the Act as well as the order dated
23.09.2014 passed by the State Govt.
confirming the detention order dated
04.08.2014/14.0.2014 (Annexure 15) to
the writ petition.
4. The brief facts of the case as
emerging from the pleadings of the parties
are that an FIR was lodged by one
Chandra Bhushan, resident of village
Baurali Azam on 06.02.2014 at 6.20 p.m.
against unknown persons at P.S. Bisanda,
District Banda stating therein that Km.
Sandhya who was daughter of his relative
Ram Naresh Patel, aged about six years,
had come to his house along with her
grand mother to participate in a religious
ceremony (yagya) organised in his house,
had gone missing on 31.01.2014 at about
4.00 p.m. from his house in village
Baurali Azam.
5. The aforesaid FIR was registered
as case crime no. 22 of 2014, under
Section 363 IPC, at P.S. Bisanda, District
Banda.
6.
The dead body of the deceased
Sandhya was recovered from a well in the
village on 08.02.2014. Inquest was conducted
on 08.02.2013 between 7.30 p.m. to 9.30 p.m.
and post mortem was performed on
09.02.2014 at 2.00 p.m. and since the
deceased's post mortem report indicated that
the she before being thrown into the well was
throttled to death after being subjected to rape,
case crime no. 22 of 2014 which was earlier
registered under Section 363 IPC was
converted under sections 363, 376, 302, 201
IPC and Section 4 of Prevention of Children
from Sexual Offences Act, 2012. The
investigation of the case continued for several
months without making any headway despite
the frequent change of Investigating Officers.
The name of the petitioner as an accused in
the aforesaid case surfaced for the first time in
the statement of one Sunder recorded by the
Investigating Officer on 18.05.2014 in which
he stated that on the date of the incident he
had seen the deceased sitting on the lap of the
petitioner in his guava grove at 5.15 p.m.. On
the basis of his last seen evidence, the
Investigating Officer submitted charge sheet
against the petitioner on 26.05.2014 and sent
him to jail. The bail application moved by the
petitioner moved before the Special Judge/
Additional Sessions Judge, Court No.1 Banda
was rejected by him by his order dated
14.07.2014. Thereafter the petitioner moved a
application for bail before the High Court
which was registered as bail application no.
41263 of 2014.
7. While the petitioner was confined
in jail in connection with the aforesaid
case, the impugned order of preventive
detention was passed by the respondent
no.3 on 04.08.2014 against the petitioner
and served upon him in District Jail
Banda along with the grounds of
detention under Section 8 of the National
Security Act. The order of preventive
detention dated 04.08.2014/14.08.2014
passed by respondent no.3 apart from
narrating
the
facts
already
stated
hereinabove further reflected that the
same was passed on the basis of report of
S.P., Banda which itself was based upon
the confidential report of the local
2 All] Shiv Kumar alias Mukhiya Vs. State of U.P. & Ors.
855
intelligence unit forwarded to him by
Inspector In-charge stating that the
petitioner who was accused in case crime
no. 22 of 2014, under Section 302, 201
and 376 IPC had moved a bail application
before the High Court and there was
every likelihood of his being released on
bail and in case he was released on bail
there was strong possibility of his
involving himself in illegal activities and
hence his detention under the Act was
imperative in order to maintain public
order. The impugned order also reflects
that after the dead body of the victim Km.
Sandhya was found in a well and it came
to light that before being murdered, she
had been raped the members of the public
became very angry and demanded District
Magistrate to get the case solved soon and
an atmosphere of fear had gripped the
community.
Public
order
had
been
disturbed and with a view to maintain law
and order, heavy police force had to be
deployed at the post mortem house.
Angry
villagers
had
organised
a
demonstration in front of the D.M.'s
residence
information
whereof
was
promptly given to the superior officers
through R.T. Set and additional police
forces were requisitioned from other
police stations. As a result of the heinous
offence of rape and murder of a minor girl
committed by the petitioner and his
subsequent act of throwing her dead body
in the well, the tranquillity of the
community was totally disturbed and an
atmosphere of fear had prevailed.
8.

The
petitioner
filed
a
representation before the State of U.P.
through Secretary Home Secretary, State
of U.P. and before the Union of India
through Home Secretary and also before
the
District
Magistrate,
Banda
on
12.08.2014. In his representation the
petitioner had categorically stated that the
petitioner who was an old man aged about
60 years was absolutely innocent and he
had falsely been implicated as an accused
in the case crime no. 22 of 2014 by the
local police as a measure of vendata
against his uncle Shishupal who had filed
several complaints before the higher
authorities
against
the
local
police
highlighting the inaction on the part of the
local police in the investigation of the
case in hand and their deliberate attempt
to shield Reshma and her husband Arjun
whose names had figured as prime
suspects in the concerned case during
investigation, by introducing a got up
witness Sunder after 2-1/2 months of the
incident who gave evidence of last seen
against the petitioner in his statement
recorded under Section 161 Cr.P.C. The
State Govt. approved the detention order
dated 04.08.2014/ 14.08.2014 passed by
the District Magistrate, Banda vide order
dated 13.08.2014 (Annexure-13). The
Central Govt. also rejected the petitioner's
representation by order dated 03.09.2014
(Annexure-14). The petitioner appeared
before the Advisory Board and thereafter
on the basis of the opinion of the
Advisory Board tendered under Section
11 of the Act, the State Govt. passed an
order on 23.09.2014 for detention of the
petitioner in jail for twelve months
commencing from 04.08.2014.
9. Learned cousnel for the petitioner
submitted that the subjective satisfaction
of
the
respondent
no.3
(detaining
authority) recorded in the impugned
detention order is based upon insufficient,
non existent and irrelevant grounds which
has totally invalidated the same and
further more since the respondent no.3
(detaining authority) has exercised his
power under Section 3(2) of National
856
 INDIAN LAW REPORTS ALLAHABAD SERIES
Security Act illegally and arbitrarily, the
impugned order cannot be sustained and
accordingly is liable to be quashed.
10. Per Contra learned AGA
submitted that the petitioner has been
accused of having committed the heinous
offence of raping a minor girl and
thereafter committing her murder and
throwing her dead body in a well. He
further submitted that the act of the
petitioner affected the community and
lead to disturbance of current life of the
community so as to amount to disturbance
of public order and it did not effect
merely
an
individual
leaving
the
tranquillity of the society undisturbed.
The satisfaction of the detaining authority
is based on the relevant materials placed
before him showing that the act of the
petitioner was such that it disturbed the
tempo of life of the community, there was
disturbance in the village as well as in the
places nearby. He next submitted that the
detaining authority upon being apprised
that the petitioner had moved bail
application for his release before the
Hon'ble High Court and there was every
likelihood of the petitioner being released
on bail and since at the very prospect of
the petitioner being enlarged on bail, a
feeling of fear had gripped the villagers
and if he was actually released on bail, he
would
again
indulge
in
anti-social
activities and hence to prevent such
prejudicial activity in future, the detaining
authority had rightly passed the detention
order against the petitioner and the same
warrants no interference by this Court.
11. We have carefully considered
the submissions made by the learned
counsel for the parties, perused the
pleadings of the parties as well as the
other material brought on record and the
case laws cited before us to which we will
refer as and when the context requires.
12. The Apex Court in the case of
Pebam Ningol Mikoi Devi Vs. State of
Manipur and others reported in (2010) 9
Supreme Court Cases 618 has examined
the scope of Judicial review of the
subjective
satisfaction
of
detaining
authority. Paragraph 21 of its verdict
rendered in the aforesaid case, which is
relevant for our purpose is being
reproduced herein below"
"21. To decide the correctness or
otherwise of the detention order, two
issues of importance arise before this
Court.
The
first
is,
regarding
the
documents and material on which reliance
was placed by the detaining Authority in
passing the detention order. Secondly,
with
those
materials,
the
detaining
authority was justified in arriving at a
finding that the detenu should be detained
under the National Security Act without
any trial. In matters of this nature, this
Court normally will not go into the
correctness of the decision as such but
will only look into decision making
process. Judicial review, it may be noted,
is not an appeal from a decision but
review of the manner in which the
decision was made. The purpose of
review is to ensure that the individual
receives a fair treatment."
13. We now proceed to examine
some of the decisions of the Apex Court
which may have relevance in determining
in
what
manner
such
subjective
satisfaction of the Authority must be
arrived at, in particular on Section 3(2) of
the National Security Act. In Fazal Ghosi
v. State of Uttar Pradesh, (1987) 3 SCC
502, this Court observed that: "The
2 All] Shiv Kumar alias Mukhiya Vs. State of U.P. & Ors.
857
District Magistrate, it is true, has stated
that the detention of the detenus was
effected because he was satisfied that it
was necessary to prevent them from
acting prejudicially to the maintenance of
public order, but there is no reference to
any
material
in
support
of
that
satisfaction. We are aware that the
satisfaction of the District Magistrate is
subjective in nature, but even subjective
satisfaction must be based upon some
pertinent material. We are concerned here
not with the sufficiency of that material
but with the existence of any relevant
material at all." (emphasis supplied) (Para
3).
14. In Shafiq Ahmed v. District
Magistrate, Meerut, (1989) 4 SCC 556,
the Apex Court opined :- "Preventive
detention is a serious inroad into the
freedom of individuals. Reasons, purposes
and the manner of such detention must,
therefore, be subject to closest scrutiny
and examination by the courts." (emphasis
supplied) (Para 5).
This Court further added:
"...there must be conduct relevant to
the formation of the satisfaction having
reasonable nexus with the action of the
petitioner which are prejudicial to the
maintenance of public order. Existence of
materials relevant to the formation of the
satisfaction and having rational nexus to
the formation of the satisfaction that
because
of
certain
conduct
"it
is
necessary" to make an order "detaining"
such person, are subject to judicial
review." (emphasis supplied) (Para 5).
15. In State of Punjab v. Sukhpal
Singh, (1990) 1 SCC 35, the Apex Court
held:
"...the grounds supplied operate as an
objective test for determining the question
whether
a
nexus
reasonably
exists
between grounds of detention and the
detention
order
or
whether
some
infirmities had crept in." (emphasis
supplied) (Para 9).
16. In State of Rajasthan v. Talib
Khan, (1996) 11 SCC 393, the Apex
Court observed that:
"...what is material and mandatory is
the communication of the grounds of
detention to the detenu together with
documents in support of subjective
satisfaction reached by the detaining
authority." (emphasis supplied) (Para 8).
17. The legal position what emerges
from these rulings is that, there must be a
reasonable basis for the detention order,
and there must be material to support the
same. The Court is entitled to scrutinize
the material relied upon by the Authority
in
coming
to
its
conclusion,
and
accordingly determine if there is an
objective
basis
for
the
subjective
satisfaction. The subjective satisfaction
must be two fold. The detaining authority
must be satisfied that the person to be
detained is likely to act in any manner
prejudicial to the security of the State or
from acting in any manner prejudicial to
the maintenance of the public order and
the authority must be further satisfied that
it is necessary to detain the said person in
order to prevent from so acting.
18. In order to determine the validity
of the impugned detentionorder in the
light of the principles laid down in the
aforesaid decisions, it will be necessary to
examine the materials relied by the
detaining authority while passing the
858
 INDIAN LAW REPORTS ALLAHABAD SERIES
impugned
deteintion
order.
The
documents relied upon by the District
Magistrate mentioned in the grounds of
detention are :-
1. Copy of the FIR lodged by one
Chandra Bhushan on 06.02.2014, which
was entered at G.D. No.27 at about 6.20
p.m. by S.I.- V.K. Shukla.
2. The report made by Chandra
Bhushan Patel regarding recovery of the
dead body of the victim from a well in
village on 08.02.2014 which was entered
at G.D. No. 29 at 6.10 p.m. on
08.02.2014.
3. Certified copy of the inquest
report and other documents prepared
during inquest.
4. Post mortem report of the
deceased.
5.
News
items
published
in
10.02.014 editions of daily newspapers
Hindustan and Dainik Jagran.
6. Statements of the informant
Chandra Bhushan recorded under Section
161 Cr.P.C.
7. Statement of witness Sunder
recorded under Section 161 Cr.P.C..
8. Copy of the site plan.
9. Report of the sponsoring authority,
Superintendent of Police, Banda dated
30.07.2014.
19. We are conscious of the fact that
the grounds stated in the order of
detention are sufficient or not, is not
within the ambit of the discretion of the
court and it is the subjective satisfaction
of the detaining authority which is
implied. However, the Apex Court in
paragraph no. 28 of its judgment in the
Pebam Ningol Mikoi Devi (supra), has
observed that if one of the grounds or
reasons which lead to the subjective
satisfaction of the detaining authority
under the National Security Act is non
existent, misconceived and irrelevant
order, the order of detention would be in
valid.
20. The Apex Court in the case of
Mohd. Yousuf Rather Vs. State of Jammu
& Kashmir and Ors. (AIR 1979 SC 1925)
has observed that under Article 22(5), a
detenu has two rights (1) to be informed,
as soon as may be, of the grounds on
which his detention is based and (2) to be
afforded the earliest opportunity of
making a representation against his
detention. The inclusion of an irrelevant
or non-existent ground among other
relevant grounds is an infringement of the
first right and the inclusion of an obscure
or vague ground among other clear and
definite grounds is an infringement of the
second right. No distinction can be made
between introductory facts, background
facts and `grounds' as such; if the actual
allegations were vague and irrelevant,
detention would be rendered invalid.
21. We have very carefully scanned
the
grounds
of
detention
and
the
documents relied on by the detaining
authority while passing the order of
detention against the petitioner, and in our
considered opinion grounds on which the
detention order has been passed have no
probative value and were extraneous to
the scope, purpose and object of the
National Security Act for the following
reasons.
22. The documents mentioned at sl.
no. 1, 2,3, 4 and 5 do not contain any
reference
to
the
petitioner
as
the
petitioner's name as an accused in case
crime no. 22 of 2014 had not surfaced till
the
dates
on
which
the
aforesaid
documents had come to the existence.
2 All] Shiv Kumar alias Mukhiya Vs. State of U.P. & Ors.
859
Chandra Bhushan, informant in case
crime no. 22 of 2014, whose statement
recorded under Section 161 Cr.P.C. and
which finds mention at sl. no. 6 herein
above has not named the petitioner as an
accused in the FIR. Similarly the
document mentioned at sl. no. 8, site plan
of the alleged place of incident was also
wholly irrelevant for the purpose of
subjective
satisfaction
of
detaining
authority. Same is the position with
regard to the report of the sponsoring
authority dated 30.07.2017 which is
mentioned at sl. no.9 and which contains
the same facts on the impugned detention
is founded. The reliance placed by the
detaining authority on the statement made
by the only witness of the incident to the
Investigating Officer after more than 21/2 months of the occurrence (sl. no.7)
without any explanation for his failure to
come forward promptly or at least within
a reasonable period, cannot be said to be
sufficient
to
form
the
subjective
satisfaction of the detaining authority as it
is settled law that the statements under
Section 161 Cr.P.C. cannot be taken as
sufficient grounds in the absence of any
supportive or corroborative grounds.
Section 161 Cr.P.C. statements are not
considered as substantive evidence but
can only be used to contradict the
witnesses in the course of the trial as is
evident from the wordings of Section
162(1) Cr.P.C. and has been so held time
and again by the Apex Court.
23. In Rajendra Singh v. State of
Uttar Pradesh, (2007) 7 SCC 378, the
Apex Court laid down that:
"A statement under Section 161
Cr.P.C. is not a substantive piece of
evidence. In view of the proviso to Subsection (1) of Section 162 Cr.P.C., the
statement can be used only for the limited
purpose of contradicting the maker
thereof in the manner laid down in the
said proviso. Therefore, the High Court
committed a manifest error of law in
relying
upon
wholly
inadmissible
evidence..."
24. Even if for the sake of argument
it is assumed that the statement of Sunder
made to the Investigating Officer under
Section 161 Cr.P.C. relied by the
detaining
authority
while
forming
subjective satisfaction, the facts stated by
Sudner in his statement under Section 161
Cr.P.C. do not suggest any positive or
direct involvement of the petitioner in the
commission of crime which was later
made the basis for passing of order of
preventive detention against him. The
witness Sunder had simply told the
Investigating Officer in his statement that
on the date of the incident he had seen the
victim sitting on the lap of the petitioner
at about 5.20 p.m. and he suspected that
the petitioner may have committed the
murder of the victim. He has nowhere
stated that he had either seen the
petitioner raping the victim or throwing
her dead body into the well in the village
after throttling her to death. Apart from
the aforesaid last seen evidence of Sunder
which saw the light of the day after an
inordinate delay and explained of more
than
2-1/2
months,
there
is
no
corroborative
or
supportive
material
indicating at this complicity in the
commission of the crime in question.
There is further neither any allegation nor
any material on record showing that the
crime in question was committed by the
petitioner in a daring manner and in full
view of the public in a crowded place so
as
to disturb the public order or
tranquillity of the locality.
860
 INDIAN LAW REPORTS ALLAHABAD SERIES
25.

Furthermore,
as
already
observed none of the other documents
substantiate the involvement of the detenu
in unlawful activities as alleged in the
detention order.
26. We have very carefully gone
through the counter affidavits filed by the
State and Union of India, there is nothing
therein which may indicate that the
prosecution has been enable to collect any
further evidence which may indicate at
the complicity of the petitioner in the
commission of the crime which has been
made the basis for passing the impugned
detention order apart from the statement
of witness Sunder.
27. Thus, it is clear that there was no
pertinent or relevant material on the basis
of which, the detention order could be
passed.
28. In the instant case the offences
alleged to have been committed by the
petitioner are under the provisions of the
Indian Penal Code for which the normal
law is sufficient to deal with the offence,
if proved. The detaining authority, in our
opinion has wrongly taken the easy way
out and has resorted to an order of
preventive detention, in order to avoid
investigation of the case in which the
petitioner was made an accused more than
2-1/2 months after the incident, on the
basis of extremely weak circumstantial
evidence.
29. The Apex Court in the case of
Yumman Ongbi Lembi Leima Vs. State
of Manipur and others, 2012 (2) SCC 176,
the Apex Court has held as hereunder:-
"27. As has been observed in various
cases of similar nature by this Court, the
personal liberty of an individual is the
most precious and prized right guaranteed
under the Constitution in Part III thereof.
The State has been granted the power to
curb such rights under criminal laws as
also under the laws of preventive
detention, which, therefore, are required
to be exercised with due caution as well
as upon a proper appreciation of the facts
as to whether such acts are in any way
prejudicial to the interest and the security
of the State and its citizens, or seek to
disturb public law and order, warranting
the issuance of such an order. An
individual incident of an offence under
the Indian Penal Code, however heinous,
is insufficient to make out a case for
issuance of an order of preventive
detention."
30. Paragraphs 4,5, 8 and 9 of the
judgement rendered by the Apex Court in
the case of Mungauala Yadamma Vs.
State of Andhra Pradesh and others
reported in (2012)2 SCC386, in which the
Apex Court has examined the parameters
within
which
order
of
prevention
detention can be passed are quoted herein
below:-
"4. On behalf of the appellant, it has
been urged that the ground taken for
issuance of the detention order was
improper and not available in view of the
reasoned judgment of this Court in Rekha
v. State of T.N. Where a similar question
had arisen and in para 23 of the judgment,
a three-Judge Bench of this Court was of
the view that criminal cases were already
going on against the detenue under
various provisions of the Penal Code,
1860, as well as under the Drugs and
Cosmetics Act, 1940, and that if he was
found guilty, he would be convicted and
given
appropriate
sentence.
Their
Lordships also indicated that in their
2 All] Shiv Kumar alias Mukhiya Vs. State of U.P. & Ors.
861
opinion, the ordinary law of the land was
sufficient to deal with the situation, and
hence,
recourse
to
the
preventive
detention law was illegal.
5. It has been submitted by Mr. Anil
Kumar
Tandale,
learned
advocate
appearing for the appellant, that in the
instant case also all the offences alleged
to have committed by the husband of the
appellant, were under the provisions of
the Andhra Pradesh Prohibition Act,
1995, for which the normal law was
sufficient to deal with the offence, if
proved. He submitted that the detaining
authority had wrongfully taken the easy
way out and had resorted to an order of
preventive detention in order to avoid
having to investigate the cases filed
against the appellant.
8. In fact, recently, in Yumman
Ongbi Lembi Leima v. State of Manipur
we had occasion to consider the same
issue and the three-Judge Bench had held
that the personal liberty of an individual is
the most precious and prized right
guaranteed under the Constitution in Part
III thereof. The State has been granted the
power to curb such rights under criminal
laws, as also under the laws of preventive
detention, which, therefore, are required
to be exercised with due caution as well
as upon a proper appreciation of the facts
as to whether such acts are in any way
prejudicial to the interest and the security
of the State and its citizens, or seek to
disturb public law and order warranting
the issuance of such an order.
9. No doubt, the offences alleged to
have been committed by the appellant are
such as to attract punishment under the
Andhra Pradesh Prohibition Act, but that in
our view has to be done under the said laws
and taking recourse to preventive detention
laws would not be warranted Preventive
detention involves detaining of a person
without trial in order to prevent him/her from
committing certain types of offences. But
such detention cannot be made a substitute
for the ordinary law and absolve the
investigating authorities of their normal
functions of investigating crimes which the
detenue may have committed. After all,
preventive detention in most case is for a
year only and cannot be used as an
instrument to keep a person in perpetual
custody without trial. Accordingly, while
following the three Judge Bench decision in
Rekha case we allow the appeal and set aside
the order passed by the High Court dated
20.7.2011 and also quash the detention order
dated 15.2.2011, issued by the Collector and
District Magistrate, Ranga Reddy District,
Andhra Pradesh."
31. The Apex Court in paragraph
nos. 13, 14, 15, 18, 29, 33 and 34 of its
verdict given in the case of Rekha Vs.
State of Tamilnadu through Secretary to
Government and another, reported in
(2011)5 SCC 244, which are being quoted
herein below has again dealt with the
circumstances under which the power of
preventive detention can be exercised:-
"13. In our opinion, Article 22(3)(b)
of the Constitution of India which permits
preventive detention is only an exception
to Article 21 of the Constitution. An
exception is an exception, and cannot
ordinarily nullify the full force of the
main rule, which is the right to liberty in
Article
21
of
the
Constitution.
Fundamental
rights
are
meant
for
protecting the civil liberties of the people,
and not to put them in jail for a long
period without recourse to a lawyer and
without a trial. As observed in R Vs.
Secy. Of State for the Home Dept.
14. Article 21 is the most important
of the fundamental rights guaranteed by
862
 INDIAN LAW REPORTS ALLAHABAD SERIES
the Constitution of India. Liberty of a
citizen is a most important right won by
our forefathers after long, historical,
arduous struggles. Our Founding Fathers
realised its value because they had seen
during the freedom struggle civil liberties
of our countrymen being trampled upon
by foreigners, and that is why they were
determined that the right to individual
liberty would be placed on the highest
pedestal along with the right to life as the
basic right of the people of India.
15. Right to liberty guaranteed by
Article 21 implies that before a person is
imprisoned a trial must ordinarily be held
giving him full opportunity of hearing,
and that too through a lawyer, because a
layman would not be able to properly
defend himself except through a lawyer.
18. In State of of Maharashtra & Ors.
Vs. Bhaurao Punjabrao Gawande, (2008)
3 SCC 613 (para 23) this Court observed :
"...Personal liberty is a precious right.
So did the Founding Fathers believe because,
while their first object was to give unto the
people a Constitution whereby a government
was established, their second object, equally
important, was to protect the people against
the government. That is why, while
conferring
extensive
powers
on
the
government like the power to declare an
emergency, the power to suspend the
enforcement of fundamental rights or the
power to issue ordinances, they assured to
the people a Bill of Rights by Part III of the
Constitution, protecting against executive
and legislative despotism those human rights
which they regarded as fundamental. The
imperative necessity to protect these rights is
a lesson taught by all history and all human
experience. Our Constitution makers had
lived through bitter years and seen an alien
Government trample upon human rights
which the country had fought hard to
preserve. They believed like Jefferson that
"an elective despotism
was not the
Government we fought for". And, therefore,
while arming the Government with large
powers to prevent anarchy from within and
conquest from without, they took care to
ensure that those powers were not abused to
mutilate the liberties of the people. (vide
A.K. Roy Vs. Union of India (1982) 1 SCC
271, and Attorney General for India Vs.
Amratlal Prajivandas, (1994) 5 SCC 54."
29. Prevention detention is, by
nature, repugnant to democratic ideas and
an anathema to the rule of law. No such
law exists in the USA and in England
(except during war time). Since, however,
Article 22(3)(b) of the Constitution :14: of
India permits preventive detention, we
cannot hold it illegal but we must confine
the power of preventive detention within
very narrow limits, otherwise we will be
taking away the great right to liberty
guaranteed
by
Article
21
of
the
Constitution of India which was won after
long, arduous, historic struggles. It
follows, therefore, that if the ordinary law
of the land (Indian Penal Code and other
penal statutes) can deal with a situation,
recourse to a preventive detention law
will be illegal.
33. No doubt it has been held in the
Constitution Bench decision in Haradhan
Saha's case (supra) that even if a person is
liable to be tried in a criminal court for
commission of a criminal offence, or is
actually being so tried, that does not debar
the authorities from passing a detention
order under a preventive detention law.
This observation, to be understood
correctly, must, however, be construed in
the background of the constitutional
scheme in Articles 21 and 22 of the
Constitution (which we have already
explained). Articles 22(3)(b) is only an
exception to Article 21 and it is not itself
a fundamental right. It is Article 21 which
2 All] Alok Kumar Mishra & Anr. Vs. State of U.P. & Anr.
863
is central to the whole chapter on
fundamental rights in our Constitution.
The right to liberty means that before
sending a person to prison a trial must
ordinarily be held giving him opportunity
of placing his defence through his lawyer.
It follows that if a person is liable to be
tried, or is actually being tried, for a
criminal
offence,
but
the
ordinary
criminal law (Indian Penal Code or other
penal statutes) will not be able to deal
with the situation, then, and only then, can
the preventive detention law be taken
recourse to.
34. Hence, the observation in para 34
in Haradhan Saha's case (supra) cannot be
regarded as an unqualified statement that
in every case where a person is liable to
be tried, or is actually being tried, for a
crime in a criminal court a detention order
can also be passed under a preventive
detention law."
32. Thus in view of the forgoing
discussions, we have no hesitation in
holding that the impugned detention order
cannot be sustained and is liable to be
quashed.
33. This habeas corpus writ petition
is accordingly allowed and the impugned
detention
order
dated
04/14.08.2014
(Annexure-10) as well as the order of the
State
Government
dated
23.09.2014
confirming the detention order dated
04/14.08.2014 are hereby quashed. The
petitioner shall be released forthwith if he
is not wanted in any other case.
34. There shall however be no order
as to costs.
--------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 10.07.2015
BEFORE
THE HON'BLE MRS. VIJAY LAKSHMI, J.
Criminal Misc. Application No. 18749 of 2015
(U/S 482 CR.P.C.)
Alok Kumar Mishra & Anr. ...Applicants
Versus
State of U.P. & Anr.
...Opp. Parties
Counsel for the Applicants:
Sri R.P. Mishra
Counsel for the Opp. Parties:
A.G.A.
Cr.P.C.-Section
482-Summoning
order
seeking
direction
for
quashing-from
allegations of complaint-can not be said
no offence made out-disputed question
of facts-can not be seen by High Courtapplicant can raise this question in
discharge application-rejected direction
for expeditious disposal of bail as per
Supreme Court direction given.
Held: Para-6
From the perusal of the material on record
and looking into the facts of the case, at this
stage, it cannot be said that no offence is
made out against the applicant. All the
submissions made at the Bar relate to the
disputed questions of fact, which cannot be
adjudicated upon by this Court under
Section 482 Cr.P.C. At this stage, only prima
facie case is to be seen in the light of the
law laid down by Supreme Court in cases of
R.P. Kapur Vs. State of Punjab, AIR 1960 SC
866, State of Haryana Vs. Bhajan Lal, 1992
SCC (Cr.) 426, State of Bihar Vs. P.P.
Sharma, 1992 SCC (Cr.) 192 and lastly
Zandu Pharmaceutical Works Ltd. Vs. Mohd.
Saraful Haq and another (para 10) 2005
SCC (Cr.) 283. The disputed defence of the
accused cannot be considered at this stage.
Moreover, the applicant has got a right of
discharge under section 239 or 227/228
Cr.P.C. as the case may be through a proper
application for the said purpose and she is
free to take all the submissions in the said
discharge application before the Trial Court.