Citation Codes

Equivalent Citations

citation codes

Case Number

W.P No. 3225 of 2009 (Cri.)

Advocates

Mahavir Pathak
P.N Gupta, Government Advocate

Judges

A.K Shrivastava
A.P Shrivastava, JJ.

Acts

section 3(2) of the National Security Act, 1980 (in short 'the Act').
sections 327/34,294 and 506-B of Indian Penal Code
sections 324/34, 504 of Indian Penal Code.
sections 327/34 of Indian Penal Code.
section 327/34 of Indian Penal Code.

See more information ...

Smart Summary

Structured Summary of the Opinion (A. K. Shrivastava, J.)

Factual and Procedural Background

The petitioner challenged by writ petition under Articles 226 and 227 the order of the District Magistrate, Gwalior, detaining him under section 3(2) of the National Security Act, 1980 ("the Act"). The detention order was passed on 23 April 2009 (Annexure P-1) in Case No. NSA/07/2009, on the District Magistrate's subjective satisfaction that the petitioner's liberty was prejudicial to the maintenance of public order.

Prior to the detention order, the Superintendent of Police, Gwalior (Annexure R-1, letter dated 31-3-2009) recommended detention, citing the petitioner's alleged criminal and antisocial activities and attaching details of 14 cases and a separate list of his criminal record. The District Magistrate summoned records and recorded statements of local residents and the Town Inspector before passing the detention order. The Advisory Board later concurred with the District Magistrate and forwarded its decision to the State Government (Annexures R-5 and R-6).

The petitioner produced certified copies of several magistrate court judgments showing acquittals in multiple criminal prosecutions (various JMFC cases) which counsel argued undermined justification for detention. The petition was heard and resisted by the State; after hearing counsel, the High Court dismissed the petition.

Legal Issues Presented

Whether the detention order passed under section 3(2) of the National Security Act, 1980 is legally sustainable in the facts of this case.
Whether acquittals or pendency of multiple criminal prosecutions (including acquittals where witnesses were declared hostile) preclude or undermine detention under the Act.
Whether the District Magistrate's failure to file or swear an affidavit in support of the detention order vitiates the order.
Whether non-supply of copies of material documents or statements of independent witnesses to the detenu invalidates the detention (in particular, the interaction with section 8(2) of the Act).
Whether allegations of petty offences or the nature of offences alleged against the petitioner render invocation of the Act per se impermissible.
Whether a detention order can be served on a detenu while he is in jail.

Arguments of the Parties

Petitioner's Arguments (Shri Pathak)

The petitioner challenged the printability/validity of the District Magistrate's detention order under Articles 226 and 227.
Multiple JMFC judgments (certified copies produced) show acquittals: e.g., Case Nos. 1067/08, 1066/2008, 586/2008, and 499/2008 — counsel argued these acquittals under various IPC sections indicate lack of criminality sufficient to detain under the Act.
Acquittals (some due to witnesses being declared hostile) demonstrate insufficiency to justify detention; mere pendency or number of cases should not lead to NSA detention.
The District Magistrate did not file his own affidavit in support of the detention order; this omission, counsel argued, vitiates the order.
Copies of material documents (including statements of independent witnesses) were not supplied to the detenu; reliance was placed on precedents to contend this defect invalidates the detention.
Reliance was placed on several High Court and Supreme Court decisions to support the contention that the detention was unwarranted and arbitrary.

Respondent's Arguments (Learned Government Advocate Shri Gupta)

The Superintendent of Police's recommendation supplied sufficient material to the District Magistrate to justify detention under section 3(2) of the Act.
The petitioner’s liberty was, in the State's submission, prejudicial to maintenance of public order because of criminal/antisocial activities, terrorizing presence in the market, shopkeepers closing shops, witnesses being intimidated, and extortion.
The absence of the District Magistrate's affidavit does not automatically invalidate the detention order; absence is not decisive unless mala fide or extraneous considerations are alleged.
Non-supply of witness statements can be justified under section 8(2) of the Act where disclosure is considered against public interest; the District Magistrate recorded satisfaction that supplying statements would endanger witnesses.
The detention order can be served while the detenu is in jail; precedent supports such practice.
Reliance was placed on several Supreme Court and High Court authorities to support the lawfulness of detention in these circumstances.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
State of Punjab vs. Sukhpal Singh, AIR 1990 SC 231	Even if no case is registered against a person, detention under the Act can be justified if activities are shown to be prejudicial to maintenance of public order.	The Court relied on this principle (para 14) to support that absence of registered cases does not preclude lawful detention; applied to hold detention justified on available material.
Smt. Victoria Fernandes vs. Lalmal Sawma and others, AIR 1992 SC 687	Non-filing of the affidavit by the detaining authority is not conclusive; absence of affidavit is not fatal except where mala fides or extraneous considerations are alleged.	The Court applied this principle (para 14) to find that absence of the District Magistrate's affidavit did not invalidate detention because no mala fide or extraneous considerations were pleaded.
Shaik Hanif vs. State of West Bengal, AIR 1974 SC 679	Referenced as authoritative precedent on the significance of affidavit/non-filing in detention matters (relied upon in Victoria Fernandes).	Referenced within the Victoria Fernandes discussion; the Court used the line of authority to support that absence of affidavit is not decisive absent mala fides.
Smt. Shashi Aggarwal vs. State of U.P. and others, AIR 1988 SC 596	Principle that a detention order can be served even when the detenu is in jail (service while in custody).	The Court noted this authority (para 9) to support the respondent's contention that service in jail is permissible; that principle formed part of the respondent's submissions considered by the Court.
State of U.P. vs. Saleem, 2001 (4) Supreme 437	If the Detaining Authority has justified arriving at objective/subjective satisfaction that detention is necessary in public interest, the order should not be interfered with.	The Court relied upon this principle (para 14) to uphold the District Magistrate's subjective satisfaction and to decline interference with the detention order.
Narayan Debnath vs. The State of West Bengal, AIR 1976 SC 780	Relied upon by the respondent to support the lawfulness of detention under the Act (general supporting authority).	The Court recorded that the Government Advocate placed heavy reliance on this decision; the citation formed part of the authorities considered but the Court did not single it out as the sole basis for decision.
Charan Singh vs. Union of India and others, 2000 (3) MPLJ 188 = 2001(1) M.P.H.T. 296	Relied upon by respondent (Division Bench decision of the Court) in support of detention powers under the Act.	The Court noted the respondent's reliance; it was one of the authorities considered when assessing the legal framework and prior guidance.
Santosh Sharma vs. State of M.P. and others, 2008(4) MPLJ 600 = 2008(5) M.P.H.T. 278	Single Bench decision relied upon by respondent to support detention under the Act in comparable circumstances.	The Court recorded the reliance and considered it among precedents supporting the respondent's position.
Ramkhiladi Gurjar vs. State of M.P. and another, W.P. No. 296/2008 (Gwalior), decided 26-6-2008 [2008(4) MPLJ 285]	Relied upon by the petitioner (High Court decision cited to challenge detention in similar factual matrix).	The Court recorded the petitioner's reliance; it considered such authorities but did not accept that they warranted quashing the detention in the present facts.
Sunil Tiwari vs. State of M.P. and others, 2009(2) M.P.H.T. 297 (DB) = ILR 2009 MP 1679	Relied upon by the petitioner (Division Bench decision cited to contest detention).	The Court noted the reliance by petitioner; it did not find such authorities decisive to overturn the detention order on the present record.
Shankar Mihani vs. State of M.P. and others, W.P. No. 5454/2009 (Jabalpur), decided 23-6-2009	Relied upon by the petitioner to challenge the detention.	The Court recorded the citation among petitioner’s authorities but found the present factual matrix sufficient to uphold detention notwithstanding such decisions.
Arun Ghosh vs. State of West Bengal, (1970) ISCC 98	Supreme Court authority relied upon by the petitioner in support of his contentions regarding detention law.	The Court recorded that the petitioner relied upon this authority; it considered it as part of the body of precedent but did not allow the petition.
State of U.P. and another vs. Sanjai Pratap Gupta alias Pappu and others, 2005 SCC (Cri) 366	Supreme Court authority cited by the petitioner.	The Court recorded this reliance but concluded that the material before the District Magistrate and Advisory Board justified detention in the present case.
Vishnu Prasad Shukla vs. State of M.P., 1989 MPLJ 546 = 1990 C.Cr.J. 176	Relied upon by the petitioner to contend that absence of copies of material documents supplied to detenu renders the detention bad in law.	The Court considered that precedent but concluded that section 8(2) of the Act and recorded satisfaction justified non-supply of witness statements in this case.
Bala @ Iqbal vs. Additional Collector, Indore and another, 1996 Cr.LR (MP) 72	Single Bench decision relied upon by petitioner to argue that petty offences should not attract detention under the Act.	The Court recorded the reliance but held the present case involved material showing more serious antisocial consequences, so detention was not shown to be arbitrary.

Court's Reasoning and Analysis

The Court undertook a fact-sensitive analysis grounded in the statutory scheme of section 3 of the National Security Act and the material placed before the District Magistrate. The reasoning proceeded in these steps:

Statutory framework and focus on subjective satisfaction: The Court emphasized that under section 3 (and particularly sub-section (3) as explained), the paramount consideration is the satisfaction of the District Magistrate that the liberty of a person is prejudicial to the maintenance of public order. The State may by order empower the District Magistrate to exercise detention powers under section 3(2).
Consideration of material supplied to the District Magistrate: The Court reviewed the Superintendent of Police's recommendatory letter (Annexure R-1, dated 31-3-2009) and found it supplied sufficient material — including details about the petitioner's alleged roaming in the market causing terror, shopkeepers closing shops, people hiding in their houses, and witnesses not adducing evidence due to fear — to form the basis of the District Magistrate's subjective satisfaction.
Effect of acquittals in criminal prosecutions: The Court acknowledged that the petitioner produced copies of several JMFC acquittals (some on account of hostile witnesses). It held that acquittal in criminal cases, including acquittals because witnesses turned hostile, does not per se justify quashing a detention order under the Act where other material supports the District Magistrate's satisfaction that the detenu's liberty is prejudicial to public order.
Absence of the District Magistrate's affidavit: Relying on precedents (notably Smt. Victoria Fernandes and line of cases), the Court held that non-filing of the detaining authority's affidavit is not decisive and will not invalidate detention unless mala fide or extraneous considerations are shown. In this case, no mala fide or extraneous allegations were made; thus the omission did not strengthen the petitioner's case.
Non-supply of copies of witness statements and section 8(2): The Court examined the District Magistrate's record and found that the Magistrate had recorded satisfaction that supplying copies of witnesses' statements would endanger the witnesses. The Court held that sub-section (2) of section 8 of the Act authorizes non-disclosure where disclosure is against public interest and that non-supply in these circumstances was permissible.
Cumulative assessment of materials and advisory board concurrence: The Court noted the Auxiliary role of the Advisory Board which affirmed the District Magistrate's order. Considering the cumulative effect of the recommendatory letter, witness statements recorded by the Magistrate, and the public order consequences described, the Court concluded the detention order was neither arbitrary nor contrary to the spirit of section 3 of the Act.

Holding and Implications

Holding: The writ petition was dismissed. The Court's operative conclusion is summarized as:

Petition dismissed.

Implications:

The District Magistrate's detention order dated 23 April 2009 (Annexure P-1) under section 3(2) of the National Security Act is upheld on the facts presented; the advisory board's concurrence was noted.
The Court endorsed that (a) acquittals in some criminal trials, including where witnesses turned hostile, do not automatically invalidate preventive detention under the Act if other material supports detention; (b) absence of the detaining authority's affidavit is not fatal absent allegations of mala fide; and (c) non-supply of witness statements can be justified under section 8(2) where the detaining authority records satisfaction that disclosure would be against public interest.
No broader novel legal principle or new precedent was announced; the decision applies existing authorities and statutory provisions to the facts and results directly in upholding the detention order and dismissal of the petition.

This summary is confined strictly to the contents of the provided opinion and does not add, infer, or interpret materials beyond what the opinion itself states.

Show full summary ...

Jugaroo Alias Virendra v. State Of M.P And Others

A. K. Shrivastava, J.: -

By filing this petition under Articles 226 and 227 of the Constitution of India the detenu petitioner has challenged the printability of the order passed by the District Magistrate, Gwalior (respondent No. 2) taking the petitioner in detention under section 3(2) of the National Security Act, 1980 (in short 'the Act').

2. Vide order dated 23rd April, 2009 (Annexure P-l) passed in Case No. NSA/07/2009 by exercising powers conferred to the District Magistrate under section 3(2) of the Act, the petitioner has been detained because his liberty is prejudicial to the maintenance of public order.

3. The Superintendent of Police (respondent No. 3) vide its letter dated 31-3-2009 (Annexure R-1) submitted and informed the District Magistrate that looking to the criminal and antisocial activities of the petitioner resulting into disruption of tempo of life of public at large, it is recommended to proceed against him under the provisions of the Act. In the said letter, not only the details of 14 cases were highlighted, but a separate list indicating the criminal record of the detenu was annexed.

4. On receiving the said recommendation of Superintendent of Police, Gwalior, the learned District Magistrate summoned the relevant record and also recorded the statements of residents of the locality concerned namely Krishnakant Shivhare and Prakash Pandey apart from the statement of Town Inspector of Police Station Dabra Shri Rakesh Gupta. The learned Magistrate after having perused the recommendations, the statements and the material available on record, arrived at a subjective satisfaction that looking to the criminal activities of the petitioner, his physical presence is prejudicial to maintain the public order and hence by invoking the powers conferred to it under section 3 of the said Act, the impugned order of detention was passed on 23rd April, 2009.

5. Needless to say, the matter was also referred to the Advisory Board who concurred with the view of the learned District Magistrate and justified the detention order of learned District Magistrate and forwarded its decision to the State Government. In this regard, Annexures R-5 and R-6, dated 29th April, 2009 and 18-5-2009 respectively have been placed on record.

6. The contention of Shri Pathak, learned Counsel for the petitioner, is that learned JMFC, Dabra, in Case No. 1067/08 (State through Police Station, Dabra vs. Jugaroo and others), vide its judgment dated 30-5-2009, acquitted the petitioner from the charges punishable under sections 327/34, 294 and 506-B of Indian Penal Code In another case, which was pending before the learned JMFC in Case No. 1066/2008 (State through Police Station, Dabra Distt. Gwalior vs. Jugaroo and others), the learned Magistrate acquitted the petitioner on 17-4-2009 from the charge punishable under sections 327/34 of Indian Penal Code. During the course of arguments, a certified copy of the judgment dated 22-7-2009 passed by the learned JMFC, Dabra, in Case No. 586/2008 acquitting the petitioner under sections 327/34, 294 and 506-B of Indian Penal Code, has been submitted. Learned Counsel has also submitted another order dated 9-9-2009 passed by the learned JMFC, Dabra, in Case No. 499/2008 and has submitted that the petitioner has been acquitted from the charges punishable under sections 324/34, 504 of Indian Penal Code. The contention of learned Counsel is that merely because umpteen criminal cases are pending against the petitioner, it may be a ground to hold that he is violating the law and order, but his activity cannot be stretched up to the extent that his liberty has become prejudicial to the maintenance of public order and therefore the action of the District Magistrate invoking the jurisdiction under the Act is wholly unwarranted under the law. In support of his contention, learned Counsel for the petitioner has placed reliance on several decisions of this Court, they are Ramkhiladi Gurjar vs. State of M.P. and another, W. P. No. 296/2008 (Gwalior), decided on 26-6-2008 [2008(4) MPLJ 285], Sunil Tiwari vs. State of M.P. and others, 2009(2) M.P.H.T. 297 (DB) = ILR 2009 MP 1679 and Shankar Mihani vs. State of M.P. and others, W.P. No. 5454/2009 (Jabalpur), decided on 23-6-2009. Learned Counsel has also placed reliance on the decisions of Supreme Court Arun Ghosh vs. State of West Bengal, (1970) ISCC 98 and State of U. P. and another vs. Sanjai Pratap Gupta alias Pappu and others, 2005 SCC (Cri) 366. By placing reliance on the decision of this Court Vishnu Prasad Shukla vs. State of M.P., 1989 MPLJ 546 = 1990 C.Cr.J. 176, it has been contended that because the copies of the material documents were not supplied to the detenu, therefore, the order of his detention is bad in law. By placing heavy reliance on Single Bench decision of this Court Bala @ Iqbal vs. Additional Collector, Indore and another, 1996 Cr.LR (MP) 72, it has been contended that if the petty offences are alleged to have been committed by the petitioner, the action under the Act taken by the District Magistrate is bad in law.

7. It has also been put forth by Shri Pathak, learned Counsel for the petitioner, that the District Magistrate in support of his action has not come forward to swear his own affidavit and, therefore, the impugned order is liable to be quashed. Learned Counsel has also submitted that there is nothing in the impugned order that in case the petitioner, who is in custody, if released, will perform any act prejudicial to the maintenance of public order. On these premised submissions, it has been contended by learned Counsel for the petitioner that the detention order of the petitioner be quashed and he be released forthwith.

8. Combating the aforesaid submissions of learned Counsel for the petitioner, learned Government Advocate Shri Gupta by putting emphasis to the recommendations of Superintendent of Police, Gwalior, on the basis of which the District Magistrate has passed the impugned order, has submitted that since the liberty of the petitioner is prejudicial to the maintenance of public order, therefore, for no rhyme or reason, the detention order is to be quashed. In support of his contention, learned Government Advocate has placed heavy reliance Narayan Debnath vs. The State of West Bengal, AIR 1976 SC 780, State of U.P. vs. Saleem, 2001 (4) Supreme 437. Learned Government Advocate has also placed reliance on the Single Bench decision of this Court Santosh Sharma vs. State of M.P. and others, 2008(4) MPLJ 600 = 2008(5) M.P.H.T. 278. Learned Government Advocate has also placed reliance on a Division Bench decision of this Court Charan Singh vs. Union of India and others, 2000 (3) MPLJ 188 = 2001(1) M.P.H.T. 296. By inviting our attention to the decision of the Apex Court State of Punjab vs. Sukhpal Singh, AIR 1990 SC 231, it has been argued that even if not a single case is registered against a detenu, his detention can be justified under the Act.

9. Replying the argument of learned Counsel for the petitioner in respect of non-filing the affidavit by District Magistrate, it has been contended by learned Government Advocate that there is no straightjacket formula or water tight compartment in this regard that merely because he has not filed any affidavit, the detention order is required to be quashed. To bolster his submission, learned Counsel has placed heavy reliance on the decision of Supreme Court Smt. Victoria Fernandes vs. Lalmal Sawma and others, AIR 1992 SC 687. Further, it has been contended by learned Government Advocate that the detention order can be served even when the detenu is in jail. To buttress his submission, learned Government Advocate highlighted the principles laid down by the Supreme Court in Smt. Shashi Aggarwal vs. State of U.P. and others, AIR 1988 SC 596.

10. So far as non-supplying the copies of the statements of the independent witnesses to the petitioner is concerned, it has been contended by learned Government Advocate that the Legislature has taken precaution in this regard by enacting sub-section (2) of section 8 of the Act empowering the District Magistrate not to disclose the facts which it considers against the public interest if disclosed. On these premised submissions, it has been argued by learned Government Advocate that there are sufficient ground to keep the petitioner in detention under the Act and hence this petition be dismissed being devoid of any substance.

11. Having heard the learned Counsel for the parties, we are of the considered view that this petition deserves to be dismissed.

12. The true spirit of section 3 of the Act, particularly sub-section (3) is that the State Government if satisfied may by order in writing direct that during such period as may be specified in the order, such District Magistrate if satisfied as provided in sub-section (2) may exercise the powers conferred to it by the said sub-section and may take a person in detention. Thus, the paramount consideration is the satisfaction of the District Magistrate. Simultaneously, the District Magistrate should be satisfied that the liberty of that person is prejudicial to the maintenance of public order. Indeed, this proposition has been exposed in various decisions of the Supreme Court as well as of this Court. If we test the above said principles on the touchstone and anvil of the present factual scenario, we find that by taking into consideration the recommendations of Superintendent of Police, Gwalior, recommending to detain the petitioner under the Act, the District Magistrate has passed the impugned order of detention.

13. On going through the recommendatory letter (Annexure R-l), dated 31-3-2009 of Superintendent of Police, Gwalior, addressed to District Magistrate, we find that sufficient material was supplied by him to the District Magistrate stating that on account of even roaming in the market by the petitioner, the people at large are terrorized and the shopkeepers used to close their shops. Not only this, the people at large also on seeing the petitioner, immediately hide themselves by entering into their respective houses. Further, it has been recommended that on account of his terror, the witnesses are not adducing the evidence against him in the Court. Indeed, the judgment of acquittal passed by learned JMFC, Dabra, dated 30-5-2009 placed on record as Annexure P-2 acquitting the petitioner under sections 327/34,294 and 506-B of Indian Penal Code has been passed because the witnesses were declared hostile. Similarly, in Case No. 1066/2008 of the Court of JMFC, Dabra, Distt. Gwalior (Annexure P-3), the petitioner was acquitted from the charge punishable under section 327/34 of Indian Penal Code. We are not of the view that merely because the petitioner has been acquitted in some cases on the basis of no evidence against him since the witnesses were declared hostile, therefore, his detention is justified, but according to us, looking to the recommendations which was accepted by the learned District Magistrate and the antisocial activity of the petitioner resulting into prejudice of maintenance of peace to the public at large and order, if the impugned order of detention of the petitioner has been passed by the learned District Magistrate, his action cannot be said to be arbitrary or contrary to the spirit of section 3 of the Act."

14. The Supreme Court in Sukhpal Singh (supra), has held that even not a single case is registered against a person, his detention under the Act is justified if it is borne out from the record that his activities are prejudicial to the maintenance of public order. In Smt. Victoria Femandes (supra), the Supreme Court in Para 11 while taking into consideration the non-filing of the affidavit by the District Magistrate by placing reliance on its earlier decision Shaik Hanifvs. State of West Bengal, AIR 1974 SC 679, held that the absence of the affidavit of the person who passed the order of detention would not be of much consequence except in cases where mala fides or extraneous considerations are attributed to the District Magistrate or the Detaining Authority. In the present case, neither any mala fide or extraneous considerations have been stated in the petition and, therefore, merely because the affidavit was not submitted by the District Magistrate, according to us, for no rhyme or reason, the case of the petitioner is strengthen. The Supreme Court in Saleem (supra), has categorically held that if the Detaining Authority has justified in arriving at his objective satisfaction that the detention of the detenu is necessary in the public interest, his order should not be interfered with. On going through the order of learned Magistrate, we find that there is subjective satisfaction of the District Magistrate arriving at a conclusion that the detention of the detenu is necessary in the public interest. Hence, even if it has not been so stated in his order that in case the petitioner is released, his activity would be prejudicial to the maintenance of public order, the order cannot be said to be bad in law.

15. Looking to the material available on record against the petitioner, it is gathered that his image is like a devil and his presence in the open market is terrorizing the people at large and they are constrained to close their shops and conceal their identity by hiding themselves in their respective houses. Apart from this, there is material on record that petitioner is extorting the money from business class. Taking into the cumulative effect, we find that the impugned order against the petitioner has been rightly passed.

16. So far as non-supplying the copies of the statements of the witnesses recorded by the District Magistrate during enquiry to the petitioner is concerned, suffice it to say that it is not always necessary and if sufficient material record is there for non-supplying the copies thereof to the petitioner, according to us, the District Magistrate has acted in true spirit of sub-section (2) of section 8 of the Act. On going through the record of the District Magistrate, we find that satisfaction has been recorded by the District Magistrate that the petitioner would become hazardous to those witnesses if the copies of the statements of the witnesses are provided to him and therefore according to us, this ground is also not helpful to the petitioner.

17. In this view of the matter, we do not find any error in the order of the District Magistrate. Needless to say, his order was also affirmed by the Advisory Board. Accordingly, this petition is found to be devoid of any substance and the same is hereby dismissed.

Petition dismissed.

Jugaroo Alias Virendra v. State Of M.P And Others

Structured Summary of the Opinion (A. K. Shrivastava, J.)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Petitioner's Arguments (Shri Pathak)

Respondent's Arguments (Learned Government Advocate Shri Gupta)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Jugaroo Alias Virendra v. State Of M.P And Others

Comments