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2020 Supreme(All) 416
IN THE HIGH COURT OF ALLAHABAD
Pankaj Naqvi, Samit Gopal, JJ.
Amit Jani – Petitioner
Versus
State Of U.P. & Others – Respondents
Habeas Corpus Writ Petition No. - 1045 of 2019
Decided On : 06-03-2020
Advocate Appeared:
For the Petitioner:Sri Yogesh Kumar Mishra, Advocate
For the Respondent: S.K. Pal, G.A, assisted by Dr. S.B. Maurya, A.G.A., Pankaj Naqvi, Samit Gopal, JJ.
Point of Law:
It is well settled that when an act is to be done in a particular manner, then the act is to be performed only in the manner provided under the statute or not at all and all other modes are necessarily forbidden
Headnote:
Detention order – Habeas corpus petition has been filed directing the respondent authorities to produce the corpus of the petitioner and to set him free from illegal detention of respondent no.5 / City Magistrate – whether the detention of the petitioner from 11.11.2019 (on which bail bonds / sureties were filed) to 16.11.2019 (date of release) is justified by law or not - Held, authority was statutorily obliged to reduce its reasons in writing, warranting an immediate action, no such reasons were ascribed- The statutory mandate of Section 116 (3) is that once the person concerned tenders his personal bond in compliance to order passed under Section 111, he has to be released. The petitioner was released only on 16.11.2019, when the matter was taken up in this Court. Thus the detention of the petitioner from 11.11.2019 to 16.11.2019 is in brazen defiance of the statutory mandate of sub-section (3) of Section 116 Sub-section (2) of Section 151 of the Code, and that of Articles 20 and 21 of the Constitution of India – Detention of petitioner illegal – Direction issued – Petition disposed of
Facts of the Case:
Petitioner was arrested from his residence by police of P.S, Sector 20 NOIDA, Gautam Budh Nagar on 9.11.2019 at about -2:00 A.M. No reason for arrest is disclosed to the family members of the petitioner, who approached the higher authorities to ascertain his whereabouts and reasons of arrest. The police informed the family members of the petitioner that he has been sent to District Jail,
Finding of the Court:
Authority was statutorily obliged to reduce its reasons in writing, warranting an immediate action, no such reasons were ascribed- The statutory mandate of Section 116 (3) is that once the person concerned tenders his personal bond in compliance to order passed under Section 111, he has to be released. The petitioner was released only on 16.11.2019, when the matter was taken up in this Court. Thus the detention of the petitioner from 11.11.2019 to 16.11.2019 is in brazen defiance of the statutory mandate of sub-section (3) of Section 116 Sub-section (2) of Section 151 of the Code, and that of Articles 20 and 21 of the Constitution of India – Detention of petitioner illegal – Direction issued
Result: Petition disposed of
JUDGMENT :
Samit Gopal, J.
1. This habeas corpus petition has been filed directing the respondent authorities to produce the corpus of the petitioner and to set him free from illegal detention of respondent no.5/City Magistrate, Noida, Gautam Budh Nagar.
2. On 16.11.2019, at the request of the learned A.G.A, the matter was posted for 19.11.2019 in order to enable him to obtain instructions. The learned A.G.A, on 19.11.2019 informed that he could not communicate the earlier order dated 16.11.2019 to the authorities, but the learned counsel for the petitioner stated that the detenu was released in the evening of 16.11.2019. We on 5.12.2019 called upon the learned A.G.A, to file a personal affidavit of respondent no.5. A counter affidavit of respondent no.5 was filed on 6.1.2020, to which a rejoinder is filed.
3. The petitioner was arrested from his residence by police of P.S, Sector 20 NOIDA, Gautam Budh Nagar on 9.11.2019 at about -2:00 A.M. No reason for arrest is disclosed to the family members of the petitioner, who approached the higher authorities to ascertain his whereabouts and reasons of arrest. The police informed the family members of the petitioner that he has been sent to District Jail, Gautam Budh Nagar under Sections 107/116 and 151 CrPC on 9.11.2019. The reasons for arrest as recorded in the report under Section 151 CrPC is extracted here-in-below:-
^^v;ks/;k jke efUnj Ádj.k ij ekuuh; loksZPp U;k;ky; }kjk fu.kZ; fnukad 09-11-2019 dks vkuk lEHkkfor gSA iwoZ esa vfer tkuh mijksDr lkEÁnkf;d o 'kkfUr 'kkSgknZ ds eqn~nks dks Tofyr djus o xqIr lw=ksa ls tkudkjh gq;h gSA bl Ádkj dh iqujko`fRr vfer tkuh mijksDr dj ldrk gSA tuin es 'kkfUr O;oLFkk cuk;s j[kus gsrq vfer tkuh mijksDr dk pkyku tfj;s /kkjk 151 lhŒvkjŒlhŒ fd;k tkrk gSA**
The brother of the petitioner filed a bail application before the City Magistrate, Noida, Gautam Budh Nagar/respondent no.5, along with bail bonds and sureties on 11.11.2019, but the petitioner was not released. The brother approached respondent no.5, again on 12.11.2019 and 13.11.2019 for release of the petitioner, but no orders for release were passed.
4. We have heard Sri Yogesh Kumar Mishra, learned counsel for the petitioner, Sri S.K. Pal, the learned Government Advocate assisted by Dr. S.B. Maurya, the learned A.G.A.
5. The precise issue, which has now fallen for consideration is as to whether the detention of the petitioner from 11.11.2019 (on which bail bonds/sureties were filed) to 16.11.2019 (date of release) is justified by law or not.
6. To answer the above issue, we will have to revert to the provisions under which the petitioner has been challaned. The petitioner has been challaned under order dated 9.11.2019 in proceedings under Sections 107/116 and 151 CrPC. Sections 107/116 are contained in Chapter-VIII of the Code, which relates to "security" for keeping the peace and for good behaviour.
Scheme of Chapter-VIII of the Code in brief is as under:-
7. Section 106 of the Code gives power to a Court of Sessions or Court of a Magistrate of first class or appellate/revisional court for directing a person, while convicting him for offences referred to sub-section (2) of Section 106 of the Code, to execute a bond with or without sureties for keeping the peace for a period not exceeding 3 years.
Section 107 of the Code confers powers on an Executive Magistrate to issue a show cause to a person in the manner provided under Chapter-VIII, in the event an information is received that such a person is likely to commit breach of peace or disturb the public tranquility, requiring such a person as to why he be not ordered to execute a bond with or without sureties. The life of such an order is for a period not exceeding one year as the Magistrate may think fit. An order under Section 107 shall be in writing, setting forth the substance of the information received, the amount of bond to be executed, the term for which it is to be enforced, number, character and class of sureties, if any. Section 108 provid
