Criminal Writ Petition No.64 of 1997

5th May, 1997

Petitioner Counsel: Shri ARVIND BOBDE, Shri P. M. PRADHAN, Shri N. S. KHANDEWALE
Respondent Counsel: Shri APTE, Shri D. N. KUKDE, Shri RAJEEV PATIL, Shri R. S. SUNDARAM and Ku. U. R. TANNA
Other Counsel: Shri W. G. CHARDE, Shri B. P. JAISWAL, Shri M. G. NARVANE, Shri J. M. JADHAV, Shri M. G. GHORPADE and Shri L. T. SAMUDRAWAR

Cases Cited:
1964 (2) Cr. L.J. 71 [Para 9]
AIR 1968 SC 19 [Para 9]
1997(1) ALL MR 47 (S.C.)=(1996) 6 SCC 530 [Para 15,33]
1997 ALL MR (Cri) 1 (S.C.)=(1996) 6 SCC 530 [Para 15,33]
(1996) 6 SCC 599 [Para 15]
(1989) 1 SCC 736 [Para 18]
1994 Cr. L.J. 2443 [Para 18]
1997 All MR (Cri) 28 [Para 18]
(1995) 4 SCC 51 [Para 21]
1997 ALL MR (Cri) 3 (S.C.)=(1996) 6 SCC 530 [Para 15,33]
1997(1) ALL MR 49 (S.C.)=(1996) 6 SCC 530 [Para 15,33]

JUDGMENT

A. A. DESAI, J. :- Broadly this petition is directed against the order dated 20.2.1997 passed by the Commissioner of Police, Mumbai in exercise of power under Section 3 of the National Security Act, 1980 directing detention of one Arun Gulabrao Gawli. However, the petition has focused on numerous aspects of serious repercussion. We have, therefore, heard the matter for a considerable period.

2. Preface to grounds of detention has described the detenu as a person with violent character, notorious gang leader and weapon wielding desperado. It is averred that even while in Jail, he was operating and was giving directions, indulging in criminal activities like extortion, terrorism, master minding murders, etc. through members of the gang. He has been almost running a parallel administration attempting to nullify the very existence of law enforcing Authorities. While in Jail, he has been indulging in contract killing of important people.

3. During the course of hearing of this petition, it is revealed that the detenu was in Jail from 20.7.1990 till his release on 11.12.1996. What is more disturbing to visualise as to how detenu was carrying on criminal activities of very serious nature while in Jail. On 15.4.1997, we, therefore, directed Inspector General of Prison. Inspector General of Police, Mumbai and Home Secretary to file detailed affidavit furnishing all particulars relating to circumstances under which the detenu carried those activities as enumerated. Shri P. Subrahmanyam, Additional Chief Secretary (Home), Government of Maharashtra, in his affidavit has averred, "while Government is aware of the circumstances under which the petitioner carried on his criminal activities while in Jail, suitable instructions are being given from time to time to the Prison Authority to take suitable preventive steps to prevent him from master minding his criminal activities." The affidavit has not given the circumstances under which the detenu carried his prejudicial activities. The affidavit has also not narrated what preventive steps the Government has taken.

4. In the affidavit, Shri S. C. Malhotra, Commissioner of Police, Mumbai has given various crimes committed by the detenu while in Yerwada and Aurangabad Prisons. He has stated that as per material available on record, Police is certain that acts of conspiracy to commit criminal acts narrated in the preamble to the grounds of detention were being perpetrated by the detenu as a result of passing of vital instructions and orders to the gang members outside, upon receipt of which they would act for which he has been arrayed as a conspirator. Even in this affidavit, Shri Malhotra has not clarified as to how the detenu could manage passing of information and entering into conspiracy with outsiders and used to execute the same.

5. Shri Narvane, Inspector General of Prisons in his affidavit, gave particulars of the period when the detenu was kept in various Jails. Shri Narvane has stated that the under-trial, detenu and convict prisoners lodged in different prisons are in the custody of the Jail Superintendents. They are responsible for the safety of the prisoners, maintenance of prisons and enforcement of discipline amongst the prisoners. In para 4 of the affidavit, Shri Narvane has stated that detenu was entitled to have interviews as per sub-rule 14 of Maharashtra Prisons (Facilities to Prisoners) Rules, 1962. As per the above Rules, such interviews can take place within the site, but out of hearing of the prison official. It was, therefore, not possible for the prison staff to know what transpired during such interviews. Shri Narvane has further averred that since 1994 in order to prevent the possible criminal conspiracies within the prison, the members of the gang of prisoners were dispersed and sent to different prisons in the State.

The explanation of Shri Narvane is wholly erroneous. Clause 11 of the relevant Rule provides that every interview shall take place in the presence and hearing of the Jailor specially appointed by the Superintendent for the purpose and it shall be the duty of such Jailor to see that no irregularity occurs. Clause 14 provides subject to the provisions of Rule 11, the Superintendent may permit interview with near relatives beyond hearing. Having regard to these Rules, the interviews with a person other than Lawyer or near relatives would only be within the hearing of the Jail Authorities. And they have to exercise necessary vigil at such time. As such, passing of information to the outsider without knowledge or connivance of the Jail official was just impossible.

6. While in Jail, as per particulars supplied, the first crime the detenu committed in 1992 wherein he was also charged for a criminal conspiracy. The Government has not taken any action against the Jail officials. Shri Malhotra, the detaining Authority, as reported, was at the relevant time, Inspector General of Prison. Even after receipt in February 1997 of grounds of detention which, as discussed, referred to the criminal activities of detenu while in Jail, the Government simply accorded approval, but has not taken any action. The affidavit of Shri Subrahmanyam, Additional Chief Secretary (Home), as discussed, is very evasive. During the course of hearing of this petition though we repreatedly asked, no definite statement could be made on behalf of the Government about taking of any action against the Jail officials.

7. As per particulars supplied by the Government, the first offence was registered against detenu while he was in Jail at Yerwada vide Crime No.159/92. He was charged for the offences punishable under Sections 385, 386, 387, 506 (Part II) and 120-B of Indian Penal Code. As per gist of the crimes supplied to us, complainant Fazin Boman Farmzhari was called inside the Jail and was directed by the detenu to pay an amount of rupees five lakhs. He went inside the Jail with his brother and mother. Second time he again entered the Jail on 4.7.1992 and met with another accused Tanna Kohli. They all had interview with detenu. It is also reported that while these persons were inside the Jail, Police Authorities carried raid in Jail premises and they were found there.

Second offence registered against detenu while he was in Yerwada Prison is vide Crime No.312/93. He was charged for the offences punishable under Sections 302 and 120-B of Indian Penal Code and Sections 3 and 25 of Arms Act. It is reported at this stage that the detenu was in a high security cell. He hatched conspiracy and on 29.5.1993, he committed murder of Ramesh More, Member of Legislative Council. Other accused, as reported, were not the inmates of the Jail. It is not known as to how they made the entry inside the Jail or how their meeting was arranged.

The third crime is registered against detenu vide Crime No.82/94 wherein detenu is charged for the offences punishable under Sections 302, 120-B, 212 read with Section 34 of Indian Penal Code for committing murder of one Babulal Shah. The detenu was also charged that he hatched conspiracy with accused nos.1. 2. 3 and 5 to commit the said murder.

The fourth offence registered against the detenu while he was at Aurangabad Jail is vide Crime No.123/96 wherein he was charged for the offences punishable under Sections 302, 307 and 506 read with Section 34 of Indian Penal Code and Sections 3 and 25 of Arms Act. He was charged that pursuant to conspiracy as hatched, one Jayant Jadhao was murdered and attempt was made to commit murder of one Vivek Jadhao. It was charged that while this detenu was in Aurangabad Jail at Harsul, accused no.4 Pralhad Jadhao and accused no.5 Lalit Shah met him in prison and entered into conspiracy.

The fifth charge against the detenu while he was in Aurangabad Jail (Harsul) is vide Crime No.110/96 wherein he was charged for the offences punishable under Sections 380, 342 and 386 read with Section 34 of Indian Penal Code. The investigation is reported to be in progress. However, it is a case of extortion of money. Total accused persons are seven. It is also reported to us that in this case the complainant was also taken inside the Jail by the gang members of the detenu.

8. In view of nature of crimes and modalities of their execution, we asked the Jail Superintendents of Yerwada and Aurangabad (Harsul) to furnish list of visitors during the period the detenu was detained in the respective prisons. Accordingly they furnished list of visitors on 23rd and 24th April 1997. We perused the list with the assistance of Shri Kukde, the learned Public Prosecutor. None of the visitors shown in the list as furnished is a part of conspiracy or crimes, which are charged, as reported to us, against the detenu. What is more surprising is that, those who are part of conspiracies or execution of crimes are not in the list of visitors. Further more, names of those complainants, who were taken inside the Jail to meet the detenu, do not appear in the visitors' list. We repeatedly asked the Government could detenu hatch such conspiracies or plan execution of crimes or manage criminal activities without active support of Jail official. The Government consciously maintained silence.

9. We solicited services of Advocate W. G. Charde as Amicus Curiae. According to Shri Charde, having regard to the relevant rules, entry in the Jail for any purpose by keeping it off the record is simply impossible unless there is a definite cooperation from the Jail officials with the detenu. The Government could not make any demur. Such cooperation could be to help detenu to hatch conspiracy. Such Jail officials tentatively we feel could also be a part of conspiracy under Section 120-B of Indian Penal Code. It is reported that in first two cases the Court has acquitted the detenu. It was all the more probable since the prosecution perhaps could not establish link between detenu and crime and conspiracy. Even otherwise, the Jail officials rendered support to the accused in their act of committing crime by completely disregarding the mandate of law, which could be with a view to save detenu from the punishment. Permitting the entry of outsider in Jail without making record of it would obviously further help the detenu.

Tentatively we find that the acts of omission and commission of the Jail officials constitute offences punishable under Sections 217 and 218 of Indian Penal Code. They are liable to be prosecuted. Shri Charde relying on decisions in Maulud Ahmad Vs. State of Uttar Pradesh (1964 (2) Cri.L.J. 71) and Kamla Prasad Singh Vs. Hari Nath Singh and another (AIR 1968 SC 19) made a submission that such public servant could be prosecuted even if there is acquittal of the main accused.

10. Apart from criminal prosecution, the officials have public accountability for their acts of omission and commission while holding the public office. On 25.4.1997, we directed Shri M. G. Narvane, Inspector General of Prison, Pune; Shri Jadhao, Superintendent of Jail, Yerwada; Shri Ghorpade, Superintendent of Jail, Aurangabad and Shri Samudrawar, Superintendent of Jail, Aurangabad to remain personally present in this Court on 30.4.1997 for giving their say, if any, as to why appropriate action should not be taken against them for dereliction of legal and official duties.

11. Accordingly, on 30.4.1997, Shri Narvane and Jail Superintendents were present in this Court. Shri Narvane filed his detailed say. We have personally heard Shri Narvane and other Jail Superintendents and also through Shri Jaiswal, the learned Counsel. Shri Narvane in para 8 of his say reiterated the responsibilities of Jail Superintendents. It is further stated that the Jail Superintendents are also responsible for enforcing discipline amongst staff members.

In para 9, Shri Narvane has stated that "on intelligence that Arun Gawli is holding Darbar there along with his men, I took initiative in shifting large number of his followers to different prisons in Maharashtra and Arun Gawli was confined in high security cell of Yerwada prison." The steps were taken to prevent organising similar Darbars in future. However, Inspector General of Prisons has not explained what action he has taken against the Jail officials, who were supporting or permitting the ventures of the detenu. Even otherwise, no action appears to have been taken against any of the Jail officials so far.

Obvious it is that the Inspector General of Prison was aware of the liaison between the Jail official and the detenu and his gang. Shri Narvane has mentioned that he recommended in 1994 departmental enquiry against one Shri R. S. Jadhao, Jail Superintendent, Amraoti for a mis-conduct of helping the gang of Gawli. It is not known what has happened to the said recommendation. Even similar action was not proposed against Jail Superintendents of Yerwada and Harsul (Aurangabad), while the detenu was there the crimes, as reported, were committed.

12. The more interesting feature is that Shri Narvane on 27.7.1993 requested the Commissioner of Police, Pune to post two Police Sub Inspectors and Constables to keep a close watch on the activities of Arun Gawli. It is not clarified to us that when the detenu was in the Jail custody, how further vigilance was solicited from the Police officials. It seems that officials of Jail have failed to exercise their due vigilance, but then no step was taken to discipline them.

Shri Narvane disclosed that on 2.4.1994, he communicated the activities of various gangs including that of Arun Gawli to Commissioner of Police of Pune, Nagpur, etc. However, how these gangs or members thereof could carry such activities has not been disclosed. It is pertinent that the Government had information of the activities from time to time. Still they have not taken appropriate steps to prevent the activities.

According to Shri Narvane, when the crime registered as 54/96 was committed, which involved murder of Jayant Jadhao, he obtained report from the Vigilance Department. He wrote a letter to Joint Commissioner of Police, Mumbai requesting him to inform whether any negligence or connivance was noticed on the part of Jail staff attached to Aurangabad Central Prison. On receiving report, the Inspector General of Prison on 8.8.1996 sought explanation from the Superintendent, Aurangabad Central Prison and Deputy Inspector General. What is surprising is that the explanation, which was sought on 8.8.1996 was submitted on 25.4.1997, i.e. during hearing of this petition. It is thus explicit that even the Disciplinary Authority was very casual even though the situation was burning. Perhaps committing crime by the inmates of Jail could be a routine affair for the Authorities.

13. What is interesting to note from the affidavit is the averment, which says "writ of Police runs beyond stone wall and iron bars. As such, Mumbai Police are expected to thoroughly investigate the matter and book the erring officials involved in conniving in the criminal activities of Arun Gawli." It is not explained that if Inspector General of Prison has noticed defaults on the part of Jail staff, why he could not take any disciplinary action. Shri Narvane has further stated that "In fact, I am awaiting proposal from the Joint Commissioner of Police (Crime), Greater Mumbai for sanctioning prosecution of any of the officers involved in conniving in the illegal activities of Arun Gawli." Really it is unfortunate that the Inspector General of Prison is merrily waiting for a proposal for sanction to prosecute the officials and not taking any action within his authority.

14. We heard Shri Narvane on 30.4.1997 and his Counsel Shri Jaiswal. Concerned Superintendents of Jail, namely, Jadhao, Ghorpade and Samudrawar were also present. The Superintendents of Jail after hearing for sometime prayed for adjournment to file their say. The hearing was then adjourned to 2nd May 1997. Copies of gist of charge against the detenu were supplied to them by the Public Prosecutor. They then filed their say. With the assistance of the learned Counsel, we perused the same. In their say, each one has exhibited deep knowledge of the Rules. None of them has given any plausible explanation as to how they could not prevent the unauthorised entries of outsiders and their meeting with the detenu in the Jail. The Jail Superintendents utterly failed to faithfully maintain the official record.

Shri Jaiswal, the learned Counsel for Jail Superintendents, made a lame attempt to suggest that they have not followed their particular act of omission or commission for which their explanation has been called. We heard the matter for quite sometime. From the respective Jail Superintendents we also solicited information relating to visitors of detenu. We have thereafter on 25.4.1997 issued notice giving sufficient time to them to file their say on 30.4.1997. We have heard them on 30.4.1997 and at their request, we adjourned the matter to 2.5.1997. The matter was explained to them at the time of hearing on 30.4.1997. At the time of seeking adjournment, no such grievance was canvassed that they have not followed their act of omission or commission. Even in their affidavits dated 2.5.1997, it is not shown that they have not followed the cause for which their say was solicited. The common plea by all these Jail Superintendents is thus :

"That absence of entry in the gate register is not conclusive proof to establish that the so called persons have entered the Jail. The statement before the Police during investigation is not admissible. It is further stated that First Information Reports in the respective crimes were recorded after long time."

The omission or commission noticed herein is as per the statement of the Government. Herein we do not hold any debate over the correctness thereof.

In their affidavits, they have made a general statement explaining how efficiently they have performed their duties as Jail Superintendents.

15. Shri Charde, the learned Counsel acting as Amicus Curiae, re-asserted that besides the disciplinary action, if any, or the prosecution for the offences, the Jail officials are liable for exemplary costs for neglecting their statutory duties under Rule 11 as discussed. Shri Charde invited our attention to decisions in Common Cause, a Registered Society Vs. Union of India and others (1996) 6 Supreme Court Cases 530 (1997(1) ALL MR 47 & 49 = 1997 ALL MR (Cri) 1 & 3), Shivsagar Tiwari Vs. Union of India and others (1996) 6 Supreme Court Cases 599. Shri Jaiswal resisted the submission. According to him, rule laid down by the Authorities in the cases cited supra, cannot be extended as in the instant case, there is no loss or damage to the property. In the cases cited supra, the Supreme Court enunciated principles that even while acting under guideline, the Authority has no absolute discretion. In case of abuse of public office, the Authority is accountable. What is more pertinent is that as observed by the Supreme Court, for apportioning such accountability, damage or injury is totally irrelevant. In view of this, the submission that exemplary costs could not be saddled as there was no damage to property as convassed by Shri Jaiswal is wholly without any merit.

16. As discussed, the Supreme Court has saddled responsibility even when the Authority has abused the discretionary power. In the instant case, the defaults are of serious nature. The statutory obligation to be discharged by the Jail officials does not provide any discretion. The mandate of rule is imperative without having any choice. The interviews or entries in the Jail are regulated by the statute. The Jail officials committed flagrant disregard. There might not have a damage to property in a technical sense, but certainly there is a loss of lives. Still worst, there is a damage to the system, which operates to save members of the public from the criminals, by keeping them behind the bars. In the instant case, as demonstrated before us, even though the hardened criminals were in Jail, public was not safe and by keeping them in Jail, criminals have become more hardened. As such, the officials, who have neglected to perform their duties, according to us, are liable for exemplary costs.

17. Coming to the merit of detention, we find that the detenu was released from Jail on 11.12.1996. As per preamble to the grounds of detention, as discussed, he was very active in the Jail. Shri Jadhav - Jail Superintendent of Yerwada with his affidavit, filed a News item dated 18.6.1993 of Marathi Daily 'Sakal' which has reported that in the Yerwada, the Jail Administration has provided to the Detenu the luxury of five star Hotel. The News item also focussed on various aspects of mal-administration of Jail Authorities. The News item particularly reported according to many Police Officers, the detenu feels more safe inside the Jail than outside. The surprising aspect is that the detenu feels unsafe outside. It is reported to us that he applied for security and in absence thereof, he did not propose to move out of Jail. He also filed W.P.No.77/97 to seek necessary protection. Shri Narvane in his say made a disclosure in para 4 that on 11.5.1994 one Girish Nandlal Thakkar alias Bharatkumar Mehta, ex-convict attempted to meet Arun Gawli in Yerwada Central Prison with ulterior motive. It is deposed that their plan was upset by Shri Narvane. He further records that this goes to show that a close watch was being kept on Arun Gawli. Along with his say, he has filed document, marked as Exhibit 'F'. This is a letter from Inspector General of Prisons to the Commissioner of Police. It is stated in the letter that said Thakkar was planning to murder Arun Gawli and for that purpose, they wanted to manage entry in Yerwada Prison by committed some type of crime. Due to intervention of this Officer, they could not succeed in their plan. Even appreciating the steps taken, they were more to protect Arun Gawli from his rivals. Even if the steps taken are laudable, no explanation is given to us as to what steps were taken by these Officers to save public from Arun Gawli.

It is thus crystal clear that coming out of Jail was not safe for the detenu. He apprehends danger to his life outside. It raises a question viz. remitting back the detenu in Jail by the impugned order dated 20.2.1997 is to whose benefit? Shri Narvane, Inspector General of Prisons, has made a specific disclosure in his say that the Bombay Police as more interested in keeping Arun Gawli behind the bars than expeditiously disposing of the cases. Shri Apte, the learned Additional Advocate General tried to urge that with this background, to keep the detenu outside the Jail is still more dangerous and harmful. This submission is hypothetical and not considered to be germane for recording subjective satisfaction by the Detaining Authority.

18. The detention is founded on four incidents, (i) two of them relate to harbouring dreaded criminals and (ii) two relate to criminal intimidation for extortion of money. Mr. Apte, the learned Additional Advocate General, relying on the decisions, (1) in the case of Sharad Kumar Tyagi Vs. State of Uttar Pradesh and others, reported in (1989) 1 Supreme Court Cases, 736; (2) in the case of Smt. Jaya Daniel Lobo Vs. A. S. Samra and others, reported in 1994 Criminal Law Journal, Page 2443; and (3) in the case of Shri Mohan Vithal Takire Vs. Shri Satish Sahney and others, reported in 1997 All Maharashtra Law Reporter (Criminal), page 28, urged that the incidents have impact on public order and therefore that has warranted detention of Arun Gawli under National Security Act.

19. Whether the incident or event has a bearing on public order, mainly and mostly depends upon the question of facts rather than question of law. The test laid down by various authorities is, whether the incident has created impact qua individual victim or it has an impact by and large on the community or section of the community or part of the public. In view of this, we have examined the substance of incidents referred to in the grounds of detention. The first incident referred to dated 12.12.1996 when one Nandkumar Sawant was found standing in front of Dagadi Chawl in a suspicious manner. It is revealed according to the grounds of detention that he came to visit the Dagadi Chawl with a view to have shelter under the protection of detenu. The second incident dated 10.2.1997 relates to one Santosh Adalkar, who committed murder in pursuance of the conspiracy hatched by the detenu and he took shelter in Dagadi Chawl. Even presuming, both the persons Santosh and Nandkumar are dreaded criminals, the detenu is attributed with only role of providing shelter to them. Whether this act could have a bearing on the public order. The definite answer to this is in negative. Giving such shelter or protection could be a crime. At any rate, this could not have either a threat or challenge to the public order.

20. Another two incidents relate to 'A' and 'B'. 'A' has stated that in the last week of January 1997 when he was in his house, the members of the gang came to his house and gave a message that detenu has called him. He was taken to detenu who demanded Rs.2,00,000/- and also gave threats to him. 'B' on 1st January 1997 a message came on telephone as regards the payment to be made to the detenu. Subsequently, the member of the gang of detenu collected Rs.40,000/- from this person. In both these incidents, the detenu or the members of the gang carried the business secretly. There has been no exposure of the acts to public. There is no incident or part of incident which occurred at a public place to have an impact on public. Even otherwise, in these incidents, the detenu or member of the gang were aiming at the victims. Even from close scrutiny, it could not be a case that they want to set up a lesson before the public nor it was the case that by intimidating 'A' and 'B', they want to teach lesson to the public at large. The impact of the incident with whatever severity therefore could only be against the victim and hence the incident could have a bearing on law and order.

21. All these 4 incidents on their face value, could not have impact on even tempo of the public life nor they have upset the public tranquility. The Detaining Authority was wholly unjustified in taking these incidents as a basis for the impugned detention. One of the submissions before us is having regard to the notoriety of the detenu, his detention needs to be sustained in the larger interest. However, notoriety of the detenu by itself can not furnish a legal foundation to the detention. Even otherwise, such notoriety can not rectify the illegality which is inherent. The Supreme Court in the decision in the case of Kamleshkumar Ishwardas Patel Vs. Union of India and Others, reported in (1995) 4 Supreme Court Cases, Page 51 has laid down that the character of the detenu should not influence the mind of the Court while examining the correctness or legality of the order of detention.

22. What is pertinent in this matter, though earlier detention orders of Arun Gawli have been set aside by the High Court and Advisory Board, the Detaining Authority and thereafter even the authority who accorded approval have not taken necessary precaution and acted in a most casual manner.

23. More curious feature is still ahead. As per the grounds of detention, statement of Nandkumar was recorded on 12.12.1996 and Santosh Adalkar on 10.02.1997. Apart from discrepancy in formulating the grounds as pointed out by the learned Counsel for the petitioner, it is surprising that the Crime against detenu was registered as No.42/97 under Section 217 of Indian Penal Code on 19.02.1997 at about 20.45 hours. We repeatedly asked the learned Additional Advocate General as to why there was such an inordinate delay in registering the offence, but he could not offer any explanation.

24. What is pointed out to us, that pursuant to the offence as registered, at about 11.30 p.m. on 19.2.1997 the detenu Arun Gawli was taken to Agripada Police Station for investigation. A letter to that effect was issued to the petitioner. Further, in grounds of detention, vide para 3(a)(iii) what is maintained is that the detenu was found harbouring dreaded criminals in Dagadi Chawl and a case was registered against him. It is further averred in para 3(a)(v) :

"In this case you are not arrested to avoid any untoward incident leading to law and order situation."

The detention order was served on detenu at 5.15 a.m. on 20.2.1997 while he was in the Police Station. Process to detain however began after the detenu reached the P.S. By way of substitution of arrest, as inevitable conclusion, the order of detention was served. Still more ridiculous is the averment made by the Commissioner of Police, in his affidavit which is at page 236. He has referred to the registration of Crime No.42/97 against the detenu. Then, he has said :

"The detenu was not arrested with a view to avoid untoward incident in the said Crime. I say and submit that if detenu had been arrested and kept in the lock up, the residents of Dagdi Chawl who had assembled in large numbers would have indulged in large scale violence. I submit that it was therefore thought prudent to avoid arrest. I say and submit that by immediate execution of detention order and removal of the detenu from the scene, large scale violence was averted."

It is thus writ large that the detention order was passed not for the incidents referred to in the ground. They were merely an eye wash. The impugned order was thus non est.

25. Out of curiosity, we asked the learned Additional Advocate General, how a detention could have avoided a situation created by the mob which was violent and protesting against the arrest. In common parlance to unruly and agitative mob, a detention and arrest would have made hardly any difference. It indicates that the weapon of detention was misused for collateral and still more for an ulterior purpose. We may mention that failure to exercise power is no doubt injurious, but fanciful and outrageous exercise is hazardous and need to be checked with determination.

26. The peculiar feature of the case is that the detention order was served on detenu in Agripada Police Station on 20.02.1997 at about 5.15 hours. The grounds of detention were, however, served thereafter on 22.2.1997. That may not bring any infirmity or illegality. However, the petitioner has specifically through grounds 'J', 'K' and 'L' of the petition made a positive averment that statements dated 20.02.1997 of 'A' and 'B' were non existant and totally not available when order of detention was passed. The Commissioner of Police, Mumbai, in his return denied the averment and said, though statements were recorded by Sub-Inspector they were also duly verified by Assistant Police Commissioner and they were available to him when he passed the order of detention. This raises a further inquiry, as to when these statements were recorded. The learned Additional Advocate General resisted this querry and made a submission that this aspect can not be gone into in a petition under Article 226 of the Constitution of India. According to him, the Court has to examine, whether on the basis of the material supplied, the Detaining Authority has properly recorded the subjective satisfaction.

27. We are unable to agree with the submission. Whether the record was maintained in normal course of business or whether the documents supplied were genuine, the detaining authority has to scrutinise. It is a part of process of subjective satisfaction. Not applying mind to this aspect or omitting to apply would certainly create infirmity in the recording of the subjective satisfaction.

28. At this stage, the Additional Advocate General, after consulting the Commissioner of Police, Mumbai, who was present in the Court, made a statement that the proposal for detention was received by him at his residence at 4.15 a.m. Taking this into account, we have to verify, how statements came to be recorded and the matter was processed.

29. To answer our querry, it is submitted that the Police authorities of Agripada Police Station made a proclamat on to the public that whosoever is a victim of the detenu can come to the Police Station and give his statement, adequate protection will be given to them. It is further submitted that in pursuance to this proclamation, these two persons 'A' and 'B' came to the Police Station. When the proclamation was made, or how the proclamation was made, is not part of the affidavit. This has not been explained by the Police Commissioner. When we asked the method of the proclamation, they said it was not by beat of drum or by any normal method. It was by mouth to mouth.

Even accepting that such a proclamation was made and the persons 'A' and 'B' were very much apprehensive of detenu, we are unable to conceive that they reached to the Police Station mid-night when even the police people were in panic and were not in a position to arrest the detenu who was in the Police Station. We find it extremely difficult to believe that their statements came to be recorded in camera, in that situation.

30. Even further presuming, that those statements dated 20.02.1997 were recorded in early hours of 20.02.1997 after their verification by the Assistant Commissioner of Police, with other documents were entrusted to the Senior Police Inspector of Agripada Police Station. He prepared the proposal for detention. As reported and revealed from the concerned file, the proposal was first scrutinised by the Assistant Commissioner, then by the Deputy Commissioner, thereafter by Additional Commissioner and lastly by the Joint Commissioner. We are certain that all these Officers were not camping at Agripada Police Station at the relevant time. We have not been explained in affidavit, but submitted during the course of the hearing that Assistant Commissioner and Deputy Commissioner were camping at Agripada. Even presuming so that after preparation and scrutiny of proposal with entire documents by two Senior Officers, the proposal has gone to the residence of the Additional Commissioner, and thereafter to the Joint Commissioner and then reached to the Detaining Authority at 4.15 a.m. All these top Officers of Police are not residing in one campus, but as reported in different localities of Bombay. How this herculean task could be completed within a short span of 4 hours. We could not get convincing much less probable answer. We repeatedly called upon to arrange a schedule of this working, right from recording and verification of two statements. They have not given any time table as to how these five Senior Officers besides the Detaining Authority have examined the proposal after reading the entire documents, and made the proposal to reach Detaining Authority at 4.15 hours.

31. We are more surprised when on behalf of the Detaining Authority, it was claimed that the proposal was received at 4.15 a.m. at his residence at Worli. Even presuming for a minute that he was awaiting the proposal in the early morning and he was ready in the Chamber alongwith Stenographer, how he has scrutinised all the documents and formulated the grounds, dictated the same and completed every formality of typing, etc. and served the order of detention at Agripada. We could not get even probable explanation on this. And if they have completed this as a ritual right from recording of the statements of 'A' and 'B' and serving the order of detention at Agripada within 5 hours, then it is even a worst than a mechanical process. That vitiates recording of subjective satisfaction. Also this aspect renders support to the grounds - 'J', 'K' and 'L' as urged that the documents were non-existent. And if they were in existence before hand, then during the short span the detaining authority was not capable to scrutinise with application of mind. The entire process is completely farcical.

32. We find complete lack of bonafide in passing the impugned detention order by Shri Malhotra. According approval to same by the Government without examining various aspects which are apparent is without any good faith. We are reported that Mr. P. Subramaniam, Additional Chief Secretary (Home), acted on behalf of the Government to accord the approval. He has not examined the matter with desired seriousness. To these Officers, it appears, to maintain public order is fickle game and detention is playful thing. Mr. Malhotra, the Commissioner of Police, Mumbai - the Detaining Authority and Mr. P. Subramaniam, Additional Chief Secretary (Home) are accountable for their ill functioning while holding the public office.

33. It was one of the submissions that if the order suffers from lack of good faith or want of bonafide, it could be set aside, however, the Officer could not personally be held in any way responsible for the consequence thereof. The Supreme Court has aptly dealt with the situation in the case of Common Cause, a registered Society Vs. Union of India and others, reported in (1996) 6 Supreme Court Cases 530, and we can usefully reproduce the observation. :

"No public servant can say, you may set aside an order on the ground of malafide but you cannot hold me personally liable. No public servant can arrogate to himself the power to act in a manner which is arbitrary."

We, therefore, hold that both these Officers are personally liable for exemplary costs for mal-functioning, not exercising authority in good faith and with desired sense of responsibility. As the order of detention is not sustainable on the grounds as discussed, we do not propose to deal with the other grounds raised on behalf of the detenu.

34. Mr. Bobde, the learned Counsel appearing for the petitioner, further canvassed that the order of detention is per se illegal and the detenu is deprived of personal liberty. He is therefore entitled to the compensation. In view of the peculiarity of the circumstances as discussed, we do not propose to entertain the claim.

35. We place on record the appreciation of services rendered by Amicus Curiae Shri W. G. Charde, Advocate.

36. During the course of the hearing of instant petition, what is revealed is shocking and seriously perturbing. In view of this, it would be expedient for the State Government to probe into the various aspects and circumstances in depth.

37. In the result,

(1) The impugned order of detention dated 20.02.1997 passed by the Commissioner of Police, Mumbai, is hereby quashed and set aside. The detenu be set at liberty forthwith, if not required in any other case.

(2) The State Government is directed to launch prosecution against S/Shri D. M. Jadhav, M. G. Ghorpade and L. T. Samudrawar and other Jail Officials, in case, if any, for the offences punishable under Sections 120-B, 217 and 218of the Indian Penal Code and also under any other relevant provisions of law, either independently or in the prosecution pending against the detenu.

(3) Shri P. Subramaniam, Additional Chief Secretary (Home), Shri S. C. Malhotra, Commissioner of Police, Mumbai and Shri M. G. Narvane, Inspector General of Prisons, Pune shall pay exemplary costs of Rs. 25,000/- each.

(4) S/Shri D. M. Jadhav, M. G. Ghorpade and L. T. Samudrawar, Superintendents of Jail, shall pay exemplary costs of Rs.15,000/- each.

(5) The Government of Maharashtra shall deposit the entire exemplary costs payable by these Officers as indicated in this Court within a period of 10 days and the State Government shall thereafter recover the costs so paid from the respective officials, in accordance with law.

(6) The Government shall pay, by way of remuneration, Rs.5,000/- to Shri W. G. Charde, Advocate, who acted as an Amicus Curiae, within a period of 10 days.

(7) Petition is disposed of accordingly.

Order accordingly.