Wednesday, December 6, 2023

Allahabad High Court quashes detention order passed by Lakhimpur Kheri DM under NSA over Facebook post on Babri Masjid

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The Allahabad High Court has quashed a detention order passed by the District Magistrate, Lakhimpur Kheri under the National Security Act, 1980 against a man for his alleged post on social media on Babri Masjid.

The Division Bench of Justice Ramesh Sinha and Justice Saroj Yadav passed this order on Tuesday, while hearing a Habeas Corpus filed by Mohd Faiyyaz Mansuri through his next friend/brother Mohd Siraj, under Article 226 of the Constitution.

The writ petition challenged the order of detention dated September 17, 2020 passed by the District Magistrate, Lakhimpur Kheri under Section 3 (2) of the National Security Act, 1980, the order of approval dated September 25, 2020 passed by the Under Secretary, Home Department, Government of Uttar Pradesh under Section 3(4) of NSA and the order of confirmation dated October 28, 2020 passed by the Under Secretary, Home Department, Government of Uttar Pradesh under Section 12(1) of NSA.

During pendency of the writ petition, the State Government had extended the detention of the detenu/petitioner for a further period of six months from the date of detention (September 17, 2020), by order dated December 8, 2020, which is also challenged by the detenue/petitioner by means of amendment.

According to the complaint filed by one Sagar Kapoor, resident of Bazarganj, falling under Police Station Mohammadi in Kheri district, on August 5, 2020, at around 2039 hrs, Mohd Faiyyaz Mansuri had posted a provocative post with the intention of provoking the sentiments of Hindu society on his Facebook page, to which one Samreen Bano made indecent comment on the same day, which was supported by Mohd Arif, Mohd Shadab and three-four other persons. The complainant said the accused allegedly attacked the Hindu religious sentiments, tried to increase religious fervour, threatened to kill and also tried to disturb peace in the area.

On the basis of this report, an FIR under Sections 153A, 292, 505 (2), 506, 509 IPC and Section 67 of the Information Technology (Amendment) Act, 2008 was registered at Police Station Mohammadi, District Kheri on August 6, 2020. On August 8, 2021, the detenue/petitioner was arrested in connection with the FIR and sent to jail.

In this regard, a bail application on behalf of Mohd Mansuri was filed before the Additional Chief Judicial Magistrate, Outline Court, Mohammadi, Kheri, which was rejected by the Court on September 8, 2020. Subsequently, a bail application was filed before the Sessions Court, Kheri, on which September 18, 2021 was fixed for hearing.

It was argued that there was a possibility that the detenue/petitioner, if released on bail, shall again indulge in a similar crime, which shall be prejudicial to maintenance of the public order. Further, there is a strong possibility of violence erupting between two communities, which could disturb the public order.

It was stated that on the basis of the aforesaid incident, the detaining authority felt satisfied that in order to prevent the detenu/petitioner from acting in any manner prejudicial to the maintenance of public order, it became necessary to pass orders for his detention.

Challenging the order of detention as well as consequential orders, Sushil Kumar Singh, Counsel for the detenue/petitioner argued that it has been alleged in the FIR registered against his client at Police Station Mohammadi, District Kheri that Mansuri had posted one derogatory message on the Facebook wall through his ID, on which one Samreen Bano had made indecent comment on God and Goddess of the Hindu community.

He further argued that police, while registering the FIR and implicating the detenue/petitioner in the said incident, could not verify and identify the verification report from Facebook Company to ascertain the fact that by which mobile IMEI number, the offending material was uploaded on Facebook as mandated under Section 65-B of the Indian Evidence Act.

He also argued that police has filed a charge sheet against Mansuri in the FIR without verifying the factum or collecting evidence, as mandated under Section 65-B of the Indian Evidence Act to connect a person with a crime related to the information technology.

The Counsel for the detenue/petitioner said that in the FIR, four persons were named as accused and the main person Samreen Bano, who is allegedly said to have made abusive comments, has not been arrested till date. Similarly, Mohd Arif and Mohd Shadab have also not been arrested by the police, which clearly establishes that it was not a stringent situation as there was no reason to invoke the stringent provisions of NSA by the District Magistrate solely against Mansuri.

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The Counsel for the detenue/petitioner submitted that the provision to Section 3 (2) of NSA provides that no order passed under Section 3 (2), shall, in the first instance, exceed six months and if the State Government is satisfied that the order is required to be passed for a further period, it may extend the period of detention by such period not exceeding three months at any one time and in no case, the period of detention would exceed the period of 12 months in total.

While supporting the order of detention and the consequential orders, the Additional Government Advocate appearing on behalf of the State/respondents, vehemently argued that the complete procedure as provided in the NSA has been adopted. The detenue /petitioner was served the orders promptly.

The State Government approved the detention order well within 12 days as provided under Section 3 (4) NSA. The State Government forwarded the copy of the detention order to the Central Government within 7 days from the date of approval as required under Section 3 (5) of NSA.

The AGA further submitted that in exercise of powers under Section 3 (3) of the NSA, the State Government is empowered to pass the detention order at the first instance for 3 months and if satisfied to extend such period from time to time by any period not exceeding 3 months at any one time. The maximum period of detention for which any person may be detained in pursuance of any detention order which has been confirmed under Section 12 of NSA shall be 12 months from the date of detention.

Additional Government Advocate said that the Act/offence committed by the detenue/petitioner clearly violates the rights of other religion and is in the nature of insulting the religious sentiments of one community. The calculated tendency of this aggravated form of insult is clearly to disrupt the public order and the section.

AGA has further said that there is no illegality in the order of detention. The petitioner’s activities are prejudicial to the maintenance of the public order. The subjective satisfaction of the Detaining Authority is well founded, based on clinching material on record. Hence, the writ petition is liable to be dismissed.

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On examining the grounds of detention, briefly referred to herein-above, on the touchstone of the legal position as emerging from the aforementioned decisions, we are of the considered view that the activities relied upon by the Detaining Authority to come to the conclusion that in order to prevent the petitioner from acting in any manner prejudicial to the maintenance of public order, it became necessary to pass order for detention of the detenu/petitioner, cannot be said to be mere disturbance of law and order.

As mentioned in the ground of detention, the activities of the detenue/petitioner pertains to disturbing the communal harmony of the Society. The posting of the provocative message through his Facebook wall, as referred to herein-above, strikes at the root of the State’s authority and is directly connected to ‘public order’. This act of the detenue/petitioner was not directed against a single individual, but against the public at large having the effect of disturbing the even tempo of life of the community and thus breaching the ‘public order’.

The Court, therefore, has no hesitation in holding that the instance of petitioner’s activities enumerated in the grounds of detention, clearly show that his activities cover a wide field and fall within the contours of the concept of ‘public order’ and the Detaining Authority was justified in law in passing the impugned order of detention. Hence, there is no substance on the plea of the petitioner in this regard, the Court said.

“From the affidavit submitted by the Under Secretary, Ministry of Home Affairs, Government of India, it transpires that the petitioner’s representation dated September 29, 2020, which was forwarded by the State Government letter dated October 06, 2020, has been received in the second concerned of the Ministry of Home Affairs on October 12, 2020 but it could not be processed between October 13, 2020 to October 20, 2020 due to 72 numbers of receipts including 12 numbers of the representations from various State Governments have been received after relaxation of few Covid norms and further the dealing hand fell ill on 14th October, 2020 and was on leave on 15th October, 2020 and on 17th and 18th October, 2020 were Saturday and Sunday.

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We have given out anxious consideration whether this could have been a proper explanation for withholding the representation. In our considered opinion, the Central Government was at fault. It appears that the Central Government though has received the petitioner’s representation on october 12, 2020 but it could only be processed on october 21, 2020 when it has been placed before the Under Secretary and day-to-day process of the file w.e.f. october 13, 2020 to october 21, 2020 has not been properly explained in the affidavit”, the Court noted.

“For the reasons aforesaid, the court of the view that the plea of the detenue/petitioner that there is delay in forwarding the petitioner’s representation on the part of the respondent no.1 (Union of India), has substance and on this count alone, the impugned detention order is liable to be quashed”, the Court observed while allowing the petition.

The Court ordered that the impugned order of detention dated September 17, 2020 and the consequential orders are hereby quashed. The detenue/petitioner is ordered to be set at liberty by the respondents forthwith unless required in connection with any other case.

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