3.9. The General Public at the place of residence of the petitioner refused to believe this story. There had been public support in favour of a Computer Professional is residing along with his wife and two children and doing self employment. There was every scope for the Detenue to secure Bail in the said Case. Thus, with malafide intentions, to prove his superiority, had procured the help of Respondent No-4 NGO, got a few false letters written by them, and secured the Order for Preventive Detention, which is impugned herewith.
3.10. While the husband of the petitioner was a remand prisoner in the above stated case, he was detained under Section… of the Gujarat Prevention of Anti-Social Activities Act, 1985; (PASA Act), by an order of detention dated … made by the Director General of Police, Gujarat, the 2nd respondent herein. The main grounds of detention are that husband of the petitioner was indulging in offences under Section 67 of the Information Technology Act, 2000, and Sections 4 and 6 of the Indecent Representation of Women (Prohibition) Act, 1986.
3.11. On receipt of the detention order in the District Prison,…. District, Gujrat; the husband of the petitioner informed the detaining authority that he is not able to read and write the Regional Language Gujrati, therefore, he is not in a position to effectively represent against the grounds of detention supplied to him. In reply to this letter, the 2nd respondent stated that the statement of the husband of the petitioner that he does not read and write Gujrati is false. At any rate, to be on the safer side, he supplied to him the copies of the grounds of detention and the annexures enclosed therewith in English. The letter of respondent no-2 in which it is stated that the detenue is telling lie is annexed herewith and marked Annexure P-…., In this document, at the second para the alleged words are written, that place is marked as “Point-A” by the Petitioner, for the kind perusal of this Hon’ble Court.
3.11.1. Regarding the “Point-A” from the Annexure P-… cited above, the petitioner begs to submit that, the petitioner and her husband are not originally from the State of Gujarat. Our forefathers are from Maharashtra. Due division of States in India based on Language, a few border districts were given to Maharashtra and Gujarat, in that manner, many Maharashtrian families had commenced to reside at the State of Gujarat, and the fore-fathers of the petitioner and her husband are among them. Consequently, the mother-tongue is different and we had not learned Local Language to read and write. It is pertinent to mention that, even if the words “your statement that you do not know Gujarati language is false” can be removed from the entire letter, still that is complete and no reason can be adduced by the respondents to write those words in the said letter. On the other hand, those words gives an impression in the mind of Petitioner and her husband who is detenue that, respondents were pre-determined that, the Computer Engineer accused of Pornography etc should not be at large. From those words, it is clear that, the respondent no-2 suffered from “pre-conceived notion bias” in this Cause. Thus the said individual ought to have refused to handle this file.
3.12. Representation to the detaining authority as also to the State Government by respondent no-1 are enclosed herewith for the kind perusal of (respondent No. 1) having failed the petitioner has preferred this writ petition. An attested true copy of the Representation, and rejection order passed this Hon’ble Court as Annexures P … and …
3.13. That a complaint made by the husband of the petitioner to the Vigilance Department of the Gujarat Police against the respondent no-5 is pending, which had not been considered by the respondent No-2 prior to passing the impugned order, consequently his detention order suffers from the vice of non application of mind to vital material. An attested true copy of the vigilance complaint, along with it’s Annexures and Proof of Delivery are enclosed herewith for the kind perusal of this Hon’ble Court as Annexures P… (Colly). (The abbreviation colly means collectively – Author).
3.14. That the sponsoring authority had placed irrelevant and extraneous material before the detaining authority some of which have been considered by the detaining authority, hence, his subjective satisfaction is vitiated by the consideration of irrelevant and extraneous material. The detaining authority has taken into consideration three letters one of which is dated … written by one Ms.xxx. The said letter states that the husband of the petitioner, the person who is undertrial prisoner, has indulged in heinous crime, hence the police should take all possible steps to get him punished and to see that he is not released on bail. A copy of this letter has been furnished to the detenu. This is not a letter which was either recovered during the course of investigation or a statement made to the investigating officer, therefore, such letter from a pro bono publico is likely to prejudice the mind of the detaining authority. The detaining authority is not entitled to look into any material which is not collected during the course of the police investigation. Prior to filing this Habeas Corpus Writ petition, the Petitioner had issued a Registered Letter to the said lady named Ms.xxx, at the address written in the Complaint, which remained in the Postoffice for one week and returned without any remarks on the envelop. The Postman is expected to either deliver the Regd Letter or Write that to whome he had intimated the arrival of Regd Letter. Both are not done. Postman should write that, “rejected by the addressee/ her agent” or “refused to collect despite intimation by the addressee/ her agent”. Because of this reason, the said lady is not made a respondent in this Petition, to prevent delay. The original of the said Regd Envelop which is not opened by the petitioner, and An attested true copy of the letter, along with it’s Annexures are enclosed herewith for the kind perusal of this Hon’ble Court as Annexure P… (Colly).
3.14.1. In the Internet, in the Google Search, the Petitioner had typed the name of the above named Ms.xxx, and found out if there is any previous knowledge, and 100 (hundred only) materials are found. The print out of those 10 pages of Google and prints out of each such “links” are enclosed in “original” before this Hon’ble Court as Annexure P-… They are total 310 pages. From this it can be seen that, she is not having time to invest upon her own children or grandchildren, and have a lot of income from her ancestral property, and her main work is making grievances about others as a “Pro bono publico”. The petitioner begs to submit that, getting a letter written and sending by Regd Letter to her, doing Google search and taking prints of that many pages, taking their large number of copies etc are causing diversion of fund meant for the children of the Petitioner and her husband. Thus the Ms.xxx may be located through CBI enquiry and she may be asked to refund the exact expenditure incurred in her name.
3.15. The detaining authority had considered other extraneous material that is, the detaining authority has considered two other letters written by respondent No-4, which is a friend of the Police Officer respondent no-5. one of which is dated ….. written by one Mrs.kkk and another letter dated …. written by Mrs.lll to the police authorities. The signatories of these letters claiming to be office bearers of the respondent no-4 women's organisations had pleaded with the police authorities to take steps to see that the detenue is not released on bail and if the police authorities failed to do so, the members of their association would go on 'Dharna'.
3.15.1. In the Internet, in the Google Search, the Petitioner had typed the name of the above named NGO which is Respondent No-4, and it’s office bearers who are the signatories, and found out if there is any previous knowledge, and 500 (hundred only) materials are found. The print out of those 50 pages of Google and prints out of each such “links” are enclosed in “original” before this Hon’ble Court as Annexure P-… They are total 650 pages. From this it can be seen that, they are not having time to invest upon their own children or grandchildren, and have a lot of income from her ancestral property, and their main work is making grievances about others as a “Pro bono publico”.
3.16. That some of the documents referred and relied upon in the grounds of detention have not been supplied to the detenu, hence, there is a non-communication of grounds of detention. Through Right to Information Applications, the petitioner could get copies of those documents, which are enclosed herewith and marked Exihibits P-… to … From the perusal of these documents, and from the perusal of the detention order it can be seen that, the detaining authority has made a reference to the same in the course of narration of fact, and he has based or founded his subjective satisfaction on the contents of the said documents. Thus it was necessary for the detaining authority to give copies of these documents.
3.17. There is a total non-communication of grounds and the order of detention inasmuch as the same is supplied to him in a language not known to the detenue, who is the husband of the petitioner. He submitted even though some of the copies of the document in Gujarati was furnished to him on his demand on date…. the same was far beyond the required time period and because of this belated supply of the documents he was prevented from making an effective representation to the detaining authority.
3.18. The representation made to respondent no-1, the State Government was decided with a lot of unexplainable delay. It was send on date….., which was received by the office of respondent no-1 on date…, it was decided on date… Attested true copies of the Representation and Decision, along with their Annexures are enclosed herewith for the kind perusal of this Hon’ble Court as Annexure P… (Colly).
3.18.1. The grievance that, a few Gujarati Transcripts translation were not provided had been written at para no… of the Representation, which had been rejected by the Respondent no-1 in the following words: “there are some Gujarati transcripts in the grounds of detention which were not translated and given to him when the translated copies of other documents were given. I had perused these Gujarati transcripts which indicates the conversation the petitioner had in Gujarati with others. The statements of those persons who conversed with the petitioner have been supplied to the petitioner which contains the English translation of these very words. There fore, it is futile to contend that non translation of the actual words spoken by the petitioner himself could have prejudiced the petitioner in making his representation”. The said rejection is going contrary to the law laid down by this Hon’ble Court in 2005 Legal Eagle (Cri) 526 : (2005)8 SCC 793, titled Sri Jayendra Saraswathy Swamigal Vs. State of Tamil Nadu, at para 25, it may be read: “translation of deposition of a witness apart from being a difficult job, often does not carry the same sense which the witness wants to convey”. Those words were got translated by three different Advocates and along with their Certificate of True Translation are enclosed herewith for the kind perusal of this Hon’ble Court as Annexure P… (Colly). From this it can be seen that, meaning of the conversation had completely differed by those 3 translations. Now the Detenue, the petitioner and this Hon’ble Court may be in confusion, which meaning had been attributed to these words by the Respondents.
3.19. That the State Government Respondent No-1 was prejudiced by the opinion rendered by the detaining authority, respondent No-2. The reason for this allegation is, the State Government sought para wise remark from the 2nd respondent while dealing with the Detenue’s representation. In response to that the 2nd respondent while sending his remarks in the last para stated that the detenue's representation may be rejected. This recommendation has weighed in the mind of the confirming authority to reject petitioner's representation. In this case, where the Detaining Authority the 2nd respondent already had “preconceived notion bias” against the detenue, and he must have done every efforts to influence the Officer who passed the order at the 1st Respondent to reject the Representaion of the detenue. Thus the Independence of Authorities and Superior and Subordinate Officers are violated in this cause.
4. GROUNDS:- Following are the grounds on which the Habeas corpus is prayed:
4.1. Because merely on consideration of the other criminal case which is under investigation and are yet to be decided the detaining authority cannot come to his subjective satisfaction that the detenu was a dangerous person who habitually indulges in committing offences referred to in section 2(c) of the PASA Act.
4.2. Because it is also a vague statement that the detenu is coming in the way of maintenance of public order. Similarly the statement of the witnesses mentioned in the grounds of detention are also very vague. In such circumstances, it is not at all possible for the detenu to make a proper and effective representation except merely denying the alleged grounds of detention as mandatory required under article 22(5) of the Constitution of India. This Article confers on a detenu two fundamental rights namely, (1) that the detaining authority has to communicate to the detenu the grounds as early as possible on which the order of detention has been made and secondly the right to make an effective representation against the said order. This obviously requires that the grounds must not be vague but must be specific, relevant in order to enable the detenu to make an appropriate and effective representation against the same before the Advisory Board as well as before other authorities including detaining authority. The grounds and the averments made in the grounds which were served on the detenu are vague and as such they are violative of the article 22(5) of the Constitution of India.
4.3. Because the criminal cases mentioned in the grounds of detention do not refer to any dangerous, harmful or adverse act or alarm which gives rise to a feeling of insecurity for the general public amongst the persons of a locality. The criminal cases are confined to certain private individuals and it is merely a law and order problem and it has nothing to do with maintenance of public order. Its reach and effect is not so deep as to affect the public at large. It does not create or tend to create any panic in the mind of people of particular locality or public in general nor it affects adversely the maintenance of public order. There is nothing to show that the above activities of the petitioner have effected or tended to affect the even tempo of life of the community. An act may create a law and order problem but such an act does not necessarily cause an obstruction to the maintenance of public order.
4.4. Because the essential concept of preventive detention is that the detention of a person is not to punish him for something he has done but to prevent him from doing it. The basis of detention is the satisfaction of the executive of a reasonable probability of the likelihood of the detenu acting in a manner similar to his past acts and preventing him by detention from doing the same.
4.5. Because before an individual can be asked to occupy his seat within the definition section 2(c) of the Act as a "Dangerous person" there has to be a satisfaction that he habitually commits or attempts to commit or abet the commission of the offences mentioned in the said subsection.
An individual will never emerge as a habitual offender, and can never be branded as such, on the basis of the cases "which are under investigation and yet to be decided"
4.6. Because there are no material either through some documents or through some statements from the public to show that due to the alleged incident of cyber pornography, there has been a feeling of insecurity among the people who are residents of the local area. Similarly, no single materials has been placed before the detaining authority to indicate that even tempo of life was affected or that the people in the locality got afraid or felt insecure or that there was public disorder. Nobody speaks about the apprehension that even tempo of the community got endangered In the absence of any material to show that there was disturbance to the public order in the public place and the people got panic due to the said incident.
4.7. Because the preconceived notion bias in the mind of respondent no-2 detaining authority was having such a strength that, it had the capacity of foreclosing the mind of the Detaining Authority.
5. The Petitioner fears Dharnas by the Respondent No-4 NGO, if the present Writ Petition will be filed before the Hon’ble High Court of Gujarat. This Hon’ble Court have the territorial jurisdiction and subject matter jurisdiction to entertain this Petition.
6. Non filing: the Petitioner begs to submit that, he had not filed any other petition for the similar relief, before any other Court.
7. PRAYERS:- The Humble Petitioner prays that, this Hon’ble Court may be pleased grant the following reliefs:-
7.1. Direction may be issued that, body of the detenue/ husband of the Petitioner may be produced before this Hon’ble Court, and set him at liberty forthwith, or send him back to prison as a Remand Prisoner, if the Bail is already not granted.
7.2. To declare that the detention of the detenue is illegal, unjust and improper.
7.3. Costs may kindly be awarded before this Hon’ble Court.
7.4. Compensation and damages may kindly be awarded.
7.5. Other and further relief, according to facts and circumstances, in the interests of Justice may kindly be allowed.
AND FOR THIS ACT OF KINDNESS THE PETITIONER WILL PRAY, FOR EVER, DUTY BOUND.
Place: New Delhi.
Date:-…..
Sd/- Petitioner
Through
Advocate.
VERIFICATION:-
Verified that the contents of above Habeas Corpus Petition was read and signed by me, which are true and correct to my personal knowledge and belief and I believe them to be true and correct.
Place: New Delhi.
Date:-…..
Sd/- Petitioner
AFFIDAVIT, List of Dates, Index etc a lot of other documents are also to be prepared, which are not prepared with this Specimen.
================================================
CHAPTER 19 : BAIL APPLICATIONS AND ANTICIPATORY BAIL
Opportunities to obtain Bail:-
1. When arrested by Police for a Bailable Offence: the Police itself can release the accused on Bail. For this, normally no Application is demanded, but only Bail Bond and Surety Bond will be required. It is the same case for Ticket-less travel. Reason for this Bail is, the accused need not be kept in the Jail with Hardened criminal, but he should be willing to come for Trial. It is also called Police Bail.
2. When arrested by Police for Non-Bailable Offence, within 24 hours of arrest (= in practical sense, persons are normally illegally detained without any Record or DD No. Entry. After deciding to produce them in the Court only their Arrest is Recorded by the Police). And they will be produced in the Judicial Magistrate or Executive Magistrate’s Court, depending upon the nature of Arrest. The said Accused, now Under-trial, can Apply for Bail in the Magistrate Court. In the Cases/ Offences triable by the Magistrate Court, it can grant Bail. Otherwise it is the Sessions Court which can grant Bail. Bail Applications can be filed as Original Bail Applications in the High Court also, however they are not entertained unless special reasons are shown as why Sessions Court was not approached. In such cases, the Bail will be granted by the Court.
3. In offences of Contempt of Court, or any offence committed in the presence of a Court: the Court/ Judges themselves will arrest the accused and either send him to Police on Police Custody for further investigation, or send him to Jail on Judicial Custody pending investigation or Release him on Bail for appearing in the Court to stand trial.
4. When an accused person who is undergoing trial, and will default or became absent; depending upon the nature of Offence, the Court will issue Summons, Bailable Warrant (BW) and Non-Bailable Warrant (NBW). If the BW is issued, the Police itself can give Bail. When the NBW is issued the Police will arrest the person/ under-trial, and produce him in the Court. It is up to the Court, to either send him to Jail pending Trial or give him Bail.
5. BAIL to WITNESSES:- Whether Civil Court or Criminal Court, summons a person as a witness to appear before it, either to give oral evidence or produce material objects/ Articles or Documents; that person is duty bound to appear. Otherwise, the Bailable Warrant (BW) and Non-Bailable Warrant (NBW) will be issued to produce the said Witness. There is power to attach and sell his property, impose fine etc. If the BW is issued, the Police itself can give Bail. When the NBW is issued the Police will arrest the person/ under-trial, and produce him in the Court. It is up to the Court, when to release him. In civil courts, the Defendant can escape without coming to courts, but the Witness is bound to appear. When orders are passed punishing the Witnesses, at first they can Appeal, and if the Appeal is not allowed, they can file Revision Petition in the High Court. It means, if Civil Judge had punished a witness u/s 32 Code of Civil Procedure, 1908, in the District Judge’s Court the Appeal can be filed and if that is not successful, in the High Court the Revision Petition can be filed.
6. Anticipatory Bail:- In the Criminal Procedure Code, 1973, these words are not written. The words used are “Direction for grant of bail to person apprehending arrest”, at the Sec 438. It is only during this Bail, the accused is at large (= liberty, not in Police or Jail Custody). The law governing this type of Bail is separately explained, in a manner which will help Drafting of Pleadings. The State of UP had omitted this Section, means if the FIR is filed in any UP Police Station, there is no Anticipatory Bail. Criminal Law is the State Subject vide Constitution of India. Thus various State Governments had amended this Section to complete non-identification with the Central law. Anticipatory bail cannot be granted in relation to a case in which accusation of commission of offence under S.C. & S.T. Act has been alleged.
6.1. In Political cases, when a person is accused to have attacked the Politicians and the said Politician will be a Prosecution Witness, normally the STUNT under this Section is used to be carried out by the said Politician to prevent escape from giving evidence as a Witness, and ultimately one day when he will give evidence, his evidence will be believed saying he did not jump to testify against the person who attacked him.
7. DEFAULT CLAUSE BAIL:- When a person is produced with an allegation of non-bailable offence, the Magistrate can either give him Bail immediately or send him to Police custody for Recovery of Articles or Disclosure Statements or to Jail as an Under Trial Prisoner, in which it is called J/C = Judicial Custody. Under sec 167(2)(a) of Criminal Procedure Code, 1973, the order can be made only for 15 days at the same time. Thus, each undertrial prisoner had been getting an opportunity to see the outside world once in 15 days. Later the Law changed that, Magistrates started to visit the Jails to pass this order. Now the present condition is, through Video Conferencing also this order started to be passed. Under this section, on the expiry of 60 days or 90 days, depending upon the nature of offence, if the Charge Sheet or Challan is not submitted, the accused is eligible to get Bail. For that even separate Bail Application is necessary.
7.1. For a student of Pleadings, it is necessary to know that, Default ground Bail is a provision for Legal Research and Pleadings preparation. Even one hour delay is sufficient to grant Bail. If the Bail Application on this ground is filed at 10 am of the 60th or 90th day, and the Charge Sheet is filed at 10.00.01 am, after one second, and the Bail Application will be decided after a few days of getting the charge sheet in hands; the legal fiction says, the Accused is eligible to get Bail.
8. Doing research on Bail Judgements will give Paining-humour as follows:- (1) There are persons who have no livelihood and relatives outside world, and Hospitals cannot admit them, thus they get arrested by the police and never ask for Bail. (2) Persons from not happy families or back ground, who may commit crimes afresh, thus the Judges do not give them Bail. (3) Persons who had been granted Bail but have no money for Bail Bond and Surety Bond, thus not released/ set at large. (4) Persons of Kerala come to work at Delhi, and get arrested. The relatives of Kerala want to stand sureties, which the Delhi Courts do not want to accept, thus they will start getting rotten in Jail. AND (5) Persons have no shortage of money to file repeated Bail Applications, and give bribe to Police Personnel to get every loop-holes to ask Bail. In each of these points there are a lot of Drafting required.
9. CANCELLATION OF BAIL:- Either the Government or the Victims of crimes can move Applications for Cancellation of bail. This Application should be moved either before the Sessions Court or High Court, u/s 439(2) Cr PC. It means, whether Special Executive Magistrate Court, or Police Bail, or bail given by Magistrate Court; for the same offence the person can be arrested again only when the Sessions Court of High Court will cancel his bail under this Section.
9.1. If the Sessions Court cancels the Bail, against that the Accused can file Criminal Revision Petition in the High Court.
10. Bail Applications: Common point for all the Bail Applications: Bail Application can be filed/ moved any number of times, before the same Court, either for the same Grounds or different grounds. However, from the 2nd Bail Application onwards, a separate para should disclose the previous bail applications and Order's copies of their dismissal. The family circumstances of the accused persons are not considered as a “grounds” for the granting or denying bail, being the Larger good in public interest, keeping the accused from other normal people is superio