Janu vs State Of U.P. And Others
2012 Latest Caselaw 2450 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
RESERVED
 
Habeas Corpus Writ Petition No. 57574 of 2011.
 
Janu                                                          .... Petitioner.
 
Versus
 
State of U.P. and others                            .... Respondents.
 
Hon'ble Dharnidhar Jha, J.

Hon'ble Ramesh Sinha, J.

Heard Sri Mohit Singh, learned counsel for the petitioner, Sri Nitin Gupta, learned counsel for respondent no.4 and Sri Sudhir Mehrotra, learned A.G.A.

Counter and rejoinder affidavits have been exchanged between the parties.

By means of this petition, petitioner has challenged the detention order dated 4.8.2011 passed by the District Magistrate Kannauj, respondent no.2 by which the detaining authority in exercise of its power under Section 3 (2) of the National Security Act, 1980 (hereinafter referred to as the Act) has ordered the petitioner to be detained in district jail of Kannauj under respondent no.3 on the grounds of detention as required under Section 8 of the Act. The detention order has been passed by respondent no.2 on the basis of single incident which is alleged to have taken place on 5.4.2011 at about 4 p.m. in which minor daughter of Smt. Parveen wife of Gaffar, namely, Mantasha aged about eight years had become untraceable while she was playing outside the house and her mother and other neighbours had went in search of her but her whereabouts could not be known to anyone. Smt. Parveen lodged a missing report at police station Kotwali Kannauj regarding missing of her daughter which was registered by G.D. No. 72 at about 20:45 hours at the concerned police station. Thereafter on 6.4.2011 at about 9:45 p.m., the informant Mohd. Irfan S/o-Mohd Gaffar lodged a First Information Report at the said police station that his sister Mantasha, who was playing outside the house at about 4 p.m. had been abducted and kidnapped on 5.4.2011 for which his mother Smt. Parveen and other family members had tried to search her but she could not be traced and her mother had lodged a missing report on 5.4.2011 at the said police station. On 6.4.2011, the informant along with other neighbours was going in search of Km. Mantasha then on the way he met Imran and Sanu, who were residents of his locality who told him that Janu S/o-Mohd Din, who was his neighbour had been seen taking away Km. Mantasha on a motorcycle towards Boddhapurwa. The petitioner often used to tease the girls and also used to tease and harass the sister of the informant.

On the written report of the informant, an F.I.R. was registered at police station Kotwali Kannauj against the petitioner as Case Crime No. 218 of 2011 under Section 364, I.P.C. The petitioner is said to have been arrested on 6.4.2011 at about 11:30 hours and on his interrogation, he confessed his guilt that he had some love affairs with one Naznin for the last 3-4 months and if any information was to be given to Naznin then it was given through Km. Mantasha and after some time Mantasha refused to continue obliging the petitioner and used to tell him that she would complain about the same to her family members. On 5.4.2011, when Mantasha was playing outside her house at about 3-4 p.m., the petitioner called her on the pretext that he would take her for a joyride but the intention of the petitioner was not good as he on the said pretext took her and killed her and had thrown her dead body in the Kali river. The detaining authority further found from the confessional statement of the petitioner that the petitioner had taken the deceased Km. Mantasha on his motorcycle near the Kali river where the string of her Salwar was taken out by the petitioner and he strangulated her to death and thereafter had thrown the dead body of the deceased in the Kali river. On the pointing out of the petitioner, the dead body of the deceased Km. Mantasha, her slippers and Salwar, etc. were recovered from Kali river for which a recovery memo was prepared by the police on 6.4.2011 at about 11:45 hours.

Due to this brutal act of the petitioner, there was insecurity felt in the locality Bazaria and nearby areas in the mind of the people and due to which the people had stopped their children from going out of their houses and people did not even allow their children to go to school. There was a pal of terror in the society as well as the tempo of life in the community was disturbed which amounted to disturbance of public order. This heinous act of the petitioner was also published in the local newspapers which also highlighted the terror amongst the people from the act of the petitioner.

The petitioner had moved a second bail application before the competent court on 28.7.2011 for being released on bail in Case Crime No. 218 of 2011 under Section 364, 302, 376, I.P.C. and there was every likelihood of his being released on bail due to which the detaining authority being satisfied that in order to prevent the petitioner from committing such activities in future and that it was desired that the detention order be passed against the petitioner in order to maintain public order, issued the impugned order.

The Superintendent of Police, Kannauj vide his report dated 31.7.2011 submitted to the respondent no.2, the District Magistrate, Kannauj recommended for detaining the petitioner under the Act in order to prevent him from indulging in such activities in future. The detaining authority after being satisfied that the detention of the petitioner was necessary for maintaining public order, in exercise of his power under Section 3 (2) of the Act, passed the detention order against the petitioner.

The detention order was served on the petitioner on the same day through respondent no. 3 on 5.8.2011 along with the grounds of detention in district jail, Fatehgarh. The detention order passed by respondent no.2 was approved on 11.8.2011 by the State Government in exercise of its power under Section 3 (5) of the Act and the same was also communicated to the petitioner on 13.8.2011 when the communication was made to respondent no.3 by way of Radiogram. The petitioner submitted his representation on 29.8.2011 which was forwarded to the office of District Magistrate, Kannauj on 30.8.2011. The representation of the petitioner was rejected by the State Government on 15.9.2011. The petitioner appeared before the Advisory Board on 24.8.2011. On 12.9.2011, the State Government confirmed the detention order for 12 months in exercise of its power under Section 12 of the Act.

The sole ground canvassed by the learned counsel for the petitioner for challenging the detention order passed against the petitioner was that the detention order is based on a solitary incident and the incident in question does not amount to disturbance of public order as the same relates to a law and order problem hence the detention order be quashed on this ground alone. In support of his argument, learned counsel for the petitioner has placed reliance on a judgment of the Apex Court in the case of Yumman Ongbi Lembi Leima Versus State of Manipur and others reported in (2012) 1 SCC (Cri.) 701 in which it was held that a single, incident however heinous is insufficient for passing detention order and has drawn the attention of the Court towards para-27 of the said judgment which is quoted hereinbelow:-

"As has been observed in various cases of similar nature by this Court, the personal liberty of an individual is the most precious and prized right guaranteed under the Constitution in Part III thereof. The State has been granted the power to curb such rights under criminal laws as also under the laws of preventive detention, which, therefore, are required to be exercised with due caution as well as upon a proper appreciation of the facts as to whether such acts are in any way prejudicial to the interest and the security of the State and its citizens, or seek to disturb public law and order, warranting the issuance of such an order. An individual incident of an offence under the Penal Code, however heinous, is sufficient to make out a case for issuance of an order of preventive detention."

Learned counsel has further relied on a judgment of the Apex Court in the case of Rekha Versus State of Tamil Nadu through Secretary to Government and others reported in (2011) 2SCC (Cri.) 596 and has drawn the attention of the Court towards para-27 of the said judgment which is quoted hereinbelow:-

"In our opinion, there is a real possibility of release of a person on bail who is already in custody provided he has moved a bail application which is pending. It follows logically that if no bail application is pending, then there is no likelihood of the person in custody being released on bail, and hence the detention order will be illegal. However, there can be an exception to this rule, that is, where a co-accused whose case stands on the same footing had been granted bail. In such cases, the detaining authority can reasonably conclude that there is likelihood of the detenue being released on bail even though no bail application of his is pending, since most courts normally grant bail on this ground. However, details of such alleged similar cases must be given, otherwise the bald statement of the authority cannot be believed."

Learned A.G.A., on the other hand, has argued that no doubt the detention of the petitioner was based on a solitary incident but a single incident is itself sufficient to detain the petitioner under the Act. The detaining authority, respondent no.2, has rightly passed the detention order against the petitioner under Section 3 (2) of the Act. It was submitted by the learned A.G.A. that the impact of the act of the petitioner was such that the tempo of life of the community was disturbed which amounted to disturbance of public order, hence the District Magistrate on the relevant materials placed before him and being satisfied had passed the detention order against the petitioner. Learned A.G.A. In support of his contention has relied on the judgment of the Apex Court in the case of Adbul Sathar Ibrahim Manik Versus Union of India and others reported in (1992) 1 SCC 1 and has drawn the attention of the Court towards paragraph-6 of the said judgment which is quoted hereinbelow:-

"The next submission is that there were no antecedents and that this being the solitary incident the detention is unwarranted. It is again a question of satisfaction of the detaining authority on the basis of the material placed before it. Even a solitary incident which has been detected may speak volumes about the potentialities of the detenu and merely on the ground that there were no antecedents the detention order cannot be quashed. The authorities cannot and may not in every case salvage the antecedents but as noted above even a solitary incident may manifest the potentialities of a detenue in the activities of smuggling."

Learned A.G.A. also relied on another judgment of the Apex Court in the case of Union of India and another Versus Chaya Ghoshal (Smt.) and another reported in (2005) 10 SCC 99 and has pointed out the law written in paragraph-23 of the said judgment which is quoted hereinbelow:-

"So far as the finding of the High Court that there was only one incident is realy a conclusion based on erroneous premises. It is not the number of acts which determine the question as to whether detention is warranted. It is the impact of the act, the factual position as highlighted goes to show that the financial consequences were enormous and ran into crores of rupees, as alleged by the detaining authority. The High Court seems to have been swayed away that there was only one incident and none after release on bail. The approach was not certainly correct and the judgment on that score also is vulnerable. At the cost of repetition it may be said that it is not the number of acts which is material, it is the impact and effect of the act which is determinative. The High Court's conclusions in this regard are therefore not sustainable.

Learned A.G.A. also relied on another judgment of the Apex Court in the case of David Patrick Ward and another Verus Union of India and others reported in (1992) 4 SCC 154 and has drawn the attention of the Court towards paragraph-22 of the said judgment which is quoted hereinbelow:-

"22. Tested in the light of the above decision, certainly, the acts in which the petitioners indulged would form the basis of detention. The detaining authority can base its order of detention even on a solitary act provided that the conduct of the person concerned with the act in the circumstances in which it was committed, is of such a nature as would enable the formation of requisite satisfaction that the person, if not prevented by an order of detention, is likely to indulge in repetition of similar acts in future. That is certainly so in the present case, having regard to the various circumstances from the beginning, viz. The concealment of the purpose of visit, the entry without permit in the prohibited area up to the time of arrest of the petitioners. Therefore, the ground of detention relating to what occurred on the night between January 30 and 31, 1992 sufficed for making the detention orders under challenge. Debu Mahato and M. Mohamed Sulthan the decision of this Court on which reliance is placed to support the point under examination, indeed go against the point. Hence, the point cannot succeed."

After having considered the submission advanced by learned counsel for the parties and after having gone through the record of the case, it is apparent that the allegation against the petitioner on the basis of which the detaining authority has passed the detention order shows that the act of the petitioner in abducting a female child of eight years and murdering her in a brutal manner for no rhyme and reason and throwing her dead body in the river ruled out any possibility of doubt that by the said act of the petitioner the tempo of life of the community stood disturbed which amounted to disturbance of public order. Thus, the subjective satisfaction of the detaining authority in passing the detention order against the petitioner cannot in any manner be said to be arbitrary or illegal. It is further clear from the grounds of detention and the relevant materials placed before the detaining authority, that the impact of the act of the petitioner was such that there was a feeling of insecurity and unsafety in the minds of the public at large in the locality and nearby areas that they found their female child in a state of insecurity of their lives and dignity. The Apex Court in the case of Arun Ghosh Vs. State of West Bengal reported in A.I.R. 1970 SC 1228 has held that it is always a question of degree of harm and its effect upon the community. Individual acts can be a ground for detention only if it alleges disturbance of the current life of the community so as to amount disturbance of the public order and not affecting merely an individual leaving the tranquillity of the society undisturbed.

The Apex Court in the case of Alijan Mian Versus District Magistrate, Dhanbad and others reported in A.I.R. 1983 SC 1130 in para-9 has held that if the detenue is already in custody and if the detaining authority was aware of the fact that the detenue was already in jail on the date of passing of the detention order and was satisfied that if the detenue was enlarged on bail after which there was every likelihood of his indulging in anti social activities, it was necessary to prevent him from acting in a manner prejudicial to the public order, the detention order was held to be valid.

It was further held in the said judgment that the pendency of Court proceedings is no bar to an order of preventive detention nor is the order of preventive detention a bar to the prosecution. It is for the detaining authority to have the subjective satisfaction where in such a court trial sufficient materials to place the person under preventive detention in order to prevent him from acting in a manner prejudicial to the public order alike in future. It is noteworthy to mention here that in a judgment of this Court in the case of Tasleemuddin Vs. State of U.P. through Secretary (Home) Lucknow reported in ACC 2008 (60) 851, it was held that a single incident of murder based on personal enmity but the same having effect of terrorising public and affecting the even tempo of life of the community in such place, would constitute an act of disturbance of public order.

In this context, the Hon'ble Apex Court in the case of Pooja Batra Versus Union of India reported in (2009) 2 SCC (Cri) 659 has enunciated the law as quoted in para-40 of the judgment which is quoted hereinbelow:-

"40. Further, subjective satisfaction of the authority under the law is not absolute and should not be unreasonable. In the matter of preventive detention, what is required to be seen is that it could reasonably be said to indicate any organised act or manifestation of organised activity or give room for an inference that the detenu would continue to indulge in similar prejudicial activity warranting or necessitating the detention of the person to ensure that he does not repeat this activity in future."

The cases cited by the learned counsel for the petitioner i.e. Yumman Ongbi Lembi Leima (Supra) and Rekha Versus State of Tamil Nadu (Supra) are distinguishable on the facts from the present case, hence they are not applicable in the facts and circumstances of the present case.

In our considered opinion and in view of the foregoing discussion, the detention order dated 4.8.2011 passed by respondent no.2 does not suffer from any illegality or perversity. The petition lacks merit and is, accordingly, dismissed.

Dated :- 01.06.2012

Shiraz.