Mahboob vs Union Of India And 5 Others
2019 Latest Caselaw 2558 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

									A.F.R.
 
								         Reserved
 

 
Court No. - 51
 

 
Case :- HABEAS CORPUS WRIT PETITION No. - 3895 of 2018
 

 
Petitioner :- Mahboob
 
Respondent :- Union Of India And 5 Others
 
Counsel for Petitioner :- Atul Kumar
 
Counsel for Respondent :- A.S.G.I.,Jitendra Prasad Mishra
 

 
Hon'ble Vipin Sinha,J.

Hon'ble Ajit Singh,J.

(Delivered by Hon. Ajit Singh, J.)

Heard Sri Atul Kumar, learned Counsel for the petitioner, Sri Jitendra Prasad Mishra, learned Counsel for Union of India and Sri Patanjali Mishra, learned AGA appearing on behalf of the State-respondents.

By means of present Habeas Corpus writ petition, following reliefs have been sought:

"a) To issue a writ, order or direction in the nature of certiorari quashing the impugned order of detention dated 19.09.2018 passed by District Magistrate, Muzaffar Nagar (O.P. No.3) in Order No.223/N.S.A.-2018/J.A. that has been passed by exercising power under Section 3(2) of the National Security Act, 1980 and order dated 06.10.2018, order dated 27.09.2018 and order dated 01.11.2018 passed by O.P. No.3.

b) To issue a writ, order or direction in the nature of Mandamus directing the respondents to release the petitioner forthwith.

c) To issue any other suitable writ, order or direction with this Hon'ble Court may deem fit and proper in the facts and circumstances of the case to meet the ends of justice.

d) To award costs of this Writ Petition to the petitioner."

Learned counsel for the petitioner has submitted that initially an FIR has been referred to in the proceedings. The said FIR is dated 22.8.2018 which was registered as Case Crime No.0292 of 2018. In the said FIR, neither the petitioner nor his family members were named. Subsequently, another FIR was lodged on 24.8.2018 in which 25 persons were named and hundred persons were shown as unknown. The said FIR was registered as Case Crime No.0293 of 2018. In the said FIR, the petitioner has been named, however general role has been assigned to him.

At the very outset, it has been mentioned that even though the petitioner has been named but no specific role has been assigned to him. Even though it has been mentioned that a mob of hundred people had gathered but nobody had received any single injury even an abrasion. There is no injury report whatsoever on record which may show that anybody had received injury. This fact has not been disputed by Shri Patanjali Mishra, learned AGA or Shri Jitendra Prasad Misrha, learned counsel appearing for the Union of India.

It has also been informed that in the said Case Crime No.0293 of 2018, the petitioner has been granted bail on 27.9.2018 by the Court of Sessions. It has been further informed that the petitioner has got no previous criminal history and he is not involved in any other criminal case.

Shri Jitendra Prasad Mishra, learned counsel appearing for Union of India, at the very outset, has informed the Court that no allegation has been made against the Union of India even though a short counter affidavit has been filed on behalf of Union of India which has been duly perused by this Court.

Learned counsel for the petitioner has drawn attention of this Court to the detention order dated 19.9.2018 which has been approved by the State Government on 1.11.2018 for a period of three months from the date of detention order.

Learned counsel for the petitioner has contended that the detaining authority has not applied its mind while passing the detention order.

Contention of the learned counsel for the petitioner is to the effect that the detention order has been passed primarily on the ground that the petitioner belongs to Muslim community without appreciating the fact that the second FIR was a logical conclusion of the first FIR dated 22.8.2018 which formed the basis of the second FIR in which the petitioner was not named nor chargesheeted. The process which is said to have been initiated while lodging the FIR dated 22.8.2018 culminated in lodging the second FIR dated 25.8.2018 which shows that earlier FIR was the motive of the second FIR and thus, it has been contended that it is virtually a solitary case which has formed the basis of the detention order, i.e. no other criminal history of the petitioner. Further contention is that the detaining authority while recording the subjective satisfaction has failed to appreciate the fact that the petitioner has got no previous criminal history. The satisfaction recorded by the detaining authority in this regard reads as under:

11- ;g fd vki fnukad 25-8-2018 ls bl vfHk;ksx es ftyk dkjkxkj tuin eq0uxj esa fu:) gS] rFkk tekur ds iz;kl esa gSA vkids }kjk bl vfHk;ksx esa viuk tekur izkFkZuk i= ek0 ,lhts,e dksVZ ua0 3 eq0uxj ds U;k;ky; esa izLrqr fd;k x;k Fkk fdUrq vijk/k dh xEHkhjrk dks n`f"Vxr j[krs gq;s ek0 U;k;ky; }kjk fnukad 27-08-2018 dks vkidk tekur izkFkZuk i= fujLr fd;k x;k gSA ftlds i'pkr vkids ¼egcwc½ }kjk bl vfHk;ksx esa tekur izkFkZuk i= ek0 ftyk ,oa l= U;k;k/kh'k eq0uxj ds U;k;ky; esa izLrqr fd;k x;k gSA ftldh lquokbZ gsrq fnukad 26-09-2018 fu;r gSA vkids tekur izkFkZuk i= ds Lohdkj gksus dh iw.kZ laHkkouk gSA ;fn vkidks jk"Vªh; lqj{kk vf/kfu;e 1980 ds vUrxZr fu:) ugh fd;k tkrk gSA rks mlds tekur ij fjgk gksus ds mijkUr iqu% vijkf/[email protected]@lkEiznkf;d xfr fof/k;ks esa fyIr gksus ds dkj.k yksd O;oLFkk fNUu&fHkUu gks ldrh gSA rFkk tuin eqt¶Qjuxj ds lkSgknZ lnHkko ,oa lkekU; tuthou ij izfrdwy izHkko iMus dh iw.kZ laHkkouk gSA

vr% mi;qZDr vk/kkjks ls esjk ;g lek/kku gks x;k gS fd tsy ls vkidh fjgkbZ lfUudV gSA vkids }kjk tsy ls fjgk gksus ds i'pkr ,slh fdlh Hkh jhfr ls dk;Zokgh fd;s tkus dh lEHkkouk gS tks 'kgj eqt¶Qjuxj dh yksd O;oLFkk ds vuqj{k.k ds izfrdwy gksxhA vr% vkidks ,slh dk;Zokgh djus ls jksdus ds mn~ns'; ls tks yksd O;oLFkk ds vuqj{k.k ds izfrdwy gksxh] ;g vko';d gS fd vkidks fu:) fd;k tk;sA

Thus, contention is that subjective satisfaction as required to be recorded by the detaining authority keeping in view the legal parameters as established by the consistent law in this regard has been overlooked. Further contention is that present case is a case of "law and order" and "public order" is not involved in the present case. The detaining authority has not applied its mind as to why and under what circumstances the order has been passed without considering the question as to whether the criminal law machinery of the State is sufficient to deal with the situation or not.

Much has been contended by the counsel for the petitioner to the effect that the present is a case of only simple "law and order" and will not fall within the category of "public order". The questions of "law and order" and "public order" have been engaging the attention of the Court since time immemorial. A perusal of relevant case law in this regard would show that "public order" indicates something more than "law and order". The breach of public order involves a degree of disturbance and it affects upon the life of the community in a locality which determines whether the disturbance amounts only to breach of law and order and not a public order. The difference between two concepts is in only one degree. An act affecting law and order may not necessarily also affect the public order and an act which might be prejudicial to public order may not affect the security of the State. Public order is synonymous with public safety and tranquillity and it is the absence of any disorder involving breaches of local significance in contradiction to national upheavals, such as revolution, civil strife, war, affecting the security of the State.

In Dr. Ram Manohar Lohia vs State of Bihar and others, 1966 AIR 740, it has been held by the Apex Court that any contravention of law always affects order but before it can be said to affect public order, it must affect the community or the public at large. It was observed that offences against "law and order", "public order" and "security of the State" are demarcated on the basis of the gravity. It is the degree of disturbance and its affect upon the life of the community in a locality which determines whether the disturbance amounts only to breach of law and order though in the grounds of detention, the detaining authority had stated that by committing this offence in public, the detenu created a sense of alarm, scare and a feeling of insecurity in the minds of the public of the area and thereby acted in a manner prejudicial to the maintenance of public order which affected the even tempo of life of the community, but in fact it was a solitary case of robbery, it was held that mere citation of these words in the order of detention is more in the nature of a ritual rather than with any significance to the content of the matter. Thus a solitary instance of robbery as mentioned in the grounds of detention is not relevant for sustaining the order of detention for the purpose of preventing the detenu from acting in any manner prejudicial to the maintenance of public order.

The determining test in all such cases is "the act leads to disturbance of the current of life of the community so as to amount to a disturbance of the public order or does it affect merely an individual leaving the tranquillity of society undisturbed." The expression "law and order", "public order" and "security of the State" are distinct concepts though always not separate. Every public order if disturbed, must lead to public disorder but every breach of the peace does not lead to public disorder. For example, when two drunkards quarrel and fight there is disorder but not public disorder. They can be dealt with under the powers to maintain law and order but cannot be detained on the ground that they were disturbing public order. Disorder is no doubt prevented by the maintenance of law and order also but disorder is a broad spectrum which includes at one end small disturbances and at the other the most serious and cataclysmic happenings. (Dr. Ram Manohar Lohia vs State of Bihar and others, AIR 1966 SC 740).

In Mrs. T. Devaki vs Government Of Tamil Nadu and others, reported in AIR 1990 SC 1086, the Apex Court has held that single incident of murderous assault on the Minister in a public place was prejudicial to the maintenance of public order. Any disorderly behaviour of a person in the public or commission of a criminal offence is bound to some extent affect the peace prevailing in the locality and it may also affect law and order problem but the same need not affect maintenance of public order. The incident did not and could not affect public peace and tranquillity nor it had potential to create a sense of alarm and insecurity in the locality. The solitary incident as alleged in the ground of detention is not relevant for sustaining the order of detention for the purpose of preventing the petitioner from acting in a manner prejudicial to the maintenance of public order.

Learned counsel for the petitioner has further submitted that this is a solitary case and thus, there was no occasion for the detaining authority to have passed the preventive detention order. Reliance has been placed in this regard on the judgment of the Apex Court rendered in the case of Rekha vs State Of Tamilnadu through Secretary to Government, reported in AIR 2011 (5) SCC 244, wherein the Apex Court has held that if recourse to criminal proceedings would be sufficient to deal with alleged prejudicial activities, then the detention order would be illegal. Even If a person is liable to be tried in a criminal court for commission of a criminal offence or is actually being so tried, but the ordinary criminal law (IPC or the penal statutes) will not able to deal with this situation, then and only then, the preventive detention law be taken recourse to.

It has been contended that in the present case it has not been shown that the detaining authority that the detaining authority has applied its mind to the aforesaid fact as to how and under what circumstances can it be presumed that the criminal law machinery of the State by itself is not sufficient to deal with the situation at hand.

Reference may also be made to a judgment of the Apex Court rendered in the case of Ramveer Jatav vs State Of U.P. and others reported in AIR 1987 SC 63, wherein the Apex Court has observed that it is difficult to infer from the solitary ground set out in the grounds of detention that the act alleged to have been committed by the petitioner would have disturbed public order as distinct from law and order or that one single act committed by the petitioner was of such a character that it could reasonably be inferred by the detaining authority that if not detained, he would be likely to indulge in such activity in future.

Reliance has also been placed on another judgment of the Apex Court rendered in the case of Subhash Bhandari vs District Magistrate Lucknow, reported in AIR 1987 (4) SCC 685.

  Thus, in view of the aforesaid facts and circumstances of the case and consistent legal position as enumerated above, we set aside the impugned detention order dated 19.9.2018 passed by the District Magistrate, Muzaffar Nagar, respondent no.3, as approved by the State Government on 1.11.2018 and all consequential orders by means of which the period of detention was extended from time to time.

The writ petition is allowed. The petitioner, if not wanted in any other case, shall be released from custody forthwith in accordance with law after due communication of this order to the authorities concerned, once again in accordance with law.

Order Date : 5.4.2019.

Faridul.