Narender Tyagi vs Vijay Karan And Anr.
1989 Latest Caselaw 77 Del

JUDGMENT

G.C. Jain, J.

(1) Narender Tyagi alias Baboo, the petitioner, by this petition under Article 226 of the Constitution of India, challenges the order of his detention under sub-section 2 of Section 3 of the National Security Act, 1980 made on May 13, 1988 by the Commissioner of Police Delhi, with a view to prevent him from acting in any manner, prejudicial to the maintenance of public order, This order was served on the petitioner on May 16, 1988 and since then he is detained in the Tihar Jail, New Delhi.

(2) The grounds of detention served on the petitioner state that he was an active, desperate criminal who had indulged in the acts of murder. attempt to murder, planning for dacoity, illegal tresspass, criminal intimidation and offences punishable under the Arms Act. The petitioner was involved in the following criminal cases in the Union Territory of Delhi :-

(1)F.I.R. No. 850, dated 13th October, 1986 under section 25 of the Arms Act, Police Station Connaught Place, New Delhi, On October 13, 1986 on receipt of information that a person sitting on a Bench in Central Park, Connaught place was in possession of unauthorised arms, the petitioner was apprehended by Head Constable Khajan Singh, and Constable Balwan Singh of Police Station Connaught place. He was found in possession of a revolver loaded with 6 cartridges. In addition 6 cartridges were recovered from his bag. He was arrested and the case was registered which was pending trial.

(2)F.I.R. No. 851, dated 13th October, 1986 under section 399/402 Indian Penal above Code, P.S. Connaught Place, New Delhi. After the arrest of the petitioner in the case (F.I.R. No. 850, dated 13th October, 1986) Inspector P.N. Arora, S.H.O. Police Station Connaught Place, arrived there Along with other staff. Petitioner was produced before him. The petitioner informed the S.H.O. that he Along with four others, who were sitting in volga Restaurant, had come with a plan to commit dacoity in the Bank of India, 'B' Block, Connaught Place, New Delhi. On this disclosure the said four persons namely, Davinder Pal Singh, Om Parkash Bhatia, Balvinder Singh, and Raghubinder were apprehended in the Restaurant. On personal search a revolver loaded with 6 cartridges Along with seven other cartridges in a black holster were recovered from Devinder Pal Singh. A pistol 7.65 mm was recovered from the possession of Raghubinder Singh. A revolver of. 38 bore was recovered from the possession of Balvinder Singh. They were arrested and the case was registered. After completing investigation challan was filed and the case was pending trial.

(3)F.I.R. No. 499 dated 14th October, 1986 under section 25/54/59 Arms Act, Police Station Jahangirpuri, Delhi. On 14th October, 1986, Inspector P.N. Arora, S.H.O., Police Station Connaught Place, New Delhi Along with other staff recovered about 4 live cartridges from H. No. 332, Desu Colony, Shalimar Bagh, Delhi on the disclosure made by the petitioner. On this the above case was registered. The petitioner was challaned and the case was pending trial.

(4)F.I.R. No. 288. dated 18th June, 1986 under section 302/307/34 Indian Penal Code and 25/54/59 Arms Act, Police Station Lajpat Nagar, New Delhi. On June 18, 1986, Nemi Chand Kukreja, resident of G-25. Lajpat Nagar II. New Delhi was present at his shop with his father at about 4.30 P M. when he heard the sound of shots. In the meantime, one Pradeep resident of H-6/11/13, Lajpat Nagar, New Delhi came from the park side shouting for help. He was followed by three unknown persons. Pradeep entered tho shop of Kukreja to save his life but two persons out of the three unknown persons fired shots at him. He fell on the floor. Kukreja asked them to stop but he was asked not to interfere. In the meantime, his father also came to the counter. One of the three unknown persons again fired upon Pradeep and ran away towards the Park. His father was also injured in the firing. Pradeep was taken to the Hospital. He died later on. One Vijay Kumar a friend of Pradeep was also injured by the said unknown persons. On this report the above mentioned case was registered. During the course of investigation one (Mukesh Gaur) Along with Sunil Tyagi, Narender Tyagi @ Baboo, Virender Tyagi @ Nikku and Kuldip had killed Pradeep due to old enmity. The petitioner had also disclosed during the course of investigation of the case F.I.R. No. 851, dated 13th October. 1986 that he had killed Pradeep in the month of June, 1986. However, due to lack of direct evidence the petitioner could not be arrested in the said case but due to strong suspicion and indirect evidence his name was placed in Col, (2) of the Challan. The case was pending trial in the Court.

(5)F.I.R. No. 34, dated 10th February, 1988 under section 452/306/ 506/34 Indian Penal Code and section 25 Arms Act, Police Station Nangloi, Delhi.

One Wazir Singh used to train wrestlers at Wazir Vyayam Shala. Rajdhani Park, Delhi. On 10th February. 1988 at about 4.30 P.M. eight/nine persons among whom one was a Sardar and remaining were clean shaven came there. Among those persons one was Prem wrestler who was already known to Wazir Singh. Sardar fired two shots from his revolver to kill Wazir Singh but he escaped. Another person whose name he came to know later on as Lokesh took out his revolver but he was caught Along with his revolver. Another person namely, Rajinder was also apprehended on the spot, The remaining attackers drove off in their vehicles which were parked on the road firing from their revolvers. The gathering pelted stones upon the vehicles as a result of which glasses of the vehicles were broken and the attackers also sustained injuries. The two attackers who were caught Along with their revolvers and six live cartridges also sustained injuries. They were banded over to the Police. On this the above case was registered. During the course of investigation Lokesh was identified as Narender Tyagi, the petitioner, who was arrested in the case. The case was under investigation.

(6)F.I.R. No. 154, dated 5th May. 1988 under sections 506/34 Indian Penal Code Police Station Hari Nagar, New Delhi. One Shri Ram Kumar, a Jail Warden was residing in Quarter No. A-43. Staff Quarters, Central Jail, Tihar, New Delhi. On 1st May, 1988 at about 8.45 A.M. the petitioners Along with two Jail Wardens Siya Ram and Harkesh and an unknown person came to the above quarter in a white Fiat Car and asked about Ram Kumar. His wife informed that her husband was on duty. They handed over a letter to his wife in which the petitioner had threatened to Kill Ram Kumar. This letter was given to, Ram Kumar when he reached his house. Thereafter, he went to the office of Superintendent. Tihar Jail, where be met one Daya Nand Yadav, Jail Warden who also informed that the said persons had also visited his barrack at about 7.30 A.M They met Superintedent, Tihar Jail and narrated the whole storey, and requested for their protection. On this report the case was registered which was pending investigation.

(3) The contention raised by Mr. Kapil Sibal, Learned counsel for the petitioner is that of the six cases referred to in the grounds of detention did not reflect any hazard to public order. These were stray acts directed against individuals and were not subversive of public order. These acts at the most could lead to an apprehension of mere law and order situation. The detaining authority had confused the concept of public order with law and order. The detention order in these circumstances, argued the learned counsel, was illegal.

(4) SUB-SECTION 2 of Section 3 of the National Security Act. 1980 permits the detention of a person with a view to preventing him from (i) acting, in any manner, prejudicial to the security of the State; or (ii) acting, in any manner, prejudicial to the maintenance of public order; or (iii) acting, in any manner, prejudicial to the maintenance of supplies or services essential to the community.

(5) In the present case detention order has been made with a view to prevent the petitioner from acting, in any manner, prejudicial to the maintenance of public order. In other words, if the petitioner was not detained public disorder was the apprehended result.

(6) The disturbance of public order is to be distinguished from acts, directed against individuals which do not disturb the society to the extent of causing a general disturbance of public tranquillity. "The 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. A mere disturbance of law and order leading to disorder is thus not necessarily sufficient for action under the defense of India Act but disturbance which subvert the public order are." Ram ManoharLohia v. State of Bihar, A.I.R. 1966 Sc Page 745 (Para 51).

(7) In Ashok Kumar v. Delhi Administration & Ors. it was held : "The true distinction between the areas of 'Public Order' and 'Law and Order' lies not in the nature or quality of the act, but in the degree and extent of its reach upon society The distinction between the two concepts of 'Law and Order' and 'public order' is a fine one but this does not mean that there can be no overlapping. Act similar in nature but committed in different contexts and circumstances might cause different reactions. In one case it might affect specific individuals only and. therefore, touch the problem of law and order, while in another it might affect public order. The act by itself, therefore, is not determinant of its own gravity. It is the potentiality of the act to disturb the even tempo of the life of the community which makes it prejudicial to the maintenance of public order."

(8) The first three cases subject matter of F.I.R. Nos. 850, 851, and 499, dated 13th October, 1986, 13the October, 1986, and 14th October, 1986, respectively, besides being not approximate to the order of detention, do not fall within the realm of public order. The first and the three cases were under section 25 of the Arms Act (Act 54 of 1959) which makes the possession of arms punishable. According to the averments in the F.I.R. 850, dated 13th October, 1986, the petitioner was found in possession of a revolver loaded with six cartridges and other extra six cartridges. According to F-I.R. No. 499, dated.14th October, 1986 four live cartridges were recovered on the disclosure of the petitioner. These were purely cases relating to Law and Order. Public order was not likely to be affected in any manner.

(9) The second case under F.I.R: No. 851, dated 13th October, 1986 was under section 399/402 of the Indian Penal Code. The petitioner and four other persons, it is stated, were planning to commit dacoity in the Bank of India, B-Block, Cannaught Place, New Delhi and bad assembled for that purpose. Making preparation to commit dacoity or .assembling for the purpose of commiting a dacoity by themselves would not make it a case affecting public order. These acts were not likely to disturb the even tempo of life in the society and were, therefore, irrelevant.

(10) Incident No. 4 is subject matter of F 1.R. No. 288, Police Station Lajpat Nagar, New Delhi dated 18th June, 1988 under section 302/307/34 Indian Penal Code and section 25 of the Arms Act. According to the statement contained in the F.I.R., on June 18, 1986 one Pradeep came to the shop of Nemi Chand Kukreja in Lajpat Nagar Ii, New Delhi shouting for help. He was followed by three persons. Tho persons out of them fired on him. He fell on the floor. Nemi Chand asked them to stop but he (Nemi Chand) was asked not to interfere. One of the three persons again fired upon Pradeep and then they ran away towards the Park The father of Pradeep was also injured in the firing. Pradeep later on died. One Vijay Kumar, friend of Pradeep was also injured. Investigation disclosed that Sunil Tyagi @ Narender Tyagi (petitioner herein) @ Virender Tyagi and Mukesh Gaur had killed Pradeep due to old enmity. It is stated in the grounds of detention itself that the petitioner was not arrested in this case due to lack of direct evidence and his name was simply placed in Column No. 2 of the Challan due to strong suspicion and indirect evidence. Besides, this case affected Pradeep who was the main target and was shot and died due to injuries received. One Vijay Kumar who was injured was also a friend of Pradeep. This occurrence, thus affected individuals only. It cannot be said that the life of the community was disturbed. Mere fact that the occurrence took place in Lajpat Nagar a congested locality at 4.30 P.M. is not sufficient to raise such a presumption. There is even no averment that any terror was struck in the locality. This case in our view also fell within the area of law and order, and therefore, was not relevant.

(11) Incident No. 5 subject matter of F.I.R. No. 34, dated 10th February, 1988 under section 452/306/311, Indian Penal Code and sections 25 and 27 of the Arms Act, Police Station Nangloi affected only one person Wazir Singh who according to the averments in the F.I.R used to train wrestlers at Wazir Vyayam Shala, Rajdhani Park, Delhi. Eight/nine persons including the petitioner, it is stated, came there. One of them was a Sardar who fired shots from his revolver on Wazir Singh but Wazir Singh escaped. One Lokesh who was later on identified as Narender Tyagi, the petitioner, took out his revolver but was caught Along with his revolver. The remaining attackers ran off in the vehicle. These facts show that this act was aimed against Shri Wazir Singh only. It cannot be said that this jeopardised the maintenance of public order. From the fact that some persons gathered there and pelted stones on the Attackers it cannot be said that it affected the public order. This ground was given irrelevant.

(12) The sixth and the last incident is the subject matter of F.I.R. No. 154, dated 5th May, 1986, under section 506/34 of Indian Penal Code, Police Station Hari Nagar, New Delhi. According to the allegations made in the First Information Report the petitioner with two Jail Wardens and one unknown person went to the house of Ram Kumar Jail Warden. He was not present there. The petitioner gave a letter to his wife. In the letter he had threatened to kill him. The petitioner is stated to have given similar threat to another Jail Warden Shri Daya Nand Yadav. We do not agree with the contention of learned counsel appearing for the State that this act had caused terror in the rank and file of the Wardens and, therefore, it had the effect of disturbing the public order. It may be mentioned that there is no such averment in the grounds of detention.

(13) On a careful consideration, all the acts referred to in the grounds of detention do not reflect any hazard to the public order. It cannot be said that these acts caused or were likely to cause disturbance to the public order or affected the life of the community in any locality. The grounds were irrelevant. Detention of the petitioner, therefore, was illegal.

(14) In the view we have taken above we need not examine the other contentions raised on behalf of the petitioner.

(15) In conclusion,we accept the petition and quash the impugned order. The petitioner is directed to be released forthwith unless required in any other case.