Kalla @ Surendra Jat vs The State Of Madhya Pradesh
2021 Latest Caselaw 1440 MP

                                         1             W.P.No.4499/2021

           HIGH COURT OF MADHYA PRADESH
                 BENCH AT GWALIOR

                         DIVISION BENCH


                     JUSTICE SHEEL NAGU
                              &
                    JUSTICE ANAND PATHAK

                  WRIT PETITION NO.4499/2021
                        Kalla alias Surendra Jat
                                 Versus
                  State of Madhya Pradesh and others

==================================================
Shri S.K. Shrivastava, learned counsel for the petitioner.
Shri D.D. Bansal, learned Government Advocate for the
respondents/State.
==================================================
               Whether approved for reporting : Yes

Law laid down:
1.   Preventive detention is devised to afford protection to society.
     An act, affecting public order may have ramifications over law
     and order and security of the State at the same time.
2.   Liberty of an individual is to be reconciled with collective
     interest of the community so that Public Order, Social Peace and
     overall Development of the Area may not be sacrificed at the
     altar of Lawlessness, Misgovernance and Private Retribution.
3.   Crime and Disorder are strongly interrelated, therefore, Broken
     Windows Theory, a Criminological Theory although moves in
     respect of Police and law enforcement but has material bearing
     in the realm of prosecution, adjudication and specially for
     preventive measures like National Security Act. Theory
     explained.
4.   Offence under Section 353 of IPC is not against public servant
     only but is a challenge to the Public Order and Administration
     of Justice at the instance of offender because public servant is
                                             2           W.P.No.4499/2021

     duty bound to serve public and maintain Public Order. If his
     position is compromised, then public order is immediately and
     automatically compromised.
5.   Ashok Kumar Vs. Delhi Administration and others, (1982)
     2 SCC 403, Commissioner of Police and Ors. Vs. C. Anita,
     (2004) 7 SCC 467, Shahzad Hasan Khan Vs. Ishtiaq Hasan
     Khan and others, (1987) 2 SCC 684 and Debu Mahto Vs.
     State of West Bengal, AIR 1974 SC 816 are followed.
6.   Relevant paras are 13, 17, 19 to 22 and 25.
                            *************

                             ORDER

{Passed on 9th day of April, 2021}

Per Justice Anand Pathak, J.:

1. Present petition is under Article 226 of Constitution of India in

the nature of certiorari taking exception to the order dated 08-

02-2021 passed by the District Magistrate, Guna (Annexure

P/1) whereby provision of Section 3(3) of the National Security

Act, 1980 (hereinafter referred to as 'the Act') has been invoked

and petitioner has been directed to be detained for 3 months at

Central Jail, Gwalior. Petitioner is absconding and therefore,

petition is at pre execution stage.

2. Precisely stated facts of the case are that petitioner is resident of

District Guna and is living within the territorial jurisdiction of

this Court. It appears from the pleadings that for last almost 20

years petitioner faced different criminal cases/charge-sheeted

for alleged commission of different offences, particulars of

which are placed with the petition and on the basis of those

cases as well as apprehension of the authorities that petitioner

may commit breach of public order, proceedings were initiated

under the Act against the petitioner which culminated into

passing of impugned order dated 08-02-2021 by the District

Magistrate, District Guna.

3. From the pleadings, it appears that on 19-01-2021, Station

House Officer, Police Station Kotwali District Guna (respondent

No.4 herein) recommended to Superintendent of Police, Guna

(respondent No.3) to invoke the provisions of Section 3(3) of

the Act since the petitioner is having criminal history of around

20 cases and is a threat to Public Order. On such

recommendation, respondent No.3 initiated the proceedings

against the petitioner under the provisions of the Act and list of

20 cases was catalogued along with recommendation about his

conduct to breach public order and referred to the District

Magistrate, Guna on 19-01-2021 itself. District Magistrate,

Guna (respondent No.2 herein) after considering the fact

situation, recommendations and thereafter the statement of

prosecution witness (Station House Officer of Police Station

Kotwali, Guna) passed the impugned order of detention in

exercise of power under Section 3(3) of the Act. Being

crestfallen by the said order of detention, petitioner has

preferred this petition.

4. It is the submission of learned counsel for the petitioner that

order of detention is being passed on the basis of old and stale

cases in which petitioner has already been acquitted way back

(except one or two cases) and these stale cases are not at all

sufficient to invoke the provisions of the Act. He referred

different orders passed in this regard by the trial Courts in

which after full fledged trials, he has been acquitted, albeit in

some cases on the basis of settlement and in some cases on the

basis of witnesses being turned hostile. Even in some cases,

after investigation, police did not find the case for prosecution

and therefore, closure reports were filed in those cases.

Therefore, sheet anchor of the arguments of the petitioner is that

detention order is based upon old and stale cases. He relied

upon the judgments of this Court in the case of Rinku alias

Kuldeep Shukla Vs. State of M.P. and others, 2015(2) JLJ

140, Rajendra Kumar Jain Vs. State of M.P. 2015 (I) MPWN

37 (DB), Shanker Mihani Vs. State of M.P. and others, ILR

[2008] M.P. 797, Dhanwan s/o Balchandra Pardi Vs. State

of M.P. and others, 2014(3) MPLJ 256, Bhaiya alias

Bhaiyalal alias Arvind Vs. State of M.P. [2013 (1) MPLJ

(Cri) 547] to support his submission.

5. It is further submitted that respondent No.3 did not supply the

correct information regarding cases registered against the

petitioner to respondent No.2 -District Magistrate, Guna and

therefore, non placement of material before the authority,

vitiates the proceedings. He relied upon (1989) 2 SCC 370

{Dharamdas Shamlal Agarwal Vs. Police Commissioner and

another} and 2000 (4) MPHT 482 (DB) { Smt. Geeta Sahu

Vs. District Magistrate, Shahdol and others}.

6. Learned counsel for the petitioner also raised the ground that

earlier externment proceedings under M.P. Rajya Suraksha

Adhiniyam, 1990 were inflicted twice over the petitioner in

2018 and thereafter in 2019 but both were set aside at appellate

stage and both the externment proceedings contained the

grounds of criminal background just like in the present case but

both proceedings resulted into quashment. Therefore, no ground

existed for the authorities to initiate proceeding under stringent

provisions of the Act. He raised the point regarding personal

liberty of the petitioner and submits that it cannot be

compromised on the basis of such flimsy pretext.

7. It is the submission of learned counsel for the petitioner that

petition at pre execution stage is maintainable in view of the

judgment rendered by the Apex Court in the case of Additional

Secretary to the Government of India and others vs. Smt.

Alka Subhash Gadia and another, 1992 Supp. (1) SCC 496.

No other ground was raised by the petitioner for

consideration.

8. Per contra, learned counsel for the respondents/State matched

the vehemence while referring documents and arguments in

place that petitioner not only has long chequered history of 20

cases spread over twenty long years, out of which most of the

cases carried allegations of grievous offences and he was

prosecuted for the offences ranging from Section 302, 307 to

353 and 147/149 of IPC as well as to Section 25/27 of Arms Act

and Section 3(1)(r)(s), 3(2)(va) of the Scheduled Castes and

Scheduled Tribes (Prevention of Atrocities) Act, 1989, Section

14 of M.P. Rajya Suraksha Adhiniyam etc. Not only this, on 19-

01-2021 vide Rojnamcha entry No.33 at Police Station Kotwali,

Guna an intimation was received that petitioner along with

others was trying to grab Government land as well as land of

other private parties and extending threats to the parties. This

complaint precipitated the further proceedings. Statement of

SHO of Police Station Kotwali, Guna; Shri Umesh Mishra

reveals that petitioner became a threat to the public order

because of his audacity and desperate criminal disposition.

9. It is further submitted that on 08-02-2021 impugned order has

been passed and on same day, respondents affixed the order

over the residence of petitioner. On 12-02-2021 case was

forwarded to the State Government for confirmation. On 15-02-

2021 State Government confirmed the detention order and on

same day i.e. 15-05-2021 matter was forwarded to Government

of India (Central Government). Therefore, provisions of Section

3 of the Act are being complied with utmost promptitude.

Therefore, impugned order does not deserve any interference.

10. Learned counsel for the respondents/State in support of his

submission referred Division Bench judgment of Delhi High

Court in the case of Khurvesh alias Pappu alias Pahalwan

Vs. State and another, ILR (2010) (II) Delhi 550 as well as in

the case of Narendra Kumar Vs. Union of India (UOI), 2002

STPL 12860 Delhi, Division Bench of Allahabad High Court

in the case of Noor Mohammad Vs. State of U.P. and another,

1982 STPL 4030 Allahabad and Division Bench of Rajasthan

High Court in the matter of Subhan Mohammad Vs. State of

Rajasthan and another, 1988 STPL 5970 Rajasthan. He

prayed for dismissal of writ petition.

11. Heard learned counsel for the parties and perused the record.

12. Instant case is in respect of National Security Act and its

different fallouts and factual contours attract reconciliation

between "Public Order" and "Personal Liberty".

13. First and foremost point is in respect of maintainability of writ

petition because in the instant case petitioner is absconding and

is not being detained yet. This aspect has been dealt with in

detail by the Hon'ble Apex Court in the case of Smt. Alka

Subhash Gadia and another (supra) wherein the Court has

specifically held that a writ petition is maintainable even at pre

execution stage and later on this principle has been reiterated

by the Hon'ble Apex Court in the case of Deepak Bajaj Vs.

State of Maharashtra and another, (2008) 16 SCC 14.

Although some discretion is being given by the Apex Court

while entertaining writ petition but this Court intends to

proceed on deciding the matter on merits and found the petition

as maintainable at pre execution stage.

14. The Apex Court in the case of Smt. Alka Subhash Gadia and

another (supra) and Deepak Bajaj (supra) have cautioned the

High Courts regarding scope of jurisdiction and scope of High

Court to grant relief in such matters. According to Apex Court;

scope is very narrow and limited and subjective satisfaction of

the detaining authority cannot be looked by the High Court as

appellate authority. In the said case, the Apex Court reiterated

the observation made by the Apex Court in the case of State of

Bihar Vs. Rambalak Singh Balak, AIR 1967 SC 1441 as well

as Khudiram Das Vs. State of West Bengal, (1975) 2 SCC 81.

Observation of Apex Court in the case of Khudiram Das is

reproduced as under:

"The power of detention is clearly a preventive measure. It does not partake in any manner of the nature of punishment. It is taken by way of precaution to prevent mischief to the community. Since every preventive measure is based on the principle that a person should be prevented from doing something which, if left free and unfettered, it is reasonably probable he would do, it must necessarily proceed in all cases, to some extent, on

suspicion or anticipation as distinct from proof.... This being the nature of the proceeding, it is impossible to conceive how it can possibly be regarded as capable of objective assessment. The matters which have to be considered by the detaining authority are whether the person concerned, having regard to his past conduct judged in the light of the surrounding circumstances and other relevant material, would be, likely to act in a prejudicial manner as contemplated in any of sub-clauses (i), (ii) and (iii) of clause (1) of sub- section (1) of section 3, and if so, whether it is necessary to detain him with a view to preventing him from so acting. These are not matters susceptible of objective determination and they could not be intended to be judged by objective standards. They are essentially matters which have to be administratively determined for the purpose of taking administrative action. Their determination is, therefore, deliberately and advisedly left by the legislature to the subjective satisfaction of the detaining authority which by reason of its special position, experience and expertise would, be best fitted to decide them. It must in the circumstances be held that the subjective satisfaction of the detaining authority as regards these matters constitutes the foundation for the exercise of the power of detention and Court cannot be invited to consider the propriety or sufficiency of the grounds on which the satisfaction of the detaining authority is based. The Court cannot, on a review of the grounds, substitute its own opinion for that of the

authority, for what is made condition precedent to the exercise of the power of detention is not an objective determination of the necessity of detention for a specified purpose but the subjective opinion of the detaining authority, and if a subjective opinion is formed by the detaining authority as regards the necessity of detention for a specified purpose, the condition of exercise of the power of detention would be fulfilled. This would clearly show that the power of detention is not a quasi-judicial power."

Therefore, the scope of interference in such matter is

narrow and limited.

15. So far as question regarding breach of public order or threat to

public peace is concerned, this aspect also is very subjective

and differs from case to case. In Ashok Kumar vs. Delhi

Administration and others, (1982) 2 SCC 403, the Apex

Court held that preventive detention is devised to afford

protection to society. It was observed that preventive measures,

even if they involve some restraint and hardship upon some

individuals, do not partake in any way of the nature of

punishment, but are taken by way of precaution to prevent

mischief to the State. The Executive is empowered to take

recourse to its power of its preventive detention in those cases

where the Court is genuinely satisfied that no prosecution could

possibly succeed against the detenu because he is a dangerous

person who has over-awed witnesses or against him no one is

prepared to depose.

16. The Court also made a distinction between the concepts of "Public Order" and "Law and Order" in the following words: - "13. 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. Acts 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. That test is clearly fulfilled in the facts and circumstances of the present case."

17. The Supreme Court in the context of preventive detention also

highlighted the distinction between "Public Order", "Security of

State" and "Law and Order" in the case of Commissioner of

Police and Ors. Vs. C. Anita, (2004) 7 SCC 467 in following

words:

"The crucial issue is whether the activities of the detenu were prejudicial to public order. While the expression 'law and order' is wider in scope inasmuch as contravention of law always affects order. 'Public order' has a narrower ambit, and public order could be

affected by only such contravention which affects the community or the public at large. Public order is the even tempo of life of the community taking the country as a whole or even a specified locality. The distinction between the areas of 'law and order' and 'public order' is one of the degree and extent of the reach, of the act in question on society. It is the potentiality of the act to disturb the even tempo of life of the community which makes it prejudicial to the maintenance of the public order. If a contravention in its effect is confined only to a few individuals directly involved as distinct from a wide spectrum of public, it could raise problem of law and order only. It is the length, magnitude and intensity of the terror wave unleashed by a particular eruption of disorder that helps to distinguish it as an act affecting public order' from that concerning 'law and order'. The question to ask is: "Does it lead to disturbance of the current life of the community so as to amount to a disturbance of the public order or does it affect merely an individual leaving the tranquility of the society undisturbed"? This question has to be faced in every case on its facts.

8. "Public order" is what the French call 'ordre publique' and is something more than ordinary maintenance of law and order. The test to be adopted in determining whether an act affects law and order or public order, is: Does it lead to disturbance of the current life of the community so as to amount to disturbance of the public order or does it affect merely an individual leaving the tranquility of the society undisturbed? (See Kanu Biswas v. State of West Bengal(1972) 3 SCC 831)

9. "Public order" is synonymous with public safety and tranquility: "it is the absence of disorder involving breaches of local significance in contradistinction to national upheavals, such as revolution, civil strife, war, affecting the security of the State". Public order if disturbed, must lead to public disorder. Every breach of the peace does not lead to public disorder. 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. (See Dr. Ram Manohar Lohia (Dr.) v. State of Bihar (1966) 1 SCR 709; 1966 Crl.LJ

608)

10. 'Public Order', 'law and order' and the 'security of the State' fictionally draw three concentric circles, the largest representing law and order, the next representing public order and the smallest representing security of the State. Every infraction of law must necessarily affect order, but an act affecting law and order may not necessarily also affect the public order. Likewise, an act may affect public order, but not necessarily the security of the State. The true test is not the kind, but the potentiality of the act in question. One act may affect only individuals while the other, though of a similar kind, may have such an impact that it would disturb the even tempo of the life of the community. This does not mean that there can be no overlapping, in the sense that

an act cannot fall under two concepts at the same time. An act, for instance, affecting public order may have an impact that it would affect both public order and the security of the State. [See Kishori Mohan Bera v. The State of West Bengal(1972) 3 SCC 845:

AIR1972SC1749; Pushkar Mukherjee v. State of West Bengal(1969) 1 SCC 10; Arun Ghosh v. State of West Bengal(1970) 1 SCC 98; Nagendra Nath Mondal v. State of West Bengal(1972) 1 SCC 498]."

18. An act, affecting public order, may have ramifications over law

and order and security of the State at the same time {See:

Kishori Mohan Bahra Vs. State of West Bengal, (1972) 3

SCC 845, Pushkar Mukherji Vs. State of West Bengal,

(1969) 1 SCC 10, Arun Ghosh Vs. State of West Bengal,

(1970) 1 SCC 98, Nagendra Nath Mondal Vs. State of West

Bengal, (1972) 1 SCC 498}.

19. Some Crimes give Psychic Gains whereas some Crimes give

Monetary Gains. If Cultural Norms affect the law, the law

likewise affects cultural norms. Therefore, expressive function

of punishment or deterrent of punishment is the law's capacity

to send a message of condemnation about a particular criminal

act. When a criminal mind while committing crime or expresses

his intention to commit crime, sends a message to the world

about the value of victim then conversely punishment or

preventive measure (like the present one) sends a reciprocal

message to the accused in a kind of dialogue with the crime.

Therefore, in the considered opinion of this Court, expressive

function of punishment or preventive measure like detention

under NSA are both retributive and utilitarian. Retributive

punishment/preventive measures give even if not proportional

to the physical/psychic harm done to a victim even then it gives

a chance to the perpetrator to purge his misdeeds and act as

deterrent to other probable perpetrators. Similarly utilitarian

function of punishment/preventive measure has the power to

change social norms and behaviour via the messages it

expresses and may help in reduction of crime.

20. In India where we witness high rate of crime against victims

especially against weaker sections and females originates from

the confidence of perpetrators that they would go unpunished

because of lacuna in Investigation, Prosecution and

Adjudication and therefore, this tendency prompts them to

commit more severe offences and create an atmosphere of fear

and terror. Conduct of petitioner reflects such attitude.

21. Crime and Disorder are strongly interrelated, therefore, Broken

Windows Theory, a Criminological Theory although moves in

respect of Police and law enforcement but has material bearing

in the realm of prosecution, adjudication and specially for

preventive measures like NSA also. According to this theory,

targeting minor disorder is expected to reduce occurrence of

more serious crime. Idea behind is can be summarized in an

expression that if a window in a building is broken and left

unrepaired, all of the windows will soon be broken. On this

analogy also, if preventive measure is taken by the police

against a miscreant like in the present case then it is for the

purpose of sending a message to the person concerned as well

as other probable perpetrators. Since, in the present case

petitioner has chequered history of all types of crime, therefore,

whole proceeding against the petitioner deserves to be seen

from that vantage point also.

22. While dealing with liberty of an individual vis a vis collective

interest of the community, observation of Apex Court in the

case of Shahzad Hasan Khan Vs. Ishtiaq Hasan Khan and

others, (1987) 2 SCC 684 is worth consideration when Apex

Court observed as under:

"Liberty is to be secured through process of law, which is administered keeping in mind the interest of the accused, the near and dear of the victim who lost his life and who feel helpless and believe that there is no justice in the world as also the collective interest of the community so that parties do not lose faith in the institution and indulge in private retribution. Learned Judge was unduly influenced by the concept of liberty, disregarding the facts of the case."

23. This observation is being reiterated by the Apex Court in the

case of Ramgovind Upadhyay Vs. Sudarshan Singh, (2002) 3

SCC 598.

Although above referred observation and reiteration were

in respect of bail but certainly sends a message for

reconciliation between "Personal Liberty" vis-a-vis "Public

Peace" and "Public Order". Said reconciliation is need of the

hour otherwise Public Order, Social Peace and Development of

the area would be sacrificed at the altar of Lawlessness,

Misgovernance and Private Retribution.

24. If the above referred legal principles/guidance are tested on the

anvil of present set of facts then it appears that petitioner

appears to be a habitual offender and his criminal disposition

spans around two decades. It is not the case, where he faced

allegations of minor offences but he faced trial for offences like

Section 302 and 307 as well as 353 of IPC along with other

offences as referred above.

25. In one of the cases under Section 353 of IPC he was convicted

and fined. It is to be reiterated that offence under Section 353 of

IPC is not against public servant only but is a challenge to the

Public Order and Administration of Justice at the instance of

offender because public servant is duty bound to serve public

and maintain Public Order. If his position to serve public is

compromised by Desperado like petitioner, then public order is

immediately and automatically compromised. Therefore,

offences under Section 353 of IPC against the petitioner cannot

be taken lightly; specifically when in one of the cases, petitioner

was convicted and in other case he was given benefit of doubt

because of some contradictions in Court statement of victim. In

some of the cases of different nature, compromise reached

between the parties and therefore, cases concluded in acquittal.

26. Long trail of criminal cases of different nature certainly suggest

that they cannot be motivated at the instance of police

authorities or at the instance of some vested interest. These are

the instances/discredit points which are being acquired by the

petitioner because of his misdeeds, misdemeanors and criminal

bend of mind. Therefore, different nature of cases registered and

tried against the petitioner even through resulted into acquittal

cannot be taken lightly. Hon'ble Supreme Court in the case of

Debu Mahto Vs. State of West Bengal, AIR 1974 SC 816 has

held as under:

"...The order of detention is essentially a precautionary measure and it is based on a reasonable prognosis of the future behaviour of a person based on his past conduct judged in the light of the surrounding circumstances. Such past conduct may consist of one single act or of a series of acts. But whatever it be, it must be of such a nature that an inference can reasonably be drawn from it that the person concerned would be likely to repeat such acts so as to warrant his detention. It may be easier to draw such an inference where there is a series of acts evincing a course of conduct but even if there is a single act, such an inference may justifiably be

drawn in a given case."

27. Even otherwise the impugned order and record indicate that

immediately before initiation of proceedings a complaint was

received by the Police Station about his offending action

whereby he tried to grab Government land as well as private

land. Therefore, his criminal record of past 20 years apparently

made him more audacious than remorseful.

28. SHO, Police Station Guna also made statement as prosecution

witness and police report indicates that petitioner is a habitual

offender and he is in habit of forcible encroachment of lands of

private owners also and they are afraid to come forward to

ventilate their grievances and all these attributes, render the

petitioner a threat to public peace and order and appears to be

against the interest of society/community at large. Therefore,

subjective satisfaction of detaining authorities in the present set

of facts cannot be interfered. All material/documents were

placed before the detaining authority and concerned authority

applied its mind accordingly. Therefore, judgments relied upon

by the counsel for the petitioner are not applicable in the present

facts and circumstances of the case.

29. Pertinently the petitioner has not raised the ground of

procedural lapse or violation of due process prescribed u/S 3 of

NSA and thus we refrain from considering such ground.

30. Petitioner is still absconding and has not submitted to the course

of justice yet. This fact further takes out the sheen of arguments

on behalf of petitioner.

31. Conclusively, petition preferred by the petitioner fails and order

of detention dated 08-02-2021 passed by District Magistrate,

Guna is hereby affirmed. Respondents are at liberty to proceed

against the petitioner as per law.

32. Petition sans merits and is hereby dismissed. No order as to

costs.

33. Copy of this order be sent to District Magistrate, Guna for

information and compliance.

(Sheel Nagu) (Anand Pathak) Anil* Judge Judge 09/04/2021 09/04/2021

Digitally signed by ANIL KUMAR CHAURASIYA DN: c=IN, o=HIGH COURT OF MADHYA

ANIL KUMAR PRADESH BENCH GWALIOR, ou=HIGH COURT OF MADHYA PRADESH BENCH GWALIOR, postalCode=474001, st=Madhya

CHAURASIYA Pradesh, 2.5.4.20=8512f40a1a9eaa50b6802d068b51 dae27e84c266b09d283f0799e67cdc7df50f , cn=ANIL KUMAR CHAURASIYA Date: 2021.04.09 13:57:20 -07'00'