Madhya Pradesh High Court
Ranveer @ Raman vs The State Of Madhya Pradesh on 30 June, 2022
Author: Vivek Rusia
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IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
&
HON'BLE SHRI JUSTICE AMAR NATH (KESHARWANI)
WRIT PETITION No. 11538 of 2022
Between:-
RANVEER @ RAMAN S/O SHRI BABU ANAND NEKIYA, AGED
ABOUT 28 YEARS, OCCUPATION: BUSINESS 110-B,
BHAWANIPURA, ANNAPURNA, INDORE (MADHYA PRADESH)
.....PETITIONER
(BY SHRI ANSHUMAN SHRIVASTAVA, ADVOCATE.)
AND
THE STATE OF MADHYA PRADESH THROUGH SECRETARY
1.
VALLABH BHAWAN BHOPAL (MADHYA PRADESH)
2. THE DISTRICT MAGISTRATE INDORE (MADHYA PRADESH)
THE DEPUTY POLICE COMMISSIONER ZONE 3 INDORE
3.
(MADHYA PRADESH)
STATION HOUSE OFFICER THE STATE OF MADHYA PRADESH
4. THROUGH POLICE STATION TUKOGANJ, INDORE (MADHYA
PRADESH)
.....RESPONDENTS
(BY SHRI VALMIK SAKARGAYEN, GOVT. ADVOCATE.)
This petition coming on for hearing on this day, JUSTICE
VIVEK RUSIA passed the following:
(Heard on 14/06/2022)
(Order Passed on 30/06/2022)
With the consent of the parties heard finally.
The petitioner has filed this present petition through his
father Babu Anand Nekiya challenging the validity of the order of
detention dated 02.05.2022 passed by the District Magistrate, Indore
in the exercise of powers under section 3(2) of the National Security
Act, 1980.
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1. The petitioner has been supplied the grounds for detention
and according to which there would be a possibility of creating a
dispute in relation to political and communal matters after release
from jail on bail. Deputy Commissioner of Police Zone No.3,
Indore vide letter dated 02.05.2022 requested District Magistrate,
Indore for initiating detention proceedings against the petitioner on
account of four criminal cases registered against him. The details
are as under:-
Sl. Crime Act Court's Challan Fau. M. No. Decision Police
No. No. Name No. Station
1 411/2016 354-323-294- District 389/2016 168498/2016 Pending Vijay
506-34 of IPC Court Dtd. Dtd. before Nagar
17.09.2016 31.12.2016 Court
2 177/2018 307-323-294- District 192/2018 33327/2018 Pending Tukoganj
506-34 of IPC Court Dtd. Dtd. before
26.07.2018 28.07.2018 Court
3 244/2022 323-294-506- District - - Under Tukoganj
34 of IPC Court investiga
tion
4 247/2022 25 of Arms District - - Under Tukoganj
Act Court investiga
tion
2. Along with the aforesaid letter, the Deputy Commissioner of
Police has given the list of five witnesses to be examined in this
matter against the petitioner. After drawing proceedings under
section 3 of the National Security Act,1980 the District Magistrate
has passed an order of detention without prescribing the period of
detention. However, the petitioner has been given the right to
submit a representation before the District Magistrate, Secretary
Department of Home Govt. of India New Delhi, Secretary Home
Department Govt. of M.P. Bhopal and Advisory Board.
3. Being aggrieved by the aforesaid order the petitioner has
approached this court by way of a writ petition challenging the
detention order inter alia on the ground that the provisions of
section 3(2) of the National Security Act,1980 should be exercised
in a very cautious manner and after granting the fair opportunity to
the aggrieved person. The petitioner has not been convicted in any
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of the criminal cases. Out of four cases, two cases have been
registered recently with the intention to initiate proceedings under
National Security Act against him. The petitioner is the only earning
member in the family and at the time of detention he was already in
jail, therefore, there was no need to pass an order of detention in the
apprehension of disturbance of public order. It is further submitted
that the Constitution of India guarantees the right to live with
dignity and freedom which has been taken away by the respondent
by passing the impugned order with an ulterior motive. Hence the
order is liable to be set aside.
4. The respondents have filed the reply by submitting that
pursuant to the detention order the detenu has been taken into the
custody and thereafter the order of detention was served upon him
along with the order of detention along with grounds of detention.
The date of arrest was duly communicated to the relatives of the
petitioner. He has been informed about his right to present against
the order of detention before the advisory board. It is further
submitted that intimation with regard to the detention of the
petitioner has been forwarded to the Central Government well
within time. It is further submitted that this petitioner was actively
indulged in criminal activities prejudicial to the public order and
public safety therefore, the learned District Magistrate well within
his power has rightly passed the order under section 3(2) of the
National Security Act,1980. To support the impugned order the
Government has placed reliance on the judgments passed by the
Apex Court in the case of Attorney General of India V/s Amritlal
Prajivandas (1994) 5 SCC 54, in case of Ashok Kumar Vs. Delhi
Administration (1982) 2 SCC 402, in case of Bharat Petroleum
Corporation Ltd. Vs. Varimani (2004) 8 SCC 579, in case of C.
Ronald Vs. UT Andaman & Nicobar Islands (2011) 12 SCC 428,
in case of Deepak Bajaj Vs. State of Maharashtra (2008) 16 SCC
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14 and prays for dismissal of the writ petition.
5. Shri Anshuman Shrivastava, learned counsel for the
petitioner has placed reliance on the judgment passed by the Apex
Court in the case of Arun Ghosh Vs. State of West Bengal reported
in 1970 (1) SCC 98 in which distinction has been drawn between
public order and law and order. It has been held that disturbance of
public order is to be distinguished from the act directed against
individuals who do not disturb society to the extent of causing a
general disturbance of public tranquillity. It is further submitted that
all the criminal cases registered against the petitioner are not to the
nature that which can be termed as a disturbance of the public order.
He has also placed reliance on the judgment passed by the Apex
Court in the case of Yumman Ongli Lembi Leima Vs. State of
Manipur and others reported in 2012 (2) SCC 176 where the
petitioner therein was arrested on mere apprehension that he would
likely be released on bail as a ground of his detention. The Apex
Court has held that the personal liberty of the individual is the most
precious and priced right guaranteed under the constitution in part
three thereof. The State has been granted the power to curb such
rights under the criminal laws and also under the laws of preventive
detention which are required to be exercised with due caution as
well as upon the proper appreciation of the facts. Shri Anshuman
Shrivastava has further placed reliance on a judgment passed by the
Division Bench of this Court in the case of Ravi Tiwari and others
Vs. Union of India and Others reported in 2003 (3) MPLJ 372 in
which the order of detention has been set aside which was not based
upon the proper application of mind, relevant document etc.
6. Learned Government Advocate for the State has argued in
support of the detention order and prays for dismissal of the writ
petition. He has placed reliance over the judgment passed by the
Division Bench of this Court in case of Smt. Kamini Yadav Vs.
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State of M.P. & others in writ petition No.25986/2018. It is further
submitted that the petition is premature as the order of the detention
has not been approved by the advisory board and confirmed by the
State Government. It is further submitted that even if the period of
detention has not been prescribed in the detention order by virtue of
section 13 of the National Security Act,1980 it shall not be more
than 12 months from the date of detention. It is further submitted
that during the arrest also order of detention can be passed in the
possibility of disturbing the public order after release on bail. The
petitioner has duly communicated the order of detention along with
the grounds. The petitioner has the right to submit a representation
challenging the order of detention hence the petition is liable to be
dismissed.
We have heard learned counsel for the parties.
7. Vide letter dated 05.02.2022 the Deputy Commissioner of
Police Zone No.3 Indore has requested the District Magistrate for
initiating the proceedings of detention against the petitioner by
supplying the list of four criminal cases registered against him.
There are as many as four criminal cases registered against him.
The details are as under:-
Sl. Crime Act Court's Challan Fau. M. No. Decision Police
No. No. Name No. Station
1 411/2016 354-323-294- District 389/2016 168498/2016 Pending Vijay
506-34 of IPC Court Dtd. Dtd. before Nagar
17.09.2016 31.12.2016 Court
2 177/2018 307-323-294- District 192/2018 33327/2018 Pending Tukoganj
506-34 of IPC Court Dtd. Dtd. before
26.07.2018 28.07.2018 Court
3 244/2022 323-294-506- District - - Under Tukoganj
34 of IPC Court investiga
tion
4 247/2022 25 of Arms District - - Under Tukoganj
Act Court investiga
tion
8. However, in none of the cases, the appellant has been
convicted so far. One of the offences has been taken very seriously
by the Deputy Commissioner of Police as well as the Collector
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which took place in the year 2016 and for which he was facing trial
under section 354 of the IPC but the same has not been concluded
so far. Another case was registered in the year 2018 under sections
307, 323, 294, 506 and 34 of the IPC in which also he was arrested
and released on bail. Two cases have been registered on 30.04.2022
for the offence under sections 307, 323, 294, 506 and 34 of the IPC
and section 25 of the Arms Act. Learned counsel for the petitioner
has submitted that the petitioner was arrested and produced before
the magistrate and the magistrate has raised serious objection as to
why he has been detained when all the offences are bailable in
nature. The applicant was released and immediately he was arrested
under section 151 of the IPC and sent to jail. The learned magistrate
in the impugned order has noted that at present the petitioner is in
jail but there is a strong possibility of he being released on bail and
after release, he may threaten the general public and women and
creates a dispute relating to political and communal matters. It is
clear from the grounds of detention that the applicant has been
directed to be detained merely on surmises and speculation. Under
section 3(2) of the National Security Act,1980 the Central
Government and the State Government may if satisfied with respect
to any person that with a view to preventing him from acting in a
prejudicial and to maintaining a public order make an order
directing such person be detained, therefore, the order section 3(2)
of the National Security Act,1980 is liable to be passed in order to
prevent any person if the authorities are satisfied that he may act in
a manner prejudicial to maintenance of public order. The Apex
court in the case of Arun Ghosh (supra) has given a formula that
one case can be distinguished from another case. A question to ask
is, does it lead to disturbance of the current of life of the community
to amount to a disturbance of the public order or does it affect
merely an individual leaving the tranquillity of the society
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undisturbed? This question has to be faced in every case on facts.
There is no formula by which one case can be distinguished from
another. The relevant extract reads as under:-
"3. The submission of the counsel is that these are stray
acts directed against individuals and are not subversive of
public order and therefore the detention on the ostensible
ground of preventing him from acting in a manner
prejudicial to public order was not justified. In support of
this submission reference is made to three cases of this
Court: Dr. Ram Manohar Lohia v. State of Bihar ; Pushkar
Mukherjee and Ors. v. State of West Bengal and Shyamal
Chakraborty v. The Commissioner of Police, Calcuta and
Anr. . In Dr. Ram Manohar Lohia's case this Court pointed
out the difference between maintenance of law and order
and its disturbance and the maintenance of public order
and its disturbance. Public order was said to embrace more
of the community than law and order. Public order is the
even tempo of the life of the community taking the country
as a whole or even a specified locality. 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. It is the degree of disturbance and its effect
upon the life of the community in a locality which
determines whether the disturbance amounts only to a
breach of law and order. Take for instance, a man stabs
another. People may be shocked and even disturbed, but the
life of the community keeps moving at an even tempo,
however much one may dislike the act. Take another case of
a town where there is communal tension. A man stabs a
member of the other community. This is an act of a very
different sort. Its implications are deeper and it affects the
even tempo of life and public order is jeopardized because
the repercussions of the act embrace large Sections of the
community and incite them to make further breaches of the
law and order and to subvert the public order. An act by
itself is not determinant of its own gravity. In its quality it
may not differ from another but in its potentiality it may be
very different. Take the case of assault on girls. A guest at a
hotel may kiss or make advances to half a dozen chamber
maids. He may annoy them and also the management but he
does not cause disturbance of public order. He may even
have a fracas with the friends of one of the girls but even
then it would be a case of breach of law and order only.
Take another case of a man who molests women in lonely
places. As a result of his activities girls going to colleges
and schools are in constant danger and fear. Women going
for their ordinary business are afraid of being waylaid and
assaulted. The activity of this man in its essential quality is
not different from the act of the other man but in its
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potentiality and in its affect upon the public tranquillity
there is a vast difference. The act of the man who molests
the girls in lonely places causes a disturbance in the even
tempo of living which is the first requirement of public
order. He disturbs the society and the community. His act
makes all the women apprehensive of their honour and he
can be said to be causing disturbance of public order and
not merely committing individual actions which may be
taken note of by the criminal prosecution agencies. It means
therefore that the question whether a man has only
committed a breach of law and order or has acted in a
manner likely to cause a disturbance of the public order is a
question of degree and the extent of the reach of the act
upon the society. The French distinguish law and order and
public order by designating the latter as order publique.
The latter expression has been recognised as meaning
something more than ordinary maintenance of law and
order. Justice Ramaswami in Writ Petition No. 179 of 1968
drew a line of demarcation between the serious and
aggravated forms of breaches of public order which affect
the community or endanger the public interest at large from
minor breaches of peace which do not affect the public at
large. He drew an analogy between public and private
crimes. The analogy is useful but not to be pushed too far. A
large number of acts directed against persons or
individuals may total up into a breach of public order. In
Dr. Ram Manohar Lohia's(1) case examples were given by
Sarkar, and Hidayatullah, JJ. They show how similar acts
in different contexts affect differently law and order on the
one hand and public order on the other. It is always a
question of degree of the harm and its effect upon the
community. The question to ask is: Does it lead 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 the society
undisturbed? This question has to be faced in every case on
facts. There is no formula by which one case can be
distinguished from another.
4. In the present case the acts of the petitioner affected the
family of Phanindra C. Das and also two other individuals
who were assaulted. The case is distinguishable from Writ
Petition No. 102 of 1969 where three instances of rioting
armed with lathis, iron rods and acid bulbs etc. were held
sufficient to disturb the even tempo of public life in that
locality and were treated as disturbance of public order. On
the other hand in Writ Petition No. 179 of 1968 assaults on
four persons A, B, C and D and throwing a cracker into a
police wireless van were not held to add up to the
disturbance of public order. They were treated as separate
acts which affected individuals but did not affect the
community at large.
5. In the present case all acts of molestation were
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directed against the family of Phanindra C. Das and were
not directed against women in general from the locality.
Assaults also were on individuals. The conduct may be
reprehensible but it does not add up to the situation where it
may be said that the community at large was being
disturbed or in other words there was a breach of public
order or likelihood of a breach of public order. The case
falls within the dictum of Justice Ramaswami and the
distinction made in Dr. Ram Manohar Lohia's case."
9. All the criminal cases against the petitioner are not of such
nature that it has ever affected or disturbed the society or the
community which has further caused disturbance to the public order
The court has held that it is not justified to detain a person as he is
likely to be released on bail. In the present case, a criminal case
under section 354 of the IPC was registered in the year 2016 and the
detention order has been passed after 6 years after the said incident.
Hence, there is no live link between the earlier incidence and the
incidence in respect of which the detention order had been passed.
The relevant paragraphs of Yumman Ongbi Lembi leima (supra) is
reproduced below:-
"23. Having carefully considered the submissions made on
behalf of respective parties, we are inclined to hold that the
extra-ordinary powers of detaining an individual in
contravention of the provisions of Article 22(2) of the
Constitution was not warranted in the instant case, where the
grounds of detention do not disclose any material which was
before the detaining authority, other than the fact that there
was every likelihood of Yumman Somendro being released on
bail in connection with the cases in respect of which he had
been arrested, to support the order of detention.
24. Article 21 of the Constitution enjoins that:
"21. Protection of life and personal liberty- No
person shall be deprived of his life or personal liberty except,
according to procedure established by law.
In the instant case, although the power is vested with
the concerned authorities, unless the same are invoked and
implemented in a justifiable manner, such action of the
detaining authority cannot be sustained, inasmuch as, such a
detention order is an exception to the provisions of Articles 21
and 22(2) of the Constitution.
25. When the Courts thought it fit to release the Appellant's
husband on bail in connection with the cases in respect of
which he had been arrested, the mere apprehension that he
was likely to be released on bail as a ground of his detention,
is not justified.
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26. In addition to the above, the FIRs in respect of which the
Appellant's husband had been arrested relate to the years
1994, 1995 and 1998 respectively, whereas the order of
detention was passed against him on 31st January, 2011,
almost 12 years after the last FIR No.190(5)98 IPS under
Section 13 of the Unlawful Activities (Prevention) Act. There
is no live link between the earlier incidents and the incident in
respect of which the detention order had been passed.
27. 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 Indian Penal Code, however
heinous, is insufficient to make out a case for issuance of an
order of preventive detention.
10. Under the National Security Act, a person is liable to be
detained if there is an apprehension that with a view to preventing
him from acting in any manner prejudicial to the security of the
State for maintenance of public order. It means his free movement
in society is liable to be curbed out by passing the order of
detention. But in the present case, the petitioner was already under
custody and the order of detention has been passed only on the basis
of the strong possibility that he would be released on bail and
thereafter would repeat the crime. Even in the case of which has
been strongly relied on by the Govt. Advocate i.e. Kamini Yadav
(Supra) in similar facts and circumstances the order of the detention
has been quashed as the detenu was already in custody at the time of
passing of the detention order. The relevant extract reads as under:-
"16. Therefore it is the settled position of law that
the authorities are not precluded from passing an order of
detention when the person concerned is in jail, but while
passing the order of detention, they are required to apply
their mind to the fact that the person concerned is already
in jail and there are compelling reasons justifying such
detention despite the fact that the detenu was already in
detention and the compelling reasons implies that there
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must be cogent material before the Detaining Authority on
the basis of which it may be satisfied that the detenu is
likely to be released from custody in the near future or
taking into account the nature of the antecedent activities
of the detenu, it is likely that after his release from custody
he would indulge in prejudicial activities and it is
necessary to detain him in order to prevent him from
engaging in such activities.
17. Whether the aforesaid requirements are
fulfilled in this case or not ? In this regard the respondents
tried to convenience the Court that the detaining authority
was aware of the fact that the accused is already in jail.
He draws our attention towards the report submitted by
the Superintendent of Police and argued that, in the
report, it was mentioned that the detenu has been arrested
in Crime No.197/2018 and has been sent to the judicial
custody. It was also mentioned that on 30.08.2018 the
detenu was arrested in connection with Crime
No.248/2018 and sent to the judicial custody. As per
respondent the detenu was arrested in connection with
Crime No.248/2018 and 197/2018 and was confined in
custody. But the aforesaid fact is not reflected from the
order passed by the detaining authority. In the order dated
11.10.2018, it is mentioned that :-
"it is necessary to detain him under Sub Section
(2) of Section 3 of the National Security Act.
1980". ¼jk"Vªh; lqj{kk vf/kfu;e 1980 dh /kkjk 3 dh
mi/kkjk ¼2½ ds v/khu fu:) fd;k tkuk vko';d gS ½.
In para No.2, it is mentioned that:-
"may be so detained and kept in Netaji Subhash
Chandra Bose Central Jail, Jabalpur" (dks fu:)
fd;k tkdj dsUnzh; tsy tcyiqj esa j[kk tkos).
In para No.3 of the order, it is mentioned that:-
"This order will be valid for a period of upcoming
03 (three) months from the date of actual
detention" (;g vkns'k vukosnd dks fu:) fd;s tkus
dh okLrfod frfFk ls vkxkeh 03 ¼rhu½ ekg dh vof/k ds
fy;s cS/k gksxk).
18. The aforesaid quoted portion of the order shows
that the detaining authority did not took the notice of the
fact that the detenu is already in custody. We have
minutely perused the impugned order dated 11.10.2018
passed by District Magistrate. In the said impugned order,
it is not mention that the accused was in jail at the time of
passing of the said order. It is not reflected from the said
order that the detaining authority was aware of the fact
that the accused was in jail at the time of passing of the
said order. No any such material has been produced
before this Court to establish such facts. Therefore, the
impugned order clearly indicates the non application of
mind by the detaining authority in respect of the
possibility of the release of the Petitioner. Since, the
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detaining authority was not made aware of the fact that
the accused was in custody in relation to the investigation
in two criminal cases, therefore, the detaining authority
had no occasion to apply his mind in respect of possibility
of the accused being released on bail and the probability
of his involvement in such activities after release on bail.
It is not clear from the order passed by the detaining
authority that it was in the notice of the authority that the
detenu was already in jail since 30.08.2018 otherwise the
authority will not mention in para-3 that "this order will
be valid for a period of upcoming 03 (three) months from
the date of actual detention". Before about 40 days back,
the detenu was in custody, therefore, the satisfaction of the
authority was required and should be mentioned in the
order passed, but the authority passed the order in
mechanical way by using a set proforma. Order did not
fulfill the requirement of the law and the principle laid
down by the Hon'ble Supreme Court and the High Court.
11. Therefore, in view of the above, the order of detention dated
02.05.2022 is unsustainable and is accordingly quashed. The Writ
Petition is allowed with the cost of Rs. 10,000.00 payable to the
petitioner.
12. Certified Copy as per Rule.
(VIVEK RUSIA) (AMAR NATH KESHARWANI))
JUDGE JUDGE
Ajit/-
AJIT
Digitally signed by AJIT KAMALASANAN
DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH
INDORE, ou=HIGH COURT OF MADHYA PRADESH BENCH
INDORE, postalCode=452001, st=Madhya Pradesh,
KAMALASAN
2.5.4.20=156c9cedca1b74d671db9f220a5e3ed6cba241ef
fad892107d95ef0a1afc55b4,
pseudonym=CFDFD9C36711CA738F527A5D61A1EE901
C09EF29,
AN
serialNumber=7F0BEE2D78BD57DA058F3247441C87E7E
0817FB61F5E2ABCAEE63CAAA7B3B9FF, cn=AJIT
KAMALASANAN
Date: 2022.06.30 18:06:09 +05'30'
