Madhya Pradesh High Court
Nitish Yadav vs The State Of Madhya Pradesh on 8 May, 2024
Author: Sushrut Arvind Dharmadhikari
Bench: Sushrut Arvind Dharmadhikari
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE SUSHRUT ARVIND DHARMADHIKARI
&
HON'BLE SHRI JUSTICE GAJENDRA SINGH
ON THE 8 th OF MAY, 2024
WRIT PETITION No. 11183 of 2021
BETWEEN:-
NITISH YADAV S/O SHRI KAMLESH YADAV, AGED
ABOUT 29 YEARS, OCCUPATION: BUSINESS
CHATRIBAG, INDORE DISTRICT INDORE (M.P.)
(MADHYA PRADESH)
.....PETITIONER
(SHRI HARSHWARDHAN SHARMA - ADVOCATE FOR THE PETITIONER)
AND
1. THE STATE OF MADHYA PRADESH THR.
PRINCIPAL SECRETARY VALLABH BHAWAN
BHOPAL (M.P.) (MADHYA PRADESH)
2. UNION OF INDIA. THROUGH SECRETARY,
MINISTRY OF HOME AFFAIRS SHASTRI BHAWAN
NEW DELHI (DELHI)
3. COLLECTOR / DISTRICT MAGISTRATE INDORE
(MADHYA PRADESH)
4. SUPERINTENDENT OF POLICE DISTRICT INDORE
(MADHYA PRADESH)
.....RESPONDENTS
( SHRI BHUWAN GAUTAM - GOVT. ADVOCATE FOR THE RESPONDENTS)
This petition coming on for admission this day, Justice Sushrut Arvind
Dharmadhikari passed the following:
ORDER
Heard finally with the consent of parties.
The present petition under Article 226 of the Constitution of India has
been filed assailing the order dated 31.05.2021 passed by the respondent
no.3/District Magistrate under Sub Clause 2 of Section 3 of National Security
Act, 1980(referred to 'NSA' hereinafter) by which petitioner has been sent under
detention.
2. Briefly stated facts of the case are that petitioner is resident of
District Indore and is living within the territorial jurisdiction of this Court. It
appears from the pleadings that since 2011, 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 31.05.2021 by the District
Magistrate, District Indore.
3. From the pleadings, it appears that Superintendent of Police(West)
Indore has recommended the District Magistrate, Indore to initiate proceedings
against the petitioner since he is continuously involved in activities which are
threat to public peace, law and order. The recommendation/representation of
Superintendent of Police(West) Indore is supported by documents vouching
for his criminal antecedents including Roznamcha etc and statements of
witnesses. The District Magistrate, Indore (respondent No.3 herein) after
considering the fact situation, recommendations as well as the documents
placed on record had passed the impugned order of detention in exercise of
power under Section 3(2) of the Act. Being aggrieved by the said order of
detention, petitioner has preferred this petition.
4. It is the submission of learned counsel for the petitioner that the order
of detention has been passed in utter violation of provisions of the Act of 1980
which clearly provides for providing reasons to be recorded in writing. In the
present case, the respondents without assigning any reason has reached to the
conclusion that petitioner has abused and threatened the public residing in the
vicinity alongwith other co-accused persons. However, no such order of
detention has been passed against the co-accused persons. He further submits
that Article 21 of the Constitution of India provides for Right to life and
personal liberty and by the impugned order petitioner's right to life and personal
liberty is infringed as the detention order is passed without prescribing the time
limit for which petitioner is kept in detention. It is the submission of learned
counsel for the petitioner that petitioner has not been given the opportunity of
hearing.
5. In support of his contention regarding the order of detention and
right to make representation, he relied upon the full Bench judgment passed by
this Court in the case of Kamal Khare Vs. State of M.P. reported in 2021(2)
MPLJ 554. He further contended that the State has committed illegality by not
following the procedural mandate laid down under Section 3 of the NSA Act by
not providing the opportunity of submitting representation before detaining
authority due to which his right of life and personal liberty under Article 21 of
the Constitution is evaded. It is also submitted that detaining authority is obliged
and ought to have communicated the petitioner about his right to make
representation until detention order is passed and further is approved by the
State Government. In the case in hand, no right to make representation was
provided by the authorities to the petitioner and the said non communication
would vitiate the whole proceedings of passing of the order of detention in the
light of the full Bench judgment in case of Kamal Khare (supra).
6 . Per contra, learned counsel for the respondent/State vehemently
opposed the petitioner while referring documents and arguments in place that
petitioner is a history sheeter indulged in various crimes including use of
obscene language, causing grievous hurt, criminal intimidation. Petitioner is a
person of criminal proclivity as despite being chargsheeted for offences under
various sections of IPC, there is no change in his behaviour. On, 06.05.201, in
ChatriBagh area, petitioner alongwith co-accused persons have pelted stones on
complainant party thereby causing grievous injuries to them due to which the
local residents of the area are living in the shades of threat. That apart, on
24.05.2021, received information from a passer that there is a silence in the
Chatri Bagh Area. When police personnel reached the spot, an old man told that
petitioner wielding a sword was marching on the road threatening the local
residents of dire consequences in case any one tried to inform the police about
him , therefore has become a threat to public peace and harmony. These
complaints precipitated the further proceedings and clearly reveal that petitioner
became a threat to the public order because of his audacity and desperate
criminal disposition. Therefore, impugned order does not deserve any
interference.
7. So far as the reliance placed by learned counsel for the petitioner on
the full Bench judgment passed in the case of Kamal Khare(supra) is
concerned, learned counsel for the respondent/State drawing the attention of
this Court to the order dated 31.05.2021 submits that petitioner has been given
opportunity to prefer a representation before the Home Secretary, Home
Ministry, New Delhi, Secretary, Department of Home, Bhopal as well as before
the District Magistrate, Indore and also to appear before the Advisory Board to
present his case against the order of detention and the said order was duly
communicated to him.
8. 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.
9. Heard learned counsel for the parties and perused the record.
10. Instant case is in respect of National Security Act and its different
fallouts and factual contours attract reconciliation between "Public Order" and
"Personal Liberty".
1 1 . The Apex Court in the case of Deepak Bajaj Vs. State of
Maharashtra and another reported in (2008) 16 SCC 14 has 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 reported in AIR 1967 SC 1441 as well as
Khudiram Das Vs. State of West Bengal, reported in (1975) 2 SCC 81.
12. Observation of Apex Court in the case of Khudiram Das(supra) 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
subsection (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
a n d 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.
13. 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,
reported in (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.
14. 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."
1 5 . T he 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, reported in (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
o t h e r 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]."
16. 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}.
17. 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.
18. In India where we witness high rate of crime against victims
especially against weaker sections and females originates from the confidence
o f 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.
19. 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.
20. 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, reported (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."
21. This observation is being reiterated by the Apex Court in the case
o f 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.
22. 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. It is not the case, where he faced allegations of minor offences but he
faced trial for offences like Section(s) 323, 324, 294, 506, 34 and 326 of IPC
along with other offences.
23. 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
bent 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 reported in 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."
24. Even otherwise the impugned order and record indicate that
immediately before initiation of proceedings, complaints were received by the
Police Station about his offending action whereby he tried to perpetrate
communal violence. Therefore, his criminal record apparently made him more
audacious than remorseful.
25. Recommendation of Superintendent of Police (West), Indore as
well as prosecution witness and police report indicates that petitioner is a
habitual offender and he is in habit of giving threats to the locals 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.
26. This Court finds force in the submission of learned counsel for the
State that in the light of the full Bench judgment passed in the case of Kamal
Khare(supra), petitioner was duly afforded opportunity of preferring
representation. Hence, it cannot be said that he was not afforded the
opportunity to present his case.
27. Conclusively, petition preferred by the petitioner fails and order of
detention dated 31.05.2021 passed by District Magistrate, Indore is hereby
affirmed. Respondents are at liberty to proceed against the petitioner as per law.
28. Petition sans merits and is hereby dismissed. No order as to costs.
Copy of this order be sent to District Magistrate, Indore for
information.
(S. A. DHARMADHIKARI) (GAJENDRA SINGH)
JUDGE JUDGE
sh
