Allahabad High Court
Adab @ Ifran vs State Of U.P. And 02 Others on 5 April, 2019
Bench: Vipin Sinha, Ajit Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Reserved Court No. - 51 Case :- HABEAS CORPUS WRIT PETITION No. - 3666 of 2018 Petitioner :- Adab @ Ifran Respondent :- State Of U.P. And 02 Others Counsel for Petitioner :- Purushottam Dixit Counsel for Respondent :- G.A.,Deepak Mishra Hon'ble Vipin Sinha,J.
Hon'ble Ajit Singh,J.
(Delivered by Hon. Ajit Singh, J.) Heard Sri Purushottam Dixit, learned Counsel for the petitioner, Shri Deepak Mishra, learned Counsel for Union of India and Sri Shri N.K. Verma, learned AGA appearing on behalf of the State-respondents.
By means of present Habeas Corpus writ petition, following reliefs have been sought:
"i) Issue a Habeas Corpus writ, order or direction in the nature of certiorari quashing the order dated 25.5.2018 passed by District Magistrate, Aligarh, O.P. No. 2 (Annexure No. 7 to this writ petition).
ii) Issue a Habeas Corpus writ, order or direction in the nature of certiorari quashing the order dated 14.8.2018 passed by respondent no. 1 (Annexure No. 8 to this writ petition).
iii) Issue a Habeas Corpus writ, order or direction in the nature of mandamus directing the respondent authority produce the corpus before this Hon'ble High Court.
iv) Issue a Habeas Corpus writ, order or direction in the nature of mandamus directing the respondent authority to release immediate to the petitioner detain under Section 3(2) of National Security Act.
v) Issue a Habeas Corpus wirt, order or direction in the nature of mandamus directing the respondent authority not interfere in the fundamental right of the corpus illegally through their agents.
vi) Award the cost of the petitioner to the petitioner.
The counsel for the petitioners submits that basis of the said detention order appears to be incident with regard to which three different FIRs were lodged with three different Case Crime numbers. The first being Case Crime no. 310 of 2017, under Sections 147, 148, 149, 307, 336, 353 I.P.C. and Section 7 Criminal Law Amendment Act, the second being Case Crime no. 311 of 2017, under Sections 147, 148, 149, 336, 307, 353, 427 I.P.C., Section 7 Criminal Law Amendment Act and Section 3 of Lok Nayas Adhiniyam and the third being Case Crime no. 312 of 2017. All the three FIRs have been lodged on the same day, i.e. 11.8.2017. The first F.I.R. was lodged at about 3:30 in the afternoon, the second F.I.R. was lodged at about 15:00 in the evening and the third F.I.R. was lodged at about 06:10 in the evening.
The Court has been informed that subsequent to the passing of the detention order dated 25.5.2018, the petitioner has been granted bail in all the three case crime numbers. As far as Case Crime no. 310 of 2017 is concerned, the petitioner was granted bail on 24.5.2018. So far as Case Crime no. 311 of 2017 is concerned he was granted bail on 22.5.2018 and in Case Crime no. 312 of 2017 he was granted bail on 23.5.2018 but it has not been disputed that the date on which the detention order was passed by the appropriate authority that is 25.5.2018, the petitioner was in jail and the satisfaction of the detaining authority as recorded in this regard is absolutely false.
Learned counsel for the petitioner has submitted that initially an FIR has been referred to in the proceedings. In all the three FIRs, neither the petitioner nor his family members were named. His name as an accused came into light during investigation. No incriminating article or material has been recovered either from the petitioner or on his pointing out.
At the very outset, it has been mentioned that no specific role has been assigned to him. Even though it has been mentioned that a mob of had gathered, in which three persons namely Vishal Pandey, Rajiv Sirohi and Mohd. Akram had received injuries. As per report of the Doctor the injuries sustained by the injured are simple in nature. There is no injury report whatsoever on record which may show that anybody had received grievous injury. This fact has not been disputed by Shri N.K. Verma, learned AGA or Shri Deepak Mishra, learned counsel appearing for the Union of India.
It has also been informed that in all the three cases, the petitioner has been granted bail by the Court of Sessions. It has been further informed that the petitioner has got no previous criminal history and he is not involved in any other criminal case.
Shri Deepak Mishra, learned counsel appearing for Union of India, at the very outset, has informed the Court that no allegation has been made against the Union of India even though a counter affidavit has been filed on behalf of Union of India which has been duly perused by this Court.
Learned counsel for the petitioner has drawn attention of this Court to the detention order dated 25.5.2018 which has been approved by the State Government on 14.8.2018 for a period of six months from the date of detention order.
Learned counsel for the petitioner has contended that the detaining authority has not applied its mind while passing the detention order.
Contention of the learned counsel for the petitioner is to the effect that the detention order has been passed primarily on the ground that the petitioner belongs to Muslim community without appreciating the fact that the second and third FIR was a logical conclusion of the first FIR which formed the basis of the second and third FIR in which the petitioner was not named. It has been contended that it is virtually a solitary case which has formed the basis of the detention order, i.e. no other criminal history of the petitioner. Further contention is that the detaining authority while recording the subjective satisfaction has failed to appreciate the fact that the petitioner has got no previous criminal history. It has been further contended that the detaining authority has not applied its mind while passing the detention order. The satisfaction recorded by the detaining authority is not proper and is not based upon the facts because the detaining authority has mentioned that detenue is trying to get bail but on the other hand before passing the detention order, the detenue was already on bail so the subjective satisfaction of the detaining authority does not reflect proper application of mind. The satisfaction recorded by the detaining authority in this regard reads as under:
सम्प्रति आप मु०अ०सं० 310/17 धारा 147/148/149/307/ 336/353 भादवि व 7 क्रिमिनल लाँ अमेन्डमेन्ट एक्ट, मु०अ०सं० 311/7 धारा 147/148/149/307/336/353/427 भादवि व 7 क्रिमनल लाँ अमेन्डमेन्ट एक्ट, व 3 लोक सम्पत्ति क्षति निवारण अधि०, मु०अ०सं० 312/17 धारा 147/148/149/307/336/353 भादवि व 7 क्रिमिनल लाँ अमेन्डमेन्ट एक्ट, के अभियोग में जिला कारागार अलीगढ़ में निरूद्ध है आपके द्वारा जमानत पर छूटने का प्रयास किया जा रहा है। आपका जमानत प्रार्थना पत्र माननीय उच्च न्यायालय इलाहबाद में सुनवाई हेतु लम्बित है। आपके जमानत पर छूटकर बाहर आ जाने पर लोक व्यवस्था को गम्भीर खतरा उत्तपन्न होने की प्रबल एवं पूर्ण संभावना है।
उपरोक्त आधारों से मेरा यह समाधान हो गया है, कि आपके द्वारा ऐसी किसी भी रिती से कार्यवाही किये जाने की सम्भावना है, जो लोक व्यवस्था के अनुरक्षण के प्रतिकूल और आपको ऐसी कार्यवाही से जो लोक व्यवस्था के अनुरक्षण के प्रतिकूल है, रोकने के उद्देश्य से यह आवश्यक है कि आपको निरूद्ध किया जा सके। आपको उक्त अधि० कि धारा 8 के अनुसरण में एतदद्वारा सूचित किया जाता है कि आपको ऐसे आदेश जिसके अधीन आप निरूद्ध किये गये है, के विरूद्ध निरोधक अधिकारी (जिला मजिस्ट्रेट) तथा राज्य सरकार को प्रत्यावेदन देने के अपने अधिकार का प्रयोग करना चाहे तो उसे उस कारगार जहा आप निरूद्ध है, के अधीक्षक के माध्यम से यथा शीघ्र प्रस्तुत करें। ऐसे प्रत्यावेदन पर यदि यह निरोधादेश के जारी होने के बारह दिवस अथवा राज्य सरकार द्वारा निरोधादेश का अनुमोदन होने, जो भी पहले हो, के बाद प्राप्त होगा तो निरोधक अधिकारी (जिला मजिस्ट्रेट) द्वारा उस पर विचार नहीं किया जा सकेगा। यदि आप राज्य सरकार को ऐसा प्रत्यावेदन देने के अपने अधिकार का प्रयोग करना चाहें तो आप उसे सचिव गृह विभाग उत्तर प्रदेश सरकार लखनऊ को सम्बोधित करके उस कारागार जहाँ आप निरूद्ध हैं, के माध्यम से प्रस्तुत करें।
Thus, contention is that subjective satisfaction as required to be recorded by the detaining authority keeping in view the legal parameters as established by the consistent law in this regard has been overlooked. Further contention is that present case is a case of "law and order" and/"public order" is not involved in the present case. The detaining authority has not applied its mind as to why and under what circumstances the order has been passed without considering the question as to whether the criminal law machinery of the State is sufficient to deal with the situation or not.
Much has been contended by the counsel for the petitioner to the effect that the present is a case of only simple "law and order" and will not fall within the category of "public order". The questions of "law and order" and "public order" have been engaging the attention of the Court since time immemorial. A perusal of relevant case law in this regard would show that "public order" indicates something more than "law and order". The breach of public order involves a degree of disturbance and it affects upon the life of the community in a locality which determines whether the disturbance amounts only to breach of law and order and not a public order. The difference between two concepts is in only one degree. An act affecting law and order may not necessarily also affect the public order and an act which might be prejudicial to public order may not affect the security of the State. Public order is synonymous with public safety and tranquillity and it is the absence of any disorder involving breaches of local significance in contradiction to national upheavals, such as revolution, civil strife, war, affecting the security of the State.
In Dr. Ram Manohar Lohia vs State of Bihar and others, 1966 AIR 740, it has been held by the Apex Court that any contravention of law always affects order but before it can be said to affect public order, it must affect the community or the public at large. It was observed that offences against "law and order", "public order" and "security of the State" are demarcated on the basis of the gravity. It is the degree of disturbance and its affect upon the life of the community in a locality which determines whether the disturbance amounts only to breach of law and order though in the grounds of detention, the detaining authority had stated that by committing this offence in public, the detenu created a sense of alarm, scare and a feeling of insecurity in the minds of the public of the area and thereby acted in a manner prejudicial to the maintenance of public order which affected the even tempo of life of the community, but in fact it was a solitary case of robbery, it was held that mere citation of these words in the order of detention is more in the nature of a ritual rather than with any significance to the content of the matter. Thus a solitary instance of robbery as mentioned in the grounds of detention is not relevant for sustaining the order of detention for the purpose of preventing the detenu from acting in any manner prejudicial to the maintenance of public order.
The determining test in all such cases is "the act leads to disturbance of the current of life of the community so as to amount to a disturbance of the public order or does it affect merely an individual leaving the tranquillity of society undisturbed." The expression "law and order", "public order" and "security of the State" are distinct concepts though always not separate. Every public order if disturbed, must lead to public disorder but every breach of the peace does not lead to public disorder. For example, when two drunkards quarrel and fight there is disorder but not public disorder. They can be dealt with under the powers to maintain law and order but cannot be detained on the ground that they were disturbing public order. Disorder is no doubt prevented by the maintenance of law and order also but disorder is a broad spectrum which includes at one end small disturbances and at the other the most serious and cataclysmic happenings. (Dr. Ram Manohar Lohia vs State of Bihar and others, AIR 1966 SC 740).
In Mrs. T. Devaki vs Government Of Tamil Nadu and others, reported in AIR 1990 SC 1086, the Apex Court has held that single incident of murderous assault on the Minister in a public place was prejudicial to the maintenance of public order. Any disorderly behaviour of a person in the public or commission of a criminal offence is bound to some extent affect the peace prevailing in the locality and it may also affect law and order problem but the same need not affect maintenance of public order. The incident did not and could not affect public peace and tranquillity nor it had potential to create a sense of alarm and insecurity in the locality. The solitary incident as alleged in the ground of detention is not relevant for sustaining the order of detention for the purpose of preventing the petitioner from acting in a manner prejudicial to the maintenance of public order.
Learned counsel for the petitioner has further submitted that this is a solitary case and thus, there was no occasion for the detaining authority to have passed the preventive detention order. Reliance has been placed in this regard on the judgment of the Apex Court rendered in the case of Rekha vs State Of Tamilnadu through Secretary to Government, reported in AIR 2011 (5) SCC 244, wherein the Apex Court has held that if recourse to criminal proceedings would be sufficient to deal with alleged prejudicial activities, then the detention order would be illegal. Even If a person is liable to be tried in a criminal court for commission of a criminal offence or is actually being so tried, but the ordinary criminal law (IPC or the penal statutes) will not able to deal with this situation, then and only then, the preventive detention law be taken recourse to.
It has been contended that in the present case it has not been shown that the detaining authority that the detaining authority has applied its mind to the aforesaid fact as to how and under what circumstances can it be presumed that the criminal law machinery of the State by itself is not sufficient to deal with the situation at hand.
Reference may also be made to a judgment of the Apex Court rendered in the case of Ramveer Jatav vs State Of U.P. and others reported in AIR 1987 SC 63, wherein the Apex Court has observed that it is difficult to infer from the solitary ground set out in the grounds of detention that the act alleged to have been committed by the petitioner would have disturbed public order as distinct from law and order or that one single act committed by the petitioner was of such a character that it could reasonably be inferred by the detaining authority that if not detained, he would be likely to indulge in such activity in future.
Reliance has also been placed on another judgment of the Apex Court rendered in the case of Subhash Bhandari vs District Magistrate Lucknow, reported in AIR 1987 (4) SCC 685.
Thus, in view of the aforesaid facts and circumstances of the case and consistent legal position as enumerated above, we set aside the impugned detention order dated 25.5.2018 passed by the District Magistrate, Aligarh, respondent no. 2, as approved by the State Government on 13.7.2018 and all consequential orders by means of which the period of detention was extended from time to time.
The writ petition is allowed. The petitioner, if not wanted in any other case, shall be released from custody forthwith in accordance with law after due communication of this order to the authorities concerned, once again in accordance with law.
Order Date : 5.4.2019.
Faridul.