Madhya Pradesh High Court
Mukesh Garg vs The State Of Madhya Pradesh on 1 October, 2018
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THE HIGH COURT OF MADHYA PRADESH
W.P. No. 18568/2018
Mukesh Garg Vs. State of M.P. and others
Gwalior, 01/10/2018
Shri Himanshu Pandey, learned counsel for the
petitioner.
Shri Praveen Newaskar, learned Government
Advocate for the respondents/State.
It is informed by learned Government Advocate that in pursuance to undertaking given by the petitioner on 28/09/2018, he has surrendered at 01PM today and is being taken in custody.
With the consent of learned counsel for the parties, the matter is instantly taken up for hearing.
Petitioner takes exception to an order passed by the District Magistrate, District Bhind on 09/04/2018 in purported exercise of his powers under sub-section (3) of Section 3 of the National Security Act, 1980, directing for the detention of the petitioner under sub-section (2) of Section 3 of 1980 Act to prevent him from acting in any manner prejudicial to the maintenance of public order.
The facts unfurled from the record reveal that the proceedings under 1980 Act emanated from the letter No. [email protected]@jhMj@NSA/08/18 dated 07/04/2018 whereby District Superintendent of Police, Bhind, informed the District Magistrate about 2 THE HIGH COURT OF MADHYA PRADESH W.P. No. 18568/2018 Mukesh Garg Vs. State of M.P. and others the petitioner indulging into activities prejudicial to the maintenance of public order stating that the petitioner was found involved in criminal activities since 2001, and has not mend his ways, indulging in abusing, indulging in marpeet with the officials of the State; leading procession raising communal slogans and sending audio and video thus creating apprehension in the common person. The report led the District Magistrate initiate proceedings and after recording statements of witnesses of the prosecution and after satisfying himself that unless prevented the petitioner the activities and the action of the petitioner shall be prejudicial to the maintenance of public order, passed the order directing for the detention of the petitioner by order dated 09/04/2018, which was approved by the State Government on 16/04/2018. And the information whereof was sent by the State Government to Central Government on 28/04/2018. However, the detention order remained ineffective as the petitioner remained absconded till today when he surrendered at 1PM.
The petitioner questions the detention order on two counts, firstly, that the District Magistrate has 3 THE HIGH COURT OF MADHYA PRADESH W.P. No. 18568/2018 Mukesh Garg Vs. State of M.P. and others misconstrued "law and order" to that of "public order" and secondly, the order vitiates for non- compliance of the provisions contained under sub- section (5) of Section 3 of 1980 Act.
In furtherance to his contention as to public order being not violated, learned counsel led us through each cases which forms basis for the complaint by the Superintendent of Police, Bhind and the action thereon by the District Magistrate, viz, offences registered vide crime No. 51/2001 under Sections 304A, 201, 34 IPC; Crime No. 275/2008 under Sections 323, 325, 294, 506 part II, 34 IPC; Crime No. 191/2011 under Sections 353, 294, 34 IPC; Crime No. 67/2017 under Sections 294, 353, 186, 506, 34 IPC; Crime No. 219/2017 under Sections 327, 323, 294, 506, 34 IPC; Crime No. 651/2017 under Sections 153(1), 504, 505, 34 IPC; Crime No. 593/2017 under Section 188 IPC. It is contended that in each of these crimes, the issue relates to law and order and not public order, as would attract any action against the petitioner under the Act of 1980. It is further contended that in few of the cases the petitioner has been exonerated of the charges either on compromise or 4 THE HIGH COURT OF MADHYA PRADESH W.P. No. 18568/2018 Mukesh Garg Vs. State of M.P. and others because of non-proving the charges by the prosecution beyond reasonable doubt.
The reliance is placed on the decisions in Ram Manohar Lohia Vs. State of Bihar and another [AIR 1966 SC 740], Ajay Dixit Vs. State of U.P. and others [(1984) 4 SCC 400], Ashadevi Wife of Gopal Ghermal Mehta (Detenu) Vs. K. Shivraj Addl. Chief Secretary to the Govt. of Gujarat and another [(1979) 1 SCC 222], Additional Secretary to the Government of India and others Vs. Smt. Alka Subhash Gadia and another [1992 Supp. (1) SCC 496], to bring home the submissions that it is when the public order is endangered or apprehended, only in such cases the provisions of 1980 Act are attracted.
In furtherance to his contention, as to vitiating of impugned order for non-adherence to the stipulations contained under sub-section (5) of Section 3 of 1980 Act, learned counsel for the petitioner submits that the stipulations being mandatory and the State Government having failed to report the matter to the Central Government within the time stipulated in said provision.
Reliance is placed on the decision in Vinayak 5 THE HIGH COURT OF MADHYA PRADESH W.P. No. 18568/2018 Mukesh Garg Vs. State of M.P. and others Ramchandra Sakhalkar Vs. D. Ramchandran, Commr. Of Police [1985 Cr.LJ 1257 (Bombay)] and State of Manipur and others Vs. Sanasam Ongbi and another [(1999) 8 SCC 250] to bolster the contention that the Act of 1980 being a preventive law, the provisions contained are to be strictly adhered to and the non- adherence would vitiate the entire proceedings.
The State of Madhya Pradesh has justified its action. It is urged that the activities of the petitioner right from 2001 have been detrimental to the peace and tranquility of the Society and have been the cause of disruption to public order, which seen on the rise in close proximity of the period from passing of detention order. It is urged that maintaining peace, tranquility and law and order in the Society is one of the foremost duties of the State and its functionaries. The District Magistrate, it is urged, is being empowered under the Act of 1980 to pass order against a person, after satisfying himself that the activities he is indulged in will be prejudicial to the maintenance of public order, to detain such person. It is urged that the activities in which the petitioner was indulged in, causing public 6 THE HIGH COURT OF MADHYA PRADESH W.P. No. 18568/2018 Mukesh Garg Vs. State of M.P. and others unrest at large relates to disturbance of public order. It is contended that the District Magistrate after objectively considering all the cases in which the petitioner has indulged in had impacted the community at large, directed for the detention of the petitioner. As to communication of the order to the Central Government it is urged that same being communicated on 28/04/2018 there is substantial compliance of the stipulations contained in sub- section (5) of Section 3 of 1980 Act. On these contentions, respondents seek dismissal of the petition.
Considered rival submissions, perused the material on record and various decisions cited at bar.
Liberty of a person though a precious right, is not without fetters. Sub-clause (b) of Article 22(3) of the Constitution of India excludes applicability of sub-clause (1) and (2) of said Article "to any person who is arrested or detained under any law providing for preventive detention". Similar exception is carved out in the second part of Article 21 of the Constitution which envisages that "no person shall be deprived of his life or personal liberty except 7 THE HIGH COURT OF MADHYA PRADESH W.P. No. 18568/2018 Mukesh Garg Vs. State of M.P. and others according to the procedure established by law".
The prevention being an exception, imperative it is that the law which empowers the State to prevent the liberty is to be strictly construed, i.e., the parameters laid down therein must be strictly adhered to.
In Smt. Alka Subhash Gadia (supra) it is observed:-
"10. As regards the person who is detained under preventive detention law, a sated above, it is the safeguards contained in sub-clauses (4) to (7) of Article 22 which are an exception to sub- clauses (1) and (2) thereof, which come into play. Sub-clause (4) states that the preventive detention law shall not provide for the detention of a person for a period longer than three months without his having to be produced before the magistrate as is the requirement of sub- clause (2). However, if he is to be detained beyond the period of three months, it can be done so, only if the Advisory Board mentioned therein reports before the said period of three months, that there is, in its opinion, sufficient cause for such detention. It further states that even if the Advisory Board so reports, the person cannot be detained beyond the maximum period prescribed in the laws of detention. The sub-clause also lays down that the law of detention must be a law passed by the Parliament laying down both (a) the maximum period for which a person may be detained without obtaining the opinion of the Advisory Board, (b) the maximum total period for which a person may be detained preventively and (c) the procedure to be followed by the Advisory 8 THE HIGH COURT OF MADHYA PRADESH W.P. No. 18568/2018 Mukesh Garg Vs. State of M.P. and others Board in an inquiry before it. If the law so enacted provides for detention of a person for longer than three months without obtaining the opinion of the Advisory Board then the law must further specify both the circumstances under which and the class or classes of cases in which the person may be so detained preventively.
11. The provisions of Articles 21 and 22 read together, therefore, make it clear that a person can be deprived of his life or personal liberty according to procedure established by law, and if the law made for the purpose is valid, the person who is deprived of his life or liberty has to challenge his arrest or detention, as the case may be, according to the provisions of the law under which he is arrested or detained. This proposition is valid both for punitive and preventive detention. The difference between them is made by the limitations placed by sub-clauses (1) and (2) on the one hand and sub-clauses (4) to (7) on the other of Article 22, to which we have already referred above. What is necessary to remember for our purpose is that the Constitution permits both punitive and preventive detention provided it is according to procedure established by law made for the purpose and if both the law and the procedure laid down by it, are valid.
12. This is not to say that the jurisdiction of the High Court and the Supreme court under Articles 226 and 32 respectively has no role to play once the detention -
punitive or preventive - is shown to have been made under the law so made for the purpose. This is to point out the limitations which the High Court and the Supreme Court have to observe while exercising their respective jurisdiction in such cases. These limitations are normal and well known, and are self-imposed as a matter of prudence, propriety, policy and practice 9 THE HIGH COURT OF MADHYA PRADESH W.P. No. 18568/2018 Mukesh Garg Vs. State of M.P. and others and are observed while dealing with cases under all laws. Though the Constitution does not place any restriction on these powers, the judicial decisions have evolved them over a period of years taking into consideration the nature of the right infringed or threatened to be infringed, the scope and object of the legislation or of the order or decision complained of, the need to balance the rights and interest of the individual as against those of the society, the circumstances under which and the persons by whom the jurisdiction is invoked, the nature of relief sought etc. To illustrate these limitations: (i) in the exercise of their discretionary jurisdiction the High Court and the Supreme court do not, as courts of appeal or revision, correct mere errors of law or of facts; (ii) the resort to the said jurisdiction is not permitted as an alternative remedy for relief which may be obtained by suit or other mode prescribed by statute. Where it is open to the aggrieved person to move another tribunal or even itself in another jurisdiction for obtaining redress in the manner provided in the statute, the Court does not, by exercising the writ jurisdiction, permit the machinery created by the statute to be by-passed; (iii) it does not generally enter upon the determination of questions which demand an elaborate examination of evidence to establish the right to enforce which, the writ is claimed; (iv) it does not interfere on the merits with the determination of the issues made by the authority invested with statutory power, particularly when they relate to matters calling for expertise, unless there are exceptional circumstances calling for judicial intervention, such as, where the determination is mala fide or is prompted by extraneous considerations or is made in contravention of the principles of natural justice or any constitutional provision; (v) the Court may also intervene where (a) 10 THE HIGH COURT OF MADHYA PRADESH W.P. No. 18568/2018 Mukesh Garg Vs. State of M.P. and others the authority acting under the concerned law does not have the requisite authority or the order which is purported to have been passed under the law is not warranted or is in breach of the provisions of the concerned law or the person against whom the action is taken is not the person against whom the order is directed; or (b) where the authority has exceeded its powers or jurisdiction or has failed or refused to exercise jurisdiction vested in it; or (c) where the authority has not applied its mind at all or has exercised its power dishonestly or for an improper purpose;
(vi) where the Court cannot grant a final relief, the Court does not entertain petition only for giving interim relief. If the Court is of opinion that there is no other convenient or efficacious remedy open to the petitioner, it will proceed to investigate the case on its merits and if the Court finds that there is an infringement of the petitioner's legal rights, it will grant final relief but will not dispose of the petition only by granting interim relief; (vii) where the satisfaction of the authority is subjective, the Court intervenes when the conclusion is arrived at by the application of a wrong test or misconstruction of a statute or it is not based on material which is of a rationally probative value and relevant to the subject matter in respect of which the authority is to satisfy itself. If again the satisfaction is arrived at by taking into consideration material which the authority properly could not, or by omitting to consider matters which it ought to have, the Court interferes with the resultant order; (viii) In proper cases the Court also intervenes when some legal or fundamental right of the individual is seriously threatened, though not actually invaded.
13. These limitations are not only equally observed by the High Court and the Supreme Court while exercising their writ 11 THE HIGH COURT OF MADHYA PRADESH W.P. No. 18568/2018 Mukesh Garg Vs. State of M.P. and others jurisdiction in preventive detention matters, but in view of the object for which the detention law is enacted and is permitted by the Constitution to be enacted, the courts are more circumspect in observing them while exercising their said extraordinary equitable and discretionary power in these cases. While explaining the nature of the detention law and of the orders passed under it and the scope of the powers of the Court in these matters, this Court has often emphasised the distinction between the existence of its wide powers and the propriety and desirability of using them."
In the case at hand, the District Magistrate, Bhind while detaining the petitioner from preventing him to indulge in anti-social activities in exercise of his powers under Section 3(3) of 1980 Act has taken into consideration various activities which the petitioner has indulged in causing disturbance to public order. The contention of the petitioner that plain reading of these activities and criminal registered against the petitioner would relate to "law and order" and not "public order", need to be tested on the following observations by the Supreme Court in Babul Mitra Vs. State of West Bengal and others [AIR 1973 SC 197]:
"7. The last argument is that the grounds of detention are not connected with 'public order': at worst they may be connected with 'law and order.' The distinction 12 THE HIGH COURT OF MADHYA PRADESH W.P. No. 18568/2018 Mukesh Garg Vs. State of M.P. and others between "law and order" and "public order" has been pointed out succinctly in Arun Ghosh v. State of West Bengal (AIR 1970 SC 1228). According to that decision the true distinction between the areas of "law and order" and "public order" is "one of degree and extent of the reach of the act in question upon society". The Court pointed) out that "the act by itself is not determinant of its own gravity. In its quality it may not differ but in its potentiality it may be very different." So it is to be seen in the instant case whether the petitioner's acts have any impact upon the local community or, to put it in the words of Hidayatullah. C. J. in the aforesaid case, "disturb the even tempo of the life of the community of that specified locality."
Furthermore, exploding of bombs and attempt at extortion or pain of death has been construed to be cause of disturbing public order (Ram Ranjan Chatterjee Vs. State of West Bengal [AIR 1975 SC
609)]. Even a solitary incident can be sufficient to cause disturbance and breach of public order [Kamlabai (Smt.) Vs. Commissioner of Police, Nagpur and others (1993) 3 SCC 384)]. Threatening of shopkeeper that of locality to shoot them if they failed to give money and terror stricken shopkeeper closed their shop affects public order [Sharad Kumar Tyagi Vs. State of Uttar Pradesh and others (AIR 1989 SC 764)].
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THE HIGH COURT OF MADHYA PRADESH W.P. No. 18568/2018 Mukesh Garg Vs. State of M.P. and others In Amin Mohammed Qureshi Vs. Commissioner of Police, Greater Bombay (AIR 1994 SC 1333) it is held that indulgence in serious offences regularly by weapon wielding desperado would disrupt maintenance of public order.
When the activities which the petitioner has indulged in and the cases which are registered and pending trial is adjudged on the principle of law adverted above, the contention on behalf of the petitioner that his act, though criminal, only relates to law and order, must fail.
Thus the impugned order of detention cannot be faulted with on the contention that the activities of the petitioner did not cause disturbance to public order.
The next question which arises for consideration is, whether the detention order stand vitiated for non-compliance of the provisions of sub- section (5) of Section 3 stricto sensu.
Sub-section (5) of Section 3 of 1980 Act stipulates:-
"(5) When any order is made or approved by the State Government under this section, the State Government shall, within seven days, report the fact to the Central 14 THE HIGH COURT OF MADHYA PRADESH W.P. No. 18568/2018 Mukesh Garg Vs. State of M.P. and others Government together with the grounds on which the order has been made and such other particulars as, in the opinion of the State Government, have a bearing on the necessity for the order."
In the case at hand the detention order was passed on 09/04/2018. The State Government under sub-section (4) of Section 3 approves it on 16/04/2018, and communicates to the Central Government on 28/04/2018. The communication to the Central Government, evidently, is not within 07 days from it approval. What is the effect? In Sanasam Ongbi (supra), it is observed by their Lordships:-
"2. On a plain reading of the section, it appears to us that the statutory obligation on the State Government is to report the fact to the Central Government together with the grounds on which the order has been made within seven days of the date of approval when the order is made by any other authority than the State Government and within seven days of the date of the order when the order is made by the State Government itself....."
Thus sending of report along with the grounds on which the order has been made to Central Government within seven days from its approval by the State Government is a mandatory requirement, of statute. Non-adherence thereto, in our 15 THE HIGH COURT OF MADHYA PRADESH W.P. No. 18568/2018 Mukesh Garg Vs. State of M.P. and others considered opinion will vitiate the detention.
In the case at hand, evidently, the State Government failed to send the report with the grounds on which the order of detention is made, within seven days of its approval, thus the detention of petitioner is vitiated.
For the reasons above, the impugned order is set aside and the detention thereof is quashed. However, the cases pending against the petitioner will not be adversly affected and are to be tried on their own merits. The petitioner, detenu shall be released forthwith if not required in any other case.
The petition is disposed of finally in above terms.
Parties to bear their respective costs.
(Sanjay Yadav) (Vivek Agarwal)
Judge Judge
Shubhankar*
Digitally signed by
SHUBHANKAR MISHRA
Date: 2018.10.04 18:09:05
+05'30'