Allahabad High Court
Islamuddin S/O Habeeb Ahmad (In Jail) ... vs State Of U.P. Through Secretary, ... on 7 December, 2007
Bench: Yatindra Singh, Vineet Saran
JUDGMENT
1. The main question for determination in this habeas corpus writ petition which is directed against the detention order dated 29.3.2007 passed by District Magistrate, Bijnor is whether a solitary incident can amount to disturbance of public order or not.
2. FACTS:
The grounds of detention as mentioned in the impugned order dated 29.3.2007 are to the effect that on 4.3.2007 an incident had taken place in which the petitioner and his associates had molested the daughter of Jamir Ahmad, whereafter in the evening the father and brothers of the girl reached the shop of the petitioner to complain of the same to Habib, father of the petitioner. The said Habib as well as the petitioner and his relatives misbehaved with Jamir Ahmad and his sons and threatened them of dire consequences and asked them to return back. Thereafter they got excited and the petitioner took out a knife and his accomplice Saleem took out a sword and started attacking Jamir Ahmad and his sons. The petitioner Islamuddin attacked Jamir Ahmad on his chest with a knife and his accomplice Saleem attacked said Jamir Ahmad in his stomach with a sword. There were a large number of villagers on the spot but because of their terror, no one could dare to oppose the petitioner and his associates, who thereafter left the spot displaying their blood stained weapons and threatening the villagers. After they had left the place, the sons of Jamir Ahmad and other villagers came forward to help Jamir Ahmad, who was in the last stage of his life. He was then taken to Bijnor and was declared dead in the hospital. A case was initially registered under sections 307, 323, 504, 506, 34 IPC which was later on converted to Section 302 IPC. In the detention order it has also been stated that said Jamir Ahmad was attacked by the petitioner openly in the crowded market of the village at about 7.30 p.m. and because of the terror of the petitioner and his associates, no one was even ready to give information or evidence against them. It has further been mentioned that the petitioner was arrested on 11.3.2007 and the knife as well as the sword which were used in the offence had been recovered; that the police reported that the villagers had terrorised thereby affecting the normal life in the area; that the said incident was reported in the local newspaper Amar Ujala because of which also the residents of the area were terrorised of the petitioner and his associates; and that after having been arrested, the petitioner was sending threats to the local residents that after he was released on bail he would take action against those who oppose him and that because of the incident there was disturbance in the area due to which additional police force had to be sent to the village. We have heard Mrs. Swati Agrawal learned Counsel for the petitioner who has rendered full assistance to this Court and has placed the case in a succinct manner which is worthy of appreciation. We have also heard Sri Arvind Tripathi, learned AGA and have perused the record.
3. THE SUBMISSIONS:
The submission of the learned Counsel for the petitioner is two fold:
(i) There is violation of Section 11 of the National Security Act as the approval/report submitted by the Advisory Board was after the prescribed period of seven weeks.
(ii) The incident in question, if at all, may amount to disturbance of "law and order" and not "public order".
3.1 1st SUBMISSION: Approval/Report of advisory Board-within time.
From the record it is clear that the detention order was passed on 29.3.2007. Though the same was communicated by the Deputy Secretary on 21.5.2007, the Advisory Board had submitted its opinion/report well within seven weeks, which was on 14.5.2007. As such, there is no violation of Section 11 of the National Security Act and the first submission of the learned Counsel for the petitioner does not have force.
3.2 2nd SUBMISSION: Single incident may relate to disturbance of "public order".
The learned Counsel for the petitioner has vehemently submitted that the detention order has been passed on the basis of a solitary incident which relates to personal dispute between two parties and would thus, if at all, be a case of disturbance of law and order and not public order. In support of her submission she has placed reliance on Dipak Bose alias Naripada v. State of West Bengal 1973 SCC (Cri) 684; Smt. Victoria Fernades v. LalmaL Sawma and Ors. 1992 (19) ACC 143 (SC); Mrs. T. Devaki v. Government of Tamil Nadu and Ors. AIR 1990 SC 1068; and Prakash v. State of U.P. and Ors. and Ram Pratap Singh v. Union of India and Ors. 2007 (59) ACC 385.
4. On the other hand Sri Tripathi, learned AGA has submitted that even a single incident which may disturb the tranquility of the area may amount to disturbance of public order and that since the incident in the present case had taken place in a public place, because of which the residents of the area were terrorised, the same would amount to disturbance of public order. In support of his submission he has placed reliance on Arun Ghosh v. State of West Bengal ; State of U.P. and Anr. v. Sanjai Pratap Gupta alias Pappu and Ors. 2004 (II) U.P. Cri. R. 667; Rana @ Parvindra v. Union of India and Ors. 2002 (44) ACC 757; Apda Haran Singh v. Union of India and Ors. 1994 Cri.LJ 480 and State of U.P. v. Kamal Kishore Saini .
5. It is true that a solitary case would normally not amount to disturbance of public order and may remain confined to law and order problem but the same cannot be generalised and the impact of the incident has to be considered in the facts of each individual case. The Apex Court in the case of State of U.P. v. Sanjai Pratap Gupta (supra) has, in paragraph 14, observed that "A single act cannot be considered sufficient for holding that public-order was affected is clearly without substance. It is not the number of acts that matters. What has to be seen is the effect of the act on the even tempo of life, the extent of its reach upon society and its impact.
6. There are border line cases where there could be a very fine distinction between what amounts to disturbance of "public order" and "law and order". In a given set of circumstances, the same act may amount to disturbance of law and order, which is a much wider term. However, in separate set of facts and circumstances, the same incident can amount to disturbance of public order. Every incident which forms the basis of passing of the detention order, cannot be seen in isolation and has to be considered in the light of the attending circumstances. The true distinction lies not merely in the nature or quality of the act, but in the degree and extent of its reach and effect upon society. A Division Bench of this Court in the case of Apda Haran Singh v. Union of India (supra) while dealing with a case of an incident of murder relating to an individual based on personal enmity, held the same to be one relating to public order as the facts of the said case supported such decision. Thus there cannot be a straight jacket formula by which a particular incident can be classified as one relating to "law and order" or "public order".
7. It is true that every assault in a public place resulting in the death of the victim is likely to cause horror and panic among the spectators but the same may not necessarily amount to causing disturbance of public order. It is the impact of the incident on the mind and lives of the public which is to be considered for determining whether the same amounts to disturbance of public order or law and order.
8. The facts in the present case are that the petitioner and his associates had molested the daughter of the deceased, regarding which the deceased, along with his sons, had gone to the shop of the petitioner for lodging their protest. Although the learned Counsel for the petitioner has submitted that it is a case of old enmity relating to about four years back when the marriage of the niece of the deceased Jamil Ahmad was initially settled with the petitioner and was thereafter broken, and thus the deceased and his family members had been agitating and creating problems in the family of the petitioner, but this question could be relevant for the Advisory Board to consider and not in this Habeas Corpus petition. Nevertheless, we have looked into this also and do not find any merit, as there is no evidence to show that the deceased had gone to the petitioner's shop, well prepared for any untoward incident. The story of the petitioner is not supported by any document, except one first information report which also was lodged on the basis of an application under Section 156(3) Cr.P.C. much after the incident which had taken place on 4.3.2007.
9. Admittedly the incident is of a public place. The deceased had suffered knife and sword injuries, which are attributed to the petitioner and his accomplice Saleem. All this had been executed in a busy village market and after the incident, the petitioner and his associates are said to have threatened the public at large and left the place displaying their blood-stained weapons, which all would certainly amount to creating terror in the minds of the public at large. The clear case as set out in the detention order is that no one from the public could dare to come to the rescue of the deceased and it was only after the petitioner and his associates left the place of incident that they came to help him. Thereafter also, no person could gather courage to inform the police or give evidence against the petitioner and his associates.
10. In the aforesaid facts, in our opinion, although the order is based on a single incident of murder based on personal enmity, but the same having the effect of terrorising the public present and affecting the even tempo of life of the community in such place, would constitute an act of disturbance of "public order".
11. CONCLUSION:
We, therefore, hold that:
1. There was sufficient compliance of Section 11 of the National Security Act;
2. A single incident may relate to disturbance of "public order", as has been found in the facts of the present case;
3. The subjective satisfaction of the detaining authority has been duly recorded;
12. This Court does not find any good ground to interfere with the impugned order. In view of the conclusions, the Habeas Corpus Writ Petition is thus devoid of merits and is accordingly dismissed.