Madhya Pradesh High Court
Brajraj vs District Magistrate And Anr. on 6 May, 1988
Equivalent citations: 1989CRILJ978
JUDGMENT T.N. Singh, J.
1. Under an order passed on 9-9-1983 under Section 3(3) of the National Security Act, 1980, for short, the 'Act', by the District Magistrate, Gwalior, the petitioner came to be detained with the object of preventing him from indulging in activities prejudicial to public order. It appears from Annexure R/3 that he was taken into custody on 11-9-1987 and has since suffered detention under the Act after he was heard by the Advisory Board and his detention was confirmed for a period of twelve months as per orders Annexures R/8 and R/9.
2. Though counsel has pressed several contentions to contest the validity of the detention order as also the continued detention of the petitioner in violation of constitutional and statutory injunction, we propose to deal only with such of his contentions as we have found substantial and unanswerable. Our attention is drawn by Shri Madhukar Rao, appearing for the petitioner as State Defence, appointed by us, to the "Grounds" Annexure R/4(A) in pressing the threefold contention with sufficient force, conviction and merit. Indeed, all the three "Grounds" providing basis for the detention order speak of incidents which occurred on the same date, namely, 25-8-1987, at 4.30 p.m., 8.30 p.m. and 9.00 p.m. respectively. While the last two incidents occurred in Sewanagar locality of Gwalior, the first incident is said to have taken place in Ramtapura locality of the town.
3. Law of preventive detention, counsel submits, invests jurisdiction in the Central Government, the State Government as also the delegate of the State Government to pass an order of detention against any person preventing him from acting in a manner prejudicial, among other, to maintenance of public order, on being genuinely satisfied that unless that person was so detained, there was likelihood of public order being disturbed. Therefore, when his detention is questioned, Detaining Authority would be required to satisfy the Court that it had passed the impugned order on being genuinely satisfied about the necessity of the person concerned being detained on materials available regarding only past life and conduct of the detenu on which a reasonble man is able to take the reasonable view that the person concerned was man of desperate character and was in the habit of indulging in activities prejudicial to the maintenance of public order because that past activities of such person could very well form "Grounds" for his detention to prevent him from continuing the same activities. We do not think if there can be any dispute about that proposition because courts have held from time to time, indeed, at the highest level even, that detention made on a vague, stale or irrelevant ground is not to be tolerated as Detaining Authority would otherwise have unlimited power and jurisdiction to deprive a person of his personal liberty in violation of the constitutional injunction of Article 21.
3A. Not very long ago, their Lordships of the Apex Court reiterated the law in Wasi Uddin Ahmed's case that the prejudicial conduct or antecedent history of the detenu should be proximate in point of time and should have a rational connection with the conclusion that the detention of the person is necessary. One of us (Dr. T. N. Singh) took the view in R. Lallawama, 1984 Cri LJ 101 (Gauhati) that whether the satisfaction of the Detaining Authority to detain any person under the Act is "real" (or genuine) is to be ascertained from the manner of treatment by the authority of the materials ("objectives" and "grounds") before him when he passed the order of detention. It has to be seen if he has formed his opinion with the due care and caution and not in a caveliar manner. In Joynath Sharma, 1984 Cri LJ 92 (at p. 97), speaking for the Court; it was observed by one of us (Dr. T. N. Singh) that though the Court cannot substitute its own satisfaction for that of the subjective satisfaction of the detaining authority, when the order is challenged on the score of non-application of mind, the Court must insist on the fulfilment of the jurisdictional requirement being satisfactorily explained to ensure that the liberty of a person is not taken away without due compliance with the requirements of law. This was said in upholding the contention that the detaining authority must be satisfied that notwithstanding any criminal prosecution being pending against the person sought to be detained, he had to be detained under the Act for preventing him effectively from indulging in prejudicial activities despite such activities being subject-matter of criminal prosecution inasmuch as it may not be expedient in the particular facts and circumstances of the case to allow the ordinary law to take its course. For this view, support was claimed from S. K. Nizamuddin , Kanchanlal and Biru Mahto .
4. The same view was expressed in the case of Jyoti Prasad Baruah 1984 Cri LJ 470 (Gauhati) relying albeit on the Supreme judicial dict a pronounced in Bhutnath's case wherein emphasis was laid on the constitutional requirement of availability of "rational material" for arriving at the required "subjective satisfaction" with "due care" and on the duty of the Court to make judicial scrutiny of the "satisfaction" to ensure that "unscrupulous" exercise of power under an administrative order of detention is eschewed.
5. In the instant case, we are called upon by the learned Counsel to appreciate if the three incidents of a single day which speak merely of some offences or attempts to commit the offences which are punishable under ordinary criminal law could provide the reasonable basis for the view that petitioner's antecedents were such that his detention under the Act was the only way to prevent him from indulging in immediate future in activities prejudicial to public order. It is also submitted that the detaining authority has not applied its mind at all to the question that instead of proceeding under the Act against the petitioner, he could have been very well proceeded under the ordinary criminal law for his involvement in the three incidents mentioned in the three "Grounds" forming the basis of the detention order.
6. We have, therefore, carefully read particulars of the three incidents forming the basis of those Grounds. Indeed, it has become necessary for us to do so to deal with the crucial contention of the petitioner's counsel that the activities mentioned in the three Grounds were totally irrelevant to the statutory objective of "Public Order" and those activities cannot be anything but the concern with problems of "Law and Order". What is manifestly clear is that some young men including the petitioner of the age-group of 20 to 25 years, took to their heads that day that they would indulge in acts of dare-devilry, whether for fun or for gain. The same group moved from Ramtapura to Sewanagar indulging in acts of mischief and nuisance at those places intimidating persons by show of force, exhibiting weapons like knives and kattas.
7. At Ramtapura, at 4.30 p.m., they intimidated, it is alleged, some shop-keepers by firing in the air and they searched the pockets of one Balaram though they did not gain anything by that exercise. Few hours later, at 8.30 p.m., the same group, it is alleged, turned up at Sewanagar and intimidated the shop-keepers and pedestrians in the same manner. In Ground No. 2, it is also alleged that the same group surrounded one Lakhesh Kumar and pressed a katta against his body to intimidate him. In the same locality, at 9.00 p.m., according to Ground No. 3, the same group which, as earlier alluded, included the petitioner, entered into the sweetmeat shop of one Babulal and demanded milk to be supplied to them free of charge. It is alleged that they threatened the said Babulal with the katta and they also tried to loot Babulal's shop, but they could not do so as Mohan Halwai and others intervened.
8. It is as clear as day-light that the several incidents aforementioned furnished sufficient cause for the petitioner and his companions to be booked for criminal offences and attempt to commit the offences, but it is not disclosed in the "Grounds" or even in detention order or return as to whether this fact was borne in mind by detaining authority. As observed earlier, it was incumbent on the detaining authority to show its awareness of the jurisdictional requirement that the possibility of prosecution of petitioner would not stand in the way of their being detained under the Act in the facts and circumstances of the case. Indeed, we also find it difficult to read in any of the three Grounds such "rational material" as would manifest that "subjective satisfaction" to detain the petitioner under the Act was reached with "due care" by the detaining authority. In Jaya Mala , it was held that though power under preventive detention law can be exercised to interdict such criminal activities as may partake the character of public disorder, if every infraction of law having a penal sanction by itself is a ground for detention danger looms large that the normal criminal trials, and Criminal Courts set up for administering justice will be substituted by detention laws often described as lawless law".
9. We have no hesitation to uphold the first two contentions of learned Counsel because we are satisfied that the detention order has been passed in violation of the Rule of Awareness aforesaid and the further fact is also that none of the grounds are relatable to the objective of "public order". The three incidents of single day do not indeed manifest that the petitioner was a person who had been habitually indulging in activities prejudicial to public order and the only reasonable inference that can be drawn rather, is that he may have committed some offences for which he could be tried under the ordinary criminal law. What has amused us enormously is indeed the fact that detaining authorities in this part of the State do not appear to discern the real and valid distinction between activities which impinge on "public order" on one hand and "law and order" on the other hand despite the law being made clear by their Lordships of the Supreme Court long ago in Ram Manohar Lohiya . We had an occasion recently to point out this lack of understanding on the part of detaining authorities in a decision recently rendered by this Court in the case of Amolsingh v. State of M.P. Misc. Petn. No. 1061 of 1987, decided on 1-2-1988. We have before us today Apex Court's latest decision in Kamal Kishore Saini's case though we have drawn the attention of detaining authority in that case to the decision of their Lordships of the Supreme Court in Gulab Mehra , which was also a case of detention made on grounds in relation to prejudicial activities committed at a public place.
10. We reiterate today that the mere fact of the occurrence of incident having taken place at a public place would not make the offensive activity such as can be related to "public order" unless it is shown that the activity had wide-spread effect on the life of the community, disturbing the even tempo of social life. Any criminal act committed against one or two individuals at a public place cannot ordinarily have any impact on the life of the community and there can be no presumption as to the degree of general disturbance of public tranquillity at any particular place because of the view taken in Kamal Kishore (supra). There must be other facts to show that the acts were executed at such time and in such manner that those acts no longer remained simple criminal acts committed against one or two individual persons, but became acts of terrorism directed against the public generally or against any particular group or class of persons. Indeed, use of such weapons as knives or kattas against one or two individual persons would not per se upgrade such acts to those of terrorism indulged indiscriminately against all persons present at a public place. Facts stated in the "grounds" must lead to the reasonable conclusion that the detenu was a bully who was bent upon terrorising the society as a result of which even tempo of life of the society even at a particular place was disturbed because of the abiding effect of such acts on the members of the society residing or following their avocation at that place.
11. We have also no hesitation to hold that the "Grounds" in this case are vague because each of the Grounds is deficient in respect of material particulars omitting names of all those shop-keepers who are said to have been threatened at each of the two localities. Indeed, nothing is disclosed about the manner how shop-keepers generally and other persons in both localities were terrified. We have already observed that there is no scope for any assumption or presumption in such a case and the Court is not authorised constitutionally to accept the bald assertion made by detaining authority in the "grounds" and in the return about the effect of the acts attributed to the petitioner. Indeed, "terror" being one of the crucial component of the offensive activity of public disorder; intention of its creator must be manifested in the acts complained to gauge the effect thereof on the Society.
12. In the result, the petition succeeds and is allowed. The detention order Annexure R/1 and the confirmation orders, Annexures R/8 and R/9 are quashed. The petitioner shall be set at liberty forthwith if he is not required in connection with any other case.
Before parting with the records we make it clear that though the petition is disposed of, the matter concerning contempt in respect of an interlocutory order passed in this matter prohibiting the petitioner and other similar detenus being hand-cuffed survives consideration and disposal. The same question arises in some of the petitions already disposed of and also in some pending petitions. We propose to deal with that question cumulatively on a later date.