Madhya Pradesh High Court
Shishupal Singh vs The District Magistrate on 10 December, 2003
Equivalent citations: 2004(1)MPHT122
Author: Chief Justice
Bench: Chief Justice
ORDER S.L. Jain, J.
1. Invoking extra-ordinary jurisdiction of this Court under Article 226 of the Constitution of India, petitioner Shishupal Thakur, the brother of detenue Nekpal Singh has filed this petition for quashment of the order of detention dated 24-11-2003 passed by Distt. Magistrate, Damoh in exercise of the powers conferred by Sub-section (2) of Section 3 of the National Security Act, 1980 (hereinafter referred to as the 'Act').
2. It is alleged by the petitioner that his brother Nekpal Singh was arrested by police on 24-11-2003 in compliance of the aforesaid order of the District Magistrate and has been detained at Central Jail, Jabalpur. It is also alleged that the police forwarded the list of the cases pending against the brother of the petitioner in different Courts, to the District Magistrate, Damoh, who on the basis of those cases, without application of mind ordered detention of Nekpal Singh.
3. Learned Counsel for the State has denied the allegations made in the petition and submitted that on being satisfied that with a view to prevent the detenue from acting in any manner prejudicial to the maintenance of public order, the District Magistrate found it necessary to detain him under the said provision.
4. Learned Counsel appearing for the petitioner submitted that so far as the Case No. 1 described in the schedule annexed with the ground for detention is concerned, admittedly, the detenue has been acquitted on 21-3-2003. So far as the other cases described at Nos. 7, 8, 9 and 10 are concerned, the learned Counsel for the petitioner submitted that they have been instituted at the instance of Silochan Jain and Jayanti Datt Mishra, who are the neighbours of the petitioner and with whom there was some dispute over the boundary wall. Item No. 12 described in the list has been initiated at the instance of Roshan Singh Thakur who is in cable operation business and is an archrival of the detenue. This Roshan Singh has been convicted and sentenced to suffer R.I. for 10 years for attempt to commit murder of the family member of the petitioner. Learned Counsel also submitted that for detaining the petitioner under the Act old and stale cases were also taken into consideration.
5. As against this, the learned Deputy Advocate General appearing for the respondent has submitted that a perusal of the list of cases pending against the petitioner reveals that he is a dreadful criminal and has unleashed terror in the area.
6. It is true that exercise of power of detention depends on the subjective satisfaction of the authority and the scope for judicial review is quite limited, but the High Court in exercise of its powers under Article 226 of Constitution can always examine whether the requisite satisfaction is arrived at by the authority ? If it is not, the condition precedent to the exercise of the power will not be fulfilled and the exercise of the power will be bad.
7. Court can look into the record for satisfying itself that the authority could have or could not have arrived at the conclusion. High Court can determine the question as to whether the alleged acts are mere infraction of law or sufficient to disturb the even tempo of life and large sections of the community in the township or in some area of the town have been affected. A perusal of the list of the cases pending against the detenue reveals that most of the cases pending against him are of petty nature. Most of them are under Sections 323, 506 and 294 of the IPC directed only against the individuals and do not cause general disturbance to the public. Where the acts are directed against the individuals and not against the public in general, it could not be said to be a case of public order. It does not appear that the activities of the petitioner created terror in the mind of the public, therefore, the acts of the detenue can be held to be the matter of law and order only and not affecting the public order. It does not appear that the acts of the petitioner have created atmosphere of panic amongst the people of the locality.
8. Only one offence described at Item No. 13 can be said to be a major offence in which a challan has been filed under Sections 341, 307 and 506B of the IPC on the report of Roshan Singh. About this case also the petitioner has specifically stated that Roshan Singh is an archrival of the detenue in the cable operation business.
9. From the detention order it is difficult to infer that the case registered against the detenue under Section 307, IPC disturbed the public order. Thus, it can not be said to be a case of such a nature that the District Magistrate could have inferred that if the petitioner is not detained, he would be likely to indulge in such activity in future. Therefore, on the basis of such a case, detention could not have been ordered.
10. In Smt. Angoori Devi v. Union of India and Ors., (1989) 1 SCC 385, the Apex Court had occasion to consider fine distinguishing feature between public order and law and order. Their Lordships observed as follows :--
"12. The impact on "public order" and "law and order" depends upon the nature of the act, the place where it is committed and motive force behind it. If the act is committed on an individual without directly or indirectly affecting the tempo of the life of the community, it may be a matter of law and order only. But where the gravity of the act is otherwise and likely to endanger the public tranquility, it may fall within the orbit of the public order. This is precisely the distinguishing feature between the two concepts. Sometimes, as observed by Venkatachaliah, J., in Ayya alias Ayub v. State of U.P.: "What might be an otherwise simple 'law and order' situation might assume the gravity and mischief of a 'public order' problem by region alone of the manner of circumstances in which or the place at which it is carried out". Necessarily, much depends upon the nature of the act, the place where it is committed and the sinister significance attached to it."
In State of U.P. v. Harishanker Tewari, (1987) 2 SCC 490, the Supreme Court observed as under :--
"Consequently, there is a difference between law and order and public order but what in a given situation may be a matter covered by law and order may really turn out to be one of public order. One has to turn to the facts of each case to ascertain whether the matter relates to the larger circle or the smaller circle."
11. The acts considered in this case by District Magistrate are confined to an individual without directly or indirectly affecting the community and it is a matter of law and order only. Most of the cases were simple acts of assault. In such a case the detention can not be sustained. The order impugned appears to have been passed mechanically only on the perusal of the list of the cases filed by the police without application of mind.
12. The order of the District Magistrate does not stand on the proximity test also. The first incident enumerated in the list is of the year 1993 and is certainly stale. Similarly many other instances are also old and stale. The date of last incident is 20-4-2003. There is a time lag of more than 7 months between the last alleged prejudicial activity and the date of issuance of the detention order. This vitiates the detention order. No continuity or proximity is proved.
13. On the basis of above discussion, we are of the opinion that the order under challenge suffers from the vice of non-application of mind and while passing the same stale and old cases which were alleged to be related to law and order and not public order were picked up. The detention order was passed after the lapse of 7 months from the last incident, relied on. Therefore, the order can not be allowed to stand.
14. In the result, the petition is allowed. The order impugned passed by District Magistrate, Damoh dated 24-11-2003 detaining Nekpal Singh, the brother of the petitioner, under the provisions of the Act, is hereby quashed. He be released forthwith, if not required in any other case.