Madhya Pradesh High Court
Lalla Alias Lalit Nirgude vs The State Of Madhya Pradesh on 3 June, 2024
Author: Sushrut Arvind Dharmadhikari
Bench: Sushrut Arvind Dharmadhikari
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IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE SUSHRUT ARVIND
DHARMADHIKARI
&
HON'BLE SHRI JUSTICE GAJENDRA SINGH
WRIT PETITION No. 28443 of 2023
BETWEEN:-
LALLA ALIAS LALIT NIRGUDE S/O SHRI HIRALAL NIRGUDE, AGED
ABOUT 21 YEARS, OCCUPATION: STUDENT 101, BANSHIDHAM COLONY,
PIPLIYA RAO, BHAWARKUAN INDORE (MADHYA PRADESH)
.....PETITIONER
(BY SHRI VALMIK SAKARGAYEN, ADVOCATE)
AND
THE STATE OF MADHYA PRADESH PRINCIPAL SECRETARY HOME
1.
DEPARTMENT VALLABH BHAWAN, BHOPAL (MADHYA PRADESH)
2. DISTRICT MAGISTRATE INDORE (MADHYA PRADESH)
DEPUTY COMMISSIONER OF POLICE DCP ZONE 4 DISTRICT INDORE
3.
(MADHYA PRADESH)
UNION OF INDIA THROUGH HOME SECRETARY MINISTRY OF HOME
4.
AFFAIRS NORTH BLOCK, NEW DELHI (DELHI)
.....RESPONDENTS
(BY SHRI BHUWAN GAUTAM, GOVERNMENT ADVOCATE)
Reserved on : 16th May, 2024
Pronounced on : 03rd June, 2024
This petition having been heard and reserved for order coming on
for pronouncement this day, Justice Sushrut Arvind Dharmadhikari
pronounced the following:
Signature Not Verified
Signed by: RAVI PRAKASH
Signing time: 03-06-2024
15:58:32
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ORDER
Heard finally, with the consent of the parties.
The present petition under Article 226 of the Constitution of India is filed assailing the order dated 31.08.2023 passed by the respondent No.2
- District Magistrate, whereby the petitioner has been kept under detention by invoking the provisions of National Security Act, 1980 (hereinafter referred to as 'the NSA'). The petitioner has also challenged the extension order dated 07.10.2023 (Annexure-R/10) and order dated 05.12.2023 (Annexure-R/16) as well as order dated 04.03.2024 (Annexure-R/21).
02. Briefly stated facts of the case are that the petitioner is a young student aged about about 20 years. Due to some rivalry between the petitioner and neighbours, he has been alleged with frivolous allegations. It appears from the pleadings that since 2019, petitioner faced different criminal cases / charge-sheeted for alleged commission of different offences, particulars of which are placed with the petition and on the basis of those cases as well as apprehension of the authorities that the petitioner may commit breach of "public order", proceedings were initiated under the NSA against the petitioner which culminated into passing of impugned order dated 31.08.2023 by the District Magistrate, District Indore.
03. From the pleadings, it appears that the Deputy Commissioner of Police (DCP), District - Indore, Zone - 4 sent a report dated 28.08.2023 to District Magistrate, Indore to initiate action under Section 3(2) of the NSA against the petitioner. The District Magistrate after considering the fact situation, recommendation as well as the statement of prosecution witnesses passed the impugned order of detention in exercise of power under Section 3(2) of the NSA. Being aggrieved by the said order of detention, petitioner has preferred this petition.
04. Learned counsel appearing for the petitioner contended that the order of detention has been passed on the basis of false complaints and Signature Not Verified Signed by: RAVI PRAKASH Signing time: 03-06-2024 15:58:32 -3- allegations. The District Magistrate even without trying to inquire the truth and without giving any opportunity of hearing had passed the order of detention, despite the fact that the petitioner was never convicted by any Court of law, therefore, he cannot be termed as involved in criminal activities or is a habitual offender. He further submits that Article 21 of the Constitution of India provides for right to life and personal liberty and the same has been infringed in view of the impugned order of detention.
05. Learned counsel for the petitioner further contended that after passing the impugned order dated 31.08.2023, the respondents have not taken approval from the Advisory Board on further extension, therefore also, the orders are liable to be set aside. There is a specific violation of the Section 3 of the NSA, as prescribed procedure has not been followed, therefore, the petitioner is entitled for the benefit.
06. In support of his contention regarding the order of detention, he relied upon the full Bench judgment passed by this Court in the case of Kamal Khare v/s The State of Madhya Pradesh reported in 2021 (2) MPLJ 554.
07. It is further submitted that petitioner has already submitted representation before the Secretary, Govt. of India New Delhi, Chief Secretary, Department of Home, Govt. of Madhya Pradesh and District Collector, Indore.
08. Per contra, learned Government Advocate for the respondents / State vehemently opposes the prayer and submitted that the order of detention was passed based on the report sent by the DCP and absconding report of the petitioner dated 04.09.2023. The petitioner was arrested on 05.09.2023 and put in the Central Jail on 05.09.2023. The detention order along with the grounds of detention was also served to the petitioner on 06.09.2023. The intimation was given to the State Government in respect of detention order by fax on 31.08.2023. The State Government had also Signature Not Verified Signed by: RAVI PRAKASH Signing time: 03-06-2024 15:58:32 -4- approved the detention on 08.09.2023. The detention order was also forwarded to the Government of India as required under Section 3(5) of the NSA on 08.09.2023. Initially, the Advisory Board had also approved the order of detention up to 05.12.2023. On 29.12.2023, representation submitted by the father of the petitioner was rejected. On 10.11.2023, Station House Officer (SHO), Police Station - Bhanwarkuan wrote a letter to the DCP recommending for extension of the detention period for three months w.e.f. 05.12.2023. The period of detention was extended to 05.03.2024. Learned counsel further submitted that is person of criminal proclivity, as despite being charge-sheeted under various provisions of Indian Penal Code, there is no change in his behaviour. The petitioner is engaged in criminal activities since 2019 and because of fear and terror of the petitioner amongst the general public, after reaching subjective satisfaction, the respondents have rightly passed the order of detention. Hence, this petition deserves to be dismissed.
09. In support of his contention, learned Government Advocate for the respondents / State referred Division Bench judgment of Delhi High Court in the case of Khurvesh alias Pappu alias Pahalwan v/s State & Another reported in ILR (2010) (II) Delhi 550 as well as in the case of Narendra Kumar v/s Union of India (UOI) reported in 2002 STPL 12860 Delhi, Division Bench of Allahabad High Court in the case of Noor Mohammad v/s State of U.P. & Another reported in 1982 STPL 4030 Allahabad and Division Bench of Rajasthan High Court in the matter of Subhan Mohammad v/s State of Rajasthan & Another reported in 1988 STPL 5970 Rajasthan. He prayed for dismissal of writ petition.
10. Heard learned counsel for the parties.
11. Instant case is in respect of National Security Act and its different fallouts and factual contours attract reconciliation between "Public Order"
and "Personal Liberty".Signature Not Verified Signed by: RAVI PRAKASH Signing time: 03-06-2024 15:58:32 -5-
12. The Apex Court in the case of Deepak Bajaj v/s State of Maharashtra & Another reported in (2008) 16 SCC 14 has cautioned the High Courts regarding scope of jurisdiction and scope of High Court to grant relief in such matters. According to Apex Court; scope is very narrow and limited and subjective satisfaction of the detaining authority cannot be looked by the High Court as appellate authority. In the said case, the Apex Court reiterated the observation made by the Apex Court in the case of State of Bihar v/s Rambalak Singh Balak reported in AIR 1967 SC 1441 as well as Khudiram Das v/s State of West Bengal reported in (1975) 2 SCC 81.
13. Observation of Apex Court in the case of Khudiram Das (supra) is reproduced as under:
"The power of detention is clearly a preventive measure. It does not partake in any manner of the nature of punishment. It is taken by way of precaution to prevent mischief to the community. Since every preventive measure is based on the principle that a person should be prevented from doing something which, if left free and unfettered, it is reasonably probable he would do, it must necessarily proceed in all cases, to some extent, on suspicion or anticipation as distinct from proof.... This being the nature of the proceeding, it is impossible to conceive how it can possibly be regarded as capable of objective assessment. The matters which have to be considered by the detaining authority are whether the person concerned, having regard to his past conduct judged in the light of the surrounding circumstances and other relevant material, would be, likely to act in a prejudicial manner as contemplated in any of sub-clauses (i), (ii) and (iii) of clause (1) of subsection (1) of section 3, and if so, whether it is necessary to detain him with a view to preventing him from so acting. These are not matters susceptible of objective determination and they could not be intended to be judged by objective standards. They are essentially matters which have to be administratively determined for the purpose of taking administrative action. Their determination is, therefore, deliberately and advisedly left by the legislature to the subjective satisfaction of the detaining authority which by reason of its special position, experience and expertise would, be best fitted to decide them. It must in the circumstances be Signature Not Verified Signed by: RAVI PRAKASH Signing time: 03-06-2024 15:58:32 -6- held that the subjective satisfaction of the detaining authority as regards these matters constitutes the foundation for the exercise of the power of detention and Court cannot be invited to consider the propriety or sufficiency of the grounds on which the satisfaction of the detaining authority is based. The Court cannot, on a review of the grounds, substitute its own opinion for that of the authority, for what is made condition precedent to the exercise of the power of detention is not an objective determination of the necessity of detention for a specified purpose but the subjective opinion of the detaining authority, and if a subjective opinion is formed by the detaining authority as regards the necessity of detention for a specified purpose, the condition of exercise of the power of detention would be fulfilled. This would clearly show that the power of detention is not a quasi- udicial power." Therefore, the scope of interference in such matter is narrow and limited."
14. So far as question regarding breach of public order or threat to public peace is concerned, this aspect also is very subjective and differs from case to case. In Ashok Kumar v/s Delhi Administration & Others reported in (1982) 2 SCC 403, the Apex Court held that preventive detention is devised to afford protection to society. It was observed that preventive measures, even if they involve some restraint and hardship upon some individuals, do not partake in any way of the nature of punishment, but are taken by way of precaution to prevent mischief to the State. The Executive is empowered to take recourse to its power of its preventive detention in those cases where the Court is genuinely satisfied that no prosecution could possibly succeed against the detenu because he is a dangerous person who has overawed witnesses or against him no one is prepared to depose.
15. The Court also made a distinction between the concepts of "Public Order" and "Law and Order" in the following words: -
"13.The true distinction between the areas of 'public order' and 'law and order' lies not in the nature or quality of the Act, but in the degree and extent of its reach upon society. The distinction between the two concepts of 'law and order' and 'public order' is a fine one but this does not mean that there Signature Not Verified Signed by: RAVI PRAKASH Signing time: 03-06-2024 15:58:32 -7- can be no overlapping. Acts similar in nature but committed in different contexts and circumstances might cause different reactions. In one case it might affect specific individuals only and therefore touch the problem of law and order, while in another it might affect public order. The act by itself therefore is not determinant of its own gravity. It is the potentiality of the act to disturb the even tempo of the life of the community which makes it prejudicial to the maintenance of public order. That test is clearly fulfilled in the facts and circumstances of the present case."
16. The Supreme Court in the context of preventive detention also highlighted the distinction between "Public Order", "Security of State" and "Law and Order" in the case of Commissioner of Police & Others v/s C. Anita reported in (2004) 7 SCC 467 in following words:-
"The crucial issue is whether the activities of the detenu were prejudicial to public order. While the expression 'law and order' is wider in scope inasmuch as contravention of law always affects order. 'Public order' has a narrower ambit, and public order could be affected by only such contravention which affects the community or the public at large. Public order is the even tempo of life of the community taking the country as a whole or even a specified locality. The distinction between the areas of 'law and order' and 'public order' is one of the degree and extent of the reach, of the act in question on society. It is the potentiality of the act to disturb the even tempo of life of the community which makes it prejudicial to the maintenance of the public order. If a contravention in its effect is confined only to a few individuals directly involved as distinct from a wide spectrum of public, it could raise problem of law and order only. It is the length, magnitude and intensity of the terror wave unleashed by a particular eruption of disorder that helps to distinguish it as an act affecting public order' from that concerning 'law and order'. The question to ask is: "Does it lead to disturbance of the current life of the community so as to amount to a disturbance of the public order or does it affect merely an individual leaving the tranquility of the society undisturbed"? This question has to be faced in every case on its facts.
8. "Public order" is what the French call 'ordre publique' and is something more than ordinary maintenance of law and order. The test to be adopted in determining whether an act affects law and order or public order, is: Does it lead to disturbance of the current life of the community so as to amount to disturbance of the public order or does it affect Signature Not Verified Signed by: RAVI PRAKASH Signing time: 03-06-2024 15:58:32 -8- merely an individual leaving the tranquility of the society undisturbed? (See Kanu Biswas v. State of West Bengal(1972) 3 SCC 831).
9. "Public order" is synonymous with public safety and tranquility: "it is the absence of disorder involving breaches of local significance in contradistinction to national upheavals, such as revolution, civil strife, war, affecting the security of the State". Public order if disturbed, must lead to public disorder. Every breach of the peace does not lead to public disorder. 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. (See Dr. Ram Manohar Lohia (Dr.) v. State of Bihar (1966) 1 SCR 709; 1966 Crl.LJ 608).
10. 'Public Order', 'law and order' and the 'security of the State' fictionally draw three concentric circles, the largest representing law and order, the next representing public order and the smallest representing security of the State. Every infraction of law must necessarily affect order, but an act affecting law and order may not necessarily also affect the public order. Likewise, an act may affect public order, but not necessarily the security of the State. The true test is not the kind, but the potentiality of the act in question. One act may affect only individuals while the other, though of a similar kind, may have such an impact that it would disturb the even tempo of the life of the community. This does not mean that there can be no overlapping, in the sense that an act cannot fall under two concepts at the same time. An act, for instance, affecting public order may have an impact that it would affect both public order and the security of the State. [See Kishori Mohan Bera v. The State of West Bengal(1972) 3 SCC 845:
AIR1972SC1749; Pushkar Mukherjee v. State of West Bengal(1969) 1 SCC 10; Arun Ghosh v. State of West Bengal(1970) 1 SCC 98; Nagendra Nath Mondal v. State of West Bengal(1972) 1 SCC 498]."
17. An act, affecting public order, may have ramifications over law and order and security of the State at the same time [See: Kishori Mohan Bahra Vs. State of West Bengal, (1972) 3 SCC 845, Pushkar Mukherji Vs. State of West Bengal, (1969) 1 SCC 10, Arun Ghosh Vs. State of West Signature Not Verified Signed by: RAVI PRAKASH Signing time: 03-06-2024 15:58:32 -9- Bengal, (1970) 1 SCC 98, Nagendra Nath Mondal Vs. State of West Bengal, (1972) 1 SCC 498].
18. Some Crimes give Psychic Gains whereas some Crimes give Monetary Gains. If Cultural Norms affect the law, the law likewise affects cultural norms. Therefore, expressive function of punishment or deterrent of punishment is the law's capacity to send a message of condemnation about a particular criminal act. When a criminal mind while committing crime or expresses his intention to commit crime, sends a message to the world about the value of victim then conversely punishment or preventive measure (like the present one) sends a reciprocal message to the accused in a kind of dialogue with the crime. Therefore, in the considered opinion of this Court, expressive function of punishment or preventive measure like detention under NSA are both retributive and utilitarian. Retributive punishment/preventive measures give even if not proportional to the physical/psychic harm done to a victim even then it gives a chance to the perpetrator to purge his misdeeds and act as deterrent to other probable perpetrators. Similarly utilitarian function of punishment/preventive measure has the power to change social norms and behaviour via the messages it expresses and may help in reduction of crime.
19. In India where we witness high rate of crime against victims especially against weaker sections and females originates from the confidence of perpetrators that they would go unpunished because of lacuna in Investigation, Prosecution and Adjudication and therefore, this tendency prompts them to commit more severe offences and create an atmosphere of fear and terror. Conduct of petitioner reflects such attitude.
20. Crime and Disorder are strongly interrelated, therefore, Broken Windows Theory, a Criminological Theory although moves in respect of Police and law enforcement but has material bearing in the realm of prosecution, adjudication and specially for preventive measures like NSA Signature Not Verified Signed by: RAVI PRAKASH Signing time: 03-06-2024 15:58:32 -10- also. According to this theory, targeting minor disorder is expected to reduce occurrence of more serious crime. Idea behind is can be summarized in an expression that if a window in a building is broken and left unrepaired, all of the windows will soon be broken. On this analogy also, if preventive measure is taken by the police against a miscreant like in the present case then it is for the purpose of sending a message to the person concerned as well as other probable perpetrators. Since, in the present case petitioner has chequered history of all types of crime, therefore, whole proceeding against the petitioner deserves to be seen from that vantage point also.
21. While dealing with liberty of an individual vis-a-vis collective interest of the community, observation of Apex Court in the case of Shahzad Hasan Khan v/s Ishtiaq Hasan Khan & Others reported (1987) 2 SCC 684 is worth consideration when Apex Court observed as under:-
"Liberty is to be secured through process of law, which is administered keeping in mind the interest of the accused, the near and dear of the victim who lost his life and who feel helpless and believe that there is no justice in the world as also the collective interest of the community so that parties do not lose faith in the institution and indulge in private retribution.
Learned Judge was unduly influenced by the concept of liberty, disregarding the facts of the case."
22. This observation is being reiterated by the Apex Court in the case of Ramgovind Upadhyay v/s Sudarshan Singh reported in (2002) 3 SCC
598. Although above referred observation and reiteration were in respect of bail but certainly sends a message for reconciliation between "Personal Liberty" vis-a-vis "Public Peace" and "Public Order". Said reconciliation is need of the hour otherwise Public Order, Social Peace and Development of the area would be sacrificed at the altar of Lawlessness, Misgovernance and Private Retribution.
23. If the above referred legal principles / guidance are tested on the Signature Not Verified Signed by: RAVI PRAKASH Signing time: 03-06-2024 15:58:32 -11- anvil of present set of facts, then it appears that petitioner appears to be a habitual offender against whom around 12 cases have been registered. It is not the case, where he faced allegations of minor offences but he faced trial for heinous offences which would put the life of humans in danger.
24. Long trail of criminal cases of different nature certainly suggest that they cannot be motivated at the instance of police authorities or at the instance of some vested interest. These are the instances/discredit points which are being acquired by the petitioner because of his misdeeds, misdemeanors and criminal bent of mind. Therefore, different nature of cases registered and tried against the petitioner even through resulted into acquittal cannot be taken lightly. Hon'ble Supreme Court in the case of Debu Mahto v/s State of West Bengal reported in AIR 1974 SC 816 has held as under:-
"...The order of detention is essentially a precautionary measure and it is based on a reasonable prognosis of the future behaviour of a person based on his past conduct judged in the light of the surrounding circumstances. Such past conduct may consist of one single act or of a series of acts. But whatever it be, it must be of such a nature that an inference can reasonably be drawn from it that the person concerned would be likely to repeat such acts so as to warrant his detention. It may be easier to draw such an inference where there is a series of acts evincing a course of conduct but even if there is a single act, such an inference may justifiably be drawn in a given case."
25. SHO, Police Station - Bhanwarkuan, Indore also made statement as prosecution witness and police report indicates that petitioner is a habitual offender and he is in habit of giving threats to the locals and they are afraid to come forward to ventilate their grievances and all these attributes, render the petitioner a threat to public peace and order and appears to be against the interest of society/community at large. Therefore, subjective satisfaction of detaining authorities in the present set of facts cannot be interfered. All material / documents were placed before the Signature Not Verified Signed by: RAVI PRAKASH Signing time: 03-06-2024 15:58:32 -12- detaining authority and concerned authority applied its mind accordingly. Therefore, judgments relied upon by the counsel for the petitioner are not applicable in the present facts and circumstances of the case.
26. Pertinently the petitioner has not raised the ground of procedural lapse or violation of due process prescribed under Section 3 of NSA, except the ground that before passing each extension order, approval from the Advisory Board was not taken.
27. No procedural lapse or violation has been seen in the detention order, as the same has been passed in accordance with the provisions of NSA. Nowhere in the provision of NSA, it is mandatory to take prior approval from the Advisory Board before each extension order regarding detention period is made, rest of the procedure has been followed in later and spirit. Conclusively, petition preferred by the petitioner fails and order of detention dated 31.08.2023 passed by District Magistrate, Indore and extension orders dated 07.10.2023, 05.12.2023 and 04.03.2024 are hereby affirmed. Respondents are at liberty to proceed against the petitioner as per law.
28. The present Writ Petition sans merit and is hereby dismissed. No order as to costs.
Copy of this order be sent to District Magistrate, Indore for information.
(S. A. DHARMADHIKARI) (GAJENDRA SINGH)
JUDGE JUDGE
Ravi
Signature Not Verified
Signed by: RAVI PRAKASH
Signing time: 03-06-2024
15:58:32