Jammu & Kashmir High Court - Srinagar Bench
Mohammad Amin Beigh vs State & Ors on 9 July, 2012
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR HCP 15 of 2012 Mohammad Amin Beigh Petitioners State & Ors. Respondents !Mr. S. R. Hussain, Advocate ^Mr. N. H. Shah, Advocate Honble Mr. Justice Muzaffar Hussain Attar, Judge Date:09/07/2012 : J U D G M E N T :
The petitioner has been ordered to be detained by respondent No.2, District Magistrate Srinagar, vide detention order No. DMS/PSA/53/2011 dated 26-12-2011, in exercise of powers conferred upon him under section 8 of the J&K Public Safety Act, 1978 (for short Act of 1978). The petitioner has challenged the said order at pre- execution stage.
After notice, respondents have filed reply affidavit. Mr. S.R.Hussain, learned counsel for the petitioner, submitted that the grounds of detention relate to one incident for which F.I.R 40/2011 U/S 376/511, 451/506 RPC, Police Station Kralkhud, Srinagar, has been registered. Learned counsel submitted that one single alleged incident cannot have impact on the public order. In order to elucidate his submission, learned counsel submitted that the case, which has been registered against the petitioner, is under investigation of the concerned Police Station and the petitioner has been enlarged on bail. He further submitted that the normal law, in the facts and circumstances of this case, is sufficient to deal with the petitioner. Learned counsel submitted that the District Magistrate has abused his authority by invoking the provisions of the Act of 1978. While making reference to section Sec. 8 the Act of 1978, learned counsel submitted that the expression public order has been defined by the provision of the statute and perusal thereof would show that the act alleged against petitioner is not covered by it and the single act attributed to him (petitioner) would not affect the public order. To substantiate the contention, learned counsel referred to and relied upon the judgment of the apex Court in case AIR 2009 SC 628; AIR 1989 SC 491; AIR 1966 SC 740; AIR 1970 SC 1228 and AIR 2003 SC
971. He, accordingly, prayed for quashing of the impugned order of detention.
Mr. N.H.Shah, learned Dy.AG, submitted that though the act, which is attributed to the petitioner, is solitary in nature but it has an immense adverse impact on the public order. He submitted that the impact, the act of the petitioner would have on the society, was bound to affect the public order adversely and the detaining authority, in its wisdom, after applying its mind to the facts of the case, has rightly ordered for detention of the petitioner. In support of the contention, reliance was placed on the judgment of the High Court of Allahbad reported in 2005 Cr.L.J 1383 (FB) and 2011 Cr.L.J 4249 Orissa (DB). Ld counsel, accordingly, prayed for dismissal of the writ petition.
Right to liberty is a basic human right, which is manifested in article 21 of the constitution of India. In civilized societies, which are governed by rule law, liberty of an individual has to be jealously and zealously guarded. In order to run the affairs in a civilized society governed by rule of law, an individual, however, also has certain duties and obligations to perform. He has to conduct his day to day affairs in accordance with the laws of the land, as the liberty of an individual guaranteed by the Constitution does not mean that he would have license to act and behave in the manner he wishes. Human history reveals that in higher Public interest, in one or the other form, human conduct has been regulated by written or unwritten norms. It is said that a human being has never been absolutely free. When in womb of the mother, he is tied by umbilical cord and when born, he remains naval bound to the society throughout his life.
It is said that a human being has both, human and animal instinct in him. The human instincts works for overall benefit of the society, whereas, the animal instincts provoke person to indulge in activities which cause great harm to the society at large. Some times the normal laws alone are not sufficient to deter a person from indulging in activities which cause immense damage to the public order or security of the State. Sec. 8 (3) (b) (iv) of the Act of 1978 which defines Public Order is taken note of
(iv) attempting to commit, or committing, or instigating, inciting, provoking or otherwise abetting the commission of an offence punishable with death or imprisonment for life or imprisonment of a term extending to seven years or more, where the commission of such offence disturb, or is likely to disturb public order Ld counsel for the petitioner referred to the grounds of detention and submitted that the allegations made therein comprises of one single incident which cannot have impact on the public order. Ld counsel was at pains to emphasize while having reference to the judgment(s) cited at Bar, that the incident which is attributed to the petitioner cannot become ground for ordering of his detention. In order to appreciate the contention of the ld counsel for the petitioner, in its proper perspective, the grounds of detention are taken note of For your anti social activities you have been figuring adversely in police records for a long time now. You have been indulging in immoral activities, which have the potential to disturb maintenance of public order. You are a resident of Kherwan Kulgam and are aged about 40 years. Reports collected from various sources indicate that you do not possess a good moral character and have a notorious track record. When your anti social activities came to fore and you stood exposed before people of your are3a, you shifted to Srinagar. Even after shifting from your native place, you could jot remain away from immoral activities. In Srinagar you started a private security agency under the name of Swello Security Agency and established its office in Rajbagh and Anantnag. Your modus operandi was to provide security/ helping staff to various hospitals which included female workers also.
Under the garb of business, you hired a good number of poor and needy female workers from various parts of the valley and put them to various jobs relating to security and assistance in different hospitals including L. D Hospital. Since most of these workers come from very humble and poor back ground, you not only exploited them monetarily but physically also. Not only did you coerce them to have physical relations with your but have also reportedly supplied these girls to others. A group of these workers have already narrated their woeful tale before the police authorities. On 02/11/2011 one Mst. Fameeda W/o Mohammad Sidiq Watloo lodged a written report in police Station Kral Khud stating therein that you have been making sexual advances towards her and her friend since a long time and on the aforestated day came to the residence of her friend Nah10ida at Babarshah Srinagar, trespassed into the residence and tried to rape her. However, both of them succeeded in locking you inside the residence and reported the matter to Police Station. In this regard, case FIR No. 40/2011 u/s 451,506,376/511 RPC was registered in Police Station, Kral Khud, Srinagar.
You were arrested from the spot on the same day and are presently under arrest and lodged in Police Station Kral Khud under proper remand. Though, you are presently under arrest you have applied for bail, which is under adjudication in the court and there is a likelihood of your being admitted to bail.
In case, you are admitted to bail at this stage, there is a well founded apprehension that you will again indulge in similar immoral activities. In addition the victims of your immoral activities will feel betrayed and keeping in view the sensitivity of the issue and the trauma the victims have undergone, there is a credible belief that the situation may take a serious turn and disturb maintenance of public peace.
In fact, the victims have already given such indications of resorting to protest ( which will definitely effect the peace and tranquility) in case appropriate action is not taken against you. In this regard, repeated complaints were received from the respectable citizens of the area demanding stern action to be taken against you.
Taking a wholesome view of the situation coupled with the reports received regarding your activities, it is believed that the normal law which stands already invoked against you is no sufficient to deter you from indulging in immoral activities which have a bearing upon maintenance of public order. In order to stop you from indulging in such activities and to prevent breach of peace, your detention under the Provisions of Public Safety Act, at this stage has become imperative.
Therefore, it is clear that your activities are highly prejudicial to maintenance of public order and warrant immediate preventive measures to be taken against you.
On the basis of the aforementioned activities, I have reached to the conclusion that it would be expedient to detain you under the provisions of J&K Public Safety Act, 1978, for which orders are being issued separately.
District Magistrate Srinagar The perusal of the grounds of detention would show that the petitioner launched private security agency under the name of Swellow Security Agency for short Agency and established its offices at Raj Bagh Srinagar and Anantnag. The agency of the petitioner would engage people for providing security/helping staff to various hospitals. The agency would engage female workers also. It is also stated in the grounds of detention that the petitioner engaged scores of girls who came from poor back-ground and these girls were put on security jobs as also for providing assistance in different hospitals including L.D Hospital Srinagar. It is further provided in the grounds of detention that since the girls who were engaged, came from poor back ground, they were exploited not only monetarily but physically as well. The petitioner exploited these girls and supplied them to other persons as well. This woeful tale has been narrated by some of these girl workers to the police authorities. The scandal surfaced on 2nd of Nov. 2011 when one of the worker lodged report in police station Kralkud and case FIR No. 40/11 u/s 451. 506, 376/511 RPC was registered against the petitioner. The petitioner was arrested as per the material placed on writ record and was subsequently granted bail, which bail has been cancelled by the ld Chief Judicial Magistrate (CJM) vide order dated 25th April 2012. It may not be out of place to mention here, that after passing of the detention order, the detenu has been evading the arrest, and on the ground of not complying with the condition of the bail order, same has been cancelled.
What is now required to be seen, is as to whether the act which is attributed to the petitioner in the grounds of detention has the potential of affecting the public order. In case the answer is in affirmative, then the petition has to be rejected and in case the answer is in negative the petition has to be allowed.
In order to ascertain as to what would be the impact of the act which is attributed to the petitioner in the grounds of detention, on the public life, one has to gauge the outlook of the society and perceptions of people at large towards such activities.
Kashmir is popularly known as land of Sufis and Saints. The people of this place have maintained strong moral behavior in their day to day affairs. The people of this place are hypersensitive and react sharply to the activities, like one attributed to the petitioner in the grounds of detention. The ethos of this place does not admit of the activity like of which has been attributed to the petitioner in the grounds of detention. The specific act as is attributed to the petitioner, viz that under the garb of launching of an agency the poor and hapless girls are being monetarily and physically exploited, would definitely have drastic impact on the public tempo. The acts of the like nature have potential of disturbing the public order and public peace. The girls coming from humble background would be afraid to do the jobs, which, otherwise, they crave for, and thus, normal life of society at large will be disrupted. What shocks conscience is that in a well-planned and well thought out manner the poor and hapless girls are being subjected to all kinds of physical, mental and psychological exploitation. Under the garb of providing employment to the innocent and hapless girls they are being unabashingly pushed and coerced into abominable and undesired field of activity. Such activity of the petitioner has definitely great potential to cause disruption in the normal life. The activity of the petitioner is like a spark which when put in the heap of dry grass, would by its nature and potential put it on fire. Looking to the sensitivity of the issue and the earlier peoples reaction towards such activities, the public order would definitely be adversely affected. The judgment of the Honble Supreme Court referred to by ld counsel for the petitioner provide that one single act in some circumstances would affect the public tempo. Relevant para-3 of judgment (supra) reported in AIR 1970 SC 1228 is taken note of 3. The submission of the counsel is that these are stray acts directed against individuals and are not subversive of public order and therefore the detention on the ostensible ground of preventing him from acting in a manner prejudicial to public order was not justified. In support of this submission reference is made to three cases of this Court: Dr. Ram Manohar Lohia v. State of Bihar, 1966- 1 SCR 709 = (AIR 1966 SC 740), Pushkar Mukerjee v. State of West Bengal, S.P No. 179 of 1968, D/-7-11-1968 (SC) and Shyamal Chakraborty v. Commr. of Police, Calcutta, W.P No. 102 of 1969, D/-4-8-1969 (SC). In Dr. Ram Manohar Lohias case 1966-1 SCR 709= (AIR 1966 SC 740) this Court pointed out the difference between maintenance of law and order and its disturbance and the maintenance of public order and its disturbance. Public order was said to embrace more of the community than law and order. Public order is the even tempo of the life of the community taking the country as a whole or even a specified locality. Disturbance of public order is to be distinguished from acts directed against individuals which do not disturb the society to the extent of causing a general disturbance of public tranquility. It is the degree of disturbance and its effect upon the life of the community in a locality which determines whether the disturbance amounts only to a breach of law and order. Take for instance, a man stabs another. People may be shocked and even disturbed, but the life of the community keeps moving at an even tempo, however, much one may dislike the act. Take another case of a town where there is communal tension. A man stabs a member of the other community. This is an act of a very different sort. Its implications are deeper and it affects the even tempo of life and public order is jeopardized because the repercussions of the act embrace large sections of the community and incite them to make further breaches of the law and order and to subvert the public order. An act by itself is not determinant of its own gravity. In its quality it may not differ from another but in its potentiality it may be very different. Take the case of assault on girls. A guest at a hotel may kiss or make advances to half a dozen chamber maids. He may annoy them and also the management but he does not cause disturbance of public order. He may even have a fracas with the friends of one of the girls but even them it would be a case of breach of law and order only. Take another case of a man who molests women in lonely places. As a result of his activities girls going to colleges and schools are in constant danger and fear. Women going for their ordinary business are afraid of being way- laid and assaulted. The activity of this man in its essential quality is not different from the act of the other man but in its potentiality and in its effect upon the public tranquility there is a vast difference. The act of the man who molests the girls in lonely places causes a disturbance in the even tempo of living which is the first requirement of public order. He disturbs the society and the community. His act makes all the women apprehensive of their honour and he can be said to be causing disturbance of public order and not merely committing individual actions which may be taken note of by the criminal prosecution agencies. It means therefore that the question whether a man has only committed a breach of law and order or has acted in a manner likely to cause a disturbance of the public order is a question of degree and the extent of the reach of the act upon the society. The French distinguish law and order and public order by designating the latter as order publique. The latter expression has been recognized as meaning something more than ordinary maintenance of law and order. Justice Ramaswami in Writ Petn. No. 179 of 1968 (SC) drew a line of demarcation between the serious and aggravated forms of breaches of public order which affect the community or endanger the public interest at large from minor breaches of peace which do not affect the public at large. He drew an analogy between public and private crimes. The analogy is useful but not to be pushed too far. A large number of acts directed against persons or individuals may total up into a breach of public order. In Dr. Ram Manohar Lohias case, 1966-1 SCR 709=(AIR 1966 SC 740) examples were given by Sarkar and Hidayatullah, JJ. They show how similar acts in different contexts affect differently law and order on the one hand and public on the other. It is always a question of degree of the harm and its effect upon the community. The question to ask is: Does it lead to disturbance of the current of like of the community so as to amount 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 facts. There is no formula by which one case can be distinguished from another.
For the above stated reasons writ petition is held to be merit-less and is accordingly dismissed. Record be returned to ld Dy. AG. The case projected in the grounds of detention is alarming one and it does work as an offence to the conscience . The exploitation of poor, innocent and hapless girl(s) cannot be shelved and one cannot turn his back towards such startling revelation. The Constitution of State of J&K as also the Constitution of India represent the will of the people. The people in the shape of the constitutional documents have provided for running of the affairs of the State in accordance with the mechanism provided therein. The constitution created different organs of the State.
Section 22 of the Constitution of J&K is taken note of Right of women. The State shall endeavour to secure to all women-
(a) The right to equal pay for equal work (b) The right to maternity benefits as well as adequate medical care in all employments (c) The right to reasonable maintenance, extending to cases of married women who have been divorced or abandoned (d) The right to full equality in all social, educational, political and legal matters (e) Special protection against discourtesy, defamation, hooliganism and other forms of misconduct.
This section provides certain protections to the woman of the State. It is the duty of the state to fulfill the aforementioned constitutional mandate and ensure that these benefits and protections provided under Sec. 22 are effectively provided to women of the State. The Constitution of India does not lack behind and this document of vision does provide for affording protections to the people of the country. The Constitution which is given by the people to themselves, has to be, like human life, a living document. The constitution makers were people of great vision and made earnest efforts to fathom every aspect of human life and provided securities and protections therein. Since human life many a times spring surprises and the human conduct and behavior being unpredictable, unforeseen future happenings could not thus be adequately dealt with in the Constitution. The rights which are determined by the Constitution and Statute, and protections which are made available to the people of country find their expression in the said documents. They are eloquent and clear in their tune and tenor. As already stated all the future happenings could not be visualized and express provisions made for them. The human rights were determined and consequently expressed in Constitution. Beneath the surface, unforeseen rights, are born from the bossom of express constitutional rights which may be termed as Implied Constitutional Rights . The implied rights of which the constitution is source have to be culled out there-from by judicial engineering. The implied constitutional rights would be, thus, those which would synchronize with the express rights guaranteed by the Constitution.
Article 14 of the Constitution of India provides as under
the state shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. The said constitutional provisions provides that state shall not deny to any person equality before law or equal protection of law within the territory of India. This Article of the Constitution of India has to be read in conjunction with Article 21 thereof which provides for protection to life and personal liberty.
The two Articles read along with other provisions contained in Part III of the Constitution catapults the human being to most important place in this universe. The expression equality before the law or equal protection of law and the expression no person shall be deprived of his life and personal liberty are the express provisions of the Constitution. The implied rights emerging from these provisions of the Constitution would mean that every person shall have right to live a life which will be meaningful and supported by the State. The life cannot be said to be one which has to be lived in an immoral manner. The implied constitutional rights does cast a duty on the state and its authorities to provide paraphernalia for dignified living of woman who come from humble surrounding and to provide all kinds of securities to them. State would be further duty bound to provide mechanism and paraphernalia which would enable such members of the society to lead life as respectful human beings. In terms of the implied fundamental rights every such citizen of the State has right to seek all kinds of assistance from the state which would ensure that such person does not have to lead immoral life to keep its flesh and blood together. The implied fundamental right can be enforced like any other fundamental right by the citizen of the State. The expression life appearing in Article 21 of the Constitution of India, would mean, a life which is dignified and which one would live in an honorable manner. The implied fundamental right would, thus, cast duty on the state to protect such lives which are endangered by the evil forces of the society and which are facing a threat of leading immoral life or which are forced by the circumstances to lead immoral life. Human life has to be honorable and dignified. The state is, thus, duty bound to create avenues for poor and hapless woman for earning their livelihood in a dignified way and to live an honorable life. The State of J&K is further under constitutional obligation in view of the mandate contained in Section 22 of the Constitution of J&K to provide protections to poor and hapless woman and to devise a mechanism which would enable such class of people to earn their livelihood and lead the meaningful and dignified life.
The court is not oblivious of the fact that providing such kind of protections and facilities depend upon the economic strength of the State. The India is a rich country. Its material resources are immense. When the material resources of the State will be taken care of and dealt with honestly, it would definitely ensure that no person in this country would die because of hunger. The Constitution when followed honestly and in right-earnest will bring back the prosperity to all sections of the society, which otherwise, now we find only in the pages of history.
The insatiable human greed has caused irreparable damage to the economic and moral fabric of the society. The unbridled desires of an individual when ride rough shod, create imbalance in the society.
The greatest challenge to the body politic is from hydra-headed monster of corruption. The menace of corruption has corroded the basic human values. It has created neo-rich class in the society. Corrupt people are parasites who swell themselves by sucking blood of the poorest of poor. The society gets de- stabilized by abominable corrupt practices indulged in to by black sheep in the society. Major portion of the public funds are siphoned off into coffers of few corrupt people and this in turn has potential of breaking down the economic back bone of the Nation. Corruption is the greatest threat to the democratic institutions. Corrupt practices of small band of people inflict untold and unbearable miseries on the poor and down trodden class of the society. Corruption if unchecked will eventually lead to anarchy in the society.
To ward off all evil effects of corruption, lawful rule is imperative. It is seen and is of common knowledge that corrupt people throng power centers and with the passage of time take control of them. Of all impending challenges faced by the society, corruption is the serious one. Corruption is mother of all evils. Earning tons of money, amassing huge health at the cost of the poor, is a beastly instinct. The malice of corruption has afflicted the every organ of the society. The experience has shown that corrupt people survive because of active support they get from the people who are put in important positions of trust. The corruption has engulfed the society like wild fire. The corruption has potential of destroying all the democratic institutions. The monster of corruption if not taken head-on, will in the near future convert the society governed by rule of law into the society governed by rule of Jungle. Those, who are holding the possession of trust for public good, if would continue to facilitate the corrupt activities, in the near future will themselves get consumed as the monster of corruption will not spare them also.
Despite the peoples support being at the back of the state, the corruption is continuously increasing. Some drastic measures are to be taken for arresting the spread of corruption. The people who are arrested for having violated the Provisions of Prevention of Corruption Act, are mostly acquitted of the charges. The primary and fundamental reason is that in this state at present there are only two Principles courts and two Additional courts dealing with the cases of the corruption. The huge pendency of these cases on the files of these courts is cause of enormous delay in the disposal of such cases and resultantly the accused are the only beneficiary of the delayed disposal of cases. By the time a case reaches to the stage of leading evidence, most of the prosecution witnesses lose interest in the case, and some of them are not available for whatsoever reason.
There is another cause for acquittal of the accused viz the offence under P.C Act may be committed at a far of place say Belaisa of District Doda. The witnesses would be from that place. The trial is conducted at Jammu. The witnesses mostly choose not to appear before the trial court as they have to cover a huge distance from a distant hilly area which is cumbersome also. Assume that a witness from such distant place does appear before the trial court at Jammu and for any reasons his statement is not recorded, he gets dis- interested and it is accused only who is benefited. Likewise if offence under the prevention of Corruption Act is committed at Karna or any other distant place of Kupwara District or at a distant place of Anantnag District or any other District of the valley, trial of the case is to be conducted at Srinagar. For the afore-stated reasons the accused is only person who gets benefited as prosecution witnesses mostly do not appear before the courts as they have to cover lot of distance from their home place to the place where the courts are located. The acquittal of the accused in these circumstances has the affect of encouraging corruption in the society. The very idea of being convicted and sentenced within reasonable time alone can prevent and deter the people to indulge in corrupt practices.
The corruption is denuding the poor and hapless women of the state, the support which they are to be, otherwise, provided.
The state is under constitutional obligation to provide a corruption free society. In order to attain such goal necessary paraphernalia has to be created and provided to people of the State. The state is duty bound to create more courts for exclusively dealing with the offences punishable under the Prevention of Corruption Act, SVT.2006(1949 A.D) (for short Act of 2006). In one of the cases this court had directed the respondent-state to confer powers under Act of 2006 on the courts of Additional District Judges in the State of J&K other than the courts of Additional District and Sessions Judge in Jammu and Srinagar Districts.
The High court on administrative side had recommended for creation of two mobile courts. It appears till date no steps have been taken even for creating and setting up of these mobile courts. In order to accomplish the purpose underlying the Constitution and in order to secure corruption free society, the state has to take all necessary steps in this behalf. At present in order to accomplish the purpose underlying the constitution for providing support to poor women and also under the laws like Prevention of Corruption Act, it is deemed appropriate to issue following directions at this stage to the State of J&K.
a) the state of J&K through Chief Secretary is directed to take immediate steps for identifying and for providing support to the poor girls of the State so as to enable them to live honorable life. Besides above the Chief Secretary is directed to take steps by giving proper and due publicity to the Schemes sponsored by the Central Government and the State Government, which schemes provide for upliftment as also for providing assistance and for impartant training to the poor girls so as to enable them to earn their livelihood and lead dignified life. The Chief Secretary to ensure that publicity of such schemes is given in both print and electronic media and at panchayat level and by beat of drum in all the villages of the State.
b) the Commissioner secretary to the government, Department of Social Welfare is directed to immediately provide all necessary information to the Chief Secretary of the State in respect of schemes floated by Central Government and State Government, whereunder the poor woman of the state are to get benefits.
c) the State of J&K through Chief Secretary is directed to take immediate steps for conferring powers on all the Courts of Additional District Judges in the state of J&K, excepting that of District Srinagar and Jammu, and confer powers on these courts under Prevention of Corruption Act, SVT.2006(1949 A.D). The Chief prosecutors of the Districts be initially assigned the job of prosecutors in these courts in the cases covered by Prevention of Corruption Act, SVT.2006(1949 A.D).
d) the State of Jammu and Kashmir to take steps for amending the P.C Act or make new laws for retrieving the money/wealth and for confiscating properties which have been accumulated through corrupt practices.
e) the Chief Secretary to file compliance report within three months from the date copy of this order is served on him by the Registry of this court. Registry to serve the copy of this order on Chief Secretary and Commissioner Secretary to Govt Social Welfare Deptt forthwith. The Registry is directed to register the copy of this judgment as Misc. petition and list the same before appropriate bench, in accordance with the orders of Honble Chief Justice, on 11th Oct. 2012 for ensuring compliance of the directions contained in paragraph (a) to
(d).
(Muzaffar Hussain Attar) Judge Srinagar 09-7-2012 Ayaz Secy