Madhya Pradesh High Court
Tanzeel Khan vs The State Of Madhya Pradesh on 21 June, 2013
Author: M.A. Siddiqui
Bench: M.A. Siddiqui
1
AFR
HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR
DIVISON BENCH
WRIT PETITION No.2597/2013
Tanzeel Khan, aged about 24
years, s/o Mohd. Idrees, r/o
House No.215, Behind Ravinder
College, Panchsheel Nagar,
Bhopal, M.P.
Versus
1. The State of Madhya
Pradesh, Through Secretary,
Home Department, Vallabh
Bhawan, Bhopal, M.P.
2. Collector, Bhopal, M.P.
3. Superintendent of Police,
Bhopal, M.P.
4. Town Inspector, T.T.Nagar,
Bhopal, M.P.
-----------------------------------------------------------------------------------------
For the petitioner: Shri A.K. Pare, Adocate.
For the State: Shri Umesh Pandey, Government Advocate.
-----------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------
PRESENT: HONOURABLE SHRI JUSTICE RAKESH SAKSENA
HONOURABLE SHRI JUSTICE M.A. SIDDIQUI
-----------------------------------------------------------------------------------------
Date of hearing: 18/06/2013
Date of Order: 21/06/2013
ORDER
Petitioner, the detenu, by this petition under Article 226 of the Constitution of India has invoked the writ jurisdiction of this Court seeking quashment of the order dated 29.9.2012 (Annexure P/3) whereby he has been detained under the provisions of National Security 2 Act, 1980. The aforesaid detention order was passed by the District Magistrate Bhopal. Petitioner has also challenged the order dated 11.12.2012 (Annexure P/4) passed by the Government confirming the order of detention passed by the District Magistrate, Bhopal. The aforesaid detention order has been passed by the District Magistrate on the following grounds:
" 3- fiNys o"kksZa 2003 ls 2010 ds e/; vkids }kjk dbZ ckj vkijkf/kd ?kVuk,a ?kfVr dh xbZA bu ?kVukvksa ds laca/k esa vkids fo:) fuEukuqlkj vijk/k dk;e fd;s x;s vkSj izjd.k U;k;ky; esa izLrqr fd;s x;s %& dz- fnukad v0dz0 /kkjk,aa izdj.k dh fLFkfr ¼1½ 08@07@03 762@03 294] 323] 506 U;k;ky; esa fopkjk/khu 34 Hkknfo ¼2½ 10@11@07 1111@07 307] 34 Hkknfo U;k;ky; esa fopkjk/khu ¼3½ 17@02@09 198@09 294] 323] U;k;ky; esa fopkjk/khu 506 Hkknfo ¼4½ 18@02@09 201@09 294] 323] 341 U;k;ky; esa fopkjk/khu 147] 427] 506 Hkknfo ¼5½ 18@02@09 201@09 25 vkElZ ,DV U;k;ky; esa fopkjk/khu ¼6½ 23@03@09 354@09 294] 323] 506 U;k;ky; esa fopkjk/khu 34 Hkknfo ¼7½ 12@06@10 580@10 25 vkElZ ,DV U;k;ky; esa fopkjk/khu 4@ bu ?kVukvksa esa vkids fo:) U;k;ky; esa pkyku izLrqr djus rFkk izdj.k U;k;ky; esa fopkjk/khu gksus ds ckn Hkh vkids vkpj.k esa lq/kkj ugha vk;k gSA 8@ fiNys ,d o"kZ esa Hkh vkids }kjk Hkksiky ftys esa yxkrkj vkijkf/kd ?kVuk,a ?kfVr dj yksxksa dks fujarj vkrafdr fd;k tk jgk gSA vkidk vkrad bruk c<+ x;k gS fd dbZ ?kVukvksa esa yksx vkids fo:) vijk/k dk;e djkus esa rFkk lk{; nsus ls Hkh ?kcjkrs gSa ftys esa ,d o"kZ esa vkids fo:) fuEukuqlkj vijk/k Hkh dk;e gq, gS%& ¼1½ fnukad 07@05@2012 dks vki vius ikl voS/k :i ls /kkjnkj gfFk;kj ysdj iap'khy uxj {ks= esa ?kwe jgs Fks] ftl ij Fkkuk& Vh0Vh0 uxj esa vijk/k dzekad 580@10 /kkjk 25 vkElZ ,DV dk dk;e fd;k x;kA izdj.k foospuk esa gSA ¼2½ fnukad 11@06@2012 dks vkius vQjhu iq=h ealwj [kku dk gkFk idM+ dj v'yhy ckrs dh fojks/k djus ij vkius vQjhu dks xanh xanh xkfy;ka nsdj ekjihV dhA vkids mDr d`R; ls {ks= esa vkard okrkoj.k O;kIr gks x;kA vQjhu dh fjiksVZ ij Fkkuk&Vh0Vh0 uxj esa v0dz0 627@12 /kkjk] 354] 294] 323] 34 Hkknfo dk dk;e dj pkyku U;k;ky; esa is'k fd;k x;k tks fopkjk/khu gSA ¼3½ fnukad 16@07@2012 dks vkius vius lkfFk;ksa ds lkFk feydj izsehyky dks xanh xanh xkfy;ka nsdj ekjihV dh ftlls {ks= esa Hk; ,oa vkrad dk okrkoj.k O;kIr gks x;kA izsehyky dh fjiksVZ ij v0dz0 777@12 /kkjk 147] 148] 294] 323] 353 Hkknfo dk dk;e fd;k x;kA izdj.k esa pkyku 756@12 rS;kj fd;k x;kA ¼4½ fnukad 25@9@2012 dks vkius vkius lkfFk;ksa ds lkFk feydj vkuan iq= jkepan dks v'yhy xkfy;ka nh ,oa ekjihV dj tku ls ekjus dh /kedh nhA vkids mDr d`R; ls {ks= esa vkrad okrkoj.k O;kIr gksdj yksd O;oLFkk dks vlUu [krjk mRiUu gks x;kA vkuan dh fjiksVZ ij v0dz0 1006@12 /kkjk 294] 323] 341] 324] 307] 147] 148] 149 dk izdj.k Fkkuk Vh0Vh0 uxj esa ntZ fd;k x;k izdj.k foospuk esa gSA 3 ¼5½ fnukad 27@09@2012 dks vkius vius lkfFk;ksa ds lkFk feydj larks"k dks xanh xanh xkfy;ka nh ,oa dV~Vk fudkydj duiVh is j[kdj tku ls ekjus dh /kedh nhA vkids lkFkh us Nqjh ls larks"k dks xaHkhj pksV igqapkbZ rFkk vkius dV~Vs ls Qk;j fd;k ftlls {ks= esa Hk; ,oa vkrad O;kIr gksdj yksd O;oLFkk dks [krjk mRiUu gks x;kA larks"k dh fjiksVZ ij v0dz0 1075@12 /kkjk 294] 323] 341] 324 307] 147] 148] 149 dk dk;e fd;k x;kA izdj.k foospuk/khu gSA ¼6½ fnukad 28@09@2012 dks vkius gkFk esa fjokYoj ysdj fpYykpksV dj xnj epk;k ,oa jkgxhjksa dks Mjk;k /kedk;kA mDV ?kVuk dh lwpuk jks0lk0 3099 fnukad 28@09@2012 ij ntZ dh xbZA 7@ mijksDr ?kVukvksa ds laca/k esa Jh Fkkuk izHkkjh Fkkuk Jh ,l0vkj0 Hkkj}kt] Fkkuk izHkkjh] Fkkuk&Vh0Vh0 uxj us lk{; Hkh fn;s gSA mDr lk{; ls bu ?kVukvksa dh iqf"V gksrh gS fd fiNys ,d o"kZ esa vkids }kjk ?kfVr dh xbZ ?kVukvksa vkSj xfrfof/k;ksa ls yksd O;oLFkk izHkkfor gqbZ gS] vkSj ftys ds yksx vkids Hk; ls vkrafdr gSA muds }kjk lk{; esa ;g Hkh crk;k x;k gS fd vkils yksx brus Hk;Hkhr gS fd U;k;ky; esa xokgh nsus ls Mjrs gSA 8@ vkidh vlekftd ,oa lekt fojks/kh xfrfof/k;ksa ij lkekU; dkuwu }kjk fu;a=.k j[kk tkuk vlaHko izrhr gksrk gSA vkidh vlkekftd ,oa vkijkf/kd xfrfof/k;ksa dks fu;af=r ugha fd;k x;k rks uxj dh yksd O;oLFkk dHkh Hkh Hkax gks ldrh gSA vr% eSa larq"V gwa fd vkids fo:) jk"Vªh; lqj{kk vf/kfu;e 1980 dh /kkjk 3 ¼2½ ds varxZr fujks/k esa fy;s tkus dh dk;Zokgh dh tkuk vR;ar vko';d gks x;k gSA 9@ os C;ksjs ftudk bl ekeys ls laca/k gS uhps vuqlwph esa fn;s x;s gSA 10@ vkidks mDr vkns'k ds fo:) jkT; 'kklu] lfpo] e0iz0 'kklu] x`g foHkkx] ea=ky;] Hkksiky dks vH;kosnu djus dk vf/kdkj gSA vkidks vius izdj.k ds laca/k esa fuosnu djus ds fy, ea=.kk cksMZ ds le{k Lo;a mifLFkr gksus dk Hkh vf/kdkj gSA vuqlwph 1- iqfyl v/kh{kd ds izfrosnu dzekad iq0v0@Hkks@vks0,e0@,u,l,@10@12 fnukad 29@09@2012 dh izfr ¼mYysf[kr izn'kZ lfgr½A 2- Jh ,l0vkj0 Hkkj}kt] Fkkuk izHkkjh] Fkkuk&Vh0Vh0 uxj Hkksiky ds 'kiFk iwoZd dFku fnukad 29@09@2012 dh lR;izfrfyfiA "
(2) The aforesaid order was passed on the representation made by the Superintendent of Police, Bhopal (South) on 29.9.2012. On the same day, the grounds of the order alongwith its particulars were supplied to detenu and he was detained in Central Jail, Bhopal.
(3) Learned counsel for the petitioner challenged the impugned detention order mainly on the grounds that the grounds on which the detention order was passed pertained merely to the 'law and order' and not to the 'public order'. The activities alleged against the detenu did not indicate that they affected the public at large. The grounds, which pertained to the criminal offences registered against the petitioner from the year 2003 to the year 2010, pertained to the law and order problem 4 and further that they were stale and could not have been made grounds for detaining the petitioner in the year 2012.
(4) Learned counsel for the State, on the other hand, contended that there was a criminal history of the petitioner. Since a long time he was creating law and order problem and in the year 2012 he committed offences which disturbed the even tempo of the life of the society at large and affected public order. Therefore, the detention order passed by the District Magistrate was fully justified. This order was passed after due application of mind to the material produced before the District Magistrate.
(5) In respect of the criminal cases registered against the petitioner between the period of 8.7.2003 and 12.6.2010, learned counsel for the petitioner submitted that in most of the cases detenu was acquitted, therefore, they could not have been considered for passing the detention order. On perusal of the acquittal orders viz. Annexure P/5, P/6, P/7, P/8, P/9 and Annexure P/10 it is revealed that that the prosecution witnesses in those cases either turned hostile or victims compounded the offences. The case in respect of the incident dated 12.6.2010 registered under Section 25 of the Arms Act, ended in acquittal because the evidence of investigating officer was not believed and independent witnesses of arrest and seizure did not support the prosecution case. It is settled that merely by the acquittal of detenu in the criminal cases registered against him, the grounds of detention cannot be held non- existent, especially when the cases ended in acquittal after the order of detention was passed by the District Magistrate. It can also not be held 5 that the material before the District Magistrate was not sufficient. As far as the question of sufficiency of material is concerned, High Court's power under Article 226 of the Constitution of India is limited only to see whether the order of detention is based on some material or on no material; adequacy of material cannot be examined by it - State of Gujrat vs. Adam Kasam Bhaya-AIR 1981 SC 2005.
(6) No doubt, the criminal cases registered against the petitioner, as enumerated in ground-3, cannot be made ground for passing the detention order by themselves in the year 2012 i.e. after about two years, but the activities of detenu reflected by them would be relevant even in the year 2012 while passing the detention order, as the past conduct or antecedent history of detenu, and could appropriately be taken into account in making the detention order.
(7) Now the question is whether the offences committed by the petitioner on 7.5.2012, 11.6.2012, 16.7.2012, 25.9.2012, 27.9.2012 and 28.9.2012 affected the 'law and order' or 'public order'. The Apex Court in number of cases held that there is clear distinction between 'law and order' and 'public order' and pointed out the difference between the two. In case of Victoria Fernandas Vs. Lalmal Sawma and others- AIR 1992 SC 687 the Apex Court held:
"The distinction between the areas of 'law and order' and 'public order' is one of 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 would raise the 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 distinguish it as an act 6 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.[See: Dr.Ram Manohar Lohia Vs. State of Bihar, (1966) 1 SCR 709=(AIR 1966 SC 740); Arun Ghosh Vs. State of West Bengal, (1970) 3 SCR 288= (AIR 1970 SC 1228); Ram Ranjan Chatterjee Vs. State of West Bengal, (1975) 3 SCR 301 = (AIR 1975 SC 609); Ashok Kumar Vs. Delhi Administration, (1982) 2 SCC 403= (AIR 1982 SC 1143)]."
(8) Keeping in view the above proposition of law, when we examine the facts of the case registered at Crime No.419/2012 under Sections 25/27/35 of the Arms Act, it appears that the allegation against the petitioner is that he was found in possession of a sharp edged weapon without license. This act of the petitioner, by no stretch of imagination, could be considered to affect the public order providing a ground for passing the detention order. It appears that the learned District Magistrate mechanically formulated this ground without due application of mind since in the grounds of detention supplied to detenu its crime number was mentioned as 580/2010 whereas this incident had occurred on 7.5.2012 and the correct crime number, as revealed from the representation made by the Superintendent of Police, was 419/2012. (9) As far as the incidents dated 11.6.2012 and 16.7.2012 are concerned, the allegation is that on 11.6.2012 the petitioner caught the hands of Afreen Khan with intent to outrage her modesty, abused and assaulted her. A case under Sections 354, 294, 323/34 IPC was registered against the petitioner. From the particulars of the incident, it does not appear that the act of petitioner created terror in the public at large. This, at the most, affected an individual without causing 7 disturbance in the current life of the community. Similarly, on 16.7.2012, when petitioner and his associates abused and assaulted Premilal, a crime under Sections 147, 148, 294, 323 and 353 IPC was registered, but it did not indicate that the act of petitioner erupted the public order. Both the aforesaid offences affected individuals only without disturbing tranquility of the society. Therefore, these grounds cannot be held relevant to pass the detention order.
(10) In respect of the incident dated 25.9.2012 complainant Anand lodged a report that near Jain Mandir petitioner alongwith his associates abused and assaulted him. He also intimidated him to kill. On that report, Crime No.1066/2012 under Sections 294, 323, 341, 324, 307, 147, 148 and 149 IPC was registered by Police T.T. Nagar. On perusal of the representation (Annexure P/2) submitted by the Superintendent of Police it appears that the Crime No.1066/2012 was registered only under Sections 294, 323 and 506/34 whereas the District Magistrate in the grounds mentioned Sections 341, 324 and 307 IPC also. It appears that these offences were committed by the petitioner and his associates on 27.9.2012. This again reflects the mechanical approach of the detaining authority. Apart from it, in the court, complainant did not support the prosecution case. As such the case ended in acquittal. The petitioner has filed copy of the aforesaid decision as Annexure P/10. The facts constituting the aforesaid offence indicated that the conduct of the petitioner was confined only to the complainant without affecting the public at large and/or creating a problem affecting the public order. (11) Learned counsel for the State laid emphasis on the incident which 8 occurred on 27.9.2012 where petitioner abused one Santosh and intimidated him by putting Katta on his head. In the same incident his one of the associates caused knife injury to Santosh. When people of the neighbourhood came to intervene, the petitioner fired Katta whereby girls viz. Tanu and Neetu suffered pellet injuries. On the report of the complainant Crime No.1075/2012 under Sections 294, 323, 341, 324, 307, 147, 148 and 149 IPC was registered.
(12) Learned counsel for the petitioner submitted that the aforesaid incident affected only individuals and did not affect public at large. It did not affect the even tempo or tranquility of the society. Therefore, the incident pertained merely to breach of law and order and not public order. Learned counsel also referred to the statements of prosecution witnesses recorded in the trial court especially the statements of complainant Santosh, Rajesh and Neetu Ahirwar. These statements have been filed by the petitioner. It appears that all the said witnesses did not support the prosecution case and were declared hostile by the prosecution. However, on perusal of the police statements of witnesses, which have also been filed by the petitioner before this Court, it clearly transpires that the aforesaid incident occurred at public place. The act of intimidating the complainant by putting Katta on his head and assaulting complainant with knife by the associates of the petitioner at a public place clearly indicated the gravity and effect of the offence. It is also indicated that on raising hue and cry by the complainant when members of the public reached there, petitioner fired Katta causing fire arm injuries to Tanu and Neetu. It can be appreciated that the terror wave 9 must have unleashed resulting in disturbing the tranquility of the society. If such type of incident occurs in public place, it can be presumed that the even tempo of public at large is disturbed. Learned counsel for the petitioner placed reliance on the decision of this Court rendered in Case of Sanju Devre vs. The State of Madhya Pradesh and others-2010(2) MPHT 219 (DB). Decision in the case of Sanju Devre (supra) is also based on the law laid down by the Apex Court in the case of Victoria Fernandas (supra) wherein it has been observed that 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 the life of the community which makes it prejudicial to the maintenance of the public order. It is the length, magnitude and intensity of the terror wave unleashed by a particular eruption of disorder that helps distinguish it as an act affecting 'public order' from the concerning 'law and order'. (13) It is also important to note that the effect of the terror created by such incidents is often reflected in the trial of the offences. Because of the terror created, witnesses do not dare to speak against the offender in the court and turn hostile to prosecution. On examining the magnitude and intensity of the terror unleashed by the conduct of the petitioner it cannot be held that the District Magistrate erred in passing the detention order against the petitioner on this ground. The District Magistrate is supposed to satisfy himself about the necessity of passing the detention order on the basis of material produced before him. The subsequent facts like the prosecution witnesses turning hostile and acquittal of the 10 detenu after a long time cannot be held to have affected the subjective satisfaction of the detaining authority, since the order has to be based on the material produced before him while passing the order. The adequacy of the material also cannot be examined by this Court. (14) In view of the provisions of Section 5A of the National Security Act, 1980, the order of detention shall not be deemed to be invalid or inoperative merely because one or some of the grounds is or are vague, non-existent, non-relevant, non-proximate or invalid. It is, therefore, possible to hold that the detaining authority was satisfied as provided in Section 3 with reference to the remaining ground or grounds. In this view of the matter, the impugned detention order passed by the District Magistrate, Bhopal on the basis of ground pertaining to incident dated 27.9.2012 is valid and justified. He committed no error in reaching subjective satisfaction that for preventing petitioner from acting in any manner prejudicial to the maintenance of public order it was necessary to make an order directing him to be detained. Merely because the age of petitioner was 19 or 22 years, it cannot be held that he could not have acted in any manner prejudicial to the maintenance of public order. We, therefore, hold that there was relevant material before the District Magistrate to pass the impugned order.
(15) For the reasons aforesaid, we find no substance in this petition. It is accordingly dismissed.
(RAKESH SAKSENA) (M.A. SIDDIQUI)
JUDGE JUDGE
shukla
11
HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR
Writ Petition No.2597/2013
Tanzeel Khan
vs.
State of Madhya Pradesh & others
ORDER
For consideration
(Rakesh Saksena)
JUDGE
__/06/2013
Hon'ble Shri Justice M.A. Siddiqui
JUDGE
__/06/2013
POST FOR __/06/2013
(Rakesh Saksena)
Judge
__/06/2013