Maxy Manual Sabastial Aronzo v. State of Maharashtra
1983-01-28
N.K.PAREKH, S.P.KURDUKAR
body1983
DigiLaw.ai
JUDGMENT Per Kurdukar, J. - The Petitioner is the detenu who has filed this Criminal Writ Petition No. 503 of 1982 to this Court under Article 226 of the Constitution of India through Jail challenging the legality and correctness of the detention order dated May 6, 1982, passed by the second Respondent under section 3 of the satisfied that with a view to preventing the detenu from acting in any manner prejudicial to the maintenance of public order it is necessary to make an order directing that he be detained under section 3 of the National Security Act. 2. There is no dispute that the order of detention as well as the grounds were served upon the detenu. This Petition was originally filed by the detenu through Jail but subsequently Shri Dhun N. Canteenwala and Shri Satish R. Parekh, Advocates, filed their power on behalf of the detenu and amended the Petition. The grounds of detention are at page 4. There are in all five incidents which are referred to in the grounds of detention and which are treated as grounds of detention. It is needless to refer to all these grounds in detail since we are satisfied that the first ground pertains to the law and order and does not fall within the domain of public order as contemplated under Section 3 of the Act and, therefore, the impugned order stands vitiated. 3. Ground No. 1 reads as under: "On 26-4-1982 Miss Clara Anthony Fernandez, a teacher residing at Raut Chawl, R. No. 3, opposite Sitaladevi Temple, L. J. Road, Bombay, was at her above residence. At about 3 a.m. you started knocking and banging her door. She then got up and asked you as to who you are? When you told her that you are Maxy, she then opened the door and told you to go away, and warned you not to come to their house and disturb them thereafter. You then forced the entry into her house and started fisting on her mouth and stomach. You caught her hair and banged her mouth against the wall. When she shouted for help, the inmates of the house came to her rescue. On seeing them you took out a knife and warned them not to come ahead. You also threatened her not to shout otherwise you would kill her on the spot.
You caught her hair and banged her mouth against the wall. When she shouted for help, the inmates of the house came to her rescue. On seeing them you took out a knife and warned them not to come ahead. You also threatened her not to shout otherwise you would kill her on the spot. You warned them not to report the incident to the police and left the place. Due to the assault Smt. Clara Anthony Fernandez sustained injuries. In this connection an offence has been registered at Mahim Police Station under Section 451-506(1l)-337 I.P.C. vide their C.R. No. 277/82. In this case you were arrested.” In regard to this ground' No. 1, it is averred by the Petitioner in his Petition as follows: "10. Without prejudice to the above, none of the grounds pertain to the maintenance of public order, and pertain at the highest to law and order. In order to stand the test of validity, each ground must separately and independently relate to public order. Each of the grounds even if accepted at face value do not affect the public at large or the even tempo of life of the community. None of the grounds has the potential of adversely affecting the public either by the nature of the act or its reach upon society. Ground No. 1 pertains to an alleged quarrel between the Petitioner and one Clara Fernandez, within the four walls of her house. There is no allegation that anyone outside that private residence even came to know of the alleged incident, much less was terrozied by it. While the allegations in ground No. 1 are categorically denied it has the colour of a private quarrel as the said Clara Fernandez and the Petitioner were at one time on intimate terms. In fact, the said Clara Fernandez's relatives are responsible for forcing the lady to lodge a false complaint against the Petitioner. In fact, even when the Petitioner was lodged at Yerwada Central Prison and Bombay Central Prison under the present detention order, the said Clara Fernandez has been visiting the Petitioner in Jail and the Jail records will reveal the said Clara's visits.
In fact, even when the Petitioner was lodged at Yerwada Central Prison and Bombay Central Prison under the present detention order, the said Clara Fernandez has been visiting the Petitioner in Jail and the Jail records will reveal the said Clara's visits. It is unconscionable that a false case lodged at the instance of the said Clara's relatives to dissuade the said Clara from seeing the Petitioner, and to remove the Petitioner from the scene, has been made a ground of detention to prevent the detenu from acting in a manner prejudicial to the maintenance of public order. The alleged offences covered by ground No. 1 are bailable in nature, and there was, in any event, nothing in the said ground to make Respondent No. 2 accept the allegations as true especially when a case under the ordinary criminal law was commenced against the detenu. The incident did not take place at a public place and members of one family are allegedly affected and are supposed witnesses to the same. It is humbly submitted that ground No. 1 is clearly irrelevant to the question of the maintenance of public order and the entire detention order is vitiated as it is impossible to predicate to what extent this irrelevant ground weighed with the detaining authority in deciding to issue the order," 4. Shri Canteenwala, the learned Advocate appearing on behalf of the detenu, urged that assuming that the said incident is true, the said incident relates to an individual incident and the even tempo of the public at large is not at all disturbed. He further submitted that as the record stands, there is no material to show that because of the said incident, the even tempo of the public in the building where the incident took place was disturbed. In view of this, it is urged by the learned Advocate that this incident by no stretch of imagination could be referable to the public order. At the most it would be a question of law and-order and for dealing with the same, the provisions of National Security Act cannot be invoked. 5. With regard to this averment, the detaining authority filed its affidavit and had averred as under: "5.
At the most it would be a question of law and-order and for dealing with the same, the provisions of National Security Act cannot be invoked. 5. With regard to this averment, the detaining authority filed its affidavit and had averred as under: "5. With reference to paras 10, 11 and 12 of the Petition, I say, this is not a case of the single activity, directed against the single individual, there have been a series of the criminal activities on the part of the detenu and the said activities have made the detenu menance to the society. I say, the record placed before me did not indicate that Clara Fernandez had lodged a false complaint at the instance of the relations. I say the incident dated 26th April, 1982 took place in Raut Chawl. I say, the residents in the said Chawl came to know about the said incident. I say the statement of said Clara Fernandez and other witnesses, copies of which were given to the detenu, clearly shows that detenu entered the house of said Clara Fernandez and assaulted her and also threatened the said Clara and her relatives. I further say in the course of the said investigation, the police authorities were able to take 3 victims of the detenu into confidence and were able to record their statements in camera. Their statements dearly show that they were not ready to disclose the facts openly and they apprehend danger to their lives at the hands of the detenu. I further say that the first two camera statements clearly show that innocent businessmen were threatened and robbed at the point of knife and the third statement shows that an innocent female was threatened and molested at the point of knife. I say, if each ground is taken separately and also if all the grounds are taken together, it is clearly seen that the peace loving citizens of this localities mentioned in the grounds of detention are experiencing sense of insecurity and are living under constant shadow of fear. I say, because of the detenu's activities, even tempo of life in the said localities is disturbed." 6. We have also perused the original record and the documents in connection with Ground No. 1 annexed for this Petition.
I say, because of the detenu's activities, even tempo of life in the said localities is disturbed." 6. We have also perused the original record and the documents in connection with Ground No. 1 annexed for this Petition. After going through this material, we are satisfied that the incident covered by Ground No. 1 cannot fall within the domain of public order. The material produced on the record does not bear out the situation that the society at large in the said locality or in the said building was at all disturbed by reason of the incident. The said incident took place in the midnight when the detenu knocked the door and thereupon Clara, who was alleged to have been assaulted, opened the door. The entire incident took place within the four walls of the said room and the said incident was even not noticed much, less seen by any of the residents residing in the said building. Having regard to this factual aspect, we do not see how the said incident covered by ground No. 1 would be a matter of public order. It is well settled that if any one of the grounds on which the detention order is passed is bad in law, the entire order stands vitiated. In view of this legal position, it will have to be held that the Impugned order of detention passed by the second Respondent is bad and deserves to be quashed and set aside. 7. Before we part with this Judgment, it may be stated that pursuant to our orders dated 27th January 1983, the detenu was produced in this Court. On the said date the detenu voluntarily made a statement that he shall keep peace and shall not disturb the public peace and also shall observe good behaviors during the period of one year. He also voluntarily undertook to this Court and his undertaking as accordingly recorded. The undertaking is as under: "I, Maxy Manual Sebastian Aronzo of Bombay, Indian Inhabitant, residing at Zarina Building, Ground Floor, Room No. 2, L.J. Road, Mahim, Bombay 400016, the Petitioner above-named, do hereby state as: I am the detenu in the above case. I ordinarily reside at the address indicated hereinabove, which is my permanent address.
The undertaking is as under: "I, Maxy Manual Sebastian Aronzo of Bombay, Indian Inhabitant, residing at Zarina Building, Ground Floor, Room No. 2, L.J. Road, Mahim, Bombay 400016, the Petitioner above-named, do hereby state as: I am the detenu in the above case. I ordinarily reside at the address indicated hereinabove, which is my permanent address. I state that although I deny all the allegations in the grounds and order of detention, I undertake to this Honourable Court that for a period of one year from the date hereof, I shall keep the peace and shall not disturb public peace and shall observe good behavior. I further undertake that on my release from detention, I shall report to, the Mahim Police Station twice a week for a period of 3 months, and shall thereafter report to the Mahim Police Station once a fortnight for a period of 3 months. I also undertake that I shall report change, if any of my residential address to the Police authorities." The undertaking in accordingly taken on record. 8. In the result, the Petition succeeds. The Rule is made absolute. The impugned order of detention dated May 6, 1982, passed by the second Respondent is quashed and set aside. The Respondents are directed to release the detenu forthwith if not required in any other manner. There shall be no order as to costs. Petition allowed.