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1984 DIGILAW 607 (ALL)

Shiv Shanker v. Incharge Police Station Hasanganj, Lucknow

1984-08-14

KAMLESHWAR NATH, R.C.DEO SHARMA

body1984
JUDGMENT R.C. Deo Sharma, J. - Through this petition in the nature of habeas corpus the petitioner has prayed that the detention order dated 23-12-1983 annexed to the petition and also annexed as Annexure No. Al to the counter affidavit may be quashed and the petitioner be set at liberty. It will appear that the petitioner was detained by an order dated 23-12-1983 passed by the District Magistrate, Lucknow, under S. 3(2) of the National Security Act read with S. 3(3) thereof. He was served with the grounds of detention the same day. These grounds have not been annexed with the petition which was filed in person but they have been annexed to the counter- affidavit as Annexure A2. The petitioner's case, however, has been placed before us by his learned counsel and there is no dispute on the point that the order of detention and the grounds of detention as annexed with the counter-affidavit were supplied to the petitioner along with the copies of first information reports and other material referred to in the grounds of detention. 2. Learned counsel for the petitioner has laid stress on the point that the incidents mentioned in the grounds of detention constitute instances of law and order and not of public order and consequently the detention is bad in law. Learned counsel has also contended that even though under the recent amendment to the National Security Act the detention order can be upheld even if a single ground relates to public order but his contention is that none of the grounds enumerated in the grounds of detention is relevant with public order. It would be appropriate to refer in brief to the three incidents specified in the grounds of detention. 3. The first incident relates to an occurrence that took place on 25-9-1982 at about 7 a.m. The police party was on patrol duty when it received information through an informer that a person was carrying illicit arm with him. The police party intercepted the petitioner and with the help of witnesses taken from the locality the party was able to arrest the petitioner who, however, fired at the police party although the fire missed and could not cause injury to the police personnel. On a search being taken the,petitioner was found to be in possession of a country made pistol and two live cartridges besides one empty cartridge in the barrel. On a search being taken the,petitioner was found to be in possession of a country made pistol and two live cartridges besides one empty cartridge in the barrel. A case under Sections 307 I. P. C. and 25 of the Arms Act is pending against the petitioner in the Court. 4. The second incident related to 5-4-1983 when at about 10 P.M., the petitioner along with his companions Godhan, Chutputi and Jagga accosted Shaukat Ali on Faizabad Road and two of them including the.petitioner fired from their pistol resulting into injuries to Shaukat Ali. The background of this incident was that Shaukat Ali had appeared as a witness in a case against Godhan and on that account Godhan and his party men including the petitioner were constantly threatening to kill Shaukat Ali. It was in this background that on Gokaran Nath Chauraha this incident resulting into injuries to Shaukat Ali took place. A case is pending against the petitioner and others in this connection. 5. The last incident related to 8-11-1983 when at about 6 P.M., the petitioner with some of his companions entered into the house of one Onkar Nath Chaudhary when certain persons had come to pay him some money and having entered the house they threatened Onkar Nath Chaudhary who ran on the roof followed by the petitioner and others where the petitioner and his companion Girju fired from their pistols resulting into injuries to the complainant's wife Meena Kumar. On an alarm being raised people of the locality came running and thereafter the petitioner and others left the place firing from their pistols. 6. The District Magistrate, Lucknow, who had passed the detention order has observed in the grounds of detention that the petitioner had already moved a bail application and in case he was released on bail he would again indulge in such criminal activities resulting into breach of public order. Feeling satisfied that his detention under the circumstances was necessary the District Magistrate passed the impugned order of detention. 7. Now the learned counsel for the petitioner has argued that none of these incidents could be said to relate to public order and each one of them was an offence against an individual. Feeling satisfied that his detention under the circumstances was necessary the District Magistrate passed the impugned order of detention. 7. Now the learned counsel for the petitioner has argued that none of these incidents could be said to relate to public order and each one of them was an offence against an individual. He also contended that neither in the grounds of detention nor in the first information reports there was a mention that the incidents complained of had resulted into public disturbance or had adversely affected the even tempo of life. Reliance was placed by the learned counsel on Sudhir Kumar Saha v. The Commissioner of Police, Calcutta 1970 SCC (Crl) 71 : ( AIR 1970 SC 814 ). Undoubtedly in Saha's case the incidents in question had taken place on some public place but on facts it was noticed that they were instances of law and order. Several matters which arose in connection with determining whether an incident relates to a public order or law and order had not been noticed in Saha's case. Likely impact on the public life and the possibility of disturbing the normal tempo of life were not considered. In the instant case one of the incidents relates to firing at the police party which was on patrol duty. Another incident relates to a firing on a person who had appeared as a witness in a case against Godhan who was petitioner's companion at the time of this incident and had also fired at Shaukat Ali along with the petitioner. Injuries were actually caused to Shaukat Ali whose motorcycle also bore pellet marks. Only when passers by raised on alarm and ran for help, the petitioner and his companions left the place. In our opinion firing on the police party which is supposed to he the custodian of law and order and is responsible for maintaining public order too is a serious act, and has to be distinguished from firing on an individual with whom the culprit may have a grievance. Similarly firing on a person who has appeared as a witness and has thereby performed a public duty will naturally have the effect of deterring others from performing their duty and consequently such an incident has wider ramifications compared to the effect an incident of this nature will have on an individual with whom there was any previous enmity. Similarly firing on a person who has appeared as a witness and has thereby performed a public duty will naturally have the effect of deterring others from performing their duty and consequently such an incident has wider ramifications compared to the effect an incident of this nature will have on an individual with whom there was any previous enmity. We are in the circumstances satisfied that these two incidents at least to have the effect of causing disturbance to public order and cannot be termed as mere 'law and order' affairs. 8. In Ashok Kumar v. Delhi Administration AIR 1982 SC 1143 distinction between `public order' and `Law and order' was considered by Hon'ble the Supreme Court. It was held that acts similar in nature if 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 was the potentiality of the act to disturb the even tempo of the life of the community which would make it prejudicial to the maintenance of public order. The instances relied upon by the detaining authority in that case were four in number and in each one of them the detenu had indulged in robbing passers-by on the road of their gold chains, wrist watch and the like. There was no averment to the effect the of any of these incidents had actually resulted into causing a commotion or disturbing the even tempo of life in any manner. The detention in the circumstances was held to be justified. It would, therefore, appear that in order to determine whether the instances related to `law and order' or `public order' what was to be considered was the effect of the incident on the individual and the public including likely effect that such incidents were to cause. We have already observed that two of the incidents certainly had the effect of adversely affecting `public order' inasmuch as public servants were being deterred in the performance of their public duty and individuals were being deterred from appearing as witness and these incidents would certainly have wider ramifications than merely affecting the individuals concerned. We have already observed that two of the incidents certainly had the effect of adversely affecting `public order' inasmuch as public servants were being deterred in the performance of their public duty and individuals were being deterred from appearing as witness and these incidents would certainly have wider ramifications than merely affecting the individuals concerned. In Smt. Hemlata Kantilal Shah v. State of Maharashtra ( AIR 1982 SC 8 ) which was no doubt a case arising under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act it was observed by their Lordships of the Supreme Court that past conduct or antecedent history of a person can appropriately be taken into account in making a detention order. It was largely from prior events showing tendencies or inclinations of a person that an inference could be drawn whether he was likely in future to act in a manner prejudicial to the maintenance of `public order'. If, therefore, a person has a repetitive tendency or inclination to indulge into crimes of a particular nature this would be a valid consideration for a detaining authority to order detention. In the instant case, three incidents have been referred to in the grounds and they relate to a period within about 14 months. They are of the same nature and at least in two of them the petitioner and his companion resorted to firing in public place. In the circumstances, we are satisfied that the grounds are relatable to public order and are germane. The detention order does not suffer from any illegality. On no other ground the detention order has been assailed before us by the learned counsel for the petitioner, and, therefore, the petition is liable to be dismissed. 9. The petition is accordingly dismissed.