RAJIV SHARMA v. STATE OF UTTAR PRADESH — 1985 DIGILAW 1109 (ALL)

K. N. SINGH, J. ( 1 ) BY means of this petition under Article 226 of the Constitution the petitioner has challenged validity of his detention made under the order of the District Magistrate, Agra, dated. 24-2-1985 issued under section 3 (2) of the National Security Act. ( 2 ) THE District Magistrate was satisfied that the petitioners detention was necessary with a view to prevent him from indulging into activities prejudicial to maintenance of public order. In exercise of his powers under section 3 (2) of the National Security Act be issued an order on 24-2-1985 directing the petitioners arrest and detention. The petitioner made a representation to the State Government. On the recommendation of the Advisory Board the State Government rejected the petitioners representation. The petitioner was arrested on 24-2-1985 and since then he is continuing in detention. ( 3 ) THE grounds of detention as served upon the petitioner in compliance to section 8 of the Act disclose that the District Magistrate passed the detention order on three grounds. In the first ground it is mentioned that Kuldeep Kapoor, owner of Shah Theatre, Agra, received a letter by post on 24-3-1984 directing him to reach Rose Garden on 27-3-1984 taking with him a sum of Rs. 40,000/- between 12 and 12-30 noon The letter contained a threat that if he disclosed this fact to others, his entire family will be wiped off. Sri Kapoor met the Senior Superintendent of Police who arranged policemen in plain clothes to accompany Sri Kapoor to the Rose Garden at the appointed place. There the petitioner approached Sri Kapoor and demanded the money. Whereupon, the policemen who were there in plain clothes caught hold of the petitioner. A first information report was lodged at the Police Station by Sri Kuldeep Kapoor against the petitioner as a result of which Crime No. 261 under sections 385/386 I. P. C. was registered against the petitioner at Police Station Hariparbat on 27-3-1984. ( 4 ) IN the second ground it is mentioned that on 1-11-1984, Amar Jyoti Singh and P. N. Jhakharia, Manager, Punjab National Bank, went together to Shah Market at about 11-30 A. M. for making a telephone call. Since there was no telephone, they went towards Civil Lines to ascertain as to whether the Bank was open. Meanwhile they were attacked by gun-fire shots causing serious injuries to Amar Jyoti Singh. Since there was no telephone, they went towards Civil Lines to ascertain as to whether the Bank was open. Meanwhile they were attacked by gun-fire shots causing serious injuries to Amar Jyoti Singh. A report of the incident was lodged at P. S. Hariparbat as Crime No. 914 under section 307 I. P. C. on 1-11-1984. During investigation of the crime the petitioners involvement in the incident was found and he was arrested on 15-1-1985 in connection with the incident. ( 5 ) THE third ground states that Ram Dutt Gupta, an employee of the office of Director of Agriculture, Ramnagar, lodged a first information report at Police Station Hariparbat, Agra, on 1-11985 against the petitioner and his associates under sections 394/397 I. P. C. According to the first information report, Ram Dutt Gupta along with Brahmajeet Singh were returning back after withdrawing the salary of the employees of the Agriculture office from the State Bank of India in a jeep (V. T. R. 2932 ). When they reached the office, at that moment the petitioner along with three of his associates tried to snatch the bag containing the money from Brahmajeet Singh and at that very moment one of the associates of the petitioner threw away hand grenade. When Brahmajeet Singh tried to run towards the office one of the petitioners associates fired at him which caused injuries in his stomach. Thereafter the petitioner and his associates were successful in decamping with the sum of Rs. 52,910-70. On account of this incident, there was sensation in the Agra City. ( 6 ) THE order of the District Magistrate further states that the petitioner was arrested on 15-l-198s and be was in jail custody, on 16-1-1985 a bail application was moved on behalf of the petitioner and there was every possibility of his being enlarged on bail. Since the District Magistrate was satisfied that the petitioners activities as mentioned in the three grounds, disturbed public order the petitioners detention was necessary to prevent him from indulging into similar activities prejudicial to maintenance of public order. ( 7 ) LEARNED counsel for the petitioner urged that none of the three grounds on which the petitioner has been detained relate to public order, instead they all relate to maintenance of law and order. ( 7 ) LEARNED counsel for the petitioner urged that none of the three grounds on which the petitioner has been detained relate to public order, instead they all relate to maintenance of law and order. The scope and implication of public order and the circumstances in which public order is likely to be affected bas been considered by a Full Bench of this Court in Habeas Corpus Petition No. 11151 of 1984 (Ashok Dixit v. State of U. P.) decided on 1-8-1985. The Full Bench held that public order generally means peace and tranquility of the community at large. It is an expression of wide connotation which signifies that the state of tranquility prevails amongst the members of the society. An act which affects the peace and tranquility of the community at large affects the public order. The activities prejudicial to maintenance of public order contemplate an activity which disturbs the society and the community in general. Breach of law and order creates disorder, but every disorder does not affect public order. If the activities of a person have no potentiality to affect public peace and tranquility, the same would not relate to public order, instead they would fall within the purview of law and order. Even if an activity amounts to serious breach of law, like murder, dacoity or robbery, but it does not create terror, panic or if it does not affect even the tempo of the life of the community the offence or the crime, howsoever reprehensible cannot be said to affect public order. If by commission of an offence only individuals are affected and public at large is not affected the crime or the offence even though serious would only relate to law and order. The Full Bench further held that every disturbance of Jaw leading to disorder is not sufficient to invoke the extraordinary powers under the National Security Act unless the Act in question endangered or was likely to endanger public order. True test is not the kind but the potentiality of the act in question. The Full Bench further held that every disturbance of Jaw leading to disorder is not sufficient to invoke the extraordinary powers under the National Security Act unless the Act in question endangered or was likely to endanger public order. True test is not the kind but the potentiality of the act in question. ( 8 ) IN Ajal Dixit v. State of UP) it was held that murderous assault made on certain individuals in public place or firing at the police and committing murder in the market was not sufficient to invoke the powers under section 3 (2) of the Act to detain a person as the incidents were not related to public order, instead they related to maintenance of law and order. ( 9 ) IN the light of the aforesaid principles, the grounds, if examined in detail, would show that the nature of the grounds alleged against the petitioner are related to maintenance of law and order, they have no nexus with public order. The first ground relates to extortion of money from a cinema owner in a secretive manner. There is nothing on record to show that the petitioner has been extorting money from the members of the public in an indiscriminate manner. The alleged incident as contained in ground No. 1 affected only a single individual Kuldeep Kapoor with whom the petitioner was not on good terms. The second ground relates to an offence of attempting to commit murder of Amar Jyoti Singh. This ground also by its nature was not likely to affect public order. The third ground relates to robbery alleged to have been committed by the petitioner and his associates in snatching the salary of Government employees. The alleged crime is a serious one; although reprehensible in nature, but by its nature it is not likely to affect the general peace and tranquility or public order. No doubt sensation and panic may have been caused in the locality on account of the incident but that by itself is not sufficient to have the potentiality to affect even the tempo of the life of the community. In our opinion, therefore, none of the three grounds relate to public order, instead each of them relates to maintenance of law and order. ( 10 ) LEARNED counsel for the petitioner made some additional submissions in assailing the validity of the petitioners continued detention. In our opinion, therefore, none of the three grounds relate to public order, instead each of them relates to maintenance of law and order. ( 10 ) LEARNED counsel for the petitioner made some additional submissions in assailing the validity of the petitioners continued detention. We would like to consider those submissions. It was submitted that the facts stated in ground No. 1 are old and stale. We find considerable merit in the submission. Ground No. 1 relates to an incident which took place on 27-3-1984, while the order of detention was passed on 24-2-1985. The time lag between the alleged incident and the passing of the detention order is almost of a year. It is now well settled that a detention order or a ground which is old and state is not permissible under the law. The incident alleged to have taken place on 27th March, 1984 has no close proximity with the purpose and object of the detention order which was passed almost after a year. ( 11 ) AS regard the second ground, it was submitted that crime No. 4914 was registered at the police station under section 307 I. P. C. on 1-11-1984 on the basis of a written first information report submitted by Amar Jyoti Singh. On a perusal of the report of Amar Jyoti Singh (Annexure VI to the petition) it is apparent that neither Amar Jyoti Singh nor P. N. Jakharia could recognise the assailants. In his report Amar Jyoti Singh further asserted that there was huge crowd and it was not possible for them to recognise the assailants and for that reason he further stated that he was not interested in taking any action against anybody. On the face of the assertion made by Amar Jyoti Singh himself in the report on the basis of which crime No. 914 was registered at the Police Station, the petitioner could not, be held responsible for the assault. In the ground, it is stated that during investigation the petitioners involvement was found, but it is material to note that even after investigation the petitioner was never sent up for trial The respondents have not explained reasons for non-prosecuting the petitioner. ( 12 ) AS regards the third ground relating to commission of robbery by the petitioner, admittedly the petitioner was prosecuted, and he stood trial for the offence. ( 12 ) AS regards the third ground relating to commission of robbery by the petitioner, admittedly the petitioner was prosecuted, and he stood trial for the offence. On the conclusion of the trial the Special Judge (Dacoity Affected Area) Agra, by his order dated 8-10-1985 acquitted the petitioner of the charge under section 395 I. P. C. in respect of the allegations contained in the third ground. A copy of the judgment has been filed by the petitioner along with a supplementary affidavit. On a perusal of the same we find that the learned Judge severely criticised the investigation of the case by the police and observed that the investigation was most faulty bordering on unfairness. The petitioner was acquitted honourably. The effect of the order of acquittal is that the petitioner was not involved in the incident as alleged in the third ground, the basis of detention as contained in that ground, therefore, becomes non-existent. In Smt. Bimla Diwan v. Lt, Governor Delhi2 it was held that if the ground of detention related to an incident of criminal prosecution against the detenu and the detenu was acquitted in the prosecution, the order of detention would be invalid as in that situation the incident contained in that ground could not legitimately be taken into consideration for detaining the petitioner under section 3 (2) of the Act. It is true that in the instant case the order of acquittal was not in existence on the date the District Magistrate issued the detention order. It would, therefore, follow that even if on the date the District Magistrate detained the petitioner on the basis of the impugned report contained in ground No. 3, the order may have been valid, but after the judicial pronouncement and acquittal of the petitioner, the ground ceased to be valid for the continuance of the petitioners detention on that ground. We are conscious that even after acquittal on the ground of benefit of doubt or on the ground of witnesses turning hostile under the pressure of a detenu or for other like reasons, it is open to the District Magistrate to satisfy himself regarding the necessity of detention of the detenu. We are conscious that even after acquittal on the ground of benefit of doubt or on the ground of witnesses turning hostile under the pressure of a detenu or for other like reasons, it is open to the District Magistrate to satisfy himself regarding the necessity of detention of the detenu. But where the detenu is acquitted subsequent to the judicial trial on the same facts which formed the basis of detention, the continued detention of the detenu would be unsustainable, as such a detention on a ground involving a detenu would be non-existent. The detaining authority has failed to show that the petitioners acquittal was on some technical ground which does not question the veracity of the first information report on the basis of which the petitioner was detained. ( 13 ) IN view of the above discussion, we are of the opinion that tire petitioners detention under section 3 (2) is not sustainable on any of the three grounds. ( 14 ) WE accordingly allow the petition and direct the respondents to release the petitioner forthwith unless he is required to be detained in some other case. Petition allowed. .