Kali Charan alias Terha v. State of U. P — 1985 DIGILAW 617 (ALL)

JUDGMENT I.P. Singh, J. - Through this Habeas Corpus Writ Petition No. 548 of 1985 under Article 226 of the Constitution of India, Kali Charan alias Terha, Petitioner (herein- after referred to as the detenu) has sought to challenge the validity and legality of the detention order dated 14.9.1984 passed by the District Magistrate, Mathura (herein- after referred to as the detaining authority) under Section 3(2) of the National Security Act (65 of 1980) (hereinafter referred to as the 'Act') with a view to preventing the detenu from acting in any manner prejudicial to the maintenance of the public order. The detenu was already In jail ever since he surrendered in the Court on 9.8.84 in connection with some other criminal cases pending against him. Accordingly, the said detention order along with the grounds of detention was served on the detenu In jail on 14.9.1984. 2. The grounds of detention detailed therein are five In number. Their English translation Is as follows: 1. On 4.12.1983 at 4 p.m. In Chhatta Bazar the detenu caught hold of Niranjan Prasad Sharma, son of Sri Ram Swarup, resident of Dampere Nagar, Mathura and beat him and then on pistol point took him to his (detenu's) house and after tying him with rope locked him Inside his house. This Incident was registered at police station Kotwali as Crime No. 959 of 1983 under Section 342/343 I.P.C. Later on challan was submitted In the Court and it was still pending decision In the Court of Judicial Magistrate IIIrd. 2. On 6.4.84 at 1.50 p.m. the detonu along with his companions, after arming themselves with illegal weapons, were trying to raise illegal constructions on Janam Bhumi near Keshav Dev Temple In the city of Mathura. On receiving information the police force from police station Kotwali, Mathura arrived at the spot (to check said illegal activity) when the detenu with the intention of kiting the police personnel opened fire at the police party. However, they escaped narrowly. At any rate, as a result of the said activity of firing at that place a panic and fear was created in the public which ran helter-skelter to save their lives. The police party also opened fire in self-defence and succeeded in arresting the detenu. One factory-made 9 mm pistol and a few illicit cartridges were recovered from him. Crime Case No. 348 of 1984 under Sections 147/148/149/ 307 IPC. The police party also opened fire in self-defence and succeeded in arresting the detenu. One factory-made 9 mm pistol and a few illicit cartridges were recovered from him. Crime Case No. 348 of 1984 under Sections 147/148/149/ 307 IPC. and Crime Case No. 349 of 1984 under Sections 25/27 Arms Act were registered. After the completion of investigation charge-sheet was submitted in both the cases. It was further alleged that in the above - mentioned two cases, the detenu was released on bail on 22.5.1984 with the condition that during the pendency - of these cases the detenu would not enter the boundary of Nagar Pallka or Cantonment, Mathura. 3. On 24.7.84 at 7.30 p.m. the detenu along with his four other companions after arming themselves with illegal weapons waylaid Ashok, son of Sri Shiv Charan, resident of Dalpat Khirki, Main Bazar near Gandhi Ashram and Hospital and with the Intention of killing him caused injuries to him with a Tamancha and knife. The said activity had spread awe and fear In the mind of the public. In this connection, Crime Case No. 624 of 1984 under. Section 147/148/149/307 I.P.C. was registered at police station Kotwali which was still under investigation. It was further alleged that by indulging In the above activity on 24:7.1984 the detenu had violated the conditions of above - mentioned ball dated 22.5.1984. It was only when the proceedings under Section 82/83 Cr. P.C. were initiated against the detenu that he surrendered In the Court on 9.8.1984. 4. On 31.7.1984 at 4 p.m. the detenu forcibly caught hold of Vijai Bahadur son of Ram Bahadur resident of Sri Krishna Janam Bhuml, Mathura, In the locality of Janam Bhumi Railway Station, Mathura and after exhibiting Katta (country made pistol) threatened him with his life. and actually fired the said Katta. Vijai Bahadur ran away and on his report a criminal case under Section 504/506/392 I.P.C. was registered. It was added that the detenu had also threatened Vijai Bahadur that since he had informed the police on 6.5.1984 and got him arrested, so he would not leave him alive. In the wake of the said incident of 31.7.1984 a sense of awe and fear was created in the public. 5. It was added that the detenu had also threatened Vijai Bahadur that since he had informed the police on 6.5.1984 and got him arrested, so he would not leave him alive. In the wake of the said incident of 31.7.1984 a sense of awe and fear was created in the public. 5. On 5.8.1984 at 3 p.m. In the Koila Wall Gall, Mathura the detenu surrounded Dine Nath Sharma, son of Shiv Charan Lal Sharma, resident of Dalpat Khirki, Mathura, who was the complainant of Crime Case No. 624 of 1984 under Sections 147/148/149/307 I.P.C. and threatened him to kill him and also opened fire with his Illicit Tamancha The detenu was also said to have threatened said Dina Nath Sharma that If he would give evidence in the said case, then he would be killed. The said activity of the detenu sent a terror-wave in the Mohalla and the people of the locality ran helter-skelter. On the report of Dina Nath Sharma a case under Sections 504/506 I.P.C. was registered against the detenu. The learned counsel for the detenu has in the petition challenged the validity of the said detention order on the various grounds, which are as follows: (1) That the detaining authority had not submitted his report to the State Government forthwith and violated the provision of Section 3(4) of the Act. (ii) That the State Government did not report within seven days as envisaged under Section 3(5) of the Act and the said provision was violated. (iii) That then representation of the detenu dated 19.9.1984 was forwarded by the detaining authority to the State Government. with great delay. (iv) That the State Government failed to place the grounds of detention and the representation of the detenu before the Advisory Board within three weeks of the date of detention and thereby violated Section 10 of the Act. (v) The Advisory Board failed to hear the petitioner (detenu) In person as prayed by him in his representation and thereby Section 11 of the Act was violated. (vi) The Advisory Board did not submit its report to the State Government within seven weeks of the detention and thereby violated Section 11 of the Act. (vii) None of the grounds of detention related to the maintenance of public order. (viii) That the detention order was passed on irrelevant and extraneous consideration. (vi) The Advisory Board did not submit its report to the State Government within seven weeks of the detention and thereby violated Section 11 of the Act. (vii) None of the grounds of detention related to the maintenance of public order. (viii) That the detention order was passed on irrelevant and extraneous consideration. (ix) That since the charge-sheet was levelled against the detenu on the basis of some of the grounds which were made the basis for the passing of the detention order, it amounted to running parallel proceedings which course is unwarranted by law and rendered the detention Illegal. (x) That the State Government did not dispose of the representation of the detenu expeditiously. 6. A perusal of the counter-affidavits filed by the detaining' authority and by Sri Vishnu Sahai, Upper Division Assistant, U.P. Secretariat, Lucknow, on behalf of the State Government reveals that the report of the detaining authority under Section 3(4) of the Act after passing of the detention order dated 14.9.1984 was received by, the State Government on 17.9.84. Under the circumstances, the report was submitted "forthwith" within the meaning of the said Section 3(4). Point No.(i) has no force. 7. The said affidavits further show that .the State Government had approved the detention order on 24.9.84 the fact was reported to the. Central Government on 25.9.84 (within seven days of the date of approval) and as such Section 3(5) of the Act was complied with. Point No. (ii) has no force. 8. The counter affidavits further show that the representation of the detenu dated 19.9.1984 was received by the detaining authority on the same day and was sent to the police authorities concerned for report. The said report was received by the detaining authority on 25.9.1984 and on the same day the said representation thereon 20.9.84. No unexplained delay is there. Point No. (iii) has no force. The said counter affidavits further show that after the representation of the detenu was received by the Government on 26.9.84 it was taken up by the Confidential section on 28.9.1984 and was placed before the Advisory Board on 1 10.1984 i.e. within three weeks of the date of the detention i.e. 14.9.84. The point No. (iv) has no force. 9. The said counter affidavits further show that after the representation of the detenu was received by the Government on 26.9.84 it was taken up by the Confidential section on 28.9.1984 and was placed before the Advisory Board on 1 10.1984 i.e. within three weeks of the date of the detention i.e. 14.9.84. The point No. (iv) has no force. 9. The counter affidavit of the detaining authority reveals that the detenu was personally produced before the Advisory Board at the time of hearing on 29.10.84 Accordingly point No. (v) has no force. The counter affidavit on behalf of the State Government reveals that the Advisory Boards opinion dated 29.10.1984 was received by the State Government on 31.10.84 within 7 weeks of the date of detention I.e. 14.9.84. Point No. (vi) has no force. 10. The counter affidavit filed on behalf of the State further reveals that the representation of the detenu was received by the State Government on 26.9.84 and it was dealt with in the Confidential Section on 28.9.84. It was forwarded to the Advisory Board on 1.10.84. October 2, 3 and 4 of 1984 were public holidays on account of Gandhi Jayanti and Dussehra. The representation was examined on 5th October, 1984. Moharram holidays fell on 6th October, 1984. Seventh October, 1984 was Sunday. Both the Joint Secretary and the Home Secretary examined the representation on 8.10.84.The Chief Secretary rejected the representation on 10.10.84 who under the Rules of Business was authorised to dispose of the representation of the detenu. Point No. (x) has no force. 11. Coming to the question of law and order and public order as raised in point No. (vii) It may be observed that it is now well-settled that there Is no formula by which one can be distinguished from another in discriminating between the law and order and public order. The act itself is not determinant. It is potentiality and its reach upon the society that matters. 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 public order. The impact of the detenu's activity upon the local community is to be seen as to whether it has the effect on the normal flow of life of the community in the locality. 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 public order. The impact of the detenu's activity upon the local community is to be seen as to whether it has the effect on the normal flow of life of the community in the locality. It is length, magnitude and intensity of the terror-wave unleashed by a particular eruption of disorder that helps establish It as an act affecting 'public order' from that concerning law and order. 12. It is in the background of the principles of law that we have to determine if the five incidents detailed in the grounds of detention pertain to the disturbance of public order or not. Incidents relating to grounds No. (1), (iii), (iv) and (v) are no doubt such which took place in open Bazar and public places. But they were directed against the individuals and in our opinion, these incidents were not germane to the breach of public order. At best, they could be the problems of law and order. The mere facts that those activities against individuals had taken place in open bazar or public places would not make them as problems of public order. Although it is asserted that those incidents had sent a wave of terror and created a sense of fear in the public of the locality but the incidents in question i.e. the said activities of the detenu did not seem to have the potentiality to disturb, the even tempo or the normal flow of life of the community in the locality. The said activities were, therefore, irrelevant to the question of breach of public order. 13. As regards detenu's activity regarding the incident detailed in ground No. (ii) the detenu is said to have opened fire at the police party at the Janam Bhumi near Keshav Dev Temple in Mathura City at 1.50 p.m. On behalf of the detenu reference is made to the decision in case of Bundu alias Baboo In Habeas Corpus Writ Petition No. 16161 of 1984 decided on 23.1.1985 In which It was observed that: "The petitioner and his associates had fired at the police party, when It Intercepted them and were trying to arrest them, with an object of making good their escape by scaring them away. The petitioner and his associates had not launched a premeditated assault on the police party In fulfilment of some plan of disturbing the even tempo of the life of the community. It was rather directed merely to scare from arrest. It is also significant to note that no member of the police party had received even scratch before they became successful in arresting the petitioner and his party. Even if the passengers of other vehicles which happened to be on the road at that time had become panicky or terror striken, it cannot be Inferred that the acts of the petitioner and his associates were directed to any one of them. Their acts were in their effect clearly confined only to the party of the police directly involved in capturing them while they were going in their car on the National Highway with arms and ammunition's kept therein. The length, magnitude and intensity of the terror were unleashed by the firing of the party of the petitioner on such passengers could not in any way lead to the disturbance of the current life of the community so as to amount to a disturbance of the public order. The firing by the party of the petitioner were not even directed to such passengers but were .confined only to few persons belonging to the police force who were engaged in apprehending them. The members of the police part were clearly distinguishable from the wider spectrum of the public." It is, therefore, argued on behalf of the detenu that opening fire on a police party does not involve disturbance of public order. 14. However, the above decision is distinguishable qua the facts involved in ground No. (ii) of the detention order. In the above-mentioned Bundus's case (1)he and his associates were speeding away in a car on a Highway and when passed near the police station concerned, the police party had tried to intercept and arrest them, the detenu and his associates tried to scare away the police party with an object of making good their escape. Shots were fired by them in the process and consequent panic was created in the minds of the passengers of other vehicles which happened to be on the road at that time was held not to disturb public order. Shots were fired by them in the process and consequent panic was created in the minds of the passengers of other vehicles which happened to be on the road at that time was held not to disturb public order. However, in the present case, the detenu and his associates were trying to raise illegal constructions on Janam Bhumi situated near Keshav Dev Temple In the heart of Mathura city at 1.50 p.m. Naturally the temple and the locality be frequented by the devotees of the temple and the locality seems to be thickly populated one. The police is the custodian of law and order and is also responsible for maintenance of public order. Opening of fire on the police In the middle of the day on a thickly populated place near Temple In the heart of the city has a much wider spectrum than ordinary 'law and order' situation. In our view It has the potentiality of generating a sense of fear in the society and disturb the tempo of the public life and effect the normal flow of the public life in the locality. It concerns' public order.' In the case of Shiv Shanker v. Incharge Police Station, Hasangani, Lucknow, (1985) ALJ 132 it was held; "The act of firing on the police party which Is supposed to be 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. These have the effect of causing disturbance to public order and cannot be termed as mere law and order affairs." Accordingly we are of the opinion that the Incident of 6.5.1984 which forms the subject matter of ground No. (ii) of the detention Involves breach of public order. The detention order, therefore, could validly be passed on this ground. Point No. (vii) is decided accordingly. 15. The detention order, therefore, could validly be passed on this ground. Point No. (vii) is decided accordingly. 15. Point No. (viii) raised by the learned counsel for the detenu is that the subjective satisfaction of the detaining authority was based on irrelevant and extraneous considerations. The detaining authority in his counter affidavit in paragraph 4 has stated that while passing the detention order, the detaining authority placed reliance not only on the report of the Superintendent of Police, Mathura dated 5.9.84 but also took into consideration the report of the Station Officer, Police Station Kotwali, Mathura, dated 17.8.1984. The said report of the Station Officer is annexure 3' to the writ petition. Its perusal shows that . the five incidents, which are the five grounds of detention, are enumerated in the said report of the Station Officer at Serial Nos. 5 to 9. However, previous four incidents mentioned at Serial Nos. 1 to 4 refer to the incidents of 15.4.1979, 19.3.1980, 16.11.1980 and 29.8.82. In this way, these four Incidents were also before the detaining authority at the time of forming his subjective satisfaction. Although the detaining authority has claimed not to base his subjective satisfaction on -the basis of those four incidents, yet it cannot be denied that he must have had the occasion to go through those four incidents as well and they must have influenced his decision. To that extent, his subjective satisfaction appears to have been influenced by the said extraneous matter. Again, In paragraph 3 of the counter affidavit of the detaining authority, It Is mentioned that "crimes committed by the petitioner were matter of grave concern as he was repeatedly indulging in the crimes organised in the city of Mathura and there was a constant struggle to control the petitioner's activity. His activities were spreading, and such, the deponent passed orders for preventively detaining the petitioner as a device to protect society." 16. It is argued by the learned counsel for the detenu that the detaining authority seems to be influenced by his feeling or impression that the detenu was indulging In organised crimes, meaning thereby that there was perhaps an organised gang operating In the city of Mathura of which the detenu was a member. The argument is that there is no material on record to suggest that way. The argument is that there is no material on record to suggest that way. It Is argued that to that extent the subjective satisfaction of the detaining authority was influenced by an extraneous and irrelevant materials. In this connection the learned counsel for, the detenu has placed reliance on the following decisions: 1. Krishna Lal Dutta v. State of West Bengal, 1974 SCC (Crl) 259. The affidavit of the detaining authority in the above case contained the statement it appears from the record that the petitioner is a notorious wagon-breaker operating near Dum-Dum junction Railway Station. It was observed In the reported case that the allegation that the petitioner was a "notorious wagon-breaker operating near Dum-Dum Railway Station" was never communicated to the detenu although ;t apparently formed one of the grounds on which the detention was ordered. Again, it was observed, "we were unable to find any mention In the record that the petitioner was "notorious wagon-breaker" In this way, the detention order In question was held to be illegal. Obviously, It had taken Into consideration extraneous matters. 2. Galarn Hameln Mordal v. State of West Bengal, 1974 SCC (Crl) 278. In this case the only ground forming the basis of the detention order and communicated to the detenu was that on July 23, 1972, between 2.00 hrs and 3.00 hrs. the petitioner and his associates broke open wagon No. CR 2820 of Goods Train No. 721 Up at P.F. No. 1 of Dutta Pukur Railway Station and when they were removing the rice from the wagon, the petitioner was arrested red-handed with one quintal of rice at the spot by the local Railway guard members. The affidavit filed by the District Magistrate In reply to the petition also stated, appears from the record that the detenu petitioner is one of the notorious wagon-breaker and was engaged in systematic breaking of railway wagons and committing the theft of rice and wheat therefrom." It was held that the grounds on which the order of detention was really made therefore, Included the ground that the petitioner was "one of the notorious wagon-breakers and was engaged in systematic breaking of railway wagons and committing theft of rice and wheat from the wagons." 17. There was no material for showing that the detenu was a notorious wagon-breaker who was systematically engaged in breaking railway wagons and committing theft of rice and wheat from the wagons and the same was also not communicated to the petitioner and was not afforded an opportunity of making a representation against it. The detention order was held to be illegal. 3. Shaik Hanif v. State of West Bengal, 1974 SCC (Crl) 292. In this case the Deputy Secretary (Home) In his counter affidavit stated that two of the accused were "veteran copper wires teasers" and "veteran railway criminal." However, these words were not used in the detention orders. They were not communicated to the detenu either. The detention order was set aside. 18. In the present case before us, we are satisfied that grounds of detention did not allege that the detenu was a member of an organised gang or was taking part In an organised crimes committed In the city of Mathure. These facts were also not communicated to the detenu. He was, therefore, deprived of his constitutional right of making an effective representation as envisaged by Article 22(5) of the Constitution of India, apart from Section 8 of the Act. For this reason, the detention order in question has to be struck down as illegal and invalid. Point (viii) succeeds. In the case of Birsn Chen v. State of West Bengal and Others, 1974 SCC (Crl) 609 line of the submissions (more precisely, third submission) was that "some grounds furnished by the detaining authority are the subject- matters of criminal cases which are still sub-judice" This submission was dealt with by their lordships in paragraph 14 and 15 as follows: "Firstly whether the detenu can be said to be reasonably able to make an affective representation against this ground when he has been facing a trial In the criminal courts. By dis closing his defence and certain facts, can he not complain that he will be handicapped in defending himself in the criminal courts. It is well-settled that in a case of preventive detention the grounds must be clear and definite to enable the detenu to make an effective representation to the Government to induce authorities to take a view in this favour. He must, therefore, have a real and effective opportunity to make his representation to establish his innocence. It is well-settled that in a case of preventive detention the grounds must be clear and definite to enable the detenu to make an effective representation to the Government to induce authorities to take a view in this favour. He must, therefore, have a real and effective opportunity to make his representation to establish his innocence. Being faced with s criminal prosecution which is pending against him all through, we are clearly of the view that the detenu has nut got a. proper and reasonable opportunity in accordance with law to make an effective representation against the impugned order of detention covered by the said proceedings. Secondly, the question is whether it Is open to the detaining authority to choose two parallel proceedings against the detenu as in this case. The fact that the ground of detention could be a subject matter of criminal prosecution Is not enough to vitiate a detention order if the detaining authority does not choose to prosecute him and only passed an order of detention in accordance with law. In that case it will be no answer that the detenu must be prosecuted in the criminal court In an open trial. The choice of the authority concerned for the mode of tackling the Illegal activity cannot per se be illegal and the order of detention will be judged on Its merits in accordance with the law laid down by this Court. The position will be, however, entirely different if the authority concerned makes an order of detention under the Act and also prosecutes him In a criminal case on the self-same facts. This, in our view, is totally barred. The detaining authority cannot take a course to two parallel and simultaneous proceedings nor can take recourse to a ground which Is the subject matter of a criminal trial as in the case of the first information report dated August 5, 1973 furnishing the grounds 9 and 10 of the detention order. That fact itself introduced a serious firmity In the order of detention for which the same must be said to be invalid. 19. The learned counsel for the detenu has argued that the present writ petition atleast two Incidents detailed in grounds 1 and 2 are sub-judice. That fact itself introduced a serious firmity In the order of detention for which the same must be said to be invalid. 19. The learned counsel for the detenu has argued that the present writ petition atleast two Incidents detailed in grounds 1 and 2 are sub-judice. They, therefore, could not form the basis of the subjective satisfaction of the detaining authority.- Since they had gone a long way in the formation of the subjective satisfaction in question, the same rendered the detention order illegal and invalid. However, it was observed in the case of Alijan Mian v. District Magistrate, Dhanbad and other, AIR 1983 SC 1130 that "As regards the contention that the criminal proceedings as well as the proceedings for preventive detention could not go together, it may be pointed out that preventive detention is an anticipatory measure and does not relate to an offence while the criminal proceedings are to punish a person for an offence committed by him. They are not parallel proceedings. In the circumstances the pendency of a criminal prosecution detention, not is an order of preventive detention a bar to prosecution. It is for the detaining authority to have the subjective satisfaction whether in such a case there are sufficient materials to place the person under preventive detention in order to prevent him from acting in a manner prejudicial to public order or the like in future." Biran. Chard's case of 1974 was a decision by two Judges while the case of Aliffan Win of 1983 was decided by three Judges. In our opinion the case of Alban Mlim holds the way. This point No. (ix has no force. 20. As a result of over all discussion above, the writ petition is allowed. The respondents are directed not to detain K.H Charon alias Terha, the detenu in this petition., any more in pursuance of the detention order dated 14.9.1984 passed by the District Magistrate, Mathura. 21. It is made clear that the order passed today would not entitle the detenu to be physically released if he is wanted in any other case or can be detained in pursuance of any other lawful order.