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1989 DIGILAW 260 (ALL)

Ram Padarath Yadav v. State of Uttar Pradesh

1989-03-08

D.S.BAJPAI, S.C.MATHUR

body1989
JUDGMENT D.S. Bajpai, J. - This petition under Article 226 of the Constitution of India has been filed by Ram Padarath Yadav, son of Sri Mangru Yadav, resident of village Rampur Perai, Police Station Bikapur, district Faizabad praying for quashing the impugned order of his detention dated 29th October, 1988 (annexure-1) under S. 3 of the National Security Act, 1980. The order of detention (annexure-1) has been accompanied by grounds contained in annexure-2 to the writ petition which is of the same date. There is a solitary ground of detention. ,, 2. The ground of detention is to the effect that on 26-9-1988 in village Rampur Perai, Police Station Bikapur, district Faizabad an occurrence took place and a case crime No. 311/88 under Sections 452/324/504/506 of the Penal Code was registered at Police Station Bikapur. The petitioner was named accused i in that case and his arrest could not be made. On 5th October, 1988 an information was received that the petitioner was present at his house as also 4, 5 other undesirable persons, armed with weapons were also present there with a view to commit dacoity at some place. The Inspector Incharge of the Police Station, Sri Ram Das Rawat of Police Station Bikapur along with police force and some witnesses of the locality reached the residence of the petitioner at about 8.45 p.m. with the object of arresting him and surrounded the residence of the petitioner. The petitioner was alleged to have been present along with other accomplices in his house and with the object of creating obstruction in his arrest fired with 'Katta' (country made revolver) and attacked the police party with bombs as also Lathi and Pharsa resulting in injuries to the Inspector Incharge Ram Das Rawat, Sub-Inspector Sudama Lal, Sub-Inspector Dharam Prakash Dwivedi Sub-Inspector Mohammad Iqbal and Basant Lal (possibly a person from the locality). On getting the information about bomb attack and assault made on the police party the Senior Superintendent of Police of the District and other police officers accompanied by additional police force reached the p etitioner's residence where the petitioner even after the efforts of persuading did not surrender himself and his accomplices and continued throwing bombs and firing with 'Katta' for about three hours. After about three hours of bomb bursting and firing he w as arrested along with his accomplices. After about three hours of bomb bursting and firing he w as arrested along with his accomplices. After proper search a country made 'Katta' which was in working condition was recovered. From the search of the house of the petitioner six live bombs, pieces of glass, five live cartridges of 12 bore, 15 empties of 12 bore as also remains of exploded bombs and one Gandasa were recovered and duly taken into possession. A case crime No. 336/88 under Sections 147/148/ 149/307/324/323/504/506 of the Penal Code was registered along with case crime No. 357/88 under S. 25 of the Arms Act together with case crime No. 340/88 under S. 5 of the Explosive Substances Act was registered. As an effect of this incident public order was disturbed and panic prevailed in the entire locality resulting in serious disturbance of public order. This also led to disturbance of even tempo of life. 3. On the solitary ground as indicated above the impugned order of detention has been passed. The detention order has been assailed on the sole ground that the incident narrated cannot in any way be brought within the category of an act prejudicial to the maintenance of public order and at the most it could be disturbance of law and order which if proved could ultimately result in the petitioners imprisonment and/or imposition of fine and nothing more. On the other hand the detention order is sought to be justified on the ground that the incident culminated in lodging of case crime No. 336/88 under Sections 147/148/149/307/324/323/504/506 of the Penal Code : case crime No. 357/88 under S. 25 of the Arms Act and case crime No. 340/88 under S. 5 of the Explosive Substances Act and its effect was disturbance of public order disturbing the even tempo of life creating panic and fear psychosis in the entire locality. Counter and rejoinder affidavits have been exchanged between the parties. 4. We have heard learned counsel for the parties and have gone through the affidavits exchanged. Counter and rejoinder affidavits have been exchanged between the parties. 4. We have heard learned counsel for the parties and have gone through the affidavits exchanged. As stated above the facts of the case as they appear from the order of detention have to be tested on the well settled principles laid down in various decisions of this Court as also by their Lordships of the Supreme Court in coming to the conclusion whether it was disturbance of public order or a case which amounted to disturbance of law and order alone. To arrive at the conclusion we need not detain ourselves by explaining once again the details given in the ground since the ground clearly mentions, undisputedly, that the petitioner along with 4, 5 accomplices was present in his house on 5th October, 1988 and that on receipt of the said information Inspector Incharge of Police Station Bikapur along with police force and other persons of the locality surrounded the house of the petitioner beseeching him to surrender along with his accomplices whereupon he along with his accomplices tried to thwart their arrest by throwing bombs, firing from 'Katta' and attacking with Lathi and Pharsa etc. causing injuries to Inspector Incharge Ram Das Rawat, Sub-Inspector Sudama Lal, Sub, Inspector Dharam Prakash Dwivedi, Sub-Inspector Mohammad Iqbal and Basant Lal whereupon senior police officers of the district including the Senior Superintendent of Police reached the spot with additional force and it was only after the exchange of firing and three hours siege that the petitioner and others were arrested and incriminating material was recovered from their person and the premises as disclosed in the ground resulting in registering case crime No. 336/88 under various provisions of the Indian Penal Code, case crime No. 357/88 under S. 25 of the Arms Act and case crime No. 340/88 under S. 5 of the Explosive Substances Act. The details of the incident and the fact that besides throwing bombs, firing with Katta and attack with Lathi and Pharsa were also resorted to not only on the police party but on the persons of the locality also which is apparent from the injuries caused to Basant Lal besides injuries to the police party indicate that the effect of the incident was disturbance of public order leading to immobilisation of even tempo of life of the community. 5. 5. Learned counsel for the petitioner has mainly relied on a decision of their Lordships of the Supreme Court in the case of Ajay Dixit v. State of U.P., AIR 1985 SC 18 . 'The relevant observation by their Lordships is contained in paragraph 15 on page 23 which is "The question to ask is : Does it lead to disturbance of the current of life of the community so as to amount to a disturbance of the public order or does it affect merely an individual leaving the tranquillity of the society undisturbed? This question has to be faced in every case on facts. There is no formula by which one case can be distinguished from another." As indicated by their Lordships in Ajay Dixit's case (supra) disturbance of the current of life of the community or disturbance of even tempo of life as stated in most of the decisions has to be ascertained and found out from the facts of individual case and there cannot be a set formula to point out a case where even tempo of life would be said to have been disturbed and another case where law and order would be said to have been disturbed but the broad feature is that even tempo of life of the community.would be disturbed when there is a disturbance to the current of the life of the community; law and order would be disturbed when mainly an individual is affected by the Act. 6. Learned counsel for the petitioner placed reliance on the cases of : (i) Subhash Bhandari v. District Magistrate, 1987 3 Crimes 686 : AIR 1988 SC 74 and (ii) Smt. Angoori Devi v. Union of India, 1989 All Cri C 1 : AIR 1989 SC 371 . In the case of Subhash Bhandari (supra) their Lordships of the Supreme Court have reiterated their view as in the case of Gulab Mehra v. State of U.P., AIR 1987 SC 2332 . In the case of Subhash Bhandari (supra) their Lordships of the Supreme Court have reiterated their view as in the case of Gulab Mehra v. State of U.P., AIR 1987 SC 2332 . (see, para 9) and have said : "Therefore it is the impact, reach and potentiality of the act which in certain circumstances affect the even tempo of life of the community and thereby public order is jeopardized." Likewise in the case of (Smt.) Angoori Devi, AIR 1989 SC 371 (supra) their Lordships of the Supreme Court have again held (see at page 3 (of FAll Cri C) : "The impact on "public order" and "law and order" depends upon the nature of the act, the place where it is committed and motive force behind it. If the act is confined to an individual without directly or indirectly affecting the tempo of the life of the community, it may be a matter of law and order only. But where the gravity of the act is otherwise and likely to endanger the public tranquillity, it may fall within the orbit of the public order." 7. The learned Additional Government Advocate on the other hand cited the undernoted decisions to illustrate disturbance of even tempo of life : 1. Parimal Sarkar v. The State of West Bengal, AIR 1972 SC 1653 .. In this case the acts alleged to have been committed by the petitioner were prejudicial to the maintenance of the public order since the detenu attacked the railway protection force party with bombs at railway yard. That was also a night incident as in the instant case in a railway yard which was held to be an act amounting to disturbance of public order. 2. Kanu Biswas v. The State of West Bengal, AIR 1972 SC 1656 .. It was a case where a husband and his wife were attacked by the detenu with knife in a running train with a view to rob them which created panic and was held to be a disturbance of public order. 3. Ramesh Roy v. The State of West Bengal, AIR 1972 SC 1678 .. This was a case once again in which the detenu attacked the railway protection force party in a railway yard with bombs which was held to be a disturbance of public order. 4. Shiv Shanker v. Incharge Police Station, Hasanganj, Lucknow, 1985 All LJ 132.. 3. Ramesh Roy v. The State of West Bengal, AIR 1972 SC 1678 .. This was a case once again in which the detenu attacked the railway protection force party in a railway yard with bombs which was held to be a disturbance of public order. 4. Shiv Shanker v. Incharge Police Station, Hasanganj, Lucknow, 1985 All LJ 132.. In this case a Division Bench of this Court held that an attack of firing on the police party which is supposed to be the custodian of law and order and is responsible for maintenance of public order too is a serious act and had to be distinguished from firing on an individual with whom the culprit may have a grievance and is disturbance of public order and on the test of determination whether an act 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 and the two incidents narrated, one attack on the police party and the other firing on a person who had appeared as a witness in the Court had the effect of adversely affecting 'public order' relying on the decisions of their Lordships of the Supreme Court in Smt. Hemlata Kantilal Shah v. State of Maharashtra, AIR 1982 SC 8 and Ashok Kumar v. Delhi Administration, AIR 1982 SC 1143 . 5. Arun Kumar Gupta v. State of U.P., 1985 All LJ 810. In this case a Division Bench of our Court once again on the basis of numerous decisions of their Lordships of the Supreme Court held that (at p. 812 of All U): "Even one incident may be sufficient to satisfy the detaining authority about the breach of public order. Even a solitary incident if it has a nexus with or is germane to the disturbance and breach of public order then that alone would be sufficient for the subjective satisfaction of the detaining authority which satisfaction is supreme." 6. State of U.P. v. Kamal Kishore Saini, AIR 1988 SC 208 .. Even a solitary incident if it has a nexus with or is germane to the disturbance and breach of public order then that alone would be sufficient for the subjective satisfaction of the detaining authority which satisfaction is supreme." 6. State of U.P. v. Kamal Kishore Saini, AIR 1988 SC 208 .. It has again been laid down by their Lordships of the Supreme Court in paragraph 12 that "whether an act relates to law and order or to public order depends upon the effect to the act on the life of the community or in other words the reach and effect and potentiality of the act if so put as to disturb or dislocate the even tempo of the life of community; it will be an act which will affect public order." 8. On applying the above principles to the facts of the case in hand there cannot be two opinions that the solitary ground on which the detention order has been passed unequivocally indicates the facts and circumstances which result in disturbance of public order and not law and order. 9. In the result the writ petition fails and is dismissed. No order as to costs.