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Allahabad High Court · body

1999 DIGILAW 1092 (ALL)

BRIJVEER v. STATE OF U P

1999-07-30

M.C.JAIN, R.R.K.TRIVEDI

body1999
The questions of fact and law are similar in the aforesaid writ petitions and they can conveniently be decided by a common order against which learned Counsel for the parties have no objection. The habeas corpus writ petition No. 7307 of 1999 shall be the leading case. 2. Petitioners of aforesaid writ peti tions have challenged the orders dated 19-11-1998, passed separately againsteach of them, under Section 3 (2) of the Nation al Security Act (hereinafter referred to as the Act) under which they have been detained. Along with the orders of deten tion the petitioners were also served with the grounds, which are similar. In leading case the impugned order of detention dated 19-11-1998 has been filed as An-nexure-4 and grounds on which subjective satisfaction has been formed by the detain ing authority has been filed as Annexure-5. 3. There are two grounds on the basis of which the orders of detention have been passed. The first ground is that on 9-11-1998 Jaswant Singh son of Shri Ram, resi dent of the village Hariagarhi, Police Sta tion Raya, district Mathura lodged report (Annexure-2) in police station Raya, which was registered as case crime No. 280 of 1998, under Section 506, I. P. C. It is stated that on 31-10-1998 the petitioner along with other companions forcibly entered in the house of Vinod Kumar son of Raghubir Singh and dragged with them his sister-in-law and wives of two nephews to their house and committed gang rape with them and thereafter left them naked in the village. No body in the village could muster courage to prevent the petitioners and their accomplices from committing this heinous crime. It is further stated that accused persons are presently under detention in district jail Mathura and they are sending persons of criminal nature and threatening the complainant and his fami ly members for their life if they do not file compromise and affidavit in the Court regarding the offence committed on 31-10-1998. On 9-11- 1998 at 7 a. m. when Jas want Singh, the complainant was heading towards Raya from his village four armed persons called him and shouted at him that PAC and Police will not be helpful to him as they have been posted only for short time. On 9-11- 1998 at 7 a. m. when Jas want Singh, the complainant was heading towards Raya from his village four armed persons called him and shouted at him that PAC and Police will not be helpful to him as they have been posted only for short time. If he does not file affidavits in favour of Om Veer, Mukta, Birjo and Brij- veer then he will not be saved and shall be buried alive. When the miscreants were threatening, it was heard by Rishi Pal son of Devi Singh and Sugriv son of Hari Singh. On account of this daring attempt of the miscreants atmosphere of fear and commotion has prevailed in the village. The village persons kept themselves away from daily work. They are living under great fear and terror but have no courage to open their mouth against miscreants. Silence prevailed in the en tire village and on account of petitioners fear public order has been badly dis turbed. Village people go inside their houses early in the evening and come out only in the morning. It is stated that on account of the aforesaid daring criminal activity of the petitioners the entire village is under grip of fear and public order has been badly disturbed. 4. In ground No. 2 it is stated that on 31-10-1998 at 5 a. m. four petitioners along with five others entered into the house of Vinod Kumar son of Raghubir Singh and misbehaved with his wife, sister-in- law and mother and forcibly dragged three ladies and took them to their houses. There they looted their ornaments and then they com-mitted gang rape on them one by one whereafter they left them totally naked in the village. A report of this occurrence was lodged by Vinod Kumar at police station Raya as case crime No. 272 of 1998 under Sections 147/452/376/342/354/395/323, I. P. C. The police immediately rushed to the village but could arrest only one ac cused Nepal Singh and the remaining ac cused including petitioners went under ground. The proceedings under Sections 82 and 83, Cr. P. C. were initiated against them. The movable property was attached, then only the remaining accused sur rendered in the Court on 3-11-1998. It is also stated that on account of this heinous criminal activity of the petitioners entire village was under grip of fear and terror and public order was disturbed. 5. P. C. were initiated against them. The movable property was attached, then only the remaining accused sur rendered in the Court on 3-11-1998. It is also stated that on account of this heinous criminal activity of the petitioners entire village was under grip of fear and terror and public order was disturbed. 5. It has been further stated that petitioners surrendered on 3-11-1998 before the Court and presently they are in custody and have been lodged in jail in connection with case crime No. 272 of 1998, under Section 147/452/376/342/354/395/323, I. P. C. and case crime No. 280 of 1998, under Section 506, I. P. C. It is stated that there is possibility that petitioners will be released on bail very soon and they will again indulge in similar activity which may cause serious prejudice to the main tenance of the public order. The detaining authority recorded his satisfaction that in the aforesaid facts and circumstances with a view to prevent the petitioners from ac ting in any manner prejudicial to the main tenance of public order it is necessary to detain them under the provisions of the Act. 6. Petitioners have also been in formed that they have righ* under Section 8 of the Act to make epresentation against the order of detention to the State Government and the Advisory Board and also to the Central Government, if they desire to file representation, which may be submitted through the Superintendent of the Jail. Petitioners have also been in formed that they have right of personal hearing before the Advisory Board and if they want to avail the same, this may also be specifically communicated to the jail authorities. 7. The orders of detention were ap proved by the State Government on 27-11 -1998 under Section 3 (4) of the Act, which has communicated to the petitioners on 30-11-1998. The State Government referred the case of the petitioners to the Advisory Board on 30-11-1998. The repre sentations dated 5-12-1998 with com ments were also sent to the Advisory Board on 9-12-1998 and Advisory Board heard the petitioners and gave opinion on 10-12-1998 to the effect that there was sufficient cause to detain the petitioners. The State Government thereafter con sidered the matter and confirmed the or ders of detention for the period of 12 months w. e. f. 20-11-1998. The State Government thereafter con sidered the matter and confirmed the or ders of detention for the period of 12 months w. e. f. 20-11-1998. The repre sentations of the petitioners dated 5-12-1998 were forwarded by the District Magistrate with his comments on 9-12-1998 which were received by the State Government on 10-12-1998. A detailed note was submitted on the same day. The Joint Secretary examined it and then sub mitted it to the Principal Secretary, Home. The Principal Secretary, Home examined the representations and on 11-12-1998 submitted it to the higher authorities for final order. The representations were ul timately rejected on 15-12-1998. Copiesof the representations dated 5-12-1998 were also forwarded to the Central Govern ment by the District Magistrate, which were received on 18-12-1998. On these representations several vital informations were required from the State Government by wireless message dated 23-12-1998. The requisite information was received on 24-12-1998. The case of the petitioners was put up before the Joint Secretary, Ministry of Home Affairs on 24-12-1998. The Joint Secretary. , considered the case and with his comments placed the same before the Home Minister on 28-12-1998. The repre sentations were ultimately rejected on 31-12-1998. 8. In these petitions counter-af fidavits have been filed by Shri R. A. Khan on behalf of State of U. P. by Bhimsen, Jailor, District Jail, Mathura on behalf of respondent No. 3, detaining authority, Shashi Prakash Goyal, the then District Magistrate, Mathura has filed his own counter-affidavit and on behalf of Union of India, respondent No. 4 counter-af fidavit has been filed by Bina Prasad, Under Secretary, Ministry of Home Af fairs, Government of India. 9. We have heard learned Counsel for the petitioners, learned AGA for respon dents No. 1 to 3 and Shri K. N. Pandey for respondent No. 4. 10. Learned Counsel for the petitioners has challenged the legality of the impugned order of detention on the ground that it was a solitary incident in volving the petitioners in a criminal case and the order of detention could not be legally passed on the basis of the allega tions made in the grounds which could at the most be said to be related to law and order and cannot be said to be subversive to the public order. It is submitted that there is no material to show that there could be re-occurrence of the similar ac tivity in future and the orders of detention are wholly illegal. It has also been submilled that detaining authority has failed to consider the F. I. R. (Annexure-3) which was a cross case and was registered as case Crime No. 272-A of 1998, under Sections 363, 366 and 376, I. P. C. which was lodged by Kamlesh daughter of Raj Pal against Vinod and others. Learned Counsel has submitled that alleged activilies were out come of the revenge harboured by the detenus and it was an aclion direcied against an individual and could not have potential and reach to disturb and public order and even lempo of life of the com munity. In support of his submission learned Counsel for the petilioners has placed reliance on the judgment of Honble Supreme Court in the case of Arun Ghosh v. State of West Bengal, 1970 (1) SCC 98 ; Dipak Ghosh alias Haripada v. State of West Bengal, AIR 1972 SC 2686 ; Sheshdhar Misra v. Superintendent, Central Jail, Naini and others, 1985 (Suppl.) ACC 304; Ram Manohar Lohia v. The State of Bihar and another, AIR 1966 SC 740 ; Madhu Limaye and. another v. Sub-Divisional Magistrate, Monghyr and others, AIR 1971 SC 2486 ; Smt. Victoria Fernan-des v. Lalmalsawma and others, 1992 (29) ACC 143 (SC); Mustakmiya Jabbarmiya Shaikh v. M. M Mehta, Commissioner of Police and others, 1995 (3) SCC 237 ; Kam lesh Kumar Ishwar Das Patel v. Union of India andothers, 1995 (32) ACC451 (SC ). 11. We have carefully considered the submissions of the learned Counsel for the pelitioners. The submission of the learned Counsel for the petitioners is thai the act of violence mentioned in the grounds was directed against the individuals and was nol subversive lo the public order and, therefore, detention of the pelilioners is unjuslified. The four Judges Bench of Honble Supreme Court in the case of Arun Ghosh v. State of West Bengal (supra) discussed in detail the question raised by the learned Counsel and has held that it is the degree of disturbance and its affect upon the life of the community and locality which determines whether the disturbance amounts to breach of law and order or it dislurbed the public order. Their Lordships have also said that there is no formula by which one can be dislinguished from another. In para 3 of the judgmenl their Lordships have mentioned several examples which may amount to distur- bano of public order. The relevant por tion of paragraph 3 is being reproduced below: "an act by itself is not determinant of its own gravity. In its quality it may not differ from another but in its potentiality it may be very different. Take the case of assault on girls. A guest at a hotel may kiss or made advances to half a dozen chamber-maids. He may annoy them and also the management but he does not cause disturbances of public order. He may even have a fracas with the friends of one of the girls but even then it would be a case of breach of law and order only. Take another case of a man who molests women in lonely places. As a result of his activities girls going to colleges and schools are in constant danger and fear. Women going for their ordinary business are afraid of being waylaid and assaulted. The activity of this man in its essential quality is nol different from the act of the other man but in its potentiality and in its affect upon the public tranquillity there is a vast difference. The act of the man who molest the girls in lonely places causes a disturbance in the even tempo of living which is the first require ment of public order. He disturbs the Society and the community. His act makes all the women apprehensive of their honour and he can be said to be causing disturbance of public order and not merely committing individual actions which may be taken note of by the criminal prosecution agencies. It means therefore, that the question whether a man has only committed a breach of law and order or has acted in a manner likely to cause a disturbance of the public order is a question of degree and the extent of the breach of the act upon the Society. " `12. The case of Arun Ghosh (supra) has been followed in most of the cases subsequently decided by Honble Supreme Court. " `12. The case of Arun Ghosh (supra) has been followed in most of the cases subsequently decided by Honble Supreme Court. If the test menlioned in Arun Ghoshs case is applied to the facts of the present case there can be no doubt thai the criminal acl of the pelitioners definitely disturbed the public order in the locality though it was directed againsl ihree ladies of a family. From the perusal of the grounds it is clear that on 31-10-1998 presenl pelilioners along wilh Their com panions enlered inio the house of Vinod Kumar son of Raghubir Singh and they misbehaved wilh his wife, sister-in-law and mother. They did not slop here but they openly dragged ihree ladies and took them to their house and there they commitled gang rape wilh the Ihree ladies one by one and thereafter the three ladies were left naked in the village. They also looted their ornaments. The gang rape of three ladies in the manner stated and thereafter leav ing them naked in the village was an out rageous act that must have created scare among the residents of the village, espe cially ladies. Such an act could have suffi cient potential and reach to disturb the public order and even tempo of life of the community in the village and was definite ly a case of disturbance of public order. The activity of the petitioners was not confined inside the house of Vinod Kumar, which may be said that it was an offence against individuals and could only be rated a prob lem of law and order. They went far ahead of boundary line of the problem of law and order and took away the three ladies with them to their houses, there they com mitted rape and then they left the ladies naked. Such kind of activity is quite distin guishable from an act directed against an individual. By the action of the petitioners entire Society was affected though victims were only three ladies. This act of petitioners must have left all the women of the village apprehensive of their honour. Village ladies going for their ordinary business must have felt scared and afraid of being assaulted same way. In our con sidered opinion, it was a case of distur bance of public order and the impugned orders were fully justified in such facts and circumstances. 13. Village ladies going for their ordinary business must have felt scared and afraid of being assaulted same way. In our con sidered opinion, it was a case of distur bance of public order and the impugned orders were fully justified in such facts and circumstances. 13. In this connection learned Coun sel for the petitioner also submitted that the petitioners acted in retaliation as Kamlesh daughter of Raj Pal was kid napped and raped for which the F. I. R. was lodged which was registered as case crime No. 272-A of 1998, under Sections 363, 366 and 376, I. P. C. in Police Station Raya, district Mathura. A copy of the F. I. R. has been filed as Annexure-3 to the writ peti tion. We have perused the F. I. R. (An nexure-3 ). From its perusal it is not clear as to when the F. I. R. was lodged. In any view of the matter there can be no jus tification on the part of the petitioners to commit an offence of the gravity men tioned above which could disturb the public order. They cannot justify their ac tion on the basis of the earlier offence committed against Kamlesh. It may be reprehensible and equally bad for which criminal action could be taken but it could not give licence to the petitioners to com mit an offence of gang rape with three innocent ladies and then leave them naked in the village. The impugned order against the petitioners cannot be assailed on this ground also. 14. Learned Counsel has also sub mitted that the petitioners were involved in this single act and there could be no justification to pass the order of preven tive detention against them. The submis sion is not correct. Ground No. 1 clearly indicates that threats were being given to the complainant side that if the affidavits are not filed in the Court in favour of the petitioners and matter is not com promised they would be deprived of their life. It was also alleged that police protec tion provided to the complainant family would not last long and they will be in a position to take action against the com plainant and their family members. It was also alleged that police protec tion provided to the complainant family would not last long and they will be in a position to take action against the com plainant and their family members. In pur opinion, the detaining authority was jus tified in taking preventive action against the petitioners by detaining them, as there was strong apprehension that they may indulge in similar activity. 15. For the reasons stated above, in our opinion, the impugned order passed against the petitioners do not suffer from any illegality. The writ petitions have no merit and are liable to be dismissed. All the writ petitions are accordingly dis missed. Petitions dismissed. .