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Madhya Pradesh High Court · body

2000 DIGILAW 138 (MP)

RASHIDA BEGUM v. STATE OF M. P.

2000-02-11

R.S.GARG, V.K.AGRAWAL

body2000
V. K. AGARWAL, J. ( 1 ) THIS petition under Articles 226 and 227 of Constitution of India, has been filed by the mother of the detenu Mohd. Abid, challenging his detention under the National Security Act, 1980 (hereinafter referred to as 'act' for short ). ( 2 ) THE facts as laid out in the present petition in brief are, that the detenu Mohd. Abid is a tailor by profession and is not a habitual criminal. He has been involved in false cases. A petty criminal case in the year 1995, was registered against him, by Police Moghat Road, Khandwa, for offences under Sections 341, 294 and 506 of the Indian Penal Code. The detenu was acquitted in the said trial. The order of detention dated 18-5-1999 (Annexure P/1) was issued by District Magistrate, East Nimar, Khandwa under sub-section (2) of Section 3 of the 'act'. ( 3 ) THE District Magistrate in compliance of Sec. 8 of the 'act' intimated the detenu of the grounds of his detention as per Annex. P/4. In para 2 of annex. P/4 it has been stated that the detenu had been indulging in criminal acts and unsocial activities since the year 1995, and despite action having been taken under the Criminal law, he did not show any improvement in his criminal tendency. By his deeds, he has been disturbing law and order as well as public order of the town of Khandwa since 1995. The matters in which the detenu was involved have been enumerated in para 3 which are as below :- (I) On 26-8-1995, he had abused and threatened Ahmad Khan regarding which Crime No. 326/95 was registered by police Moghat Road, Khandwa, under Sections 341, 294 and 506 of Indian Penal Code. A charge sheet was filed in the Competent Court regarding the said offences. (II) On 6-5-1998, the detenu pelted stones at Devidas, due to which he sustained grievous injuries. Police Kotwali, Khandwa, registered Crime No. 251/98 for offences under Sections 336, 426 r/w Sec. 34 of Indian Penal Code. A challan regarding the said offences was filed in the Competent Court. (III) On 28-4-1999, the detenu pelted stones on the house of Shivlal, on account of which he sustained injuries and the incident also resulted in loss of his property. A challan regarding the said offences was filed in the Competent Court. (III) On 28-4-1999, the detenu pelted stones on the house of Shivlal, on account of which he sustained injuries and the incident also resulted in loss of his property. Police Kotwali, Khandwa registered Crime No. 212/99 for offences u/s. 427, 147 and 336 of I. P. C. (IV) On 28-4-1999, 'muharram' procession was proceeding and reached Sarafa point. Members of the Muslim community were shouting slogans. In reply, the members of Hindu community also raised slogans. This resulted in communal tension between the two communities. The mischievous elements of Muslim community including the detenu started pelting stones, resulting in loss of property. Police Kotwali, Khandwa, registered Crime No. 213/99 for offences u/s. 147, 148, 336, 337 and 427 of Indian Penal Code, regarding the said incident. (V) On 29-4-1999, at the time of marriage of sister of Harish Soni, the detenu along with his accomplices set fire on tents set up for the said marriage and pelted stones. Police Kotwali registered Crime No. 215/99 for offences u/s. 147, 148, 336 and 435 of Indian Penal Code, which is under investigation. (VI) On 29-4-1999, the detenu along with others pelted stones at the Radha-Krishna temple in order to cause hurt to the religious feeling of Hindu community. In the said incident several persons including Sunita Bai Soni, Navin Soni as also Police-men got injured. Police Kotwali, Khandwa, registered Crime No. 216/99, for offences u/ss. 295, 147, 148 and 336 of the Indian Penal Code. (VII) On 29-4-1999, the detenu along with other accomplices pelted stones at Sunil Sharma resulting in injuries to his person as well as damage to his Maruti Car. Police Moghat Road, Khandwa registered Crime No. 156/99, for offences u/ss. 147, 336, 337 and 427 of Indian Penal Code. (VIII) On 29-4-1999, the detenu along with others pelted stones at 'sai temple in the hospital campus with an intent to cause hurt to the religious feelings of a particular community. In the said incident, the photo of 'sai-Baba' was broken and some damage to the property was also caused. Police Mohghat Road, Khandwa, registered Crime No. 157/99, for offences u/s. 147, 295 and 427 of Indian Penal Code. (IX) On 4-5-1999 the detenu was found with explosive substance behind 'sheetla Mandir Naochandi', but was successful in escaping due to darkness. In the said incident, the photo of 'sai-Baba' was broken and some damage to the property was also caused. Police Mohghat Road, Khandwa, registered Crime No. 157/99, for offences u/s. 147, 295 and 427 of Indian Penal Code. (IX) On 4-5-1999 the detenu was found with explosive substance behind 'sheetla Mandir Naochandi', but was successful in escaping due to darkness. Dynamite rods and detonator were recovered from the spot. Crime No. 161/99 was registered by Police Mohghat Road, Khandwa, against the detenu, for offences u/s. 5 of the Explosive Substances Act and Sec. 295 of the Indian Penal Code. ( 4 ) BESIDES the above, the 'rojnamcha Sanha' No. 59, dated 1-5-1999 indicates that the detenu and his companions had accumulated explosive substance. In 'rojnamcha-Sanha' No. 88, dated 2-5-1999, information regarding the detenu taking explosive substance towards Maharashtra, was recorded. ( 5 ) THE District Magistrate, East Nimar, Khandwa, on the basis of the above material was of the opinion that the activities of the detenu are affecting public order, therefore, ordered his detention u/s. 3 (2) of the 'act' as per Annx. P/4. ( 6 ) UNDISPUTABLY, the matter of detention and the issuance of the order Annex. P/4 was reported to the State Government together with the grounds on which the order was made with necessary particulars. The State Government has approved the order of detention. The detenu was also informed about the order of his detention and the grounds thereof, and he was also intimated that he can make a representation against the order to the appropriate Government. It would appear from Annex. P/3, that the order of detention issued by District Magistrate was also approved by the Advisory Board. The order of detention was therefore confirmed by the State Government. ( 7 ) THE learned counsel for the petitioner has submitted that the detenu is a tailor by profession and earns his livelihood for himself and his family members including his old mother the petitioner. It has been submitted that so far as ground No. 1 is concerned, the detenu has been falsely involved in a petty criminal case and he has been acquitted in the said criminal case lodged in the year 1995 for offences u/ss. 341, 294 and 506 of Indian Penal Code. So far as ground No. 2 is concerned, the trial of offence u/ss. 341, 294 and 506 of Indian Penal Code. So far as ground No. 2 is concerned, the trial of offence u/ss. 336, 426 r/w Sec. 34 of IPC registered against him on the report of Devidas dated 6-5-98 is pending consideration in the trial Court. It has been submitted that the remaining grounds enumerated in Annex. P/4, relate to the period during 28-4-1999 to 4-5-1999, while tension prevailed in Khandwa on the occasion of 'muharram'. It is submitted that the name of detenu does not appear in most of the First Information Reports, relating to the said grounds. It has further been submitted that in some other cases registered during the above period, though the names of other persons also appear in the police reports, but the detention proceedings under the 'act' have only been initiated against the detenu and not against other persons named therein. ( 8 ) IT has also been submitted that the grounds of detention are not supported by relevant documents and mere entries from crime register have been furnished, which would not constitute sufficient material for forming an opinion by the District Magistrate. Reliance in the above regard, has been placed by the learned counsel for the petitioner on Veerendra Singh v. State of M. P. , 1996 MPLJ 951 : (1997 Cri LJ 446 ). It has been submitted that false cases were registered against the detenu. It was urged that there was no allegation of the detenu disturbing the public peace and his actions have not been shown to be prejudicial to the public order as his actions did not cause terror to the persons residing in the locality. It has been submitted that action amounting to mere disturbances of law and order would not constitute sufficient grounds for taking action under the 'act'. ( 9 ) THE learned Govt. Advocate, however, supported the order of detention by the District Magistrate and has submitted that there was sufficient material for him to form an opinion that the actions of the detenu were prejudicial to the maintenance of public order, and that his actions were calculated to cause communal disharmony and tension between the communities and affected the peace of the locality and created terror in the minds of the residents of the locality, resulting in adversely affecting public order. ( 10 ) IN view of above contentions, it has to be considered whether there was justification for the District Magistrate to pass the order of detention under Section 3 (2) of the 'act'? ( 11 ) AS noticed earlier, the learned counsel for the petitioner challenged the order of detention urging that entries of the crime register alone, were not sufficient to form opinion. However, it is noticed that in the instant case the entries of the crime register alone were not furnished to the District Magistrate. In fact, the copy of the concerned 'rojnamcha Sanha' and the First Information Reports, recorded in the Police Station have been furnished, and taken into consideration by the District Magistrate, as would be clear from annexures to the petition as well as the return filed by the respondents. Therefore, the above submission of the learned counsel for the petitioner, that the District Magistrate formed an opinion only on the basis of entries in the crime register, does not appear to hold any water. ( 12 ) THE next contention of the learned counsel for the petitioner is that the detenu's activities can only be said to affect 'law and order', as they merely amounted to criminal offences which were to be dealt with by the police agency, and that they in no way were prejudicial to the maintenance of public order. ( 13 ) IT may be pointed out that while considering as to whether the detenu had committed breach of law and order or has acted in a manner likely to cause disturbance of the public order, is a question of the degree and extent of the reach of the act upon the society. There is no formula by which one case may be distinguished from another. (See Arun Ghosh v. State of West Bengal, (1970) 1 SCC 98 : (1970 Cri LJ 1136 ). A mere disturbance of law and order leading to disorder is not necessarily sufficient for action under preventive detention laws. A disturbance which will affect public order can alone justify such detention. Individual actions which do not disturb the even tempo of life in the society and community or do not cause apprehension in the minds of the residents of the locality in regard to maintenance of public order cannot amount to interference with the maintenance of public order. A disturbance which will affect public order can alone justify such detention. Individual actions which do not disturb the even tempo of life in the society and community or do not cause apprehension in the minds of the residents of the locality in regard to maintenance of public order cannot amount to interference with the maintenance of public order. ( 14 ) IN the above context, it may be noted that as per ground No. 4 on 28-4-1999 while the procession of 'muharram' reached Sarafa point, slogans were being shouted by the members of Muslim community. The Hindu community then started shouting slogans in reply. During the slogans shouting as above by the two communities, the detenu along with other miscreants started pelting stones resulting in injuries to persons and also causing extensive damage to property. First Information Report, numbered 213/99 of the petition indicates that the detenu was one of the miscreants in the above incident. ( 15 ) IN the incident dated 29-4-1999 (Annex. 4) constituting ground No. 6 the detenu along with others had pelted stones at the temple on account of which several persons were injured and the religious feelings of a community were also hurt. The name of the detenu has been specifically mentioned in the First Information Report registered as Crime No. 216/99 by Police Kotwali, Khandwa, of the petition. ( 16 ) IT would appear from 'rajnamcha Sanha' No. 2091 dated 28-4-1999 of Police Mohghat Road, Khandwa, that while there was 'arti' going on at 'ganesh Mandir' at about 11. 00 to 11. 30 p. m. in the night, there was slogans shouting by Muslim and Hindu community as against each other followed by pelting of stones by the detenu Mohd. Abid along with his other companions. Copy of the said Sanha is of the return filed by the respondents. Similarly the First Information Report recorded by Police Mohghat Road, Khandwa of the return, would indicate that the detenu along with others pelted stones resulting in breackage and damage to the picture of 'sai-Baba' and loss of property of the temple. ( 17 ) IT may further be noted that in 'rojnamcha-Sanha' No. 59 of 1-5-99 of Police Moghat Road, Khandwa it was found that the detenu tried to disturb communal harmony and he was reported to be in possession of explosive substance behind 'seetla Mandir Naochandi'. ( 17 ) IT may further be noted that in 'rojnamcha-Sanha' No. 59 of 1-5-99 of Police Moghat Road, Khandwa it was found that the detenu tried to disturb communal harmony and he was reported to be in possession of explosive substance behind 'seetla Mandir Naochandi'. Sanha No. 88 dated 2-5-1999 of Police Moghat Road, Khandwa is to the effect that the detenu had gone with the explosive substance to Maharashtra. ( 18 ) BESIDES the above, the detenu had pelted stones at Sunil Soni, resulting in injury to him and to his vehicle, as would be clear from First Information Report. The incident took place in a public road and the detenu was accompanied by many persons. Similarly he had also put fire on tents erected during the marriage of the sister of Harish Soni. He also burnt some chairs and destroyed crockery and ornamental fittings. The first information report of the incident is of the return. ( 19 ) OBVIOUSLY therefore, it is clear from the above material that the detenu indulged in his criminal activities openly in public places, in an organised manner. He always was accompanied by many other miscreants and was out to create trouble in a public place causing panic and terror to the public at large. His actions of pelting stones, shouting slogans and injuring persons present at the spot on the occasion of 'muharram'; as well as his activities of pelting stones on several temples and his reported possession of explosive substance would clearly indicate that his activities were calculated and intended to cause general panic and terror and communal disharmony resulting in disturbance of public peace. The detenu appears to have committed the misdeeds as above in an organised manner along with many other persons accompanying him. He has always been named in the incident as above and appears to have taken leading part in the incidents as above. The said actions were intended to cause communal disharmony and directed to hurt the religious feelings which obviously had wider repercussion and ramifications. It therefore cannot be said that the above actions of the detenu would merely amount to commission of criminal offences only. The said actions were intended to cause communal disharmony and directed to hurt the religious feelings which obviously had wider repercussion and ramifications. It therefore cannot be said that the above actions of the detenu would merely amount to commission of criminal offences only. ( 20 ) IN Ayya alias Ayub v. State of U. P. , (1989) 1 SCC 374 : (1989 Cri LJ 991), it was observed that it is true that the acts themselves, in relation to their effect on public order, which might otherwise be free from vice of affecting public order, might assume a sinister colour and significance from the circumstances under and the manner in which they are done. What might be an otherwise simple "law and order" situation might assume the gravity and mischief of a "public order" problem by reason alone of the manner or circumstances in which or the place at which it is carried out. ( 21 ) SIMILARLY, it was observed in Golam Hussain v. Commissioner of Police, (1974) 4 SCC 530 : (1974 Cri LJ 938) and the nature of the act, the circumstances of its commission, the impact on people around and such like factors constitute the pathology of public disorder. The act cannot be isolated from its public setting but is to be taken with its total effect on the flow of orderly life. It may be a question of the degree and quality of activity, of the sensitivity of the situation and the psychic response of the involved people. To dissect further is to defeat the purpose of social defence which is the paramount purpose of preventive detention. ( 22 ) WHEN the facts and circumstances of the instant case are viewed, in the perspective of the case law as above, it would appear that the acts of the detenu did amount to causing disturbance of the public order, as the degree and extent thereof resulted in panic and terror to the persons of locality. Therefore, it is clear that the respondent had placed adequate material to show that the actions of the detenu were not merely confined to the precincts of "law and order", but had wider repercussions and had the effect of causing disturbance to public peace and order. Therefore, it is clear that the respondent had placed adequate material to show that the actions of the detenu were not merely confined to the precincts of "law and order", but had wider repercussions and had the effect of causing disturbance to public peace and order. His activities as above being prejudicial to the maintenance of public order, opinion formed by the District Magistrate in the above regard, therefore, appears to be based on proper considerations of the material furnished to him. The impugned order of detention was therefore justified. ( 23 ) THERE appears to be no reason for interference in the impugned order of the District Magistrate u/s. 3 (2) of the 'act'. This petition, therefore, has no merit and is accordingly dismissed. Petition dismissed. .