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2003 DIGILAW 140 (ALL)

VEERPAL VIRENDRA v. STATE OF UTTAR PRADESH

2003-01-24

U.S.TRIPATHI, V.N.SINGH

body2003
V. N. SINGH, J. ( 1 ) THIS petition has been filed by the petitioner challenging the correctness and validity of the order dated 1-2-2002 passed by the District Magistrate, Mathura in the exercise of his powers conferred on him under Section 3 (2) of the National Security Act (hereinafter referred to as the Act) with a view to prevent the petitioner/detenue from acting in any manner prejudicial to the maintenance of public order. ( 2 ) THE contention of the petitioner in brief is that, the petitioner has been detained under the Act on the basis of solitary incident in case crime No. 1 of 2002 under Sections 302/201 IPC and later on converted under Sections 396, 328, 412 and 201 IPC and Section 2/3 of U. P. Gangsters Act. ( 3 ) BRIEF facts of case is that, Sri Sukhbir Singh lodged the F. I. R. under Sections 302/201 IPC at 11. 00 A. M. at Police Station Hasayan, District Hathras, which was registered as case crime No. 1 of 2002. It was alleged by Sukhbir Singh that, on 3-1-2002 at about 10. 00 A. M. near Sua Mohanpur towards the north side of his hotel, he had gone to ease himself near the bridge of Isan river. At about 50 yards towards the north side of bridge of Hathras-Sikandera Rao Road at western side, he found a dead body of unknown person having injuries on the neck and head. ( 4 ) ON the basis of the F. I. R. an entry was made in the General Diary at 11. 00 A. M. On 3-1-2002 while, the S. O. Sri R. K. Sharma along with police party was on patrol duty, he got the information near Eta Chungi that certain miscreants would go towards Bulandshahar, after committing murder of Driver along with the robbed Tanker. After having received the information, the police party began to watch along with the informant. After some time on identification of tanker they followed the tanker by a Jeep. The Police party directed them to stop the tanker, but miscreants began to fire on the Police party with the intention to kill them, but somehow the police party got the tanker stopped. Three persons were taken into custody inside the cabin of the tanker. After some time on identification of tanker they followed the tanker by a Jeep. The Police party directed them to stop the tanker, but miscreants began to fire on the Police party with the intention to kill them, but somehow the police party got the tanker stopped. Three persons were taken into custody inside the cabin of the tanker. They disclosed their names as Mahendra Jhatav son of Dal Chand resident of Nainka, Police Station Gulawati, District Bulandshahar, Virpal and Nitu. ( 5 ) ON personal search of Mahendra Jatav one country made pistol 315 bore, and one empty cartridge were found in the chamber and one live cartridge from the right pocket of the pant and other articles were recovered from the left pocket. ( 6 ) ON personal search of Virpal one knife and personal search of Nitu one knife too was recovered from their possession. They have confessed their guilts. The recovery memo of the recovered articles was prepared and recovered articles were sealed on the spot. ( 7 ) ON the basis of the request of the S. O. and C. O. concerned, the S. P. Hathras requested the District Magistrate Hathras to take action against the petitioner under Section 3 of the National Security Act, 1980. ( 8 ) THE District Magistrate, Hathras passed detention order on 1-2-2002 against the petitioner. ( 9 ) AFTER service of the detention order and grounds of detention, a representation was submitted by the petitioner. The representation of the petitioner was rejected by the State Government and also by the Advisory Board. ( 10 ) THE Central Government also rejected the representation. ( 11 ) LEARNED counsel for petitioner and learned A. G. A. were heard. ( 12 ) THE petitioner has challenged the detention order on the grounds that case of the petitioner is covered under the law and order problem, it does not fall within the ambit of expression public order. ( 13 ) IT has been argued that any disorderly behaviour of the persons in the public or commission of a criminal offence is bound to some extent affect the peace prevailing in the locality and it may also affect the law and order, but it need not affect the maintenance of the public order. It has also been argued that there is basic difference between expression "law and order" and "public order". It has also been argued that there is basic difference between expression "law and order" and "public order". ( 14 ) NOW it is to be seen, whether the alleged act is covered under the expression law and order or public order. "a distinction has to be drawn between law and order and maintenance of public order, because most often the two expressions are confused and detention orders are passed by the authorities concerned in respect of the activities of a person which exclusively fall within the domain of law and order and which have nothing to do with the maintenance of public order. In this connection it may be stated, that in order to bring the activities of a person within the expression of "acting in any manner prejudicial to the maintenance of public order", the fall out and the extent and reach of the alleged activities must be of such a nature that they travel beyond the capacity of the ordinary law to deal with him or to prevent his subversive activities affecting the community at large or a large section of society. It is the degree of disturbance and its impact upon the even tempo of life of the society or the people of locality, which determines, whether the disturbance caused by such activity amounts only to a breach of "law and order" or it amounts to "public order" if the activity falls within the category of disturbance of "public order" then, it becomes essential to treat such a criminal and deal with him differently than an ordinary criminal under the law as his activities would fall beyond the frontiers of law and order, disturbing the even tempo of life of the community of the specified locality. ( 15 ) IN the case of Arun Ghosh v. State of West Bengal, referred in 1970 SCC (Cri) 67 : AIR 1970 SC 1228 , it has been held that, "public order would embrace more of the community, than law and order. Disturbance of the public order is to be distinguished from the acts directed against the individuals, which do not disturb the society to the extent of causing a general disturbance of public tranquillity. It is the degree of disturbance and its effect upon. The life of the community in a locality, which determines whether disturbance amounts only to a breach of law and order. It is the degree of disturbance and its effect upon. The life of the community in a locality, which determines whether disturbance amounts only to a breach of law and order. An implication of the public order is deeper and it affects even tempo of life and public order is jeopardized because the repercussions of the act embrace large sections of the community and incite them to make further breaches of the law and order and to subvert the public order. An act by itself is not determinant of its own gravity. ( 16 ) IN the case of Piyush Kantilal Mehta v. Commissioner of Police, referred in 1989 SCC (Cri) 438 : AIR 1989 SC 491 . It has been held that, an activity may be said to affect adversely the maintenance of public order, there must be material to show that there has been a feeling of insecurity among the general public. If any act of a person creating any disturbance in the minds of the members of the public upsetting the even tempo of life of the community, such act must be said to have a direct bearing on question of maintenance of public order. The commission of an offence will not unnecessarily come within the purview of public order, which can be dealt with under ordinary general law of the land. ( 17 ) SAME view was taken in the case of Gulab Mehra referred in AIR 1987 SC 2332 , in the case of Ashok Kumar referred in AIR 1982 SC 1143 and in the case of Pushkar Mukherji referred in AIR 1970 SC 852 . ( 18 ) IN the case of Kanu Biswas v. State of West Bengal referred in AIR 1972 SC 1656 it has been held by Honble the Supreme Court that the "test to be adopted in determining whether an act affects law and order or public order is : Does it lead to disturbance of the current life of the community so as to amount to a disturbance of public order or does it affects merely an individual leaving tranquillity of the society undisturbed? ( 19 ) IN the case of Kamlabai v. Commissioner of Police, Nagpur referred in 1993 SCC (Cri) 913 : (1993 AIR SCW 2305), it was held by the Honble Supreme Court that "an act of detenue catching hold of a police S. I. and threatening him in a public place on S. I. s attempt to effect the arrest of detenues associates and seizure of liquor bottles being sold in detenues stable would have created panic in the locality and pertained to public order. ( 20 ) THE basic difference between public order and law and order is that offences which primarily injure the specific persons and only secondarily the public interest are covered under the expression law and order, while others, which directly injure the public interest and affect individuals only remotely are covered under the expression public order. ( 21 ) IN the case of Ayya v. State of U. P. referred in AIR 1989 SC 364 , it has been held that it is true that "act themselves in relation to their effect on public order, which might otherwise be free from the voice of affecting public order, might assume a sinister colour and significance from the circumstances under and the manner in which, they are done, would 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 and circumstances in which, or the place at which, it is carried out. ( 22 ) IT has been argued by the learned counsel for the petitioner that in the above mentioned case (crime No. 1/2002) the petitioner was not named. Moreover, it has not been mentioned in the F. I. R. that the murder was committed by the petitioner, nor it has been committed in broad day light. No eye witness has been named regarding the incident. ( 23 ) THE petitioner has been implicated in this case on the basis of alleged recovery of knife and the confession before the police. ( 24 ) IT has also been argued that it is not organised crime. Moreover, it cannot be said that, it was done at public place and the offence has taken place during night hours. ( 23 ) THE petitioner has been implicated in this case on the basis of alleged recovery of knife and the confession before the police. ( 24 ) IT has also been argued that it is not organised crime. Moreover, it cannot be said that, it was done at public place and the offence has taken place during night hours. Hence it has no gravity and is not covered under the expression public order in view of the above mentioned case of Ayya v. State of U. P. ( 25 ) IN this connection, the attention of the Court has also been drawn towards the decision in Smt. Angoori v. Union of India and others, referred in 1989 SCC (Cri) 164 : AIR 1989 SC 371 , in which, the police men were arrested on the charge of committing cognizable offence under Sections 392/34 IPC with assistance of member of the public. In that case, the argument was that the commission of heinous offence by police personnel themselves created a sense of insecurity in the minds of public at large and is prejudicial to the maintenance of public order, but that plea was not accepted and it was held, that the offence involved law and order problem and did not disturb public order. ( 26 ) THE argument of the learned standing counsel is that, robbery of the tanker on the public road and murder has created a sense of insecurity in the minds of the public at large, hence it is prejudicial to the maintenance of public order. ( 27 ) IN this connection the decisions in the cases of Kamlabai, 1993 AIR SCW 2305 and Kanu Biswas, AIR 1972 SC 1656 (supra) were referred. ( 28 ) WE have gone through the facts and circumstances of the case and found that, offence took place in the night and not in the broad day light. It was a solitary incident and there is no material on record to show that, it has disturbed tempo or manner of life of the community in the locality or has disturbed general peace or has created a sense of alarm or insecurity in the locality, nor there is evidence to show that it was organised crime. It was a solitary incident and there is no material on record to show that, it has disturbed tempo or manner of life of the community in the locality or has disturbed general peace or has created a sense of alarm or insecurity in the locality, nor there is evidence to show that it was organised crime. We are of the view that, the alleged act of the petitioner is not covered under the expressions public order and it pertains to the law and order problem. Hence, the petition is liable to be allowed. ( 29 ) IN the result, the petition is allowed and the impugned order of detention is quashed. The petitioner is directed to be released forthwith if not required in any other case. Petition allowed. .