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2003 DIGILAW 809 (ALL)

VINAY KUMAR SAHU; VIPIN SAHU; PRADEEP KUMAR SAHU; GORAKH SAHU; RAKESH KUMAR SAHU v. STATE OF U P

2003-04-10

D.P.GUPTA, U.S.TRIPATHI

body2003
U. S. TRIPATHI, J. The above five writ petitions have been separately filed by each of the petitioner for quashing their detention order dated 26-11-2002 passed by District Magistrate, Azamgarh, respondent No. 3 under Section 3 (2) of National Security Act. 2. Each of the petitioner was separately served with the grounds of detention alongwith detention order, which stated that on 12-7-2002 at about 5. 30 p. m. the petitioner Vinay Kumar Sahu alongwith petitioners Rakesh Kumar Sahu, Gorakh Sahu, Pradeep Kumar Sahu and Vipin Kumar Sahu all real brothers alongwith their three associates Sohan Yadav, Akhilesh @ Sonu and Ghanshyam Jaiswal committed murder of Dr. Arun Kumar Singh, R/o Rampur Lahuwakala, P. S. Kotwali Deogaon, District Azamgarh in Kasba Lalganj on public road by causing brick but and stone injuries and caused grievous injures to his cousin brother Shashank Shekhar Singh @ Sonu, his material grand-father Major D. M. Singh and Kanhaiya Singh and driver Maksood by rod, dandas and stones. Vinay Kumar Sahu also fired several rounds from his revolver, but it did not hit any body. Licensed gun of Major D. M. Singh was also snatched by the petitioners. By the above act of the petitioners a sense of terror and chaos was created in the locality. The public order was adversely affected. The persons passing on the road started running helter skelter. All the shops of Kasba Lalganj were closed and shop keepers took shelter inside their house. Traffic was badly disrupted and it adversely affected maintenance of public order. The report of the incident was lodged by Sri Shashank Shekhar @ Sonu, brother of deceased Dr. Arun Kumar Singh. On the basis of above report a case at Crime No. 168 of 2002 under Sections 147, 148, 149, 302, 307, 427, 336, IPC and 7 Criminal Law Amendment Act was registered at the police station. Subsequently, Sections 356, 379 and 411, IPC were added on recovery of 12 bore gun and tape of the car. After investigation charges-sheet was submitted in the case on 10-10-2002. 3. Each of the petitioner was detained in connection with above case Crime No. 167 of 2002 in District Jail, Azamgarh since 22-11-2002 and they were trying to get them released on bail. Bail, Application was also moved in the Court. After investigation charges-sheet was submitted in the case on 10-10-2002. 3. Each of the petitioner was detained in connection with above case Crime No. 167 of 2002 in District Jail, Azamgarh since 22-11-2002 and they were trying to get them released on bail. Bail, Application was also moved in the Court. There was real possibility of petitioners being released on bail and after release on bail their indulging in similar activities prejudicial to the maintenance of public order. Therefore, the detaining authority was satisfied that detention of the petitioners was essential for maintenance of public order. 4. The detention order dated 27-11-2002 was served on each of the petitioner separately on same day i. e. , 27-11-2002. The above detention order was affirmed and approved by the State Government on 5- 12-2002. Each of the petitioner submitted representation on 13-12-2002 addressed to the Home Secretary, U. P. and Home Secretary, India as well as Advisory Board. The representation of the petitioner was rejected by State Government on 2-1-2003 and by the Central Government 7-1-2003. 5. We have heard Sri A. B. L. Gaur and Sri B. K. Tripathi learned Counsel for the petitioner in each petition, Sri Mahendra Pratap, learned A. G. A and Standing Counsel on behalf of Union of India and have perused the record. 6. All the five writ petitions related to same incident and common question of law and fact are involved in these writ petitions. Therefore, all the 5 writ petitions are being disposed of by a common order with the consent of the learned Counsel for the parties. 7. The learned Counsel for the petitioner challenged the detention order on the following grounds : (1) As many as eight persons including the petitioners were involved in the incident in question, but detention order was passed only against 5 persons, the petitioner of each writ petition, and no detention order was passed against three accused of the incident namely Sohan Yadav, Akhilesh @ Sonu and Ghanshyam Jaiswal. Since no detention order was passed against three persons, the detention order against the petitioner was bad on the ground of parity. (2) The incident in question related to purely law and order problem and it has no effect or impact on public order. (3) There was inordinate unexplained delay in deciding the representation of the petitioners. 8. Since no detention order was passed against three persons, the detention order against the petitioner was bad on the ground of parity. (2) The incident in question related to purely law and order problem and it has no effect or impact on public order. (3) There was inordinate unexplained delay in deciding the representation of the petitioners. 8. On point No. 1, the learned Counsel for the petitioner contended that grounds of detention disclosed that as many as 8 persons including 5 persons were involved in the incident, but no detention order was passed against three of the accused of said case and therefore, the detention order passed against the petitioner is not justified and they are entitled to parity with those against whom no detention order was passed. In support of his above contention, he placed reliance on Division Bench decision of this Court in Rajesh v. State of U. P. and others, 2002 (2) JIC 605 (All ). In the said case it was argued that although same allegation was against accused Ram Dhyan S/o Ganesh Khatik, the detention order was not passed against him. The learned A. G. A. argued that petitioners were not entitled for parity in the case of detention. In the said connection attention of the Court has been drawn towards Full Bench decision of this Court in the case of Chandresh Paswan v. State of U. P. , 1999 (2) JIC 2 (All) (FB) : 1999 Cr LJ 2759 and Division Bench decision S. C. Katara v. State of U. P. and others, 2001 Cr LJ 4777. It was held in the said case as below : " (35) We have gone through the decision in the case of S. C. Katara, in which it has been held that in the case of detention, parity cannot be canvassed, as ground of detention may be entirely different in different cases. (36) So far as the decision in Chandresh Paswan is concerned, the detention order was revoked under sub-section (2) of Section 12 of the National Security Act, as there was no sufficient ground for detention. (37) It has also been argued by the learned Counsel for the petitioners that allegation against petitioners and Ram Dhyan are the same. (36) So far as the decision in Chandresh Paswan is concerned, the detention order was revoked under sub-section (2) of Section 12 of the National Security Act, as there was no sufficient ground for detention. (37) It has also been argued by the learned Counsel for the petitioners that allegation against petitioners and Ram Dhyan are the same. (38) It has also been argued that decision in the case of Chandresh Paswan is not applicable, because detention order was not passed against the accused Ram Dhyan and there was no question of revoking the detention order under sub-section (2) of the Section 12 of the National Security Act. (39 ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (40 ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (41) As such, we are of the view that as allegation in the First Information Report against Ram Dhyan and the petitioners were the same and detention order was not passed against Ram Dhyan, the detention order passed against the petitioners is not justified. " 9. With due respect we are of the view that the above decision is against Full Bench decision of this Court in Chandresh Paswan v. State of U. P. (supra) and Division Bench decision in S. C. Katara v. State of U. P. (supra ). 10. In case of Chandresh Paswan (supra) the Full Bench of this Court considered the following question. "whether the order of preventive detention can at all be challenged on the ground of parity, the origin of which has been traced in Article 14 of the Constitution and if it can be claimed what should be its extent and basis. 10. In case of Chandresh Paswan (supra) the Full Bench of this Court considered the following question. "whether the order of preventive detention can at all be challenged on the ground of parity, the origin of which has been traced in Article 14 of the Constitution and if it can be claimed what should be its extent and basis. " After discussing several decisions of the apex Court and of this Court, the Full Bench concluded as below : "in the back drop of foregoing discussions the inevitable necessary question referred by Division Bench is that the order of preventive detention cannot be challenged on the ground of parity. All the decisions of this Court taking contrary view against the Full Bench shall stand overruled. " 11. Relying on the above Full Bench decision a Division Bench of this Court in the case of S. C. Katara (supra) held that the order of detention of Sanjai Member was revoked on account of the fact that the Advisory Board did not find sufficient cause for his detention. In the case of present petitioner, Advisory Board has thus found sufficient cause to detain him. The petitioner, therefore, cannot seek parity with Sanjai Member in the matter of revocation of the order of detention. 12. No doubt, in the cases of Chandresh Paswan and S. C. Katara (supra) the parity was claimed on the ground that detention order of co-detenu was revoked by the State Government as the Advisory Board had not approved the same and in the instant cases, parity was claimed on the ground that no detention order was passed against three of the co-accused. But principle involved in those decisions and in the present case is the same. It has been held by the Full Bench and Division Bench in the above decisions that in the matter of preventive detention, the detention order cannot be challenged on the ground of parity. Preventive detention is devised to afford protection to society. The object is not to punish a man for having done something but to intercept before he does it and to prevent him from doing so. It is not passed to punish a person for the act committed by him. The preventive detention is not punitive, but its purpose is to prevent the person from repeating similar activities, which would be prejudicial to the maintenance of public order etc. 13. It is not passed to punish a person for the act committed by him. The preventive detention is not punitive, but its purpose is to prevent the person from repeating similar activities, which would be prejudicial to the maintenance of public order etc. 13. Therefore, it is for the detaining authority to satisfy to which of the particular person out of those involved in an incident is liable to be detained under preventive detention and if he is satisfied that detention of a particular accused is essential for maintenance of public order etc. , he may pass detention order against the particular accused alone. And if he is satisfied that there was no real possibility of indulging co-accused in similar activities prejudicial to the maintenance of public order etc. he is not under obligation to pass detention order against them. Preventive measures can be adopted against a particular person and it is not necessary to take, it against all accused of a particular case. Therefore, the persons against whom detention order was passed on satisfaction of the detaining authority as narrated above cannot claim parity with those against whom no such order was passed. 14. In view of our above discussions as well as principle of law laid down in Full Bench and Division Bench decisions cited above, we are not inclined to subscribe the view expressed in the case of Rajesh v. State (supra ). 15. On point No. 2 the learned Counsel for the petitioner in each of the writ petition contended that the single incident on the basis of which petitioners were detained, was not a case of "public order". That the grounds of detention read as a whole referred to a single incident of crime against an individual committed on personal animosity and the above incident related to law and order and not to public order. 16. Distinction between two phrases "law and order" and "public order" has been subject-matter of decision in a catena of decisions of apex Court and also by this Court. 16. Distinction between two phrases "law and order" and "public order" has been subject-matter of decision in a catena of decisions of apex Court and also by this Court. In the case of State of U. P. v. Kamal Kishore Saini, AIR 1988 SC 208 , the apex Court ruled that whether an act relates to law and order or to public order depends upon the effect of the act on the life of the community or in other words the reach and effect and potentiality of the act, if so put so to disturb or dislocate the even tempo of the life of the community, it will be an act, which will affect public order. 17. In the case of Dipal Bose @ Naripada v. State of West Bengal, 1973 SCC (Cri) 684, the Supreme Court held that every assault in a public place like a public road and terminating in the death of a victim is likely to cause horror and even panic and terror in those who are the spectators. But that does not mean that all of such incidents doll necessarily cause disturbance or dislocation of the community life of the localities in which they are committed. 18. It was also held in the case of Sheshdhar Misra v. Superintendent, Central Jail, Naini and others, 1985 (Suppl) ACC 304, that a single murderous assault on an individual on account of personal animosity and holding out threat to individual witness to desist from deposing in Court do not justify exercise of power under Section 3 (2) of the National Security Act for detaining the detenu. Preventive detention under Section 3 of the Act cannot be invoked to deal with the crimes and criminals who can adequately be proceeded against under the Penal Code and under other ordinary laws of the land. 19. The copy of the FIR of the present case, Annexure-2 supplied to the each of the petitioner alongwith grounds of detention disclosed that the deceased Dr. Arun Kumar Singh was doing business of medicine in the partnership of the petitioner Vinay Kumar Sahu in Varanasi. A dispute arose between them regarding rendition of account. On the date of occurrence i. e. , 12-7-2002 passed Dr. Arun Kumar Singh was ready to go to Lucknow in his Maruti Van driven by Maksood alongwith his maternal grand-father Major D. M. Singh. A dispute arose between them regarding rendition of account. On the date of occurrence i. e. , 12-7-2002 passed Dr. Arun Kumar Singh was ready to go to Lucknow in his Maruti Van driven by Maksood alongwith his maternal grand-father Major D. M. Singh. In the meantime, petitioners Vipin Kumar and Gorakh Sahu reached his house and asked him to come to his shop in Kasba Lalganj to settle the dispute. He told that he would be coming after some time. Thereafter, Dr. Arun Kumar Singh alongwith informant Shashank Shekhar, Shyam Kanhaiya and Major D. M. Singh went to the shop of petitioner Vipin Kumar in his Maruti Van at about 5 p. m. The petitioner Vipin took the deceased in his godown. The other petitioners and three other persons were present there. They caught hold the deceased and murdered him by causing injuries with rod, brick bats and stones. Petitioner Vipin also threatened the witness to shoot in case they proceeded further. Informant Shashank Shekhar, Shyam Kanhaiya Singh and driver were also beaten. The petitioner Vinay Kumar fired from his licensed revolver, but it could not hit any one and petitioner Vipin snatched licensed gun of maternal grand-father of the deceased. 20. In view of above facts we find that it was a solitary incident of murder arising on account of dispute regarding accounts of the partnership of the deceased and petitioners. In the absence of any other material it cannot reasonably form basis of satisfaction that the petitioners were involved in an incident relating to public order or had the potential to cause disturbance of the public order. 21. Therefore, in the facts and circumstances of the incident as narrated in the grounds of detention and the materials on record, it cannot be said to have effect reach and potential to disturb the even tempo of life of the people in general or the people of the locality. 22. Regarding point No. 3 we find that according to counter-affidavit of Jailor the each of the petitioner submitted his representation to the Jail Authorities on 13-12-2002, which was addressed to Secretary Central Government, New Delhi, Advisory Board, Lucknow, Secretary, Home, U. P. Government Lucknow and to the District Magistrate, Azamgarh. On 14-12-2002 and 15-12-2002 there were holidays. It was sent to the District Magistrate, Azamgarh on 16-12-2002 for further action the matter. On 14-12-2002 and 15-12-2002 there were holidays. It was sent to the District Magistrate, Azamgarh on 16-12-2002 for further action the matter. Counter-affidavit of District Magistrate, Azamgarh shows that the petitioner submitted representation to Jail Authorities on 13-12-2002 at 5. 30 p. m. The Senior Superintendent, District Jail, Azamgarh sent letter mentioning therein that the said representation was sent to the District Magistrate, Azamgarh on 14 and 15-12-2002 but the same was not received due to holidays. On 16-12-2002 again the said representation was sent to the District Magistrate and the same was received there on 16-12-2002. The deponent (District Magistrate) sent the same to S. P. Azamgarh on 17-12-2002 for his comments, who sent it to the C. O. Lalganj, who sent it to Station Officer, Lalganj on 18-12-2002. Station Officer prepared his comment and sent it to the Circle Officer Lalganj on 21-2-2002. On 22-12-2002 the C. O. prepared his comment and sent it to the S. P. Azamgarh on 24-12-2002. On 24-12-2002 S. P. sent the comments and representation to the deponent. The deponent (District Magistrate) rejected the representation on 25-12-2002. The counter-affidavit of Sri C. P. Singh, Joint Secretary, Home and Confidential, Department of U. P. Civil Secretariat, Lucknow disclosed that representation of the petitioner dated 13-12-2002 alongwith parawise comments thereon forwarded by the District Magistrate, Azamgarh, vide his letter dated 26- 12-2002 was received in the concerned section of the State Government on 27-12-2002. The State Government sent copies of the representation and parawise comments thereon to the U. P. Advisory Board, vide its letter dated 28-12-2002. The concerned section of the State Government examined and submitted a detailed note on 30-12-2002. The Joint Secretary examined it on 1-1-2003, the Special Secretary examined it on 1-1-2003 and Secretary examined it on 2-1-2003 and rejected the same by State Government. The counter-affidavit on behalf of Central Government shows that representation dated 13-12-2002 from the detenu was received in the concerned desk of Home Affairs on 31-12-2002. It was considered by Under Secretary on 2-1-2003. Director, Ministry of Home Affairs on 3-1-2003 and Home Secretary on 7-1-2003 who rejected the same on 7-1-2003, 5-1-2003 and 6-1-2003 were holidays. Thus, there is sufficient explanation of each day taken in deciding the representation. Therefore, it cannot be said that there was any undue or unreasonable delay in deciding the representation of the petitioner. 23. Director, Ministry of Home Affairs on 3-1-2003 and Home Secretary on 7-1-2003 who rejected the same on 7-1-2003, 5-1-2003 and 6-1-2003 were holidays. Thus, there is sufficient explanation of each day taken in deciding the representation. Therefore, it cannot be said that there was any undue or unreasonable delay in deciding the representation of the petitioner. 23. In view of our findings on point No. 2 all the petitions succeed. The petitions are, accordingly, allowed. The detention order of each of the petitioner dated 26-11-2002 is quashed and respondents are directed to release the petitioners forthwith unless wanted to be detained in connection with some other case. Petition allowed. .