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2004 DIGILAW 336 (ALL)

AWADHESH SINGH v. UNION OF INDIA

2004-02-20

K.N.OJHA, M.C.JAIN

body2004
M. C. JAIN, J. The detention order dated 12-3-2003 passed against the petitioner by respondent No. 3 District Magistrate, Gorakhpur under Section 3 (2) of National Security Act, 1980 is under challenge. 2. The grounds of detention are contained in Annexure 2 of the petition. The detention is based on an incident of murder which took place on 15-11-2002 at about 11. 30 a. m. near Bhatauli Degree College within Police Station Khajni. The report was lodged the same day at 12. 50 p. m. by Kailash Tiwari brother of the deceased, Lalta Tiwari. The informant was accompanying his deceased brother when the petitioner, his son Nitesh Kumar Singh alias Rinku Singh and his wife Sudha Singh allegedly appeared. The petitioner was armed with a gun. He started indiscriminate firing on the road in front of Bhatauli Degree College. When the informant his brother Lalta Tiwari, Manoj, Ashok Kumar and a few others of the market questioned him, he shot dead the deceased Lalta Tiwari on the exhortation of his son and wife. Thereafter, he escaped from the spot with his son and wife, resorting to firing. The incident created terror in the market. The shutters of the shops were downed and people around and residents of the area were so much scared that they shut themselves inside their houses. 3. Counter and rejoinder affidavits have been exchanged. 4. We have heard Sri P. C. Srivastava, learned Counsel for the petitioner Sri J. Lal, learned Counsel for Union of India respondent No. 1 and Sri Mahendra Pratap Singh, learned AGA on behalf of respondent Nos. 2 to 4. 5. The foremost argument of the learned Counsel for the petitioner is that the incident did not fall within the category of public order and the detention order is illegal. It has been urged that it is a different question that the petitioner is proceeded against for the alleged offence under the ordinary law of the land but that does not justify his detention under the National Security Act. With the rejoinder affidavit filed by Sudha Singh wife of the petitioner, copy of the bail rejection order dated 14- 7-2003 has been filed to show that this Court has declined bail prayer of the petitioner. With the rejoinder affidavit filed by Sudha Singh wife of the petitioner, copy of the bail rejection order dated 14- 7-2003 has been filed to show that this Court has declined bail prayer of the petitioner. In this view of the matter, it is submitted that there could be no justification for arriving at a conclusion by the detaining authority that the petitioner would indulge in criminal activities, in case he was released. 6. Needless to say, the question whether the act relates to law and order or public order depends upon the effect of the act on life of the community. In other words, in case the reach, effect and potentiality of the act disturbs or dislocates the even tempo of the life of the community, then it would be an act affecting public order. Every criminal offence is not always committed under the roof or boundary walls of some premises. The mere fact of an offence being committed at a public place does not justify to take it to be a case of public order. In the instant case, the petitioner allegedly shot dead Lalta Tiwari after a brief altercation when the latter questioned him. 7. Learned AGA has argued that the petitioner is a dangerous person who shot dead an innocent citizen over a trivial altercation. Having regard to the facts and circumstances of the present case including the fact that none else excepting Lalta Tiwari sustained injury in the incident, it does not fall in the category of public order. At times, murders are committed over tenuous issues depending upon the nature, background, breeding, temperament etc. of the culprit. The murder having taken place over a trial wordy exchange of hot words would not be sufficient to treat this case as of public order. There is no material to suggest this either that some additional force had to be deployed in the area after the commission of this incident. It could not form the foundation for subjective satisfaction of the detaining authority to detain the petitioner under the National Security Act. The alleged act of the petitioner related to law and order problem only. There is nothing to indicate this either that the petitioner had been acting in similar fashion earlier also. 8. It could not form the foundation for subjective satisfaction of the detaining authority to detain the petitioner under the National Security Act. The alleged act of the petitioner related to law and order problem only. There is nothing to indicate this either that the petitioner had been acting in similar fashion earlier also. 8. Learned AGA has relied upon two cases State of U. P. v. Kamal Kishore Saini, AIR 1988 Supreme Court 208 and Sharad Kumar Tyagi v. State of U. P. , AIR 1989 Supreme Court 764, to urge that it is a case of public order. We have perused the said judgments. The facts of the two referred cases were quite different. In the first one, the detenus were alleged to have opened fire in a busy locality resulting in the death of one person at the spot, injuring others including an innocent rikshaw puller. In the second case, the detenu was threatening to shoot shop-keepers of the locality if they failed to give him money. The facts of the present case are without any shade of adverse effect on the public order. 9. In view of the above discussion, we do not find it to be a case of public order. We, therefore, allow the petition and quash the detention order in question. 10. As mentioned earlier, the petitioner is in jail consequent upon the rejection of his bail prayer by this Court in the case relating to the complained incident. Therefore, in spite of his success in this petition, he would continue to be in jail.