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Madhya Pradesh High Court · body

2009 DIGILAW 997 (MP)

TAHIR v. STATE OF M P

2009-08-20

A.K.PATNAIK, P.K.JAISWAL

body2009
Judgment ( 1. ) IN this writ petition under Article 226 of the Constitution, the petitioner has challenged the order of detention passed by the District magistrate, Burhanpur, detaining him under Section 3 (2) of the National Security Act, 1980 (for short the Act ). ( 2. ) ON 10. 10. 2008 there were communal riots in Burhanpur town between the hindu and Muslim and the entire Burhanpur town was under curfew till 20. 10. 2008. A number of criminal cases were registered in different police stations of burhanpur town and several persons were arrested and some of them were released on bail by the Court. The Superintendent of Police, Burhanpur, submitted a report dated 30. 10. 2008 to the District Magistrate, Burhanpur and pursuant to the police report dated 30. 10. 2008, the District Magistrate, Burhanpur, passed the impugned order dated 13. 4. 2009 detaining the petitioner under Section 3 (2) of the Act. During the pendency of this writ petition, the petitioner was produced before the Advisory Board and the Advisory Board gave its opinion and pursuant to the opinion of the Advisory Board, the Government of Madhya Pradesh, Home department, in exercise of powers under Section 12 (1) of the Act confirmed the order of detention and directed that the period of detention of the petitioner shall continue till expiry of 12 months from the date of his detention i. e. up to 12. 4. 2010. ( 3. ) MR. M. K. Tripathi, learned counsel for the petitioner, submitted that the grounds of detention served on the petitioner would show that the allegations against the petitioner are general in nature and that no proper investigation has been done into the allegations made against the petitioner. He further submitted that about 1000 persons who were involved in the communal riots in Burhanpur town during 10. 10. 2008 to 20. 10. 2008 were arrested and criminal cases were registered against them in different police stations of Burhanpur town, but most of the arrested persons have been released on bail. He submitted that witnesses in different criminal cases registered against the petitioner have also turned hostile in trials in different courts. He submitted that the detention of the petitioner pursuant to the impugned order passed by the District Magistrate, Burhanpur and the order passed by the State Government, are therefore bad and are liable to be quashed. He submitted that witnesses in different criminal cases registered against the petitioner have also turned hostile in trials in different courts. He submitted that the detention of the petitioner pursuant to the impugned order passed by the District Magistrate, Burhanpur and the order passed by the State Government, are therefore bad and are liable to be quashed. He cited the decision of a Division Bench of this Court in Sunil Tiwari Vs. State of Madhya Pradesh and others ( 2009 {2} M. P. H. T. 297 {db}) in support of his contentions. ( 4. ) MR. Vijay Kumar Shukla, learned Deputy Advocate General, on the other hand, sought to sustain the order of detention passed by the District Magistrate and the order of confirmation passed by the State Government by contending that the grounds of detention served on the petitioner would show that his detention was necessary for maintaining communal harmony and peace in Burhanpur town. He submitted that the petitioner indulged in various acts of arson and looting in different places of Burhanpur town on 10. 10. 2008 and played an active role in communal riots between the Hindu and Muslim and in these circumstances, the district Magistrate had no option but to pass the order- of detention for maintaining public order and peace in the locality. He submitted that the facts in Sunil Tiwan vs. State of Madhya Pradesh and others (supra) cited by Mr. Tripathi are entirely different and the decision of the Division Bench of this Court in that case does not apply to the facts of the present case. ( 5. ) WE have perused the English translation of the grounds of detention dated 13. 4. 2009 which were served on the petitioner. In paragraph 2 of the grounds of detention, the following four acts allegedly committed by the petitioner on 10. 10. 2008 have been narrated: " (1) On 10. 10. 2008 you along with other miscreants broke the doors and entered into the house of the complainant manoj son of Bhaiyalal Lakhe, a resident of Tilak Hall, burhanpur and administered threats to him and his family to their lives, caused injuries on them and set their house oh fire. On a report being lodged by. 10. 2008 you along with other miscreants broke the doors and entered into the house of the complainant manoj son of Bhaiyalal Lakhe, a resident of Tilak Hall, burhanpur and administered threats to him and his family to their lives, caused injuries on them and set their house oh fire. On a report being lodged by. him, Crime No. 225/2008 was registered against you in respect of the offences punishable under Sections 148, 149, 323, 427, 452, 436 and 395 of the Indian Penal Code at the Police Station Shikarpura, Burhanpur. (2) On 10. 10. 2008 you along with other miscreants sharing common intention with common object pelted stones and set the gas cylinder on fire for causing explosion and by hatching conspiracy attempted to put irreparable damage to the complainant. On a report being lodged by the complainant, k. P. David, Station House Officer, Shikarpura,crime No. 230/ 2008, was instituted against you in respect of the offences punishable under Sections 307, 147, 148, 149,452, 395, 436 and 506-11 of the Indian Penal Code at the Police Station, Shikarpura. (3) On 10. 10. 2008 you along with other accused persons sharing common intention, forcibly entered into the house of the complainant, Subhash son of Pannalal Jain, resident of behind Tilak Hall, Shah Bazar, made assault on him and set his shop on fire. Thereafter pelted stones on the house, committed riot and looted various general items, kept in the-shop and as such caused damage to the complainant to the tune of Rs. 50,000/- approximately. On his report being lodged crime No. 232/ 2008 was registered under Sections 147, 148, 149, 436, 452 and 495 of the Indian Penal Code at the Police station, Shikarpura. (4) On 10. 10. 2008 you along with other accomplices sharing common intention with the common object forcibly broke into the residential house of the complainant, Ravindra son of ramchandra Naik, resident of in front of Tilak Hall and attacked on him, pelting stones and set his shop on fire and thereby caused loot of approximately Rs. 50,000/ -. On an FIR having been lodged by the complainant, Crime No. 233/2008 was instituted by the Station House Officer, Shikarpura, under sections 147, 148, 149, 436, 452, 188, 294, 506 and 395 of the Indian Penal Code. " ( 6. 50,000/ -. On an FIR having been lodged by the complainant, Crime No. 233/2008 was instituted by the Station House Officer, Shikarpura, under sections 147, 148, 149, 436, 452, 188, 294, 506 and 395 of the Indian Penal Code. " ( 6. ) THE District Magistrate after narrating the aforesaid four acts alleged to have been committed by the petitioner on 10. 10. 2008 has stated in paragraph 3 of the grounds of detention that as a consequence of the acts of the petitioner the people of Burhanpur town are in terror and has further observed that the acts of the petitioner have created panic in Burhanpur town and has put fear in the general public and the members of general public do not dare to lodge a report against the petitioner. The District Magistrate has also stated in paragraph 4 of the grounds of detention that the aforesaid four acts of the petitioner would show that he has indulged in looting, arson, stone-pelting and as a consequence disturbed the communal harmony and has created enmity between the two communities and hence has caused public disorder in the town of Burhanpur. The District Magistrate has also stated in paragraph 5 of the grounds of detention that the alleged acts of the petitioner unless arrested by his detention are likely to disturb public peace and tranquillity in the town of Burhanpur and, therefore, it has become essential to initiate action against him under section 3 (2) of the Act and pass the order of detention. ( 7. ) WE have perused the judgment of the Division Bench of this court in Sunil tiwari Vs. State of Madhya Pradesh and others (supra) cited by Mr. Tripathi and we find that in paragraph 6 of the judgment, the Division Bench has quoted the decision of the Supreme Court in Victoria Fernandes vs. Lalmal Sawma and others ( AIR 1992 SC 687 ) in which the distinction between law and order and public order has been brought out. The relevant passage from the decision of the Supreme court in Victoria Fernandes vs. Lalmal Sawma and others, is quoted herein below : "the distinction between the areas of law and order and public order is one of degree and extent of the reach of the act in question on society. The relevant passage from the decision of the Supreme court in Victoria Fernandes vs. Lalmal Sawma and others, is quoted herein below : "the distinction between the areas of law and order and public order is one of degree and extent of the reach of the act in question on society. It is the potentiality of the act to disturb the even tempo of life of the community, which makes it prejudicial to the maintenance of the public order. If a contravention in its effect is confined only to a few individuals directly involved as distinct from a wide spectrum of public, it would raise the problem of law and order only. It is the length, magnitude and intensity of the terror wave unleashed by a particular eruption of disorder that helps distinguish it as j an act affecting public order from that concerning law and order. The question to ask is : Does it lead to disturbance of the current life of the community so as to amount to a disturbance of the public order, or does it affect merely an individual leaving the tranquillity of the society undisturbed? this question has to be faced in every case on its facts. (See : dr. Ram Manohar Lohia. Vs. State of Bihar (1996) 2 SCR 709 = ( AIR 1966 SC 740 ); Arun Ghosh Vs. State of West Bengal, (1970) 3 SCR 288 = ( AIR 1970 SC 1228 ); Ram Ranjan chatterjee Vs. State of West Bengal (1975)3 SCR 301 = ( AIR 1975 SC 609 ); Ashok Kumar vs. Delhi Administration (1982)2 SCC 403 = ( AIR 1982 SC 1143 ). " It is clear from the aforesaid decision of the Supreme Court that the question to be asked in each case is whether the acts of the detenue have led to disturbance of the current life of the community so as to amount to a disturbance of the public order or does it affect merely an individual leaving the tranquillity of the society undisturbed and this question has to be decided in every case on its facts. ( 8. ) SO far as the facts of the present case are concerned, the allegation against the petitioner in the grounds of detention extracted above is that on 10. 10. ( 8. ) SO far as the facts of the present case are concerned, the allegation against the petitioner in the grounds of detention extracted above is that on 10. 10. 2008 the petitioner along with other miscreants broke the doors and entered into the residential houses and shops of several persons and attacked the persons pelting stones on them, looted their property and money and caused other damages for which crimes No. 225/2008,230/2008,232/2008 and 233/2008 have been registered under various sections including sections 147, 148,149,307 and 395 of the Indian penal Code. The very nature of the acts alleged to have been committed by the petitioner on 10. 10. 2008 particularly when there were communal riots between the Hindu and Muslim in Burhanpur town are such that the acts must have affected the even tempo of the life of community of different localities in Burhanpur town. These acts cannot be said to be only individual acts of contravention of law but are acts which have disturbed the public order. ( 9. ) IN Sunil Tiwari Vs. State of M. P. and others (supra), the Division Bench of this Court in paragraph 5 of the judgment relying on Lakshman Khatik Vs. The state of West Bengal ( AIR 1974 SC 1264 ), Golam Hussain Vs Commissioner of Police Calcutta ( AIR 1974 SC 1336 ) and Gora Vs. State of Bengal ( AIR 1975 SC 473 ), has also held that there must be a close proximity between the offending acts mentioned in the grounds of detention and the order of detention and there should not be too long and unexplained intervals between the offending acts and the order of detention, but no mechanical test of counting the months of the interval can be applied and it all depends on the nature of the acts relied on, grave and determined or less serious and corrigible, on the length of the gap, short or long, on the reason for the delay in taking preventive action, like information of participation being available only in the course of an investigation. ( 10. ) IN the present case, the petitioner is alleged to have committed the acts of breach public order on 10. 10. 2008 and the order of detention was passed on 13. 4. 2009. ( 10. ) IN the present case, the petitioner is alleged to have committed the acts of breach public order on 10. 10. 2008 and the order of detention was passed on 13. 4. 2009. The petitioner has not taken the ground in the writ petition that there was no close proximity between the alleged acts committed by him on 10. 10. 2008 and the order of detention dated 13. 4. 2009 and therefore the respondents have not explained the delay of six months in detaining the petitioner under the Act. Nonetheless, Burhanpur town is prone to communal riots between the Hindu and muslim and to prevent such communal riots affecting the peace and tranquility of the Burhanpur town and to maintain the public order, the District Magistrate has passed the order detaining the petitioner under the Act. The fact that others who allegedly participated in the communal riots during 10. 10. 2008 to 20. 10. 2008 have not been detained under the Act and are only facing regular trials in criminal courts and the fact that witnesses in the trial in the criminal cases against the petitioner are turning hostile, are not relevant for deciding whether the detention of the petitioner under the Act was necessary. If the District Magistrate was satisfied on the materials that it was necessary considering the active role played by the petitioner in the communal riots on 10. 10. 2008 to detain him under the Act and not to detain others who may have relatively a lesser role in the communal riots, the order of detention can not be held to be bad only because the other participants have been arrested but have been set at liberty on bail or because witnesses against the petitioner have turned hostile in the criminal trials. ( 11. ) FOR the aforesaid reasons, we do not find any merit in this writ petition and we accordingly dismiss this writ petition. Petition dismissed.