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2010 DIGILAW 294 (MP)

JAGDISH PRASAD PASTARIYA v. STATE OF M. P.

2010-03-11

ALOK ARADHE, S.R.ALAM

body2010
Judgment ( 1. ) In the instant writ petition, petitioner has challenged the validity of the order of the District Magistrate, District Raisen(MP) dated 5.5.2009 detaining his son Ram Kumar Pastaria under sub-section (2) of Section 3 of the National Security Act, 1980 {hereinafter referred as to Act) with a view to preventing him from acting in any manner prejudicial to the maintenance of public order. The petitioner has also challenged the order of the State Government dated 29th June, 2009 approving the order of detention dated 5.5.2009 and directing to detain him for a period of 12 months from the date of his detention. ( 2. ) Respondents have appeared and filed their counter affidavit which is on record. It appears from the grounds of detention that the son of the petitioner was involved in number of crimes and because of his criminal backgrounds an atmosphere of terror was prevailing due to which nobody was ready to depose against him and, therefore, the District Magistrate acting on the report on the report sent by the Superintendent of Police, and having been satisfied with the material on record passed the impugned order of detention. As per the grounds of detention, the detenue alleged to have been involved in the following cases: ( 3. ) The last incident which appears to be the main reason for taking recourse of preventive detention is alleged to have been taken place on 2nd-3rd April, 2009. It has been alleged that the son of the petitioner fired on Hari Singh as a result of which he sustained gunshot injury and also forcibly looted Rs.1,49,530/-. It has also been alleged that on account of the said incident, it was necessary to detain petitioners brother under the Act to maintain public order as well as law and order. ( 4. ) Learned counsel for the petitioner vehemently contended that the alleged act of petitioners son does not come within the purview of public order and at the most it might have disturbed law and order and thus the detention under the Act cannot sustain. It is argued that from the allegations in the grounds of detention, it is apparent that the alleged act was directed against an individual and not towards general public and; therefore, it does not come within the four-corner of public order as it is an offence against an individual. It is argued that from the allegations in the grounds of detention, it is apparent that the alleged act was directed against an individual and not towards general public and; therefore, it does not come within the four-corner of public order as it is an offence against an individual. The argument proceeds that there was no material before the detaining authority to indicate that on account of the alleged act of petitioners son public order was disturbed and thus the impugned detention being illegal deserves to be quashed. In support of his contention, learned counsel for the petitioner placed reliance on the decision of Apex Court in Ajay Dixit vs. State of U.P. and others, AIR 1985 SC 18 and submitted that since the activity of the petitioners son cannot be held to be prejudicial to the public order, his detention is not justified. ( 5. ) Though various other points raised in the writ petition but during the course of arguments learned counsel for the petitioner confined his submissions only to the point that the alleged act since does not come within the purview of public order and thus the order of detention is bad. ( 6. ) On the other hand, learned Additional Advocate General while opposing the petition submitted that the petitioners son committed robbery at a public place and also used fire arms and thus the alleged act is bound to disturb the public order. It is further argued that because of the criminal activities of the petitioners son fear and panic is prevailing in the locality and therefore to restore the normalcy, his detention is justified. In view of our earlier order dated 9.3.2010, he produced the record for the perusal of the Court. However, despite our repeated query, he could not point out any material on record to show whereupon conclusion could be drawn that the alleged act was directed towards general public and due to which even tempo of the society was disturbed, hence public order was affected. Even in the grounds of detention, it has nowhere been alleged that due to incident of 2.4.2009, a sense of fear and panic was prevailing in the locality and people were not able to discharge their normal routine work due to panic and terror created on account of the alleged incident and therefore public tranquillity was disturbed. ( 7. Even in the grounds of detention, it has nowhere been alleged that due to incident of 2.4.2009, a sense of fear and panic was prevailing in the locality and people were not able to discharge their normal routine work due to panic and terror created on account of the alleged incident and therefore public tranquillity was disturbed. ( 7. ) It is true that whenever a serious crime takes place, it has its impact in the locality but it cannot be held that it has disturbed the public order unless it is found on the basis of the material available that the said incident had serious impact on the people of the locality due to which they were not able to lead their normal life. There is thin distinction between public order and law and order and sometime they may overlap each other. The criminal act or the crime howsoever heinous may be cannot be brought within the ambit of public order, unless it is shown that the impact of the act was such that it disturbed the locality and life of the community. A Constitution Bench of the Apex Court in Ram Manohar Lohia(Dr.) vs. The State of Bihar and another reported in AIR 1966 S.C. 740 while defining the "public order" and "law and order" in para 51 of the judgment observed that the contravention of law always affects order, but before it can be said to affect "public order", it must affect the community or the public at large. ( 8. ) In Arun Ghosh vs State of West Bengal, AIR 1970 SC 1228 , the Apex Court relying on its previous judgment has held as under: "Public order was said to embrace more of the community than law and order. Pubic order is the even tempo of the life of the community taking the country as a whole or even a specified locality. Disturbance of public order is to be distinguished from acts directed against 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 the disturbance amounts only to a breach of law and order." ( 9. ) The apex Court in K.K. Saravana Babu Vs. It is the degree of disturbance and its effect upon the life of the community in a locality which determines whether the disturbance amounts only to a breach of law and order." ( 9. ) The apex Court in K.K. Saravana Babu Vs. State of Tamil Nadu and another (2008) 9 SCC 89 , having considered its previous judgment in respect of distinction between "land and order" and "public order" observed in para 31 as under :- "We have tried to deal with the important cases dealing with the question of "law and order" and "public order" right from Romesh Thappar to the latest case of R. Kalavathi. This Court has been consistent in its approach while deciding the distinction between "law and order" and "public order". According to the crystallised legal position, cases affecting the public order are those which have great potentiality to disturb peace and tranquillity of a particular locality or in the words of Hidayatullah, J. disturb the even tempo of the life of the community of that specified locality." ( 10. ) In the case in hand, there is no material on record nor it has been alleged in the grounds of detention that people of the locality were so terrorised that they confined themselves inside the house as a result of which the normal life of the locality was disturbed hence public order was disturbed. In view of the exposition of law made by the Apex Court as pointed out earlier, it is not the gravity or seriousness of the act or incident but its degree and extent of the reach upon the society or its potentiality would determine as to whether it affected public order or only law and order. In absence of such material on record or in the grounds of detention, it is difficult for us to hold that the alleged act of the petitioners son comes within the four-corner of public order and therefore his detention is justified. ( 11. ) In view of the aforesaid discussions made above, in our view, the impugned order of detention cannot sustain. In the result, the writ petition succeeds and is hereby allowed. Consequently, the impugned order dated 5.5.2009 detaining the petitioners son under sub-section (2) of Section 3 of the Act is hereby quashed. ( 11. ) In view of the aforesaid discussions made above, in our view, the impugned order of detention cannot sustain. In the result, the writ petition succeeds and is hereby allowed. Consequently, the impugned order dated 5.5.2009 detaining the petitioners son under sub-section (2) of Section 3 of the Act is hereby quashed. The respondents are directed to set the petitioners son Ram Kumar Pastaria at liberty forthwith unless required to be detained in any case. However, there shall be no order as to cost. Petition allowed.