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2013 DIGILAW 782 (MP)

Dhiraj v. State of M. P.

2013-07-10

P.K.Jaiswal, Prakash Shrivastava

body2013
ORDER Jaiswal, J. -- 1. This writ petition under Article 226 of Constitution of India has been filed against the order of detention dated 30.7.2012, passed by District Magistrate, Indore under section 3(2) of the National Security Act, 1980 (for short, “the Act”) and order dated 11.10.2012 passed by the respondent No.1 in exercising the powers conferred by sub-section (1) of section 12, confirming the detention order made under section 3 of the said Act by District Magistrate, Indore and directed that the period of detention of the petitioner Dhiraj shall continue till the expiry of 12 (twelve) months from the date of detention i.e. upto 29.7.2012. 2. The relevant facts briefly are that on 30.7.2012 the District Magistrate, Indore in exercise of powers under section 3 of the Act passed an order detaining the petitioner on the request of Superintendent of Police, Indore. Thereafter, the matter was referred to the Advisory Board under section 11 of the Act and pursuant to report of the Advisory Board (Annexure R-12), the State Government confirmed the order of detention on 11.10.2012 directing that the petitioner shall remain in detention till 29.7.2013. 3. Shri L.S. Chandiramani, learned counsel for the petitioner has submitted that total 10 criminal cases were registered against the petitioner between 2008-2012. He also submitted that in the month of July, 2012, six criminal cases in respect of incident dated 24.7.2012 has been registered against the petitioner vide Crime Nos.669/12, 672/12, 674/12, 675/12, 676/12 and 677/12. He further submitted that out of the above 6 criminal cases in 3 cases (Crime Nos.669/12, 672/12 and 674/12), no named FIR has been lodged against the present petitioner and all the cases arise in respect of the same incident lodged by persons of same locality and looking to the fact that these offences are petty in nature, learned authority has committed an error in passing the detention order dated 30.7.2012. He further submitted that the facts stated in the grounds of detention dated 30.7.2012 served on the petitioner would show that the petitioner had not committed any act which would disturb public order and that the grounds of detention only contained allegations which are ordinary crimes such as sections 147, 148, 452, 323, 427 and 506 of IPC committed by the petitioner which may amount to contravention of law but which had no effect on public order. 4. 4. Learned counsel for the petitioner also submitted that in Crime No.615/2008, which was registered in the year 2008 is of sections 327 and 427 of IPC. His contention is that except Crime No.788/08 all others are ordinary crimes. The respondent No.2 nor the Advisory Board has objectively considered the case of the petitioner. 5. Learned counsel for the petitioner has also drew our attention to the decision of the Division Bench in the case of Bhaiya @ Bhaiyalal @ Arvind v. State of M.P. and others, passed in Writ Petition No.10825/2012, decided on 20.3.2012 [2013(2) JLJ 300], and submitted that there is no-compliance of provisions of sub-section (3) of section 3 of the Act due to non-specific period of detention and sub-section (5) of section 3 of the Act and prayed that the detention order dated 30.7.2012 and order dated 11.10.2012 be quashed. 6. On the other hand, Miss Mini Ravindran, learned Deputy Government Advocate for the respondent/State has submitted that a single act can be considered sufficient for holding that public order was affected and it is not the number of acts that matters but the effect of the act on the even tempo of life, the extent of its reach upon the society and its impact which has to be considered. She referred to the report of the Superintendent of Police annexed to the writ petition to show that the petitioner not only had criminal antecedents but committed series of acts in the year 2008 including the murder along with his companions and, therefore, had endangered public order in the area. She also drew our attention to the incident dated 24.7.2012 and submitted that three named FIRs has been registered against the petitioner. She also submitted that the said incident does affect the public order and disturb public tranquility and it affects the even tempo of the life of the people in the locality where the incident is occurred. 7. We have perused the grounds of detention served on the petitioner and we find that the District Magistrate, Indore had substantive satisfaction that if the petitioner was not detained under the Act then there was every possibility that he may again indulge in such activity, which may bring disturbance to the peace and harmony of the society and also install fear and terror amongst the public at large. 8. 8. The petitioner (detenu) Dhiraj has been detained on 30.7.2012, in Central Jail, Ujjain, under the order of detention dated 30.7.2012, passed by the District Magistrate, Indore under sub-section (3) read with sub-section (2) of section 3 of the National Security Act, 1980. The District Magistrate’s order has been approved by the State Government on 9.8.2012. The grounds of detention were communicated to the petitioner, giving him an opportunity to make a representation against the detention order. 9. The Advisory Board were of the opinion that there exists sufficient cause for detention of petitioner-Dhiraj. After considering the opinion of the Advisory Board, the respondent No.1 confirmed the order of detention made under section 3 of the Act, passed by the District Magistrate, Indore against the petitioner. The order of detention has been passed after complying all the provisions of the National Security Act, 1980. 10. We have gone through the report of the Superintendent of Police, Indore wherein, various FIRs has been lodged by various persons by which number of criminal cases have been registered against the petitioner. 11. It is alleged that on 24.7.2012 the petitioner-Dhiraj, son of Manohar Singh, aged 30 years, r/o 639, Govind Colony, Indore along with his other companions namely Bhaiyalal Bhoyee, Pintu Kashyap, Ritesh Borasi, Bhayyu Kashyap, Deeny Kashyap, Manish and Govind indulged in gundaism, loot, causes attempt to murder, theft in houses by using dangerous weapons. The petitioner is an antisocial element, who along with companions caused fear and terror in the general public of the city of Indore and caused hurt to the people including children of that locality by using dangerous weapons. He also caused damage to the vehicles and had indulged in various criminal activities and terrorized the general public of the city of Indore to such a extent that only few people came forward and lodged the first information report against the petitioner. On the said date, six criminal cases were registered at Police Station Banganga, Indore. He also caused damage to the vehicles and had indulged in various criminal activities and terrorized the general public of the city of Indore to such a extent that only few people came forward and lodged the first information report against the petitioner. On the said date, six criminal cases were registered at Police Station Banganga, Indore. The details of the cases registered against the petitioner on 24.7.2012 is as under : (a) On 24.7.2012 the petitioner along with his companion Bhaiyalal Bhoyee and Pintu Kashyap s/o Prabhu Kashyap, both r/o Kumharkhedi and others abused complainant Rajesh Kashyap s/o Rajaram Kashyap, aged 32 years, r/o 60, Banganga, Indore by using filthy language, assaulted him and also threaten him to kill as a result of which an FIR was lodged by the complainant against the petitioner vide Crime No.669/2012 under sections 323, 294, 506 and 34 of IPC at Police Station Banganga, Indore. (b) On 24.7.2012, another FIR was lodged against the petitioner at Police Station Banganga, Indore by complainant Sunita Chouhan w/o Dinesh Chouhan, aged 35 years, r/o 272/2, Banganga, Indore vide Crime No.672/2012 under sections 327, 427, 294, 506 and 34 of IPC on the ground that he along with his co-companions caused damage to the vehicle of the complainant and also abused her filthily and also threaten her to kill on refusal of giving money to them for drinking liquor. (c) On 24.7.2012, another FIR was lodged by complainant Manju Dhiman w/o Rajkumar Dhiman, aged 30 years, r/o Street No.2, Near Government School, Banganga, Indore against the petitioner vide Crime No.674/2012 under sections 147, 148, 452, 323, 427, 294 and 506 of IPC on the ground that the petitioner along with his companions entered into the house of complainant and caused injuries to her by baseball stick and knife, abused her filthily and also threatened her to kill. (d) Vide Crime No.675/2012 under sections 452, 147, 149, 323, 294 and 506 of IPC another FIR was lodged on 24.7.2012 at Police Station Banganga, Indore by complainant Ashok Kumar s/o Omprakash Prajapati, aged 39 years, r/o 286/2, Banganga, Indore against the petitioner on the ground that he along with his companions entered into the house of the complainant and caused injuries to him with baseball stick, pipe and Sariya (iron rod), abused and also threatened him to kill. (e) On 24.7.2012 another FIR vide Crime No.676/2012 under sections 147, 327, 190, 294, 294 and 506 of IPC has been lodged against the petitioner by complainant Kamaljeet Singh s/o Balveer Singh, aged 20 years, r/o 9/2, Banganga, Indore at Police Station Banganga, Indore for entering into the house of complainant along with his other companions and causing injuries to him by sticks, pipe and iron rod (sariya), abused him filthily and on refusal of giving money for drinking liquor they also threatened him to kill. (f) On 24.7.2012, FIR vide Crime No.677/2012 under sections 294, 147, 149, 427, 452 and 506 has also been lodged against the petitioner at police Station Banganga, Indore by complainant Lakhan Jaiswal s/o Vishnu Jaiswal aged 23 years, r/o 3/2, Banganga, Indore on the basis of abusing him filthily, threatening him to kill and also causing damage to the auto-rickshaw. All the above six criminal cases registered against the petitioner on 24.7.2012 are under various provisions of the Indian Penal Code on account of his anti-social activities of terrorizing the general public and the same is pending and under consideration before the Court of competent jurisdiction. 12. We have gone through the report of the Superintendent of Police, Indore wherein various FIRs has been lodged by various persons by which number of criminal cases have been registered against the petitioner. As per incident dated 24.7.2012, the petitioner has terrorized the general public of the city of Indore. His act seriously affected the peace and tranquility of the locality. There is no material on record produced by the petitioner so as to substantiate his claim that the criminal cases registered against him are false and are on concocted grounds. The order of detention was passed after the District Magistrate, Indore had recorded his subjective satisfaction, there existed sufficient grounds for detaining the petitioner under the Act. 13. It is well settled that the order of detention is not punitive action but is a preventive action so as to maintain public order and peace in the society. The preventive detention is a precautionary power exercised in reasonable anticipation and threre is ample evidence on record to show that subjective satisfaction of the District Magistrate was there so as to warrant such an action. 14. The question that the petitioner has been falsely implicated cannot be considered in this writ petition. The preventive detention is a precautionary power exercised in reasonable anticipation and threre is ample evidence on record to show that subjective satisfaction of the District Magistrate was there so as to warrant such an action. 14. The question that the petitioner has been falsely implicated cannot be considered in this writ petition. The order of detention has been passed after proper appreciation of mind. 15. In the present case, the State Government authorised the concerned District Judge to exercise powers conferred under section 3(3) of the Act during the period from 1st July, 2012 to 30th September, 2012. Copy of Notification is Annexure R-8. 16. In the case of Rekha v. State of Tamilnadu and another [ (2011)5 SCC 244 ], Kundanbhai Dulabhai Shaikh v. District Magistrate, Ahmedabad and others [ (1996)3 SCC 194 ], and Kamlesh Kumar Ishwardas Patel v. Union of India and others [ (1995)4 SCC 51 ], the apex Court held that the gravity of offence is irrelevant in preventive detention matters. Preventive detention is a serious inroad on the liberty of a person. The procedural safeguards are the only protection available to him and, therefore, their strict compliance is necessary. 17. The apex Court in catena of decisions held that a solitary incident can raise a law and order problem and cannot be said to have put public order in jeopardy so as to bring the case within the purview of the Act. 18. In the present case, it is not a case of the petitioner that strick compliance of the Act of 1980 has not been made. As per return and documents annexed therein the order hs been passed after complying the statutory provisions of the Act. 19. In view of the aforesaid, we are of the view that the incident of 24.7.2012 was found to terrorize people of that locality seriously affecting the peace and tranquility of the locality. We have, therefore, no doubt that this alleged act of the petitioner affected public order. The detention order has been passed on the satisfaction of the Detention Officer on the basis of material available in no manner gets vitiated. 20. The writ petition filed by the petitioner has no merit and is, accordingly, dismissed. .............