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2014 DIGILAW 749 (MP)

Kripal v. State of M. P.

2014-07-01

S.K.GANGELE, S.K.PALO

body2014
Judgment: S.K. Palo, J. 1. This writ petition is preferred by the petitioner under Articles 226, 227 of the Constitution of India whereby challenges have been made to the order dated 28.10.2013 passed by the District Magistrate, Guna in Case No. 29/N.S.A./Steno/2013/353; whereby the petitioner has been ordered to be detained under Section 3 of the National Security Act, 1980 and to be kept at Central Jail, Gwalior on the basis of the report submitted by the Superintendent of Police, Guna apprehending that the petitioner will be disturbing the public tranquility. This order was further confirmed by the Government of Madhya Pradesh, Department of Home vide its order dated 2nd January, 2014 to detain the petitioner for a period of 12 months. 2. Brief facts just necessary for disposal of this petition is that the Superintendent of Police, Guna submitted a report before the District Magistrate, Guna on 25.10.2013 stating that the petitioner has been indulging in different offences such as murder, attempt to murder, use of criminal force, rioting, theft, dacoity and preparation to commit dacoity and also keeping illegal arms etc., because of the actions of the petitioner the villagers and the nearby people are very much afraid of him. Witnesses on account of fear did not give evidence against him. There is every possibility of any incident. The law abiding people are afraid to lodge any report against the petitioner. The petitioner's unlawful activities is continuing. It is becoming very difficult to restrain the petitioner from committing such offences, therefore, preventing measure is very much necessary to maintain law and order. 3. In the report, it is further alleged that the petitioner is in habit of threatening the villagers not to give any evidence before any Court of law, therefore, people are not prepared to give evidence against the petitioner. The petitioner is always prepared to inflict physical and economic loss to the general public. The petitioner became a threat to the state security and tranquility. He is disturbing public order. There is possibility of violence and mischief due to the activities of the petitioner. The Superintendent of Police, Guna has also enclosed a list of 11 cases registered against the petitioner in different sections from year 1997 to 2013. 4. The petitioner became a threat to the state security and tranquility. He is disturbing public order. There is possibility of violence and mischief due to the activities of the petitioner. The Superintendent of Police, Guna has also enclosed a list of 11 cases registered against the petitioner in different sections from year 1997 to 2013. 4. On the basis of this report, the District Magistrate, Guna registered a case under the National Security Act and passed the impugned order under Section 3 of the National Security Act, 1980. 5. The petitioner has challenged the impugned order by way of this writ petition and requested to set-aside the orders dated 28.10.2013 and 02.01.2014 and set him free. 6. Learned counsel for the petitioner submitted different authorities in this regard. He relied on Smt. Victoria Fernandes v. Lalmal Sawma and Ors., reported in AIR 1992 SC 687 in which the Hon'ble Apex Court has held that solitary incident of assault on journalist coupled with two acts of threats to journalists, do not constitute acts relating to public order, therefore, the order of detention based thereon is not justified. 7. Learned counsel for the petitioner relied on the unreported order passed by the Division Bench of this Court in W.P. No. 513/2014 (Dhanwan v. State of M.P. & Ors.,) in which the detenu who was in jail has been set at liberty. The Division Bench has opined as under:- (12)........... that the activities of the detenu/petitioner in the present case do not convey to have the effect and potentiality to disturb or dislocate even tempo of life of the community. Hence, the action of the petitioner could not be termed as prejudicial to the maintenance of public order. 8. Learned Deputy Advocate General opposed the petition and submitted that the Superintendent of Police, Guna submitted the report along with detailed information and after due consideration, the District Magistrate, Guna called in inquiry and satisfying with the materials placed before him passed the detention order. Necessary notice was also issued. 8. Learned Deputy Advocate General opposed the petition and submitted that the Superintendent of Police, Guna submitted the report along with detailed information and after due consideration, the District Magistrate, Guna called in inquiry and satisfying with the materials placed before him passed the detention order. Necessary notice was also issued. He relied on Santosh Verma v. State of M.P., reported in 2008(5) MPHT 278 in which it has been held as under:- National Security Act, 1980, Sections 3 and 8 -Order of detention-Challenge has been made to 17 cases had been registered against the petitioner-Distinction between 'law and order' and 'public order' stated-Held, Crime No. 473/2007 under Sections 147, 148, 149, 307 & 302, IPC and under Sections 25 and 27 of the Arms Act, showed that since 14-6-2007 the antisocial activities of the petitioner were found to be on the rise, giving rise to definite opinion that the activities of the petitioner were prejudicial to the maintenance of public order-There was no substance in the challenge-Writ petition dismissed. 9. Reliance has also been placed on Hazi Abdul Raza v. State of M.P. reported in 2012(5) MPHT 111 . 10. It would be profitable to reproduce Section 3 of the National Security Act, 1980, which reads as follows:- 3. Power to make orders detaining certain persons-(1) The Central Government or the State Government may,- (a) if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the defence of India, the relations of India with foreign powers, of the security of India, or (b) if satisfied with respect of any foreigner that with a view to regulating his continued presence in India or with a view to making arrangements for his expulsion from India, it is necessary so to do, make an order directing that such person be detained. (2) The Central Government or the State Government may, if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the security of the State or from acting in any manner prejudicial to the maintenance of public order or from acting in any manner prejudicial to the maintenance of supplies and services essential to the community it is necessary so to do, make an order directing that such person be detained. 11. 11. Bare reading of the aforementioned provision makes it clear that the Central Government or State Government as the case may be, until or unless is satisfied with respect to ingredients of Section 3 of the Act, no order can be passed under Section 3(2) of the Act. 12. The questioned order dated 28.10.2013 has been passed by the learned District Magistrate, Guna on the basis of report submitted to him by the Superintendent of Police, Guna. The Superintendent of Police, Guna in his report has annexed the list of crimes registered against the petitioner, however, FIRs or any other material documents has not been enclosed with the report. 13. The Division Bench of this Court in Lala @ Ahmad S/o. Farukh v. State of M.P. & Ors., reported in 2000(2) MPLJ 605 mandates that consideration of record is mandatory at the time of opinion of advisory board, if the record of proceedings is not sent to the State Government, the confirmation order passed without consideration of the record renders the detention illegal. 14. In another matter decided as Veerendra Singh v. State of Madhya Pradesh and reported in 1996 MPLJ 951 , it has been held that the nature of activities and incidents alleged does not appear to be such as to be termed as prejudicial to maintenance of public order-order of detention set aside. In the case of Veerendra Singh (supra), 16 crimes were registered against the detenue. 15. Counsel for the petitioner placed reliance on Naval Shankar Ishwarlal Dave & Anr. v. State of Gujarat & Ors., reported in 1993 SCC (Cri.) 1126 in which it has been held as under:- Preventive detention-Representation to appropriate authority-Delay in considering-What amounts to-Depends upon facts and circumstances of each case-State Government keeping the representation without it being considered and rejecting it after receipt of opinion of Advisory Board-Held, detention illegal. 16. In Smt. Rahimanbi v. District Magistrate, Jabalpur and others reported in 1995 JLJ 545 , it has been observed as under:- We fail to understand as to how the extracts from the crime register would even prima facie prove the allegations made against the detenu. We also fail to understand as to how the cryptic and cavalier entries in the crime register would be a substitute for the material allegations which contained in the first information report...." (para 12) 17. We also fail to understand as to how the cryptic and cavalier entries in the crime register would be a substitute for the material allegations which contained in the first information report...." (para 12) 17. In the instant case also there is no other material to support the grounds except the entries from the crime register. The entries, in our opinion, would not constitute sufficient material to form opinion regarding detention and could not even, prima facie, substantiate the allegations contained in the report submitted by the Superintendent of Police, Guna. 18. In Ram Manohar Lohia v. State of Bihar reported in AIR 1966 SC 740 , the Hon'ble Apex Court has observed as under:- One has to imagine three concentric circles. The law and order represents the largest circle within which the next circle representing public order and the smallest circle represents security of State. It is then easy to say that an act may affect law and order, but not public order just as an act may affect public order, but not the security of the State. 19. Beside all this, it would be appropriate to reproduce the provision of sub-Section 5 of Section 3 of the National Security Act, 1980 which reads as under:- (5) When any order is made or approved by the State Government under this section, the State Government shall, within seven days, report the fact to the Central Government together with the grounds on which the order has been made and such other particulars as, in the opinion of the State Government, have a bearing on the necessity for the order. 20. In this regard, the decision rendered by the Division Bench of this Court in Bhaiya @ Bhaiyalal @ Arvind v. State of M.P., reported in 2013(1) MPLJ (Cri.) 547 is also worth mentioning. It has been held as under:- Detention order-Mandatory requirement-order passed by the detaining authority or by the State Government not communicated to the Central Government-In absence thereto, non-compliance of sub-section (5) appears on the face of record-Order of detention quashed. 21. It has been held as under:- Detention order-Mandatory requirement-order passed by the detaining authority or by the State Government not communicated to the Central Government-In absence thereto, non-compliance of sub-section (5) appears on the face of record-Order of detention quashed. 21. Looking to the nature of the crimes registered against the detenue, it appears that it could have impact upon large section of the community and have effect on the public order but the fact remains that the detention order passed on the basis of the incident which occurred during the period from 1997-2013 cannot be held to be proximate and relevant for forming subjective satisfaction of the detaining authority for passing the detention order dated 28.10.2013. Therefore, we feel that the detention orders passed against the detenue are not justified and suffers from infirmity. Therefore, both the orders are liable to be set-aside. 22. We allow the petition and quash the orders dated 28.10.2013 and 02.01.2014 passed by the District Magistrate, Guna and the under Secretary, Government of Madhya Pradesh, Department of Home, Bhopal. It is ordered that the detenu, Kripal forthwith set at liberty, if not wanted in connection with any other case.