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2020 DIGILAW 220 (MP)

Ku. Akansha Rajawat v. State Of M. P. And Others

2020-02-11

RAJEEV KUMAR SHRIVASTAVA, SHEEL NAGU

body2020
JUDGMENT 1. Petitioner being the daughter of Ramkaran Singh has filed this petition seeking writ of habeas corpus along with implied writ of certiorary for quashment of the order of preventive detention passed against her father Ramkaran on 24.11.2018 (Annexure P-1) by District Magistrate, Bhind (M.P.). 2. Learned counsel for the rival parties are heard on the question of admission. 3. Pertinently it is informed by rival parties that petitioner has been arrested on 30.11.2019. 4. The State has filed its return which is perused and the documents annexed thereto are taken into account. 5. Learned counsel for the petitioner has raised the sole ground of total absence of any material sufficient for the District Magistrate to form an opinion that the act of the detenue is prejudicial to public order. It is submitted that 9 offences registered against the petitioner starting from 2001 down to 2018 under different sections of IPC and other special statutes are cited as the foundation for the District Magistrate to have formed the impugned view against the detenue. It is submitted that all these offences may at best disclose criminal proclivity of the detenue and may give rise to disturbance to law and order situation to some extent but it is most vehemently submitted that this material falls desperately short of minimum requirement for the District Magistrate to apprehend danger to public order. It is submitted that essentials of Section 2/3 of the National Security Act ('NSA' for brevity) are not made out. 6. The State, on the other hand, defending the order of preventive detention has relied upon the said nine criminal cases as the sole material before the District Magistrate for sustaining the order of preventive detention. The statements of witnesses Ravindra Gurjar (Police Personnel), Maniram Nadir (Police Personnel) and Pinki (Government Service) were recorded to form said opinion against father of the petitioner. 7. The law in regard to preventive detention is well settled. The Apex Court, in number of decisions, the extracts of which are reproduced below, has held that preventive detention is a weapon which cannot be used as a measure of punishment but only to prevent a person from indulging in future activities of such nature which are deleterious to public order: [ Ram Manohar Lohia Vs. The State of Bihar and another, AIR 1966 SC 740 ] '8. The State of Bihar and another, AIR 1966 SC 740 ] '8. It is common place that words in a statutory provision take their meaning from the context in which they are used. The context in the present case is the emergent situation created by external aggression. It would, therefore, be legitimate to hold that by maintenance of public order what was meant was prevention of disorder of a grave nature, a disorder which the authorities thought was necessary to prevent in view of the emergent situation. It is conceivable that the expression "maintenance of law and order" occurring in the detention order may not have been used in the sense of prevention of disorder of a grave nature. The expression may mean prevention of disorder of comparatively lesser gravity and of local significance only..... . 51. We have here a case of detention under R. 30 of the Defence of India Rules which permits apprehension and detention of a person likely to act in a manner prejudicial to the maintenance of public order. It follows that if such a person is not detained public disorder is the apprehended result. Disorder is no doubt prevented by the maintenance of law and order also but disorder is a broad spectrum which includes at one end small disturbances and at the other the most serious and cataclysmic happenings. Does the expression "public order'' take in every kind of disorders or only some of them? The answer to this serves to distinguish "public order" from "law and order" because the latter undoubtedly takes in all of them. Public order if disturbed, must lead to public disorder. Every breach of the peace does not lead to public disorder. When two drunkards quarrel and fight there is disorder but not public disorder. They can be dealt with under the powers to maintain law and order but cannot be detained on the ground that they were disturbing public order. Suppose that the two fighters were of rival communities and one of them tried to raise communal passions. The problem is still one of law and order but it raises the apprehension of public disorder. Other examples can be imagined. 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. The problem is still one of law and order but it raises the apprehension of public disorder. Other examples can be imagined. 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. A mere disturbance of law and order leading to disorder is thus not necessarily sufficient for action under the Defence of India Act but disturbances which subvert the public order are. A District Magistrate is entitled to take action under R.30(1)(b) to prevent subversion of public order but not in aid of maintenance of law and order under ordinary circumstances. 66. Further, the expression 'maintenance of law and order' is not used in Cl.(1) of R.30. The corresponding expression used therein is 'maintenance of public order'. The two expressions are not much different. The expression 'public order' has been construed by this Court in a few cases, the latest of them being (1960) 2 SCR 821 : ( AIR 1960 SC 633 ), wherein it was said at p.839: 'Public order' is synonymous with public safety and tranquility; it is the absence of disorder involving breaches of local significance in contradistinction to national upheavals, such as revolution, civil strife, war, affecting the security of the State." The expression 'maintenance of law and order' would cover 'maintenance of public safety and tranquility'. It may be, as urged for the petitioner, an expression of wider import than public order but, in the context in which it is used in the detention order and in view of its use generally, it should be construed to mean maintenance of law and order in regard to the maintenance of public tranquility. It is not usually used merely with reference to enforcement of law by the agency of the State prosecuting offenders against any of the numerous laws enacted for the purposes of a well-regulated society. Simple and ostensibly minor incidents at times lead to widespread disturbances affecting public safety and tranquility." [ Mustakmiya Jabbarmiya Shaikh Vs. M.M. Mehta, Commissioner of Police and others, (1995) 3 SCC 237 ] '9. Simple and ostensibly minor incidents at times lead to widespread disturbances affecting public safety and tranquility." [ Mustakmiya Jabbarmiya Shaikh Vs. M.M. Mehta, Commissioner of Police and others, (1995) 3 SCC 237 ] '9. Further, sub-section (1) of Section 3 of the Act confers power on the State Government and a District Magistrate or a Commissioner of Police under the direction of the State Government to detain a person on being satisfied that it is necessary to do so with a view to preventing him from acting in any manner prejudicial to the maintenance of 'public order'. The explanation attached to sub-section (4) of Section 3 reproduced above in the foregoing para contemplates that 'public order' shall be deemed to have been affected adversely or shall be deemed likely to be affected adversely inter alia if any of the activities of any person referred to in sub- section (4) directly or indirectly, are causing or is likely to cause any harm, danger or alarm or feeling of insecurity among the general public or any section thereof or a grave or widespread danger to life, property or public health. Sub-section (4) of Section 3 also provides that for the purpose of Section 3, a person shall be deemed to be 'acting in any manner prejudicial to the maintenance of public order' when such person is a 'dangerous person' and engaged in activities which affect adversely or more likely to affect adversely the maintenance of public order. It, therefore, becomes necessary to determine whether besides the person being a 'dangerous person' his alleged activities fall within the ambit of the expression 'public order'. A distinction has to be drawn between law and order and maintenance of public order because most often the two expressions are confused and detention orders are passed by the authorities concerned in respect of the activities of a person which exclusively fall within the domain of law and order and which have nothing to do with the maintenance of public order. In this connection it may be stated that in order to bring the activities of a person within the expression of 'acting in any manner prejudicial to the maintenance of public order", the fall out and the extent and reach of the alleged activities must be for such a nature that they travel beyond the capacity of the ordinary law to deal with him or to prevent his subversive activities affecting the community at large or a large section of society. It is the degree of disturbance and its impact upon the even tempo of life of the society or the people of a locality which determines whether the disturbance caused by such activity amounts only to a breach of 'law and order' or it amounts to 'public order'. If the activity falls within the category of disturbance of 'public order' then it becomes essential to treat such a criminal and deal with him differently than an ordinary criminal under the law as his activities would fall beyond the frontiers of law and order, disturbing the even tempo of life of the community of the specified locality. In the case of Arun Ghosh v. State of W.B. [1970] 1 SCC 98 this Court had an occasion to deal with the distinction between law and order and public order. Hidayatullah, C.J. (as he then was), speaking for the Court observed that public order would embrace more of the community than law and order. Public 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 tranquility. It is the degree of disturbance and its affect upon the life of the community in a locality which determines whether the disturbance amounts only to breach of law and order. It has been further observed that the implications of public order are deeper and it affects the even tempo of life and public order is jeopardized because the repercussions of the act embrace large sections of the community and incite them to make further breaches of the law and order and to subvert the public order. An act by itself is not determinant of its own gravity. An act by itself is not determinant of its own gravity. In its quality it may not differ from another but in its potentiality it may be very different. Again in the case of Piyush Kantilal Mehta v. Commissioner of Police 1989 Supp (1) SCC 322 , this Court took the view that in order that an activity may be said to affect adversely the maintenance of public order, there must be material to show that there has been a feeling of insecurity among the general public. If any act of a person creates panic or fear in the minds of the members of the public upsetting the even tempo of life of the community, such act must be said to have a direct bearing on the question of maintenance of public order. The commission of an offence will not necessarily come within the purview of public order which can be dealt with under ordinary general law of the land." [ K.K. Saravana Babu Vs. State of Tamil Nadu and another, (2008) 9 SCC 89 ] '15. This court on several occasions examined the concepts of "law and order" and "public Order". Immediately after the Constitution came into force, a Constitution Bench of this Court in Brij Bhushan v. State of Delhi AIR 1950 SC 129 dealt with a case pertaining to public order. The Court observed that "public order" may well be paraphrased in the context as "public tranquility". 31. We have tried to deal with the important cases dealing with the question of "law and order" and "public order" right from Romesh Thappar V. State of Madras AIR 1950 SC 124 to the latest case of R. Kalavathi Vs. State of T.N. (2006) 6 SCC 14 . This Court has been consistent in its approach while deciding the distinction between 'law and order' and 'public order'. According to the crystallized legal position, cases affecting the public order are those which have great potentiality to disturb peace and tranquility 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." 8. From the above, it is evident that there is a vital and palpable distinction between the concept of violation of law & order and violation of public order. From the above, it is evident that there is a vital and palpable distinction between the concept of violation of law & order and violation of public order. Violation of law and order by itself may not form basis for exercising extraordinary power of preventive detention. The nature of power of preventive detention is unique. Merely because a person has committed an offence, be that of most grave nature, cannot by itself lead to exercise of power of preventive detention unless it is further established, though on subjective satisfaction but founded upon objective consideration, that the person committing offence if allowed to enjoy liberty would create situation of breach of public order. The formation of opinion by the competent authority in that regard is subjective in nature but has to be based on objective material available on record. The opinion so formed ought not to be founded upon whims and caprices of the competent authority. The power of preventive detention is to be sparingly exercised with great care and caution, lest the competent authority in its zeal to satisfy some extraneous consideration may end up exercising this power, curtailing the fundamental right to liberty of a person who may be a criminal but may not have caused prejudice to public order. The task of the competent authority no doubt is onerous. Therefore, the exercise of this extraordinary power cannot be done casually. 9. Coming to the factual matrix attending the instant case, it is seen that the material pressed into service to support the extraordinary decision of prevention detention projected by the State are the nine offences. All these nine offences are detailed below in tabular illustration: S. No. Crime No. Offences u/Ss. Fate of the prosecution [Annexures P/6 to P/12] 1. 109/2001 341, 323, 324, 336, 506, 34, 325 IPC Acquitted [Judgment dt. 26.08.10] 2. 139/2001 452, 323, 427, 34 IPC Acquitted [Judgment dt. 17.02.09] 3. 181/2002 307, 294, 324 IPC & 25/27 Arms Act Acquitted [Judgment dt. 17.09.03] 4. 12/2004 147, 148, 452, 294, 323, 506B IPC Acquitted [Judgment dt. 27.04.04] 5. 16/2007 365 IPC and 11/13 MPDVPK Act Acquitted [Judgment dt. 28.01.08] 6. 130/2008 147, 148, 149, 171, 395 IPC, 135, 136 Representation of Peoples Act, 11/13 MPDVPK Act Acquitted [Judgment dt. 25.09.17] 7. 131/2008 147, 148, 149, 171, 395 IPC, 135, 136 Representation of Peoples Act, 11/13 MPDVPK Act Acquitted [Judgment dt. 25.09.17] 8. 27.04.04] 5. 16/2007 365 IPC and 11/13 MPDVPK Act Acquitted [Judgment dt. 28.01.08] 6. 130/2008 147, 148, 149, 171, 395 IPC, 135, 136 Representation of Peoples Act, 11/13 MPDVPK Act Acquitted [Judgment dt. 25.09.17] 7. 131/2008 147, 148, 149, 171, 395 IPC, 135, 136 Representation of Peoples Act, 11/13 MPDVPK Act Acquitted [Judgment dt. 25.09.17] 8. 215/2009 353, 323, 186, 506 IPC Acquitted [Judgment dt. 17.10.12] 9. 29/2018 294, 34 IPC and 3(1) (r), 3(1)(s) of SCST Act Interim relief granted to the petitioner/ detenue in the writ petition (WP.23182/18) preferred by him for quashment of FIR before this Court, vide order dated 29.09.18. 9.1 The close scrutiny of contents of the aforesaid table reveals that out of all the nine offences, the first eight were registered between 2001 to 2009 while the 9th offence was registered in 2018. More so, in majority of the offences petitioner had been acquitted as per the contents of the petition which have not been disputed by the State in its reply filed on 22.01.2020. Thus, at the time when the decision to detain the father of the petitioner was taken by the District Magistrate, the offence registered against the father of petitioner was the only one registered in 2018 punishable u/S.294, 34 IPC read with Section 3(1)(r) and 3(1)(s) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act which is said to be pending consideration. 9.2 From the aforesaid, it is further revealed that between eight offences committed by father of the petitioner from 2001 to 2009 and the 09th offence committed in 2018, there was a time gap of nine years. Thus, father of the petitioner had maintained conduct which was not even prejudicial to law and order much less public order. 9.3 From the aforesaid analysis, what comes out loud and clear is that the only material before the District Magistrate while forming an opinion to detain the father of the petitioner under NSA was the offence registered in 2018 which is related to uttering abusive words along with other co-accused against a member of SC/ST community. 10. The aforesaid factual matrix discloses a glaring case of administrative accesses for trampling the fundamental right to liberty. This Court thus is disturbed to note that merely a case of uttering of abusive words to a member of SC/ST community is made basis for passing an order of preventive detention. 10. The aforesaid factual matrix discloses a glaring case of administrative accesses for trampling the fundamental right to liberty. This Court thus is disturbed to note that merely a case of uttering of abusive words to a member of SC/ST community is made basis for passing an order of preventive detention. This demonstrates sorry state of affairs where the executive is misusing the powers conferred upon it by the Statute. The fundamental rights of an individual especially as precious as right to liberty cannot be curtailed or abridged merely for registration of a single offence of the minor nature, of uttering abusive words. It is also noticed that even the other offences in which the petitioner had been acquitted relate to offences of causing minor/major injuries, house trespass, threatening, criminal intimidation, attempt to murder, kidnapping, dacoity etc, which in the considered opinion of this Court per se cannot form the basis to arrive at a conclusion that the conduct of a person involved in these offences is prejudicial to public order. 11. Thus, the order of preventive detention passed by the District Magistrate is nothing but blatant abuse of power and appears have to have been taken under the influence of extraneous consideration without any foundational material. 12. This Court has taken a similar view in one of its decisions in WP.16938/2019 decided on 09.12.2019. 13. In the conspectus of above discussion, this Court is inclined to allow this petition in the following terms: (i) The impugned order of preventive detention (Annexure P-1) dated 24.11.2018 passed against detenue /father of the petitioner, namely, Ramkaran stands quashed. (ii) The District Magistrate, Bhind has abused the power vested in him under NSA and therefore is liable to be saddled with exemplary cost and the petitioner whose fundamental right to liberty has been crushed under the executive accesses is liable to be adequately compensated. (a) The District Magistrate, Bhind (M.P.) is directed to deposit Rs. 25,000/- (Rupees Twenty Five Thousand Only) to the Registry of this Court within a period of 60 days from today for having wasted precious time of this Court which could have been utilized in adjudicating more pressing matters, failing which this case be put up as PUD for execution. (a) The District Magistrate, Bhind (M.P.) is directed to deposit Rs. 25,000/- (Rupees Twenty Five Thousand Only) to the Registry of this Court within a period of 60 days from today for having wasted precious time of this Court which could have been utilized in adjudicating more pressing matters, failing which this case be put up as PUD for execution. (b) The State is directed to pay cost of Rs.25,000/- (Rupees Twenty Five Thousand Only) to the petitioner by way of digital transfer in his account within 60 days from today, and report compliance to this Registry, failing which the matter be put up as PUD for execution.