Ashok vs District Magistrate and Others

G. Malaviya, J.—The Petitioner has challenged his detention in District Jail Meerut in pursuance of an order dated 7th July, 1990 passed by District Magistrate Meerut against him u/s 3(2) of the National Security Act. The three grounds of detention furnished to the Petitioner translated in English are as follow:

(i) On 5-4-90 at about 12 noon in the no confidence motion against Pradhan Surcndra Singh in village Dastoi, police station Kharkhauda district Meerut Ashok along with his associates armed with lathi, ballam, pharsa and illegal fire-arms arrived at the venue and with a view to terrorise the voters who were in favour of pradhan, attacked on them with an object to kill them. On account of this incident, a sense of insecurity prevailed in the locality. Surendra Pal Singh lodged a report at police station Kharkhauda about this incident giving rise to crime No. 104 of 1990 u/s 147, 307, 323, 326, 504 and 506 IPC. After investigation, the charge sheet has been submitted in the case in which Ashok Kumar has obtained bail;

(ii) On 8-4-1990 at about 10 a.m. (Ashok) with a view to terrorise the management and workers of the Sagar Paper Mill, police station Kharkhauda District Meerut shouted and calling bad--names on the Mill-gate beat Suneel Kumar son of Surendra Pal who was Manager (pradhan-karta) of the Mill. On account of this incident the workers in the Mill premises were terrorised, The report of this incident was lodged by Suneel Kumar on 8-4-90 which was registered at the police station Kharkhauda u/s 323/504 IPC; and

(iii) On 3-5-1990, at about 10.30 a.m. Ashok with a view to again terrorise the management and workers of the Sagar Mill formed an unlawful assembly along with his brother Narendra and three other associates and after entering into the Mill premises dragged out Sudhir Kumar from the proprietor''s office of the Mill and after threatening the Mill-workers with the country made pistol, Ashok son of Mahendra Singh Jath committed the atrocious murder of Sudhir Kumar, on account of this day-light heinous murder in full view of the crowd a sense of fear was generated in the entire area. A report in respect of this incident was lodged by Ved Prakash at police station Kharkhauda which was registered at crime No. 124 of 1990 u/s 147, 148, 149, 506 and 302 IPC. After investigation, charge sheet has been submitted in the said case.

Aforesaid Ashok is in Meerut Jail. On account of his terror eye- witnesses Mukesh Chandra Sharma, Umesh Kumar, Pradeep Kumar, and Harveer Singh have given affidavits against the prosecution in this heinous murder case. Ashok is trying to get released on bail in this case and although his earlier bail application has been rejected by the Sessions court on 18-6- 1990, inview of the changed circumstances, he is likely to be released on bail, on his second bail application, as he has terrorised the eye witnesses of this crime.

As after his release the sense of insecurity would again prevail in the community particularly that of the police station Kharkhauda district Meerut (on account of the past couduct of the Petitioner) it would be difficult to maintain the public order.

Since, I am satisfied that you (Ashok) are likely to act in a manner which would affect the maintenance of public order, hence with a view to prevent you from indulging in that type of activity, it is necessary to detain you.

Admittedly the order of detention was served on the Petitioner on 9th July, 1990. There after the Petitioner is alleged to have absconded on 27-11-1990. The Petitioner is thereafter alleged to have been re-arrested on 18-6-1991 and the petition was thereafter filed in this Court in November, 1990.

We have heard learned Counsel for the Petitioner and the learned Add!. Government Advocate.

First point argued by Sri Tapan Ghosh learned Counsel for the Petitioner in this case is that as the initial order of detention was served on the Petitioner on 9-7-1990 and as the maximum period of detention u/s 12 of the National Security Act is 12 months from the date of detention, hence even if the Petitioner absconded after his detention, his detention, beyond 8th July, 1991 is illegal and the Petitioner is entitled to be set at liberty forthwith on this ground alone.

The plea of the Petitioner that the Petitioner cannot be detained beyond a period of 12 months has been categorically rejected by the Supreme Court in the case of State of Gujarat Vs. Adam Kasam Bhaya, . It has been held by the Supreme Court as follows:

In our opinion, the submission has no force. In Section 10, both in the first and the second part of the section, it has been expressly mentioned that the detention will be for a period of one year, or two years, as the case may, be, from the date of detention and not from the date of order of detention. If the submission of the learned Counsel be accepted, two unintended results follow: (1) if a person against whom an order of detention is made u/s 3 of the Act, he can successfully abscond till the expiry of the period and altogether avoid detention, and (2) even if the period of detention is interrupted by the wrong judgment of a High Court, he gets the benefit of the invalid order, which he should not. The period of one or two years, as the case may be, as mentioned in Section 10 will run from the date of his actual detention, and not from the date of the order of detention. If he has served a part of the period of detention, he will have to serve out balance. The preliminary objection is oyerruled.

However, learned Counsel for the Petitioner referred to the judgment of the Supreme Court in the case of Sunil Fulchand Shah Vs. Union of India (UOI) and Others, , where in a bench of three Hon''ble Judges of the Supreme Court doubted the correctness of the pronouncement of the Supreme Court in the case of State of Gujrat v. Adam Kasam Bhaya and considering the question to be one of great public importance referred the case to a Bench of five Hon''ble Judges of reconsidering the law on the point. According to learned Counsel for the Petitioner in view of the doubt expressed by the Supreme Court in the case of Suneel Fool Chand Shah, the law laid down by the Supreme Court in the case State of Gujrat v. Adam Kasam Bhaya should be treated as overruled. We find it difficult to accept the contention of the learned Counsel for the Petitioner. Where as it is true that the three Hon''ble Judges of the Supreme Court doubted the correctness of the judgment in the case of State of Gujrat v. Asam Kasam Bhaya, this judgment would still be binding on us under Article 141 of the Constitution, unless the Sppreme Court specifically overrules the said judgment by its pronouncement. Consequently, in view of the law laid down by the Supreme Court in the case of State of Gujrat v. A. K. Bhaya, the first point argued by learned Counsel for the Petitioner fails.

Learned Counsel for the Petitioner also placed reliance on the case of Sharad Dadu v. District Magistrate Bhopal 1991 CriLJ 309, decided by the Madhya Pradesh High Court as also on the case of M. Michael Vijaya Kumar v. State of A. P. 1987 CriLJ 407, of the Andhra Pradesh High Court. In these two cases, the two High Courts distinguished the case of the Supreme Court in the case of Adam Kasam Bhaya. However, in those cases, the Petitioner had been released by the Government on parole and the two High Courts distinguished the case of Adam Kasam Bhaya by observing that the case in which a detenu absconded would be different from the case where the government itself had released a detenu on parole. Since in the instant case the Petitioner had absconded, consequently these two cases of two High Courts are of no assistance to the Petitioner.

Learned Counsel for the Petitioner then contended that the three grounds which have been relied upon by the detaining authority for detaining the Petitioner were not in fact grounds of public order, but were related to problems merely that of law and order. The contention of the learned Counsel for the Government on the other hand is that the three grounds are the matters concerning the maintenance of public order.

Having given our anxious considerations to the respective contentions by the learned Counsel for the parties we find that where as ground No. 2 can not be treated to be concerning the problem of public order and would only be a matter relating to the problem of law and order, ground Nos. 1 and 3 quoted above would certainly be the matters concerning the maintenance of public order.

In ground No. 1 it is clearly mentioned that the Petitioner after forming an unlawful assembly attacked the supporters of one particular group in a ''no confidence motion with deadly weapons and also fired shots from the fire-arms. In this connection, it would be relevant to refer to the observation of Supreme Court in the case of State of U.P. Vs. Kamal Kishore and Another, where in ground No. 3 of the said case had been held to be a matter relating to the public order. In the said case ground No. 3 related to the firing by the detenue at his enemy Vijai Pratap Singh. Which resulted in the registration of a case u/s 307/34 IPC. Rejecting the contention of the detenue in the said case the Supreme Court in para 13 of the said judgment observed as follows:

As regards the incident referred to in ground No. 3, that is the complaint regarding the firing by Kamal Kishore Saini, the detenu on Vijay Pratap Singh, an under-trial prisoner, in the court compound while he was being taken back from the court by the complainant and other police men on duty, undoubtedly affects public order inasmuch as the firing of shot in the court compound created panic and terror in the mind of persons present there and thus it affects the even tempo of the life of the community in that place. This incident certainly affects public order and not merely law and order inasmuch as the reach, effect and potentiality of the act purports to disturb the even tempo of the life of community i.e., the people of that area.

Learned Government Advocate is consequently right that if a firing is made even by a person who is inimical, in a public place, then the incident gives rise to the disturbance of the even tempo of life of the community and hence the said incident should be treated to be a matter of public order. Moreover such incidents are to be viewed in the back ground of the democratic set up of our country. A motion of no confidence is part and parcel of the democratic system and for an elected body. If some one wants to disturb that system by resorting to violence with fire arms, the said activity aims at disturbing the said system itself and hence such activity must be held to be relating to the disturbance of the public order. In this connection, learned Government Advocate also relied upon the observation made by a Division Bench of this Court in the case of Amar Mani Tripathi v. State of U.P. 1986 ALJ 498. In the case of Amar Mani Tripathi ground No. 3 related to the indiscriminate firing at polling booth. The Bench in para 25 while considering this incident held as follows ;

The detenue and his associate Hari Shanker Tiwari resorted to firing to create terror. As a result of firing Sukhal Rao died on the spot and three others were injured. On the day of election, in a public place like the polling booth, the act of indiscriminate firing by detenu and his associate resulted in dislocation of the election. Election is the very foundation of democratic form of Government to which our country is wedded. An act of violence and terror that shakes the faith of the people in the very system of election does not have nexus to public order. We are of the opinion that this ground relates to problem of public order.

Accepting the proposition laid down by the Division Bench of this Court in the case of Amar Mani Tripathi we hold that the activity of the Petitioner enumerated in ground No. 1 related to the problem of public order.

Coming to the activity enumerated in ground No. 3 it may be seen that the Petitioner was dissatisfied with the management on account of the removal of his brother Narendra from the service of the Mills. Consequently he entered the Mill with his associates armed with deadly weapons, dragged away Sudhir Kumar from the room of the proprietor and killed him in full view of the entire workers of the Mills. The very nature of th;s murder indicates that the Petitioner wanted to establish that the management of the mill could not resort to any disciplinary action against my person as the action taken by the management could be met with violent death of the person at the helm of affairs of the management. Moreover the ground further goes on to indicate that the Petitioner was thereafter further responsible to terrorise the eye witnesses of the said incident who were compelled to give their affidavits against the prosecution in connection with the said incident. Both these actions on the part of the Petitioner Ashok and his associates tantamounted to affecting the even tempo of the running of a business unit and would consequently amount to disturbance of public order. We have no hesitation to hold that if this type of activity is undertaken by a person, such a person can be a potential threat to the smooth running of any undertaking. If any such undertaking where a large number of persons are employed, has to face the disturbance of this nature, it has to be held that even tempo of life of the community gets disturbed and that activity would clearly be an activity affecting the maintenance of public order. Consequently activity enumerated in ground No. 3 is also held to be calculated to affect the maintenance of public order.

Learned Counsel for the Petitioner relied on the case of Jaya Mala Vs. Home Secretary, Government of Jammu and Kashmir and Others, , Ramveer Jatav Vs. State of U.P. and Others, , Landan Singh v. State of U.P. 1987 ALJ 482 and Sesh Dhar Misra v. State of U. P 1985 ALJ 1222, to support his contention that the activities of grounds Nos. 1 and 3 should also be held to be related to the maintenance of law and order. As has been observed by the Supreme Court, the line of demarcation between the matters concerning the law and order and public order are very thin and each case has to be decided in the back ground of the facts of that particular case. We do not think that any of the cases relied upon by the learned Counsel for the Petitioner is indicative of the fact that the activities of the Petitioner as enumerated in grounds Nos. 1 and 3 could be treated to be activities concerning the problems of law and order.

Since grounds Nos. 1 and 3 have been held to be related to the maintenance of public order and as the case of the Petitioner is held to be covered by the judgment of the Supreme Court in the case of State of Gujrat v. Adam Kasam Bhaya, there is no merit in the two contentions of the learned Counsel for the Petitioner, which have been discussed hereinbefore. No other point has been pressed by the Petitioner.

This petition accordingly fails and is hereby dismissed.