Luttoo alias Shiv Bahadur vs State of U.P.& Ors.

Virendra Saran, J.—Luttoo alias Shiv Bahadur has filed this habeas corpus writ petition challenging his detention in jail on the strength of the order dated 9th April, 1998 of the District Magistrate, Unnao under Sections 3(2) and 3(3) of the National Security Act.(for short, the Act).

In reply Sri Arun Arya, District Magistrate, Unnao has filed his counteraffidavit. Sri R.S. Agarwal Joint Secretary, Home artd Confidential Department, Civil Secretariat, Lucknow has filed counteraffidavit on behalf of the State Government and Sri Bina Prasad Under Secretary, Ministry of Home Affairs, Government of India, New Delhi has filed counteraffidavit on behalf of Union*'' of India. A supplementary affidavit was filed by Ram Bahadur and supplementary counteraffidavit has also been filed by Sri R.A Khan, Under Secretary, Home and Confidential Department, Civil Secretariat, Lucknow. Rejoinder affidavit too has been filed.

We have heard Sri S.B. Verma, learned Counsel for the petitioner, Sri Bireshwar Nath, learned Government Advocate and Sri K.D. Nag learned counsel appearing on behalf of Union of India and have perused the materials placed on the record.

The detention of the petitioner is based on a solitary incident and grounds of detention supplied to the petitioner disclose that on 1331998 one Sri Prakash resident of Pahi Khurd, Police Station Bighapur lodged an F.I.R. stating that his daughter Kumari Uma alias Seema aged about 13 years was a student of Parvati Inter College, Bighapur. It was further mentioned that on 1231998 at 7 p.m. Sunil Kumar, Alopi and the petitioner kidnapped his daughter by giving her inducement and that Uma alias Seema while leaving her parental house took away ornaments worth Rs. 15,000 detailed in the F.I.R. On 1431998 when the petitioner was arrested, it was disclosed that Km. Uma alias Seema had been murdered and ornaments etc. had been snatched and thereafter the body was concealed in a pond under Jalkumbhi bushes in village Behta Gopi and that the wearing apparels of Km. Uma alias Seema which included SalvarKurta and Dupatta had been thrown in the canal. On these facts, case crime No. 29 of 1998 under Sections 363/366, I.PC. was registered which was subsequently altered to Sections 302/201/376/394/411, I.P.C. The grounds further state that when the dead body was recovered the residents of the area collected there and hearing the news of the heinous crime there was a terror in the area and due to fear prevailing in the area young girls and daughtersinlaw of the village were not going for the purpose of easing etc. in the fields. The news was published in ''Dainik Jagran'' with the caption that the police was unable to make arrests in the case involving rape and murder and the minds of the people were agitated. It was further mentioned that on being enquired from some students namely, Km. Usha, Km. Mithilesh and Km. Kanilesh they told that the offence committed by petitioner, Sunil Kumar and Alopi was heinous which had shaken them and there was a feeling of fear and the teachers told that there was a feeling of fear in the girl students. Since the petitioner had moved a bail application in the Court of Chief Judicial Magistrate, there was every likelihood that bail would be granted in near future.

The learned Counsel for the petitioner has submitted that the detention of the petitioner is bad in law and that the incident did not have the potentiality to invoke the provisions of Section 3(2) of the Act which says that the detention order should be passed with a view to preventing the detenu from acting in any manner prejudicial to the maintenance of the public order. Learned counsel submitted that this was purely a case of law and order and further added that other coaccused Alopi and Sunil Kumar who were also detained on the ground of being involved in this very crime, i.e. the crime on which the detention of the petitioner is founded and who were also named in the F.I.R. of the case along with the petitioner, have already been released as detention orders in respect of them have been revoked by the State Government.

On the other hand, learned Government Advocate has submitted that the very nature of the crime, was such due to which necessity of invoking the provisions of Section 3(2) of the Act arose. He also referred to the supplementary counteraffidavit of Sri Rafiq Ahmad Khan, Under Secretary, Home and Confidential Department, Civil Secretariat, Lucknow in which it is mentioned that the petitioner as well as the other coaccused (Alopi and Sunil Kumar) involved in the crime were detained but the State Government after receipt of the opinion of the Advisory Board revoked the order of their detention but confirmed the order so far as the petitioner was concerned. The distinction tried to be drawn between the case of the petitioner and coaccused Alopi and Sunil Kumar is that on the pointing out of the petitioner, the body of the deceased was recovered on 1431998.

We have given our anxious consideration to the arguments advanced on either side. It is an admitted fact that the petitioner as well as coaccused Alopi and Sunil Kumar were detained under Section 3(2) of the Act on the basis of the same single incident regarding elopement and murder of Km. Uma alias Seema. In our opinion, the detention under Section 3(2) of the Act can be made if the crime committed by the accused has the potentiality from which it can be concluded that it is necessary to detain the detenu with a view to preventing him from acting in any manner prejudicial to the maintenance of public order. Simply because there is some more evidence against a particular accused, it cannot be a ground to draw a distinction. We are further of the view that in the instant case the crime in question was not of a nature from which public order would have been disturbed and the case is simply one of law and order. To some extent every criminal offence is bound to affect peace prevailing in the locality and it may also affect law and order, but the same need not affect maintenance of public order. If the unfortunate girl Km. Uma alias Seema had gone away with the petitioner and the other two coaccused on account of some inducement and while leaving her parental house, she also stealthily took away ornaments and was subsequently murdered, it was simply a case of law and order. The offences were not even committed in public view. Although offence of this nature may agitate the minds of those who learn about it. The offences were directed against a particular individual and in our opinion did not have the potentiality of disturbing the even tempo of life of the community. Distinction between a case of law and order and public order is thin but is Feal and it will depend on the circumstances of each case whether it is a case of public order, or simply law and order. The case of Arun .Gosh, AIR 1970 SC 1228, lends countenance to our above view. We are firmly of the view that the degree and extent of the reach of the crime in the present case on the society was not such which may disturb the society as such.

On the risk of repetition we may again advert to the revocation of the detention orders in respect of Alopi and Sunil Kumar who were also detained on the basis of the same solitary incident. In the case of Wazir Yadav v. State of U.P. and others, 1992 (2) Excise & Food Adulteration Reports 637 and in yet another decision dated 341996 rendered by a Division Bench of this Court at Lucknow in Writ Petition No. 494 (H/C) of 1995 Charan Singh Yadav v. State of U.P. this Court has held that if detention orders in respect of several detenu are based on similar grounds and if detention order of one of the detenu is revoked, the detention orders of others become illegal and continue to hold them in detention would be violative of Article 14 of the Constitution. Rule of law requires that even executive actions have to be performed by reason and they have to be free of arbitrariness. In our opinion, when the detention order in respect of two of the other coaccused have been revoked, the detention order of the petitioner is also liable to be setaside.

In view of the above, the habeas carpus Writ Petition is allowed. The detention of the petitioner under Sections 3(2) and 3(3) of the National Security Act on the basis of order dated 9th April, 1998 of the District Magistrate, Unnao is quashed. The detenu is in jail. He shall be released forthwith unless wanted in another connection.