Ram Kumar vs State of U.P. and Others

K.K. Misra, J.—The Petitioner has challenged the detention order dated 31.8.2005, passed against him by the District Magistrate, Bijnor--Respondent No. 2 u/s 3(2) of the National Security Act, 1980 and his continued detention thereunder.

The grounds of detention given in support of the detention order arc contained in Annexure-1 to the writ petition. It is stated therein that the Petitioner is a hardened criminal of P.S. Dhampur and due to his having committed murder of a girl aged about 10 years in a planned way, there was atmosphere of fear and terror and the maintenance of public order had been adversely affected. It is further stated that due to his terror, no-body could dare to give information to the police or to give evidence against him. Describing his criminal activities, it is stated that on 25.7.2005 at about 6 p.m. the Petitioner alongwith his companions tried to misbehave with a girl aged about 10 years and subsequently killed her dragging her in a sugarcane field. On the same day, naked dead body of the girl was found in the sugarcane field. Due to this incident, the people became terrorized and fear stricken. Communal tension prevailed in the area and due to this incident, the communal harmony was disturbed. In these circumstances, the District Magistrate, Bijnor, thought it fit to pass the impugned detention order.

Counter and rejoinder-affidavits have been exchanged.

We have heard Sri V. M. Zaidi, counsel for the Petitioner, Sri Arvind Tripathi, A.G.A. for the State and Sri N. I. Jafri, counsel for the Union of India.

The first contention of the learned Counsel for the Petitioner is that the main incident made basis for passing the impugned order related to question of law and order and it cannot be termed as question of public order. In support of his contention, learned Counsel relied upon the case of Rajendra Singh v. Adhikshak, Janpad Karagar, Janpad Ghaziabad LIV 2006 ACC 105. On the other hand, Sri Arvind Tripathi, learned A.G.A. argued that the girl which was misbehaved belonged to minority community and this incident flared in communal disharmony and the District Magistrate, Bijnor, rightly passed the detention order against the Petitioner.

The incident which has been made basis for passing the impugned order was heinous in nature. An innocent girl aged about 10 years was grazing goats. The Petitioner and his companions attempted to molest her modesty and foreseeing the consequences killed her brutally. The girl belonged to minority community and the recovery of her dead body in a sugarcane field spread like a wild fire and the communal harmony was hurt. It is further stated in the grounds of detention that the Petitioner was member of an organized gang involved in several anti-social and criminal activities. No one dares even to lodge report or give evidence against the Petitioner. Due to the incident, the public order in the area was disturbed and atmosphere of fear and terror prevailed and general public became terrorized. Therefore, the impugned detention order was passed to maintain public order. When activity of a person endangered public peace or tranquillity or his activity was directed towards general members of the public and its impact was so much in the locality that those living there were prevented from following their normal avocation of life, then it would give rise to public order. The manner of committing the offence and the place where it was committed are the determining factors for deciding the question whether the incident gave rise to breach of public order or whether it was merely law and order problem. In these circumstances, we find that the incident related to question of public order and not law and order and the case relied upon by the learned Counsel for the Petitioner is of no help.

Learned Counsel for the Petitioner next contended that on the basis of solitary incident the detention order was passed which was not permissible under the law. He relied upon the case of Smt. Moirangthem Ongbi Baby alias Bibi Devi Vs. Union of India (UOI) and Others, On the other hand, learned A.G.A. Sri Arvind Tripathi argued that the detention order could well be passed on the basis of solitary incident. The incident, he urged, was impregnant of the potentiality of its repetition and the detaining authority was not to wait for repetition of such incident by the Petitioner. He further argued that the incident clearly affected the public order which was completely disturbed and was likely to take colour of communal riot but timely action by the authorities prevented it from taking an ugly turn. In many cases it has been held by Hon''ble Supreme Court that it is not the solitary incident but the magnitude of an act which is determining factor and the incident of the solitary incident can also be treated as a case of public order. A solitary case may be of such a nature that it can affect a large number of public, consequently causing breach of maintenance of public order. If it disturbs or dislocates the even tempo of the life of the community, it would be an act affecting public order. The act of the Petitioner had potentiality to disturb the public peace and tranquillity. We agree with the submission of the learned A.G.A. and hold that the commission of such an offence in the described manner cannot be brushed aside as law and order problem and this sole incident could form the basis for passing the detention order.

It is next contended by the learned Counsel for the Petitioner that the subjective satisfaction arrived at by the detaining authority is not tenable in the eyes of law because of lack of evidence. We have perused the affidavits which show that the Petitioner participated in the incident though not named in the F.I.R. but the evidence has come that he was instrumental in committing the crime. Statements of many witnesses implicating the Petitioner in the crime have been annexed with the detention order and after going through the same we find that there was sufficient material on record to pass the impugned detention order. Therefore, it cannot be held that the subjective satisfaction arrived at by the detaining authority was not based on sufficient material and the impugned detention order cannot be assailed on this ground.

Lastly, learned Counsel for the Petitioner argued that there was delay in disposal of representation. In support of his argument, he placed reliance on the cases of Raju Kannaujia v. Union of India and Ors. LI 2005 ACC 31 and Syed Mehtab Alam v. Superintendent Central Jail, Naini, Allahabad and Ors. XLIX 2004 ACC 745. In para 3 of the counter-affidavit filed by Sri Babu Lal, Under Secretary, Home and Confidential Department, U. P. Civil Secretariat, Lucknow, each day''s delay in disposal of representation has been satisfactorily explained. Therefore, on this ground also the impugned detention order cannot be assailed and the cases relied upon by the counsel for the Petitioner are not applicable.

In the result, the writ petition fails and is dismissed.