Sunil Mishra vs Union of India (UOI) and Others

M.C. Jain, J.—The Petitioner Sunil Mishra has challenged the detention order dated 23.8.2003, passed against him by Respondent No. 3-District Magistrate, Allahabad, u/s 3(2) of National Security Act, 1980.

The grounds of detention are contained in Annexure-5 to the writ petition based on an incident Case Crime No. 143 of 2003, u/s 302/34, I.P.C. police station Daraganj, district Allahabad. The F.I.R. of the said incident was lodged by Ram Babu Kesharwani on 25.7.2003 at noon time. Sanjai Kesharwani was allegedly shot dead by Amit Misra, companion of the present Petitioner. The deceased used to supply tobacco to the Petitioner and certain amount was outstanding against him. The incident occurred in this way that the Petitioner and his nephew Amit Mishra were present at their business premises and when Sanjai Kesharwani asked him for his payment, he (the Petitioner) as well as his nephew Amit Mishra started quarrelling with him. On the exhortation of the Petitioner, his nephew Amit Mishra opened fire on Sanjai Kesharwani from country-made pistol who died at the spot. The incident created panic and terror in the market. Public order was adversely affected.

Counter and rejoinder-affidavits have been exchanged.

We have heard Sri K. K. Srivastava, learned Counsel for the Petitioner, Sri J. Lal, learned Counsel for Union of India-Respondent No. 1 and Sri Arvind Tripathi, learned A.G.A. on behalf of Respondent Nos. 2 to 4.

The argument of the learned Counsel for the Petitioner is that it is not a case of public order at all. The incident could, at the best, be a law and order problem and there could be no justification for preventive detention of the Petitioner over and above the action against him for the alleged offence under the ordinary law of the land. Learned A.G.A., on the other hand, argued that the offence was committed in broad day light in a busy market which created terror in the locality with people around being scared of their safety and it is well within the purview of public order.

In our opinion, it was simply a case of law and order without anything to do with public order. It is also a relevant factor that he was not the main assailant, but only one who allegedly exhorted the main shooter. Non-Petitioner opened fire on the victim in consequence of the latter having asked for the payment of his dues. Simply saying that the incident created atmosphere of terror in the area would not bring it within the ambit of public order. It goes without saying that the Petitioner is liable to be proceeded against under the ordinary law of the land for the offence allegedly committed. The incident did not have its reach to disturb public order. The incident like the present one cannot be magnified into a case of public order for invoking the provisions of preventive detention. The reach and potentiality of the incident was not of the dimension so as to disturb the even tempo of life of the public. It related to the law and order problem only.

In view of the above discussion, finding this case to be of law and order (and not of public order), we allow the writ petition and quash the detention order in question. The Respondents are directed to release the Petitioner, if he is not wanted in any other connection.