Kamlakar Shankar Petal VS B. Akashi

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

BOMBAY HIGH COURT
Ashok Agarwal and ML. Dudhat. JJ.
Kamlakar Shankar Petal - Petitioner
versus
B. Akashi and Anr. - Respondents
Cri. Writ Petition Nos. 1357 and 1358 of 1993
Both Decided on 27.1.1994
Counsel for the parties:
For the Petitioner: N.V. Pradhan with Mrs. Sulabha D. Khot and S.P. Kadam.
For the Respondent: R.P. Desai, Assistant Govt. Pleader.

Headnote:(i) National Security Act 1980- Section 3 (2) Detention under - Both the detenus are concerned with two incidents, of kidnapping and the other in respect of an attempt to commit murder - The incidents separated by a period of over one year - Tempo of life cannot be said to have been disturbed - Facts affect individuals or group of individuals - The same cannot be equated with breach of public order - It is not possible to hold that the activities of the detenue are in any manner prejudicial to the maintenance of public order - Impugned order liable to be quashed.
       Held: Both the detenus in the instant case are concerned with two incidents. One is an incident of kidnapping and the other is in respect of an attempt to commit murder. The incidents are separated by a period of over one year. It may by that the first incident has prompted a section of the locality to take out a morcha to a Police Station. It is also true that the second incident has taken place during a reception of a marriage ceremony. That may have disturbed the invites at the reception who night have run away helter skelter. However, it is difficult to subscribe to the contention of the learned Public Prosecutor Smt. Ranjana Desai that this has caused a breach of Public order. It may have caused disturbance to various individuals. However, the tempo of life cannot be said to have been disturbed. The even tempo continues to remain unaffected. (Para 12)
       (ii) Preventive Detention - Law and Order and Public Order - Distinction between.
       Held: The true distinction between the areas of Public order and law and order lies not in the nature or quality of the act but in the degree and extent of its reach upon society. The distinction between the two concepts of law and order and public order is a fine one but this does not mean that there can be no overlapping. Acts similar in nature but committed in different contexts and circumstances might cause different reactions. In one case it might affect specific individuals only and therefore touch the problem of law and order while in another it might affect public order. The act by itself there for is not determinative of its own gravity. In its quality, it may not differ from other but in its potentiality it may be very different. Similar acts in different contexts affect differently law and order on the one hand and public order on the other. It is the potentiality of the act to disturb the even tempo of the life of the community which makes it prejudicial to the maintenance of the public order. It is always a question of degree of the harm and its effect upon the community. Public order is the even tempo of the life of the community taking the country as a whole or even specific localities. It is the degree of disturbance and its effect upon the life of the community in locality which determines whether the disturbance amounts only to a breach of law and order. (Para 11)
       Result: Petition allowed.

JUDGMENT (ORAL)

Ashok Agarwal, J. - The present petitions seek to impugn the orders of detention passed on 10th September, 1993 passed by the Commissioner of Police, Thane, under Section 3(2) of the National Security Act. The orders of detention were served on the detenue-petitioner on the very day i.e. on 10th September, 1993. The grounds of detention were contemporaneously served on the detenus on the very day namely 10th September, 1933. The grounds of detention are practically identical in both the petitions. Grounds of detention in Criminal Writ Petition No. 1357 of 1993 inter alia recite as under:

"On 3.4.1992 at about 10.00 hours, the daughter of the complainant Miss Pushpa along with her friends Miss Vanita and Miss Jaishri who were also studying in Funde High School and staying in Bhendkhal village, left home for. High School for attending Examination paper. When they were crossing a Nallaha situated in the limits of Navghar village, you and your associate Abhay Parshuram Bhagar came there in a hired Maruti Van No. MH/03/B/916 and your associate Abhay dragged Miss Pushpa and forcibly took her in the said Van. Miss Pushpa and her friends Miss Vanita and Miss Jaishri raised hue and cry for help, but your associate Abhay at the point of knife threatened Miss Pushpa with murder if she shouted and you and your associate Abhay took hue away in the said Van with an intention to marry your associate Abhay Bhagat with her forcibly. Some boys seeing Miss Pushpa being taken away in a Maruti Van, went running to the house of the complainant and told him about the incident. Therefore, the complainant and some others from the village, went running to Funde High School where they learnt about kidnapping of Miss Pushpa in a Maruti Van. The complainant Shri Pandharinath Thakur immediately rushed to Uran Police Station and filed his complaint upon which an offence vide Urban Police Station Crime No. 1 - 34/1992 under section 363, 506, 34 I.P.C. was registered.

After kidnapping Miss Pushpa in a Maruti Van, you took common photographs of your associate Abhay Bhagat with Miss Pushpa in the running Van. You and your associate Abhay took Miss Pushpa to a distant place at Kajupada, Kesariwadi, Taluka-Passein, District Thane. On reaching there, you and your associate Abhay left the Maruti Van and your associate Abhay threatened the driver of the said Van with dire consequences if he mentioned kidnapping of Miss Pushpa to anybody. You and your associate Abhay then detained Miss Pushpa in the house of one Ganpat Chaudhari, whom your associate Abhay was knowing and left the house for bringing clothes. After your departure from the house. Miss Pushpa narrated about the incident to Ganpat Chaudhari and his wife Smt. lanabai and requested them to accompany her to be Police Station. But Ganpat Chaudhari refused to accompany her because of fear from you and your associate, but the couple advised her to leave the house on the pretext of answering a call of nature and to go to Kashimira Police Station. Accordingly, Miss Pushpa left the house and with the help of others went to Kashimira Police Station and apprised of her kidnapping by you and your associate Abhay Bhagat. The Kashmira Police with the help of Ganpat Chaudhari and others searched and apprehended you and your associate Abhay at Kajupada. You and your associate Abhay Bhagat were later arrested in this case on 4.4.1992 at 12.30 hours. Because of this incident of forcibly kidnapping a school going innocent girl who was going to attend her annual examination paper, there was panic amongst member of public of Bhendkhal village and to express their anger about 150 women and about 125 men took out a Morcha to Urban Police Station on 6.4.1992 in protest of the incident which proves that the even tempo of the society was disturbed. During investigation of the case, the left foot steeper of Miss Pushpa which had slipped from her foot while being dragged by your associate Abhay, was seized from the s

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