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2003 Supreme(All) 676
IN THE HIGH COURT OF ALLAHABAD
U. S. TRIPATHI, D. P. GUPTA
BHOLU ALIAS DANIS - Appellant
Versus
DISTRICT MAGISTRATE, AZAMGARH - Respondents
HAB. COR. WRIT PETN. 47712 Of 2002
Decided On : 03/31/2003
ARVIND TRIPATHI, B.N.SINGH, J.LAL, Manish Trivedi
The judgment establishes that a single act with the potential to disturb public order may justify detention, and compelling reasons are required to detain a person already in custody.
Headnote:
Detention Order - Public Order - National Security Act, Section 3(2) - IPC Section 147, 148, 149, 302, Section 7 Criminal Law Amendment Act - AIR 1970 SC 1228, 1996 Cri LJ 4274, Ayya v. State of U. P. (1989) 1 SCC 374, Smt. Bimla Rani v. Union of India (1989) 3 JT (SC) 737
Fact of the Case:
The petitioner challenged his detention order under Section 3(2) of the National Security Act, based on an incident where he and his associates caused the death of an individual from another community, leading to communal tension and deployment of police force.
Finding of the Court:
The court found that the incident had an effect on public order, as it created communal tension and the possibility of a communal riot. The detention order was upheld based on the potential for the petitioner to engage in similar prejudicial activities if released on bail.
Issues: The issues involved the distinction between law and order and public order, and the validity of the detention order when the petitioner was already in jail.
Ratio Decidendi: The court relied on precedents to establish that even a single instance of activity tending to harm public order may justify detention, and that the detaining authority must have compelling reasons justifying detention of a person already in custody.
Final Decision: The writ petition was dismissed, upholding the detention order.
( 1 ) THE petitioner filed this writ petition challenging his detention order, dated 18-7-2002, passed by District Magistrate, Azamgarh, respondent No. 1 under Section 3 (2) of the National Security Act and had prayed for his release.
( 2 ) THE petitioner was served with the grounds of detention along with the order of detention which stated that on 14-4-2002 at about 12. 15 p. m. on account of previous altercation between the petitioner and Babloo, cousin brother of Rajendra, the petitioner along with his associates Sariq, Shamim, Sarfraj and Mumtaz armed with lathis dandas and country made pistols formed an unlawful assembly raided the house of Bhagnu Kahar and broke open his doors by kicks. Observing it Bablu ran away in the lane towards mosque to save his life. The petitioner along with his associates chased him and fired by country made pistols due to which he sustained injuries and fell down. The occurrence was witnessed by complainant Rajendra, Arvind, Bhagnu, Smt. Girija Devi and others. The above persons chased the petitioner and his associates but they ran away extending threats. The mohalla people were taking the injured Bablu to the hospital, but he died in the way. Report of the occurrence was lodged by Rajendra Kahar at 1. 25 p. m. at P. S. Kotwali and on the basis of it a case at crime no. 104 of 2002 under Section 147, 148, 149, 302, IPC and Section 7 Criminal Law Amendment Act was registered. The complainant also told that on account of the incident a chaos was created on the spot and the people started running helter skelter. Shopkeepers closed their shutters and a sense of terror and insecurity was created in the locality. Since the incident related to two different communities the people of both community organized and possibility of flaring up communal tension increased. Situation was however controlled by deploying police force and PAC on large scale. During investigation it was found that the petitioner and his associates were anti-social elements and they were indulging in the activities prejudicial to the community at large. The IO interrogated Arvind Kahar, Bhagnu and Smt. Girija Devi during investigation, who corroborated the incident. It was also endorsed by the Inspector Incharge of P. S. Kotwali on 16-4-2002, 18-4-2002 and 19-4-2002 in the General Diary report that on account of incident a sense of terror and insecurity was created in the Mohalla Kundigarh (Badarka) and nearby localities. Since the incident related between two different communities, possibility to flare up communal tension had increased. The petitioner was detained in District Jail, Azamgarh in connection with case crime No. 104 of 2002 and he was trying to get himself released on bail and there was real possibility that on release on bail the petitioner would indulge in similar activities prejudicial to the maintenance of public order. Therefore, the detaining authority was satisfied that detention of the petitioner under Section 3 (2) of the National Security Act was essential.
( 3 ) THE detention order dated 18-7-2002 was approved by the State Government on 23-7-2002. The Advisory Board also approved the detention of the petitioner on 29-8-2002.
( 4 ) WE have heard Shri Manish Trivedi, learned counsel for the petitioner, Shri Arvind Tripathi, learned AGA for respondent Nos. 1 to 5 and Shri J. Lal learned Standing Counsel appearing on behalf of Union of India, respondent No. 6 and have perused the record.
( 5 ) LEARNED counsel for the petitioner raised the following points :- (1) The incident on the basis of which the detention order was passed related to law and order problem and it had no effect on the public order; (2) There was no cogent material and compelling necessity before the detaining authority to pass detention order while the petitioner was detained in jail.
( 6 ) REGARDING ground No. 1 it was contended by the learned counsel for the petitioner that the incident in question was confined to only la
