Firoz Ahmed Vs. State of U. P. and Others - Court Judgment

O. P. Garg, J.

1. In this habeascorpus writ petition under Article 226 of the Constitution of India, the subject-matter of challenge is the order of detention dated 29.1.1999. Annexure-I to the writ petition passed by the District Magistrate, Varanasi respondent No. 2 by invoking the provisions of Section 3(2) of the National Security Act, 1980 (hereinafter referred to as 'the Act'). The said order was approved by the State Government respondent No. 1 on 6.2.1999. The petitioner made & representation dated 11.2.1999 through the Jail Superintendent respondent No. 3, which was sent to the State Government by the District Magistrate respondent No. 2 on 16.2.1999. The representation of the petitioner was rejected on 20.2.1999. After the receipt of the recommendations of the Advisory Board, the respondent No. 1 confirmed the detention order on 5.3.1999. Counter and rejoinder-affidavits have been exchanged. Heard Sri Vinod Prasad, learned counsel for the petitioner and Sri Mahendra Pratap learned A.G.A. appearing on behalf of the respondents.

2. Though the detention order has been challenged on a variety of grounds. Sri Vinod Prasad appearing on behalf of the pelitloner, however, confined his submissions only to the two points, firstly, that it was at best a case of breach of 'law and order' and not of 'public disorder' and, therefore, the District Magistrate, Varanasi, had no jurisdiction to pass the detention order under Section 3(2) of the Act, and, secondly, therehas been inordinate delay in disposal of representation of the petitioner by the State Government with the result the detention order shall stand vitiated. Both these submissions have been repelled by the learned A.G.A.

3. The order of detention came to be passed in the wake of following facts :

One Raju who belongs to Muslim community covered the distance between Rewdi Talab and Bagadia, Varanasi in the tempo driven by Shambhu Sonkar on 21.1.1999. It appears that Raju refused to pay the hire charges which resulted in a wrangle. On the next day. i.e., on 22.1.1999 at about 10 a.m.. the present petitioner and their associates went to the house of Shambhu Sonkar ; hurled abuses at him and pelted brick-bats with the result Shambhu Sonkar was injured. The glass-panes of the tempo were also broken. The petitioner and his accomplices left the place threatening Shambhu Sonkar with dire consequences. A Case Crime No. 24/99 under Section 147/323/504/506/336/427. I.P.C. was registered on the F.I.R. lodged by Shambhu Sonkar. From the side of the petitioner, one Lutful Sheikh lodged an F.I.R. giving a cross-version which gave rise to Crime Case No. 24/A/99 under Section 147/323/504/506. I.P.C. at P.S. Bhelpur. Varanasi. At the relevant time. S.H.O. Bhelpur was away to make arrangements for Saraswati Puja. At 10.20 a.m. he got an information that the incident aforesaid had given rise to communal disharmony and the members of the two rival groups were indulging In slogan shouting. Anyhow, the crowd was brought under control.

4. On 22.1.1999 itself, at about 9.30 p.m.. one Mangal Ram Varma and his son Ajay Kumar Varrna were going together and when they reached Asfaq Nagar turn, a few persons from the crowd mounted an assault and inflicted knife injury on AJai KumarVarma saying that he was a Hindu. An F.I.R. of the incident was lodged by Mangal Ram Varma giving rise to Crime Case No. 26 of 1999 under Section 307. I.P.C. at P.S. Bhelpur. Ajay Kumar Varma was medically examined without loss of time. Injury report indicated that he has received grievous injury in the region of his neck and that some sharp object was used for the purpose. No person was named in the F.I.R. During the course of investigation, names of the present petitioner, Bhaiyan alias Shamim. Raju alias Nanku son of Jamaluddin and Mohd. Israil came to light. An entry was made in the general diary at Sl. No. 57 at 11.30 p.m. on 22.1.1999. The present petitioner was sent to Jail in connection with the aforesaid two criminal cases on 23.1.1999.

5. On 27.1.1999, the Inspector in-charge, P.S. Bhelpur, Varanasl. submitted a report to the Senior Superintendent of Police, Varanasi. indicating therein that on account of incidents, aforesaid, there was mounting communal tension in the area and if the petitioner is successful in getting himself released on bail, it would result in communal disharmony and. therefore, the situation in the area may become explosive. The S.S.P., Varanasi, sponsored the case for detention of the petitioner under Section 3(2) of the Act and thereupon after taking into consideration the material placed before him. the District Magistrate passed the detention order on 29.1.1999. a copy of which is Annexure-1 to the writ petition. The grounds which are required to be specified under Section 8 of the Act and were undoubtedly served on the petitioner alongwith detention order, are contained in Annexure-2. Making a detailed reference to the two incidents, referred to above, the District Magistrate formed an opinion that the said Incidents have evoked serious communal discord between the two communities in the sensitive area of Varanasi city. He also felt satisfied from the reports of the Intelligence Units that the petitioner and his associates have incited the Mohammedan community and areattempting to flare up communal violence. In the daily editions of the newspapers, Aaj, Dainik Jagran, and Gandeev of 23rd and 24th January, 1999 certain facts were published to give rise to communal discord. It was also observed that in case the petitioner is successful in securing bail in the two cases, aforesaid, there is every possibility that he may create hatred amongst the two communities which would lead to communal violence and then it would be difficult to control the same.

6. Sri Mahendra Pratap, learned A.G.A. pointed out that it is a case in which the District Magistrate has come to a right conclusion that on account of incidents aforesaid 'public order' was disturbed. According to him, it is not required of this Court to probe into the correctness of the alleged facts on the basis of which the detaining authority felt satisfied in passing the order. In support of his contention, the learned A.G.A. placed reliance on State of Gujarat v. Adam Kasam Bhaya, AIR 1981 SC 20O5 ; K. Aruna Kumari v. Government of Andhra Pradesh and others. (1988) 25 ACC 15 (SC) ; U. Vijay Laxmi v. State of Tamil Nadu. 1995 SCC (Crl) 176, and the decision of this Court in Vijay Pal alias Pappit v. Union of India, 1996 (33) ACC 741. Though the broad and general statement made by Sri Mahendra Pratap may not be acceptable, we are conscious of the fact that the Court must be circumspect in striking down the impugned order of detention where it meets the requirements of Article 22(5) of the Constitution of India. It is only in those cases where it is suggested that the order of the detaining authority is mala fide or that its order constituted an abuse of power, that the Court shall step-in to quash the detention order.

7. The two concepts breach of 'law and order' and the 'public disorder' have been the subject-matter of debate in a series of decisions of the Apex Court as well as this Court. In order to avoid prolixity, we would, however, make a reference to the observations made in Smt. Angoori Devifor Ram Ratan v. Union ofIndia, AIR 1989 SC 371, in which the Apex Court has succinctly laid down the distinction between the two connotations 'public order' and 'law and order' in the following manner :

'The impact on 'public order' and 'law and order' depends upon the nature of the act. the place where it is committed and motive force behind it. If the act is confined to an Individual without directly or indirectly affecting the tempo of the life of the community, it may be a matter of law and order only. But where the gravity of the act is otherwise and likely to endanger the public tranquillity, it may fall within the orbit of the public order. This is precisely the distinguishing feature between the two concepts.'

8. Sometimes as observed in Ayya alias Ayub v. State of U. P., AIR 1989 SC 369. what might be an otherwise simple 'law and order' situation might assume the gravity and mischief of a 'public order' problem by reason alone of the manner or circumstances in which or the place at which it Is carried out. Necessarily, much depends upon the nature of the act. the place where it Is committed and the sinister significance attached to ut. In Harpreet Kaur (Mrs.) Harvinder Singh Bedi v. State of Maharashtra, 1992 AIR SCW 835, it was held that in each case, therefore, the Courts have to see the length, magnitude and intensity of the questionable activities of a person to find out whether his activities are prejudicial to maintenance of 'public order' or only of 'law and order'. In Fitrat Raze Khan v. State of U. P., (1982) 2 SCC 449. It was held that there is no rigid or mechanical test to be applied for the purpose. The Court should examine the cases without being overwhelmed by the gruesomeness of the incident involved in the criminal trial.

9. Turning to the merits of the contentions raised by the learned counsel for the parties, we find that the two incidents obviously were interwoven by a strong bond of inflammable communal violence. Thegenesis of the first incident was that Raju belonging to the Mohammedan community was not prepared to pay the hire charges to the tempo driver Shambhu Sonkar who is a Hindu. The petitioner who was siding the men of his own community along with a body of other persons went to the house of Shambhu Sonkar in the brilliant light of the day indulged in criminal activities, inasmuch as, the glass-panes of tempo were broken and Shambhu Sonkar was dealt with abusive language and with pelting of brick-bats, The quarrel erupted between the members of two communities--Hindu and Muslim. The whole incident was given a colour of communal violence which came to be reflected by another Incident which had taken place in succession on the same night when one AJai Kumar Varma was subjected to murderous assault by the petitioner and other accused persons belonging to Mohammedan community. The petitioner and his associates obviously did not have any animus against Ajai Kumar Varma but had assaulted him solely on the ground that he belonged to Hindu community. The second Incident lends strength to the report of the sponsoring authority that on account of the two incidents, there was surging communal tension in the area and if it was not dealt with strong hand, an uncontrollable situation would have prevailed. The next day. the petitioner was sent to jail in connection with the crimes mentioned above. When the two incidents are viewed in close proximity, the propensity of the petitioner to resort to prejudicial activity leading to 'public disorder' became manifest. On account of the misdeeds of the petitioner and his associates, fear, terror and hatred spread in the hearts of the residents of the area, which was highly prejudicial to the maintenance of 'public order'.

10. The learned A.G.A. has rightly placed reliance on the decision of the Apex Court in the case of Smt. Bimla Rani v. Union of India and others. 1999 SCC (Crl) 756, in which it was held that when an incident was such thatit crated communal tension and the authorities were apprehensive of the breaking of communal riot, such incident in Itself may be sufficient and may afford justification for satisfaction of the detaining authority for the detention of the detenu in order to prevent him from indulging in such activity prejudicial to 'public order', even though there are no antecedents, acts of similar nature or past history of commission of crime by the detenu.

11. Learned counsel for the petitioner urged that the apprehension of the sponsoring or the detaining authority that the petitioner would have been successful In securing bail in the two cases pertaining to the above two incidents and that his release would be prejudicial to the communal harmony was unfounded. The learned counsel for the petitioner urged that it Is the right of every citizen to have recourse to law and if the ordinary law of the land confers a right to seek ball, it cannot be defeated by passing an order of detention. In support of his contention, learned counsel for the petitioner placed reliance on the decision of the Apex Court in the cases of Smt. Shashi Agarwal v. State of U. P., (1998) 1 SCC 436, in which it was held that an under-trial cannot be interdicted from moving the Court for bail by clamping an order of detention. The possibility of the Court granting bail may not be sufficient. Nor a bald statement that the person would repeat his criminal activities would be enough. It was observed that there must also be credible information or cogent reasons apparent on the record that the detenu, if enlarged on bail, would act prejudicially to the interest of 'public order'. A reference was also made to Anand Prakash v. State of U. P., 1990 (27) ACC 67 (SC) : Ahmedhussain Shaikhhussain alias Ahmed Kallo v. Commissioner of Police, Ahmedabad, 1990 ACC (Crl) 86 ; Surya Prakash Sharma v. State of U. P. and others, 1994 SCC (Cri) 1691 and Dharmendra Suganchand Chelawat v. Union of India, AIR 1990 SC 1196. This Court has also taken a similar view in the cases of Harish Kasana and AtiqAhmad, (supra) as well as Adesh Kumar v. Karagar Pratapgarh, 1997 UPCrR 647. We have given thoughtful consideration to the matter and find that the decisions, aforesaid, do not militate against what has been stated by the Apex Court in the case of Alijan Mian and another v. District Magistrate, Dhanbad, 1983 (3) SCR 930 and Raisuddin alias Babu Tamchi v. State of U. P., AIR 1984 SC 46. The law is that there is no impediment for passing an order of detention if the detaining authority is satisfied that the enlargement on ball of the detenu would be prejudicial to the maintenance of 'public order'. After examining the various documents brought on record, we can easily conclude that it is not correct to say that there is no material for the apprehension that if released on bail, the detenu will indulge in such criminal acts affecting 'public order'. The detaining authority had, in fact. taken into consideration all the circumstances including the grave and serious situation that emerged as a result of the incident.

12. It was pointed out by the learned counsel for the petitioner that prior to the passing of the order of detention on 29.1.1999. the bail application of the petitioner in Crime Case No. 26 of 1999 had already been rejected and that no bail application was pending on the date on which the detention order was passed as in another Crime Case No. 24 of 1999 no bail application was moved. It is of no consequence whether on the date when the detention order was passed, an application for ball on behalf of the petitioner was pending or not. The fact remains that the detaining authority had felt satisfied that in case the petitioner is successful in getting released on bail, his release would not be conducive to the maintenance of 'public order'.

13. From the facts and circumstances of this case, it is established that the two incidents have resulted in 'public order'. The second incident which was the sequel of the first incident indicated that communal violence had spread. A feeling of fear, hatred, commotion andtension between the two communities had come to surface in the densely populated area of fragile city of Varanasi. As held in Smt. Simla Rani (supra), even if it may be a solitary Incident, but if it gives rise to communal tension and if there was apprehension of communal riot in the report of the sponsoring authority, it is sufficient material for the subjective satisfaction of the detaining authority that there was disturbance of tranquillity and harmony of public life. In our opinion, since the two incidents were such that they created communal tension, and the authorities were apprehensive of breaking of communal riot, such incidents by themselves were sufficient and may afford justification for the satisfaction of the detaining authority for the detention of the petitioner in order to prevent him from indulging In such activity prejudicial to 'public order'. It was not a simple case of breach of 'law and order' as the impact of the two incidents was not restricted to any particular individual or group of individuals. The effect of reach and potentialities of the two Incidents was so deep as to affect the peace and harmony of the two communities at large. Once the communal tension flares up. it becomes inflammable and not only the locality but the entire city and the adjoining area are afflicted by communal tension. In these circumstances, it was necessary to take preventive measures by passing an order of detention against the petitioner under Section 3(2) of the Act.

14. Now comes the question whether there has been any delay in the disposal of the representation of the petitioner which was submitted by him on 11.2.1999 through the Jail Superintendent. Though the petitioner has alleged that he submitted representation on 10.2.1999, the averments made In paragraph 5 of the counter-affidavit filed by the Jail Superintendent indicate that it was filed on 11.2.1999. It was sent to the District Magistrate by the Jail Superintendentthe same day and was received in the office of the District Magistrate on 11.2.1999 itself. After obtaining the comments, the representation was forwarded to the State Government by the District Magistrate on 16.2.1999. It was received by the State Government on 17.2.1999 as is evident from the counter-affidavit filed by Sri R. A. Khan, Under Secretary to the Government of Uttar Pradesh, Home and Confidential Department. In para 4 of the counter-affidavit, it has been mentioned that on receiving the representation, a detailed note was prepared by the Section concerned on 18.2.1999 and It was submitted through Sri R. A. Khan who has filed the counter-affidavit and the Joint Secretary concerned to the Secretary. Home and Confidential Department, who examined it on 19.2.1999. The representation was submitted to the higher authorities for final orders of the State Government and finally the representation of the petitioner was rejected by the State Government on 20.2.1999. Communication of the rejection of the representation of the petitioner was sent through a Radiogram of the State Government on 23.2.1999. The representation, which was received by the State Government on 17.2.1999 too has been rejected on 20.2.1999. It is a case where there has been no delay, much less. Inordinate delay In the disposal of the representation of the petitioner. The submission of the learned counsel for the petitioner on the point is wide off the mark and the reference made by him to the various decisions, which came into being in the light of different facts and circumstances Is otiose.

15. The petitioner has not been able to successfully challenge the order of detention passed against him on 29.1.1999. The order of detention against the petitioner has been passed to maintain the 'public order' and is clearly in conformity with the various provisions of law.

16. The writ petition, therefore, fails and is accordingly dismissed.