Abdul Aziz Vs. the District Magistrate, Burdwan and ors. - Court Judgment

Excerpt:
criminal - detention - maintenance of internal security act, 26 of 1971 - appellant was involved in a incident where he and his associates armed themselves with lethal weapons like firearms, choppers and daggers with a view to promoting the cause of their party and raided the house of x and murdered him which created a general sense of insecurity as a result of which the residents of the locality could not follow their normal avocations for a considerable period - in another incident appellant and his associates murdered y - appellant detained under act of 1971 with a view to prevent him from acting in any manner prejudicial to the maintenance of public order - hence, present appeal - appellant contended that two incidents were cases of murder and it can have no impact on public order - whether two incidents stated aforesaid can be said to be law and order or public order - murders were stated to have been committed by the petitioner and his associates with the definite object of promoting the cause of the party to which they belonged - held, such incidents have serious repercussions not merely on law and order but on public order. criminal - detention order - whether detention order was vitiated as order of detention was passed during the pendency of a prosecution launched against the appellant for the very same incidents in regard to which the order of detention has been passed - on basis of precedents it had been held that mere circumstance that a detention order is passed during the pendency of a prosecution will not vitiate the order. criminal - scope of act - maintenance of internal security act, 26 of 1971 - whether parliament can confer power on the appropriate government to pass detention order for maintenance of public order as act of 1971 was passed for the maintenance of 'internal security' and 'internal security' cannot comprehend 'public order' - act of 1971 is one for providing for detention for the purpose of maintenance of internal security and 'matters connected therewith'. 'internal security' is an expression of width sufficient to comprehend the concept of public order - internal disturbances can threaten the security of the state and such disturbances may assume grave proportions so as to have a direct impact on public order - held, no reasons to interfere with detention order of appellant - appeal dismissed. - code of criminal procedure, 1973 [c.a. no. 2/1974]. section 468: [s.b. sinha & g.s. singhvi, jj] held, while considering the applicability of section 468 to the complaints made by the victims of matrimonial offences, the court can invoke section 473 and can take cognizance of an offence after expiry of the period of limitation keeping in view the nature of allegations, the time taken by the police in investigation and the fact that the offence of cruelty is a continuing offence and affects the society at large.-- section 482: inherent powers quashing of proceedings held: the high court should be extremely cautious and slow to interfere with the investigation and/or trial of criminal cases and should not stall the investigation and/or prosecution except when it is convinced beyond. any manner of doubt that the fir does not disclose commission of any offence or that the allegations contained in the fir do not constitute any cognizable offence or that the prosecution is barred by law or the high court is convinced that it is necessary to interfere to prevent abuse of the process of the court. in dealing with such cases, the high court has to bear in mind that judicial intervention at the threshold of the legal process initiated against a person accused of committing offence is highly detrimental to the larger public and societal interest. the people and the society have a legitimate expectation that those committing offences either against an individual or the society are expeditiously brought to trial and, if found guilty, adequately punished. therefore, while deciding a petition fled for quashing the fir or complaint or restraining the competent authority from investigating the allegations contained in the fir or complaint or for stalling the trial of the case, the high court should be extremely careful and circumspect. if the allegations contained in the fir or complaint discloses commission of some crime, then the high court must keep its hands off and allow the investigating agency to complete the investigation without any fetter and also refrain from passing order which may impede the trial. the high court should not go into the merits and demerits of the allegations simply because the petitioner alleges malus animus against the author of the fir or the complainant. the high court must also refrain from making imaginary journey in the realm of possible harassment which may be caused to the petitioner on account of investigation of the fir or complaint. such a course will result in miscarriage of justice and would encourage those accused of committing crimes to repeat the same. however, if the high court is satisfied that the complaint does not disclose commission of any offence or prosecution is barred by limitation or that the proceedings of criminal case would result in failure of justice, then it may exercise inherent power under section 482 cr.p.c.-- section 482: inherent powers abuse of process of court in the instant case after marriage the wife lived with husband for less than one and a half months (eight days in india and about thirty days in foreign country. the proceedings under sections 498-a, and 406 of i.p.c., and sections 4 and 6 of dowry prohibition act were initiated by wife against her husband and his parents in the year 2000. the high court quashed the said proceedings qua the parents of the husband on the ground that the magistrate could not have taken cognizance after three years . wife did not challenge the said order. therefore, that order will be deemed to have become final. therefore, at this belated stage, there could be no justification for continuation of the said proceedings against the husband. rather, it would amount to sheer harassment to the husband and the wife who are settled in u.s.a., if they are required to come to india for giving evidence in relation to an offence allegedly committed in 1998-99. it is also extremely doubtful whether the government of india will, after lapse of such a long time, give sanction in terms of section 188 of cr.p.c., therefore, in the peculiar facts the continuation of said proceedings against the husband would amount to abuse of the process of the court and thus liable to be set aside.-- section 482: inherent powers abuse of process of court in the instant case after marriage the wife lived with husband for less than one and a half months (eight days in india and about thirty days in foreign country0. the proceedings under sections 498-a,and 406 of i.p.c., and sections 4 and 6 of dowry prohibition act were initiated by wife against her husband and his parents in the year 2000. the high court quashed the said proceedings qua the parents of the husband on the ground that the magistrate could not have taken cognizance after three years . wife did not challenge the said order. therefore, that order will be deemed to have become final. therefore, at this belated stage, there could be no justification for continuation of the said proceedings against the husband. rather, it would amount to sheer harassment to the husband and the wife who are settled in u.s.a., if they are required to come to india for giving evidence in relation to an offence allegedly committed in 1998-99. it is also extremely doubtful whether the government of india will, after lapse of such a long time, give sanction in terms of section 188 of cr.p.c., therefore, in the peculiar facts the continuation of said proceedings against the husband would amount to abuse of the process of the court and thus liable to be set aside. -- section 482: inherent powers abuse of process of court in the instant case after marriage the wife lived with husband for less than one and a half months (eight days in india and about thirty days in foreign country0. the proceedings under sections 498-a,and 406 of i.p.c., and sections 4 and 6 of dowry prohibition act were initiated by wife against her husband and his parents in the year 2000. the high court quashed the said proceedings qua the parents of the husband on the ground that the magistrate could not have taken cognizance after three years . wife did not challenge the said order. therefore, that order will be deemed to have become final. therefore, at this belated stage, there could be no justification for continuation of the said proceedings against the husband. rather, it would amount to sheer harassment to the husband and the wife who are settled in u.s.a., if they are required to come to india for giving evidence in relation to an offence allegedly committed in 1998-99. it is also extremely doubtful whether the government of india will, after lapse of such a long time, give sanction in terms of section 188 of cr.p.c., therefore, in the peculiar facts the continuation of said proceedings against the husband would amount to abuse of the process of the court and thus liable to be set aside. - it was stated firstly, that the petitioner and his associates were members of an extremist party (cpi-ml), that on 16th august 1971, they armed themselves with lethal weapons like firearms, choppers and daggers with a view to promoting the cause of their party, that they raided the house of one durgapada rudra and murdered him and that the aforesaid incidents created a general sense of insecurity, as a result of which the residents of the locality could not follow their normal avocations for a considerable period.y.v. chandrachud, j.1. this is a petition under article 32 of the constitution for the issue of a writ of habeas corpus for the release of the petitioner.2. on 16th november, 1971 the district magistrate burdwan, west bengal, passed an order under the maintenance of internal security act, 26 of 1971, that the petitioner be detained 'with a view to preventing him from acting in any manner prejudicial to the maintenance of public order'. the petitioner was arrested on 17th december 1971 and on the same date the grounds of detention were served on him. the petitioner's case was placed before the advisory board on 7th january 1972, his representation was received by the government on 13th januarv 1972 and was rejected on 22nd february, 1972. 3. two grounds were furnished to the petitioner in justification of the order of detention. it was stated firstly, that the petitioner and his associates were members of an extremist party (cpi-ml), that on 16th august 1971, they armed themselves with lethal weapons like firearms, choppers and daggers with a view to promoting the cause of their party, that they raided the house of one durgapada rudra and murdered him and that the aforesaid incidents created a general sense of insecurity, as a result of which the residents of the locality could not follow their normal avocations for a considerable period. the second ground of detention is that on 22nd may, 1971 the petitioner and his associates raided the house of smt. kshetromoni choudhury and murdered one umapada mallick who was staring in that house. this incident is also stated to have created a general sense of insecurity amongst the residents of the locality. 4. learned counsel appearing in support of the petition contends that these two incidents are but simple cases of murder, germane to law and order, but which could have no impact on 'public order' as such. a short answer to this contention is that the murders are stated to have been committed by the petitioner and his associates with the definite object of promoting the cause of the party to which they belonged. these, therefore, are not stray or simple cases of murder as contended by the learned counsel. such incidents have serious repercussions not merely on law and order but on public order. we may mention that a similar contention was rejected by this court in writ petition no. 190 of 1972 decided on 31st july 1972. 5. it is then contended that the order of detention was passed during the pendency of a prosecution launched against the petitioner for the very same incidents in regard to which the order of detention has been passed and thereby the order is vitiated. one of the two incidents is a legend to have taken place on 16th august 1971 and immediately thereafter the petitioner was arrested. he was produced before the judicial magistrate, kalna on 10th september 1971 who enlarged him on bail on 6th october 1971. the petitioner was eventually discharged by the learned magistrate on 16th december 1971, but in the meanwhile, the order of detention was passed on 16th november 1971 and the petitioner was arrested in pursuance of that order on 17th december 1971. in regard to this contention it may be sufficient to draw attention to the decision of this court in writ petition no. 112 of 1972 decided on 17th august 1972. it was held therein that the mere circumstance that a detention order is passed during the pendency of a prosecution will not vitiate the order. in conceivable cases it may become necessary to pass an order of detention in anticipation of an order of discharge or acquittal. 6. the next challenge to the order of detention is that the delay of about 40 days caused in considering the representation made by the petitioner is fatal to the order. the petitioner's representation was received by the government on 13th january 1972 and was rejected on 22nd february 1972. apparently therefore there was delay in considering the representation but, the affidavit of the deputy secretary home (special) department, government of west bengal, shows that the representation could not be considered earlier because although the war with pakistan had ended, its after-effects were still looming large in west bengal and the officers of the state government had to take appropriate steps for the return of the refugees who had taken shelter in west bengal. the delay, thus, is satisfactorily explained. 7. the last contention advanced on behalf of the petitioner is that the maintenance of internal security act, 1971 having been passed for the maintenance of internal security, it was not open to the parliament to confer power on the appropriate government to pass orders of detention for the maintenance of public order, as 'internal security' cannot comprehend 'public order'. learned counsel draws support to his argument, partly from the long title to the act, which describes it as 'an act to provide for detention in certain cases for the purpose of maintenance of internal security and matters connected therewith'. we see no merit in this con-tention. in the first place, under entry 3 of list iii of the seventh schedule to the constitution, parliament has the power to legislate on 'preventive detention for reasons connected with the security of a state, the maintenance of public order, or the maintenance of supplies and services essential to the community'. section 3(1)(a)(ii) of the act confers power on the central government and the state government to pass orders of detention with a view to preventing any person from acting in any manner prejudicial to the security of the state or the maintenance of public order. this power cannot be controlled by anything stated in the long title of the act. besides, the long title describes the act as one for providing for detention for the purpose of maintenance of internal security and 'matters connected therewith'. 'internal security' is an expression of width sufficient to comprehend the concept of public order. internal disturbances can threaten the security of the state and such disturbances may assume grave proportions so as to have a direct impact on public order. 8. in the result the petition fails and is dismissed.