TMI Blog1987 (11) TMI 370X X X X Extracts X X X X X X X X Extracts X X X X ..... r of detention, renders the order of detention invalid and illegal. - Criminal Appeal No. 531 of 1986 - - - Dated:- 6-11-1987 - B.C. RAY AND A. P. SEN, JJ. For the petitioner Dal Veer Bhandari For the Respondent Shakeel Ahmed Syed JUDGMENT This appeal by special leave is against the judgment and order passed by the High Court of Judicature at Allahabad in writ petition Nos. 6823 of 1985 and 6522 of 1985. The facts giving rise to this appeal are as follows:- The respondent Kamal Kishore Saini was detained under Section3(2) of National Security Act, 1980 by an order served on him on 28th November, 1985 on three grounds which are stated hereunder:- (I) That on 4th June, 1985 one Jeet Narain Awasthi, resident of Indira Nagar, Police Station Ghazipur, Lucknow lodged a First Information Report at Police Station Ghazipur that on the night of 4/5th June, 1985 his younger brother Vishnu Narain Awasthi at about 20 hours had left to sleep in house No. 2040 of Indira Nagar, Lucknow occupied by Sri R.S. Raghuvanshi since Sri Raghuvanshi had gone out to Jaunpur, his home town and had entrusted custody of his house to the said Vishnu Narain Awasthi. At 11.00 in the night so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accompanied by other policemen on duty were bringing back accused after their production in the court of the Chief Judicial Magistrate, Lucknow. Both the detenus (petitioners) proceeded towards an accused, Vijay Pratap Singh, whereupon Vijay Pratap Singh, in panic tried to retract and turned back when Rajiv Hazra is said to have given a call that it was appropriate time to finish the enemy who was before them as a result of which both the detenus took out their pistols and Kamal Kishore Saini, the detenu, with the intention of killing Vijay Pratap Singh fired at him which resulted in injuries to him and since this incident thither and an atmosphere of terror spread over the area. On the basis of this F.I.R., Crime No. 450 of 1985 under Section 307/34 of the Indian Penal Code was registered at the Qaiserbagh Police Station on 16th August, 1985 and after investigation, the charge-sheet has been submitted which is under consideration. The other detenu Rajiv Hazra was served with a detention order on identical rounds by the District Magistrate, Lucknow. The said order of detention was challenged in two writ petitions filed before the High Court of Allahabad under Article 226 of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rwarded to the Magistrate stating that some unknown persons had fired at Vijay Pratap Singh and Kamal Kishore Saini and other persons names had been implicated falsely. It has also been contended therein that in the bail applications moved on behalf of the petitioners before the Sessions Judge, Lucknow, this fact was also mentioned. This bail application was moved much before the order of detention which was passed on 28th November, 1985. These relevant materials were not produced before the detaining authority for his consideration before the passing of the order of detention. As regards the first two grounds Nos. 1 and 2, it has been contended further that they pertain to the maintenance of law and order and not to public order. After hearing the learned counsel for the parties the High Court of Allahabad held that so far as ground No. 1 was concerned the respective detenus were denied a fair and reasonable opportunity to represent against the order of detention and the detention order thus stood vitiated. It was also held that the incidents referred to in ground Nos. I and 2 do not affect public order inasmuch as the reach and effect and the potentiality of the said incidents ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It is undisputed that the charge-sheet was subsequently submitted in the Court and the respondents were furnished with the copies of the statements recorded under Section 161 of Cr. P.C. long after the passing of the order of detention communicating the grounds of detention. Similarly, with regard to ground No. 3, the application of the co-accused as well as the statement made in the bail application filed on behalf of the detenus alleging that they had been falsely implicated in the same case and the police report thereon, were not produced before the detaining authority before passing of the detention order. The High Court, therefore, was justified in holding that the assertion made in the return that even if the material had been placed before the detaining authority, he would not have changed the subjective satisfaction as this has never been accepted as a correct preposition of law. It is incumbent to place all the vital materials before the detaining authority to enable him to come to a subjective satisfaction as to the passing of the order of detention as mandatorily required under the Act. This finding of the High Court is quite in accordance with the decision of this Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law and order and to subvert the public order. An act by itself is not determinant of its own gravity. In its quality it may not differ from another but in its potentiality it may be very different." In the case of Pushkar Mukherjee v. State of West Bengal, AIR 1970 (SC) 852 it has been observed by this Court:- "The contravention of any law always affects order but before it can be said to affect public order, it must affect the community or the public at large. In this connection we must draw a line of demarcation between serious and aggravated forms of disorder which directly affect the community or injure the public interest and the relatively minor breaches of peace of a purely local significance which primarily injure specific individuals and only in a secondary sense public interest. A mere disturbance of law and order leading to disorder is thus not necessarily sufficient for action under the Preventive Detention Act but a disturbance which will affect public order comes within the scope of the Act. A District Magistrate is therefore entitled to take action under Section 3(1) of the Act to prevent subversion of public order but not in aid of maintenance of law and ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n, Ram Kumar and son-in-law, Nand Kishore to see an accused in the District Jail. They could not meet the accused. Ram Kumar and Nand Kishore proceeded towards home in one rickshaw while the complainant was coming by another rickshaw. When they reached a little distance from the Jail near the residence of the Jail Superintendent at about 1.45 p.m. the detenus Rajiv Hazra and Kamal Kishore Saini along with another one Anandi Sukhla said to be the accomplice of one Ram Gopal, come on a scooter, stopped it and challenge Ram Kumar and Nand Kishore and the complainant. They fired at them. The complainant, Ram Kumar and Nand Kishore ran helter and skelter. The accused chased Ram Kumar and fired twice or thrice and in consequence of it Ram Kumar fell dead on the spot and Nand Kishore and the rickshaw-puller sustained injuries. On these basis crime case No. 222 of 1985 under Section 302/307 I.P.C. was registered on 13th June, 1985. This firing was made in a public street during the day time. This incident does affect public order as its reach and impact is to disturb public tranquility and it affects the even tempo of the life of the people in the locality where the incident is alleged to ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
