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Guchhan Vs. District Magistrate and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad High Court
Decided On
Judge
Reported in1983CriLJ1237
AppellantGuchhan
RespondentDistrict Magistrate and ors.
Cases ReferredSuahil Kumar v. State of U.P.
Excerpt:
.....'public order' and not merely to 'law and order. 5. the line of approach which takes the various grounds of detention cumulatively into consideration for arriving at a subjective satisfaction by the detaining authority was fully endorsed in dr. these are very well illustrated in the case of ashok kumar v. whenever there is an armed hold-up by gangsters in an exclusive residential area like greater kailash, kalkaji or lajpat nagar and persons are deprived of their belongings like a car, wrist watch or cash, or ladies relieved of their gold-chains or ornaments at the point of a knife or revolver, they become victims of organised crime. it is a matter of grave concern that in urbanised areas like cities and towns and particularly in metropolitan city of delhi the law and order situation..........based on the intrinsic quality of an act would not be a safe guide for determining whether the ground of detention is relevant for the purposes of public order or not. really speaking it is not the intrinsic quality of an act but rather its latent potentiality which would be decisive for determining the connection of a ground of detention with public order. it is this test of the potentiality of an act as distinguished from its immediate or intrinsic quality which has been emphasised by the supreme court in various decisions. this metamorphosis of an apparently isolated act into one of deeper import and graver consequences may be occasioned by a variety of factors with which it may be coupled. it may proceed, for example, from a change in the prevailing circumstances or state of.....
Judgment:

M.N. Shukla, J.

1. By means of this petition the petitioner has challenged his detention by an order dated 26-4-1982 passed by the District Magistrate. Rampur, under Section 3(2), National Security Act, 1980 (hereinafter called the Act). The order of detention was served on him on 27-4-1982 and he was arrested and the grounds of detention were supplied to him on the same date. The order purports to be based on the subjective satisfaction of the District Magistrate that it was necessary to detain the petitioner with a view to preventing him from acting in a manner prejudicial to public safety. This subjective satisfaction, according to the grounds of detention, was founded on three incidents and the confidential report dated 8-1-82 furnished by the Local Intelligence Unit of Rampur to the effect that the petitioner was a person notorious for his 'criminal activities, a history-sheeter of class A category, who was terrorising the public with the result that no one was prepared to speak anything against him, the people were afraid that if any one expressed anything against him, then revenge would follow and he would be slain. It was also stated in the report that all legal proceedings instituted against the petitioner proved abortive and therefore for the preservation of public order it was necessary to detain him. The first incident was alleged to have been committed on 25-4-1981 when the petitioner fired at one Salim in the market with a view to killing him and then fled away. A prosecution under Section 307 IPC was launched against him but witnesses on account of fear and panic refrained from identifying the petitioner and the police submitted a final report in the case. The second incident occurred on 28-6-1981 when the petitioner was found passing on the road near the police outpost Gujar Tola at 11.15 in the night and the Sub-Inspector of Police had searched him and recovered one unlicensed pistol and four live cartridges from him. A case under Section 25, Arms Act, was still pending. The third incident took place on 13-12-1981 when the petitioner along with his brother and other associates with a 12 bore gun in his hand came and sat down on a public road and created such panic that the passers-by fled in confusion and the inhabitants of the locality closed the doors of their houses and all the normal activity was paralysed. On receiving the information the police force reached the spot but the petitioner disappeared and a first information report to that effect was lodged. On the top of these alarming incidents came the report of 'the Local Intelligence Unit dt/- 8-1-1982 to which we have already adverted. It was on this material that the subjective satisfaction of the District Magistrate was recorded.

2. The only point which has been canvassed with great vehemence by Sri Murli Dhar, learned Counsel for the petitioner is that ground 2 relating to the incident D/- 28-6-1981 when an unlicenc-ed pistol and four live cartridges are said to have been recovered from the person of the detenu was wholly irrelevant for the purposes of maintenance of public order and if one of the several grounds or detention such as ground 2 in the instant case was demonstrated to be not germane to the object of detention, the impugned order must be quashed and the petitioner was entitled to be set free. The border line between law and order on the one hand and public order on the other hand is thin and often imperceptible. The areas covered by them are rather overlapping and sometimes the distinction may elude our grasp. The investigation of an incident or fact in an isolated way concentrating only on its apparent attributes may prevent us from appreciating its impact on public order. The very concept of public order postulates that a seemingly circumscribed action may in conjunction with other activities attributed to a person may acquire a public dimension and may be construed as fraught with serious consequences spread over a large canvass. Therefore, merely an objective test based on the intrinsic quality of an act would not be a safe guide for determining whether the ground of detention is relevant for the purposes of public order or not. Really speaking it is not the intrinsic quality of an act but rather its latent potentiality which would be decisive for determining the connection of a ground of detention with public order. It is this test of the potentiality of an act as distinguished from its immediate or intrinsic quality which has been emphasised by the Supreme Court in various decisions. This metamorphosis of an apparently isolated act into one of deeper import and graver consequences may be occasioned by a variety of factors with which it may be coupled. It may proceed, for example, from a change in the prevailing circumstances or state of society, from the personality of the individual who is the author of the act, from the time at which the action is committed and so on. It would be wrong to dogmatise that any particular factor alone can convert a law and order problem in!o that of a threat to public order. The potentiality of an act which is not to be confounded with its intrinsic feature is not a self-contained phenomena: it is manifested and triggered off only in juxtaposition with other acts and incidents.

3. Sri Murli Dhar, learned Counsel for the petitioner takes exception to this approach of examining the potentiality of an act in the light of the surrounding circumstances, posterior and anterior, and that, we think is the basic fallacy in his argument. An episode per se may not be an example of public disorder but it may along with other circumstances cumulatively amount to public disorder. The alchemy which can transform intermittent acts into public disorder consists of proximity of time, similarity in the pattern of such incidents their nexus with the maintenance of public order, the prevailing social atmosphere, the nature of the crime committed and the history of antecedents of the author of such crimes. Such interpretation, so argued the learned Counsel for the petitioner, is not warranted in law. He submitted that we cannot consider the events conjunctively to determine their legal effect; the interpretation must be disjunctive. We are unable to accept this contention. The same facts may in one setting may amount to questions of law and order 'simpliciter' while in another setting they may have a direct bearing on the maintenance, of public order. Those facts may acquire a different complexion When placed in a certain perspective and background. As observed in Wasi Uddin Ahmed v. District Magistrate, Aligarh U.P. : 1981CriLJ1825 :

The acts similar in nature but committed in different contexts and circumstances, might cause different reactions. In one case, it might affect specific individuals and, therefore, touches the problem of law and order only, while in another it might affect public order.

In Arun Ghosh v. State of West Bengal : 1970CriLJ1136 the concepts of law and order and public order were examined and Hidayatullah, C, J. speaking for the Court observed (at p. 1137 of Cri LJ):

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.

The test applied in that case was whether the act complained of is such that it leads to disturbance of the current life or the even tempo of the life of the community as a whole or even of a specified locality. It was found as a fact in Wasi Uddin Ahmed's case (supra) that the series of acts attributed to the detenu completely paralysed the entire working of the University and were calculated to disturb public peace and tranquillity. That finding was based on the awareness of the condition prevailing at that time in the town of Aligarh. It was observed (para 23):

There can be no doubt that creating terror or disorder based on ideological differences in a town like Aligarh where the Muslim population predominates which may lead to communal violence, pertains to 'public order' and not merely to 'law and order.' Sometimes even a single incident may be indicative of the criminal propensity of an individual and may reflect on his future activities so as to necessitate his detention. Thus, in the case of Smt. Hemalala Kantilal Shah v. State of Maharashtra : 1982CriLJ150 the detenu was caught on a single occasion of smuggling goods and bringing them without payment of duties to the Custom authorities. It was contended for the petitioner in that case that in the absence of proof that her activities were part of an organised crime involving conspiracy and continued activities the law did not permit or envisage detention for an isolated act of contravention of the Customs Law. In the counter-affidaviit filed on behalf of the Customs authorities it was stated that the single incident of smuggling by the detenu which was detected on 8/9-1-1981 was suggestive of a repetitive tendency on the part of the detenu to act likewise in future, that the order of detention was essentially a precautionary measure and was founded on a reasonable prognosis of the future behaviour of a person based on his past conduct judged in the light of the surrounding circumstances. It was further averred that such past conduct may consist of one single act Or of a series of acts. The plea set out in the counter-affidavit found favour with the Court and the following dictum was enunciated in para 12 of. the Report:The past conduct or antecedent history of a person can appropriately be taken into account in making a detention order. It is indeed largely from prior events showing tendencies' or inclinations of a person that an inference can be drawn whether he is likely in future to act in a manner prejudicial to the maintenance of supplies and services essential to the community or his act of violation of foreign exchange regulations and his smuggling activities are likely 'to have deleterious effect on the national economy.

4. Thus, the two major factors which can, demonstrate the potentiality of a seemingly limited act can be either a particular situation obtaining at a particular time and place or the past history and conduct of the offender. Obviously such assumption would be rendered impossible unless the various instances attributed to the detenu are considered conjunctively. There is no law or jurisprudence which in such cases -- prohibits such conjunctive appreciation of facts and insists on a disjunctive consideration, It was declared as long ago as 1952 in the case of Ujagar Singh v. State of Punjab : [1952]1SCR756 that the past conduct or antecedent history of a person can be taken into account when making a detention order, and, as a matter of fact, it is largely from prior events showing the tendencies or inclinations of the man that an inference can be drawn whether he is likely even in the future to act in a manner prejudicial to the maintenance of public order. The rule of conjunctive interpretation was indirectly approved even in the case of Samaresh Chandra v. District Magistrate, Burdwan : 1973CriLJ464 . The infirmity assailed in the order of detention was that both the grounds of detention suffered from the vice of vagueness but the argument was repelled and it was held that the two grounds had to be read together and ground No. 2 must be understood in the light of the reference made in ground No. 1. Again in the case of Babul Mitra v. State of Bengal : 1974CriLJ395 the recital in the two grounds of detention furnished to the detenu was that he had been acting in a manner prejudicial to public order as evidenced by the particulars taken 'separately and collectively.' On the facts of that case the Court came to the conclusion that not only each one of the grounds was separately connected with public order but further that:

The two grounds, read together, disclose the petitioner's concerted scheme of making public institutions and public servants the target of his violence. This scheme sheds light on the potentiality of the second ground. The activity specified in the second ground is bound to affect public order.

5. The line of approach which takes the various grounds of detention cumulatively into consideration for arriving at a subjective satisfaction by the detaining authority was fully endorsed in Dr. Ramakrishna Rawat v. District Magistrate, Jabalpur : 1975CriLJ46 . In that case there were as many as ten grounds of detention and ground No. 10 was:

More recently, you have taken very active part in the agitation of the Madhya Pradesh Madhyamik Shikshak Sangh, although you have no direct connection with this body or their demands. On the 19 and 20-1-1974, you and your associates declared that the students would fully support the agitation of the teachers and would also organise a 'Band' in Jabalpur on the 23rd January.

It was alleged that the matter mentioned in ground No. 10 was irrelevant and not germane to public order. The organizing of a Band or a hunger strike simpliciter, it was argued, was an innocuous act and did not by itself have any direct connection with the maintenance of public order, It was further stressed that it was nowhere mentioned in that paragraph that the petitioner himself committed any violent act or indulged in the looting. These were the acts of anti-social elements with whom the petitioner according to the counsel had nothing in common. The petitioner had admittedly no connection with the Madhya Pradesh Madhyamic Shikshak Sangh and he was not responsible for anything done by the said Sangh. For these reasons it was impressed upon the Bench that at least one ground being totally irrelevant the order of detention was vitiated. This contention was rejected and it was held that the contents of ground No. 10 were to be read as a whole and as a part of the series of incidents enumerated in the preceding paras 7, 8 and 9. The petitioner had been painted in all those incidents as the prime mover of the gear which resulted in disturbances accompained by violence, looting and mischief on a wide scale. On the basis of these activities the detaining authority could reasonably gauge the tendency of the petitioner to act in a manner prejudicial to the maintenance of public order. The practice of taking the various grounds of detention collectively into consideration for the purpose of testing the legality of the detention order was fully approved in another recent pronouncement of the Supreme Court in Smt. S, Gayathri v. Commr. of Police, Madras : AIR1981SC1672 . While attacking the validity of the detention order the learned Counsel for the petitioner had emphasised the infirmity of ground No. 3 but the Supreme Court held that the third ground of detention had to be necessarily read in conjunction with the earlier two grounds and so read it only meant that the detenu had been continuing the type of unlawful activities mentioned in grounds Nos. 1 and 2 and that the victims were not willing to come forward to lodge complaints for fear of harm to themselves. The Bench emphasised that in the circumstances of the case it was not possible to isolate the so-called third ground of detention from the rest of the grounds. It was not possible to style it as a ground of detention all by itself. From the observations made in the various decisions referred to above it is fully established that the validity of an order of detention based on the ground of maintenance of public order must be adjudged on the touchstone of the scheme or design which can be deciphered with reasonableness from a series of acts committed by the detenu.

6. As we have already pointed out, the time and place of the incidents, the large incidence of a particular species of crime and the prevailing general state of social security vitally enter into determination of the relevancy of a ground in connection with public order. These are very well illustrated in the case of Ashok Kumar v. Delhi Administration : 1982CriLJ1191 . In that case the detenu was involved in three cases of gold chain snatching, one of wrist watch robbery between the period November 19, 1979 and 20th July, 1981 and all these incidents were clubbed together for the purposes of coming to the conclusion that the particular acts enumerated in the grounds of detention showed thai the activities of the detenu covered a wide field and fell within the purview of public order. Sen J. speaking for the Court observed:

What essentially is a problem relating to law and order may due to sudden sporadic and intermittent acts of physical violence on innocent victims in the metropolitan city of Delhi result in serious public disorder. It is the length, magnitude and intensity of the terror wave unleashed by a particular act of violence creating, disorder that distinguishes it as an act affecting public order from that concerning law and order. Some offences primarily injure specific individuals and only secondarily the public interest, while others directly injure the public interest and affect individuals only remotely. The question is of the survival of the society and the problem is the method of control. Whenever there is an armed hold-up by gangsters in an exclusive residential area like Greater Kailash, Kalkaji or Lajpat Nagar and persons are deprived of their belongings like a car, wrist watch or cash, or ladies relieved of their gold-chains or ornaments at the point of a knife or revolver, they become victims of organised crime.

Evidently the Court was greatly influenced by the fact that the deteriorating law and order situation in the City of Delhi had reached alarming proportion and this had brought a trend of irequent recurrence of particular types of crime. Noticing this situation the Bench remarked:

It is a matter of grave concern that in urbanised areas like cities and towns and particularly in metropolitan city of Delhi the law and order situation is worsening every day and the use of, knives and firearms has given rise to a new violence.

7. Applying the above principles to the facts of the instant case we are fully satisfied that ground No. 2 relating to the prosecution of the petitioner under Section 25, Arms Act, falls squarely within the mischief of a threat to public order. It must necessarily be read not divorced, from the other grounds of detention furnished to the petitioner. It was also contended that the facts on the basis of which the case under Section 25 Arms Act, was commenced against the petitioner could not necessarily be deemed to pose threat to public order as the allegation was not that the petitioner displayed a loaded pistol or a lethal weapon in the open street thereby creating a scare but only that he was carrying an. unlicenced pistol and four live cartridges which were on search recovered from inside the pocket of his pant. Once the principle of conjunctive interpretation is adopted in examining the various grounds of detention this argument loses substance. A presumption can be safely drawn against the detenu against whom any other criminal activities had been mentioned as ground of detention that his being in possession of an unlicensed pistol was fraught with danger to the society. The local Intelligence Unit also submitted a report that he had created such a panic by his action that nobody was prepared to say anything against him lest he may be done to death. In this connection one cannot be oblivious of the fact that the law and order situation in the country is now perhaps at its lowest ebb and if a bad character is repeatedly found committing acts of violence and vandalism within a reasonable proximity of time and creating an atmoshphere of terror, such acts have a direct connection with the necessity of detention in order to maintain public order. The other grounds levelled against the petitioner showed that he had been on several occasions using fire-arms thereby creating a panic among people and looked in that background surely the recovery of an unlicensed pistol and live cartridges from him is a ground which is germane to the necessity of detaining him in order to prevent disruption of public order. In a particular phase of time like the. one at present certain types of criminal incidents have become much too frequent such as (throwing of bombs, snatching of ornaments, hold up etc. and this is a pertinent factor which shall have to be taken into account when considering the potentiality of any criminal action attributed to a detenu. In these chaotic conditions it would be unrealistic to hold that no threat to public order can be caused unless a person openly displays lethal weapons or carries them in a manner which makes them visible to the naked eye. In the view which we are taking we are fortified by the earlier opinion expressed by this Court in Criminal Misc. Habeas Corpus Petition No. 14484 of 1981 Zahid Hussain v. State of U.P. decided on 5-3-1981 wherein the grounds of detention assailed on behalf of the detenu were that he was going on the road with a Jhola which contained two hand grenades i. e. bombs and on arrest these articles were recovered inside the Jhola. This circumstance of moving about with bombs in public places coupled with committing other offences like robbery etc. was considered prejudicial to maintenance of public order. In another case i. e. Misc. Habeas Corpus Petition No. 15165 of 1981 Suahil Kumar v. State of U.P. decided on 12-4-1982 : reported in 1982 Cri LJ 1952 (All) the argument regarding the alleged vagueness of one of the grounds which merely stated that the detenu was a notorious and dangerous person and a man of criminal tendencies and he had formed a gang of such persons and that he and his accomplices kept unlicensed pistols, knives, bombs, revolvers etc. and used them in committing unlawful acts was repelled on the ground that it had to be read along with other grounds of detention and on an overall consideration of the grounds a case of threat to public order was clearly proved and it necessitated detention of the petitioner.

In the result this habeas corpus petition fails and is dismissed.


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