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Lacchi Alias Laxminarayan Vs. the State of M.P. and anr. - Court Judgment

LegalCrystal Citation
SubjectConstitution;Criminal
CourtMadhya Pradesh High Court
Decided On
Case NumberCase No. 123 of 1975
Judge
Reported inAIR1976MP11
ActsMaintenance of Internal Security Act, 1971 - Sections 3 and 3(1); Code of Criminal Procedure (CrPC)
AppellantLacchi Alias Laxminarayan
RespondentThe State of M.P. and anr.
Appellant AdvocateS.K. Dubey and ;A.K. Barua, Advs.
Respondent AdvocateR.S. Bajpai, Adv.
DispositionPetition dismissed
Cases ReferredH. Saha v. State of W.
Excerpt:
- - their lordships, however, added that where a court has held a criminal case to be false, the detaining authority with that judicial pronouncement before him may pot reasonably claim to be satisfied about the prospective prejudicial activities based on what a court has found to be baseless. we do not, therefore, find any good reason to interfere with the order of detention......referred to as 'the act') vide an-nexnre p-1. on 29-10-74, the petitioner was furnished with the grounds of detention vide annexure p-2, he submitted a representation against the order of detention to the government. thereupon, the case of the petitioner was referred to the advisory board. the board approved the order of detention and, after considering the report of the advisory board, the state government confirmed the order of detention. so far, the facts are not in dispute.3. the petitioner has challenged the order of detention on a number of grounds in this petition and has prayed that the order be quashed and the petitioner be set at liberty.4. in the return filed on behalf of the state it is submitted that tbe order of detention is definitely valid and justified and the petition.....
Judgment:

Raina, J.

1. This is a petition for a writ of habeas corpus under Article 226 of the Constitution.

2. The petitioner carries on the. business of embroidery at Naya Sarafa, Lashkar, Gwalior. On 29-10-1974, the District Magistrate, Gwalior, passed an order of detention against tbe petitioner under Sub-clause (ii) of Clause (a) of Sub-section (1) of Section 3 of the Maintenance of Internal Security Act, 1971 (hereinafter referred to as 'the Act') vide An-nexnre P-1. On 29-10-74, the petitioner was furnished with the grounds of detention vide Annexure P-2, He submitted a representation against the order of detention to the Government. Thereupon, the case of the petitioner was referred to the Advisory Board. The Board approved the order of detention and, after considering the report of the Advisory Board, the State Government confirmed the order of detention. So far, the facts are not in dispute.

3. The petitioner has challenged the order of detention on a number of grounds in this petition and has prayed that the order be quashed and the petitioner be set at liberty.

4. In the return filed on behalf of the State it is submitted that tbe order of detention is definitely valid and justified and the petition is liable to be dismissed.

5. Shri S. K, Dube, learned counsel for the petitioner, has challenged the detention on a number of grounds. The first point urged by him was that the alleged activities of the petitioner referred to in the grounds of detention may be considered as breaches of law and order, but they cannot be considered as prejudicial to the maintenance of public order within the meaning of Sub-clause (ii) of Clause (a) of Sub-section (1) of Section 3 of the Act. There can be no doubt that there is a clear distinction between a mere contravention of law and the disturbance of public order. While dealing with a case of detention under Rule 31 (a) (b) of the Defence of India Rules, 1962 in Ram Manohar v. State of Bihar AIR 1966 SC 740, their Lordships observed in paragraph 5.1 as under:

'The contravention of law always affects order but before it can be said to affect public order, it must affect the- community or the public at large. A mere disturbance of law and order loading to disorder is thus not necessarily sufficient for action under the Defence of India Act but disturbances, which subvert the public order, are.'

6. In Sudhir Kumar Saha v. Commr. of Police Calcutta (AIR 1970 SC 814), their Lordships, while dealing with a case of detention under the Preventive Detention Act, 1950, hold that maintenance of 'law and order' is a conception much wider than the conception of maintenance of 'public order'. Every act that affects 'law and order' need not affect 'public order'. 'Public order' is the even tempo of the life of the community taking the country as a whole or even a specified locality; and disturbance of public order is to be distinguished from acts directed against individuals which do not disturb the society to the extent of causing a general disturbance of public tranquillity.

7. In Arun Ghosh v. State of West Bengal AIR 1970 SC 1228 their Lordships, while dealing with a case of detention under the Act, held that the question whether a man has only committed a breach of law and order or has acted in a manner likely to cau.se a disturbance of the public order is a question of degree and the extent of the reach of the act upon the society; and an individual act can be a ground for detention only if it leads to disturbance of the current of life of the community so as to amount to a disturbance of the public order and not if it affects merely an individual leaving the tranquillity of the society undisturbed. This decision was followed by their Lordships in Babul Mitra v. State of West Bengal (ATR 1973 SC 1.97).

8. In Milan Banik v. The State of West Bengal (AIR 1974 SC 1214) their Lordships observed as under in paragraph 3, while dealing with the question of public order:

'The test for determining whether a particular activity affects law and order or whether it impinges upon public order is: Does it interfere with the current of life of the community so as to amount to disturbance of public order or does it affect merely an individual leaving the tranquility of the society undisturbed, in which case it would be an activity affecting law and order.'

Similar view was expressed by their Lordships in Ram Ranjan v. State of West Bengal AIR 1975 SC 609. It was held in that case that it is the potentiality of the act to disturb the even tempo of the life of the community which makes it prejudicial to the maintenance of public order. If the contravention in its effect is confined to a few individuals directly involved as distinguished from a wide spectrum of the public, it would raise a problem of law and order only.

9. From the aforesaid decisions it would appear that breaches of law and order are to be distinguished from disturbances of public order; and the distinction between the two is to be made on the basis of the following principles:

(1) A contravention of law always affects order, but before it can be said to affect public order, it must affect the community or public at large.

(2) Public order is the even tempo of the life of the community taking the country as a whole or even a specified locality.

(3) It is the degree of disturbance and its effect upon the life of the community in general or in a particular locality which determines whether the disturbance amounts only to a breach of law and order or a disturbance of public order.

(4) It is the potentiality of the act to disturb the even tempo of the life of the community which makes it prejudicial to the maintenance of public order.

(5) If the contravention in its effect is confined only to a few individuals directly involved as distinguished from a wide spectrum of the public, it would raise a problem of law and order only.

10. If we carefully examine the activities of the petitioner as alleged in the grounds of detention in the light of the principles set out above, it would be clear that they pertain to disturbance of public order and not merely to a contravention of law as affecting law and order,

11. Ground No. 1 pertains to an incident which is said to have taken place on 28-1-1969. It is stated that the petitioner, along with the members of the gang, obstructed members of the police force in the discharge of their duties and assaulted them causing injuries to them as a result of which a feeling of fear and insecurity was caused in the minds of the people in the locality.

12. Ground No. 2 relates to another incident which is said to have taken place on 14-6-1974. It is stated that the petitioner and his associates who were armed with lathis and knives, assaulted Laxmandas Sindhi and his brother Dhanraj and when some people of the locality tried to rescue them, the petitioner threatened to kill them with the result that a sense of insecurity and panic was created among the people of the locality.

13. Ground No. 3 relates to an incident which took place on 9-9-1971 at 9.45 p. m. It is stated that the petitioner and his associates entered the Sangita restaurant and assaulted Ramprakash, owner of the restaurant, because he had made a report against the petitioner. The window-panes and oilier articles were also damaged in this incident which created a sense or fear and insecurity amongst the people in the locality.

14. Ground No. 4 relates to an incident dated 15-5-1973. It is stated that at 11,00 p. m. on that date the petitioner and his associates took the law into their hands and drove away a tonga of Samad Khan. When Samad Khan and some others followed the petitioner and his associates and prevented the petitioner from taking away the tonga, the petitioner and his associates abused and assaulted them. It is stated, that this wanton act of the petitioner created fear and insecurity among the people of the locality.

15. Ground No. 5 relates to an incident dated 18-3-1974; it is stated that on that date the petitioner along with his associates kidnapped Mahendra Kumar in an Ambassador Car and took him towards Morena. Mahendra Kumar was ultimately rescued by the police but this act caused a sensation and created a sense of fear in the locality.

16. Ground No. 6 relates to an incident dated 9-2-1974. It is stated that on that date the petitioner and his associates armed with lathis and hockey sticks surrounded Sub-hash driver of a tempo. He was dragged out and assaulted and the petitioner gave threats that people of Morar will be taken to task and assaulted. This conduct of the petitioner created fear and a sense of insecurity in the minds of the people of Morar.

17. Ground No. 7 relates to an incident dated 25-8-1974. It is stated that on that date the petitioner and his associates visited Regal Lodge at about 10.30 p. m, and consumed liquor there. When they were asked to pay the bill of Rs. 172/- the petitioner and his associates started robbing indiscriminately the customers present in the lodge. Amar-singh Waiter who tried to intervene was stabbed and Kishanchand Proprietor of the Hotel was also attacked and the window panes and the articles in the hotel were damaged. As a result of this incident, there was panic among the customers and members of the locality.

18. From the nature of the incidents as given in the aforesaid grounds it is. clear that they affected the community as a whole and not merely individuals. As such they relate to disturbance of public order and not merely to breaches of law and order.

19. The next point urged by Shri S. K. Dube, learned counsel for the petitioner, was that most of the grounds could not be taken into consideration because they relate to incidents which took place long before the order of detention was passed. The question as to how long after the offending criminal activity of the detenu an order of detention can be passed has been considered by the Supreme Court in a number of cases. In Gulam Hussain v. The Police Commissioner Calcutta (AIR 1974 SC 1336), their Lordships, while dealing with the question of delay, made the following pertinent observations in paragraph 5:

'It is true that there must be a live Jink between the grounds of criminal activity alleged by the detaining authority and the purpose of detention, namely, inhibition of prejudicial activity of the species specified in the statute. This credible chain is snapped if (here is too long and unexplained an interval between the offending acts and the order of detention.'

20. In Gora v. State of Bengal (AIR 1975 SC 473) their Lordships laid down that the test of proximity is not a rigid or mechanical test to be blindly applied by merely counting the number of months between the offending acts and the order of detention. It is a subsidiary test evolved by the Court for the purpose of determining the main question whether the past activities of the detenu are such that from them a reasonable prognosis can be made as to the future conduct of the detenu.

21. It is, therefore, clear that the-question of delay is material only for the purpose of determining whether the alleged criminal activities of the detenu can be considered as a reasonable basis for the subjective satisfaction of the detaining authority as regards necessity of detention. The satisfaction must be based on a reasonable prognosis of the future behaviour of the detenu based on his past conduct. The object of passing a detention order is mainly to prevent the detenu from indulging in criminal activities of a particular nature. The Court has to see whether the detaining authority could form a reasonable apprehension regarding the participation of the detenu in such activities in future as judged from his past conduct,

22. In the instant case the order of detention was passed op 29th October 1974; while ground No. 7 pertains to certain criminal acts committed by the petitioner on 25-8-1974, The earlier criminal acts referred to in the other grounds merely form a chain of events indicating the criminal tendencies of tho petitioner which confirm the apprehension, in regard to his future conduct which arose from the incident of 25-S-1974. Thus, all the grounds appear to be germane and none of them can be said to have no nexus with the question relating to the expectation of future unlawful activities of the petitioner.

23. The next point urged by Shri Dube was that some of the grounds are nonexistent, inasmuch as the statements contained in them are false and the incidents referred to thereunder never took place. It is necessary to examine this contention carefully. It may be pointed out, at the outset, that it is not necessary for this Court to embark on an enquiry into the truth or otherwise of the allegations forming the subject-matter of the grounds. All that has to be seen is that the action of the detaining authority is bona fide and that the alleged incidents are not purely imaginary. We may here quote the following observations of their Lordships of the Supreme Court in Ramakrishna v. District Magistrate, Jabalpur (AIR 1975 SC 90).

'The contents of paragraph 10 are to be read as a whole and as a part of the series of incidents enumerated in the preceding paragraphs 7, 8 and 9. The truth or otherwise of what is mentioned in those paragraphs cannot be tested objectively by judicial standards. We have to accept the correctness of the incidents and the facts stated therein.'

24. It was urged by Shri Dube that no such incident occurred on 28-1-1969 as is referred to in ground no. 1; but from ground No. 4 of the petition it would appear that the petitioner merely pleaded that the ground was vague, It has not been alleged that it was non-existent and, therefore, it was not necessary for the State to place necessary material before this Court which formed the basis of the ground. It is, no doubt, true that no prosecution seems to have been launched in respect of this incident; but this may be because the incident was not of a very serious nature. Moreover, the order of detention is not based on this ground alone. It is referred to mainly to indicate the antecedents of the petitioner.

25. As regards ground No. 2, it has, no doubt, been alleged that it is a false ground; and in support of this contention an affidavit of the complainant Laxman Das (Annexure P. 5) has been filed. Shri Bajpai, learned Government Advocate, however, produced before us the confidential file of the District Magistrate pertaining to this case. It appears therefrom that before passing the order of detention the District Magistrate had examined as many as twelve witnesses, including Laxman Das, who fully supported the incident as narrated in ground No. 2. Shri Bajpai urged that the people of the area, being afraid of the petitioner, his friends and relatives seem to have secured the affidavit of Laxman Das under threat or coercion. This contention does not appear to be without force in the circumstances of the case.

26. As regards ground No. 4 it is stated that the incident narrated therein is false and an affidavit of Samman Khan (Annexure P-6) has been filed in support of this contention, From the file of the District Magistrate it appears that Samman Khan was examined by the District Magistrate and he had fully supported the incident as narrated in ground No. 4.

27. It has been urged that the incident referred to in ground No. 6 is also false and imaginary; and in support of this contention an affidavit of complainant Subhash (Annexure P-7) has been filed. We, however, find that Subhash was examined by the District Magistrate and he fully supported the incident as narrated in the said grounds.

28. It is not difficult for a person, who is a bully and of a desparate character, to obtain affidavits of his choice from persons who are afraid of him. It appears that police reports were lodged in respect of these incidents and criminal prosecutions were started; but the proceedings terminated as the complainants compounded the offences or settled the matters amicably for fear of the petitioner.

29. Another point urged by Shri Dube was that since the petitioner was acquitted in the criminal case instituted in connection with the incident referred to in ground No. 5, it could not be taken into consideration by the detaining authority: vide judgment of acquittal (Anuexure F-3). In Mohammad Salim Khan v. C. C. Bose, Deputy Secretary to Government of West Bengal (AIR 1972 SC 1670) it was held that the mere fact that the petitioner was discharged in a criminal case relating to certain incidents does not mean that no valid order of detention could be passed against him in connection with those very incidents, or that such an order can be characterised as mala fide. A similar view was expressed in Mohammad Subrati alias Mohammad Karim v. State of West Bengal (AIR 1973 SC 207). It is, therefore, clear that the mere fact that the prosecution ended in acquittal is no bar to action being taken by the detaining authority for the alleged criminal activities of the detenu. In AIR 1974 SC 1336 (supra) their Lordships held that the basic imperative of proof beyond reasonable doubt does not apply to the subjective satisfaction component of imprisonment for reasons of internal security. Their Lordships, however, added that where a Court has held a criminal case to be false, the detaining authority with that judicial pronouncement before him may pot reasonably claim to be satisfied about the prospective prejudicial activities based on what a Court has found to be baseless. In the instant case, it would appear from the judgment of the Additional Sessions Judge, dated 16-12-1974, that the petitioner was acquitted on being given the benefit of doubt: vide paragraphs 29 and 30 of the judgment (Annexure P-3).

30. Another point urged by Shri Dube was that the grounds are vague. We are, however, unable to accept this contention because the date, time and place of the alleged incidents are mentioned in the grounds. In AIR 1974 SC 1214 it was held that where the date, time and place of the incidents were specified and the particulars regarding the nature of the activities of the detenu were mentioned in the grounds, the grounds cannot be said to be suffering from the infirmity of vagueness.

31. Learned counsel for the petitioner also urged that the grounds were vague, inasmuch as the names of the associates of the petitioner were not given, but this contention too has no force. Merely because the names of the associates of the detenu have not been specified in the grounds of detention, they cannot be said to suffer from the vice of vagueness vide: D S. Roy v. State of W. B., (AIR 1972 SC 1924) and Daroga Ray v. State of W. B., (AIR 1975 SC 983).

32. The last point urged by Shri Dube, learned counsel for the petitioner, was that it was not open to the detaining authority to prosecute the petitioner in connection with the incident which formed the subject-matter of ground No. 7 and also to pass an order of detention on the basis of the alleged criminal activities pertaining to this ground. This contention too is without force. Ip Ashim Kumar Ray v. State of W. B. AIR 1972 SC 2561 it was held that initiation of prosecution is no bar to an order of preventive detention. No doubt, a contrary view was expressed by their Lordships of the Supreme Court in Biranohand v. State of U.P., (AIR 1974 SC 1161) but this decision was apparently dissented from in a later decision of the Supreme Court in H. Saha v. State of W. B, (AIR 1974 SC 2154).

33. An order of detention is a precautionary measure being based on a prognosis of the past activities of the detenu. Merely because a detenu was liable to be tried in a criminal Court for the commission of a criminal offence or to be proceeded against for preventing him from committing an offence under Chapter VIII of the Code of Criminal Procedure it would not debar the Government from taking action for his detention under the Act. It is, therefore, clear that an order of preventive detention can be made with or without prosecution, and even in anticipation, or after discharge or acquittal; and the pendency of a prosecution is no bar to ap order of preventive detention.

34. Thus, after carefully considering the entire case, we find no merit in this petition. The grounds, on which the detention is based, are germane and can reasonably form the basis of subjective satisfaction of the District Magistrate regarding the future criminal activities of the petitioner as affecting public order. We do not, therefore, find any good reason to interfere with the order of detention.

35. The petition, therefore, fails and is hereby dismissed.


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