RAMKHILADI GURJAR Vs. STATE OF M.P.

JUDGEMENT

(1.) LEGALITY and validity of the order dated 16/4/2008 passed by the learned writ Court in W.P. No. 4964/07 has been questioned in this intra Court Appeal filed under Section 2 (1) of Madhya Pradesh Uchcha Nyayalaya (Khand Nyay Peeth Ko Appeal) Adhiniyam, 2005; whereby, the challenge put -forth by the Appellant/Petitioner to an order of detention dated 19.7.07 passed by the District Magistrate in exercise of powers under Section 3 (2) of National Security Act, 1980 has been negatived. The facts of the case in nutshell are that the Appellant/Petitioner was subjected to the impugned detention order on the basis of 21 cases registered against the Petitioner between the period 1995 till 2007 varying from the offences committed under Sections 120 -B, 147, 148, 294, 302, 307, 323, 328, 336, 341, 396, 506 -B read with Section 34 of IPC, Sections 25 and 27 of the Arms Act, Section 34 of the Excise Act and Sections 11 and 13 of the Madhya Pradesh Dakaiti Aur Vyapharan Prabhavit Kshetra Adhiniyam, 1981. The order of detention was challenged by way of writ petition filed under Articles 226/227 of the Constitution of India wherein it was contended by the Petitioner that out of the cases which were allegedly shown to be registered against him for committing various offences punishable under the provisions of Indian Penal Court, Arms Act, Excise Act and M.P.D.V.P.K. Act in 13 of them, he has been acquitted and the cases registered in the year 2007, the same has been at the instance of local ex member of Legislative Assembly, who carries animosity against the present Appellant In respect of remaining cases it is urged that they are pending trial since 2001. It was further contended by the Petitioner that the detention order was not free from the vices and there was no material before the District Magistrate to arrive at an independent conclusion that the action of the Petitioner was in any manner prejudicial to the maintenance of the public order. It is urged that there is no objective consideration by the authority concerned. The said contention of the Petitioner was categorically denied by the State of M.P. by filing reply on the ground that the material put -forth before the District Magistrate was self -sufficient for an objective consideration of the fact that action of the Petitioner was prejudicial to the maintenance of public order. It was further contended that the aforesaid detention order was also presented before the Advisory Board constituted under the provisions of the Act of 1980 and the Advisory Board has confirmed the detention of the Petitioner and vide order dated 13th August, 2007, the Advisory Board has reported that there are sufficient cause for detention of the Petitioner under the provisions of the Act of 1980.

(2.) THE learned Writ Court after considering the rival contentions put forth by the parties, upheld the order of the District Magistrate while recording the finding in para 8 in the following extent: In the present case, it is evident from the detention order passed under the Act of 1980 that as many as 21 cases were registered against the Petitioner from 199S onward though in respect of one case the contention of the Petitioner is that it does not relate to him which was registered on 18th May 2007 in crime No. 265/07 for offence under Sections 392 of IPC and 11/13 of the Madhya Pradesh Dakaiti Aur Vyapharan Prabhavit Kshetra Adhiniyam, 1981. The Petitioner has stated that in most of the cases he has been acquitted but the fact is that there are 20 cases which were registered against the Petitioner and in some of them trial has been taken place, though Petitioner has been acquitted in 13 such cases, but by no stretch of imagination, it cannot be presumed that the Petitioner enjoys a good reputation in the society. The Petitioner, thus have a record of criminal antecedents. The contention of the Petitioner that after the years 2003, only three cases have been registered and the one registered on 18th May 2007 does not relate to him does not wipe out the antecedents of the Petitioner. The learned writ Court while recording the finding of fact regarding acquittal in 13 cases went on to hold that the antecedents of the Petitioner does not get wiped out and that it cannot be presumed that the Petitioner enjoys good reputation in the society. It is on the anvil of these findings that the learned writ Court further held that a single act of indiscriminate firing is good enough to hold that the public order was affected. Having considered the rival submissions and having given our thoughtful consideration to the impugned order and the respective pleadings, we are of the view that there is no objective consideration by the Competent Authority, who passed the impugned order of detention. Section 3 (2) of the Act of 1980 calls for an objective satisfaction of the fact that the activities of the incumbent are prejudicial to maintenance of the public order. In the instant case the Competent Authority without objectively considering the facts of the case is led away by the Report furnished by the Superintendent of Police. It was incumbent upon him to have recorded a finding as how and in which manner the public order was put to jeopardy.

(3.) THE Apex Court in the case of Commissioner of Police and Ors. v. C. Anita (Smt.), : (2004) 7 SCC 467 in paragraphs 12 and 13 was pleased to observed: The true distinction between the areas of law and order and public order lies not merely in the nature or quality of the act, but in the degree and extent of its reach Upon society. Acts similar in nature, but committed in different contexts and circumstances, might cause different reactions. In one case it might affect specific individuals only, and, therefore, touches the problem of law and order only, while in another it might affect public order. The act by itself, therefore, is not determinant of its own gravity. In its quality it may not differ from other similar acts, but in its potentiality, that is, in its impact on society, it may be very different. 13. The two concepts have well -defined contours, it being well established that stray and unorganised crimes of theft and assault are not matters of public order since they do not tend to affect the even flow of public life. Infractions of law are bound in some measure to lead to disorder but every infraction of law does not necessarily result in public disorder. Law and order represents the largest scale within which is the next circle representing public order and the smallest circle represents the security of State. "Law and order" comprehends disorders of less gravity than those affecting "public order" just as "public order" comprehends disorders of less gravity than those affecting "security of State": (See Kuso Sah v. State of Bihar, Harpreet Kaur v. State of Maharashtra, T.K. Gopal v. State of Karnataka and State of Maharashtra v. Mohd. Yakub). In the case of Ram Manohar Lohia (Dr.) v. State of Bihar, : 1966 SCR 709 it was held that "public order" is synonymous with public safety and tranquility: "it is the absence of disorder involving breaches of local significance in contradistinction to national upheavals, such as revolution, civil strife, war, affecting the security of the State". Public order if disturbed, must lead to public disorder Every breach of the peace does not lead to public disorder." The true test as to whether an act has put the public order at jeopardy "is not the kind, but the potentiality of the act in question. One act may affect only individuals while the other, though of a similar kind, may have such an impact that it would disturb the even tempo of the life of the community" (Please see C. Anita, (supra)). In the case of Arun Ghosh v. State of W.B., : (1970) 1 SCC 98 the Apex Court was pleased to observed in paragraph 3 that the distinction between the areas of "law and order" and "public order" is one of the degree and extent of the reach of the act in question upon society in the following terms: