Madhya Pradesh High Court
Rafeeq Khan vs The State Of Madhya Pradesh on 24 January, 2025
Author: Sushrut Arvind Dharmadhikari
Bench: Anuradha Shukla, Sushrut Arvind Dharmadhikari
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1 W.P. No.
No.38968/2024
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE
BLE SHRI JUSTICE SUSHRUT ARVIND DHARMADHIKARI
&
HON'BLE SMT. JUSTICE ANURADHA SHUKLA
ON THE 24th OF JANUARY, 2025
WRIT PETITION No. 38968 of 2024
RAFEEQ KHAN
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Gyan Prakash Tripathi - Learned counsel for the petitioner.
Shri Ritwik Parashar - Learned Government Advocate for the respondents/State.
ORDER
Per: Justice Sushrut Arvind Dharmadhikari
Heard finally with the consent of both the parties.
2. The instant petition under Article 226 of the Constitution of India
has been filed in the nature of Habeas Corpus assailing the order of
preventive detention passed by the District Magistrate Seoni on
01.07.2024, annexure P/2 by exercising powers under section 3(2) of the
National Security Act, 1980 (for brevity ‘the NSA’) as well as the
consequential order of extension of the detention period dated 113.09.2024
by extending the detention of the petitioner for a period of further three
months.
3. Brief facts of the case are that Police Station Dhuma, District Seoni
registered Crime No.214/2024 against the petitioner for the offence under
section 153-A and 120-B
120 B of IPC and section 4, 9 of M.P.Gou Vansh Vadh
Pratishedh Adhiniyam, 2004 and section 11(1)(l) of Pashu Krurta Nivaran
Adhiniyam. During this period the Collector/respondent no.2 has
registered NSA proceeding against the petitioner and passed detenti
detention
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order on 1.7.2024 for a period of three months. However, the petitioner
was granted bail by this Court. But, the petitioner could not be released
because of the impugned detention order. Thereafter, the Collector, Seoni,
respondent no.2 issued order of
of extension of detention period for a period
of further three months vide order dated 13.9.2024 because his presence is
treated as an imminent threat and danger to public order and society at
large.
4. Learned counsel for the petitioner submits that the resp
respondents
while issuing the order in arbitrary and malafide exercise of power under
section 3(2) of the Act, no opportunity of hearing was provided to the
detenue before passing the impugned order. The detention order passed on
01.07.2024 was for a period of
o three months only. After expiry of the
same, another order of extension dated 13.09.2024 has been passed. The
said order is to continue upto 02.01.2025.
.01.2025. It is further submitted that the
action of the respondents is in gross violation of section 3(5) of NSA. The
action of the respondents is contrary to the mandate of NSA and it violates
Articles 14 & 21 of the Constitution of India. The right to life with dignity
of the detenu has been infringed by issuance of mechanical orders of
detention.
5. Per contra, learned counsel for the State vehemently opposes the
petition and submits that presence of the petitioner is an imminent threat
and danger to public order and society at large. It is further submitted that
the detenu is a history sheeter indulged in various
various crimes including heinous
crimes. The detenu is a person of criminal proclivity as despite being
charge-sheeted
sheeted for offences under various sections of IPC, there is no
change in his behaviour. The detenu is in the habit of disturbing public
peace and tranquility
anquility specially during festivals of a particular religious
community, destroying the public property, threatening for public at large
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with deadly weapons and killing gou vansh, which clearly reveals that the
detenu became a threat to the public order because
because of his audacity and
desperate criminal disposition. Therefore, the impugned orders do not
deserve any interference,
interference, therefore, the order impugned has rightly been
passed. It is further submitted that the petition sans merit and deserves to
be dismissed.
6. Heard learned counsel for the parties.
7. From perusal of return filed by the State. it
it is evident that detenu is
involved in different criminal cases / charge-sheeted
charge sheeted alleging commission
of different offences, particulars of which are placed along with the return
and on the basis of those cases as well as apprehension of the authorities
that detenu may commit breach of public order, proceedings were initiated
under the Act against the detenu which culminated into passing of
impugned order dated 01.07.2024
01.07.2024 and consequential extension order by the
District Magistrate, District – Seoni.
8. From the pleadings, it appears that the Superintendent of Police,
Seoni has recommended the District Magistrate, Seoni to initiate action
under Section 3(2) of the NSA against
against the detenu since his criminal acts
are continuous which are threat to public peace and law & order. The
District Magistrate after considering the fact situation, recommendation as
well as the statement of prosecution witnesses passed the impugned order
of detention in exercise of power under Section 3(2) of the NSA. Being
aggrieved by the said order of detention, petitioner has preferred this
petition.
9. Instant case is in respect of National Security Act and its different
fallout and factual contours attract
attract reconciliation between “Public Order”
and “Personal Liberty”.
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10. The Apex Court in the case of Deepak Bajaj v/s State of
Maharashtra & Another reported in (2008) 16 SCC 14 has cautioned the
High Courts regarding scope of jurisdiction and scope of High Court to
grant relief in such matters. According to Apex Court; scope is very
narrow and limited and subjective satisfaction of the detaining authority
cannot be looked by the High Court as appellate authority. In the said case,
the Apex Court reiterated the observation made by the Apex Court in the
case of State of Bihar v/s Rambalak Singh Balak reported in AIR 1967
SC 1441 as well as Khudiram Das v/s State of West Bengal reported in
(1975) 2 SCC 81.
11. Observation of Apex Court in the case of Khudiram Das (supra) is
reproduced as under:
“The power of detention is clearly a preventive measure.
It does not partake in any manner of the nature of punishment.
It is taken by way of precaution
precaution to prevent mischief to the
community. Since every preventive measure is based on the
principle that a person should be prevented from doing
something which, if left free and unfettered, it is reasonably
probable he would do, it must necessarily proceed
proceed in all cases,
to some extent, on suspicion or anticipation as distinct from
proof…. This being the nature of the proceeding, it is
impossible to conceive how it can possibly be regarded as
capable of objective assessment. The matters which have to bbe
considered by the detaining authority are whether the person
concerned, having regard to his past conduct judged in the
light of the surrounding circumstances and other relevant
material, would be, likely to act in a prejudicial manner as
contemplated in any of sub-clauses
clauses (i), (ii) and (iii) of clause
(1) of subsection (1) of section 3, and if so, whether it is
necessary to detain him with a view to preventing him from so
acting. These are not matters susceptible of objective
determination and they could not be intended to be judged by
objective standards. They are essentially matters which have to
be administratively determined for the purpose of taking
administrative action. Their determination is, therefore,
deliberately and advisedly left by the legislature
legislature to the
subjective satisfaction of the detaining authority which by
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be best fitted to decide them. It must in the circumstances be
held that the subjective satisfaction of the detaining authority
as regards these matters constitutes the foundation for the
exercise of the power of detention and Court cannot be invited
to consider the propriety or sufficiency of the grounds on
which the satisfaction of the detaining authority is based. The
Court cannot, on a review of the grounds, substitute its own
opinion for that of the authority, for what is made condition
precedent to the exercise of the power of detention is not an
objective determination of the necessity of detention for a
specified purpose
urpose but the subjective opinion of the detaining
authority, and if a subjective opinion is formed by the
detaining authority as regards the necessity of detention for a
specified purpose, the condition of exercise of the power of
detention would be fulfilled.
fulfilled. This would clearly show that the
power of detention is not a quasi-
quasi udicial power.” Therefore,
the scope of interference in such matter is narrow and
limited.”
12. So far as question regarding breach of public order or threat to public
peace is concerned,
d, this aspect also is very subjective and differs from case
to case. In Ashok Kumar v/s Delhi Administration & Others reported in
403, the Apex Court held that preventive detention is
(1982) 2 SCC 403,
devised to afford protection to society. It was observed tthat preventive
measures, even if they involve some restraint and hardship upon some
individuals, do not partake in any way of the nature of punishment, but are
taken by way of precaution to prevent mischief to the State. The Executive
is empowered to take recourse to its power of its preventive detention in
those cases where the Court is genuinely satisfied that no prosecution
could possibly succeed against the detenu because he is a dangerous
person who has overawed witnesses or against him no one is prepa
prepared to
depose.
13. The Court also made a distinction between the concepts of “Public
Order” and “Law and Order” in the following words: –
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No.38968/2024“13. The true distinction between the areas of ‘public order’
and ‘law and order’ lies not in the nature or quality of the Act,
but in the degree and extent of its reach upon society. The
distinction between the two concepts of ‘law and order’ and
‘public order’ is a fine one but this does not mean that there
can be no overlapping. Acts similar in nature but committed in
different
erent contexts and circumstances might cause different
reactions. In one case it might affect specific individuals only
and therefore touch the problem of law and order, while in
another it might affect public order. The act by itself therefore
is not determinant
rminant of its own gravity. 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.
That test is clearly fulfilled in the facts and circumstances of
the present case.”
14. The Supreme Court in the context of preventive detention also
highlighted the distinction between “Public Order”, “Security of State” and
“Law and Order” in the case of Commissioner of Police & Others v/s C.
Anita reported in (2004) 7 SCC 467 in following words:-
“The crucial issue is whether the activities of the detenu
were prejudicial to public order. While the expression ‘law and
order’ is wider in scope inasmuch as contravention of law
always affects order. ‘Public order’ has a narrower ambi
ambit, and
public order could be affected by only such contravention
which affects the community or the public at large. Public
order is the even tempo of life of the community taking the
country as a whole or even a specified locality. 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 on
society. It is the potentiality of the act to disturb the even
tempo of life of the community which makes it prejudicial to
the maintenance
ance of the public order. If a contravention in its
effect is confined only to a few individuals directly involved as
distinct from a wide spectrum of public, it could raise problem
of law and order only. It is the length, magnitude and intensity
of the terror
rror wave unleashed by a particular eruption of
disorder that helps to distinguish it as an act affecting public
order’ from that concerning ‘law and order’. The question to
ask is: “Does it lead to disturbance of the current life of the
community so as to amount to a disturbance of the public
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tranquility of the society undisturbed”? This question has to be
faced in every case on its facts.
8. “Public order” is what the French call ‘ordre publique’
andd is something more than ordinary maintenance of law and
order. The test to be adopted in determining whether an act
affects law and order or public order, is: Does it lead to
disturbance of the current life of the community so as to
amount to disturbance of the public order or does it affect
merely an individual leaving the tranquility of the society
undisturbed? (See Kanu Biswas v. State of West Bengal(1972)
3 SCC 831).
9. “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 peacepeace does not lead to public disorder.
When two drunkards quarrel and fight there is disorder but not
public disorder. They can be dealt with under the powers to
maintain law and order but cannot be detained on the ground
that they were disturbing public order.
order. Disorder is no doubt
prevented by the maintenance of law and order also but
disorder is a broad spectrum, which includes at one end small
disturbances and at the other the most serious and cataclysmic
happenings. (See Dr. Ram Manohar Lohia (Dr.) v. Stat State of
Bihar (1966) 1 SCR 709; 1966 Crl.LJ 608).
10. ‘Public Order’, ‘law and order’ and the ‘security of the
State’ fictionally draw three concentric circles, the largest
representing law and order, the next representing public order
and the smallest representing
representing security of the State. Every
infraction of law must necessarily affect order, but an act
affecting law and order may not necessarily also affect the
public order. Likewise, an act may affect public order, but not
necessarily the security of the State.
State. The true test 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. This does does not mean that
there can be no overlapping, in the sense that an act cannot
fall under two concepts at the same time. An act, for instance,
affecting public order may have an impact that it would affect
both public order and the security of the State. [See [See Kishori
Mohan Bera v. The State of West Bengal(1972) 3 SCC 845:
AIR1972SC1749; Pushkar Mukherjee v. State of West
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No.38968/2024Bengal(1969) 1 SCC 10; Arun Ghosh v. State of West
Bengal(1970) 1 SCC 98; Nagendra Nath Mondal v. State of
West Bengal(1972) 1 SCC 498].”
15. An act, affecting public order, may have ramifications over law
and order and security of the State at the same time [See: Kishori Mohan
Bahra Vs. State of West Bengal, (1972) 3 SCC 845, Pushkar Mukherji Vs.
State of West Bengal, (1969) 1 SCC 10, Arun Ghosh
Ghosh Vs. State of West
Bengal, (1970) 1 SCC 98, Nagendra Nath Mondal Vs. State of West
Bengal, (1972) 1 SCC 498].
498]
16. Some Crimes give Psychic Gains whereas some Crimes give
Monetary Gains. If Cultural Norms affect the law, the law likewise affects
cultural norms.. Therefore, expressive function of punishment or deterrent
of punishment is the law’s capacity to send a message of condemnation
about a particular criminal act. When a criminal mind while committing
crime or expresses his intention to commit crime, sends a message to the
world about the value of victim then conversely punishment or preventive
measure (like the present one) sends a reciprocal message to the accused in
a kind of dialogue with the crime. Therefore, in the considered opinion of
this Court, expressive
pressive function of punishment or preventive measure like
detention under NSA are both retributive and utilitarian. Retributive
punishment/preventive measures give even if not proportional to the
physical/psychic harm done to a victim even then it gives a chance to the
perpetrator to purge his misdeeds and act as deterrent to other probable
perpetrators. Similarly utilitarian function of punishment/preventive
measure has the power to change social norms and behaviour via the
messages it expresses and may help
h in reduction of crime.
17. In India where we witness high rate of crime against victims
especially against weaker sections and females originates from the
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confidence of perpetrators that they would go unpunished because of
lacuna in Investigation, Prosecution
Prosecution and Adjudication and therefore, this
tendency prompts them to commit more severe offences and create an
atmosphere of fear and terror. Conduct of detenu reflects such attitude.
18. Crime and Disorder are strongly interrelated, therefore, Broken
Windows Theory,
ory, a Criminological Theory although moves in respect of
Police and law enforcement but has material bearing in the realm of
prosecution, adjudication and specially for preventive measures like NSA
also. According to this theory, targeting minor disorder is expected to
reduce occurrence of more serious crime. Idea behind is can be
summarized in an expression that if a window in a building is broken and
left unrepaired, all of the windows will soon be broken. On this analogy
also, if preventive measure is taken
taken by the police against a miscreant like
in the present case then it is for the purpose of sending a message to the
person concerned as well as other probable perpetrators. Since, in the
present case the detenu has chequered history of all types of crim
crime,
therefore, whole proceeding against the detenu deserves to be seen from
that vantage point also.
19. While dealing with liberty of an individual vis–a-vis collective
interest of the community, observation of Apex Court in the case of
Shahzad Hasan Khan v/s Ishtiaq Hasan Khan & Others reported (1987)
2 SCC 684 is worth consideration where Apex Court observed as under:
under:-
“Liberty is to be secured through process of law, which is
administered keeping in mind the interest of the accused, the
near and dear of the victim who lost his life and who feel
helpless and believe that there is no justice in the world as also
the collective interest of the community so that parties do not
lose faith in the institution and indulge in private retribution.
Learned Judge was undulyunduly influenced by the concept of
liberty, disregarding the facts of the case.”
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20. This observation is being reiterated by the Apex Court in the case of
Ramgovind Upadhyay v/s Sudarshan Singh reported in (2002) 3 SCC
598.. Although above referred observation and reiteration were in respect
of bail but certainly sends a message for reconciliation between “Personal
Liberty” vis-a-vis “Public Peace” and “Public Order”. Said reconciliation
is need of the hour otherwise Public Order, Social Peace and Development
off the area would be sacrificed at the altar of Lawlessness, Misgovernance
and Private Retribution.
21. If the above referred legal principles / guidance are tested on the anvil
of present set of facts, then it appears that the detenue appears to be a
habitual offender against whom many criminal cases have been registered
which are still pending. It is not the case, where he faced allegations of
minor offences but he is facing trial for offences under the provisions of
M.P.Gou Vansh Vadh Pratished Adhiniyam, 2004
2004 and under various
provisions of IPC.
22. Long trial of criminal cases of different nature certainly suggest that
they cannot be motivated at the instance of police authorities or at the
instance of some vested interest. These are the instances/discredit poin
points
which are being acquired by the detenu because of his misdeeds,
misdemeanors and criminal bent of mind. Therefore, different nature of
cases registered and tried against the detenu cannot be taken lightly.
Hon’ble Supreme Court in the case of Debu Mahto v/s State of West
Bengal reported in AIR 1974 SC 816 has held as under:-
“…The order of detention is essentially a precautionary
measure and it is based on a reasonable prognosis of the
future behaviour of a person based on his past conduct judged
in the
he light of the surrounding circumstances. Such past
conduct may consist of one single act or of a series of acts. But
whatever it be, it must be of such a nature that an inference
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would be likely to to repeat such acts so as to warrant his
detention. It may be easier to draw such an inference where
there is a series of acts evincing a course of conduct but even if
there is a single act, such an inference may justifiably be
drawn in a given case.”
23. SHO, Police Station – Seoni, also made statement as prosecution
witness and police report indicates that detenu is a habitual offender and he
is in habit of giving threats to the locals and they are afraid to come
forward to ventilate their grievances and all these attributes, render the
detenu a threat to public peace and order and appears to be against the
interest of society/community at large. Therefore, subjective satisfaction of
detaining authorities in the present set of facts cannot be interfered. All
material
aterial / documents were placed before the detaining authority and
concerned authority applied its mind accordingly. Moreover, since the
order 1.7.2024 passed by Collector, Seoni has been sent to the Central
Govt., Home Affairs Department, vide order of thee State Government
dated 8.7.2024. Thus, there is substantive compliance of section 3(5) of
the NSA.
24. No procedural lapse or violation has been seen in the detention order,
as the same has been passed in accordance with the provisions of NSA.
Nowhere in thee provision of NSA, it is mandatory to take prior approval
from the Advisory Board before each extension order regarding detention
period is made, rest of the procedure has been followed in letter and spirit.
Conclusively, petition preferred by the petitioner
petitioner fails and order of
detention dated 01.07.2024 passed by District Magistrate, Seoni and
consequential order dated 13.9.2024 are hereby affirmed. Respondents are
at liberty to proceed against the detenu as per law.
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25. The present Writ Petition sans merit and
and is hereby dismissed. No
order as to costs.
26. Copy of this order be sent to District Magistrate, Seoni for
information.
(SUSHRUT ARVIND DHARMADHIKARI) (ANURADHA SHUKLA)
JUDGE JUDGE
Shanu
Digitally signed by SHANU
RAIKWAR
Date: 2025.01.27 11:11:01
+05'30'