Madhya Pradesh High Court
Annu @ Aniket Through His Father As Next … vs Union Of India on 25 February, 2025
Author: Sushrut Arvind Dharmadhikari
Bench: Sushrut Arvind Dharmadhikari, Anuradha Shukla
NEUTRAL CITATION NO. 2025:MPHC-JBP:9016
2025:MPHC
1 W.P. No.29710/2024
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SUSHRUT ARVIND DHARMADHIKARI
&
HON'BLE SMT. JUSTICE ANURADHA SHUKLA
ON THE 25th OF FEBRUARY, 2025
WRIT PETITION No. 29710 of 2024
ANNU @ ANIKET THROUGH HIS FATHER AS NEXT FRIEND
KRUPAL SINGH THAKUR S/O SHIVLAL AGED ABOUT YEARS
Versus
UNION OF INDIA AND OTHERS
Appearance:
Shri Aseem Trivedi - Learned counsel for the petitioner.
Ms. Shweta Yadav - Learned Deputy Government Advocate for the
respondents/State.
ORDER
Per: Justice Sushrut Arvind Dharmadhikari
Heard finally with the consent of both the parties.
2. The instant Writ Petition
Petition under Article 226 of the Constitution of
India has been filed by the father of the detenu in the nature of Habeas
Corpus assailing the order of preventive detention passed by the District
Magistrate, Betul on 11.07.2024 (Annexure P/1) by exercising powers
under section 3(2) of the National Security
Security Act, 1980 (for brevity ‘the
NSA’) as well as the consequential orders of extension of detention
period dated 08.10.2024 and 03.01.2025.
3. Brief facts of the case are that on the representation of SHO,
Police Station Ganj, District Betul and the represe
representation of
Superintendent of Police, District Betul, the District Magistrate, Betul
has registered NSA proceeding against the son of the petitioner and
passed detention order on 11.07.2024 for a period of three months.
Signature Not Verified
Signed by: SHANU
RAIKWAR
Signing time: 04-03-2025
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Thereafter, respondent No.2 issued orders
ders of extension of detention
period dated 08.10.2024 and 03.01.2025 on the recommendation made
by District Magistrate Betul because presence of the detenu is treated as
an imminent threat and danger to public order and society at large.
4. Learned counsel for the petitioner submits that the 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 detenu before passing the impugned order. The detention order
passed on 11.07.2024 was for a period of three months only. After
expiry of the same, further orders of extension dated 08.10.2024 and
03.01.2025 have been passed. By order 03.01.2025, the detention period
is extended upto 12.04.2025.
12.04.2025 It is further submitted that the action of the
respondents is in gross violation of section 3(5) and section 10 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. He further submitted that the provision of Section 8
of the Act has also not been complied with inasmuch as the ground of
detention has not been communicated to the detenu.
de
5. Per contra, learned counsel for the State vehemently opposes the
petition and submits that presence of the detenu is an imminent threat
and danger to public
lic order and society at large. It is further submitted
that the detenu is a history sheeter indulged
indulged in 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,
tranquility which clearly reveals that the detenu has
Signature Not Verified
Signed by: SHANU
RAIKWAR
Signing time: 04-03-2025
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become
me a threat to the public order because of his audacity and
desperate criminal disposition. Therefore, the impugned orders do not
deserve any interference as the orders impugned have 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,
State itt is evident that detenu
is involved in different criminal cases / charge-sheeted
char 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
assing of impugned order dated 111.07.2024 and
consequential extension order by the District Magistrate, District –
Betul.
8. From the pleadings, it appears that the Superintendent of Police,
Betul has recommended
ecommended the District Magistrate, Betul to initiate action
under Section 3(2) of the NSA 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,
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 reconciliation between “Public
Order” and “Personal Liberty”.
Signature Not Verified
Signed by: SHANU
RAIKWAR
Signing time: 04-03-2025
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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
ot 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.
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 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 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
matters which have to be 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
mannerr as contemplated in any of sub-clauses
sub 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
determination and they couldSignature Not Verified
Signed by: SHANU
RAIKWAR
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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
advisedly left by the legislature to the
subjective satisfaction of the detaining authority which
by reason of its special position, experience and
expertise would, be best fitted to decide them. It must in
the circumstances be held that the subjective
satisfaction
on 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 auth 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
detention for a specified purpose 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
ntion would be 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
ic peace is concerned, this aspect also is very subjective and differs
from case to case. In Ashok Kumar v/s Delhi Administration & Others
reported in (1982) 2 SCC 403,
403, the Apex Court held that preventive
detention is devised to afford protection to society.
society. It was observed that
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
Signature Not Verified
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RAIKWAR
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the State. The Executive is
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 prepared to depose.
13. The Court also made a distinction between the concepts of “Public
Order” and “Law and Order” in the following words: –
“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
nature but committed in
different 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
itself therefore is not determinant 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
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:
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 ambit, and public order could beSignature Not Verified
Signed by: SHANU
RAIKWAR
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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
kes it prejudicial to the maintenance 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 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
nt life of the community so as to amount to a
disturbance of the public order or does it affect merely
an individual leaving the tranquility of the society
undisturbed”? This question has to be faced in every
case on its facts.
8. “Public order” is what the the French call ‘ordre
publique’ and 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
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 an 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.
disorder. Every breach of
the peace does not lead to public disorder. When two
drunkards quarrel and fight there is disorder but not
Signature Not Verified
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RAIKWAR
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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. 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. Dr. Ram Manohar Lohia
(Dr.) v. 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
public order and the smallest 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
essarily the security of the 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
the life of the community. This
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 Kishori Mohan
Bera v. The State of West Bengal(1972) 3 SCC 845:
AIR1972SC1749; Pushkar Mukherjee v. State of West
Bengal(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,
Bengal, (1969) 1 SCC 10, Arun Ghosh Vs.Signature Not Verified
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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 la
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
considered opinion of this Court, expressive 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
the messages it expresses and
may help 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
confidence of perpetrators that they would go unpunished because of
lacuna in Investigation, 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.
Signature Not Verified
Signed by: SHANU
RAIKWAR
Signing time: 04-03-2025
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18. Crime and Disorder are strongly interrelated,
interrelated, therefore, Broken
Windows Theory, 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 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
chequered history of all types
of 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 th
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:-
“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 unduly influenced by the
concept of liberty, disregarding the facts of the case.”
Signature Not Verified
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RAIKWAR
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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 of 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 detenu appears to be
a habitual offender against whom around 15 criminal cases have been
registered out of which in 3 cases he has been
een acquitted and remaining
cases are still pending. It is not the case, where he faced allegations of
minor offences but he faced trial for offences
offences under Sections 307, 354
354,
452, 353 and various provisions of IPC.
22. Long trial of criminal cases of different
different nature certainly suggests
that they cannot be motivated at the instance of police authorities or at
the instance of some vested interest. These are the instances/discredit
points which are being acquired by the detenu because of his misdeeds,
misdemeanorss 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 light of the surrounding
circumstances. Such past conduct may consist of oneSignature Not Verified
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RAIKWAR
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single act or of a series of acts. But whatever it be, it
must be of such a nature that an inference can
reasonably be drawn from it that the person concerned
would be likely 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 Ganj, District Betul,, also made statement as
prosecution witness
tness 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 aand 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 / documents were placed
before the detaining authority and concerned authority applied its mind
accordingly. Moreover, since the order dated 11.07.2024
7.2024 passed by
District Magistrate,, Betul has been sent to the Central Govt., Home
Affairs Department, vide order of the State Government dated
19.07.2024. Thus, there is substantive compliance of section 3(5) of the
NSA. Further the State Government has passed the order dated
10.08.2024 after when the Advisory Board has reported that there is
sufficient cause for detention of son of the petitioner. Thus, the
compliance
iance of section 10 of the Act was also made. Further, the counsel
for the State has shown the order of grounds of detention dated
11.07.2024 from which it is evident that the detenu has received the
copy of the same on 12.07.2024 itself, which shows that there is
sufficient compliance of section 8 of the Act. Copy of the order of
Signature Not Verified
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grounds of detention dated 11.07.2024 issued by the District Magistrate
Betul is taken on record.
24. No procedural lapse or violation has been seen in the detention
order, as the same
me has been passed in accordance with the provisions of
NSA. Nowhere in the 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 failss and order of detention dated 11.07.2024
11.07.2024 passed by
District Magistrate, Betul and consequential orders dated 08.10.2024
and 03.01.2025 are hereby affirmed.. Respondents are at liberty to
proceed against the detenu as per law.
25. The present Writ Petition sans merit and is hereby dismissed. No
order as to costs.
26. Copy of this order be sent to District Magistrate, Betul for
information.
(SUSHRUT ARVIND DHARMADHIKARI) (ANURADHA SHUKLA)
JUDGE JUDGE
Shanu
Signature Not Verified
Signed by: SHANU
RAIKWAR
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