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SAEED versus STATE OF U.P. AND OTHERS

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Saeed v. State Of U.P. And Others - HABEAS CORPUS WRIT PETITION No. 31614 of 2006 [2006] RD-AH 21228 (15 December 2006)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

         Reserved

Civil Misc. Habeas Corpus Writ Petition No. 31614 of 2006

Saeed ...................................................................Petitioner

Versus

State of U.P. and others....................................Respondents

******

Hon'ble Imtiyaz Murtaza, J.

Hon'ble Amar Saran, J.

(Delivered by Hon'ble Amar Saran, J. )

Heard Shri Manoj Mishra, learned counsel for the petitioner and Shri Arvind Kumar Tripathi, learned Additional Government Advocate representing the State.

This petition in the nature of habeas corpus has been filed by the petitioner challenging the order of the District Magistrate, Bulandshahr, respondent No. 2 dated 2.2.2006 detaining the petitioner under Section 3(2) of the National Security Act (hereinafter the NSA). The said order together with the grounds of detention were served on the petitioner on the same day, i.e. on 2.2.2006 when the petitioner was confined in the district jail in connection with a case at Crime No. 314 of 2005, under Sections 3/5/8 of Prevention of Cow Slaughter Act (hereinafter the Act).

The basic grounds for detaining the petitioner were that on receipt of information that the petitioner had slaughtered a cow, the Station Officer of police station Anoopshahr, district Bulandshahr visited the house of the petitioner at 5.45 A.M and the petitioner and his two associates were apprehended  with a slaughtered cow. The beef of a slaughtered cow and a live cow were found at the spot. When the news of the slaughter spread in the town, a big crowd gathered near the house of the petitioner and raised slogans against the slaughterers and communal amity  was disturbed. After great efforts, the police succeeded in assuaging the general public and taking steps for restoring public order. The Station Officer, Police Station Anoopshahr registered a case at Case Crime No. 314 of 2005, under Sections 3/5/8 of Prevention of Cow Slaughter Act against the petitioner and co-accused Shamshuddin and Akram. Section 25/4 of the Arms Act was also added. The remains of the slaughtered cow were buried in the field of one Umesh Sharma.

It is further clarified in the grounds of detention that Anoopshahr falls on the banks of the Ganges and is a holy town and as a result of the acts of the petitioner, the sentiments of the Hindu community were hurt and Hindu-Muslim harmony was adversely affected and an atmosphere of fear and terror was generated, public order was disturbed and the crowd became belligerent. The public and many political organizations and members belonging to Hindu organizations banded together and engaged in Dharnas and demonstrations and called for severe punishment against the cow slaughterers and handed over a representation for the Governor to the S.D.M., Anoopshahr. A charge sheet has been submitted in the aforesaid criminal case against the petitioner and two others. There was a news report also of there being a demonstration before the office of the S.D.M. because of the slaughtering of the cow, which also aggravated the communal situation and adversely affected public order. As the relationship between the two communities was adversely affected and disturbed due to the petitioner's action, hence the detention order was passed as aforesaid.  

It was further stated that as a result of the cow slaughter, the normal course of business of the general public was disturbed and on being satisfied by the report of the S.S.P., Dy. S.P. and in-charge investigating officer, on being satisfied that in order to maintain public order and that there was a likelihood of the petitioner being released on bail, the respondent No. 2 passed the impugned order  detaining the petitioner under Section 3(2) of the National Security Act.

Written arguments and rulings have been filed by Shri Manoj Mishra, learned counsel for the petitioner and by the learned AGA.

Basically, it was urged by Shri Mishra that on the basis of a solitary incident of cow slaughter, which was carried out in the secrecy of his home, it could not be inferred that the petitioner on being released from jail would repeat the activities that might be prejudicial to maintenance of public order. Further since the grounds of detention mentioned that the petitioner was a person with a communal mind and he had a bad reputation and hence because of these extraneous considerations where only a solitary incident of cow slaughter was involved, the order of detention was a mala fide exercise of his jurisdiction.  

It was further contended that the solitary incident of cow slaughter could not have disturbed public order as there was no material to show that any riot had taken place in the village. In fact the report itself mentioned that the public, which had collected at the spot was disbursed after being pacified by the police.

Shri Arvind Tripathi, learned Additional Government Advocate, on the other hand urged that only the subjective satisfaction of the detaining authority that the action of the petitioner  could have disturbed the even the tempo of life was sufficient for clamping an order of preventive detention and the same could not be subject to judicial review as the said order was necessary for the protection of society and a balance has to be struck between the needs of the community and the liberty of a citizen. A habeas corpus petition challenging the preventive action by the District Magistrate cannot proceed like an appeal against the detention order and the Court cannot look into the probative value of the evidence available against the petitioner , nor was the Court empowered to substitute its opinion for the  subjective satisfaction of the authority. Slaughtering of cows and its progeny offends religious faith and feelings of a section of the society, which certainly disturbs public tranquility, peace and communal harmony and hence it is a clear cut case of breach of public order which affected the even tempo of society.

After examining the writ petition, counter affidavit, rejoinder affidavit, written arguments and having considered the rival submissions of the parties, we are of the opinion that this writ petition deserves to the allowed.

We note that the grounds of detention clearly indicate that the incident had taken place in the secrecy of the petitioner's house at 5.15 in the morning. It was a solitary incident of cow slaughter away from the public eye. There was no resistance when the petitioner and the other co-accused were being arrested by the police at that time. Further, to the specific averment in paragraph 11 of the petition that the petitioner had no criminal history and there was no material to indicate that the petitioner on being released from jail, would again indulge in the activity of cow slaughter, there was no specific denial of this averment in paragraph 5 of the counter affidavit of the District Magistrate, which simply mentioned that the averments in paragraphs 11 to 18 of the petition were incorrect and that on the basis of the solitary incident the petitioner could be preventively detained. The paragraph further mentions that the nature of the activity of the petitioner itself suggested that the petitioner may have been involved in slaughtering of a cow, though he was not apprehended earlier and the same shows a 'repeating tendency'. It was also mentioned that so far as the allegation of discriminatory treatment against the petitioner for being singled out for detention under the National Security Act was concerned, it was refuted by the fact that the house belonged to the petitioner, and the other co-accused, had only been caught at the spot assisting him.

In our view there was no material to indicate that the petitioner had any criminal history and it was only a surmise based on no material or evidence that the petitioner might have been earlier involved in such an incident and he may show such a repetitive tendency. There is also in our opinion, no major distinction between the case of the petitioner and that of the co-accused so as to justify only his detention under the NSA, and the prosecution of the others only under the normal criminal law.

Learned counsel for the petitioner has drawn out attention to the case of Ramveer Jatav Vs. State of U.P. and others, (1986)4 SCC 762 for the proposition that it is possible for the detaining authority to assume that the accused could repeat the action, but for reaching that conclusion there must be some material and circumstances on record, to  justify such a conclusion.

Ramveer Jatav (Supra) was a case of broad day-light murder and it was observed by the Apex Court that it was difficult to infer from a solitary incident that such an act would disturb public order or that if the petitioner was not detained, he would be likely to indulge in such an activity in future. The case of the petitioner, which is a case of slaughtering a cow in the secrecy of his own house can at best be described as a matter affecting law and order and  not public order. Moreover, there was no material for reaching the conclusion that the petitioner would repeat the activity in future.

The contention of the learned Additional Government Advocate that this is a matter for the subjective satisfaction of the detaining authority and the Court has no jurisdiction to adjudicate on the probative value, and the propriety or  sufficiency of the ground of the ground of detention of the detaining authority is immune from judicial review is a proposition which cannot be accepted when stated so broadly.  

In the case of S.R. Bommai Vs. Union of India, AIR 1994 SC 1918  it has been held that even the Presidential satisfaction under Article 356 of the Constitution to impose emergency is not completely immune from judicial challenge although Presidential satisfaction and the satisfaction of the Constitutional machinery is capable of being objectively determined only to a very limited extent. Therefore, in certain cases specially where mala fide exercise of power or action on extraneous consideration was concerned, a limited power of judicial review has been conferred even when the President's was exercising his powers under Article 356 of the Constitution. But as mentioned by Hon'ble K. Ramaswamy, J in paragraph 150 of S.R. Bommai's case (Supra) the satisfaction of the President cannot be equated with the discretion conferred upon an administrative agency which can be tested on objective material to some extent: "The satisfaction of the President cannot be equated with the discretion conferred upon an administrative agency, of his subjective satisfaction upon objective material like in detention cases, administrative action or by subordinate legislation."  Therefore, it is clear that in detention cases the subjective satisfaction is open to limited judicial scrutiny. Therefore, it would be wrong to contend that there is complete embargo on the powers of the court to look at the sufficiency of the ground from any perspective, although the probative value of the material adduced for inferring whether the detenu was engaged in a particular activity, was a matter primarily for the satisfaction of the detaining authority, and the Court could not evaluate it as it would have evaluated material on an appeal. In the present case we find that learned counsel for the petitioner has not raised any question of fact and has not disputed that no such incident has taken place. His basic contention was that the incident took place in the secrecy of the home of the petitioner and it was not an act, which was intended to cause a conflagration or an act of confrontation where number of cows may have been slaughtered or assault made on persons, who protested against the slaughtering.

Paragraphs 4 and 11 of the case of Golam Hussain alias Gama Vs. Commissioner of Police, Calcutta and others, AIR 1974 SC 1336, relied on by the learned Additional Government Advocate, refers to different situations. In paragraph 4 of the aforesaid judgment, it is mentioned that the detention order was sought to be quashed on the ground that the name of the petitioner was not disclosed in the FIR, but his name emerged after the police gathered evidence of his complicity during the course of investigation. Also in that case the Commissioner of Police had admitted that the detenu has been discharged by the court as no witness dared to depose against the detenu in open court. It was pointed out that mere discharge could not give cause for challenging the subjective satisfaction ''component' or justification of the detaining authority for passing the detention order. However, in the said paragraph itself it is mentioned that if in an extreme case, the court concerned has found the criminal charge to be false and the detaining authority still insists in passing the detention order, that may be a matter for consideration by the detaining authority. In the words of the Apex Court in the said law report: "Of course, we can visualize extreme cases where a court has held a criminal case to be false and a detaining authority with that judicial pronouncement before him may not reasonably claim to be satisfied about prospective prejudicial activities based on what a court has found to be baseless. But the present case where the order of discharge is made purely for want of evidence on the score that witnesses were too afraid to depose against a desperate character cannot come under this exceptional category." This qualification in the said paragraph itself suggests that there is no absolute bar on judicial review as is being argued by the learned AGA.

In the present case there is no suggestion that any witness has turned hostile and it has not even been argued by the learned counsel for the petitioner that either the accused has been discharged, acquitted or that the case would end in discharge or acquittal or that there is want of evidence in the case. It cannot be denied that normally in exercise of powers under Article 226, this Court has limitations in considering the sufficiency of the evidence for ascertaining the factual involvement of a detenu, but this Court can certainly see whether the activities complained of have resulted in an infringement of public order or only involve a law and order issue. The only submission that learned petitioner's counsel has advanced is that on the basis of a minor solitary incident, where there was no material to infer that repetition was likely, the order of detention was not justified.  

Paragraph 12 of Golam Hussain (Supra), cited by the learned A.G.A., gives examples of different kinds of incidents involving a a private target such as indecent assault of a woman or slapping a neighbour or knocking down a pedestrian while driving, which may not shake public order, though they may affect law and order. But a drunk with a drawn knife chasing a woman in a public street and all women running in panic, a Hindu or Muslim throwing a bomb at a personal enemy of the other religion in a crowded place at a time of communal tension and the people fleeing the area out of fear, a striking worker armed with a dagger stabbing a blackled during a bitter strike spreading terror. These may involved invasions of public order although the motivation may be against a particular private individual. The nature of the act, the circumstances of its commission, the impact on people around and such like factors constitute the pathology of public disorder.

We do not think that a few men clandestinely  slaughtering a cow in the security of their home away from the public eye in the dark hours, perhaps for survival or for  consuming the meat can come in the category of actions which intrinsically disturb public order or are intended to  strike terror in the minds of the public. It should not be forgotten that very often Hindu farmers after their cows become dry sell the same to a butcher for a paltry sum because they are unable to feed the uneconomical cows.

In the Constitution Bench decision of the Supreme Court in the case of Mohd Hanif Quraishi Vs. State of Bihar, AIR 1958 SC 731, it is noted in paragraph 36 that this fact should not be lost sight of that "the conscience of the individual or the community did not prevent the Hindu owner from selling his dry cow to the butcher for a paltry sum of Rs. 30 to Rs. 40 per head and when the Hindu sentiment for the divinity and sanctity attributed to the cow has to be propped up by legislative compulsion."

Will it not be discriminatory to proceed only against the slaughterers and not the farmers, who willingly sell their dry cows for paltry sums, and who would at least stand in the position of abettors or facilitators of such offences. The present is also not a case where several animals have been slaughtered or there was any aggressive attack on the police or members of the public when the activities of the petitioner were sought to be stopped, which in our view would be the pre-conditions for removing an activity from the domain of pure law and order matter and making it an issue affecting public order. Here we find that the petitioner and his co-accused were mutely arrested when they were found with the slaughtered cow in the early hours of the morning in his home. We also do not know whether the cause was poverty, lack of employment or hunger, which may have compelled the petitioner and the other accused to have taken such a step.

The case cited by the learned A.G.A., Faeem Vs. State of U.P, 2003(47) ACC 240 was a case where 6 or 7 persons were slaughtering two cows in an open field and were cutting the pieces with knives and axes and about 100 to 150 persons were standing nearby and opposing the act of butchers and the detenu even gave threats to the members of the Hindu community for informing the police and because of their threats, people started running helter skelter. That was a very grave case affecting public order. There are no such allegations of the petitioner having indulged in any aggressive act beyond slaughtering the cow in the secrecy of his home.  

In Bhaddu alias Jamal Vs. State of U.P. and others 2002(45) ACC 1085 also the petitioner along with his associates slaughtered a she-calf in the field of Sukhai. When the wailing of the she calf attracted the villagers, the butchers became violent and assaulted the villagers and gave them threats. People began to run hither and thither. Additional force was required to be deployed. Whereas, in the present case, we find that as the incident has taken place in secrecy and on the arrival of the police, the people who gathered were easily pacified and the remains of the animal were allowed to be buried.

Tauqeer Vs. State and others ACC 2002(44) 1088 was a case where the petitioner and his associates were cutting cows and calves and when some people intervened, the petitioner along with his associates mercilessly beat them due to which terror was created in the locality and public order was disturbed. But there is no such allegation against the petitioner in this case.  

It is thus, a matter of quality and degree whether the act has been done in public gaze and in an aggressive manner with scant regard to the sentiments of the other community or whether it has been done in a concealed manner, which can resolve the question whether the case is one involving public order, or is only a matter affecting law and order.

Learned counsel for the petitioner has placed reliance in the case of T. Devaki Vs. Government  of Tamil Nadu and others, (1990) SCC 456 wherein it was mentioned that merely making averments in the grounds of detention that as a result of an offence in public and in broad day light alarm, fear and a sense of insecurity was generated in the minds of the public of the area and thereby the detenu could be said to have acted in a manner prejudicial to the maintenance of public order which affected the even tempo of life of the community, was not sufficient. Repetition of these words in the grounds are not sufficient to inject the requisite degree of quality and potentiality in the incident in question, but there must be some substantive material to indicate that public order has been jeopardized. In the present case, to the contrary we find that on the arrival of the police in the early morning, the public had been pacified and disbursed and that the cow had been buried in the field of one Umesh Sharma.

It is also important that administrative authorities act with objectivity and balance and do not rush to detain a person under a preventive law only because the moral sense of some individuals or groups is outraged. Groups or individual with motivated political or communal ideologies often raise inordinate hue and cry for the slightest incident. We witness today a rampant growth in intolerance. It is regrettable that the media instead of advocating restraint often adds fuel to the fire by vociferously pandering to misguided, over-sensitive, intolerant groups. We find that for an event as innocuous as couples exchanging presents or holding hands on Valentine's day attacks are made by intolerant hoods. There have been incidents of attack by the public and an uneducated police on couples who are quietly sitting in a park. Should all such couples and others be detained under preventive laws because there acts have the potentiality to disturb public order as an increasingly intolerant section of society which has made it a mission to curb such activities. It is very important for the Authorities concerned and the Court to strike a proper balance and to desist from surrendering before any hysterical and disproportionate responses of motivated mobs who try to lay down their world view by force and intimidation, otherwise we would be converting our civilization into a mobocracy. The detaining authority has to be satisfied whether qualitatively a particular incident is of such a nature that only detention under a Preventive law would be the answer, and that prosecution under the normal criminal law would not suffice, as on occasion groups or sets of individuals become over-sensitive sometimes for political consideration or other extraneous benefits or because they are inspired by ideologies based on intolerance, even in cases of minor crimes or events.  

In Balwant Singh Vs. State of Punjab, AIR 1995 SC 1785, where a conviction under Sections 124-A and 153-A IPC of Balwant Singh and Bhupendra Singh was challenged, the Apex Court observed that merely raising of some slogans Khalistan Zindabad Raj Karega Khalsa, a couple of times by two lonesome appellants on the street should not have brought the matter within the mischief of Section 124-A or Section 153-A IPC against two Government Servant and that the officials exhibited lack of maturity and showed more of sensitivity in arresting the accused keeping in view the tense situation prevailing on the date of assassination of Smt. Indira Gandhi. In such a situation such over sensitiveness could even have proved counter productive, as such slogan raising could not give rise to feelings of enmity or hatred amongst different communities or religions or other groups.

Whilst the court is interested in preventing infractions of public order, but it must guard against an oversensitive reaction by an increasingly intolerant public, the court must exercise a balance and differentiate between situations where the prosecution under the normal criminal law could suffice and where nothing less than keeping a person in detention without trial under the preventive law was necessitated. It is, therefore, important to see the proportionality of the response to the act complained of. An act of slaughtering a cow in the secrecy of one own house in the dark hours probably because of poverty or lack of employment or hunger, would perhaps only involve a law and order issue and could not be said to stand on the same footing as a situation where a number of cattle have been slaughtered outside in public view and the public transport of their flesh or an incident where aggressive attack is made by the slaughterers against the complaining public, which may involve infractions of public order.  

For all these reasons this petition succeeds and is allowed. The detention order dated 2.2.2006 is quashed. The petitioner shall be released forthwith unless wanted in connection with some other criminal case.  

Dated: 15.12.2006

Ishrat


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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