# Guddu alias Shamsher v. State of U.P. and others

- **Citation:** (2001) 1 ILRA 297
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2000-01-06
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/guddu-alias-shamsher-v-state-of-u-p-and-others-39719
- **Pages:** 8

## Text

1All] Guddu alias Shamsher V. State of U.P. and others
297
should comply the order of the
superior authority. This Full Bench
decision is not applicable to the facts of
this case as learned counsel for the
petitioner has not been able to show any
provision under which the Director of
Education is subordinate to the State
Education
Minister.
Therefore,
this
argument of the learned counsel is devoid
of any merit.

5. So far as the other contention of
the learned counsel for the petitioner is
concerned
that
Rs.1634/-
has
been
deducted from his salary without any
inquiry or supplying a copy of the order,
the petitioner may approach the Principal,
Government Inter College, Agra and
make a representation for providing a
copy of the order by which his salary of
Rs.1634/- has been deducted. On such a
representation copy of the order shall be
made available to the petitioner within a
period of two weeks from the date a
certified copy of this order is produced
before the principal.

6. For the reasons aforesaid and
subject to the observations made.

This writ petition fails and is
accordingly dismissed.

25,*,1$/ -85,6',&7,21
25,*,1$/ -85,6',&7,21
&5,0,1$/ 6,'(
&5,0,1$/ 6,'(
'$7(' $//$+$%$' '(&(0%(5
'$7(' $//$+$%$' '(&(0%(5
%()25(
%()25(
7+( +21·%
7+( +21·%/( *3 0$7+85 -
/( *3 0$7+85 -
7+( +21·%/( 86 75,3$7+, -
7+( +21·%/( 86 75,3$7+, -

&ULPLQDO 0LVF +DEHDV &RUSXV 3HWLWLRQ 1R
 RI
*XGGX DOLDV 6KDPVKHU
«3HWLWLRQHU
9HUVXV
6WDWH RI 83 DQG RWKHUV «5HVSRQGHQWV
&RXQVHO IRU WKH 3HWLWLRQHU
6UL 93 6ULYDVWDYD
&RXQVHO IRU WKH 5HVSRQGHQWV
6UL 61 0LVUD
$*$

&RQVWLWXWLRQ RI ,QGLD $UWLFOH 7KH
TXHVWLRQ
ZKHWKHU
WKH
SHWLWLRQHU
ZDV
LQIRUPHG WKDW KH KDG D ULJKW WR PDNH
UHSUHVHQWDWLRQ WR WKH GHWDLQLQJ DXWKRULW\
QDPHO\ WKH 'LVWULFW 0DJLVWUDWH LV D SXUH
TXHVWLRQ RI IDFW +HOG LQ SDUD
2UGHU RI GHWHQWLRQ FDQ EH SDVVHG RQ WKH
VXEMHFWLYH VDWLVIDFWLRQ RI WKH GHWDLQLQJ
DXWKRULW\ ,I WKH 'LVWULFW 0DJLVWUDWH ZDV
RI WKH RSLQLRQ WKDW LW ZDV QHFHVVDU\ WR
GHWDLQ WKH SHWLWLRQHU DORQH LQ RUGHU WR
SUHYHQW KLP IURP DFWLQJ LQ DQ\ PDQQHU
SUHMXGLFLDO WR WKH PDLQWHQDQFH RI SXEOLF
RUGHU WKHQ VXFK D VDWLVIDFWLRQ FDQQRW EH
YLWLDWHG RQO\ RQ WKH JURXQG WKDW QR VXFK
RUGHU KDV EHHQ SDVVHG DV UHJDUGV WKH
RWKHU FRDFFXVHG RI WKH FDVH

By the Court

1. This habeas corpus petition has
been filed by Guddu @Shamsher for
quashing the detention order passed
against him and setting him at liberty
forthwith.
2.

The
District
Magistrate,
Ghaziabad passed an order on 6.1.2000
under Section 3(2) of the National
Security Act (hereinafter referred to as the
Act) for detaining the petitioner Guddu @
Shamsher with a view to prevent him
from acting in any manner prejudicial to
the maintenance of public order.

3. The detention order and also the
grounds of detention were served upon
the petitioner on the same day, i.e. on
6.1.2000 in jail as he was in judicial
INDIAN LAW REPORTS ALLAHABAD SERIES [2001
298
custody in respect of an offence being
case Crime No. 235 of 1999 under
Sections 363, 366, 376 IPC and Section
3(1)(x) of the Scheduled Castes and
Scheduled
Tribes
(Prevention
of
Atrocities) Act of P.S. Ganmukteshwar.
The ground of detention relates to an
incident which took place at about 12 in
the night of 2/3.8.1999. The petitioner
along with his companions, armed with
pistols and guns, came to the house of
Smt. Sheela Devi, widow of Murari Lal,
resident
of
Manak
Chowk.
P.S.
Ganmukteshwar and forcibly carried way
her 13 year old daughter Sunita in a
tractor. The petitioner and his companions
constantly threatened her with firearms
and repeatedly raped her. Thereafter, he
brought her in a tractor and threw her in
front of the Panchayat in Manak Chowk
at about 10 p.m. on 3.8.1999.

4. The order of detention passed by
the District Magistrate was approved by
the State Government within the period
prescribed
under
sub-section
(4) of
Section 3 of the Act. The petitioner made
representation to the State Government
and the Central Government, which were
given by him to the Superintendent of Jail
on 28.1.2000. After receiving comments
from the Station Officer of the police
station concerned and Superintendent of
Police, the District Magistrate sent the
representation to the State Government on
4.2.2000 along with his own comments.
The representation was received by the
State Government on 5.2.2000 which was
Saturday. It was examined by the Joint
Secretary (Home) and also by the Home
Secretary on 7.2.2000 and was ultimately
rejected
by
the
Chief
Minister
on
8.2.2000. The representation made to the
Central Government was received there
on 7.2.2000 and was put up before the
Dy. Secretary (Home) and the concerned
Joint Secretary on 8.2.2000. Finally, it
was rejected by the Home Secretary on
9.2.2000. The case of the petitioner was
also referred to the advisory board in
accordance with Section 10 of the Act.
The advisory board gave an opinion that
there was sufficient cause to detain the
petitioner and a report to that effect was
forwarded to the State Government. The
State Government, after examining the
matter afresh and also the report of the
advisory board, passed an order under
Section 12 (1) of the Act confirming the
order for keeping the petitioner under
detention for a period of 12 months.

5. The principal submission of
learned counsel for the petitioner. Sri V.P.
Srivastava, is that the petitioner has been
detained on the basis of a solitary incident
which relates to "law and order" and not
to "public order" and, therefore, the order
of detention is illegal. Learned counsel
has urged that the solitary act alleged
against the petitioner is not subversive of
public order and, therefore, the detention
on the ostensible ground of preventing
him from acting in a manner prejudicial to
public order was not justified. In support
of his submission he has placed reliance
on Dr. Ram Manohar Lohia Vs. State of
Bihar, AIR 1966 SC 740, Subhash
Bhandari Vs. District Magistrate, 1988
ACC 48 (SC), Gulab Mehra Vs. State,
1987 ACC 520 (SC), Mrs. T. Deoki Vs.
Government of Tamil Nadu, 1990 JIC
832 and Smt. Victoria Fernandes Vs. Lal
Mauli, 1992 ACC 143 (SC). In Subhash
Bhandari (supra) it was held as follows :

"A solitary act of omission or
commission
can
be
taken
into
consideration for being subjectively
satisfied, by the detaining authority
1All] Guddu alias Shamsher V. State of U.P. and others
299
to pass an order of detention if the
reach, effect and potentiality of the
act is such that it disturbs public
tranquility by creating terror and
panic in the society or a considerable
number of the people in a specified
locality where the act is alleged to
have been committed. Thus. It is the
degree and extent of the reach of the
act upon the society which is vital for
considering the question whether a
man has committed only a breach of
law and order or has acted in a
manner likely to cause disturbance to
public order."

6. There can be no quarrel with the
proposition of law urged by Sri Srivatava.
It has to be examined here what is the
degree and extent of the act upon the
society and it is the answer to this
question which will determine whether
the offending act is a mere breach of law
and order or it causes disturbance of
public order. In the grounds of detention it
is mentioned that on account of abhorring
and terrorising act of forcibly taking away
a girl from her home and of gang rape
committed by the petitioner and his
companions an atmosphere of fear and
terror was created in the area and every
one started feeling insecure. It is further
mentioned that after the incident the
people in the entire area stopped sending
their girls to schools, markets or place of
work. The girls also stopped moving
alone and stopped going to schools or
markets and fields. Hundreds of people of
the area of all castes and creeds expressed
their anger and anguish over the incident
by
blocking
the
main
MeerutGanmukteshwar road, and also resorted to
a `dharna'. Due to this reason the normal
activity of people at large was obstructed
and public order was disturbed. When a
solitary act may amount to disturbance of
public
order,
was
explained
by
Hidayatullah, C.J. in Arun Ghosh Vs.
State of West Bengal, AIR 1970 SC 1228,
and relevant part of paragraph 3 of the
judgement is being reproduced below :

".........An Act by itself is not
determinant of its now gravity. In its
quality it may not differ from another
but in its potentiality it may be very
different. ............Take another
case of a man who molest women in
lonely places. As a result of his
activities girls going to college and
schools are in constant danger and
fear. Women going for their ordinary
business are afraid of being way-laid
and assaulted. The activity of this
man in its essential quality is not
different from the act of the other
man but in its potentiality and in its
effect upon the public tranquility
there is a vast difference. The act of
the man who molests the girls in
lonely places causes a disturbance in
the even tempo of living which is the
first requirement of public order. He
disturbs
the
society
and
the
community. His act makes all the
women apprehensive of their honour
and he can be said to e causing
disturbance of public order and not
merely committing individual actions
which may be taken note of by the
criminal prosecution agencies. It
means therefore that the question
whether a man has only committed a
breach of law and order or has acted
in a manner likely to cause a
disturbance of the public order is a
question of degree and the extent of
the reach of the act upon the
society......."
INDIAN LAW REPORTS ALLAHABAD SERIES [2001
300
7. The test whether an act relates to
law and order or it amounts to disturbance
of public order, was formulated in the
aforesaid case as under:

".........Does it lead to disturbance
of the current of life of the
community so as to amount 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 facts. There is
no formula by which one case can be
distinguished from another......."

8. The grounds of detention in the
present case show that the petitioner along
with his companions came on a tractor and
forcibly carried away a young girl of 13
years of age while she was sleeping in her
house and repeatedly raped her and
threatened
her
with
firearms
and,
thereafter, on the next day at about 10 in
the night brought her back and threw her
near the panchayat. While going back the
people
were
again
threatened
with
firearms. The forcible abduction of a girl
from her house by several persons
accompanied with threats with fire-arms is
bound to affect everyone residing in that
area.
The people would be deeply
concerned with the safety, protection and
honour of the girls and womenfolk of the
area, and they can legitimately think that
sending a girl alone to school, market or
any other place would be highly unsafe
and would tend to keep them properly
secure in their own houses. It is not
possible to believe that such an incident
would have affected the victim Suneeta or
her mother Smt. Sheela Devi alone, and
would not have affected the people at
large who are residing in that area. The
affect and reach of the act is not to be
judged in the cool atmosphere of an airconditioned court room, but has to be
judged from the spontaneous reaction of
the people and community at large of that
area. Again what was the reaction is to be
seen at the time of incident and shortly
thereafter and not after a long lapse of
time as things cool down with the passage
of time. The grounds show that hundreds
of people of that area, irrespective of caste
or community, resorted to blocking of the
road and `dharna' to express their anger
and resentment against the abduction and
gang rape of the girl. This itself shows that
the offending act disturbed the even tempo
of life of the community and clearly falls
within the domain of "public order". It
may be pointed out that in Arun Ghosh
(supra) the act of molestation of girls in a
lonely places was held as an act relating to
disturbance of public order. The case in
hand stands on a much stronger footing as
the petitioner along with his companions
armed with pistols and guns not only
forcibly carried away the girl from her
house but also repeatedly raped her. Thus,
there cannot be even a slightest doubt that
the ground on which the order of detention
is founded clearly relates to disturbance of
public order and not to breach of law and
order. The authorities cited by the learned
counsel for the petitioner have not laid
down any contrary principle. On facts of
these cases the grounds were held to be
that of breach of public order and,
therefore, they can be of no assistance to
the petitioner.

9. Sri Srivastava has next urged that
at the time when the detention order was
served upon the petitioner, he was already
in custody in respect of a criminal case
and his bail application had also been
rejected by the learned sessions judge
1All] Guddu alias Shamsher V. State of U.P. and others
301
and, consequently, it was not all possible
for the petitioner to commit any such act
which may save amounted to disturbance
of public order. According to the learned
counsel, this showed that the order of
detention had been passed in a mechanical
way and without any application of mind.
It has been further urged that the
subjective satisfaction of the detaining
authority was completely vitiated as the
same was not arrived at on consideration
of relevant materials.

10. The question as to whether a
detention order can be passed against a
person who is already in custody in
respect of a criminal offence has been
considered in a series of decisions by the
Apex Court. In Sanjiv Kumar Agarwal
Vs. Union of India, AIR 1990 SC 1202,
after reviewing all earlier cases including
those cited by learned counsel for the
petitioner, it was held as follows :

"It could not be said that no order of
detention can validly be passed
against a person in custody under any
circumstances. Therefore, the fact
and circumstances of each case have
to be taken into consideration in the
context of considering the order of
detention passed in the case of a
detenu who is already in jail. In the
instant case the detaining authority
was not only aware that the detenu
was in jail but also noted the
circumstances on the basis of which
he was satisfied that the detenu was
likely to come out on bail and
continue to engage himself in the
smuggling of goods. Therefore the
detention was not ordered on the
mere ground that he is likely to be
released on bail but on the ground
that the detaining authority was
satisfied that the detenu was likely to
indulge in the same activities if
release
on
bail.
Therefore
the
detention order could not be quashed
merely on the ground that the detenu
was in jail."

11. In Smt. Azra Fatma Vs. Union
of India, 1990 Crl. L.J. 1731, the view
expressed in Sanjiv Kumar Agarwal
(supra) was reiterated and it was held that
it cannot be said that no order of detention
can validly be passed against a person in
custody under any circumstances. The
facts and circumstances of each case have
to be taken into consideration in the
context of considering the order of
detention in the case of a detenu who is
already in jail. In this case, though the bail
application filed by the detenu had
already been rejected, the order of
detention was upheld. In Kamarunnissa
Vs. Union of India, AIR 1991 SC 1640,
Ahmadi, J. (as his lordship then was) after
reviewing the earlier authorities held as
follows :

"In the case of a person in custody a
detention order can validly be passed
(1)if the authority passing the order
is aware of the fact that he is actually
in custody; (2) if he has reason to
believe on the basis of reliable
material placed before him (a) that
there is a real possibility of his being
released on bail, and (b) that on
being so released he would in all
probability indulge in prejudicial
activity and (3) if it is felt essential to
detain him to prevent him from so
doing."

12. In Abdul Sathar Ibrahim Manik
Vs. Union of India, AIR 1991 SC 2261, it
was held as follows :
INDIAN LAW REPORTS ALLAHABAD SERIES [2001
302
"If the detenu has moved for bail
then the application and the order
thereon refusing bail even if not
placed before the detaining authority
it does not amount to suppression of
relevant material. The question of
non-application
of
mind
and
satisfaction being impaired does not
arise as long as the detaining
authority was aware of the fact that
the detenu was in actual custody."
13. The same question was again
considered in Bijendra Kumar Rai Vs.
Union of India, AIR 1993 SC 962 and it
was held that if sufficient material was
placed before the detaining authority and
he is satisfied that there was compelling
necessity for detaining the detenu in order
to
prevent
him
from
indulging
in
offending activities, the Court is not
entitled to interfere with the detention
order merely on the ground that detenu
was already in custody in respect of a
criminal offence. Similar view has been
recently taken in Ahamed Nassar Vs. State
of Tamil Nadu, 1999 (4) Crimes 358 (SC)
(paragraph 41), wherein it was held as
follows :
"In spite of rejection of the bail
application by a court, it is open to
me detaining authority to come to his
own
satisfaction
based
on
the
contents of the bail application
keeping in mind the circumstance
that there is likelihood of detenu
being
released on bail. Merely
because no bail application was then
pending is no premise to hold that
there was no likelihood of his being
released on bail........"

14. In this connection it is necessary
to examine the grounds of detention. It is
enumerated therein that the petitioner is in
judicial custody and his bail application
had
been
rejected
by
the
learned
magistrate on 16.8.1999 and the bail
application filed in the court of sessions
on 1.10.1999 had been rejected by IInd
Addl. Sessions Judge on 27.10.1999. The
list of documents supplied along with the
detention order contain at serial no. 44
"copy of the bail application of the
petitioner" notice of which had been
given to the Government Advocate in
Allahabad
High
Court.
Under
the
Allahabad High Court Rules, before
actually filing a bail application in Court,
copies of the bail application and notice
thereof
have
to
be
given
to
the
Government Advocate. This had actually
been done by the petitioner. This is
conclusive proof of the fact that the
petitioner was making serious efforts to
get bail.

15. There can be no doubt that the
detaining authority was fully aware of the
fact that the petitioner was in custody in
jail at the time when he passed the
detention order. It is not a case where the
detaining authority was either unaware of
the fact that the petitioner was already in
jail in connection with a criminal case or
the relevant materials regarding the
rejection of his bail application had not
been placed before him. Therefore, the
detention of the petitioner cannot be
assailed on the ground that he was already
in custody at the time when the order was
passed.

16. Sri V.P. Srivastava had next
urged that the copies of the medical
examination report and X-ray report of
the victim Suneeta had not been supplied
to the petitioner and as a result of such a
lapse, he could not make an effective
1All] Guddu alias Shamsher V. State of U.P. and others
303
representation
against
his
detention,
rendering his continued detention illegal.
The contention raised is both factually
and legally incorrect. A copy of grounds
of detention has been filed as annexure-2
to the writ petition, and it gives the list of
documents
copies
of
which
were
furnished to the petitioner. The copy of
the medical examination report of Suneeta
is mentioned at serial no. 39 of the list and
this clearly shows that a copy of the said
document was supplied to the petitioner.
The grounds do not at all show that the
detaining
authority
had
taken
into
consideration X-ray examination report of
the victim. It is well-settled that the copies
of only such documents on which the
order of detention is primarily based has
to be supplied to the detenu and the
detention order would not be vitiated
merely on the ground that the copies of
non
material
documetns
were
not
furnished. Sri Madan Lal Anand Vs.
Union of India, AIR 1990 SC 176, M.
Mohd. Sulthan Vs. Joint Secretary, AIR
1990 SC 2222, Syed Farooq Mohd. Vs.
Union of India, AIR 1990 SC 1597 and
Kamarunnissa Vs. Union of India, AIR
1991 SC 1640.
17. Learned counsel has urged that
though in the grounds of detention it was
mentioned that the petitioner could make
a representation to the State Government
and to the Central Government but it was
not mentioned that the petitioner could
also
make
a
representation
to
the
detaining
authority,
namely,
to
the
District Magistrate and on account of such
a lapse the petitioner could not exercise
his constitutional right of making a
representation against the detention order
to the detaining authority, rendering his
continued detention invalid. In support of
this submission, learned counsel placed
reliance on State of Maharashtra Vs.
Santosh Shankar Acharya, JT 2000 (8)
SC374, wherein it has been held that noncommunication to a detenu that he has a
right to make representation to detaining
authority would constitute an infraction of
a valuable right of a detenu under Article
22 (5) of the Constitution. We have given
our
thoughtful
consideration
to
the
submission made by the learned counsel,
and we are of the opinion that such a
contention cannot be accepted in the
present case. The question whether the
petitioner was informed that he had a
right to make representation to the
detaining authority, namely, the District
Magistrate is a pure question of fact. In
the writ petition no such plea has been
raised and, as a result, the respondents
had no opportunity to give reply to the
said
fact.
It
is
not
necessary
to
communicate such a right to the petitioner
in the grounds of detention itself. It could
be very well be done separately by any
permissible mode. Therefore. In absence
of any pleading to that effect such an
inference cannot be drawn in favour of
the detenu by merely looking at the
grounds of detention.

18. Lastly, it was urged that there
were other persons who are alleged to
have participated along with the petitioner
in the crime in question, but no order of
detention has been passed against them
and, consequently, the order passed by the
District Magistrate for detaining the
petitioner is hit by vice of discrimination.
It is well-settled that an order of detention
can
be
passed
on
the
subjective
satisfaction of the detaining authority. If
the District Magistrate was of the opinion
that it was necessary to detain the
petitioner alone in order to prevent him
from acting in any manner prejudicial to
INDIAN LAW REPORTS ALLAHABAD SERIES [2001
304
the maintenance of public order, then
such a satisfaction cannot be vitiated only
on the ground that no such order has been
passed as regards the other co-accused of
the case. This view has been taken by a
Full Bench of our Court in Chandra
Prakash Paswan Vs. State, 1999 (38)
ACC 721.

19. No other point was urged.
20. For the reasons mentioned
above, we do not find any merit in this
habeas corpus petition, which is hereby
dismissed.

25,*,1$/ -85,6',&7,21
25,*,1$/ -85,6',&7,21
&,9,/ 6,'(
&,9,/ 6,'(
'$7(' $//$+$%$'
'$7(' $//$+$%$'
%()25(
%()25(
7+( +21·%/( '6 6,1+$ -
7+( +21·%/( '6 6,1+$ -
7+( +21·%/( .$0$/ .,6+25(
7+( +21·%/( .$0$/ .,6+25( -

&LYLO 0LVF :ULW 3HWLWLRQ 1R RI

%KXUH\
«3HWLWLRQHU
9HUVXV
6WDWH RI 83 RWKHUV
«5HVSRQGHQWV

&RXQVHO IRU WKH 3HWLWLRQHU
6KUL 3UDNDVK .ULVKQD
&RXQVHO IRU WKH 5HVSRQGHQWV
6KUL 6. 0HKURWUD
6&

/DQG DFTXLVLWLRQ $FW 6HFWLRQ $
WKH LPSOHPHQWDWLRQ RI WKH RUGHU SDVVHG
XQGHU
6HFWLRQ
$
RI
WKH
$FW
LV
VWDWXWRU\
GXW\
RI
WKH
DXWKRULW\
FRQFHUQHG ,QGHHG KH LV REOLJHG WR GR
VR +HOG LQ SDUD
7KH UHVSRQGHQWV MRLQWO\ DQG VHYHUDOO\
VKDOO
WDNH
DSSURSULDWH
VWHSV
IRU
HQIRUFHPHQW
RI
WKH
RUGHU
GDWHG

0DUFK

$QQH[XUH
WR
WKH
3HWLWLRQ DQG HQVXUH WKDW WKH RUGHU LV
HQIRUFHG LQ DFFRUGDQFH ZLWK ODZ ZLWKLQ D
SHULRG RI VL[ PRQWKV

By the Court

1. Heard Sri Prakash Krishna, the
learned
counsel
appearing
for
the
petitioner and Sri S.K. Mehrotra, the
learned Brief Holder of the state of U.P.
representing the respondents.

2. By means of instant petition under
Article 226 of the Constitution of India,
the petitioner prays, in substance, for
direction
to
the
respondents
for
implementation of the order dated 31st
March, 1993 passed by the Special Land
Acquisition
Officer,
Moradabad,
the
respondent no. 2, in proceedings under
Section 28-A of the Land Acquisition
Act, 1894, hereinafter called the Act, A
copy of the said order is Annexure '2' to
the petition.

3. Neither is there anything in the
counter-affidavit filed on behalf of the
respondents
nor
has
anything
been
pointed out by the learned counsel
representing the respondents which may
justify the inaction on the part of the
respondent no. 2 in not implementing the
order dated 31st March, 1993. It cannot be
gainsaid that implementation of the order
passed under Section 28-A of the Act is
statutory duty of the authority concerned.
Indeed, he is obliged to do so.

4. For what has been said above, the
petition succeeds, and is allowed. The
respondents jointly and severally, shall
take appropriate steps for enforcement of
the
order
dated
31st
March
1993,
(Annexure-2 to the petition) and ensure
that the order is enforced in accordance