# Islamuddin v. State of U.P. and others

- **Citation:** (2008) 1 ILRA 18
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2007-12-07
- **Case number:** Habeas Corpus Writ Petition No. 49099 of 2007
- **Bench:** Yatindra Singh, Vineet Saran
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/islamuddin-v-state-of-u-p-and-others-40974
- **Pages:** 5

## Headnote

Constitution of India Article 226-Habeas
Corpus
Petition-detention
order
challenged-on
the
ground
of
single
incident-may be personal attack but no
disturbance of public life-held-molesting
the daughter of informant-on public
place attack with knife and sworddisplaying
blood
sustained
swordpresence of large number of villagersdue to terror no villager came forward to
provide
help-consequently
died-heldeven single incident may disturb the
public order-subjective satisfaction of
detaining authority duly recorded-cannot
be interfered.

Held: Para 14

In the aforesaid facts, in our opinion,
although the order is based on a single
incident of murder based on personal
enmity, but the same having the effect of
terrorising
the
public
present
and
affecting the even tempo of life of, the
community
in
such
place,
would
constitute an act of disturbance of
"public order".
Case law discussed:
1993 SCC(Crl) 684, 1992(19) ACC 143, AIR
1990 SC 1068, AIR 1990 SC 516, 2007(59)
ACC 385, AIR 1970 SC 1228, 2004(II) UP.Cr.R
667, 2002(44) ACC 757, 1994 Cr.L.J 480, AIR
1988 SC 208.

## Text

18 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
Magistrate took an erroneous view that
the jurisdiction of Criminal Court was
completely ousted by the provisions of
Section 6-A of the Essential Commodities
Act.

11. The Criminal Courts have
jurisdiction under Section 451 of the Code
of Criminal Procedure to pass appropriate
orders with regard to the custody and
disposal of the property pending trial. The
vehicle loaded with so1vent is standing in
the open place at the police station
premises for the last about six years. The
vehicle will become junked with passage
of time.

12. In view of these facts and
circumstances, allowing the revision the
impugned order dated 19.6.2001 is set
aside. The seized Tanker and goods
loaded in it shall be released by the
Magistrate concern in favour of the
revisionist on his furnishing appropriate
bonds with sureties and guarantee for the
production of the vehicle if required by
the Court at any point of time. Revision
Allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.12.2007

BEFORE
THE HON'BLE YATINDRA SINGH, J.
THE HON'BLE VINEET SARAN, J.

Habeas Corpus Writ Petition No. 49099 of
2007

Islamuddin

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

Counsel for the Petitioner:
Mrs. Swati Agarwal
Counsel for the Respondents:
Sri. Arvind Tripathi
A.G.A.

Constitution of India Article 226-Habeas
Corpus
Petition-detention
order
challenged-on
the
ground
of
single
incident-may be personal attack but no
disturbance of public life-held-molesting
the daughter of informant-on public
place attack with knife and sworddisplaying
blood
sustained
swordpresence of large number of villagersdue to terror no villager came forward to
provide
help-consequently
died-heldeven single incident may disturb the
public order-subjective satisfaction of
detaining authority duly recorded-cannot
be interfered.

Held: Para 14

In the aforesaid facts, in our opinion,
although the order is based on a single
incident of murder based on personal
enmity, but the same having the effect of
terrorising
the
public
present
and
affecting the even tempo of life of, the
community
in
such
place,
would
constitute an act of disturbance of
"public order".
Case law discussed:
1993 SCC(Crl) 684, 1992(19) ACC 143, AIR
1990 SC 1068, AIR 1990 SC 516, 2007(59)
ACC 385, AIR 1970 SC 1228, 2004(II) UP.Cr.R
667, 2002(44) ACC 757, 1994 Cr.L.J 480, AIR
1988 SC 208.

(Delivered by Hon'ble tice Vineet Saran, J.)

1.

The
main
question
for
determination In this habeas corpus writ
petition which is directed against the
detention order dated 29.3.2007 passed by
District Magistrate, Bijnor is whether a
solitary
incident
can
amount
to
disturbance of public order or not.
FACTS:
1 All] Islamuddin V. State of U.P. and others
19

2. The grounds of detention as
mentioned in the impugned order dated
29.3.2007 are to the effect that on
4.3.2007 an incident had taken place in
which the petitioner and his associates
had molested the daughter of Jamir
Ahmad, whereafter in the evening the
father and brothers of the girl reached the
shop of the petitioner to complain of the
same to Habib, father of the petitioner.
The said Habib as well as the petitioner
and his relatives misbehaved with Jamir
Ahmad and his sons and threatened them
of dire consequences and asked them to
return back. Thereafter they got excited
and the petitioner took out a knife and his
accomplice Saleem took out a sword and
started attacking Jamir Ahmad and his
sons. The petitioner Islamuddin attacked
Jamir Ahmad on his chest with a knife
and his accomplice Saleem attacked said
Jamir Ahmad in his stomach with a
sword. There were a large number of
villagers on the spot but because of their
terror, no one could dare to oppose the
petitioner
and
his
associates,
who
thereafter left the spot displaying their
blood stained weapons and threatening
the villagers. After they had left the place,
the sons of Jamir Ahmad and other
villagers came forward to help Jamir
Ahmad, who was in the last stage of his
life. He was then taken to Bijnor and was
declared dead in the hospital. A case was
initially registered under sections 307,
323, 504, 506, 34 IPC which was later on
converted to section 302 IPC.

3. In the detention order it has also
been stated that said Jamir Ahmad was
attacked by the petitioner openly in the
crowded market of the village at about
7.30 p.m. and because of the terror of the
petitioner and his associates, no one was
even ready to give information or
evidence against them. It has further been
mentioned that the petitioner was arrested
on 11.3.2007 and the knife as well as the
sword which were used in the offence had
been recovered; that the police reported
that the villagers had terrorised thereby
affecting the normal life in the area; that
the said incident was reported in the local
newspaper Amar Ujala because of which
also the residents of the area were
terrorised of the petitioner and his
associates; and that after having been
arrested, the petitioner was sending
threats to the local residents that after he
was released on bail he would take action
against those who oppose him and that
because of the incident there was
disturbance in the area due to which
additional police force had to be sent to
the village.

4. We have heard Mrs. Swati
Agrawal learned counsel for the petitioner
who has rendered full assistance to this
Court and has placed the case in a
succinct manner which is worthy of
appreciation. We have also heard Sri
Arvind Tripathi, learned AGA and have
perused the record.

5. THE SUBMISSIONS:
The submission of the learned counsel for
the petitioner is two fold:

(i) There is violation of section 11 of the
National
Security
Act
as
the
approval/report
submitted
by
the
Advisory Board was after the prescribed
period of seven weeks.
(ii) The incident in question, if at all, may
amount to disturbance of "law and order"
and not "public order".

6. 1st SUBMISSION: Approval/
Report of advisory Board - within time.
20 INDIAN LAW REPORTS ALLAHABAD SERIES [2008

From the record it is clear that the
detention order was passed on 29.3.2007.
Though the same was communicated by
the Deputy Secretary on 21.5.2007, the
Advisory
Board
had
submitted
its
opinion/report well within seven weeks,
which was on 14.5.2007. As such, there is
no violation of section 11 of the National
Security Act and the first submission of
the learned counsel for the petitioner does
not have force.

7. 2nd SUBMISSION:- Single
incident may relate to disturbance of
"public order"

The learned counsel for the petitioner
has
vehemently
submitted
that
the
detention order has been passed on the
basis of a solitary incident which relates
to personal dispute between two parties
and would thus, if at all, be a case of
disturbance of law and order and not
public order. In support of her submission
she has placed reliance on Dipak Bose
alias Naripada Vs. State of West Bengal
1973 SCC (Cri) 684; Smt. Victoria
Fernades Vs. Lalmal Sawma and others
1992 (19) ACC 143 (SC); Mrs. T.
Devaki Vs. Government of Tamil Nadu
and others AIR 1990 SC 1068; Anand
Prakash Vs. State of U.P. and others
AIR 1990 SC 516 and Ram Pratap
Singh Vs. Union of India and others
2007 (59) ACC 385.

8. On the other hand Sri Tripathi,
learned AGA has submitted that even a
single incident which may disturb the
tranquility of the area may amount to
disturbance of public order and that since
the incident in the present case had taken
place in a public place, because of which
the residents of the area were terrorised,
the same would amount to disturbance of
public order. In support of his submission
he has placed reliance on Arun Ghosh
Vs. State of West Bengal AIR 1970 SC
1228; State of U.P. and another Vs.
Sanjai Pratap Gupta alias Pappu and
others 2004 (II) U.P.Cri.R. 667; Rana @
Parvindra Vs. Union of India and
others 2002 (44) ACC 757; Apda Haran
Singh Vs. Union of India and others
1994 Cri.LJ 480 and State of U.P. Vs.
Kamal Kishore Saini AIR 1988 SC 208.

9. It is true that a solitary case would
normally not amount to disturbance of
public order and may remain confined to
law and order problem but the same
cannot be generalised and the impact of
the incident has to be considered in the
facts of each individual case. The Apex
Court in the case of State of U.P. v. Sanjai
Pratap Gupta (supra) has, in paragraph
14, observed that "a single act cannot be
considered sufficient for holding that
public order was affected is clearly
without substance. It is not the number of
acts that matters. What has to be seen is
the effect of the act on the even tempo of
life, the, extent of its reach upon society
and its impact."

10. There are border line cases
where there could be a very fine
distinction between what amounts to
disturbance of "public order" and "law
and
order".
In
a
given
set
of
circumstances, the same act may amount
to disturbance of law and order, which is
a much wider term. However, in separate
set of facts and circumstances, the same
incident can amount to disturbance of
public order. Every incident which forms
the basis of passing of the detention order,
cannot be seen in isolation and has to be
considered in the light of the attending
circumstances. The true distinction lies
not merely in the nature or quality of the
1 All] Islamuddin V. State of U.P. and others
21
act, but in the degree and extent of its
reach and effect upon society. A Division
Bench of this Court in the case of Apda
Haran Singh vs. Union of India (supra)
while dealing with a case of an incident of
murder relating to an individual based on
personal enmity, held the same to be one
relating to public order as the facts of the
said case supported such decision.. Thus
there cannot be a straight jacket formula
by which a particular incident can be
classified as one relating to "law and
order" or "public order".

11. It is true that every assault in a
public place resulting in the death the
victim is likely to cause horror and panic
among the spectators but the same may
not
necessarily
amount
to
causing
disturbance of public order. It the impact
of the incident on the mind and lives of
the public which is to considered for
determining whether the same amounts to
disturbance public order or law and order.

12. The facts in the present case are
that the petitioner and his associate had
molested the daughter of the deceased,
regarding which the deceased along with
his sons, had gone to the shop of the
petitioner
for
lodging
the
protest.
Although the learned counsel for the
petitioner has submitted that it is a case of
old enmity relating to about four years
back when the marriage of the niece of
the deceased Jamil Ahmad was initially
settled with the petitioner and was
thereafter broken, and thus the deceased
and his family members had been
agitating and creating problems in the
family of the petitioner, but this question
could be relevant for the Advisory Board
to consider and not in this Habeas Corpus
petition. Nevertheless, we have looked
into this also and do not find any merit, as
there is no evidence to show that the
deceased had gone to the petitioner's
shop, well prepared for any untoward
incident. The story of the petitioner is not
supported by any document, except one
first information report which also was
lodged on the basis of an application
under section 156 (3) Cr.P.C., much after
the incident which had taken place on
4.3.2007.

13. Admittedly the incident is of a
public place. The deceased had suffered
knife and sword injuries, which are
attributed to the petitioner and his
accomplice Saleem. All this had been
executed in a busy village market and
after the incident, the petitioner and his
associates are said to have threatened the
public at large and left the place
displaying their blood-stained weapons,
which all would certainly amount to
creating terror in the minds of the public
at large. The clear case as set out in the
detention order is that no one from the
public could dare to come to the rescue of
the deceased and it was only after the
petitioner and his associates left the place
of incident that they came to help him.
Thereafter also, no person could gather
courage to inform the police or give
evidence against the petitioner and his
associates.

14. In the aforesaid facts, in our
opinion, although the order is based on a
single incident of murder based on
personal enmity, but the same having the
effect of terrorising the public present and
affecting the even tempo of life of, the
community
in
such
place,
would
constitute an act of disturbance of "public
order".
22 INDIAN LAW REPORTS ALLAHABAD SERIES [2008

15. CONCLUSION:
We, therefore, hold that:
1. There was sufficient compliance of
section 11 of the National Security Act;
2. A single incident may relate to
disturbance of "public order", as has been
found in the facts of the present case;
3. The subjective satisfaction of the
detaining
authority
has
been
duly
recorded;

16. This Court does not find any
good ground to interfere with the
impugned
order.
In
view
of
the
conclusions, the Habeas Corpus Writ
Petition is thus devoid of merits and is
accordingly dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.12.2007

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No. 38170 of 2005

Janardan Yadav

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

Counsel for the Petitioner:
Sri Ashok Khare
Sri Sunil Kumar Srivastava
Sri D.K. Tripathi

Counsel for the Respondents:
Sri R.K. Tiwari
S.C.

U.P.
Regularisation
of
Daily
Wages
Appointment on Group 'D' posts Rules
2001-Rule
4
(1)-Regularisation-Daily
wagers appointed prior to 29.6.91 and
continuing
on
21.12.01-entitled
for
Regularisation-provided
possess
minimum
required
qualification
condition of continuous working found
no place in Rules-can not be basis for
denied of Regularisation.

Held: Para 8

Since the Rules are applicable only to
daily wage employees, the Rules framing
authority was aware that such employee
could not have worked continuously
throughout and, therefore, has clearly
provided that the engagement must be
before 29.6.1991 and he is continuing as
such on the date of commencement of
the Rules. If a daily wage engagement
has been made before 29.6.1991 and
was continuing on 21.12.2001, meaning
thereby the daily wage engagement
remained necessity of the department or
the requirement thereof for more than
10 years, for such a person only, the
benefit of regularization under 2001
Rules has been provided, and it nowhere
requires further that the incumbent must
have worked continuously from the date
of
initial
engagement
till
the
commencement of these Rules and to
read these words would amount to
legislation, which is not permissible in
law. While interpreting the statute, it is
well settled that neither any word shall
be added nor be subtracted but if a plain
reading of the statute is clear and
unambiguous, the same has to be
followed as such. This Court does not
find
any
ambiguity
in
Rule-4(1)
providing as to which kind of persons
would be entitled for regularization and
it nowhere requires that the incumbent
must have worked throughout from the
date of initial engagement till the date of
commencement of the Rules.

(Delivered by Hon'ble Sudhir Agarwal, J.)

1. Heard Sri D.K. Tripathi, holding
brief of Sri Sunil Kumar Srivastava,
learned counsel for the petitioner and
learned
standing
counsel
for
the
respondents.