# Manoj Jaiswal v. Union of India & Ors

- **Citation:** (2015) 3 ILRA 1025
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2015-09-30
- **Case number:** Habeas Corpus No. 5 of 2015
- **Bench:** Dinesh Maheshwari, Rakesh Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/manoj-jaiswal-v-union-of-india-ors-43335
- **Pages:** 9

## Headnote

Constitution
of
India,
Art.-226-Habeas
Corpus
Petition-challenging
detention
order-on ground causing death in open
market-can not be disturb to public orderheld-such act caused terror and panic in
busy locality-certainly effects public order,
the
second
ground-solitary
incident
sufficient to form opinion to disturb the
public order-detention held-proper.
Held: Para-12 & 20
12-The daring act of the petitioner in a
busy market, in our opinion, affected
public order and not merely law and
order. The said act, certainly, caused
terror and panic in the locality and
affected those who watched the whole
thing in fear as helpless spectators. The
act in question adversely affected the
even tempo of life of the community and
caused a general disturbance of public
tranquility
20-This leads us to the third contention
made on behalf of the petitioner. The
question as to whether a person who is in
jail can be detained under detention law
has
been
the
subject-matter
of
consideration before the Apex Court time
and again, and it has been consistently held
in such cases that there was no law in
passing a detention order even against a
person under custody, however, at the time
of
passing
the
detention
order,
the
detaining authority should be aware that
the detenu was already in custody and was
likely to be released on bail. The conclusion
that the detenu could be released on bail
cannot be ipse dixit of the detaining
authority and once it is established that the
detaining authority was conscious of the
said fact, its subjective satisfaction based
on materials, normally, should not be
interfered with.
Case Law discussed:
(1990) 2 SCC 456; (2012) 7 SCC 181; (2012) 2
SCC 176; (1970) 1 SCC 98; (1983) 4 SCC 301;
(1989) 4 SCC 509; (1994) 5 SCC 54; (2004) 8
SCC 106; W.P. No. 2690 OF 2015.

## Text

3 All] Manoj Jaiswal Vs. Union of India & Ors.
1025
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 30.09.2015
BEFORE
THE HON'BLE DINESH MAHESHWARI, J.
THE HON'BLE RAKESH SRIVASTAVA, J.
Habeas Corpus No. 5 of 2015
Manoj Jaiswal
 ...Petitioner
Versus
Union of India & Ors.
...Respondents
Counsel for the Petitioner:
B.K. Shukla, P.K. Rai
Counsel for the Respondents:
Govt. Advocate, A.S.G., Vimal Kumar
Srivastava
Constitution
of
India,
Art.-226-Habeas
Corpus
Petition-challenging
detention
order-on ground causing death in open
market-can not be disturb to public orderheld-such act caused terror and panic in
busy locality-certainly effects public order,
the
second
ground-solitary
incident
sufficient to form opinion to disturb the
public order-detention held-proper.
Held: Para-12 & 20
12-The daring act of the petitioner in a
busy market, in our opinion, affected
public order and not merely law and
order. The said act, certainly, caused
terror and panic in the locality and
affected those who watched the whole
thing in fear as helpless spectators. The
act in question adversely affected the
even tempo of life of the community and
caused a general disturbance of public
tranquility
20-This leads us to the third contention
made on behalf of the petitioner. The
question as to whether a person who is in
jail can be detained under detention law
has
been
the
subject-matter
of
consideration before the Apex Court time
and again, and it has been consistently held
in such cases that there was no law in
passing a detention order even against a
person under custody, however, at the time
of
passing
the
detention
order,
the
detaining authority should be aware that
the detenu was already in custody and was
likely to be released on bail. The conclusion
that the detenu could be released on bail
cannot be ipse dixit of the detaining
authority and once it is established that the
detaining authority was conscious of the
said fact, its subjective satisfaction based
on materials, normally, should not be
interfered with.
Case Law discussed:
(1990) 2 SCC 456; (2012) 7 SCC 181; (2012) 2
SCC 176; (1970) 1 SCC 98; (1983) 4 SCC 301;
(1989) 4 SCC 509; (1994) 5 SCC 54; (2004) 8
SCC 106; W.P. No. 2690 OF 2015.
(Delivered by Hon'ble Rakesh Srivastava, J.)
1. This is a petition through jail under
Section 226 of the Constitution for issuance
of a writ of Habeas Corpus by Manoj
Jaiswal, who has been detained by an order
of detention dated 11.10.2014 passed by the
District Magistrate, Barabanki, under subsection (2) of section 3 of the National
Security Act, 1980 (for brevity 'Act') with a
view to prevent him from acting in any
manner prejudicial to the maintenance of
public order.
2. The grounds of detention, as
communicated to the detenue by the
District Magistrate on the basis of which
the detention order was passed, are as
follows:
dk;kZy; ftyk eftLVsaV] ckjkcadh
fu#f) ds vk/kkj
pwafd
vkns'k
la[;k
06@--------
fnukad
11&10&2014 ds vUrxZr vki eukst tk;loky mez
yxHkx 33 o"kZ] iq= fouksn tk;loky] fuoklh nf{k.k
Vksyk cadh] Fkkuk dksrokyh uxj] tuin ckjkcadh dks
jk"Vah; lqj{kk vf/kfu;e] 1980 1⁄4vf/kfu;e la[;k
1026
 INDIAN LAW REPORTS ALLAHABAD SERIES
65@19801⁄2 dh /kkjk 3 mi /kkjk 1⁄421⁄2 ds v/khu fu#)
fd;k x;k gSA
vr,o] mDr vf/kfu;e dh /kkjk&8 ds micU/kksa
ds vuqlj.k esa ,rn~}kjk vkidks lwfpr fd;k tkrk gS
fd vkidks fu#) djus ds vk/kkj vuqorhZ izLrj esa
fn;s x;s gS%&
fnukad 15&01&2014 dks nksigj 02 cts vkius
vius vU; lkfFk;ksa ds lkFk cadh cktkj] Fkkuk
dksrokyh uxj] tuin ckjkcadh esa vjfoUn ;kno dks
repa s ls Qk;j djds u`'kal gR;k dj nhA bl
?kVuk dh izFke lwpuk fjiksVZ e`rd vjfoUn ;kno ds
HkkbZ iq:"kksRre yky ;kno us vijk/k la[;k&40@14]
/kkjk&147@148@149@307@302
Hkkjrh;
n.M
fo/kku] Fkkuk dksrokyh uxj] tuin ckjkcadh esa
iathd`r dh x;hA e`rd vjfoUn ;kno dk iksLV
ekVZe fnukad 15&01&2014 dks gqvkA iksLVekVZe esa
e`rd vjfoUn ;kno dh e`R;q vkXus;kL= dh pksVksa ls
gksuk ik;k x;kA
bl vijk/k ds xokg iq:"kksRre yky ;kno]
v'kaw ;kno] lksuw ;kno ,oa iznhi ;kno us
vius&vius c;kuksa esa mDr u`'kal gR;k dh ?kVuk dk
leFkZu fd;k gSA xokgksa us tgka ,d lkFk mDr
dkfjr ?kVuk dk leFkZu fd;k gS ogha nwljh vksj ;g
Hkh lk{; gS fd vki }kjk dkfjr mDr u`'kal
gR;kdk.M ls yksd dkQh Hk;Hkhr gks x;s gSa] Mj ds
dkj.k vius ?kjksa ds njokts o f[kM+fd;ka cUn dj
yh] yksx ?kjksa ls ugha fudysA nqdkusa cUn gks x;h
yksx vko';d oLrq,a [kjhnus ls oafpr gks x;sA
LFkkuh; yksd O;oLFkk fNUu&fHkUu gks x;h vkSj
tuekul dk veu pSu vLr O;Lr gks x;kA vki
}kjk dkfjr mDr u`'kal gR;kdk.M dk lekpkj
fofHkUu lekpkj i=ksa esa izeq[krk ls izdkf'kr gqvkA
ftldks i<+dj tuthou esa Hk; O;kIr gks x;k vkSj
O;kid :i ls tuekul dk veu pSu foijhr :i
ls izHkkfor gqvkA vki }kjk dkfjr mDr gR;kdk.M
esa vHkh Hkh yksx nqdku] ?kj o dkjksckjh Mjs o lgesa
gSA
vki fnukad 27&01&2014 ls ftyk dkjkxkj]
ckjkcadh esa fu#) gSA vki tekur ij NwVus dk
iz;kl dj jgs gSa rFkk ekuuh; mPp U;k;ky; esa
tekur izkFkZuk i= izLrqr dj fn;k gSA vkids
tekur ij NwVus dh iw.kZ lEHkkouk gSA ;fn vki
tekur ij NwVdj tsy ls Ckkgj vk x;s rks iqu%
xaHkhj vijk/k ?kfVr djds yksd O;oLFkk dks Hkax
djsaxsa ,oa tuekul ds veu pSu dks fCkxkM+saxsaA
mi;qZDr vk/kkjksa ls esjk ;g lek/kku gks x;k gS
fd vkids }kjk ,slh fdlh Hkh jhfr esa dk;Zokgh fd;s
tkus dh lEHkkouk gS] tks yksd O;oLFkk cuk;s j[kus
ds izfrdwy gS] vkSj vkidks ,slh jhfr esa dk;Zokgh
djus ls] tks yksd OloLFkk cuk;s j[kus esa izfrdwy
gS] dks jksdus ds mn~ns'; ls] ;g vko';d gS fd
vkidks fu#) fd;k tk;sA
vkidks mDr vf/kfu;e dh /kkjk&8 ds
vuqlj.k esa ,rn~}kjk lwfpr fd;k tkrk gS fd
vkidks ,sls vkns'k] ftlds v/khu vki fu#) fd;s
x;s gSa] ds fo#) fujks/kd vf/kdkjh 1⁄4ftyk eftLVsaV1⁄2
rFkk jkT; ljdkj dks izR;kosnu nsus dk vf/kdkj gSsaA
;fn vki fujks/kd vf/kdkjh 1⁄4ftyk eftLVsaV1⁄2 dks
izR;kosnu nsus ds vius vf/kdkj iz;ksx djuk pkgsa rks
mls] ml dkjkxkj] tgkWa vki fu#) gSa] ds v/kh{kd
ds ek/;e ls ;Fkk'kh?kz izLrqr djsA ,sls izR;kosnu ij]
;fn og fujks/kkns'k tkjh gksus ds 12 fnol vFkok
jkT; ljdkj }kjk fujks/kkns'k dk vuqeksnu gksus] tks
Hkh igys gks ds ckn izkIr gksxk rks fujks/kd vf/kdkjh
1⁄4ftyk eftLVsaV1⁄2 }kjk ml ij fopkj ugha fd;k tk
ldsxkA ;fn vki jkT; ljdkj dks ,slk izR;kosnu
nsus ds vius vf/kdkj dk iz;ksx djuk pkgsa rks vki
mls lfpo] x`g foHkkx] mRrj izns'k ljdkj] y[kuÅ
dks lEcksf/kr djds ml dkjkxkj] tgkWa vki fu#)
gSa] ds v/kh{kd ds ek/;e ls izLrqr djsaA
vkidks mDr vf/kfu;e dh /kkjk 9 ,oa 10 ds
lUnHkZ esa ,rn~}kjk lwfpr fd;k tkrk gS fd vkidks ,sls
vkns'k] ftlds v/khu vki fu#) fd;s x;s gSa] ds fo#)
;fn vki mRrj izns'k jkT; lykgdkj cksMZ] y[kuÅ dks
Hkh viuk izR;kosnu nsuk pkgsa rks mls v/;{k mRrj izns'k
jkT; lykgdkj cksMZ] y[kuÅ dks lEcksf/kr djds
dkjkxkj] tgkWa vki fu#) gSa] ds v/kh{kd ds ek/;e ls
;Fkk'kh?kz izLrqr djsaA vkidks ;g Hkh lwfpr fd;k tkrk
gS fd vkidk ekeyk mDr vf/kfu;e dh /kkjk&10 ds
v/khu vkidh fu#f) dh okLrfod frfFk ds rhu lIrkg
ds vUnj mRrj izns'k jkT; lykgdkj cksMZ] y[kuÅ dks
lanfHkZr fd;k tk;sxk vkSj vkids izR;kosnu ij] ;fn og
foyEc ls izkIr gksxk rks mDr cksMZ }kjk ml ij fopkj
ugha fd;k tk;sxkA
vkidks ;g Hkh lwfpr fd;k tkrk gS fd mDr
vf/kfu;e dh /kkjk&11 dh mi/kkjk 1⁄411⁄2 ds vuqlkj
mRrj izns'k jkT; lykgdkj cksMZ] ;fn vko';d
le>s vFkok ;fn vki pkgs rks vkidks mDr cksMZ
}kjk lquk tk;sxkA ;fn vki mDr cksMZ }kjk viuh
O;fDrxr lquokbZ djuk pkgs rks ;g ckr vki vius
izR;kosnu esa fof'k"V :i ls fy[ks rFkk dkjkxkj]
3 All] Manoj Jaiswal Vs. Union of India & Ors.
1027
tgka vki fu#) gSa] ds v/kh{kd ds ek/;e ls jkT;
ljdkj dks izLrqr djsaA
vkidks mDr vf/kfu;e dh /kkjk&14 ds
vuqlj.k esa ,rn~}kjk ;g lwfpr fd;k tkrk gS fd
vkidks ,sls vkns'k] ftlds v/khu vki fu#) fd;s
x;s gSa] ds fo#) dsUnzh; ljdkj dks Hkh izR;kosnu
nsus dks vf/kdkj izkIr gSA ;fn vki dsUnzh; ljdkj
dks izR;kosnu nsus ds vius vf/kdkj dk iz;ksx djuk
pkgs rks vki mls lfpo] Hkkjr ljdkj] x`g ea=ky;
1⁄4vkUrfjd lqj{kk foHkkx1⁄2] ukFkZ Cykd] ubZ fnYyh dks
lEcksf/kr djds ml dkjkxkj] tgkWa vki fu#) gSa] ds
v/kh{kd ds ek/;e ls izLrqr djsaA
 1⁄4;ksxs'oj jke feJ1⁄2
 ftyk eftLVsaV
ckjkcadhA
3. The detention order as well as
grounds of detention was served upon the
petitioner. The District Magistrate sent a
report to the State Government about the
passing of detention order together with the
grounds of the detention and all the
particulars bearing on the same. The said
report and the particulars were considered by
the State Government and it approved of the
detention order under sub-section (4) of
section 3 of the Act and sent a report to the
Central Government under section 3 (5) of
the Act. The State Government forwarded
the case of the petitioner to the Advisory
Board in due course under section 10 of the
Act along with detention order together with
the grounds of detention. The representation
made by the petitioner to the State
Government was also placed before the
Advisory Board. The Board considered the
material placed before it, including the
representation of the petitioner and after
hearing the petitioner in person, sent its
report to the State Government under
subsection (1) of section 11 of the Act.
According to the Board there was sufficient
cause for detention of the petitioner. In
pursuance of the opinion expressed by the
Advisory Board the State Government, in
exercise of its powers under subsection (1) of
section 12 of the Act, confirmed the order for
detention of the petitioner and the same was
communicated to the petitioner.
4.
In response to the rule nisi, Sri
Yogeshwar
Ram
Mishra
the
District
Magistrate, Barabanki, who had passed the
impugned order, has filed a counter affidavit
to which the petitioner has filed his rejoinder
affidavit. In his counter affidavit, the District
Magistrate has explained the circumstances
which led to the issuance of the detention
order. In the counter affidavit, the allegations
made by the detenu have been controverted
and it has been unequivocally stated that the
Constitution safeguards of Article 22 (5) and
that of section 8 of the Act, have been strictly
complied with.
5. The detention order was passed
by the District Magistrate on 11.10.2014
and at that point of time the petitioner was
under detention in District Jail Barabanki
on the basis of an FIR dated 15.01.2014
lodged by Purushottam Lal Yadav - the
brother of the deceased in Case Crime No.
40 of 2014, under Sections 147, 148, 149,
307, 302 IPC lodged at Police Station
Kotwali Nagar, District Barabanki. It may
be mentioned, at this stage, that the
detenu has since been granted bail on
23.07.2015, but in view of the order of
detention, he has not been released.
6. The contentions raised by Sri P.K.
Rai, learned counsel for the petitioner are
three-fold:
a.
The grounds, at the worst, do no
more than to suggest a possible 'law and
order' situation and not a 'public order'
situation and therefore the detention on the
ostensible ground of preventing him from
1028
 INDIAN LAW REPORTS ALLAHABAD SERIES
acting in a manner prejudicial to public order
was not justified.
b. In the absence of any past history,
the detention of the petitioner on the
solitary incident, referred to in the ground
of detention, was totally unwarranted.
c. The petitioner, who was in jail
when the detention order was passed, had
not moved any bail application and as
such there was no apprehension of breach
of public order from him.
In support of his submissions, the
learned counsel has placed reliance upon
the cases reported in (1990) 2 SCC 456,
Devaki v. Government of Tamil Nadu &
Ors., (2012) 7 SCC 181, Huidrom
Konungjao Singh v. State of Manipur &
Ors. and (2012) 2 SCC 176, Yumman
Ongbi Lenbi & Ors. v.. State of Manipur
& Ors.
7. Sri R.K. Diwedi, however, relying
upon the records of the proceedings and
the affidavit filed by the detaining
authority, has supported the order of
detention.
8. We have heard Sri P. K. Rai,
learned counsel for the petitioner and Sri
R.K.
Dwivedi,
learned
Government
Advocate and perused the record.
9. The distinction between the
concept of public order and that of law
and order has been adverted to by the
Apex Court in a catena of decisions. The
question whether a man has only
committed a breach of law and order or
acted in a manner leading to disturbance
of public order is a question of degree of
the reach of the act upon society is no
more res integra. In the case reported in
AIR 1966 SC 740, Dr Ram Manohar
Lohia v. State of Bihar it was observed
that the contravention 'of law' always
affects 'order' but before it could be said
to affect 'public order', it must affect the
community or the public at large. One has
to imagine three concentric circles, the
largest representing "law and order", the
next representing "public order" and the
smallest representing "security of State".
An act may affect "law and order" but not
"public order", just as an act may affect
"public order" but not "security of the
State".
10. In paragraph 3 of the case
reported in (1970) 1 SCC 98, Arun Ghosh
v. State of West Bengal. it was held as
follows:
"Public order was said to embrace
more of the community than law and
order. Public order is the even tempo of
the life of the community taking the
country as a whole or even a specified
locality. Disturbance of public order is to
be distinguished, from acts directed
against individuals which do not disturb
the society to the extent of causing a
general disturbance of public tranquillity.
It is the degree of disturbance and its
effect upon the life of the community in a
locality which determines whether the
disturbance amounts only to a breach of
law and order. Take for instance, a man
stabs another. People may be shocked and
even disturbed, but the life of the
community keeps moving at an even
tempo, however much one may dislike the
act. Take another case of a town where
there is communal tension. A man stabs a
member of the other community. This is
an act of a very different sort. Its
implications are deeper and it affects the
even tempo of life and public order is
jeopardized because the repercussions of
the act embrace large Sections of the
3 All] Manoj Jaiswal Vs. Union of India & Ors.
1029
community and incite them to make
further breaches of the law and order and
to subvert the public order. An act by
itself is not determinant of its own
gravity. In its quality it may not differ
from another but in its potentiality it may
be very different."
In the same paragraph the Apex
Court has held as follows:
"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. The French distinguish law
and order and public order by designating
the latter as order publique. The latter
expression
has
been
recognised
as
meaning something more than ordinary
maintenance of law and order. Justice
Ramaswami in Writ Petition No. 179 of
1968 drew a line of demarcation between
the serious and aggravated forms of
breaches of public order which affect the
community or endanger the public interest
at large from minor breaches of peace
which do not affect the public at large. He
drew an analogy between public and
private crimes. The analogy is useful but
not to be pushed too far. A large number
of acts directed against persons or
individuals may total up into a breach of
public order. In Dr Ram Manohar Lohia's
case examples were given by Sarkar and
Hidayatullah, JJ. They show how similar
acts in different contexts affect differently
law and order on the one hand and public
order on the other. It is always a question
of degree of the harm and its affect upon
the community. The question to ask is:
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
tranquillity 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."
11. The principle enunciated above
has been followed by the Apex Court in
all subsequent cases. It is, therefore,
necessary in each case to examine the
facts to determine as to whether the act
referred to in the grounds of detention
falls in the realm of 'law and order'
problem or it had the reach and
potentiality so deep, so as to disturb the
society, to the extent of causing a general
disturbance of public tranquillity.
12. It would appear from the ground
of detention that the petitioner and his
associates attacked Arvind Yadav and his
associate with firearms in the open market
in broad daylight which resulted in the
death of Arvind Yadav. It has been further
stated that the above act of the petitioner
and his associates created terror and panic
amongst the people of the locality and
thereby disturbed public order. The daring
act of the petitioner in a busy market, in
our opinion, affected public order and not
merely law and order. The said act,
certainly, caused terror and panic in the
locality and affected those who watched
the whole thing in fear as helpless
spectators. The act in question adversely
affected the even tempo of life of the
community
and
caused
a
general
disturbance of public tranquility
13. On behalf of the petitioner, a
reference has been made to T. Devaki's
case (supra). The petitioner in that case
had attacked the Minister in a seminar. He
1030
 INDIAN LAW REPORTS ALLAHABAD SERIES
threw a knife towards the minister with an
intention to kill him but he missed the
target and fell down at the stage. The
police caught hold him and those who
accompanied him were also overpowered
by the police and consequent to the
conduct of the petitioner the proceeding
of the seminar was interrupted for "only a
while" and since the proceedings of the
seminar were interrupted for a while it
was held that the petitioner's activity in
that case did not and could not affect
public peace and tranquility. The decision
is thus of no help to the petitioner.
14. We now come to the second
submission made by the learned counsel
for the petitioner that detention on a
solitary incident, referred to in the ground
of detention, was totally unwarranted.
15. It is also settled that a solitary
act of omission or commission can be
taken into consideration, by the detaining
authority to pass an order of detention if
the reach, effect and potentiality of the act
is such that it disturbs public tranquillity
by creating terror and panic in the society
or a considerable number of people in the
specified locality where the act is alleged
to have been committed.
16. In paragraph 14 of the case
reported in (1983) 4 SCC 301, Alijan
Mian v. Distt. Magistrate the Apex Court
has held as follows:
"14. Now the question arises whether
the two incidents were sufficient for the
detaining authority to initiate proceedings
for preventive detention. It is for the
detaining authority to have the subjective
satisfaction about the apprehension of the
breach of the public order from the
incidents mentioned above. Even one
incident may be sufficient to satisfy the
detaining authority. It all depends upon
the nature of the incident. In the case in hand
the detaining authority was fully satisfied
that there was apprehension of breach of
public order from the petitioners in case they
were bailed out, of which there was every
likelihood. This contention in our opinion
has no force."
17. In the case reported in (1989) 4
SCC 509, Bimla Rani v. Union of India
the Apex Court opined as follows:
"8. It is true that the incident on 134-1989 was a solitary one so far as the
detenu was concerned, but the question is
whether the incident had prejudicially
affected the public order. In other words,
whether it had affected the even tempo of
life of the community. As observed in
Alijan Mian case, it is for the detaining
authority
to
have
the
subjective
satisfaction about the apprehension of the
breach of the public order and that even
one incident may be sufficient to satisfy
the detaining authority in that regard
depending upon the nature of the incident.
It is not disputed by Mr Lalit that a single
incident may disturb the tranquillity and
the even tempo of life of the community.
18. In the case reported in (1994) 5
SCC 54, Attorney General for India &
Others Vs. Amratlal Prajivandas &
Others, though the matter related to the
COFEPOSA, a nine judges Bench of the
Apex Court has inter alia held as under:-
"Though ordinarily one act may not
be held sufficient to sustain an order of
detention, one act may sustain an order of
detention if the act is of such a nature as
to indicate that it is an organised act or a
manifestation of organised activity. The
3 All] Manoj Jaiswal Vs. Union of India & Ors.
1031
gravity and nature of the act is also
relevant. The test is whether the act is
such that it gives rise to an inference that
the person would continue to indulge in
similar prejudicial activity. "
19.
In the ground of detention, the
detaining authority on the basis of relevant
and cogent material, has elaborately stated
the effect of the incident. The detaining
authority has categorically stated that on
account of the incident fear and terror was
spread in the hearts of the public in the
market. In our opinion, even though it was
solitary incident but in the circumstances, it
was sufficient for the detaining authority to
arrive at a finding that the even tempo of life
had been disturbed which had prejudicially
affected the public order. In view of the
above the second submission made on behalf
of the petitioner also cannot be upheld.
20. This leads us to the third contention
made on behalf of the petitioner. The question
as to whether a person who is in jail can be
detained under detention law has been the
subject-matter of consideration before the
Apex Court time and again, and it has been
consistently held in such cases that there was
no law in passing a detention order even
against a person under custody, however, at
the time of passing the detention order, the
detaining authority should be aware that the
detenu was already in custody and was likely
to be released on bail. The conclusion that the
detenu could be released on bail cannot be
ipse dixit of the detaining authority and once it
is established that the detaining authority was
conscious of the said fact, its subjective
satisfaction based on materials, normally,
should not be interfered with.
21. In (2004) 8 SCC 106, at page
118, T.P. Moideen Koya v. Govt. of
Kerala the Apex Court held as follows:
"19. The very object of passing a
detention order being to prevent the person
from acting in any manner prejudicial to
maintenance of public order or from
smuggling goods or dealing in smuggled
goods, etc., normally therewould be no
requirement or necessity of passing such an
order against a person who is already in
custody in respect of a criminal offence
where there is no immediate possibility of his
being released. But in law there is no bar in
passing a detention order even against such a
person
if
the
detaining
authority
is
subjectively satisfied from the material
placed before him that a detention order
should be passed. A Constitution Bench in
Rameshwar Shaw v. District Magistrate held
as under: (SCR p. 929)
"As an abstract proposition of law,
there may not be any doubt that Section
3(1)(a) does not preclude the authority
from passing an order of detention against
a person whilst he is in detention or in
jail; but the relevant facts in connection
with the making of the order may differ
and that may make a difference in the
application of the principle that a
detention order can be passed against a
person in jail."
20. In Vijay Kumar v. State of J&K it
was held: (SCC p. 48, para 10) "If the detenu
is already in jail charged with a serious
offence, he is thereby prevented from acting
in a manner prejudicial to the security of the
State. Maybe, in a given case there yet may
be the need to order preventive detention of a
person already in jail. But in such a situation
the detaining authority
must disclose
awareness of the fact that the person against
whom an order of preventive detention is
being made is to the knowledge of the
authority already in jail and yet for
compelling reasons a preventive detention
order needs to be made."
1032
 INDIAN LAW REPORTS ALLAHABAD SERIES
22.
A perusal of the grounds of
detention would show that the detaining
authority was fully aware of the fact that the
detenu was actually in jail custody and there
was material before him to believe that there
was real possibility of his release on bail. The
learned counsel for the petitioner has
strenuously contended that the petitioner had
not moved any bail application before this
Court as alleged in the grounds of detention
and has thereby questioned the observations
made by the detaining authority that the
detenue was likely to be released on bail. The
learned counsel for the petitioner has,
however, candidly accepted that a notice for
filing bail application on behalf of the
petitioner had been given in the office of the
Government Advocate.
23. For filing a bail application
under Chapter XVIII Rule 8 of the
Allahabad High Court Rules, at least 10
days notice is required to be given. As
soon as notice is given, the intention to
move the bail application is clear and the
State cannot presume negative that
despite giving the notice bail application
would not be moved. Therefore, the
authorities concerned cannot be faulted in
presuming that the petitioner was making
attempt to get himself released on bail.
24. In habeas corpus writ petition
no. 2690 of 2015, Robin Tyagi versus
Union of India & Ors. a Division Bench
of this court had the occasion to consider
this aspect of the matter. The Division
Bench held as follows:
"Sri Sudhir Mehrotra, learned counsel
for the petitioner, contends that the grounds
of detention reply nonapplication of mind in
as much as the bail was granted in case Case
Crime. No. 200 of 2014 by the High Court
on 1.8 .2014, but grounds of detention could
not have proceeded on such a presumption.
This has been countered by the learned
A.G.A. clearly contending that a bail
application is moved under ChapterXVIII
Rule 8 of the Allahabad High Court Rules
wherein at least 10 days notice is required to
be given. The notice was given and then the
bail application was filed on 30.7 .2014.
Thus, the State will be presumed to have
knowledge about the said bail application
having been filed an attempt being made by
the petitioner to get himself released on bail.
The aforesaid contention of the learned
A.G.A. appears to be correct, and therefore
has to be accepted."
25.
In support of the third contention
learned counsel for the petitioner has placed
reliance upon the case of Huidrom Konungjao
Singh (supra). In the said case the detention
order passed against the petitoner of that case,
who was in jail, was set aside. In that case no
bail application, whatsoever, was moved on
behalf of the petitioner and as such there was
no possibility of the accused being released
from jail custody accordingly the detention
order was set aside. That is not the case here.
Thus, the petitioner does not derive any
benefit from the case of Huidrom Konungjao
Singh (supra). The case of Yumman Ongbi
Lenbi (supra) on which reliance has been
placed is also of no help to the petitioner. In
the said case the detention order was passed
after almost 12 years after the last FIR was
filed against the petitioner of that case and it
was held that there was no live link of the
earlier incident and incident in respect of
which the detention was passed.
26. In view of the above, the third
contention raised in behalf of the
petitioner also fails.
27. For the foregoing discussion, we
find no force in any of the contentions
3 All] Vijay Kumar Yadav Vs. State of U.P. & Ors.
1033
raised on behalf of the petitioner. The
petition is accordingly dismissed.
--------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.09.2015
BEFORE
THE HON'BLE KRISHNA MURARI, J.
THE HON'BLE AMAR SINGH CHAUHAN, J.
Special Appeal No. 21 of 2009
Vijay Kumar Yadav
 ...Appellant
Versus
State of U.P. & Ors.
...Opp. Parties
Counsel for the Appellant:
Sri Akhilanand Mishra, Sri A.K. Singh, Sri
Manish Kumar Nigam, Sri Vijay Kumar
Yadav (I/P)
Counsel for the Opp. Parties:
C.S.C.
Constitution
of
India-Art.-226-Service
law-dismissed on allegation-appointed
as class 4th employee on compassionate
ground-as per date of birth in school
certificate-minor below than 18 yearsSingle Judge ignored the fact-when not
required to produce age proof but asked
to produce medical certificate-can not be
held guilty for suppression of material
facts-appeal allowed.
Held: Para-11
But in the present case, the appellant
had not given any false information or
suppressed any relevant or material
information. This is not a case where a
wrong date was given to have a longer
period of service and thereafter an
attempt to justify it. The date of birth
was recorded in the service book on the
basis of age determined by CMO on the
basis of medical examination.
Case Law discussed:
AIR 2012 SC 1608; (1991) 1 SCC 588; (1993)
4 SCC 727; (2010) 11 SCC 702.
(Delivered by Hon'ble Amar Singh
Chauhan, J.)
1. Heard Sri Vijay Kumar Yadav,
appellant in person, learned Standing
Counsel for the State respondents and
perused the material on record.
2.
This intra court appeal is directed
against the order dated 24.11.2008, whereby
the learned Single Judge dismissed the Civil
Misc. Writ Petition No. 23090 of 2008,
(Vijay Kumar Yadav vs. State of U.P. &
others) on the ground that the petitioner was
not major and he was aged about 14 years at
the time of appointment. Therefore, prima
facie, his appointment was illegal on the post
of
Runner
in
Tubewell
Construction
Division, Gonda.
3. Brief facts of this case are that the
petitioner-appellant was appointed on the
post of Runner (DHAWAK) in Tubewell
Construction Division, Gonda under the
Dying in Harness Rules, 1974. Thereafter
the petitioner-appellant was transferred to
Tubewell Division-I, Gorakhpur where he
joined on 10.9.1992. In this regard, a
confirmation letter dated 29.1.1999 of
respondent no. 5 is annexed at page 33 as
Annexure-1 to the writ petition. At the
time of appointment, the petitionerappellant was asked to prove his date of
birth. The Chief Medical Officer, Gonda
has determined the age of the appellant as
18 years and on the basis of which the
date of birth of the appellant was recorded
as 11.12.1969 in his service book. On
27.10.2006, a complaint was made by Sri
Raj Kumar Yadav to the Executive
Engineer Tubewell Division-I, Gorakhpur
that on the basis of forged medical
certificate, the appellant namely Vijay
Kumar Yadav has obtained appointment.
On the basis of the complaint, a