# Ram Sevak v. State of U.P. & Ors

- **Citation:** (2022) 9 ILRA 1756
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-09-14
- **Case number:** Habeas Corpus Writ No. 30758 of 2021
- **Bench:** Rajan Roy, Shekhar Kumar Yadav
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-sevak-v-state-of-u-p-ors-48983
- **Pages:** 6

## Headnote

Law
-
Constitution
of
India,1950-Article 226 - National Security
Act, 1980- Section 3 (2) - Indian Penal
Code,1860-Sections 302 , 201 & 376 read
with Section 5(d)/6 of Prevention of
Children from Sexual Offence Act, 2012Preventive detention- It is not a case
involving merely law and order, but, a
case where the public order got disturbed
initially and, the District Magistrate was
well within his rights to form a subjective
opinion on the basis of objective material
before him that in the event the petitioner
was enlarged on bail it would prejudice
9 All. Ram Sevak Vs. State of U.P. & Ors.
1757
the public order and create fear and
terror in the locality-The fact that the
petitioner does not have a prior criminal
history is irrelevant considering the
impact of his alleged crime on the even
tempo of life in the locality as an
incident involving rape and murder of a
minor girl is bound to send shock waves
and create a sense of fear and terror
amongst residents of the locality-Such
an offence cannot be said to be an
individual offence against the person of
the deceased- Crime, generally, is not
only against the individual in respect to
whom it is committed but also against
the society, but it is more so, in the case
of rape and murder of a girl child as such
crimes, send shock waves throughout
the society-There is material on record
in the form of statements of Gram
Pradhan, etc. as also newspaper items to
show the impact of the incident on the
residents of the local area. This is not a
simple case of law and order, but, a case
where
the
District
Magistrate
has
correctly formed the opinion that public
order got disturbed and in the event the
petitioner is enlarged on bail, there is a
likelihood of repetition of such crimes
and
also
a
general
and
genuine
apprehension in the mind of the residents
of the area about such repetition of crime
by the petitioner endangering the life and
liberty of their women and children,
therefore, preventive detention of the
petitioner satisfies the ingredients of
Section 3 (2) of the Act 1980 and the
contentions of the petitioner are not
acceptable.(Para 1 to 19)

The writ petition is dismissed. (E-6)

List of Cases cited:

## Text

1756 INDIAN LAW REPORTS ALLAHABAD SERIES
Habeas Corpus Petition. In the instant
Habeas Corpus Petition, there is not even a
whisper that the corpus has been kept
forcibly by respondent no.4 against her
wish. In the absence of the basic pleadings
in the petition, it lacks merits and liable to
be dismissed on this score alone.

29. In my view, filing of the present
Habeas Corpus Petition is nothing but an
arm twisting of the local police officials
who are already engaged, after lodging of
the FIR. This Court feels that after the girl
is fled away from the guardianship of her
parent, it is their personal perception that
their son or daughter has been kept in the
illegal captivity of the offence. But, in
majority of the cases, when these couples
are brought before the Court, after the
notices, these couples ruthlessly blasts the
perception of their parent, resultantly, the
Habeas Corpus Petition would end into big
zero and an exercise in vanity.

30. Rightly so, the Court too is of the
considered opinion that where the FIR with
regard to alleged act of kidnapping,
abduction or illegal confinement or for
ransom has already been filed and police
personnels are pursuing the matter at their
end, the lodging of parallel Habeas Corpus
Petition is motivated and purposive one. By
filing such type of petitions, the impatient
petitioner wants to involve the Courts to
exert their pressure upon the police to
speed up their investigation. The Habeas
Corpus Petitions should not to be used as
whip over the police to officials, just to
serve out the petition's vanity over the
police.

31. Thus, after marshalling of facts
and circumstances of the instant case and
the law in this regard, the preliminary
objection raised by learned A.G.A., finds
force and accordingly instant Habeas
Corpus Petition is dismissed at the
admission stage itself.

32. It is made clear that the ratio
adopted in the present case shall not apply
in the case of minors because any amount
of their consent or willingness is not a valid
consent in the eye of law and therefore, the
police report shall not be precluded in the
matter of minors.
----------
(2022) 9 ILRA 1756
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 14.09.2022

BEFORE

THE HON'BLE RAJAN ROY, J.
THE HON'BLE SHEKHAR KUMAR YADAV, J.

Habeas Corpus Writ No. 30758 of 2021

Ram Sevak ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Arvind Kumar Tripathi, Dr. Ravi Kumar
Mishra

Counsel for the Respondents:
G.A.

A.
Criminal
Law
-
Constitution
of
India,1950-Article 226 - National Security
Act, 1980- Section 3 (2) - Indian Penal
Code,1860-Sections 302 , 201 & 376 read
with Section 5(d)/6 of Prevention of
Children from Sexual Offence Act, 2012Preventive detention- It is not a case
involving merely law and order, but, a
case where the public order got disturbed
initially and, the District Magistrate was
well within his rights to form a subjective
opinion on the basis of objective material
before him that in the event the petitioner
was enlarged on bail it would prejudice
9 All. Ram Sevak Vs. State of U.P. & Ors.
1757
the public order and create fear and
terror in the locality-The fact that the
petitioner does not have a prior criminal
history is irrelevant considering the
impact of his alleged crime on the even
tempo of life in the locality as an
incident involving rape and murder of a
minor girl is bound to send shock waves
and create a sense of fear and terror
amongst residents of the locality-Such
an offence cannot be said to be an
individual offence against the person of
the deceased- Crime, generally, is not
only against the individual in respect to
whom it is committed but also against
the society, but it is more so, in the case
of rape and murder of a girl child as such
crimes, send shock waves throughout
the society-There is material on record
in the form of statements of Gram
Pradhan, etc. as also newspaper items to
show the impact of the incident on the
residents of the local area. This is not a
simple case of law and order, but, a case
where
the
District
Magistrate
has
correctly formed the opinion that public
order got disturbed and in the event the
petitioner is enlarged on bail, there is a
likelihood of repetition of such crimes
and
also
a
general
and
genuine
apprehension in the mind of the residents
of the area about such repetition of crime
by the petitioner endangering the life and
liberty of their women and children,
therefore, preventive detention of the
petitioner satisfies the ingredients of
Section 3 (2) of the Act 1980 and the
contentions of the petitioner are not
acceptable.(Para 1 to 19)

The writ petition is dismissed. (E-6)

List of Cases cited:

1. Rameshwar Shaw Vs DM, Burdwan & anr.

2. Dr. Ram Manohar Lohia Vs St. of Bih.

3. Pushkar Mukherjee & ors. Vs St. of W.B.

4. Shyamal Chakraborty Vs The Commr. of
Police, Calcutta & anr.
(Delivered by Hon'ble Rajan Roy, J.)

1. Heard Dr. Ravi Kumar Mishra,
learned counsel for the petitioner and Mr.
S.P. Singh, learned AGA for the State.

2. This petition has been filed seeking
issuance of writ of certiorari quashing the
order of detention dated 01.10.2021 passed
by the District Magistrate, Sitapur under
Section 3 (2) of the National Security Act,
1980 (for short the 'Act 1980'). A writ of
mandamus
has
also
been
sought
commanding the opposite parties to set the
petitioner at liberty forthwith.

3. The facts of the case are that an
incident took place on 18.08.2021 at about
7 PM, when minor daughter of Kamal
Kishore aged about 10 years went missing.
The villagers searched her and ultimately
her body was found in a field at about 10
PM. The aforesaid Kamal Kishore lodged a
First Information Report bearing case
Crime No. 229 of 2021 under Section 302
IPC. Subsequently, Sections 201 and 376
IPC read with Section 5(d)/6 of Prevention
of Children from Sexual Offence Act, 2012
were also added. The petitioner herein was
apprehended on 20.08.2021 in connection
with the said crime and was sent to jail.
The petitioner applied for bail in the said
case.
During
pendency
of
the
bail
application,
the
impugned
order
of
preventive detention was passed by the
District Magistrate on 28.09.2021 under
Section 3(2) of the Act 1980 so as to
prevent him from acting in a manner
prejudicial to the maintenance of public
order. The District Magistrate passed the
order on the report of the Sponsoring
Authority. The supporting material which
is the basis for preventive detention was
supplied to the petitioner and has been
annexed
by
him.
Apart
from
the
1758 INDIAN LAW REPORTS ALLAHABAD SERIES
satisfaction
recorded
by
the
District
Magistrate with reference to the ingredients
of Section 3 (2) of the Act 1980, as claimed
by the learned AGA, he has also mentioned
that enlargement of the petitioner on bail
could endanger public order, hence the
preventive detention.

4. The contention of learned counsel for
the petitioner was that the alleged incident of
rape and murder took place at a secluded
place and was an individual offence which
could very well be dealt with under the
ordinary law of the land and there was no
requirement of invoking the provisions of the
Act 1980 for the petitioner's preventive
detention. It was at best a case involving law
and order and not public order. He submitted
that
the
District
Magistrate
has
not
independently exercised his mind to the
material before him.

5. Learned AGA opposed the writ
petition. He submitted that the crime was
gruesome which disturbed the even tempo of
life of the persons residing in the locality
where the crime was committed, therefore,
based on the material supplied by the
Sponsoring Authority, the District Magistrate
has formed an independent opinion for
preventive detention of petitioner which does
not suffer from any error.

6. We have heard the learned counsel
for the parties and perused the records.

7. We take note of the fact that vide
order dated 10.06.2022, the petitioner-Ram
Sewak has been enlarged on bail by the High
Court in Criminal Misc. Bail Application No.
2393 of 2022.

8. The term of detention of the
petitioner, which cannot exceed 12 months,
is to expire in October, 2022.

9. As regards the contention of
petitioner's counsel that the offence having
been committed in a secluded area and not
in a public place, therefore, the ingredients
of Section 3 (2) of the Act 1980 were not
satisfied, we are not ready to accept this
contention. Merely because the offence was
committed in a secluded area does not
mean that public order cannot be disturbed.
We may in this regard refer to the decision
of Hon'ble the Supreme Court in the case of
Arun Ghosh vs. State of West Bengal and
others wherein a Four Judge Bench had the
occasion to consider the scope of Section 3
(2) of the Preventive of Detention Act,
1950 and in that context had the occasion
to consider as to which act would be
subversive of public order. It considered
the difference between the maintenance of
law & order and its disturbance and the
maintenance of public order and its
disturbance. Public order was said to
embrace more of the community than the
law & order. Public order is even tempo of
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 tranquility. 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.
Then, their Lordships referred to various
instances. One of the instances was that a
man who molests women in lonely places.
Their Lordships opined that as a result of
his activities girls going to colleges and
schools are in constant danger and fear.
Women going for their ordinary business
are afraid of being waylaid and assaulted.
The activity of this man in its essential
quality is not different from the act of the
9 All. Ram Sevak Vs. State of U.P. & Ors.
1759
other man (other instance referred where
public order was not disturbed) but in its
potentiality and in its affect 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 be causing disturbance of public order
and not merely committing individual actions
which may be taken note of by the criminal
prosecution agencies. 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. Their Lordships further
observed that similar acts in different
context affect differently law and order on
the one hand and public order on the other
hand. It is always a question of degree of the
harm and its effect 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 to a disturbance
of the public order or does it affect merely
an individual leaving the tranquility of the
society undisturbed? This question has to be
faced in every case on facts. There is no
formula by which one case can be
distinguished from another. In this context,
their Lordships referred to earlier decisions
in the case of Dr. Ram Manohar Lohia vs.
State of Bihar; Pushkar Mukherjee and
others vs. State of West Bengal; and,
Shyamal
Chakraborty
vs.
The
Commissioner of Police, Calcutta and
another.

10. The aforesaid observations and
enunciation of the law on the subject by
Hon'ble Supreme Court apply squarely to the
facts of the case.

11. We have perused the detention
order as also the material on the basis of
which it has been passed. The District
Magistrate has opined in the impugned
order that a minor girl was raped and then
murdered with the use of silk lace. Her
body was hidden in a sack of husk. The
incident was gruesome and of such nature
that it created an environment of fear in the
area. The people of the area were
anguished and angry. They collected in
large number. The general tempo of life in
the area was disturbed. People in general
were terrorized and fearful of any such
happening against their own women and
children. The entire area where the crime
had been committed was tense for several
days and police had to be deployed to
restore the confidence of the public. The
police had to be called from various police
stations to meet the needs of the situation
and instill confidence in the public. The
public had to be assured about the well
being of their women and children. The
police had to be deployed for several days
for maintaining public order and ensuring
that it is not disturbed any further. The
District Magistrate referred to the report of
the Station House Officer, Rampur Kala in
this regard. He has mentioned about the
terror and fear created by the incident in the
public of the locality. Women and children
got frightened on account of the diabolical
act of the petitioner. Small girls stopped
going out of their house. Some of the shops
were closed. Girl children were not being
sent to school. The incident, thus, in the
opinion of the District Magistrate disturbed
public order in the locality. The incident
hogged
the
limelight
in
various
newspapers. The District Magistrate has
further opined that the petitioner was in
District Jail, Sitapur in connection with the
aforesaid crime and had applied for bail
which was fixed for hearing on 04.10.2021.
1760 INDIAN LAW REPORTS ALLAHABAD SERIES
Based on the material available with him,
the District Magistrate opined that there
was likelihood of the petitioner being
enlarged on bail and this information had
created terror and fear in the locality.

12. He has also opined that if the
petitioner is enlarged, considering his
criminal mentality and the brutal act
committed by him, there was a likelihood
of repetition of such acts by him which
would prejudice and endanger public order
which had been restored after lot of efforts.
In order to prevent public order from being
prejudiced, it was necessary to detain the
petitioner as a preventive measure under
the Act 1980. It is permissible in law, in the
facts of a case, to take into account the
possibility of release of a detenue on bail
while considering preventive detention
under Section 3 (2) of the Act 1980. We
may in this contest refer to the decision of
Hon'ble the Supreme Court in the case of
Rameshwar Shaw vs. District Magistrate,
Burdwan and Anr. We have no doubt that
it was a relevant factor in the facts of this
case.

13. Along with the writ petition,
statements of Gram Pradhan, etc. have been
annexed wherein they have spoken about
the fear and terror created in the area on
account which girl children were not being
sent to school and were not leaving their
house, etc.

14. An incident involving rape and
murder of a minor girl is bound to send
shock waves and create a sense of fear and
terror amongst residents of the locality.
Crimes on women and crime on minor girls
create sensation in the locality wherein the
residents become fearful of well being of
women, especially girls in their family. It is
bound to disturb public order. Crime of
rape and murder on a minor girl can be
committed only by a depraved person with
a hardened criminal mentality who lacks
sensitivity and emotions towards the fairer
sex, especially small children. Such an
offence cannot be said to be an individual
offence against the person of the deceased.
Crime, generally, is not only against the
individual in respect to whom it is
committed but also against the society, but
it is more so, in the case of rape and murder
of a girl child as such crimes, send shock
waves throughout the society.

15. There is material on record in the
form of statements of Gram Pradhan, etc.
as also newspaper items to show the impact
of the incident on the residents of the local
area. This is not a simple case of law and
order, but, a case where the District
Magistrate has correctly formed the opinion
that public order got disturbed and in the
event the petitioner is enlarged on bail,
there is a likelihood of repetition of such
crimes and also a general and genuine
apprehension in the mind of the residents of
the area about such repetition of crime by
the petitioner endangering the life and
liberty of their women and children,
therefore, the contentions of the petitioner's
counsel in this regard, especially that it was
a case which could have been dealt with
under the ordinary law of the land, are not
acceptable.

16. It is not a case involving merely
law and order, but, a case where the public
order got disturbed initially and, the
District Magistrate was well within his
rights to form a subjective opinion on the
basis of objective material before him that
in the event the petitioner was enlarged on
bail it would prejudice the public order and
create fear and terror in the locality. The
fact that the petitioner does not have a prior
9 All. Ram Sevak Vs. State of U.P. & Ors.
1761
criminal history is irrelevant considering
the impact of his alleged crime on the even
tempo of life in the locality as already
discussed. We are not concerned as to
whether
the
offence
was
actually
committed by the petitioner or not as that is
a matter which will be seen during trial.

17. Based on the discussions already
made and law discussed in the case of
Arun Ghosh (supra), we are of the opinion
that the order of the District Magistrate for
preventive detention of the petitioner
satisfies the ingredients of Section 3 (2) of
the Act 1980 and the contentions of the
petitioner's counsel are not acceptable.

18. We find no reason to interfere
with the satisfaction recorded by the
District Magistrate as the same does not
suffer from any error.

19. The writ petition is dismissed.
----------