# Sandeep Yadav v. Union of India & Ors

- **Citation:** (2024) 4 ILRA 78
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-04-05
- **Case number:** Habeas Corpus Writ Petition No. 211 of 2023
- **Bench:** Rajan Roy, Narendra Kumar Johari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sandeep-yadav-v-union-of-india-ors-51853
- **Pages:** 29

## Headnote

Criminal Law - Constitution of India, 1950
- Articles 21, 22 - National Security Act,
1980 - Section 3(2) & 3(3) - Habeas Corpus
Petition - Preventive Detention - Distinction
Between Public Order and Law and Order -
Delay
in
Detention
Order
-
Subjective
Satisfaction of Detaining Authority - Single
Offence
Without
Criminal
History
-
The
petitioner, Sandeep Yadav, challenged the
detention order dated 17.05.2023 passed by the
District Magistrate, Gonda, under Section 3(2) of
the National Security Act, 1980 (NSA), seeking
release through a habeas corpus petition filed
by his brother. The detention stemmed from an
FIR (Crime No. 008/2023) alleging that on
28.01.2023, the petitioner and an accomplice
murdered Krishna Kumar Yadav, a teacher,
inside his rented room in Gonda, after a dispute
over money, under Sections 452, 302, 379 IPC,
later expanded to Sections 449, 380, 411, 201
4 All. Sandeep Yadav Vs. Union of India & Ors.
79
IPC, and Section 3/25 Arms Act. The SHO's
report dated 12.05.2023 claimed the murder
caused widespread fear, disrupted public order,
and led to protests by the Teachers' Association,
justifying detention due to the petitioner's bail
application and potential for further crimes. The
detention order was approved by the St.
Government on 25.05.2023, and the petitioner's
representations were rejected by the District
Magistrate, St., Central Government, and the
U.P. Advisory Board. Held: The petition was
allowed, and the detention order quashed, as:
(1) the murder, committed inside a private
residence, was an isolated act against an
individual, constituting a law and order issue,
not a public order disturbance, per T. Devaki Vs
Government of T.N., (1990) 2 SCC 456, and
Gulab Mehra Vs St. of U.P., (1987) 4 SCC 302;
(2) the absence of specific evidence showing
societal impact or repercussions failed to justify
the detention under Section 3(2) NSA, as the
SHO's report lacked concrete details beyond
general assertions; (3) the three-and-a-halfmonth delay between the incident (28.01.2023)
and the detention order (17.05.2023), with the
charge sheet filed on 27.04.2023, rendered the
order punitive rather than preventive, snapping
the live link between the act and detention, per
Santosh Kumar Upadhyay Vs District Magistrate,
Gonda, 2006 (1) LCrR 338; (4) the petitioner's
lack of criminal history and the solitary nature of
the offence did not support the detaining
authority's subjective satisfaction that the
petitioner would likely commit prejudicial acts if
released on bail, per Manu Bhushan Roy
Pradhan Vs St. of W.B., AIR 1973 SC 295; (5)
the detaining authority's failure to apply judicial
mind to the material, which lacked specificity on
public order disruption, violated Articles 21 and
22, rendering the detention order a colorable
exercise of power. The petitioner was ordered
released unless required in other cases.

List of Cases cited:

## Text

_Characters 0–39,932 of 100,235. This is a partial read: ask again with offset=39932 for what follows._

78 INDIAN LAW REPORTS ALLAHABAD SERIES
auction
purchaser
by
the
secured
creditor/finance
company
under
the
SARFAESI
Act.
Allegations
that
proceedings
have
not
been
lawfully
undertaken or that the secured asset is
undervalued are aspects which can only be
examined in pending proceedings before
the Debt Recovery Tribunal. The defaulter
company has already approached the
Supreme Court twice and such proceedings
were withdrawn with liberty to approach
the Debt Recovery Tribunal. The defaulter
company has already approached the DRT,
Lucknow where the matter is pending.
Question as to whether the auction
purchaser has exceeded its possession
beyond the property transferred in auction
purchase is also open for examination
before the DRT, Lucknow. Such issues are
otherwise civil in nature and cannot be
allowed to be raised by lodging an First
Information
Report.
Vague
and
unsubstantiated ancillary allegations made
of encroachment, beyond the transferred
secured asset, or alleged irregularity in
conduct of auction etc. cannot be allowed
to be raised by lodging an FIR and thereby
vest jurisdiction in the police regarding
civil issues which are required to be
adjudicated exclusively by the DRT or the
civil court. The tendency of the defaulter to
invoke criminal proceedings for resisting
coercive action under the SARFAESI Act
has to be curbed. The Parliamentary vision
of
vesting
exclusive
jurisdiction
in
specialized tribunal viz DRT, in respect of
banking transactions relating to loan, debt
etc.
has
to
be
respected.
Criminal
proceedings cannot be pressed into action
at the instance of defaulter to scuttle
proceedings under the SARFAESI Act on
issues exclusively triable by DRT.

23. For the reasons recorded above,
these two petitions succeed and are
allowed. The First Information Report,
dated 22.07.2023, registered in Case Crime
No.611 of 2023, under Sections 420, 120-B
of IPC and Section 82 of Registration Act,
1908, Police Station - Kavi Nagar, District
- Ghaziabad is quashed.
----------
(2024) 4 ILRA 78
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 05.04.2024

BEFORE

THE HON'BLE RAJAN ROY, J.
THE HON'BLE NARENDRA KUMAR JOHARI, J.

Habeas Corpus Writ Petition No. 211 of 2023

Sandeep Yadav ...Petitioner
Versus
Union of India & Ors. ...Respondents

Counsel for the Petitioner:
Rajendra Prasad Mishra

Counsel for the Respondents:
A.S.G.I., Dr. Pooja Singh, Dr. Pooja Singh,
G.A.

Criminal Law - Constitution of India, 1950
- Articles 21, 22 - National Security Act,
1980 - Section 3(2) & 3(3) - Habeas Corpus
Petition - Preventive Detention - Distinction
Between Public Order and Law and Order -
Delay
in
Detention
Order
-
Subjective
Satisfaction of Detaining Authority - Single
Offence
Without
Criminal
History
-
The
petitioner, Sandeep Yadav, challenged the
detention order dated 17.05.2023 passed by the
District Magistrate, Gonda, under Section 3(2) of
the National Security Act, 1980 (NSA), seeking
release through a habeas corpus petition filed
by his brother. The detention stemmed from an
FIR (Crime No. 008/2023) alleging that on
28.01.2023, the petitioner and an accomplice
murdered Krishna Kumar Yadav, a teacher,
inside his rented room in Gonda, after a dispute
over money, under Sections 452, 302, 379 IPC,
later expanded to Sections 449, 380, 411, 201
4 All. Sandeep Yadav Vs. Union of India & Ors.
79
IPC, and Section 3/25 Arms Act. The SHO's
report dated 12.05.2023 claimed the murder
caused widespread fear, disrupted public order,
and led to protests by the Teachers' Association,
justifying detention due to the petitioner's bail
application and potential for further crimes. The
detention order was approved by the St.
Government on 25.05.2023, and the petitioner's
representations were rejected by the District
Magistrate, St., Central Government, and the
U.P. Advisory Board. Held: The petition was
allowed, and the detention order quashed, as:
(1) the murder, committed inside a private
residence, was an isolated act against an
individual, constituting a law and order issue,
not a public order disturbance, per T. Devaki Vs
Government of T.N., (1990) 2 SCC 456, and
Gulab Mehra Vs St. of U.P., (1987) 4 SCC 302;
(2) the absence of specific evidence showing
societal impact or repercussions failed to justify
the detention under Section 3(2) NSA, as the
SHO's report lacked concrete details beyond
general assertions; (3) the three-and-a-halfmonth delay between the incident (28.01.2023)
and the detention order (17.05.2023), with the
charge sheet filed on 27.04.2023, rendered the
order punitive rather than preventive, snapping
the live link between the act and detention, per
Santosh Kumar Upadhyay Vs District Magistrate,
Gonda, 2006 (1) LCrR 338; (4) the petitioner's
lack of criminal history and the solitary nature of
the offence did not support the detaining
authority's subjective satisfaction that the
petitioner would likely commit prejudicial acts if
released on bail, per Manu Bhushan Roy
Pradhan Vs St. of W.B., AIR 1973 SC 295; (5)
the detaining authority's failure to apply judicial
mind to the material, which lacked specificity on
public order disruption, violated Articles 21 and
22, rendering the detention order a colorable
exercise of power. The petitioner was ordered
released unless required in other cases.

List of Cases cited:

1. T. Devaki Vs Government of T.N., (1990) 2
SCC 456

2. Gulab Mehra Vs St. of U.P., (1987) 4 SCC 302

3. Manu Bhushan Roy Pradhan Vs St. of W.B.,
AIR 1973 SC 295
4. Ram Bharose Yadav Vs District Magistrate,
Deoria, [2004 (2) JIC 116 (All)]

5.
Santosh
Kumar
Upadhyay
Vs
District
Magistrate, Gonda, 2006 (1) LCrR 338

6. Pahadi @ Shiv Shanker Verma Vs St. of U.P.,
[Writ Petition No. 670 (H.C.) of 2003, decided
on 27.07.2004]

7. Waseem Vs St. of U.P., L.Cr.R 225

8. Ram Singh Vs District Magistrate, Lucknow,
1985 L.L.Journal 335

9. Shiv Kumar @ Mukhiya Vs St. of U.P., [2015
(3) JIC 92 (All)]

10. Bharat Lal Tewari Vs St. of U.P., [Habeas
Corpus Petition No. 12782 of 1988, decided on
17.02.1989]

11. Islamuddin Vs The St., 1991 L.Cr.R 27

12. Malwa Shaw Vs St. of W.B., (1974) 4 SCC
127

13. Ibrahim Nazeer Vs St. of T.N., AIR 2006 SC
3606

14. Veeramani Vs St. of T.N., (1994) 2 SCC 337

(Delivered by Hon'ble Dr. Narendra
Kumar Johari, J.)

1. Heard Shri R.P. Mishra, learned
counsel for the petitioner, learned A.G.A.
for the State/opposite party Nos. 2 to 4 and
Mrs. Pooja Singh, learned counsel for the
Union of India/opposite party No.1 and
perused the record carefully.

2. This habeas corpus petition has
been filed by detenue Sandeep Yadav, S/o
Ram Dhani Yadav through his next
friend/real
brother
Pradeep
Yadav,
assailing
the
detention
order
dated
17.05.2023,
passed
by
the
District
Magistrate, Gonda/Detaining Authority,
80 INDIAN LAW REPORTS ALLAHABAD SERIES
with prayer to release the petitioner on the
ground that the detention order passed
under the National Security Act, 1980
(herein after referred as the "Act of 1980")
is illegal, arbirary and bad in the eye of
law.

3. The brief facts of the case are that,
one Ram Kewal Yadav lodged an F.I.R.
under Sections 452, 302, 379 IPC vide
Crime No.008/2023, at Police Station
Kotwali Nagar, District Gonda against the
petitioner and one unknown person, with
contention that the son of informant,
namely, Krishna Kumar Yadav, who was
working as teacher in Janta Inter College,
Itiyathok, Gonda and was residing in the
house of Mohd. Sabir Ali on rent. On
28.01.2023 at about 7.35 P.M., he was
taking rest in his rented accommodation,
when accused Sandeep Yadav with one
unknown person entered into the room of
his son and started quarreling for demand
of money. His son refused to give money,
resultantly, the above Sandeep Yadav and
his colleague struck the head of his son
against the inner wall of the room many
times, consequently, his son fell down and
died on the spot. Thereafter, the accsued
persons snatched the money of his son and
fled away.

4. On receiving information, the
informant came from his village. The date
and time of the occurrence has been shown
as 28.01.2023, at 07.35 P.M. and the F.I.R.
of the case lodged on 29.01.2023, at 4.30
A.M.

5. In furtherance of the F.I.R., the
police came in action and arrested the
accused Sandeep Yadav and his colleague
Jagga @ Jawahar Mishra on 30.01.2023, at
10:10
A.M.
During
the
course
of
investigation, on the basis of evidence
collected, the Investigating Officer added
Sections 449, 380, 411, 201 IPC and
Section
3/25
Arms
Act
and
after
completion of investigation, submitted
charge sheet against the accused Sandeep
Yadav under Sections 302, 449, 380, 201,
411 IPC and Section 3/25 Arms Act on
27.04.2023. Accordingly, the trial of the
case proceeded.

6. On 12.05.2023, the S.H.O., Police
Station Kotwali Nagar, District Gonda
submitted a report to the Superintendent of
Police, Gonda stating that the accused
Sandeep Yadav on 28.01.2023, at 3.30
P.M. with intention to creat terror,
forcefully hit the head of Krishna Kumar
Yadav against the wall of his room and
after killing him mercylessly, took money
from his pocket and fled away. Before the
occurrence, the deceased Krishna Kumar
Yadav was taking rest in his room at that
time accused Sandeep Yadav along with
his one colleague came at his room and
demanded money. When the deceased
refused to give money, the accsued killed
him brutally. At that time another tenant
Km. Lucky Singh was present in her room.
When she heard cry of the deceased
Krishna Kumar Yadav, she made a call to
brother of the deceased named Rahul
Yadav from her mobile phone. Rahul
Yadav told her to go in the room of his
brother and see why he is crying. Rahul
Yadav also made video call to Lucky Singh
and saw the occurrence from the mobile
phone of Lucky Singh, who peeked into the
slightly open door of Krishna Kumar
Yadav's room. She saw that Krishna Kumar
Yadav was lying on the floor and the
accused Sandeep Yadav was sitting on the
chest of Krishna Kumar Yadav and was
strangulating his neck with a Muffler and a
colleague of Sandeep Yadav was catching
hold the legs of Krishna Kumar Yadav.
4 All. Sandeep Yadav Vs. Union of India & Ors.
81
Having seen the occurrence, the witness
Lucky Singh fell in fear, returned back to
her room and called an ambulance by
dialing 108 from her room. Before
ambulance reached, the accused persons
fled away from the spot. The persons of the
ambulance
informed
to
the
police
immediately
by
dialing
112.
The
occurrence of murder took place in a
densely populated area of the locality. As
a consequence of aforesaid brutal murder,
residents of Mohalla and businessmen of
the market were instilled with fear and
panick. All the residents of the locality
locked themselves in their houses due to
the brutal crime. They did not dare to
come out of their houses even to purchase
articles of their daily use. Simultanelusly,
the public order got affected badly in the
area. The businessmen shut down shutters
of their shops and there was an eerie
silence in the area and market. As the
S.H.O. of Police Station Kotwali Nagar,
got information of the occurrence, he
immediately
infromed
his
higher
authorities.
The
Circle
Officer,
Superintendent
of
Police,
D.I.G.,
Devipatan Division, Gonda and the
Additional Superintendent of Police, etc.
reached
the
spot.
They
deployed
sufficient police force after calling from
the nearby police stations and police line
of the district and made effort to restore
public order. As a consequence of the
occurrence, law and order along with the
public order got completely disturbed.

7. He further mentioned that the
office
bearers
of
the
Teachers
Association
also
made
DharnaPradarshan
and
submitted
their
representation
to
higher
authorities
enraged by the occurrence and they
expressed their annoyance. Persons of the
locality became fearful for their safety and
security. The newspapers also published
the news of the brutal murder and residents
of the entire district were fearful for many
days. Police authorities gave assurance to
the people of the area that they would
ensure that the accused may not be released
from
jail
as
the
people
were
in
apprehension that as the accused will be
released on bail, he will try to influence
the witnesses and may again commit
heinous offences, like murder. The
accused submitted his bail application in
the
Court
of
Session
Judge
on
08.05.2023, in which the date 18.05.2023
was fixed for its hearing and there was a
high probability that his bail application
will be allowed, hence, necessary action
be taken to detain the accused under the
Act of 1980.

8. The Circle Officer concerned in
his letter to Superintendent of Police,
Gonda dated 15.05.2023, expressed his
consent on the report of S.H.O., Kotwali
Nagar, Gonda and recommended to
detain the accsued under the Act of 1980.

9. The Additional Superintendent of
Police,
Gonda
also
expressed
his
agreement with the letter of S.H.O.,
Police Station Kotwali Nagar, Gonda and
gave consent to the report of Circle
Officer, City, Gonda and requested to the
Superintendent of Police, Gonda to detain
accused under the Act of 1980 vide his
letter dated 16.05.2023 to Superintendent
of Police, Gonda.

10. The Superintendent of Police,
Gonda considered the reports of S.H.O.,
Police Station Kotwali, Circle Officer and
Additional Superintendent of Police, and
requested the District Magistrate, Gonda by
his letter dated 17.05.2023 to detain the
accused/petitioner under the Act of 1980.
82 INDIAN LAW REPORTS ALLAHABAD SERIES

11. The District Magistrate, Gonda
perused and considered the above reports
as
well
as
other
related
material/
documentary evidence submitted by the
police, which were collected by the
Investigating Officer during the course of
investigation of the case and after his
subjective
satisfaction
that
accused/petitioner has committed the
heinous offence and as a result of the
fearful and daring offence public order
had been affected adversely in the
locality.
The
act
of
accused
was
prejudicial to public order. He is a
criminal minded and powerful person
who has moved his bail application
before Sessions Judge, Gonda and it's
very likely he will be released on bail,
there is a great apprehension that after
release from jail, the accused/petitioner
may again indulge in his criminal
activities and may again commit any
crime prejudicial to the maintenance of
public
order,
hence
the
District
Magistrate, Gonda passed the order dated
17.05.2023 to detain the petitioner/
accused under Section 3 (2) of the Act of
1980.

12. Above detention order along
with the grounds of detention and
appended documentary evidences have
been served to accsued, through Jail
Superintendent, Gonda on the same date
as he was under incarceration. The
District Magistrate, Gonda also sent his
report along with the detention order,
grounds
of
detention
and
related
documentary evidence to opposite party
No.2 on 18.05.2023, the detentioin order
was approved by the opposite party No.2
on 25.05.2023, i.e. between 12 days from
the date of order of detention. The approval
order of the State Government was
received by the District Magistrate through
radiogram on 25.05.2023 itself, which was
served upon the petitioner on the same date
in jail through opposite party No.4.

13. Opposite party No.2 further sent
the copy of detention order, grounds of
detention with appended documentary
evidence as well as its approval to opposite
party No.1, in accordance with the
provisions of Section 3 (5) of the Act of
1980.

14. The petitioner against his
detention under Section 3 (2) of the Act of
1980, submitted his representation dated
27.05.2023 to opposite party No.4, who
transmitted it to opposite party No.3 on
27.05.2023 itself. Opposite party No.3, the
District Magistrate, Gonda sent the copies
of representation to opposite party No.1, 2
and the Advisory Board (detention),
Lucknow promptly.

15. Opposite Party No.3 called the
report from Superintendent of Police,
Gonda
on
the
representation
of
petitioner/accused. 28.05.2023 was Sunday
holiday. Thereafter, on 29.05.2023, he
received the report of Superintendent of
Police, Gonda and after due consideration,
he
rejected
the
representation
of
accused/petitioner
on
30.05.2023
and
communicated his
rejection order to
detenue on same date through opposite
party No.4.

16. The representation of the
petitioner/accused sent by opposite party
No.3 was received by concerned official of
State Government on 01.06.2023 along
with the letter of District Magistrate, Gonda
dated 30.05.2023 and parawise comment
on it. The State Government sent a copy of
the representation along with parawise
comments thereon to opposite party No.1
4 All. Sandeep Yadav Vs. Union of India & Ors.
83
through speed post and to Advisory Board
through
special
messsenger
vide
its
separate letters dated 01.06.2023. The
concerned official of opposite party No.2
examined the representation on 02.06.2023.
The joint Secretary also examined it on the
same day. There was Saturday and Sunday
on 03.06.2023 and 04.06.2023, hence the
Special Secretary (Home) examined the
representation
on
05.06.2023.
Subsequently, the Secretary (Home) and
Principal Secretary (Home) Government of
U.P., Lucknow, examined the same on
06.06.2023. Thereafter, the representation
was submitted to the higher authorities for
final order, who, after due consideration,
rejected the same on 07.06.2023. The
information of rejection was sent through
telegram to opposite party No.3 on
08.06.2023.
The
said
telegram
was
communicated to the petitioner/accused on
same day through opposite party No.4.

17. The U.P. Advisory Board
(Detention), Lucknow vide its letter dated
22.06.2023 informed the opposite party
No.3 that the case of the petitioner would
be taken up before the Board for hearing on
28.06.2023.
Opposite
party
No.2
communicated
the
same
through
telegram/email
dated
22.06.2023
to
petitioner. On 28.06.2023, the petitioner
personally
appeared
before
the
U.P.
Advistory Board (Detention). The Board
also, after due consideration, rejected the
representation
of
the
petitioner
and
submitted its report to the section of
opposite party No.2 on 03.07.2023. The
said order was also communicated to
petitioner promptly.

18. Opposite party No.2 again
considered the case of the petitioner after
getting the report of U.P. Advisory Board
under Section 11 of the Act of 1980 and
extended the period of detention for 03
months from the date of detention and for
communication
sent
the
order
vide
telegram/letter dated 6th July, 2023, which
(the telegram) was received by opposite
party No.4 on 07.07.2023 and formal order
on 13.07.2023. The aforesaid radiogram as
well as formal order were served to the
petitioner on 07.07.2023 and 13.07.2023
respectively.

19. The representation of petitioner
along with report and parawise comments
was received by official of opposite party
No.1 on 09.06.2023. There was holiday on
10.06.2023 and 11.06.2023. Hence, the said
representation was examined by officials of
opposite
party
No.1
on
12.06.2023.
Thereafter,
the
representation
was
examined by Under Secretary and Deputy
Secretary on 13.06.2023, by Additional
Secretary on 14.06.2023, and on the same
day, i.e. on 14.06.2023, opposite party No.1
rejected
the
representation
after
due
consideration. Thereafter, the file was
returned through proper channel and
reached
the
concerned
section
on
16.06.2023, who, by wireless message
dated 16.06.2023, informed the above
rejection order, which was also served to
petitioner.

20. From the perusal of counter
affidavits of opposite party No.1 to 4, it
transpires that the detention order dated
17.05.2023 was communicated to the
petitioner on the same day along with
grounds
of
detention
and
annexed
documents. Thereafter, the detention order
was confirmed by the State Governent
within the period prescribed by the Statute.
The representations of accused/petitioner
were also decided by the opposite party
Nos.1, 2 and 3 as well as by the Advisory
Board
(Detention),
Lucknow,
and
84 INDIAN LAW REPORTS ALLAHABAD SERIES
communicated the decisions to petitioner
with due promptness. No violation of any
provision of the Act of 1980 has been
found in disposal of representation as
well as communication of aforesaid
decisions to petitioner.

21.
Learned
counsel
for
the
petitioner submitted that according to
provisions of Section 3 (2) of the Act of
1980, the accused can be detained under
the Act, when there is an apprehension of
disturbance of public order. In present
case, as according to the F.I.R., the
offence
was
committed
by
the
accused/petitioner within the four walls
of a residential house. According to the
prosecution story there may be a situation
of disturbance of "law and order" but
there was no disturbance in "public
order", hence, the provisions of Section 3
(2) of the Act, 1980 has been slapped on
accused illegally and without any basis.
Petitioner
has
no
criminal
history.
Learned counsel for petitioner further
submitted
that
order
of
preventive
detention
has
been
passed
against
petitioner after approximately 3 and 1/2
months after the date of occurrence, i.e.
on stale grounds, that too, on a solitary
criminal case. At the time of passing of
detention order, the petitioner was in jail.
The detaining authority failed to consider
essential ingredients of Section 3 of the
Act, 1980 for his subjective satisfaction,
therefore, the impugned order is against
Article 21 and 22 of the Constitution.

22.
Learned
counsel
for
the
petitioner, in support of his arguments,
has placed reliance upon the following
case laws :-

(i) Shiv Kumar @ Mukhiya Vs.
State of U.P. , [2015 (3) JIC 92 (All)]

(ii)
Mrs.
T.
Devaki
v.
Government of Tamil Nadu and others,
(1990) 2 SCC 456

(iii) Gulab Mehra Vs. State of
U.P. and others (1987) 4 SCC 302

(iv) Bharat Lal Tewari Vs.
State of U.P. & others [Habeas Corpus
Petition No.12782 of 1988, decided on
17.02.1989]

(v)
Manu
Bhushan
Roy
Pradhan Vs. State of West Bengal and
others, AIR 1973 SC 295.

(vi) Islamuddin Vs. The State,
1991, L.Cr.R 27

(vii)Ram Bharose Yadav Vs.
District Magistrage, Deoria & Ors., [2004
(2) JIC 116 (All)]

(viii) Santosh Kumar Upadhyay
Vs. District Magistrate, Gonda and others,
2006 (1) LCrR 338

(ix) Pahadi @ Shiv Shanker
Verma Vs. State of U.P. and others [Writ
Petition No.670(H.C.) of 2003, decided on
27.07.2004]

(x) Waseem Vs. State of U.P. and
others, L.Cr.R 225 and in the case of Ram
Singh Vs. District Magistrate, Lucknow and
others, 1985 L.L.Journal 335

23. The counsel for the opposite
parties vehemently opposed the writ
petition and submitted that accsued is a
criminal minded person; he has committed
the murder of a Government teacher
brutally; as a consequence of daring and
fearless act of petitioner, public order in the
area got disturbed badly. The detaining
authority considered the police report
properly
and
after
his
subjective
satisfaction that the act of petitioner was
prejudicial to maintenance of public order
detention order has been passed by the
District Magistrate. Petitioner was likely to
be released on bail and there was great
apprehension that after release on bail he
4 All. Sandeep Yadav Vs. Union of India & Ors.
85
may commit heinous crimes and acts
against the maintenance of public order as
well, therefore, petitioner has rightly and
legally been detained under the Act of 1980
by the opposite party No.3.

24. Learned counsel for the opposite
parties relied upon following case laws in
support of their arguments :-

(i) Malwa Shaw Vs. State of
West Bengal, (1974) 4 SCC 127

(ii) Ibrahim Nazeer Vs. State of
Tamil Nadu & another, AIR 2006 SC
3606

(iii) Veeramani Vs. State of
Tamil Nadu, (1994) 2 SCC 337

25.

We
have
considered
the
arguments of both the sides and have also
perused the records.

26. According to the facts of the case
the petitioner had caused the murder of
Krishna Kumar Yadav on 28.01.2023. As a
consequence of the offence the residents
and business persons of the area became
fearful and terrorised. The public order and
tranquility
got
disturbed
badly.
The
petitioner who was arrested in connection
with the aforesaid offence on 30.01.2023
was trying to be released on bail. Knowing
about it, the general public again got
panicked. There was a great apprehension
that after release on bail the petitioner will
again indulge in criminal acts and act
prejudicial to public order and peace, hence
District
Magistrate,
Gonda/detaining
authority passed the order on 17.05.2023 to
detain him under the provisions of the Act
of 1980.

27. Learned counsel for the petitioner
has submitted that the murder of a single
person took place inside the room. The
offence was committed by accused neither
in day light, nor in public view. Lucky
Singh is a planted witness. Trial is still
pending. The petitioner was not known
criminal. He was having no criminal
history. Hence, there was no situation of
disturbance in public order; maximum, as a
result of offence, there would have been
adverse effect on law and order situation of
the area.

28. In support of his argument,
learned counsel for the petitioner submitted
the judgment of Hon'ble Supreme Court in
the case of T. Devaki v. Government of
Tamil Nadu and others, (1990) 2 SCC
456, the Hon'ble Apex Court has held that :

"18. The question which falls for
consideration is whether single incident of
murderous assault by the detenu and his
associates on the Minister at the Seminar
held at Dry Chilly Merchants' Association
Kalai Arangam Hall was prejudical to the
maintenance
of
public
order.
Any
disorderly behaviour of a person in the
public or commission of a criminal offence
is bound to some extent affect the peace
prevailing in the locality and it may also
affect law and order problem but the same
need not affect maintenance of public
order. There is basic difference between
'law and order'and 'public order', this
aspect has been considered by this Court in
a number of decisions, see: Dr. Ram
Manohar Lohia v. State of Bihar;
Pushkar Mukherjee v. The State of West
Bengal, and Shymal Chakraborty v.
Commissioner of Police. In these cases it
was emphasised that an act disturbing
public order is directed against individuals
which does not disturb the society to the
extent of causing a general disturbance of
public peace and tranquillity. 1t is the
degree of disturbance and its effect upon
the life of the community in the locality
86 INDIAN LAW REPORTS ALLAHABAD SERIES
which determines the nature and character
of breach of public order. In Arun Ghosh
v. State of West Bengal, [1970] 3 SCR 288
the Court held that the question whether a
man has only committed a breach of law
and order, or has acted in a manner likely
to cause disturbance of the public order, is
a question of degree and the extent of the
reach of the act upon the society. This view
was reiterated in Nagendra Nath Mondal
v. State of West Bengal; Sudhir Kumar
Saha v. Commissioner of Police, Calcutta;
S.K. Kedar v. State of West Bengal; Kanu
Biswas v. State of West Bengal; Kishori
Mohan v. State of West Bengal, and
Amiya Kumar Karmakar v. State of West
Bengal.

19. In the instant case the detenu
was placed under detention on the sole
incident which took place on July 29, 1989
and in respect of which the detenu is facing
criminal trial before a court of law. The
alleged attempted murderous assault made
by the detenu and his associates on Thiru
Durai Murugan, Minister for Public Works
Department may have been made on
account of political rivalry. In fact, in his
affidavit
Thiru
Durai
Murugan
has
admitted that in the past the detenu had
misbehaved with him even on the floor of
the Legislative Assembly of Tamii Nadu
while participating in discussion. The
attempted assault took place in the hail of
Dry Chily Merchants' Association Kalai
Arangam where two Ministers, a number of
officials including the District Magistrate,
as well as members of the public were
present. It is alleged that the attempted
murderous
assault
on
Thiru
Durai
Murugan created scare and a feeling of
insecurity in the minds of the persons
present in the hail and the detenu's action
interrupted
the
"proceedings
of
the
Seminar for a while" (emphasis supplied).
This shows that the detenu's activity
disturbed the proceedings of the Seminar
for a while but the Seminar appears to have
continued later on. The incident did not
and could not affect public peace and
tranquillity nor it had potential to create a
sense of alarm and insecurity in the
locality. How could a single murderous
assault on the Minister concerned at the
Seminar could prejudicially affect the even
tempo of the life of the community? No
doubt in paragraph 4 of the grounds the
detaining authority has stated that by
committing this grave offence in public, in
broad day light, the detenu created a sense
of alarm, scare and a feeling of insecurity
in the minds of the public of the area and
there by acted in a manner prejudicial to
the maintenance of public order which
affected even tempo of life of the
community. Repitition of these words in the
ground are not sufficient to inject the
requisite degree of quality and potentiality
in the incident in question. A solitary
assault on one individual can hardly be
said to disturb public peace or place public
order in jeopardy somuch as to bring the
case within the purview of the Act. Such a
solitary incident can only raise a law and
order problem and no more. Moreover,
there is no material on record to show that
the reach and potentiality of the aforesaid
incident was so great as to disturb the
normal life of the community in the locality
or
it
disturbed
general
peace
and
tranquillity. In the absence of such material
it is not possible to hold that the incident at
the
seminar
was
prejudicial
to
the
maintenance of public order. In Manu
Bhusan Roy Prodhan v. State of West
Bengal, this Court held that a solitary
assault on one individual, which may well
be equated with an ordinary murder which
is not an uncommon occurrence, can
hardly be said to disturb public peace and
its impact on the society as a whole cannot
4 All. Sandeep Yadav Vs. Union of India & Ors.
87
be
considered
to
be
so
extensive,
widespread and forceful as to disturb the
normal life of the community, thereby
shaking the balanced tempo of the orderly
life of the general public. The Court held
that the detention order which had been
made for preventing the petitioner from
acting in a manner prejudicial to the
maintenance of public order, was not
sustainable
in
law.
On
a
careful
consideration of the matter in all its
aspects
and
having
regard
to
the
circumstances
in
which
the
alleged
incident took place on 29.7.89, we are of
the opinion that the solitary incident as
alleged in the ground of detention is not
relevant for sustaining the order of
detention for the purpose of preventing the
petitioner from acting in a manner
prejudicial to the maintenance of public
order."
(Emphasis supplied)

29. In the case of Gulab Mehra Vs.
State of U.P. and others (1987) 4 SCC
302, the Hon'ble Apex Court on the basis
of its previous decisions has explaned the
difference in "public order" and "law and
order" situation as under :-

"12. The meaning of the word
'public order' has been determined by this
Court in the case of Kanu Biswas v. State
of West Bengal. In this case it has been
held 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. Public
order is what the French call "order
publique" and is something more than
ordinary maintenance of law and order.

13. In the case of Haradhan
Saha v. The State of West Bengal, this
Court has observed that the following
principles
emerge
from
the
judicial
decisions : [SCC p.209, SCC (Cri) p. 827,
para 341]

"First, merely because a detenu
is liable to be tried in a criminal court for
the commission of a criminal offence or to
be proceeded against for preventing him
from committing offences dealt with in
Chapter VIII of the Code of Criminal
Procedure would not by itself debar the
Government from taking action for his
detention under the Act.

Second, the fact that the police
arrests a person and later on enlarges him
on bail and initiates steps to prosecute him
under the Code of Criminal Procedure and
even lodges a first information report may
be no bar against the District Magistrate
issuing an order under the preventive
detention.

Third, where the concerned
person is actually in jail custody at the
time when an order of detention is passed
against him and is not likely to be released
for a fair length of time, it may be possible
to contend that there could be no
satisfaction on the part of the detaining
authority as to the likelihood of such a
person indulging in activities which would
jeopardise the security of the State or the
public order.

Fourth, the mere circumstance
that a detention order is passed during the
pendency of the prosecution will not violate
the order.

Fifth, the order of detention is a
precautionary measure. It is based on a
reasonable
prognosis
of
the
future
behaviour of a person based on his past
conduct in the light of the surrounding
circumstances."

14. This has been followed in
Kanchanlal Meneklal Chokshi v. State of
Gujarat and others, wherein it has been
88 INDIAN LAW REPORTS ALLAHABAD SERIES
observed that : [SCC pp.18-19, SCC (Cri)
p.901, para 8]

"The ordinary criminal process is
not to be circumvented or short circuited by
ready resort to preventive detention. But,
the possibility of launching a criminal
prosecution is not an absolute bar to an
order of preventive detention. Nor is it
correct to say that if such possibility is not
present to the mind of the detaining
authority
the
order
of
detention
is
necessarily bad. However, the failure of the
detaining
authority
to
consider
the
possibility
of
launching
a
criminal
prosecution may, in the circumstances of a
case, lead to the conclusion that the
detaining authority had not applied its
mind to the vital question whether it was
necessary to make an order of preventive
detention. Where an express allegation is
made that the order of detention was issued
in a mechanical fashion without keeping
present to its mind the question whether it
was necessary to make such an order when
an ordinary criminal prosecution could
well serve the purpose, the detaining
authority must satisfy the Court that
question too was borne in mind before the
order of detention was made. If the
detaining authority fails to satisfy the Court
that the detaining authority so bore the
question in mind the Court would be
justified in drawing the inference that there
was no application of the mind by the
detaining authority to the vital question
whether it was necessary to preventively
detain the detenu."

15. In the case of Dr Ram
Manohar Lohia v. State of Bihar, it has
been observed by this Court that :

"The contravention of law always
affects order but before it can be said to
affect public order, it must affect the
community or the public at large. There are
three concepts according to the learned
Judge (Hidayatullah, J) i.e. ''law and
order'', "public order" and 'security of the
State' . It has been observed that to
appreciate the scope and extent of each of
them, one should imagine three concentric
circles. The largest of them represented law
and order, next represented public order
and the smallest represented the security of
the State. An act might affect law and order
but not public order just as an act might
affect public order but not the security of
the State.''

16. As observed in the case of
Arun Ghosh v. State of West Bengal,
[SCC pp.99-100, SCC (Cri) p.69, para 31 :

"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 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.
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
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."
4 All. Sandeep Yadav Vs. Union of India & Ors.
89

17. This has been followed in the
case of Nagendra Nath Mondal v. State of
West Bengal, and Nandlal Roy v. State of
West Bengal.

18. Thus from these observations
it is evident that an act whether amounts to
a breach of law and order or a breach of
public order solely depends on its extent
and reach to the society. If the act is
restricted to particular individuals or a
group of individuals it breaches the law
and order problem but if the effect and
reach and potentiality of the act is so deep
as to affect the community at large and or
the even tempo of the community that it
becomes a breach of the public order.

19. In the case of S.K. Kedar v.
State of West Bengal, this Court has
observed that : [SCC p. 818, SCC (Cri) p.3,
para 6]

"The question whether a person
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
one of degree and the extent of the reach of
the act upon the society. An act by itself is
not determinative of its own gravity. In its
quality it may not differ from another but in
its potentiality it may be very different.
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
effect upon the community. Public order is
the even tempo of the life of the community
taking the country as a whole or even a
specified locality. It is the degree of
disturbance upon the life of the community
which determines whether the disturbance
amounts only to a breach of the law and
order."

20.
This
Court
has
further
observed in the case of Ashok Kumar v.
Delhi Administration, while dealing with
the distinction between "public order" and
"law and order" to which one of us is a
party that : [SCC pp. 409-10, SCC (Cri) p.
457, para 13]

"The true distinction between the
areas of 'public order and 'law and order'
lies not in the nature of quality of the act,
but in the degree and extent of its reach
upon society. The distinction between the
two concepts of 'law and order' and 'public
order' is a fine one but this does not mean
that there can be no overlapping. Acts
similar in nature but committed in different
contexts and circumstances might cause
different reactions. In one case it might
affect
specific
individuals
only
and
therefore touch the problem of law and
order. The act by itself therefore is not
determinant of its own gravity.