R.P. SHUKIA J

(1.) This is a Habeus Corpus Petition under Article 226 of the Constitution of India moved by the petitioner Virendra Pratap Shahi (hereinafter referred to as the detenuT1) challenging the validity of the detention order dated 17th November, 1984, passed against him by the District Magistrate, Gorakhpur (hereinafter referred to as the detaining authority) preventively detaining him under section 3(2) of the National Security Act (hereinafter referred to as the).

(2.) The grounds of detention have been annexed as Annexure liT to the petition. They are, as translated in English, as follows:

(1) That on 6.8.1984 Sardar Ajit Singh, resident of Nautanwa, District Gorakhpur, was killed by Sri Kaushal Tewari, son of Sri Han Shanker Tewari, in his Chhaoni, village Sunauli, Police-station Nautanwa, Gorakhpur. In this connection, you went to Nautanwa on 7.8.1984 and you yourself took the lead of an agitation against this murder and infusing anger in the people, you made a declaration of a strong agitation. You also appealed to the people to offer a son each to you so that Han Shanker Tewari and other could be dealt with. The above facts are mentioned in daily information diary, Local Information Unit, Gorakhpur No. 45, dated 9.8.1984. Thus you infused fear and terror in the people of Nautanwa and instigated them to indulge in violent acts. On 11.8.1984, when the dead body of the aforesaid Ajit Singh reached Nautanwa, where the cremation was to take place at 3.30 p.m. after the post-mortem at Gorakhpur a procession of twenty thousand people was taken out in your leadership. The procession was headed by a jeep, on which an effigy of Sri Han. Shanker Tewari, your rival leader, was placed. It was written on the said effigy Notorious Murderer Han Shanker TewariT1. In the right hand of this effigy, a fake pistol was shown and a fake pistol was also shown hanging around the waist. A garland of shoes was put on the effigy. The following slogans were being raised in this procession: vV2 gjh kadj dh rhu nokbZ]twrk pliy vkSj fiVkbZ! cV2 ukSryok us yydkjk gS] gjh kadj gR;kjk gS! 1/2dkSkyokdksQkalhnks] etc, etc. This procession was taken out throughout the township of Nautanwa. The same day at 6.00 p.m. on the cremation ground of Nautanwa, you addressed a meeting of about ten thousand people and delivered inflamatory speech. Some extracts of your speech are as follows: The death of Sardar Ajit Singh demands sacrifice and his death has resulted into a new awakening in the people of this place. You have made me your representative, and therefore, I thought that to keep peace in the area I should not use you people but I would settle scores else where but now there will be no delay. I myself shall face this terrorist, and, if the administration does not arrest the murderer of Ajit Singh within fifteen days, I shall settle scores with guns. You also said that the mistake that has been made is over and now there shall be no delay. You also appealed to the people and said that if you have to die, die 8 and 10 together. You sought the cooperation of the youth and said that how many young lives shall be lost in this agitation cannot be said. The effigy of Sri Han Shanker Tewari was burnt at 8.00 p.m. in the night near the house of his nephew (sisters son) in the township of Nautanwa. The above facts have been mentioned in the Daily Information Diary No. 47 dated 14.8.1984 of Information Unit, Gorakhpur. Thus by the aforesaid inflamatory speech, you incited the people to violence and as a result several incidents of violence followed in Nautanwa township. They are as follows: That on 12.8.1984 at about 11.00 a.m., the available copies of Daily Jagran were collected from shop and were burnt by your followers who felt that this daily newspaper had shown disrespect to your views. The information of this incident was given to the district administrative authorities through C.P.O. Sunauli vide R.G. No. C.P.O. M/s. 7/48 dated 12.8.1984.

(2) That on 3.9.1984, a public meeting was organized by your supporters at Hanuman Chowk in Nautanwa, wherein a threat was extended that they will be compelled to resort to road held up and other forms of agitation if action was not taken against the murderers of Ajit Singh by 13.9.1984. An entry to this effect was made in the daily Information Summary Diary No. 57 dated 5.9.1984 of Local Information Unit of Gorakhpur. As a result of the above threat, road hold up agitation started in Nautanwa on 17.9.1984 and it was made to end on 18.9.1984 at 2.30 P.M. after about twenty-seven hours. The trains from and to Nautanwa were, stopped. 198 down train was stopped at Nautanwa and a case under sections 100-B/100, Railway Act dated 17.9.1984 was registered at Anandnagar, G.R.P. Gorakhpur at Crime No. 630 of 1984, as a result of this general public was disturbed. The traffic came to a stop and the public order was disturbed.

(3) That on 17.9.1984 at about 5.00 p.m., your supporters Sardar Jite Singh, Abhilekh Singh, Munna Singh, Kuldeep Singh, Sardar Patti Singh, Gulmod Singh, Sardar Kul Prasad Singh, Sardar Motha Singh along with two hundred persons, whose names and addresses were not known, were taken in ten trucks and other vehicles to the Chhawni of Han Shanker Tewari in village Sunauli, police station Nautanwa, Gorakhpur, where they damaged Han Shankers Cinema Hall which was under construction and took away the materials like Tripal, wooden planks, iron rods, pipes, wooden poles and cement etc. On the report of Vijay Prakash Sharma a case was registered at Crime No. 97 of 1984 under section 147, 379, 327, 504 and 506 I.P.C. at Police-station Nautanwa. By this incident, the people of Nautanwa were terror stricken and the public order was disturbed. On 18.9.1984 at about 1.00 p.m., you addressed a public meeting of about one thousand people and you threatened to organize a Sangharsh Samiti which would chalk out the programme of agitation and you will launch a strong agitation if your demands were not fulfilled. Thus you instigated the people to violence. The above fact is mentioned in the Daily Information Summary No. 63 of 19-9-84.

(4) On 20-8-1984 at 5.00 p.m. you along with your associates Kunwar Akhilesh Singh, Sardar Surjeet Singh, Sardar Seeta Singh Sheo Bahadur Singh, Bachna Singh, Rana alias Tada, Anirudh Jaiswal and 10-12 others, whose names and addresses are not known, armed with weapons, went to Adda Bazar on a jeep and motorcycles and reached the place where Shri Durga Shanker Pandey, Block Pramukh Laxmipur was sitting with the two, body-guards. You got down from the jeep and asked your associates to surround him. Your associates jumped off their vehicles and. Shri Akhilesh Singh fired at Durga Shanker Pandey. The others also started indiscriminate firing. Ram Bilas, Dhobi, got injured and fell down. Complainant Durga Shanker Pandey some-how saved himself by hiding in a shop. You people held Durga Shanker Pandeys body-guards Kushhar Prasad and Janakdeo who were sitting with rifles and gun and took them away. On the report of Durga Shanker Pandey a case was registered at Crime No. 81-A of 1984 under sections 147, 148, 149, 307 and 342 I.P.C. As a result, terror prevailed in Nautanwa and Tpublic order was disturbed.T

(3.) Being subjectively satisfied, on the basis of the aforesaid grounds, the detaining authority passed the detention order on 17-11-1984, which was served on the detenu on 18-11-1984. It has been contended on behalf of the detenu that under section 11 of the National Security Act, the Advisory Board shall after considering the materials placed before it and after calling for such further opinion as it may deem necessary from the appropriate Government or from any person called for the purpose through the appropriate Government or from the person concerned, and, if in any particular case, it considers it essential so to do if the person concerned desires to be heard, after hearing in person, submit its report to the appropriate Government within seven weeks from the date of detention of the person concerned and according to the learned counsel for the detenu the Advisory Board has taken more than seven weeks in the instant case, therefore, the detention order is liable to be quashed. The detention order became effective only on 19-11-84. The Advisory Board submitted its report on 7-1-1985. Eleven days of the month of November, 1984 added to thirty one days of the month of December, 1904 and if 7th is left six days of the month of January. 1985 would make forty eight days and if 7th is also included that would amount to forty nine days In any case, the report of the Advisory Board was submitted within seven weeks from the date of detention. The learned counsel wrongly counted the days because instead of from the date of detention he started counting from the date of detention order. Thus the report of the Advisory Board was submitted within seven months as required by section 11 (1) of National Security Act and the contention on behalf of the detenu has no force.

(4.) The second contention on behalf of the detenu is that all the grounds of detention order are problems of law and order and not of public order. The scrutiny of each ground with a view to find out if the same has potentiality to disturb the public order is essential. The ground no. 1 comprises of four different parts. The first part relates to the murder of Sardar Ajit Singh of Nautanwa by Sri Kaushal Tewari son of Sri Han Shanker Tewari. The detenu went to Nautanwa on 7-8-1984 and took the lead of an agitation against this murder. The detenu was and still is a member of V.P. Legislative Assembly. Nautanwa, to which, the said deceased belonged, is a part of the Constituency of the detenu. It is said in this part of the ground that the detenu appealed to the people to offer a son each to him so that he could face people like Han Shanker Tewari and others. There is nothing in this part of the ground to infer that the detenu created fear and terror in the people of Nautanwa. At the most his appeal to the people means that he desired a strong organization to face the murderer of Ajit Singh. In the second part of this ground, it is said that the detenu led a twenty thousand strong procession with the effigy of Han Shanker Tewari placed on a jeep and the third part relates to the speech of the detenu on the cremation ground which was attended by ten thousand people. In the said meeting, the detenu declared that he would settle accounts with guns if the district administration would not arrest the murderer of Ajit Singh within fifteen days. He also asked the people that they should die 8-10 together if they have to die. He further said that he could not say as to how many young lives would be lost in that agitation. None of the aforesaid utterances of the detenu can be said to be inciting the people to resort to violence. Since the detenu represented in the U.P. Vidhan Sabha, he could not shut his eyes on the incidents of murder as aforesaid. He not only tried to pacify the people but also attempted to discipline the emotional upsurge of the people of Nautanwa so that they would not indulge into unlawful activities. By giving fifteen daysT time to the district administration to arrest the murder of Ajit Singh be not only made the people to be quiet for the next fifteen days, but also set the ball rolling in the court of the district administration. It was for the district administration to be active and efficient to arrest the murderer of Ajit Singh. To settle accounts with guns was a conditional declaration and, therefore, it was for the administration to see that these conditions could not prevail when the detenu had to resort to violence i.e. the district administration had to be alert and efficient in bringing to book the murderer of Ajit Singh. When the people are already emotionally surcharged a public speaker has to make some emotional outbursts to win their confidence or to create a feeling that he is one of them with a view to enable himself to discipline their emotions by being one of them. In spite of the emotional outburst that the detenu would settle accounts with guns he made the people to keep quiet for fifteen days to come. There appears to be nothing inflamatory in this part of the ground. The effigy of Han Shanker Tewari was burnt the same night at 8.00 p.m. near the house of his nephew (sisters son). Even this act of leading the procession with the effigy of Han Shanker Tewari and burning the same near the house of his nephew has no potentiality to disturb the public order. It has no reach to the society at large. The last part of this ground relates to burning of all the available copies of daily Jagran by the supporters of the detenu. A perusal of the information reported through C.P.C./ Misc. 7/84 dated 12-8-84 in. this regard reveals that hundred sympathizers of Ajit Singh under direction of Akhilesh Singh burnt the Dainik Jagran papers after collecting from shops in protest of their demands, situation remained peace full. These entries do not indicate the involvement of the detenu in this incident. Thus the Ground No. 1 does not make out a case of public disorder.

(5.) Ground No. 2 relates to a public meeting held at Nautanwa Chowk on 3-9-1984 by the supporters of the detenu wherein threats were extended for train hold up and road blocks etc. It is not said that the detenu was present in this meeting nor it is said that he was a party to the decisions taken in this meeting. There is absolutely no material to concoct the organizers of this meeting with the detenu. It is also not said that the detenu participated in the road blockTs or train hold up nor he has been named in the case registered at Crime No. 650 of 1984 in this connection nor it is said that the above decision was taken or implemented at the exhortation of the detenu. Under the circumstances, we are constrained to hold that the groun ground No. 2 does not depict any picture that the detenu was present in the decision therein or in their implementation and, therefore, the detention on this ground cannot be valid.

(6.) Ground no. 3 can also be divided into two parts. The first part relates to a incident dated 17-9-1984 registered at Crime No. 97 of 1984, under sections 147, 379, 427, 504 and 506 I.P.C. Even in this incident, the detenu is not one of the participants nor there is any material to connect participants with the detenu. There is nothing to show that this incident was a result of the exhortation of the detenu and, therefore, this part of the ground is not relevant to the detention order. The second part of this ground relates to a public meeting attended by one thousand people on 18-9-1984 at 1.00 p.m. held in the township of Nautanwa. This meeting was addressed by the detenu who declared in the meeting that he would organize an action committee which would chalk out the programme of the agitation and that the detenu would lead a strong agitation. We do not find any thing in this part of the ground to infer that the detenu incited the people to violence. Thus considering the Ground No. 3 as a whole, we are of the opinion that the detention of the detenu cannot be sustained on this ground.

(7.) Ground No. 4 relates to an incident dated 20-8-84 when the detenu along with his associates named in the ground all armed with weapons attacked Durga Shanker Pandey, Block Pramukh, Laxmipur, at about 5.00 p.m. However, Dura Shankar Pandey escaped unhurt. His two bodyguards were unlawfully detained by the detenu and his associates. A case was registered at Crime No. 81-A of 1984 under sections 147, 148, 159, 307 and 342, I.P.C. against the detenu and his associates. The distinction between the areas of TIaw and orderT and Tpublic orderT he one of degree and extent of the reach of the act in question on society. It is the potentiality of the act to disturb the even tempo of the life of the community which makes it prejudicial to the maintenance of public order. If the contravention in its effect is confined only to a few individuals directly involved as distinguished from a wide spectrum of the public, it would raise a problem of law and order only. The aforesaid observation flows from their Lordships of the Supreme Court in Ram Ranjan Chatterji. v. State of West Bengal. The analysis of the Ground No. 4 in the light of the above observations makes it clear that the aforesaid Ground No. 4 relates only to law and order and it has no potentiality to disturb the public order, and therefore, the detention of the detenu cannot be upheld even on this ground.

(8.) It has been urged by the counsel for the detenu that heavy costs be awarded to the detenu. We have given our very anxious consideration and are of opinion that no case for awarding costs is made out.

(9.) In the result, the petition succeeds and is allowed. The respondents are directed not to keep Virendra Pratap Shahi detenu under detention any longer in pursuance of the detention order dated 17-11-1984 passed by the District Magistrate, Gorakhpur under section 3(2) of the National Security Act and affirmed by the State Government. It is made clear that if the petitionerTs detention is required under some other authority of law, the order passed by us shall not entitle him to be physically released. Appeal Allowed