ORDER
1. The questions of fact and law are similar in the aforesaid writ petitions and they can conveniently be decided by a common order against which learned counsel for the parties have no objection. The habeas corpus writ petition No. 7307 of 1999 shall be the leading case.
2. Petitioners of aforesaid writ petitions have challenged the orders dated 19-11-1998, passed separately against each of them, under Section 3(2) of the National Security Act (hereinafter referred to as the Act) under which they have been detained. Along with the orders of detention the petitioners were also served with the grounds, which are similar. In leading case the impugned order of detention dated 19-11-1998 has been filed as Annexure 4 and grounds on which subjective satisfaction has been formed by the detaining authority has been filed as Annexure 5.
3. There are two grounds on the basis of which the orders of detention have been passed. The first ground is that on 9-11-1998 Jaswant Singh son of Shri Ram, resident of the village Hariagarhi, Police Station Raya, district Mathura lodged report (annexure 2) in police station Raya, which was registered as case crime No. 280 of 1998, under Section 506 IPC . It is stated that on 31-10-1998 the petitioners along with other companions forcibly entered in the house of Vinod Kumar son of Raghubir Singh and dragged with them his sister-in-law and wives of two nephews to their house and committed gang rape with them and thereafter left them naked in the village. No body in the village could muster courage to prevent the petitioners and their accomplishes from committing this heinous crime. It is further stated that accused persons are presently under detention in district jail Mathura and they are sending persons of criminal nature and threatening the complainant and his family members for their life if they do not file compromise and affidavit in the court regarding the offence committed on 31-10-1998. On 9-11-1998 at 7 a.m.when Jaswant Singh, the complainant was heading towards Raya from his village four armed persons called him and shouted at him that PAC and Police will not be helpful to him as they have been posted only for short time. If he does not file affidavits in favour of Om Veer, Mukta, Birjo and Brijveer then he will not be saved and shall be buried alive. When the miscreants were threatening, it was heard by Rishi Pal son of Devi Singh and Sugriv son of Hari Singh. On account of this daring attempt of the miscreants atmosphere of fear and commotion has prevailed in the village. The village persons kept themselves away from daily work. They are living under great fear and terror but have no courage to open their mouth against miscreants. Silence prevailed in the entire village and on account of petitioners' fear public order has been badly disturbed. Village people go inside their houses early in the evening and come out only in the morning. It is stated that on account of the aforesaid daring criminal activity of the petitioners the entire village is under grip of fear and public order has been badly disturbed.
4. In ground No. 2 it is stated that on 31-10-1998 at 5 a.m. four petitioners along with five others entered into the house of Vinod Kumar son of Raghuvir Singh and misbehaved with his wife, sister-in-law and mother and forcibly dragged three ladies and took them to their houses. There they looted their ornaments and then they committed gang rape on them one by one whereafter they left them totally naked in the village. A report of this occurrence was lodged by Vinod Kumar at police station Raya as case crime No. 272 of 1998 under Sections 147/ 452/376/342/354/395/323 IPC. The police immediately rushed to the village but could arrest only one accused Nepal Singh and the remaining accused including petitioners went under ground. The proceedings under Sections 82 & 83 Cr. P.C. were initiated against them. The movable property was attached, then only the remaining accused surrendered in the court on 3-11-1998. It is also stated that on account of this heinous criminal activity of the petitioners entire village was under grip of fear and terror and public order was disturbed.
5. It has been further stated that petitioners surrendered on 3-11-1998 before the Court and presently they are in custody and have been lodged in jail in connection with case crime No. 272 of 1998, under Section 147/ 452/376/342/354/395/323 IPC and. case crime No. 280 of 1998, under Section 506 IPC. It is stated that there is possibility that petitioners will be released on bail very soon and they will again indulge in similar activity which may cause serious prejudice to the maintenance of the public order. The detaining authority recorded his satisfaction that in the aforesaid fact and circumstances with a view to prevent the petitiners from acting in any manner prejudicial to the maintenance of public order it is necessary to detain them under the provisional of the Act.
6. Petitioners have also been informed that they have right under Section 8 of the Act to make representation against the order of detention to the State Government and the Advisory Board and also to the Central Government, if they desire to file representation, which may be submitted through the Superintendent of the Jail. Petitioners have also been informed that they have right of personal hearing before the Advisory Board and if they want to avail the same, this may also be specifically communicated to the jail authorities:
7. The orders of detention were approved by the State Government on 27-11-1998 under Section 3(4) of the Act, which was communicated to the petitioners on 30-11-1998. The State Government referred the case of the petitioners to the Advisory Board on 30-11-1998. The representations dated 5-12-1998 with comments were also sent to the Advisory Board on 9-12-1998 and Advisory Board heard the petitioners and gave opinion on 10-12-1998 to the effect that there was sufficient cause to detain the petitioners. The State Government thereafter considered the matter and confirmed the orders of detention for the period of 12 months w.e.f. 20-11-1998. The representations of the petitioners dated 5-12-1998 were forwarded by the District Magistrate with his comments on 9-12-1998 which were received by the State Government on 10-12-1998. A detailed note was submitted on same day. The Joint Secretary examined it and then submitted it to the Principal Secretary, Home. The Principal Secretary, Home examined the representations and on 11-12-1998 submitted it to the higher authorities for final order. The representations were ultimately rejected on 15-12-1998. Copies of the representations dated 5-12-1998 were also forwarded to the Central Government by the District Magistrate, which were received on 18-12-1998. On these representations several vital informations were required from the State Government by wireless message dated 23-12-1998. The requisite information was received on 24-12-1998. The case of the petitioners was put up before the Joint Secretary, Ministry of Home Affairs on 24-12-1998. The Joint Secretary considered the case and with his comments placed the same before the Home Minister on 28-12-1998. The representations were ultimately rejected on 31-12-1998.
8. In these petitions counter-affidavits have been filed by Shri R. A. Khan on behalf of State of U. P., by Bhimsen, Jailor, District Jail, Mathura on behalf of respondent No. 3, detaining authority, Shashi Prakash Goyal, the then District Magistrate, Mathura has filed his own counter-affidavit and on behalf of Union of India, respondent No. 4 counter-affidavit has been filed by Bina Prasad, Under Secretary, Ministry of Home Affairs, Government of India.
9. We have heard learned counsel for the petitioners, learned AGA for respondents No. 1 to 3 and Shri K.N. Pandey for respondent No. 4.
10. Learned counsel for the petitioners has challenged the legality of the impugned order of detention on the ground that it was a solitary incident involving the petitioners in a criminal case and the order of detention could not be legally passed on the basis of the allegations made in the grounds which could at the most be said to be related to law and order and cannot be said to be subversive to the public order. It is submitted that there is no material to show that there could be reoccurrence of the similar activity in future and the orders of detention are wholly illegal. It has also been submitted that detaining authority has failed to consider the FIR (Annexure 3) which was a cross case and was registered as case crime No. 272-A of 1998, under Sections 363, 366 and 376 IPC, which was lodged by Kamlesh daughter of Raj Pal against Vinod and others. Learned counsel has submitted that alleged activities were outcome of the revenge harboured by the detenus and it was an action directed against an individual and could not have potential and reach to disturb the public order and even tempo of life of the community. In support of his submission learned counsel for the petitioners has placed reliance on the judgment of Hon'ble Supreme Court in the case of Arun Ghosh v. State of West Bengal (1970) 1 SCC 1228 : AIR 1970 SC 1228 Dipak Bose alias Haripada v. State of West Bengal AIR 1972 SC 2686, Sheshdhar Misra v. Superintendent, Central Jail, Naini 1985 All LJ 1222 (FB) : AIR 1987 SC 702 (sic) Ram Manohar Lohia v. State of Bihar AIR 1966 SC 740, Madhu Limaye v. Sub-Divisional Magistrate, Monghyr AIR 1971 SC 2486, Victoria Fernandes (Smt.) v. Lalmal Sawma (1992) 2 SCC 97 : AIR 1992 SC 687, Mustakmiya Jabbarmiya Shaikh v. M. M. Mehta, Commissioner of Police (1995) 3 SCC 237, Kamlesh Kumar Ishwar Das Patel v. Union of India (1995) 4 SCC 51.
11. We have carefully considered the submissions of the learned counsel for the petitioners. The submission of the learned counsel for the petitioners is that the act of violence mentioned in the grounds was directed against the individuals and waf not subversive to the public order and, therefore, detention of the petitioners is unjusti-fied. The four Judges Bench of Hon'ble Supreme Court in the case of Arun Ghosh v. State of West Bengal AIR 1970 SC 1228 (supra) discussed in detail the question raised by the learned counsel and has held that it is the degree of disturbance and its affect upon the life of the community and locality which determines whether the disturbance amounts to breach of law and order or it disturbed the public order. Their Lordships have also said that there is no formula by which one case can be distinguished from another. In para 3 of the judgment their Lordships have mentioned several examples which may amount to disturbance of public order. The relevant portion of paragraph 3 is being reproduced below:-
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. Take the case of assault on girls. A guest at a hotel may kiss or make advances to half a dozen chambermaids. He may annoy them and also the management but he does not cause disturbance of public order. He may even have a fracas with the friends of one of the girls but even then it would be a case of breach of law and order only. Take another case of a man who molests women in lonely places. 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 other man but in its potentiality and in its affect upon the public tranquillity there is a vast difference. The act of the man who molest 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. 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 breach of the act upon the society."
12. The case of Arun Ghosh has been followed in most of the cases subsequently decided by Hon'ble Supreme Court. If the test mentioned in Arun Ghosh's case is applied to the facts of the present case there can be no doubt that the criminal act of the petitioners definitely disturbed the public order in the locality though it was directed against three ladies of a family. From the perusal of the grounds it is clear that on 31-10-1998 present petitioners along with their companions entered into the house of Vinod Kumar son of Raghubir Singh and they misbehaved with his wife, sister-in-law and mother. They did not stop here but they openly dragged three ladies and took them to their house and there they committed gang rape with the three ladies one by one and thereafter the three ladies were left naked in the village. They also looted their ornaments. The gang rape of the three ladies in the manner stated and thereafter leaving them naked in the village was an outrageous act that must have created scare among the residents of the village, especially ladies. Such an act could have sufficient potential and reach to disturb the public order and even tempo of life of the community in the village and was definitely a case of disturbance of public order. The activity of the petitioners was not confined inside the house of Vinod Kumar which may be said that it was an offence against individuals and could only be rated a problem of law and order. They went far ahead of boundary line of the problem of law and order and took away the three ladies with them to their houses, there they committed rape and then they left the ladies naked. Such kind of activity is quite distinguishable from an act directed against an individual. By the action of the petitioners entire society was affected though victims were only three ladies. This act of petitioners must have left all the women of the village apprehensive of their honour. Village ladies going for their ordinary business must have felt scared and afraid of being assaulted same way. In our considered opinion, it was a case of disturbance of public order and the impugned orders were fully justified in such facts and circumstances.
13. In this connection learned counsel for the petitioner also submitted that the petitioners acted in retaliation as Kamlesh daughter of Raj Pal was kidnapped and raped for which an FIR was lodged which was registered as case crime No. 272-A of 1998, under Sections 363, 366 and 376 IPC in Police Station Raya, district Mathura. A copy of the FIR has been filed as Annexure 3 to the writ petition. We have perused the FIR (Annexure 3). From its perusal it is not clear as to when this FIR was lodged. In any view of the matter there can be no justification on the part of the petitioners to commit an offence of the gravity mentioned above which could disturb the public order. They cannot justify their action on the basis of the earlier offence committed against Kamlesh. It may be reprehensible and equally bad for which criminal action could be taken but it could not give licence to the petitioners to commit an offence of gang rape with three innocent ladies and then leave them naked in the village. The impugned order passed against the petitioners cannot be assailed on this ground also.
14. Learned counsel has also submitted that the petitioners were involved in this single act and there could be no justification to pass the order of preventive detention against them. The submission is not correct. Ground No. 1 clearly indicates that threats were being given to the complainant side that if the affidavits are not filed in the court in favour of the petitioners and matter is not compromised they would be deprived of their life. It was also alleged that police protection provided to the complainant family would not last long and they will be in a position to take action against the complainant and their family members. In our opinion, the detaining authority was justified in taking preventive action against the petitioners by detaining them, as there was strong apprehension that they may indulge in similar activity.
15. For the reasons stated above, in our opinion, the impugned order passed against the petitioners do not suffer from any illegality. The writ petitions have no merit and are liable to be dismissed. All the writ petitions are accordingly dismissed.