JUDGMENT R.R.K. Trivedi, J.
1. Petitioner Sunil Roy has filed this petition seeking a writ, order of direction in the nature of habeas corpus directing respondents to produce the petitioner in Court and to set him at liberty. The petitioner is in detention under the order dated 26-8-1997, passed by respondent No. 2 District Magistrate, Pilibhit, under Section 3(3) of National Security Act, 1980 (hereinafter referred to as the Act).
2. The facts on which basis the order of detention has been passed against the petitioner have been detailed in the grounds supplied to the petitioner along with the order of detention. The narration of facts given therein is that petitioner and one Chittoo alias Chitranjan and others were involved in Criminal Case No. 421 of 1997, under Sections 107/116, Cr.P.C. pending in the Court of Sub-Divisional Magistrate, Poornanpur, district Pilibhit. As they failed to appear before the Magistrate on the date fixed in response to the notice issued, bailable warrants were issued , to procure their attendance in Court. The bailable warrants were sent to Police Station Madho Tanda for execution. Two constables of Police Outpost Ram Nagra arrested the petitioner on 23-7-1997 and the petitioner could not furnish bail, he was brought to Police Outpost Ram Nagra. Fifty-Sixty persons of village of the petitioner, armed with lathis and Dandas, followed the petitioner and the police party up to the police outpost. They surrounded the outpost and started creating disturbance and were insisting for release of the petitioner from police custody. It is further stated that there were only five police constables present in the Outpost. The constables tried to persuade these persons to furnish bail and secure release of the petitioner but they were not prepared to furnish security and bail bonds necessary for release and were threatening to get the petitioner released by force. Considering the number of persons surrounding the police outpost and their preparation and gestures, an urgent message was sent on wireless for help and sending additional force. This message was received by the Station House Officer of Police Station Madho Tanda through the wireless affixed in his Jeep while he was about 9 Kikilometres away from the police outpost. He immediately rushed to the outpost Rain Nagra. On reaching there, tie approached the persons surrounding the Outpost to furnish security and get release of the detenu but they were not prepared for the same. During (he period while the police officer was discussing the matter with the persons surrounding the outpost, the detenu petitioner came out from the Outpost and snatched a Danda from one of his associates and hit the Station Officer on his head. He could not bear this sudden attack and fell down. Then, the petitioner and other co-accused attacked the police personnel present there and caused injuries to constable Naresh Singh, Krishna Pal Singh and Inder Singh. They also snatched one AK 47 rifle from constable Krishna Pal Singh with magazine and 30 cartridges, Chittoo snatched a Bolt-action rifle with magazine and five cartridges from constable Indar Singh and then the petitioner and the crowd left the police outpost through the market of town Ram Nagra. This incident caused tumult in the market of Ram Nagra, people ran helter-skelter and closed the doors of their house and the public order was completely disturbed,
3. The Station Officer gave information to the higher authorities on wireless, reorganised the force available there and with the help of Certain persons from the public, chased the petitioner and his party and arrested the petitioner and 13 other persons, recovered the fire-arms including magazines and cartridges and 12 Dandas from their possession. Case Crime No. 100 of 1997, under Sections 305/397/224/225/ 353/332/412, I.P.C. and 7 C.L.A. Act was registered at Police Station Madho Tanda and investigation started and statements of eye-witnesses were recorded which supported the aforesaid incident. It is stated in the order that this incident of gheroing the outpost and attacking the police officer and the constables, causing serious injuries to them and looting of their fire-arms, created a sense of insecurity and fear in the town of Ram Nagra and also in the entire district of Pilibhit and public peace and public order has been badly affected. To restore the confidence of the people additional police force and a platoon of P.A.C. was deployed which undertook regular patrolling. This incident got wide publicity and circulation in the leading newspapers of the country. It is further stated that though the petitioner is in judicial custody but he has made an application for bail. The fact of making bail application has also been publicised and on having knowledge of the fact that the petitioner may be released on bail, a sense of insecurity and fear has prevailed in the general public, information of which has been given on 10-8-1997 in beat report No. 11. It is also stated that the petitioner is a dreaded and hardcore terrorist and there is every possibility that on being released on bail, he will again indulge in such acts which may be prejudicial to maintenance of public order. The petitioner was also informed about his rights to make a representation to the State Government and the Union of India and that the matter will be referred to the Advisory Board under Section 10 of the Act where he may appear personally to plead his case.
4. Respondent No. 2, District Magistrate, Pilibhit, forwarded the papers to the State Government on 27-8-1997. The State Government after examination the order of detention and the material supplied along with it, approved the order of detention on 30-8-1997. The matter was referred to the Advisory Board by the State Government on 1 -9-1997. The Advisory Board heard the petitioner personally on 30-9-1997 and gave its report to the State Government indicating that there was sufficient cause to detain the petitioner. On receipt of the report of the Advisory Board along with the letter dated 4-10-1997, the State Government again examined the whole matter and confirmed the order of detention for a period of 12 months on 13-10-1997. The representation of the petitioner was considered and rejected by the State Government on 9-10-1997 which was communicated to the petitioner on 14-10-1993. Aggrieved by the aforesaid order of detention, petitioner has approached this Court under Article 226 of the Constitution of India.
5. In the petition counter affidavit have been filed by Shashidhar Shahi, an upper division assistant in Confidential Section V. Uttar Pradesh Civil Secretariat, Lucknow, on behalf of the State Government, Sent. Radha Chauhan, District Magistrate, Pilibhit, for herself, R.K. Varma, Deputy Jailor, district Jail, Pilibhit on behalf of respondent No. 3 and by Bhopal Singh, Sub-Inspector in-charge, Police Outpost Ram Nagra on behalf of the Station House Officer, Police Station Madho Tanda.
6. We have heard Shri Janardan Sahai, learned counsel appearing for petitioner and Shri A.K. Tripathi, learned Additional Government Advocate, for respondents.
7. Learned counsel for the petitioner without disputing the factual aspect of the case has questioned the legality of preventive detention of the petitioner on the following grounds;
1. That the allegations against the petitioner relate to assault on the police party which at the most may be a case of law and order and on the basis of this solitary act, it cannot be said that it caused disturbance to public order and even tempo of life of the community. The material placed before respondent No, 2 was not such on which basis a subjective satisfaction could be arrived at by respondent No. 2 to pass the impugned order of detention;
2. In the grounds served on the petitioner along with the detention order, there is nothing suggestive of the repetitive tendency of the alleged act.
3. Petitioner was already in judicial custody and was detained in jail and thus there was no possibility of repeating the alleged act and the impugned order of detention passed during the period when the petitioner was in jail, was wholly unwarranted and unjustified.
4. The petitioner was not supplied the relevant papers relating to the proceedings under Sections 107/116, Cr. P.C. as required under Section 8 of the Act and thus the impugned order stands vitiated.
5. It has also been submitted that even in case this Court, on consideration of the ease on merits, comes to the conclusion that the impugned order of detention does not suffer from any illegality, as only a short period of detention has been left to be served out, petitioner may be released from detention in view of the fact that he has no criminal history of any kind prior to the alleged incident.
8. Learned counsel for petitioner has placed reliance on the following cases :-
1. Abhishek Malviya v. State of U.P. (1990) Cri LJ 747 (DB);
2. Bundu alias Babu v. State of U.P. 1985 UP Cr R 149 (DB): 1985 All LJ 514;
3. Bharat Lal Tiwari v. State of U.P. 1989 All Cr R 265 (DB) : 1989 Cri LJ NOC 141;
4. Zaki Ahmad v. State of U.P. 1988 All LJ 453 (DB);
5. Ram Bir Jatav v. State of U.P. AIR 1987 SC63 : 1987 Cri LJ 321;
6. Jayamala v. The Home Secretary, Government of J. & K. AIR 1982 SC 1297 : 1982 Cri LJ 1777;
7. Deepak Bose v. State of W.B. AIR 1972 SC 2686;
8. Ram Kripal Singh v. State of U.P. 1986 UP Cri R 280 : 1986 Cri LJ 1437;
9. Lal Kamal Das v. State of W.B. AIR 1975 SC 753 : 1975 Cri LJ 630;
10. Khudi Ram Das v. State of W.B., AIR 1975 SC 550 : 1975 Cri LJ 446;
11. Amar Singh v. Union of India 1990 UP Cr R 332 (DB);
12. Smt. Shashi Agarwal v. State of U.P. AIR 1988 SC 596 : 1988 Cri LJ 839;
13. Jokhu Lal v. Superintendent Central Jail, Naini, Allahabad 1997 (35) ACC 469 : 1998 Cri LJ 1052 (FB).
9. Learned Additional Government Advocate, on the other hand, submitted that the action of the petitioner, as disclosed in the grounds served on him along with the order of detention, is not a simple case of attack on police to prevent arrest or secure the release. From the facts, it is manifest that the incident was much more than a simple attack on police party. The police personnel were not only injured at a public place but their fire-arm were snatched in full public view. The petitioner himself initiated the trouble and from such an incident of large scale violence, a subjective satisfaction could be arrived at. The incident was of such a reach and extent that it affected the even tempo of life and the public moral at large and was prejudicial to the public order. The order of detention does not suffer from any illegality. It has been submitted that the order of detention could be legally passed by respondent No. 2 during pendency of the judicial detention of the petitioner as he was trying to secure bail and had already moved application for that purpose.
10. Learned counsel has submitted that the petitioner and the co-accused were granted bail as admitted in the writ petition. There was sufficient material on record to show that in case the petitioner is released on bail, he may indulge in similar acts causing disturbance to the public order and satisfaction of respondent No. 2, in this regard cannot be questioned. For this purpose, learned counsel has referred to the grounds and the report of the police beat dated 10-8-1997. It is submitted that on learning that the petitioner has applied for bail and he is likely to be released, a sense of insecurity and fear had prevailed among the general public. The sequence of events before and after the incident were suggestive of the repetitive tendency on the part of the petitioner and the satisfaction of respondent No. 2 that detention of petitioner was necessary to prevent reoccurence of the incident is fully justified in the facts and circumstances of the case.
11. Learned counsel has further submitted that the reference of proceedings under Sections 107/ 116, Cr.P.C. pending in the Court of Sub- Divisional Magistrate was only as a narration of fact in which the bailable warrant against the petitioner was issued. The material on record of the proceedings was not placed before the District Magistrate, respondent No. 2, for purpose of satisfying herself for passing the detention order and thus the papers relating to the aforesaid proceedings were not required to be supplied to the petitioner under Section 8 of the Act. A copy of the bailable warrant issued against the petitioner was supplied to him which formed part of the material before the respondent No. 2. The non-supply of such irrelevant material could not in any way affect the legality of the impugned order.
12. Lastly, it has been submitted that the order of detention was passed against the petitioner on 26-8-1997 and more than a month is still there to be served by the petitioner. He cannot claim release from detention as of right on the ground that only a short period of detention has been left to be served. The Full Bench of this Court in Jokhu Lal's case (supra) in unequivocal terms has held that their lease from detention curtailing the period of 12 months cannot be claimed as a matter of right. Learned A.G.A. has placed reliance on the following cases :-
1. State of U.P. v. Kamal Kishore Saini AIR 1988 SC 208 : 1988 Cri LJ 405;
2. Arun Ghosh v. State of W.B. AIR 1970 SC 1228 : 1970 Cri LJ 1136;
3. Nagendra Nath Mandal v. Stale of W.B. AIR 1972 SC 665 : 1972 Cri LJ 482;
4. Rati Lal Bhanji Mithani v. State of Maharashtra AIR 1972 SC 1567 : 1972 Cri LJ 1055;
5. Kartic Chand Guha v. State of W.B. AIR 1974 SC 2149 : 1974 Cri LJ 1474;
6. Smt. Kamla Bai v. Commissioner of Police, Nagpur JT 1993 (3) SC 666 : 1993 AIR SCW 2305;
7. Mrs. Har Preet Kaur v. State of Maharashtra AIR 1992 SC 979 : 1992 Cri LJ 769.
8. State of Rajasthan v. Shemsher Singh, AIR 1985 SC 1082 : 1985 Cri LJ 1348.
13. We have carefully considered the submissions of learned counsel for the parties, perused the material on record and have also gone through the cases relied on by them. The thrust of the submissions of the learned counsel for the petitioner was that the alleged incident dated 23-7-1997 at the most appears to be a case of attack on the police party to secure the release of the detenu and on the basis of such a solitary incident the order of preventive detention could not be passed. It could only be a case of law and order and cannot be termed to be an act prejudicial to the public order affecting the moral and even tempo of life. Hon'ble Supreme Court as well as this court in number of cases have laid down sufficient guidelines to draw distinction between the acts which only affect law and order in the society and the acts which disturb the public order. Such cases also relate to the incidents where the police party was attacked. In case of Ram Manohar Lohia v. State of Bihar reported in AIR 1966 SC 740 : 1966 Cri LJ 608, Hon'ble Supreme Court observed as tinder at page 758 (of AIR):
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 Saw and order but not public order just as an act might affect public, order but not the security of the State.
14. In case of Arun Ghosh v. State of W.B. AIR 1970 SC 1228 (supra), Hon'ble Supreme Court observed as under at page 1229 (of AIR) :--
Public order is the even tempo of tin; 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 to 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 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 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.
15. In case of Ashok Kumar v. Delhi Administration AIR 1982 SC 1143 it has been observed at page 1147 by Hon'ble Supreme Court as under :
The true distinction between the areas of "public order' and 'law and order' lies not in the nature or 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. 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.
16. A Division Bench of this Court in Abhishek Malviya v. State of U.P. 1990 Cri LJ 747 (supra) after considering a number of judgment of Hon'ble Supreme Court held as under in para 29 :
From catena of decisions cited by the learned counsel bomb or firing at the police party by itself may or may not constitute to public order and the Court has to examine facts of each case in order to come to the conclusion whether it is a case of public order or law and order. In order to draw an inference whether a particular activity amounts to breach of law and order or breach of public order depends on its extent, and reach to the society, So long it is restricted to a particular individual 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 then it becomes breach of the public order. Thus, whether an act is law and order or public, order depends upon the impact of the act on the life of the community or in other words the reach and effect and potentiality of the act if so put as to disturb the even tempo of the life of the community.
17. The aforesaid reasonings have been applied for determining as to whether the incident on which basis the order of preventive detention has been passed caused breach of law and order or public order and tranquillity. Thus, the facts of the present case have to be considered in the light of the aforesaid guidelines.
18. In the present case the allegation against the petitioner is that he hit the police inspector by a wooden rod who fell down and thereafter the entire police party present there was attacked by the petitioner and the co-accused. Several constables were injured and their fire-arms and ammunition were snatched and taken away. Thus the petitioner and his colleagues did not stop after causing injuries to the police officer and the constables but they acted further which caused all the difference. Had the attack been only to secure the release of the petitioner, there was no reason to further aggravate the situation by snatching the fire-arms and ammunition and taking away the same with them. All this happened at a public place police outpost in broad day light and in full view of the public watching it. One can well imagine the impact of such an incident on the general public watching it. Life of community has many shades and aspects. One of its important shades is the sense of security. This sense of security depends on the authority of the State through police. If the police from whom the public at large expects protection and security is subjected to the treatment like in the present case, in our opinion, it is bound to disturb the even tempo of life and morale of the public at large. It was not a case of hit and run to secure release of the petitioner. The incident continued for hours. It is also not a case of simple attack oh an individual police officer or a group of them but it went much ahead of it. The authority of the police administration stood undermined to such an extent that it was bound to disturb the public order and tranquillity. The incident was reported in leading newspapers, copies of which were supplied to the petitioner. In our opinion, the act of the petitioner, who was mainly responsible to initiate the trouble, was an act which definitely disturbed the public order and respondent No. 2 had sufficient material to have subjective satisfaction that detention of the petitioner was necessary to maintain public order and even tempo of life of the community.
19. It has also been submitted by learned counsel for petitioner hat petitioner was already in detention and the impugned order was wholly unjustified arid unwarranted. This question has been considered in number of cases and it has been held that the detaining authority should be aware of the fact that petitioner is already in jail and he is trying to secure his release on bail. In the present case the detaining authority was fully aware of the necessary facts. The bail application was already moved by the petitioner and his co-accused which was subsequently allowed as clear from the petition itself. The police beat report dated 10-8-1993 and other material on record was sufficient for forming opinion that in case the petitioner is released on bail, he may indulge in similar activities which may disturb public order and tranquillity. In our opinion, the impugned order of detention does not suffer from any illegality on this ground also. The cases relied on by the learned counsel for petitioner are clearly distinguishable on facts.
20. In this connection it has also been submitted that the grounds supplied to the petitioner do not contain any material suggestive of repetitive tendency on the part of the petitioner. We have perused the grounds and other material and, in our opinion, the apprehension on the part of the respondents was justified. The petitioner and his colleagues insisted for the release of the petitioner without furnishing bail bonds. There is nothing on record to suggest that the petitioner and other co-accused had given up this attitude and were willing to appear and face proceedings under Sections 107/116 Cr.P.C. as law abiding citizens. The incident of like nature could spark off at any moment. Sense of insecurity and fear was writ large not only among the administration but also among the genera! public as clear from the grounds. Thus the submission of the learned counsel for petitioner cannot be accepted.
21. It has also been submitted that, the petitioner was not supplied the papers relating to proceedings under Sections 107/116 Cr.P.C. which was necessary under Section 8 of the Act and non-supply of such papers deprived the petitioner of the opportunity to make effective representation and thus the impugned order stands vitiated. In our opinion, the submission, has no substance. The pendency of the proceedings of case No. 421 of 1997, under Section 107/116 has only been mentioned in the grounds as narration of facts as bailable warrant of arrest was issued in these proceedings. Beyond this, the fact of pendency of these proceedings has not been utilized for forming any opinion for passing the impugned order. The papers of these proceedings except the copy of the bailable warrant was also not sent to the detaining authority for passing the impugned order. In such circumstances, in our opinion, no prejudice has been caused to the petitioner on account of non-supply of the papers of the proceedings.
22. Lastly, it has been submitted that as only a short period has been left to be served, the petitioner may be released from detention as there is nothing to suggest that he will indulge in similar activities in future. Reliance has been placed: on Full Bench decision of this Court in Jokhu Lal v. Superintendent, Central Jail, Naini (supra). However, considering the facts and circumstances of the case and particularly the nature of the incident, we do not find any justifiable and legal ground on which basis the period of 12 months of detention; confirmed by the State Government, may be curtailed for release of the petitioner at this stage.
23. For the reasons stated above, we do not find any merit in this petition, The writ petition is accordingly dismissed. However, there will be no order as to costs.