JUDGMENT V.N. Singh, J.
1. Writ has been filed by the petitioner for issuing a writ in the nature of habeas corpus and calling for the respondents to release the petitioner forthwith and to issue writ in the nature of certiorari quashing the impugned order dated 4-8-2001 (Annexure-2) and order dated 22-9-2001 (Annexure-4) passed by the respondent, District Magistrate, Allahabad and the State Government respectively and to issue , any other writ order or direction which this Hon'ble Court may deem fit and to award the cost of the petition. "Brief fact of case is that"
2. Smt. Maya Pandey lodged the report in the police station Colenalganj on 15-6-2001 at 12.30 p.m. that she serves as Nurse in Bhola Nursing Home and resides in the house of Smt. Anarkali on rent. On 11 -6-2001 at about 7.30 p.m. she was going to Bhola Nursing Home along with Shri Moti Lal Pandey, who is also an employee in Bhola Nursing Home through Company Garden Gate. Near Company Garden four persons carried her and Moti Lal inside the Park and committed gang rape with her. When Moti Lal came to save her they caused injuries to Moti Lal by Danda. On obstruction by the complainant they caused injuries to the complainant also. She has recognised two persons out of the four persons. One is Surendra who is an employee (Mali/ Chaukidar) in the Company Garden and other is Pappu Chaurasiya of Katra. On the complaint of Maya Pandey a case was registered at the Police Station Colenalganj at crime No. 196 of 2001 under Section 376, 323, I.P.C.
3. The petitioner was arrested on 16-6-2001 and he was released on bail by the order dated 1-8-2001 passed by the High Court, Allahabad. He was orally told that he will not be released as he was required to remain in jail.
4. By the order dated 4-8-2001 passed by the District Magistrate Allahabad the petitioner was detained under Section 3(2) of the National Security Act (hereinafter referred to as the Act).
5. Petitioner submitted a representation dated 14-8-2001 to the Home Secretary, State of U. P. Lucknow, Advisory Board, Lucknow, Hon'ble President of India, Ministry of Home Affairs, Department of Internal Security, Jail Superintendent, and Central Jail, Naini, Allahabad. On 14-8-2001 the State Government by the order dated 22-9-2001 confirmed the detention order dated 4-8-2001 for a period of 12 months with effect from 4-8-2001 and the same was communicated to the petitioner. Contention of the petitioner is that involvement of the petitioner, as alleged, in case crime No. 196 of 2001 under Sections 376, 323, I.P.C. police station Colenalganj, Allahabad is the solitary ground for detention of the petitioner under Section 3(2) of the Act.
6. It has also been alleged by the petitioner that, none of the grounds and ingredients of Section 3(2) of the Act existed prior to passing and issuing impugned order dated 4-8-2001. The petitioner was not involved in the incident and the incident is not prejudiced to the security of the State, nor it was prejudicial to maintenance of the public order.
7. It has also been alleged by the petitioner that co-accused of the case crime No. 196 of 2001 had been released on bail and they are moving freely and the atmosphere of the Company Garden (Chandreshekhar Park) had never been disturbed. Petitioner has no previous criminal history.
8. It has also been alleged that, there is no definite allegation as to what petitioner would be likely to commit after he is released on bail.
9. It has also been alleged that the incident of case crime No. 196 of 2001 was alleged to have taken place on 11-6-2001 at 7.30 p.m. but the report was lodged on 15-6-2001 and in this way report, has been lodged with delay although police station is at a walking distance and no explanation has been given for the delay in lodging the report.
10. It has also been alleged that, the medical examination of the petitioner was done on 16-6-2001.
11. It has also been alleged that no internal or external injury was found on the private part of the complainant, nor sign of sperms were found on her private part.
12. It has also been alleged that, Parshuram and Bhuvneshwar who were also accused along with the petitioner in the case under the Act have been released by Advisory Board, Lucknow.
13. It has also been alleged that, all the three co-accused are out of jail and till the date, there is no complaint about their act for acting in any manner prejudicial to the security of the State or maintenance of the public order.
14. It has also been alleged by the petitioner that, there is no complaint from public nor from anybody about alleged terror in Company Garden or nearby locality as alleged in the order passed under the Act.
15. It has also been alleged that, compliance of Sub-section (5) of Section 3 of the Act regarding report by the State Government within 7 days to the Central Government has not been complied with.
16. It has also been alleged that petitioner's representation dated 14-8-2001 although received on the same day was decided after inordinate delay on 22-9-2001 by which, petitioner's fundamental right had been culled.
17. No intimation had been sent to the petitioner regarding disposal of his representation dated 14-8-2001 by the Central Government.
18. It has also been alleged that, copy of the report of the Advisory Board on the basis of which, State Governmejit has confirmed the detention order purported to be under Section 12 of the Act has not been given to the petitioner so far.
19. In this connection Shri Devesh Chaturvedi, the then District Magistrate, Allahabad has filed his affidavit dated 8-1-2002 in which it was alleged by Shri Chaturvedi that F.I.R. was lodged under Sections 376, 323, I.P.C. on 15-6-2001. It is most serious matter that person, working there, has committed such heinous crime.
20. The aforesaid incident created panic and terror in the minds of public specially, who used to visit Company Garden. Specially much panic and terror has been created in the minds of the ladies and girls visiting Company Garden and they are avoiding from going to Company Garden.
21. After going through the entire material and after considering the facts and circumstances independently without any inference or pressure of any person or party, when he found that activity of the petitioner was prejudicial to the maintenance of the public order and even tempo of the society, he then took preventive action under Section 3(2) of the Act on 4-8-2001. It has also been alleged that, though the petitioner was already in judicial custody and the pairvi was being done to get him released on bail after bail application was rejected by the Court below and application for bail was moved before this Court. In view of the facts and circumstances that petitioner was likely to be released on bail and that after being released on bail, he would indulge in the similar activity, which is prejudicial to the maintenance of public order and even tempo of the society, detention order was passed and served upon the petitioner through the jail authorities on 4-8-2001.
22. It has also been alleged that representation submitted on 18-8-2001 was received in his office on 18-8-2001. 19-8-2001 was Sunday. Police report was called for and Senior Supdt. of Police, Allahabad was asked to send comments. Police report was received on 22-8-2001 and parawise comment was sent through Special Messenger to the State Government on 23-8-2001 and to the Central Government on the same day.
23. Aforesaid representation was rejected by the State Government and the aforesaid information was given to the petitioner through the jail authorities.
24. The petitioner was also produced before the Advisory Board for personal hearing and after the report of the Advisory Board the detention order was confirmed by the State Government for the period of 12 months, which was communicated to the petitioner through the jail authorities. It has also been stated that, according to the chemical examination report human blood and semen were found in the Salvar of victim Km. Maya and after investigation, charge sheet was submitted.
25. Regarding co-accused Pappu Chaurasiya it has been alleged that, after release on bail he is absconding. Action will be taken against him in accordance with law to serve the detention order upon him.
26. So far as the case of co-accused Parshuram and Bhuvneshwar is concerned they were not named in the F.I.R. and their case is not identical to the case of the petitioner and detention order was revoked on the opinion of the Advisory Board, hence petitioner would not be entitled for parity on that basis.
27. It has also been alleged that, detention order was approved by the State Government well within time. Representation of the petitioner was rejected by the State Government and was not accepted by the Central Government and information was given to the petitioner, after receiving the information from the Central Government, as well as the State Government through the Jail authorities.
28. Shri R. S. Agarwal, Special Secretary Home and Confidential Department, U. P. Civil Secretariat, Lucknow has filed his affidavit dated 2-1-2002.
29. In the affidavit it has been alleged by Shri Agarwal that petitioner's representation dated 18-8-2001 along with parawise comments forwarded by the District Magistrate, Allahabad vide his letter dated 23-8-2001 was received in the concerned Section of the State Government on 24-8-2001.
30. The State Government sent copies of the representation and parawise comments to the U. P. Advisory Board vide its letter dated 25-8-2001 and to the Central Government by letter dated 25-8-2001. After due consideration, the said representation was finally rejected by the State Government on 29-8-2001. Rejection of the representation was communicated to the petitioner through Jail authorities by the State Government by radiogram dated 31 -8-2001.
31. Order of confirmation of the detention, prescribing detention period of 12 months from the date of his detention under the Act were issued through State Government Radiogram and letter both dated 22-9-2001.
32. The report of the Advisory Board cannot be given to the petitioner because it is confidential in accordance with the provision of Section 11(4) of the Act.
33. Detention orders passed under the Act against co-accused Parshuram and Bhuvneshwar were revoked on 22-9-2001 as it was found that, both the co-accused were not named in the F.I.R. and were not put up for test identification. Identification by the victim and Moti Lal at the police station was not considered reliable piece of evidence in the absence of test identification. Involvement of both the co-accused was not based on any legal evidence, while the petitioner has actively participated in the commission of the act and he has been named in the F.I.R. Parity cannot be claimed for the release of the petitioner on the plea that, other co-accused have been released.
34. Detention order dated 4-8-2001, ground of detention and all other connected papers forwarded by the District Magistrate, Allahabad vide his letter dated 4-8-2001 were received by the State Government on 6-8-2001.
35. State Government approved the order of detention on 11-8-2001 within 12 days of the date of the detention order. Approval of the detention order was communicated to the petitioner through district authorised by the State Government. On the same day copy of the detention order, grounds of detention and all other connected papers received from District Magistrate, Allahabad were sent to the Central Government, which were received by the Secretary, Ministry of Home Affairs, New Delhi on 15-8-2001 within 7 days from the date of the approval by the State Government.
36. Shri Virendra Kumar Gupta, Undersecretary Ministry of Home Affairs, Government of India, New Delhi has filed the affidavit on 21-12-2001.
37. It has been alleged by Shri Gupta that, appropriate Government in this case for addressing the representation by the detenu was the State Government and not the Central Government as the detention order in question was passed by an authority of the State Government.
38. It has also been alleged that, Shri A. K. Jain concerned Joint Secretary after examining the said report decided on 21-8-2001 that there was no necessity to interfere with the order of detention approved by the Government of U.P. and there was no reason to revoke the order of detention.
39. It has been alleged that NSA 1980 does not cast any statutory obligation on the part of the Central Government to inform the detenu about the result of consideration of the matter received under Section 3(5) of the Act from the State Government.
40. The detenu was informed of the decision of the Central Government through crash wireless message dated 30-8-2001 through Home Secretary, Government of U.P. and Supdt. of Jail, Naini, Allahabad, U.P. Message was followed by a letter dated 19-9-2001. True copy of the wireless message dated 30-8-2001 was filed as Annexure C.A. I.
41. Shri S. K. Srivastava, Sr. Suptd. Central Jail, Naini, Allahabad filed the affidavit on 9-1-2002.
42. It has been alleged by Shri Srivastava that, petitioner was admitted in the Central Jail, Naini on 17-6-2001 in the case crime No. 196 of 2001 under Sections 376, 323, I.P.C. police station colerialganj, Allahabad. However, he was released in the said case ,on 18-12-2001 but he is in jail in connection with the detention order.
43. It has been alleged that, the District Magistrate, Allahabad passed the detention order under the Act on 4-8-2001 which was received in the Jail on 4-8-2001 and on 4-8-2001 detention order, grounds of detention and all other material received with the detention order were served upon the petitioner by the jail authorities and petitioner has been told reasons of his detention under the Act.
44. The State Government approved the detention order and sent a message vide radiogram dated 14-8-2001 which was received in Jail on 16-8-2001 and on the same day, same was informed to the petitioner. Thereafter approval order was received in jail on 27-8-2001 and was informed to the petitioner on the same day.
45. Petitioner submitted his representation to the jail authority on 18-8-2001 and on the same day representation was sent to the District Magistrate, Allahabad. It is incorrect to say that the representation was given to the Jail authority on 14-8-2001.
46. The State Government rejected the said representation on 31-8-2001 and information about the rejection was received in Jail on 2-9-2001 and on the same day, the petitioner was informed by the jail authorities. Central Government also rejected the representation of the petitioner and has sent a message vide radiogram dated 30-8-2001 which was received in Jail on 1 -9-2001 and on the same day the petitioner was informed by the jail authorities.
47. Rejection order was received in jail on 13-9-2001 from the Central Government and on the same day the petitioner has been informed by the jail authorities.
48. Date for hearing was fixed before the Advisory Board for 15-9-2001 and the petitioner was informed about the date, time and place of hearing. He was informed that, if he desires he can appear before the Advisory Board along with his next friend (non Advocate) but no such request was made by the petitioner. However, on the date of hearing on 15-9-2001 petitioner was produced before the Advisory Board and was heard in person by the Advisory Board.
49. The State Government on the basis of the report of Advisory Board confirmed the detention order for a period of 12 months on 22-9-2001 and sent a message which was received on 25-9-2001 in jail and on the same day petitioner was informed by the jail authorities.
50. Heard Shri H.S.N. Tripathi, learned counsel for the petitioner, learned A.G.A. for respondent Nos. 1 to 3 and Shri K. N. Pandey, learned counsel for respondent No. 4.
51. Main points for determination in this case are as follows :
i) whether the petitioner is entitled to claim parity.
i) whether the solitary incident is sufficient material for the subjective satisfaction of the detaining authority that, there was disturbance of tranquillity and harmony of the public right;
i) whether in spite of the facts that detaining authority has knowledge that petitioner was in custody, detaining authority is justified to pass the detention order;
i) whether there is cogent reason and a credible information apparent on the record that, detenu if enlarged on bail would act prejudicially to the interest of public order or it is a bald statement mentioned in the detention order; and
i) whether the incident in question comes under the definition of breach of law and order or it is breach of public order.
52. First point, is whether the ground of parity is available to the petitioner.
53. Argument of the respondents is that, this plea is not available to the petitioner. because detention orders passed under the Act against co-accused Parshuram and Bhuvneshwar were revoked on 22-9-2001 under Section 12(2) of the Act on the basis that, co-accused were not named in the F.I.R. and they were not put up for test identification. Moreover, identification by the victim and Moti Lal at the police station was not considered a reliable piece of evidence in absence of test identification. Involvement of both the co-accused was based on in absence of the legal evidence. It is well settled principle of law that, plea of parity cannot be taken because grounds of detention may be entirely different in two cases. Moreover, if the Advisory Board found that case is not made out against the other co-accused on the basis of the materials then on that basis parity cannot be claimed.
54. In this connection, attention of the Court has been drawn towards Section 12(2) of the Act which laid down as follows :
12. (1)...
(2) In any case, where the Advisory Board has reported that, there is, in its opinion, no sufficient cause for the detention of a person, the appropriate Government shall revoke the detention order and cause the person concerned to be released forthwith.
55. In the present case also Advisory Board reported that detention order is not justified against Parashuram and Bhuwanseshwar hence the State Government in view of Section 12(2) of the Act has no option but to release the detenu.
56. This matter was considered by Division Bench of this Court in the case of Suresh Chand Katare v. State of U.P. referred in 2001 (43) All Cri C 408 : 2001 All LJ 2210 in which also it was held that in such circumstances parity cannot be claimed.
57. Moreover, this fact was also considered in the case of Chandresh Paswan v. State of U.P. referred in 1999 (1) All Cri R 778 : 1999 All LJ 1167 in which the Full Bench of this Court, consisting of Hon'ble D.S. Sinha, Hon'ble R.R.K. Trivedi, and Hon'ble D.K. Seth, JJ. considered the matter and held that, claim of the relief on the basis of parity that, other detenus detained on the basis of similar grounds were released under Section 12 or Section 14 of the Act is not sustainable.
58. In view of the above facts it is clear that petitioner is riot entitled for the parity.
59. Second point for determination is whether solitary act is sufficient for subjective satisfaction of detaining authority for passing the detention order.
60. In this connection, attention of the Court has been drawn towards the decision in All Jaan Miya v. District Magistrate, Dhanbad referred in 1983 (4) SCC 301 : AIR 1983 SC 1130 in which, it has been held by the Hon'ble Supreme Court that "for passing a detention order, quality and nature of the incident are material. Even one incident may be sufficient to satisfy the detaining authority for passing the detention order."
61. Hon'ble Supreme Court also held in the case of Ayya alias Ayub v. State of U.P. referred in AIR 1989 SC 364 held that "even a single incident of activity tending to harm public order might in the circumstances of its commission reasonably supply justification for the satisfaction as to legitimate apprehension of a future repetition of similar activity to a detriment of public order."
62. In such circumstances it can not be said that single instance of the activity, cannot be a ground for satisfaction of the detaining authority and for detention under the Act.
63. On the third and fourth point attention of the Court has been drawn by the learned counsel for the petitioner towards decisions in the cases of Suresh Katare, (2001 All LJ 2210), referred above, Veeramani v. State of T.N. (1994) 1 JT (SC) 350 : 1995 AIR SCW 1730, Binod Singh v. District Magistrate, Dhanbad AIR 1986 SC 2090, Dharmendra Suganchand Chelawat v. Union of India AIR 1990 SC 1196 and Ram Prasad Chaudhary v. State of U.P. 1986 All Cri C 186 : 1986 All LJ 916 (Full Bench).
64. Attention of Court has been drawn by the learned counsel for the petitioner towards the decision in the case of Dharmendra Suganchand Chelawat v. Union of India AIR 1990 SC 1196 in which, it has been held that an order of detention can be validity passed against a person in custody and for that purpose it is necessary that the grounds of detention must show that (I) the detaining authority was aware of the fact that, the detenu is already in detention, and (ii) there were compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression "compelling reasons" in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities.
65. It has been argued by the learned A.G.A. that facts in the case of Dharmendra Suganchand AIR 1990 SC 1196 referred above, were different and it is not helpful to the petitioner because in the present case it has been mentioned in the detention order passed by the District Magistrate, Allahabad that pairokars of the petitioner are trying to get him released on bail and there is possibility that after release on bail he will again involve in such criminal activity which would affect the public order.
66. Learned counsel for the petitioner placed reliance upon the decision in the case of Ram Prasad Chaudhary v. State of U.P. 1986 All Cri C 186 : 1986 All LJ 916 (Full Bench) in which preventive detention order was passed on more than one ground. Detenu was acquitted by the criminal Court on ground on which detention order was passed. It was held that he cannot be detained on that ground but his detention on other grounds stands. Learned A.G.A. states that this decision is also not applicable in the present case.
67. It has also been argued by the learned counsel for the petitioner that in view of the decision of Division Bench in the case of Suresh Katare 2001 All LJ 2210, referred above and in view of the decision in the case of Veeramani 1995 AIR SCW 1730, referred above, and in view of decision in case of Dharmendra Suganchand(AIR 1990 SC 1196, referred above there should be reliable evidence for passing the detention order and mere bald statement is not sufficient.
68. It has also been argued by the learned counsel for the petitioner that there is no reliable evidence for passing the detention order.
69. It is to be examined whether detaining authority was aware of fact that petitioner was in custody at the time of passing of detention order and whether there is reliable evidence and cogent reason for passing the detention order or it is a mere bald statement.
70. In this connection attention of the Court has been drawn by the learned A.G.A. towards the order of the District Magistrate dated 4-8-2001, annexed as Annexure-2 to the petition. In this connection, affidavit of the District Magistrate, Allahabad referred above is material in which, it has been alleged that aforesaid incident created panic and terror in the light of the public specially who used to visit Company Garden specially much panic and terror has been created in the minds of the ladies and girls visiting Company Garden and they are avoiding from going to Company Garden.
71. In this connection, attention of the Court was drawn towards the order of the District Magistrate, Allahabad dated 4-8-2001 in which, it has been alleged that on the basis of Parcha No. 6 of the case diary dated 21-6-2001 it has been confirmed that, due to the incident ladies are afraid of going to Company Garden and employees are also afraid.
72. In this connection attention of the Court has been drawn towards the report of the S.S.P. Allahabad, Shri R.K. Vishwakarma dated 25-7-2001 sent to the District Magistrate, Allahabad, which has been annexed with the counter affidavit of District Magistrate, Allahabad, in which, it has been urged that, due to that incident ladies are afraid of not going to Company Garden due to it there has been breach of public order. Accused is in jail and his bail application is pending in the Court and if accused comes out of jail he will again commit breach of the public order.
73. The same fact has been mentioned in the report of Shri O.K. Singh, Officer Incharge, P.S. Colenalganj, Allahabad dated 23-7-2001, which has been annexed with the counter affidavit of District Magistrate, Allahabad.
74. In this connection attention of the Court has been drawn towards Parcha No. 6 of the case diary dated 21-6-2001 in which it has been mentioned that due to incident of the rape, ladies are afraid and are not visiting Company Garden and panic has been created and even in the day ladies are not going to Company Garden. Even the employees are afraid.
75. In this connection attention of the Court has been drawn towards the statement of Shri V.P. Mishra recorded under Section 161, Cr.P.C. by the investigating officer on 30-6-2001 mentioned in the case diary at parcha No. 7, in which, it has been stated that due to the incident of rape panic has been created and people are avoiding to visit Company Garden.
76. Attention of the Court has also been drawn towards the parcha No. 8 of the case diary dated 7-7-2001 in which, it has been mentioned that victim Maya Pandey due to the pressure of the family members of the accused and due to fear has left the house. It has also been mentioned that, due to the incident panic has been created in the ladies and due to fear ladies are not going to Company Garden.
77. It has been argued by learned A.G.A. that in the detention order it has been mentioned that accused was under the custody.
78. It has also been argued by the learned A.G.A. that it is settled view that if the authority while passing the detention order is aware of the fact that detenu is in custody but if he has reason to believe on the basis of reliable material that there is possibility of his being released on bail and that on being so released detenu would in all probabilities indulge in prejudicial activity. If the authority passes an order after recording his satisfaction the same cannot be struck down.
79. In this connection attention of the Court has been drawn towards decision of Ayya alias Ayub AIR 1989 SC 364, referred above in which it has been held as follows :-
Likewise without merit, is the contention as to the impermissibility of an order of detention being made against a person already in judicial custody. Even if a prosecution against a person fails or bail is granted an order of detention could be passed drawing the satisfaction therefor from the facts and circumstances involved in the criminal proceedings. An offender might secure an acquittal by intimidating witnesses. It all depends upon the circumstances of each case.
8O. In this connection attention of the Court has been drawn towards the decision in Bimla Rani v. Union of India referred in 1989 SCC (Cri) 756 in which following observations have been made by Hon'ble Supreme Court;
In the grounds of detention, it has been stated "By your above misdeed, fear and terror was spread in the hearts of public in the markets, Mela Manchandi and in the city of Meerut. Thus you have committed an act which is prejudicial to the maintenance of public order." This is not a mere bald statement of the detaining authority without any material in support of the same . We have already extracted above the report of the Inspector-in-charge, P.S. Delhi Gate, Meerut which has been taken into account by the detaining authority at the time he passed the order of detention. It has been already noticed that a copy of the said report was served on the detenu along with the grounds of detention . The situation that emerges as a result of the incident, as stated in the said report was grave and serious and prejudicially affected public order. It may be a solitary incident, but it gave rise to communal tension and there was apprehension of a communal riot as alleged in the report. The report, in our opinion, is sufficient material for the subjective satisfaction of the detaining authority that there was disturbance of tranquillity and harmony of public life.
It is not correct to say that there is no material for the apprehension that if released on bail, the detenu will indulge in such criminal acts affecting public order, Really, the detaining authority had taken into consideration all the circumstances including the grave and serious situation that emerged as a result of the incident. In our opinion when an incident was such that it created communal tension and the authorities were apprehensive of the breaking of a communal riot, such incident in itself may be sufficient and may afford justification for the satisfaction of the detaining authority for the detention of the detenu in order to prevent him from indulging in such activity prejudicial to public order even though, as submitted by the learned counsel, there are no antecedent acts of similar nature or past history of commission of crime by the detenu.
81. Argument of the learned A.G.A. is that in view of the facts mentioned above regarding statement of witnesses recorded by the investigating officer and in view of the reports of S.S.P. Allahabad, and Officer Incharge, P.S. Colenalganj, Allahabad, attached with the order of District Magistrate, Allahabad, referred above and in view of the decision in the case of Bimla Rani 1989 SCC (Cri) 756, referred above it cannot be said that it is a bald statement. There was reliable evidence and cogent reasons for subjective satisfaction of the authority for detaining the accused by passing the detention order.
82. On fifth point, it has been argued by the learned counsel for the petitioner that, 'the act of the petitioner comes under the definition of breach of law and order and not breach of public order.
83. It has been argued that incident of rape was confined to an individual. It is a private crime and it was not a case of breach of public order.
84. It has been argued by learned A.G.A. that question whether any act is breach of law and order or it is breach of public order has been considered in the cases of Dr. Ram Manohar Lohiya v. State of Bihar AIR 1966 SC 740, Arun Ghosh v. State of West Bengal AIR 1970 SC 1228, Pushkar Mukherjee v. State of West Bengal AIR 1970 SC 852, Nagendra Nath Mondal v. State of West Bengal AIR 1972 SC 665, Kishore Mohan Bera v. State of West Bengal AIR 1972 SC 1749, Amiya Kumar Karmokan v. State of West Bengal AIR 1972 SC 2259, Samaresh Chandra Bose v. District Magistrate Burdwan AIR 1972 SC 2481, Sasthi Chandra Roy v. State of West Bengal AIR 1972 SC 2134, Babul Mitra v. State of West Bengal AIR 1973 SC 197, Ram Ranjan Chatterjee v. State of West Bengal AIR 1975 SC 609, Jaya Mala v. Home Secretary Government of J. and K. 1982 All Cri C 101 : AIR 1982 SC 1297, Ashok Kumar v. Delhi Administration 1982 All Cri C 262 : AIR 1982 SC 1143, State of U.P. v. Kamal Kishore Saini AIR 1988 SC 208 and Gulab Mehra v. State of U.P. 1987 (24) All Cri C 520 : AIR 1987 SC 2332.
85. The Apex Court in the case of Smt. Angoori Devi v. Union of India 1989 (26) All Cri C 1 : AIR 1989 SC 371 has held that impact on public order and law and order depends upon the nature of the act, the place where it is committed and motive behind it. If the act is confined to an individual even directly or indirectly affecting the tempo of the life of the community it. may be matter of law and order only but where the gravity of the act is otherwise and likely to indulge in the public tranquillity it may fall within the orbit of public order.
86. It has been argued by the learned A.G.A. that the legal position which has emerged from the series of decisions on the point is that true distinction between the meaning 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. It is the potentiality of the act to disturb the even tempo of the community which makes it prejudicial to the maintenance of public order. If a contravention in its effect is confined only to a few individuals directly involved as distinct from a wide spectrum of public, it could raise the problem of law and order only. It is the length, magnitude and intensity of the terror wave unleashed by a particular eruption of disorder that helps to distinguish it as an act affecting public order from that concerning law and order.
87. The question to be asked is whether the act leads to disturbance of the current life of the community so as to amount to a disturbance of the public order or does it affect merely an individual leaving the tranquillity of the society undisturbed.
88. Attention of the court has been drawn by the learned A.G.A. towards the decision in Kanu Biswas v. State of West Bengal AIR 1972 SC 1656 in which it has been held by the Apex Court when two passengers were robbed at the point of knife while travelling in a third class compartment of a running train. The act of the miscreant affects not only the passengers who were deprived of their valuables but also the other passengers who watched the whole thing in fear as helpless spectators. There is bound to be consequent, terror and panic amongst the travelling public, hence that incident comes under the definition of breach of public order.
89. Attention of the Court has been drawn by the learned A.G.A. towards the decision in the case of Kareshpal alias Billu v. District Magistrate, delivered by a Division Bench of this Court in which a gang rape was committed with the victim. In which the matter that the detenu was already in jail and that it was a solitary incident were considered by the Court but considering the contention of the District Magistrate that incident created panic and terror in the minds of the public in the area. District Magistrate was satisfied that if petitioner was released on bail in near future he would again indulge in similar activity, all the pleas of the petitioner-were rejected.
90. Argument of the learned A.G.A. is that in view of the above mentioned proposition of law as the incident has affected the ladies and due to fear they are afraid to walk in the park it is clear that by this incident breach of public order has been committed.
91. We find force in the argument of the learned A.G.A.
92. In view of the facts and circumstances, mentioned above, we are of the view that there is no force in the petition and it is accordingly dismissed.