Istakaar And Anr. vs Union Of India And Ors.

The argument of this case concluded on 04.09.2018. We then made the following order:-

"Heard Smt. Sujata Choudhary, learned counsel for the petitioners, Sri Jitendra Prasad Mishra, learned counsel for Union of India, Smt. Manju Thakur, learned A.G.A. for the State and perused the material brought on record.

We will give reasons later. But we are making the operative order here and now.

The impugned detention order dated 08.12.2017 passed by the District Magistrate, Muzaffarnagar, under section 3 (2) of the National Security Act, 1980 is hereby quashed.

The petitioners, Istakaar and Savej shall be released forthwith unless they are wanted in any other criminal case."

Here are the reasons:- In this petition, the validity of the detention of petitioners Istakaar and Savej has been challenged. They have been detained by the District Magistrate, Muzaffarnagar by an order dated 08.12.2017 made under Section 3(2) of the National Security Act, 1980 (hereinafter referred to as the NSA) .

Brief facts of this case are that Senior Sub-Inspector, Tejveer Singh, Constable Rohit Tavetiya, Constable Sandeep Tyagi were patrolling on their official jeep which was driven by Constable Mangaru Lal on 24.06.2017 after departing from the Police Station Jansath. When the patrolling party reached village Kawal, police informer informed them that cows were being slaughtered by persons who had been sent to jail previously in connection with the same offence in the forest of village Katka and Khedi, Firozabad. On account of these persons, fear and terror had engulfed the area and no one dared to speak against them. These persons were always armed with weapons. Believing the information received by them from the police informer to be true, Senior Sub-Inspector Tejveer Singh called Sub-Inspector Karmveer Singh, Constable Sonu who was incharge of Cheeta mobile, Constable Mahendra Singh, Sub-Inspector Manoj Kumar, Sub Inspector Mahipal Singh and Constable Anand from Police outpost Kawaya and on meeting them, he disclosed the information received by him from the police informer.

Thereafter, all the police personnel accompanied by the police informer left for the forest of village Katka from village Malikpur on their respective vehicles. On reaching the forest of village Katka, they stopped their vehicles at the place pointed out by the police informer and then he lead the police personnel near a maize field and told them that the cows were being slaughtered in the vacant field of poplar adjacent to the maize field. On being beckoned by the police informer, all the aforesaid police personnel entered the maize field and started moving ahead taking precaution to conceal themselves. After walking for some time, they heard sounds of cutting and hammering and people talking among themselves. Crux of their conversation was that they would dispatch the material to Delhi and thereafter they will bring more cows, bullocks and calves from Haryana which would make their profession flourish. The police personnel saw 8-10 persons indulging in cow slaughtering and some packing the beef in polythene packets and weighing the packets with weighing balance and others engaged in cutting beef. One bullock was lying on the spot whose mouth and legs were tied together. One of the petitioners' accomplice asked his companions to finish the bullock.

As soon as the petitioners' two companions prepared themselves to slaughter the bullock, the police personnel challenged them on which the petitioners and their companions started running. At that very moment, Senior Sub-Inspector Tejveer Singh with the help of Sub-Inspector Karmveer Singh apprehended one accomplice of the petitioners at about 16:40 hours. Another accomplice of the petitioners with the object of saving himself fired at the police party but fortunately, no one was hurt. One of the accomplices of the petitioners exhorted Bhura to fire directly otherwise he would be killed on which the petitioners' companion Bhura fired at the police party but again fortunately, no police personnel received any injury.

In the meantime, with the intention to rescue the person who had been caught by the police personnel, Khalil, another companion of the petitioners stabbed Constable Rohit causing serious injury to him. Thereafter, the petitioners and their accomplices fled from the place of the incident. Sub-Inspector Manoj Kumar and Constable Sandeep tried to arrest them but all escaped. When the police personnel started to search the culprits Bhura and Khalil who were arrested on the spot, they tried to wean themselves from the clutches of the police personnel and a scuffle followed in which Sub-Inspector Tejveer Singh and Constable Arvind received injuries but the culprits Khalil and Bhura were overpowered by other police personnel by using necessary force. The search of Bhura led to recovery of countrymade pistol of 12 bore, one empty cartridge stuck in the barrel and one live cartridge from him. One knife which was being used in cow slaughtering was recovered from Khalil.

A large quantity of beef was seized from the place of the occurrence. The bullock which had been tied by the miscreants was untied and given to the custody of Constable Sonu. Since the place of occurrence was situated in a dense forest, no public witness could be arranged. Both the aforesaid accomplices of the petitioners were arrested by the police. The arrested persons disclosed names of some of their companions who had succeeded in fleeing from the place of occurrence as Istakaar (petitioner), Inam, Salman, Iqbal, Ashu @ Ash Mohammad and Irshad.

Recovery memo of beef and other articles recovered from the place of the occurrence was prepared by the police and on the basis thereof, Case Crime No.392 of 2017 under Section 307 I.P.C. State Vs. Bhura and ten others, Case Crime No.393 of 2017 under Section 25 Arms Act State Vs. Bhura, Case Crime No.394 of 2017 under Sections 3/5Ka/8 Cow Slaughter Act and 11 (Gha) Prevention of Cruelty to Animals Act were registered at Police Station Jansath, District Muzaffarnagar, on 24.06.2017 about 18:35 hours.

The petitioners who were arrested during the investigation of the aforesaid cases were sent to district jail Muzaffarnagar. On account of large scale slaughtering of cows by the petitioners and their accomplices, in village Katka and other nearby villages which were inhabited by a mixed population of the Hindus and Muslims, an atmosphere of fear, terror, tension and anguish engulfed the Hindus and Muslims residing in the aforesaid villages. Women in particular became reluctant to go out of their house and do their routine work. The tempo of life was adversely affected and the public order was shattered. The atmosphere of fear, terror and tension prevailed among the villagers for quite sometime.

While the petitioners were confined in district jail Muzaffarnagar, they were served with the impugned detention order.

Only ground on which the learned counsel for the petitioners has challenged the impugned detention order is that the present case is one of the law and order and not public order and the detention of the petitioners under the National Security Act is per se illegal.

Per contra, Smt. Manju Thakur, learned A.G.A. has submitted that the instant case is not a case simplicitor of law and order as on account of the activities of the petitioners, the public order in the area totally shattered, the tempo of life was affected and atmosphere of fear, terror and anguish had engulfed the village Katka and other nearby villages.

What is public order has been explained by Hon'ble Apex Court in paras 7 to 15 in the case of State of U.P. and another Vs. Sanjai Pratap Gupta @ Pappu and others, (2004) 8 SCC 591, which is quoted here as under:-

"The distinction between the areas of 'law and order' and 'public order' is one of the 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 life of the community which makes it prejudicial to the maintenance of the 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 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'. The question to ask is: "Does it lead 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 tranquility of the society undisturbed" This question has to be faced in every case on its facts.

"Public order" is what the French call 'ordre publique' and is something more than ordinary maintenance of law and order. The test to be adopted in determining whether an act affects law and order or public order, is: Does it lead to disturbance of the current life of the community so as to amount to disturbance of the public order or does it affect merely an individual leaving the tranquility of the society undisturbed (See Kanu Biswas v. State of West Bengal (AIR 1972 SC 1656).

After having examined the material brought on record including the grounds of detention, we find that the incident had taken place in the middle of a forest where no member of the public was present. It is true that a couple of the police personnel had received injuries in the incident but the incident, in our opinion, did not have the potentiality of an act to disturb the tempo of life of the villagers and making it prejudicial to the maintenance of the public order.

It is apparent that effect of the incident was confined to only few individuals directly involved in the occurrence. There is no material on record indicating that the incident was followed by communal riots, demonstrations or protests or road blocks or any other incident affecting tempo of life had taken place. Thus, we find force in the submissions made by learned counsel for the petitioners that the present case was one of the law and order and not public order and hence the impugned detention order cannot be sustained and is liable to be quashed.

These are the reasons upon which we set aside the impugned detention order dated 08.12.2017 passed by the District Magistrate, Muzaffarnagar, under section 3 (2) of the National Security Act, 1980.

In the result, the instant petition succeeds and is accordingly allowed.