JUDGMENT [ENTITY], J.
1. This habeas corpus petition has been filed by [ENTITY] for quashing the detention order passed against him and setting him at liberty forthwith.
2. The District Magistrate, Ghaziabad, passed an order on 6-1-2000 Under [SECTION] of the [ACT] (hereinafter referred to as,the Act) for detaining the petitioner [ENTITY] with a view to prevent him from acting in any manner prejudicial, to the maintenance of public order.
3. The detention order and also the grounds of detention were served upon the petitioner on the same day, i.e. on 6 1-2000 in jail as he was in judicial custody in respect of an offence being caste Crime No. 235 of 1999 Under [SECTION], [SECTION], [SECTION], [ACT] and [SECTION] of the Scheduled Castes and [ACT] of [ENTITY]. The ground of detention relates to an incident which took place at about 12 In the night of 2/3-8-1999. The petitioner along with his companions, armed with pistol and guns, came to the house of Smt, [ENTITY] widow of [ENTITY], resident of Manak Chow, P.S. Ganmkteshwar and forcibly carried away her 13 years old daughter [ENTITY] in a tractor. The petitioner and his companions constantly threatened her with firearms and repeatedly raped her. Thereafter, he brought her in a tractor and threw her in front of the panchayat in Manak Chowk at about 10 p.m. on 3-8-1999.
4. The order of detention passed by the District Magistrate was approved by the State Government within the period prescribed under [SECTION] of the Act. The petitioner made representations to the State Government and the Central Government which were given by him to the Superintendent of Jail on 28-1-2000. After receiving comments from the Station Officer of the police station concerned and Superintendent of Police, the District Magistrate sent the representation to the State Government on 4-2-2000 along with his own comments. The representation was received by the State Government on 5-2-2000 which was Saturday. It was examined by the Joint Secretary (Home) and also by the Home Secretary on 7-2-2000 and was ultimately rejected by the Chief Minister on 8-2-2000. The representation made to the Central Government was received there on 7-2-2000 and was put up before the Dy. Secretary (Home) and the concerned Joint Secretary on 8-2-2000. Finally, it was rejected by the Home Secretary on 9-2-2000. The case of the petitioner was also referred to the advisory board in accordance with [SECTION] of the Act. The advisory board gave an opinion that there was sufficient cause to detain the petitioner and a report to that effect was fowarded to the State Government. The State Government after examining the matter afresh and also the report of the advisory board, passed an order Under [SECTION] of the Act confirming the order for keeping the petitioner under detention for a period of 12 months.
5. The principal submission of learned counsel for the petitioner, Sri [ENTITY] is that the petitioner has been detained on the basis of a solitary incident which relates to "law and order" and not to "public order" and, therefore, the order of detention is illegal. Learned counsel has urged that the solitary act alleged against the petitioner is not subversive of public order and, therefore, the detention on the ostensible ground of preventing him from acting in a manner prejudicial to public order was not justified. In support of his submission he has placed reliance on [PRECEDENT]. [PRECEDENT], [PRECEDENT], [PRECEDENT] and [PRECEDENT] [PRECEDENT]. In [ENTITY] (supra) it was held as follows (Para 10) :
A solitary act of omission or commission can be taken into consideration for being subjectively satisfied, by the detaining authority to pass an order of detention if the reach, effect and potentiality of the act is such that it disturbs public tranquillity by creating terror and panic in the society or a considerable number of the people in a specified locality where the act is alleged to have been committed. Thus, it is the degree and extent of the reach of the act upon the society which is vital for considering the question whether a man has committed only a breach of law and order or has acted in a manner likely to cause disturbance to public order.
6. There can be no quarrel with the proposition of law urged by Sri [ENTITY]. It has to be examined here what is the degree and extent of the act. upon the society, and it is the answer to this question which will determine whether the offending act is a mere breach of law and order or it causes disturbance of public order. In the grounds of detention it is mentioned that on account of abhorring and terrorising act of forcibly taking away a girl from her home and of gang rape committed by the petitioner and his companions an atmosphere of fear and terror was created in the area and every one started feeling insecure. It is further mentioned that after the incident the people in the entire area stopped sending their girls to schools, markets or place of work. The girls also stopped moving alone and stopped going to schools or markets and fields. Hundreds of people of the area of all castes and creeds expressed their anger and anguish over the incident by blocking the main Meerut Ganmukteshwar road, and also resorted to a 'dharna'. Due to this reason the normal activity of people at large was obstructed and public order was disturbed. When a solitary act may amount to disturbance of public order, was explained by [ENTITY], C.J. in [PRECEDENT], and relevant part of paragraph 3 of the judgment is being reproduced below (Para 3) :
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 another case of a man who molests woman in lonely places. As a result of his activities girls going to college and schools are in constant danger and fear. Women going for their ordinary business are afraid of being way laid 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 effect upon the public tranquillity there is a vast difference. The act of the man who molests 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 reach of the act upon the society
7. The test whether an act relates to law and order or it amounts to disturbance of public order, was formulated in the aforesaid case as under :
Does it lead to disturbance of the currect of life of the community so as to amount a disturbance of the public order or does it affect merely an individual leaving the tranquillity of the society undisturbed? This question has to be faced in every case on facts. There is no formula by which one case can be distinguished from another
8. The grounds of detention in the present case show that the petitioner along with his companions came on a tractor and forcibly carried away a young girl of 13 years of age while she was sleeping in her house and repeatedly raped her and threatened her with firearms and, thereafter, on the next day at about 10 in the night brought her back and threw her near the panchayat. While going back the people were again threatened with fire arms. The forcible abduction of a girl from her house by several persons accompanied with threats with fire arms is bound to affect everyone residing in that area. The people would be deeply concerned with the safety, protection and honour of the girls and womenfolk of the area, and they can legitimately think that sending a girl alone to school, market or any other place would be highly unsafe and would tend to keep them properly secure in their own houses. It is not possible to believe that such an incident would have affected the victim [ENTITY] or her mother [PRECEDENT] [ENTITY] alone, and would not have affected the people at large who are residing in that area. The affect and reach of the act is not to be judged in the cool atmosphere of an air-conditioned court room, but has to be judged from the spontaneous reaction of the people and community at large of that area. Again what was the reaction is to be seen at the time of incident and shortly thereafter and not after a long lapse of time as things cool down with the passage of time. The grounds show that hundreds of people of that area, irrespective of caste or community, resorted to blocking of the road and 'dharna' to express their anger and resentment against the abduction and gang rape of the girl, This itself shows that the offending act disturbed the even tempo of life of the community and clearly falls within the domain of "public order." It may be pointed out that in [PRECEDENT] (supra) the act of molestation of girls in lonely places was held as an act relating to disturbance of public order. The case in hand stands on a much stronger footing as the petitioner along with his companions armed with pistols and guns not only forcibly carried away the girl from her house but also repeatedly raped her. Thus, there cannot be even slightest doubt that the ground on which the order of detention is founded clearly relates to disturbance of public order and not to breach of law and order. The authorities cited by the learned counsel for the petitioner have not laid down any contrary principle. On facts of these cases the grounds were held to be that of breach of public order and, therefore, they can be of no assistance to the petitioner.
9. Sri [ENTITY] has next urged that at the time when the detention order was served upon the petitioner, he was already in custody in respect of a criminal case and his bail application had also been rejected by the learned Sessions Judge and, consequently, it was not all possible for the petitioner to commit any such act which may have amounted to disturbance of public order. According to the learned counsel, this showed that the order of detention had been passed in a mechanical way and without any application of mind. It has been further urged that the subjective satisfaction of the detaining authority was completely vitiated as the same was not arrived at on consideration of relevant materials.
10. The question as to whether a detention order can be passed against a person who is already in custody in respect of a criminal offence has been considered in a series of decisions by the Apex Court. In [PRECEDENT], after reviewing all earlier cases including those cited by learned counsel for the petitioner, it was held as follows (Para 11) :
It could not be said that no order of detention can validly be passed against a person in custody under any circumstances. Therefore, the fact and circumstances of each case have to be taken into consideration in the context of considering the order of detention passed in the case of a detenu who is already in jail. In the instant case the detaining authority was not only aware that the detenu was in jail also noted the circumstances on the basis of which he was satisfied that the detenu was likely to come out on bail and continue to engage himself in the smuggling of goods. Therefore, the detention was not ordered on the mere ground, that he is likely to be released on bail but on the ground that the detaining authority was satisfied that the detenu was likely to indulge in the same activities if released on bail. Therefore the detention order could not be quashed merely on the ground that the tedenu was in jail.
11. In [PRECEDENT], the view expressed in [PRECEDENT] (supra), was reiterated and it was held that it cannot be said that no order of detention can validly be passed against a person in custody under any circumstance. The facts and circusmtances of each case have to be taken into consideration in the context of considering the order of detention in the case of detenu who is already in jail. In this case, though the bail application filed by the detenu had already been rejected the order of detention was upheld. In [PRECEDENT], [ENTITY], J. (as his Lordship then was) after reviewing the earlier authorities held as follows (Para 13) :
In the case of a person in custody a detention order can validly be pssed (1) if the authority passing the order is aware of the fact that he is actually in custody, (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing .
12. In [PRECEDENT], it was held as follows (Para 12) :
If the detenu has moved for bail then the application and the order thereon refusing bail even if not placed before the detaining authority it does not amount to suppression of relevant material. The question of non-application of mind and satisfaction being impaired does not arise as long as the detaining authority was aware of the fact that the detenu was in actual custody.
13. The same question was again considered in [PRECEDENT] and it was held that if sufficient material was placed before the detaining authority and he is satisfied that there was compelling necessity for detaining the detenu in order to prevent him from indulging in offending activities, the Court is not entitled to interfere with the detention order merely on the ground that detenu was already in custody in respect of a criminal offence. Similar view has been recently taken in [PRECEDENT] (para 41), wherein it was held as follows (Para 45) :
In spite of rejection of the bail application by a court, it is open to the detaining authority to come to his own satisfaction based on the contents of the bail application keeping in mind the circumstance that there is likelihood of detenu being released on bail. Merely because no bail application was then pending is no premise to hold that there was no liklihood of his being released on bail
14. In this connection it is necessary to examine the grounds of detention. It is enumerated therein that the petitioner is in judicial custody and his bail application had been rejected by the learned Magistrate on 16-8-1999 and the bail application filed in the Court of session in 1-10-1999 had been rejected by IInd Addl. Sessions Judge on 27-10-1999. The list of documents supplied along with the detention order contain at serial No. 44 "copy of the bail application of the petitioner" notice of which had been given to the Government Advocate in Allahabad High Court. Under the Allahabad High Court Rules, before actually filing a bail application in Court, copies of the bail application and notice thereof have to be given to the Government Advocate. This had actually been done by the petitioner. This is conclusive proof of the fact that the petitioner was making serious efforts to get bail.
15. There can be no doubt that the detaining authority was fully aware of the fact that the petitioner was in custody in jail at the time when he passed the detention order. It is not a case where the detaining authority was either unware of the fact that the petitioner was already in jail in connection with a criminal case or the relevant materials regarding the rejection of his bail application had not been placed before him. Therefore, the detention of the petitioner cannot be assailed on the ground that he was already in custody at the time when the order was passed.
16. Sri [ENTITY] has next urged that the copies of the medical examination report and X-ray report of the victim [ENTITY] had not been supplied to the petitioner and as a result of such a lapse, he could not make an effective representation against his detention, rendering his continued detention illegal. The contention raised is both factually and legally incorrect. A copy of grounds of detention has been filed as An-nexure 2 to the writ petition, and it gives the list of documents copies of which were furnished to the petitioner. The copy of the medical examination report of [ENTITY] is mentioned at serial No. 39 of the list and this clearly shows that a copy of the said document was supplied to the petitioner. The grounds do not at all show that the detaining authority had taken into consideration X-ray examination report of the victim. It is well settled that the copies of only such documents on which the order of detention is primarily based has to be supplied to the detenu and the detention order would not be vitiated merely on the ground that the copies of non material documents were not furnished. See [PRECEDENT], [PRECEDENT], [PRECEDENT] and [PRECEDENT].
17. Learned counsel has urged that though in the grounds of detention it was mentioned that the petitioner could make a representation to the State Government and to the Central Government but it was not mentioned that the petitioner could also make a representation to the detaining authority, namely, to the District Magistrate and on account of such a lapse the petitioner could not exercise his constitutional right of making a representation against the detention order to the detaining authority, rendering his continued detention invalid. In support of this submission, learned counsel placed reliance on [PRECEDENT], wherein it has been held that noncommunication to a detenu that he has a right to make representation to detaining authority would constitute an infraction of a valuable right of a detenu Under [SECTION] of the [ACT]. We have given our thoughtful consideration to the submission made by the learned counsel, and we are of the opinion that such a contention cannot be accepted in the present case. The question whether the petitioner was informed that he had a right to make representation to the detaining authority, namely, the District Magistrate is a pure question of fact. In the writ petition no such plea has been raised and, as a result, the respondents had no opportunity to give reply to the said fact. It is not necessary to communicate such a right to the petitioner in the grounds of detention itself. It could not be very well be done separately by any permissible mode. Therefore, in absence of any pleading to that effect such an inference cannot be drawn in favour of the detenu by merely looking at the grounds of detention.
18. Lastly, it was urged that there were persons who are alleged to have participated along with the petitioner in the crime in question, but no order of detention has been passed against them and, consequently, the order passed by the District Magistrate for detaining the petitioner is hit by vice of discrimination. It is well settled that an order of detention can be passed on the subjective satisfaction of the detaining authority. If the District Magistrate was of the opinion that it was necessary to detain the petitioner alone in order to prevent him from acting in any manner prejudicial to the maintenance of public order, then such a satisfaction cannot be vitiated only on the ground that no such order has been passed as regards the other co-accused of the case. The view has been taken by a Full Bench of our Court in [PRECEDENT].
19. No other point was urged.
20. For the reason mentioned above, we do not find any merit in this habeas corpus petition, which is hereby dismissed.