LALYA V/S THE COMMISSIONER OF POLICE AND ORS.

 Appeal186 of 2001 Special Leave Petition2436 of 2000 DR.SURAJMANI STELLA KUJUR Vs DURGA CHARAN HANSDAH & ANR DATE OF JUDGMENT: 14 02 2001 K.T.Thomas R.P.Sethi SETHI J Leave granted. Who is a "Hindu" for the purposes of the applicability of the Hindu Marriage Act 1955 hereinafter referred to as "the Act") is a question of law to be determined in this appeal. Section 2 of the Act specifies the persons to whom the Act is applicable Clauses (b) andof Sub sectionof Section 2 make the Act applicable to a person who is a Hindu by religion in any of its forms or developments including a Virashaiva a Lingayat or a follower of the Brahmo Prarthana or Arya Samaj and to persons who is a Buddhist Jaina or Sikh by religion. It is also applicable to any other person domiciled in the territories of India who is not a Muslim Christian Parsi or Jew by religion. The applicability of the Act is therefore comprehensive and applicable to all persons domiciled in the territory of India who are not Muslims Christians Parsis or Jews by religion. The term "Hindu" has not been defined either under the Act or Indian Succession Act or any other enactment of the Legislature. As far back as in 1903 the Privy Council in Bhagwan Koer v. J.C. Bose & Ors. Calcutta Series 11] observed: "We shall not attempt here to lay down a general definition of what is meant by the term ’Hindu’. to make it accurate and at the same time sufficiently comprehensive as well as distinctive is extremely difficult. The Hindu religion is marvellously catholic and elastic. Its theology is marked by eclecticism and tolerance and almost unlimited freedom of private worship. Its social code is much more stringent but amongst its different castes and sections exhibits wide diversity of practice. No trait is more marked of Hindu society in general than its horror of using the meat of the cow. Yet the Chamaras who profess Hinduism but who eat beef and the flesh of dead animals are however low in the scale included within its pale. It is easier to say who are not Hindus not practically and separation of Hindus from non Hindus is not a matter of so much difficulty. The people know the differences well and can easily tell who are Hindus and who are not The Act is therefore applicable to: "(1) All Hindus including a Virashaiva a Lingayat a Brahmo Prarthana Samajist and an Arya Samajist Budhists Jains Sikhs In this appeal the parties are admittedly tribals the appellant being a Oraon and the respondent a Santhal. In the absence of a notification or order under Article 342 of the Constitution they are deemed to be Hindus. Even if a notification is issued under the Constitution the Act can be applied to Scheduled Tribes as well by a further notification in terms of Sub sectionof Section 2 of the Act. It is not disputed before us that in the Constitution Scheduled Tribes) Order 1950 as amended by Scheduled Castes and Scheduled Tribes OrderActs 63 of 1956 108 of 1976 187 and 15 of 1990 both the tribes to which the parties belong are specified in Part XII. It is conceded even by the appellant that "the parties to the petition are two Tribals who otherwise profess Hinduism but their marriage being out of the purview of Hindu Marriage Act 1955 in light of Section 2(2) of the Act are thus governed only by their Santal Customs and usage". The appellant has however relied upon an alleged custom in the Tribe which mandates monogamy as a rule. It is submitted that as the respondent has solemnised a second marriage during the subsistence of the first marriage with the appellant the second marriage being void the respondent is liable to be prosecuted for the offence punishable under Section 494 of the Indian Penal Code. No custom can create an offence as it essentially deals with the civil rights of the parties and no person can be convicted of any offence except for violation of law in force at the time of commission of the act charged. Custom may be proved for the determination of the civil rights of the parties including their status the establishment of which may be used for the purposes of proving the ingredients of an offence which under Section 3(37) of the General Clauses Act would mean an act or omission punishable by any law by way of fine or imprisonment Article 20 of the Constitution guaranteeing protection in respect of conviction of offence provides that no person shall be convicted of any offence except for violation of law in force at the time of commission of the act charged as an offence. Law under Article 13 clause of the Constitution means the law made by the Legislature including intravires statutory orders and orders made in exercise of powers conferred by the statutory rules. The expression custom and usage" has been defined under Section 3(a) of the Act as: "the expression ’custom’ and ’usage’ and rule which having been continuously and uniformly observed for a long time has obtained the force of law among Hindus in any local area tribe community group or family Provided that the rule is certain and not unreasonable or opposed to public policy and Provided further that in the case of a rule applicable only to a family it has not been discontinued by the For custom to have the colour of a rule or law it is necessary for the party claiming it to plead and thereafter prove that such custom is ancient certain and reasonable Custom being in derogation of the general rule is required to be construed strictly. The party relying upon a custom is obliged to establish it by clear and unambiguous evidence. In Ramalakshmi Ammal v. Sivanatha Perumal Sethuraya held: "It is of the essence of special usage modifying the ordinary law of succession that they should be ancient and invariable and it is further essential that they should be established to be so by clear and unambiguous evidence. It is only by means of such evidence that the courts can be assured of their existence and that they possess the conditions of antiquity and certainty on which alone their legal title to This Court in Mirza Raja Pushpavati Vijayaram Gajapathi Raj & ors. v. Sri Pushavathi Visweswar Gajapathiraj Rajkumar of Vizianagram & Ors. again reiterated the same position of law regarding the establishment of a custom upon which a party intends to rely. The importance of the custom in relation to the applicability of the Act has been acknowledged by the Legislature by incorporating Section 29 saving the validity of a marriage solemnised prior to the commencement of the Act which may otherwise be invalid after passing of the Act Nothing in the Act can affect any right recognised by custom or conferred by any said enactment to obtain the dissolution of a Hindu Marriage whether solemnised before or after the commencement of the Act even without the proof of the conditions precedent for declaring the marriage invalid as incorporated in Sections 10 to 13 of the Act. In this case the appellant filed a complaint in the Court of Chief Metropolitan Magistrate New Delhi stating therein that her marriage was solemnised with the respondent in Delhi according to Hindu rites and customs". Alleging that the respondent has solemnised another marriage with the Accused No.2 the complainant pleaded: "That the accused No.1 has not obtained any divorce thro’ the Court of Law upto this date and hence the action of the accused No.1 is illegal and contravene the provision of law as laid down under Section Nowhere in the complaint the appellant has referred to any alleged custom having the force of law which prohibits the solemnisation of second marriage by the respondent and the consequences thereof. It may be emphasised that mere pleading of a custom stressing for monogamy by itself was not sufficient unless it was further pleaded that second marriage was void by reason of its taking place during the life of such husband or wife. In order to prove the second marriage being void the appellant was under an obligation to show the existence of a custom which made such marriage null ineffectual having no force of law or binding effect incapable of being enforced in law or non est. The fact of second marriage being void is a sine qua non for the applicability of Section 494 IPC. It is settled position of law that for fastening the criminal liability the prosecution or the complainant is obliged to prove the existence of all the ingredients constituting the crime which is normally and usually defined by a statute. The appellant herself appears to be not clear in her stand inasmuch as in her statement in the court recorded on 24th October 1992 she has stated that "I am a Hindu by religion". The complaint was dismissed by the trial court holding "there is no mention of any such custom in the complaint nor there is evidence of such custom. In the absence of pleadings and evidence reference to Book alone is not sufficient". the High Court vide the judgment impugned in this appeal held that in the absence of notification in terms of sub sectionof Section 2 of the Act no case for prosecution for the offence of bigamy was made out against the respondent because the alleged second marriage cannot be termed to be void either under the Act or any alleged custom having the force of law. In view of the fact that parties admittedly belong to the Scheduled Tribes within the meaning of clause of Article 366 of the Constitution as notified by the ConstitutionOrder 1950 as amended by Scheduled Castes and Scheduled Tribes Order Amendment) Acts 656 1076 187 and 190 passed in terms of Article 342 and in the absence of specific pleadings evidence and proof of the alleged custom making the second marriage void no offence under Section 494 of the Indian Penal Code can possibly be made out against the respondent. The Trial Magistrate and the High Court have rightly dismissed the complaint of the appellant Learned Counsel appearing for the appellant however submitted that even if the second marriage was not void for the purposes of attracting the applicability of Section 494 and holding the respondent guilty of bigamy the appellant is entitled to maintenance succession and other benefits on account of her being the legally wedded wife of the respondent. We cannot adjudicate upon such a proclaimed right of the appellant. The appellant is at liberty to get her right established by way of civil proceedings in a competent court of jurisdiction. If any such proceedings are initiated the same would be decided on their merits in accordance with the principles of pleadings and proof not being influenced by any of the observations made by the trial magistrate or the High Court. There is no merit in this appeal which is accordingly dismissed

Summary: Detention is based not on facts proved as per Evidence Act or Cr.P.C. but on the subjective satisfaction of the detaining authority that detention is necessary for prevention of prejudicial activities in future The petitioner- Lalya @ Kishor Arun Waghmare has been detained pursuant to the detention order dated 20.8.2015 passed by Respondent No. 1 under Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders, Dangerous Persons and Video Pirates Act, 1981 (Mah. Act No. LV of 1981) (Amendment-1996) (Amendment-2009) (hereinafter referred to as “MPDA Act”). The grounds of detention shows that the detaining authority was convinced on the basis of material placed before it that the detenu was a dangerous person and had unleashed a reign of terror and had become a perpetual danger to the society at large in the area of Yerwada Police Station, Pune. The people residing in the said area are experiencing a sense of insecurity and are living under a shadow of constant fear, whereby even day to day business and activities of citizens are under threat. Further averment made in the grounds of detention show that the detaining authority was subjectively satisfied that the detenu was acting in a manner prejudicial to the maintenance of public order, hence, it was necessary to detain him. The first ground of challenge which is 6(a) is that the detaining authority has taken into consideration two statements of witnesses “A” and “B” recorded incamera on 25.7.2015 and 10.7.2015. These statements are relied upon by the detaining authority for arriving at his subjective satisfaction, however, the incamera statements were not verified by any Senior Police Officer as per the requirement of law, hence, it cannot be said that the incamera statements are authentic and hence, they cannot be relied on by the detaining authority for passing the order of detention. On account of this, the subjective satisfaction of the detaining authority is vitiated, hence, the order of detention is illegal and bad in law and liable to be quashed and set aside.In relation to verification of statements of two incamera witnesses, it is further stated in ground 6(f) of the petition that “the detaining authority has referred to and relied on two statements of witnesses “A” and “B” recorded incamera on 25.7.2015 and 10.7.2015. It is further submitted in the affidavit that the detaining authority has duly furnished all the relevant documents i.e. in all 493 pages along with the verified notes of both the incamera statements and the same are at Page Nos. 485 to 493. As such the detenu’s right to make effective representation guaranteed under Article 22(5) of the Constitution of India is not at all violated. Hence, the order passed by the detaining authority is legal, just and proper and as per the provisions of law. Hence, deserves to be confirmed. As far as ground 6(f) is concerned, the detaining authority has stated that on 6.8.2015 the Assistant Commissioner of Police, Khadki Division, Pune has called the witnesses “A” and “B” in her office for verification. On 6.8.2015 the Assistant Commissioner of Police, Khadki Division, Pune verified the witnesses “A” and “B” and also verified the truthfulness and genuineness of the statements given by them before the Senior Police Inspector of Yerawada Police Station on 25.7.2015 and 10.7.2015 respectively. Then regarding this verification of truthfulness, the Assistant Commissioner of Police, Khadki Division, Pune has recorded the supplementary statements of witnesses “A” and “B” on 6.8.2015. As such these supplementary statements of witnesses “A” and “B” recorded on 6.8.2015 by the Assistant Commissioner of Police, Khadki Division, Pune is nothing but verification of truthfulness and genuineness of the statements of the witnesses “A” and “B”. These supplementary statements regarding verification of the statements of witnesses “A” and “B” are placed at Page Nos. 489 and 493 of the copies served to the detenu. Moreover, the Assistant Commissioner of Police, Khadki Division, Pune has submitted report dated 6.8.2015 regarding the verification of the truthfulness and genuineness of the statements of the witnesses “A” and “B” to the Respondent/detaining authority. This report is placed at page No. 485 of the copy served to the detenu. In the said report, the Assistant Commissioner of Police, Khadki Division, Pune has mentioned that the facts given in the incamera statements and apprehension entertained by the witnesses “A” and “B” therein are true and reasonable. After perusing the said report, the detaining authority was subjectively satisfied that the facts given in the incamera statements and apprehension entertained by the witnesses “A” and “B” are true and reasonable. Also there is no particular format of verification. As such the order passed by the detaining authority is legal, just and proper. ISSUE BEFORE THE COURT:Whether the detention of the petitioner for offences punishable under Sections punishable under Sections of Code, Act, 1988 and Act, 1959 was valid? RATIO OF THE COURTThe court contended document also clearly shows that the two incamera statements were verified by the Assistant Commissioner of Police.  Copy of this document has been furnished to the detenu.  In the present case, in view of the further statements of witnesses A and B dated 6.8.2015 and report of the A.C.P. to detaining authority dated 6.8.2015, we are of the opinion that there is no need at all for the A.C.P. to record his satisfaction on this aspect separately.The further statements of witnesses A &amp; B itself are sufficient to show that the A.C.P. had verified the incamera statements.  The report of the A.C.P. to the detaining authority dated 6.8.2015 by itself is also sufficient to show that the A.C.P. had verified the incamera statements.  Any one of these documents is sufficient to show that incamera statements  were verified by the A.C.P.   Both the report of the A.C.P. and supplementary statements are not necessary and any one of them would have been sufficient. These documents clearly  prove  that a Senior Police Officer i.e. A.C.P. had verified the genuineness of the incamera statements and copies of these documents, as stated earlier, have been furnished to the detenu. None of the judgments cited above lay down any principle that there should be a particular format in which the verification must be done.  The verification no doubt ought to be there.  The incamera statements and the witnesses making them ought to be questioned about them and the genuineness of the incamera statements ascertained.  Thus, there should be a verification of the incamera statements, but it need not be in particular format or answered in any particular description or employing any particular words and expressions.  Similarly none of these decisions say that the verification ought to be appearing on the face of the incamera statements or on the copy of the same supplied to the detenu.  If there is an incamera statement recorded and there is a verification done, the verification can well be contained in a separate report.  So long as the copies of the incamera statements and that report are forwarded to the detaining authority, if that forms part of the material and documents taken into consideration by the detaining authority and furnished to the detenu, then the detention order is not vitiated nor the right to make an effective representation guaranteed under Article 22(5) of the Constitution of India is affected.  From the record of the present case, we have found that there is indeed a verification of the statements recorded incamera and copy of document showing that the incamera statements were verified by a Senior Police Official is furnished to the detenu.  Thus, there is no merit in these two grounds. The next ground raised by Mr. Tripathi is that the subjective satisfaction of the detaining authority is based on three CRs., one Station Diary entry and statements of two incamera witnesses. The court agreed with the submission of Mr. Tripathi that the incidents relating to CR No. 123 of 2015 and CR No. 3053 of 2015 were not such as to affect the maintenance of public order, however, for reasons recorded below, we do not agree with the latter part of his submission that the detention order is based only on CR No. 3080 of 2015.  As far as the above contention is concerned, we have already observed above that statements of two incamera witnesses have been verified by a Senior Police Officer i.e. Assistant Commissioner of Police and copy of the documents showing that such verification was done has been furnished to the detenu.  Incamera statement of witness “A” shows that people were running helter skelter and shop keepers were closing their shops.  At that time, the shop keeper of the shop in which witness A was,  also told him to leave the shop and hurriedly pushed down the shutter of the shop.   When witness “A” came on the road, the detenu arrived there armed with a sword.  He assaulted witness “A” and snatched Rs.3300/- from the shirt pocket of witness “A”, detenu then pointed out a sword at witness “A” and threatened him that if he made complaint to the police, he would kill him.  Incamera witness “B” has stated that the detenu threatens and collects money from vegetable vendors, businessmen and residents and the detenu has created a reign of terror in the area and nobody dared to complain against the detenu.  Incamera witness “B” has further stated that on the date of the incident, the detenu was threatening shop keepers and handcart owners with a sword, due to which, handcart owners and vegetable vendors ran away.    The detenu then overturned handcart of  witness “B” loaded with potatoes which led to a loss to witness “B”. Thus, it is seen that the incidents relating to both witnesses “A” and “B” are such that they affect the maintenance of public order.  In addition to statements of two incamera witnesses, the details relating to CR No. 3080 of 2015 are also such that the activities of the detenu were prejudicial to the maintenance of public order.  In this case, the complainant approached the police in terrified condition and told them that the detenu was threatening shop keepers and handcart owners with a sword and that the detenu had overturned handcarts and had created chaos.  Due to fear,  people present there, ran helter skelter. On getting this information, the police officers and staff rushed to the spot where they saw the detenu holding sword and threatening shop keepers and handcart owners.  The detenu had created a reign of terror and people present there were terrified.  Handcart owners and vegetable vendors who were present at the spot, ran helter skelter. Investigation in the said case revealed that every month the detenu extorted money from vegetable vendors, grocery shop keepers and tea handcart owners.  Thus, the incident relating to CR No. 3080 of 2015 is also such which affects the maintenance of public order.   It is seen that incidents relating to CR No. 3080 of 2015 and incamera witness “A” and  witness “B” are of extortion of money in public places.  Such acts are bound to affect public order.  In this connection, reliance can be placed on a decision of the Supreme Court in the case of Hasan Khan Ibne Haider Khan Vs. R.H. Mendonca &amp; Ors. reported in AIR 2000 SC 1146.In this case, it was held that “It is well settled that neither is the detenu an accused nor are detention proceedings his trial.  Detention is based not on facts proved as per Evidence Act or Cr.P.C. but on the subjective satisfaction of the detaining authority that detention is necessary for prevention of prejudicial activities in future. Therefore, rules and principles of criminal jurisprudence in general will not apply to preventive detention.  Some element of suspicion, anticipation and speculation is inherent in the preventive detention.  The detention proceedings are neither criminal nor quasi-criminal, nor judicial nor quasi-judicial in character.  Detention order, more or less, is administrative in nature and the detaining authority is not bound by strict rules of Evidence Act or Cr.P.C.  It may be mentioned that even “in camera” statements can be relied upon for reaching the subjective satisfaction”.The court stated that in the present case after excluding CR Nos. 123 of 2015 and 3053 of 2015, the court have four incidents or grounds on which the detaining authority has placed reliance to issue the order of detention.  From these four incidents, it can certainly be said that the detenu is a dangerous person. On consideration of these four incidents, we hold that the same are germane to arrive at the subjective satisfaction of the detaining authority that even tempo of life of people was disturbed and these incidents resulted in breach of public order and affected the maintenance of public order. DECISION HELD BY COURT:In this case the judgement was given by JUSTICE V.K.TAHILRAMANI that In view of the above, this ground raised by the learned counsel for the petitioner to espouse the case of the detenu, is also of no avail. Thus, this petition is devoid of substance.  Hence, Rule is discharged.