- (1.) THESE two writ peti tions were heard together as common points of law stood involved in these two matters. By this single judgment these two petitions are being disposed of.
(2.) BY an order dated 23-5-97 the Dis trict Magistrate, Muzaffarnagar, directed detention of Mehru under the provisions of Section 3 (2) of the National Security Act. The grounds for such arrest were indi cated by the District Magistrate stating that one Km. Kamesh had gone to the house of one Islam to work as a maid on 8-5-97 and she was forcibly detained and attempted to be ravished by Mehru, Islam, Irfan, Sajid, Hanif and Shamim, and on her obstruction, she was done to death in a cruel manner. When she was being sear ched by her family members, her dead-body was removed to another place in a completely naked condition. An FIR was lodged against these persons for offences including Sections 354 and 302, IPC. It was further stated that at the instance of Mehru, Shamim and others the weapon of offence, a gandasa, was recovered on 10-5-97. It was further stated that this attempted rape and murder of a girl of a Schedule Caste community had created an atmos phere of terror and insecurity in the locality, resulting in disturbance of public order. The girls of Balmiki caste had stopped working as house maids. The vic tim had been a member of the Hindu com munity and the accused were of Muslim community and the incident had created a communal tension in the area. For Mehru, it was further stated that the District Magistrate was satisfied from perusal of the bail applications that Mehru and his associates had been trying for bail and there was likelihood of their being released on bail and there was further likelihood of their acting in a manner prejudicial to public order. Only under these circumstances, the detention order was passed. For Shamim also the detention order was passed on 23-5-97 by the District Magistrate, Muzaffarnagar and grounds similar to those indicated in the case of Mehru were indicated for Shamim's detention as well. Here also it was stated that Shamim and his associates were trying for bail as was evident from their bail ap plications and there was chance of their obtaining bail and there was further an observation that if released on bail, he would indulge in activities prejudicial to the maintenance of public order. So far Mehru is concerned, it was argued that he had never applied for bail and the bail application to which the Dis trict Magistrate had made a reference in the grounds of detention was, in fact, moved on behalf of Shamim and Sajid, and is not for Mehru. As such, there was no material before the District Magistrate to infer that a bail application had been moved before the Court by Mehru or on his behalf. There was, therefore, no ques tion of his being released on bail.
(3.) THE law on the point of recording a detention order against a person who is already in custody has been made clear by several judgments of the Supreme Court and four criteria have been indicated upon which such a detention order could be made. THE detaining authority must be satisfied (1), that the person proposed to be detained is in custody, (2) that he was trying to get himself out on bail, (3) that there was likelihood of a bail order in his favour and (4) that there was likelihood of his further action to the prejudice of main tenance of public order. In the instant case, the second criteria, according to the learned Counsel, is absent as the petitioner Mehru had not moved for bail at all. It was contended by the learned State Counsel with reference to a decision of the Supreme Court in the case of Kamrunnisa that the mere mention that he was trying for bail on the basis of a. bail application filed by co-accused may not vitiate the detention order as in Kamrunnisa's case there was no bail application on behalf of the detenu and the detaining authority was of the view that it was a bailable offence for which he was in custody although it was a non-bailable one. THE court held in that case that the two co-accused persons had been released on hail and there was, there fore, a reason for the detaining authority to believe that on the same ground this applicant was also to be released on bail. THE case at our hand is distinguishable of facts. THE District Magistrate does not say that he was satisfied about the likelihood of Mehru being released on bail on the ground of the prayers made by his as sociates. THE grounds definitely stated that Mehru and his associates had moved for bail as per the bail applications presented in court. This suggests that he had the bail application before hint and he would have known from a reading of the bail application that Mehru had not moved for bail. This may be interpreted in two ways ; firstly, that there was no material before the District Magistrate to infer that Mehru had applied for bail and, secondly, that there was absolute non-ap plication of mind so far Mehru was con cerned as the District Magistrate arrived at a satisfaction on the bail application of two co-accused person that Mehru had also applied for bail. Without going into the question, so far Mehru is concerned, if it was a question of prejudice to the main tenance of public order or was a question of law and order alone, we may hood that for the absence of materials for satisfac tion on the part of the District Magistrate that Mehru had moved for bail, the con clusion that he was likely to be released on bail, was not proper and, as such, two necessary criteria, as indicated above, were not fulfilled. Mehru being already in cus tody, this detention order on him must be and is quashed, So far Shamim is concerned, this point is not available to him as definitely there had been a prayer for bail made by him and there was no mis-application of mind by the District Magistrate or no ab sence of material for satisfaction of the District Magistrate that he was trying for bail and there was likelihood of his getting bail. That the offence was a heinous one and would have a repercussion in the society is clear from the prima facie allega tions. Materials were there before the detaining authority as to how terror and insecurity spread amongst the young women of the Balmiki community. Materials were also there to indicate that the communal balance at the locality was disturbed as the victim was of one com munity and the assailants were of another community. It may not, therefore, be stated that it was a simple question of law and order and not of disturbance of public order. .;