Full Judgment Text
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PETITIONER:
MANU BHUSAN ROY PRADHAN
Vs.
RESPONDENT:
STATE OF WEST BENGAL
DATE OF JUDGMENT31/10/1972
BENCH:
DUA, I.D.
BENCH:
DUA, I.D.
SHELAT, J.M.
CHANDRACHUD, Y.V.
CITATION:
1973 AIR 295 1973 SCR (2) 842
1973 SCC (3) 663
CITATOR INFO :
F 1973 SC 756 (1,2)
R 1973 SC 896 (7)
F 1975 SC1877 (3)
F 1990 SC1086 (19)
ACT:
Maintenance of Internal Security Act, 1971-S. 3(2) Public
Order What it amounts to.
HEADNOTE:
The petitioner was arrested and detained under s.9 read with
section 3(2) of the Maintenance of Internal Security Act of
1971 on the grounds :-(1) that on 16-4-71 at about 8 p.m.
the petitioner, a member of the action squad of C.P.1, (ML),
along with others, committed a murderous assault on one Shri
Bulo Das Gupta, who later died in hospital. As a result of
this crime, people of the locality became highly terrorised
and the public peace was greatly disturbed : and (2) on
19-7-71 at 7.30 p.m. the petitioner, along with others
forcibly entered a school and set fire to the school
buildings, causing irreparable loss to the institution with
the object of causing dislocation in the present system of
education and compelling the school authorities to close it
down and as a result or the fire the teachers and the local
people became panicky and the public peace was greatly
disturbed.
In this Court it was submitted by the counsel appearing as
amicus curiae that the petitioner had been arrested on
August 5, 1971 in connection with six cases. He was bailed
out on November 10, 1971 but was rearrested soon thereafter.
It was further submitted that ground no. l stated in the
order of detention, was vague and had no relevance to the
maintenance of public order with the result that the
petitioner’s detention was illegal.,
Allowing the petition,
HELD : (1) Ground no. 1 which does not mention the names or
details of the others along with whom the petitioner was
alleged to have committed the assault only refers to an
assault on an individual which prima facie appear to raise
only a law and order problem. It merely mentions murderous
assault by the petitioner on Bulo Das Gupta without showing
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either the nature of the weapon used or the nature or extent
of the injuries inflicted; it also does not disclose as to
how long after the assault the injured person died; the
motive or the purpose of the assault is also not stated.
The difference between maintenance of law and order and its
disturbance and maintenance of public order lies in the
degree and extent of disturbance and its effect on the
current life of the community. Public order is the even
tempo of the life of the community taking the country as a
whole or even a specified locality. Disturbance of public
order is to be distinguished from acts directed against
individuals which do not disturb the society to the extent
of causing a general disturbance of public tranquillity.
Public order indeed embraces more of the community than does
law and order. [846 F]
It is always a question of degree of the harm and its effect
upon the community. 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
effect merely an, individual leaving the tranquillity of the
society undisturbed ?" This question is to be answered in
every case on facts. There is no rigid formula by which
one case can be distinguished from another. [847 H]
843
Dr. Ram Manohar Lohia v. State of Bihar, [1966] 1 S.C.R.
709 and Arun Shah v. State of West Bengal, [1970] 3 S.C.R.
288, referred to.
(ii) In the present case, the solitary incident of assault
on one individual which may well be equated with an ordinary
murder without any further details about the assault can
hardly be said to disturb public peace or place public order
in jeopardy so as to bring the case within the purview of
the Act. It can only raise a law and order problem and no
more. [848 C-D]
(iii) Ground no. 2, however, is quite germane to the
problem of maintenance of public order; but in the absence
of ground no. 1, it is difficult to comprehend whether the
detaining authority would have felt satisfied to make the
impugned order. It has been laid down by this Court that
the requirement that the grounds must not be vague has to be
satisfied with respect to each of the grounds. Where power
is vested in a statutory authority to deprive the liberty of
a subject on its subjective satisfaction with reference to
specified matters, if that satisfaction is stated to be
based on a number of grounds or for a variety of reasons,
all taken together, and if some out of them are found to be
non-existent or irrelevant, the very exercise of that power
would be bad. But in applying this principle the Court must
be satisfied that the vague or non-existent or irrelevant
grounds or reasons are such as, if excluded, might
reasonably have affected the subjective satisfaction of the
appropriate authority. In the present case there were only
two grounds and ground no. 1 which is irrelevant is not of
an unessential nature. Its exclusion from consideration
might reasonably have affected the subjective satisfaction
of the .authority making the impugned order of detention.
[848 E]
Keshab Talpade v. The King Emperor, [1943] F.C.R. 88, Dwarka
Das Bhatia v. State of Jammu & Kashmir, [1956]S.C.R. 948,
Dr. Ram Krishan Bhardwaj v. The State of Delhi, [1953]
S.C.R. 708, Motilal Jain v. State of Bihar, [1968] 2
S.C.R. 505, Arun Ghosli v. State of West ,Bengal, [1970] 3
S.C.R. 288, Dr. Ram Manohar Lohia v. State of Bihar, [1966]
I S.C.R. 709, Pushkar Mukheriee & Ors. v. State of West
Bengal, [1969] 2 S.C.R. 635, Shyamlal Chakraborty v. The
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Commissioner of Police, Calcutta and Anr., [1970] 1 S.C.R.
762 Ncegendra Nath Mondal v. The State of West Bengal,
A.I.R. 1972 S.C. 665, Sudhir Kumar Saha v. Commissioner of
Police, Calcutta, [1970] 3 S.C.R. 360, Sk. Kader v. The
State of West Bengal, A.I.R. 1972 S.C. 1647, Kanu Biswas v.
State of West Bengal, A.I.R. 1972 S.C. 1656, Kishori Mohan
v. State of West Bengal, A.I.R, 1972 S.C. 1749 and Amiya
Kumar Karmakar v. State of West Bengal, W.P. No. 190 of 1972
decided on 31-7-1972, referred to.
(iv) The Act encroaches on the highly cherished right of
personal liberty by conferring on the executive
extraordinary power to detain persons, without trial by
coming to subjective decisions. The detaining authority in
exercising this power must act strictly within the
limitations this Act places on its power so that the
guarantee of personal liberty is not imperiled beyond what
the Constitution and the law strictly provide. The limited
right of redress conferred on the detenu under the law
deserves to be construed with permissible liberality
consistently with the provisions of the Act and the
constitutional guarantee. The impugned ,order in this case
seems to have been made without paying due heed to the
provisions of the Act and is clearly beyond the statutory
scope. 1850 G]
(v) Further the respondent did not reply to the averments
of the petitioner that he bad been arrested six times before
and that he was released on bail; moreover in the grounds
supplied to the detenu were was no
844
reference to the petitioner being a staunch supporter of
C.P.I. (ML) Party. The impugned order must, therefore, be
struck down.
JUDGMENT:
ORIGINAL JURISDICTION : Writ Petition No. 252 of 1972.
Under Article 32 of the Constitution of India for a writ in
the nature of habeas corpus.
S. K. Gambhir, for the petitioner (amicus curiae)
Gobind Mukhoty and G. S. Chatterjee, for the, respondent.
The Judgment of the Court was delivered by
DUA, J. This petition for a writ in the nature of habeas
corpus, by Manu Bhusan Roy Pradhan has been forwarded to
this Court by the Superintendent, Dum Dum Central Jail, West
Bengal.
Pursuant to the order of detention passed by the District
Magistrate, Jalpaiguri, on August 21, 1971 in exercise of
the powers conferred on him by S. 9 read with sub-s. (2) of
S. 3 of the Maintenance of Internal Security Act, 26 of 1971
(hereinafter called the Act) with a view to preventing the
petitioner from acting in any nianner prejudicial to the
maintenance of public order, he was arrested on November 11,
1971. The grounds of detention served on the petitioner at
the time of his arrest read :
"On 16-4-71 at about 20.00 hours you along
with others committed a murderous assault on
Shri Bulo Das Gupta on the road in front of
the office of Mahila Samity, Dhupguri, Police
Station Dhupguri, District Jalpaiguri causing
severe injuries on his person. Shri Das Gupta
subsequently died in hospital. As a result of
this murder committed by you people of the
locality became highly terrorised and the
public peace was greatly disturbed.
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On 19-7-1971 at about 19.30 hours you along
with others forcibly entered into Dhupguri
High School, Police Station Dhupguri, District
Jalpaiguri and set fire to the school
buildings causing irreparable loss to the
institution in particular and the people in
general. you set fire to the school with the
ulterior object of causing dislocation in the
present system of education and to compel the
school authorities to close down the same. As
a result of the fire set by you, the teachers
and the local people became panic-stricken and
the public peace was greatly disturbed."
The fact of making the detention order was reported to the
State Government on August 23, 1971. It was approved by the
said Government on August 31, 1971; the same day this fact
was
845
reported to the Central Government. On December 9, 1971 the
case was placed before the, Advisory Board which gave its
opinion as per its report dated January 18, 1972 that there
was sufficient cause for the petitioner’s detention. The
State Government confirmed this order on February 1, 1972
and this fact was reported to the Central Government on
February 3, 1972.
The petitioner’s representation was received by the State
Government on December 11, 1971. But it was considered on
January 14, 1972. In the counter-affidavit this delay has
been explained’ in these words :
"........ due to influx of refugees as well as
the Pakistan aggression at that time, most of
the officers of the Home Department of the
State Government were very busy with serious
problems which threatened and faced the
country at that time, and as such the said
representation could not be considered
earlier. Moreover I further state that delay
was also caused due to abrupt increase in
number of the detention cases during that time
as there was spate of anti-social activities
by Naxalities and other political extremists
in the State."
Before us Shri S. K. Gambhir, the learned counsel appearing
as amicus curiae submitted that the petitioner, who is only
17 years old and is studying in the Xth class in Dhupguri
High School, was arrested on August 5, 1971 in connection
with six cases. He was bailed out on November 10, 1971 but
was re-arrested soon thereafter. It was further submitted
that ground no. I stated in, the order of detention is
vague and has also no relevance to the maintenance of public
order with the result that the petitioner’s detention must
be held to be bad in law for it is not possible to say how
far this ground influenced the decision of the authority
concerned in making the impugned order of detention.
On behalf of the State it was contended that the petitioner
was found to be absconding when the detention order was made
and: that lie was arrested on November 11, 1971. Reliance
for this submission was placed on the counter-affidavit. It
is note-worthy that in that counter-affidavit, which was
affirmed on August 24, 1972 by the Deputy Secretary, Home
(Special) Department ofGovernment of West Bengal, nothing,
has been stated in reply to the averments made in the
petitioner’s representation dated December 4/6, 1971
addressed from Jail to the Assistant Secretary Home
(Special) Department, Government of West Bengal regarding
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the petitioner’s arrest in six cases of which specific
numbers were stated; nor is there any positive reply to the
averment that he had been bailed out on November 10, 1971.
846
Surprisingly enough no explanation was suggested for this
omission even at the Bar during the course of arguments in
this Court.
The respondents’ learned counsel relied on the averments
made in para 7 of the counter-affidavit. It is stated
therein :
"The detenu-petitioner is a staunch supporter
of C.P.I. (ML) party and is active member of
the Actionsquad of that party. It appears
that the petitioner along with his associates
on 16-4-71 at about 20.00 hours committed
murderous assault on Shri Bulo Das Gupta on
the road in front of Mahila Samity P. S.
Dhupguri in consequence whereof he died. It
further appears that the detenu-petitioner
along with others forcibly entered Dhupguri
High School on 19-7-71 and set fire to the
school buildings causing substantial damages
with ulterior object of causing dislocation in
the present system of education. The
aforesaid activities of the petitioner causes
panic commotion amongst the members of the
general public as well as the teachers of the
said institutes and disturbed public order and
so the petitioner was detained under the said
Act."
It was contended that this averment brings the petitioner’s
case within the purview of S. 3(1) and (2) of the Act even
though in the grounds supplied to the detenu there was no
reference to his being a staunch supporter of C.P.I. (ML)
party and to his being an active member of the Action-squad
of that party.
In our view, ground no. 1 which does not mention the names
details of the others along with whom the petitioner is
alleged to have committed the assault, only refers to an
assault on an individual named Bulo Das Gupta on April 16,
1971 which prima facie appears to raise only a law and order
problem. in Arun Ghosh v. State of West Bengal(1) several
instances of assaults were stated in the grounds of
detention. Hidayatullah C.J. speaking for the Court
observed in that case
"The submission of the counsel is that these
are stray acts directed against individuals
and are 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 this submission
reference is made to three cases, of
this Court : Dr. Ram Manohar Lohia v. State of
Bihar(2) Pushkar Mukherjee & Ors. v. State of
West Bengal 3 ) and Shyamal Chakraborty v. The
Commissioner of Police Calcutta & Anr. (4) .
In Dr. Ram
(1) [1970] 3 S.C.R. 288.
(2) [1966] 1 S.C.R. 709.
(3) [1969] 2 S.C.R. 635.
(4) [1970] 1 S.C.R. 762.
847
Manohar Lohia’s case this Court pointed out
the difference between maintenance of law and
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order and its disturbance and the maintenance
of public order and its disturbance. Public
order was said to embrace more of the
community than law and order. Public order is
the even tempo of the life of the community
taking the country as a whole or even a
specified locality. Disturbance of public
order is to be distinguished from acts
directed against-individuals which do not
disturb the society to the extent of causing a
general disturbance of public tranquillity.
It is the degree of disturbance and its effect
upon the life of the community in alocality
which determines whether the disturbance
amounts only to a breach of law and order.
Take for instance, a man stabs another.
People may be shocked and even disturbed, but,
the life of the community keeps moving at an
even tempo, however much one may dislike the
act. Take another case of a town where there
is communal tension. A man stabs a member of
the other community. This is an act of a very
different sort. Its implications are deeper
and it affects the even tempo of life and
public order is jeopardized because the reper-
cussions of the act embrace large sections of
the community and incite them to make further
breaches if the law and order and to subvert
the public order. 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."
The learned Chief Justice, after referring to the, lines of
demarcation drawn by Ramaswami J., in W.P. 179 of 1968
between serious and aggravated forms of breaches of public
order which affect the community or endanger the public
interest at large and minor breaches of peace which do not
affect the public at large, and after noting the analogy
drawn by Ramaswami J., between public and private crimes,
cautioned against that analogy being pushed too far,
observing, that a large number of acts directed against
persons or individuals may total up into a breach of public
order. After referring to Dr. Ram Manohar Lohia’s case
(supra) the learned Chief Justice observed :
"It is always a question of degree of the harm
and its effect upon the community. The
question to ask is : Does it lead to
disturbance of the current of 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 ? This question has to be
faced in every case on facts. There
848
is no formula by which one case can be
distinguished from another."
This view was reaffirmed in Nagendra Nath Mondal v. The
State ,of West Bengal(1), Sudhir Kumar Saha v. Commissioner
of Police Calcutta(2), Sk. Kader v. The State of West
Bengal(3), Kanu Biswas v. State of West Bengal(4), Kishori
Mohan v. State ,of West Bengal(5) and Amiya Kumar Karmakar
v. State of West Bengal(6).
Ground no. 1 in the case before us merely mentions mur-
derous assault by the petitioner on Bulo Das Gupta. It
shows neither the nature of the weapon used nor the nature
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or extent of the injuries inflicted, nor does it disclose as
to how long after the assault the injured person died.
The motive or the purpose of the assault is also not stated.
This kind of a solitary assault on one individual, which may
well be equated with an ordinary murder which is not an
uncommon occurrence, can hardly be said to disturb public
peace or place public order in jeopardy, so as to bring the
case within the purview of, the Act. It can only raise a
law and order problem and no more; its impact on the society
as a whole cannot be considered to be so extensive,
widespread and forceful as to disturb the normal life of the
community thereby rudely shaking. the balanced tempo of the
orderly life of the ,general public. This ground is,
therefore, not at an relevant for sustaining the order of
detention for preventing the petitioner from acting in a
manner prejudicial to, the maintenance of public order.
Ground no. 2, however, is quite germane to the problem of
maintenance of public order. But the question arises
whether in theabsence of ground no. 1 which, in our view, Ts
wholly irrelevant, the detaining authority would have felt
satisfied on the basis of the solitary ground no. 2 alone to
make the impugned order. Can it be said that ground no. 1
is of a comparatively unessential nature so as not to have
meaningfully influenced the decision of the detaining
authority. Similar problem has faced this Court on a
number of occasions and the decision has generally gone in
favour of the detenu. This Court in Dr. Ram Krishan
Bhardwaj v. The State of Delhi(7) laid down that the
requirement that the grounds must not be vague must be
satisfied with respect to each of the grounds. In Dwarka
Das Bhatia v. The State of Jammu & Kashmir(8) the principle
deduced from the earlier decisions of this Court and also
from the decision of the Federal Court in Keshav Talpade
v. The King Emperor(9) was stated thus:
(1) A.T.R. 1972 S.C. 665.(2) [1970] 3 S.C.R. 360.
(3) A.I.R. [1972] S.C. 1647.(4) A.T.R. [1972] S.C. 1656.
(5)A.T.R. (1972) S.C. 1749.(6) W.P.190/1972 dated/31-7-1972.
(7) [1953] S.C.R. 708. (8) [1956] S.C.R. 948.
(9) [1968] 2 S.C.R. 505.
849
.lm15
"Where power is vested in a statutory authority to deprive
the liberty of a subject on its subjective satisfaction with
reference to specified matters, if that satisfaction is
stated to be based on a number of grounds or for a variety
of reasons, all taken together, and if some out of them are
found to be non-existent or irrelevant the very exercise of
that power is bad. That is so because the matter being one
for subjective satisfaction, it must be properly based on
all the reasons on which it purports to be based. If some
out of them are found to be nonexistent or irrelevant, the
Court cannot predicate what the subjective satisfaction of
the said authority would have been on the exclusion of those
grounds or reasons. To uphold the validity of such an order
in spite of the invalidity of some of the reasons or grounds
would be to substitute the objective standards of the Court
for the subjective satisfaction of the statutory authority.
In applying these principles however the Court must be
satisfied that the vague or irrelevant grounds are such as,
if excluded, might reasonably have affected the subjective
satisfaction of the appropriate authority. It is not merely
because some ground or reason of a comparatively unessential
nature is defective that such an order based on subjective
satisfaction can be held to be invalid. The Court while’
anxious to safeguard the personal liberty of the individual
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will not lightly interfere with such orders. It is in the
light of these principles that the validity of the impugned
order has to be judged."
In Rameshwar Lal v. State of Bihar(1) it was observed:
"Since the detenu is not placed before a Magistrate and has
only a right of being supplied the grounds of detention with
a view to his making a representation to the Advisory Board
the grounds must not be vague or indefinite and must afford
a real opportunity to make a representation against the
detention. Similarly, if a vital ground is shown to be non-
existing so that it could not have and ought not to have,
played a part in the material for consideration, the court
may attach some importance to this fact."
In Motilal Jain v. State of Bihar(2), a decision by a Bench
of six Judges, after reviewing the earlier decisions, this
Court expressed its view thus :
(1) [1943] F.C.R. 88.
(2) [1968] 3 S.C.R. 587.
850
"The defects noticed in the two grounds
mentioned above are sufficient to vitiate the
order of detention impugned in these
proceedings as it not possible to- hold that
those grounds could not have influenced the
decision of the detaining authority.
Individual liberty is a cherished right, one
of the most valuable fundamental rights
guaranteed by our Constitution to the citizens
of this country. If that right is invaded,
excepting strictly in accordance with law, the
aggrieved party is entitled to appeal to the
judicial power of the State for relief. We
are not unaware of the fact that the interest
of the society is no less important than that
of the individual. Our Constitution has made
provision for safeguarding the interests of
the society. Its provisions harmonise the
liberty of the individual with social
interest. The authorities have to act solely
on the basis of those provisions. They cannot
deal with the liberty of the individual in a
casual manner, as has been done in this case.
Such an approach does not advance the true
social interest. Continued indifference to
individual liberty is bound to erode the
structure of our democratic society."
In the case before us there are only two grounds on which
the detention order is based. One of them which relates to
an occurrence of April, 1971 has no relevance or relation to
the disturbance of public order. The other ground relates
to an occurrence of July, 1971. This ground is no doubt
germane to the object of maintenance of public order; but we
are satisfied that the first ground is not of an unessential
nature and in our view its exclusion from consideration
might reasonably have affected the subjective satisfaction
of the authority making the impugned order of detention.
This was the test laid down in Bhatia’s case (supra) and
approved in Motilal Jain (supra). As has often been em-
phasised by this Court the Act encroaches on the highly
cherished right of personal liberty by conferring on the
executive extraordinary power to detain persons without
trial by coming to subjective decisions. The detaining
authority in exercising this power must act strictly within
the limitations this Act places on its power so that the
guarantee of personal liberty is not imperiled beyond what
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the Constitution and the law strictly provide. The limited
851
fight of redress conferred on the detenu under the law
deserves to be construed’ with permissible liberality
consistently with the provisions of the Act and the
constitutional guarantee. We find that the impugned order
in this case has been made without paying due heed to the
provisions of the Act and the order is clearly beyond the
statutory scope. The impugned order must, therefore, be
struck down as outside the Act.
The petitioner was released by us by means of a short order
on October 4, 1972. We have now stated our reasons in
support of that order.
S.C. Petition allowed.
852