Full Judgment Text
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PETITIONER:
NAGENDRA NATH MONDAL
Vs.
RESPONDENT:
THE STATE OF WEST BENGAL
DATE OF JUDGMENT13/01/1972
BENCH:
SHELAT, J.M.
BENCH:
SHELAT, J.M.
KHANNA, HANS RAJ
CITATION:
1972 AIR 665 1972 SCR (3) 75
1972 SCC (1) 498
CITATOR INFO :
R 1972 SC1256 (8)
R 1972 SC1566 (4)
R 1972 SC1623 (7)
R 1972 SC1656 (6,8)
RF 1972 SC1668 (7)
R 1972 SC1749 (7)
R 1972 SC1753 (9)
RF 1972 SC2132 (4)
R 1972 SC2143 (6)
RF 1972 SC2420 (4,5)
E 1972 SC2623 (9)
E 1972 SC2686 (3)
F 1973 SC 197 (9,10)
R 1973 SC 295 (7)
R 1980 SC 849 (7,8)
R 1981 SC2166 (21)
RF 1987 SC 998 (6)
RF 1987 SC2332 (16A)
R 1989 SC 764 (13)
R 1990 SC1086 (18)
ACT:
West Bengal Prevention of Violent Activities Act,
1970-Section 3(2)(b)-Acts prejudicial to the maintenance of
public order-Tests for determining.
Practice and procedure-Habeas Corpus-Grounds not urged in
the petition, if can be urged.
HEADNOTE:
The petitioner was detained under the West Bengal Prevention
of Violent Activities Act, 1970. The grounds for detention
stated that he, along with others, on two, occasions,
entered the premises of educational institutions, set fire
to books, registers, furniture etc., placed bombs in the
building and threatened the staff with death and thereby
committed "mischief" disturbing "public order" within the
meaning of S. 3(2)(b) of the Act. The petitioner’s
representation was received by the State Government on May
27, 1971. On June 7, 1971 the petitioner’s case was placed
before the Advisory Board. The State Government considered
the representation and rejected it by its order dated July
1, 1971. On July 9, 1971 the Board reported that there was
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in its opinion sufficient cause for the petitioner’s
detention.
The petitioner sent his habeas corpus petition from jail in
which he denied the allegations made against him. At the
hearing of the petition, the counsel for the petitioner
raised two additional grounds (i) that the grounds furnished
to the detenu did not constitute breach of public order.,
and therefore, the detention was illegal; and (ii) that the
delay in considering the petitioner’s representation. Nas
inordinate, and therefore, was in violation of Article 22(5)
of Constitution.
Dismissing the petition,
HELD : (i) According to the Report of the Advisory Board,
there was sufficient material justifying the order and in
the absence of any definite material, it is not possible lo
accept the vague allegations by the petitioner. [780 E]
(ii)Ordinarily grounds which (lo not find any place in the
petition would not be permitted to be raised before this
Court. But since this was a habea scorpus petition and
furthermore, made by the petitioner from jail such grounds
could be allowed to be raised. [78 F]
(iii)The true distinction between the area of law and order
and public order is one of degree of extent of the breach of
the act in question upon society. Any contravention of law
always affects order, but before it could be said to affect
’public order’ it must affect the community at large. Acts
similar in nature, but committed in different contexts and
circumstances might affect the problem of law and order and
in another, the breach of public order. The analogy of
crimes against individuals and crimes against the public,
though useful to a limited extent, would not always be apt.
[79 H-80B]
76
Lohia v. State [1966] 1 S.C.R. 709, Pushkar Mukherjee v.
West Bengal [1969] 2 S.C.R. 635; Arun Ghosh v. West Bengal
[1970] 3 S.C.R. 288 and S. K. Saha v. Commissioner of
Police, Calcutta [1970] 3 S.C.R. 360 referred to.
(iv) The distinction drawn by Clause (b) of S. 3(2) is
between causing fire to building of an educational
institution simpliciter and committing mischief of the same
nature but such that it disturbs or is likely to disturb the
even tempo of the community in that particular locality.
The object of the acts complained of as vandalism, to
disturb the working of the institution by burning its
records and to create a scare so that neither the teaching
staff, nor the pupils would dare attend it for prose caution
of studies. In these circumstances the alleged acts did not
merely constitute mischief under S. 425 of the Penal Code,
but constituted such mischief which disturbed or was likely
to disturb public order and, therefore, fell within the
definition in Section 3(2)(b) [81 G-H]
(v) In the circumstances of the present case, it cannot be
held that the delay was so inordinate as to affect the
validity of the detention. No doubt, the delay in deciding
the representation was 34 days, but most of it was due to
the fact that the representation and the record remained
with the Board. In a given case, Government may not be able
to reach a proper conclusion within a short time especially,
where another authority has passed the questioned order. 183
F] Jayanarayan Sukul v. West Bengal [1970] 3 S.C.R. and
Khairul Haque v. West Bengal, writ petition decided on
September 10, 1969, referred to.
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JUDGMENT:
ORIGINAL JURISDICTION : Writ Petition No. 308 of 1971.
Under Article 32 of the Constitution of India for a writ in
the nature of habeas corpus.
S. K. Dhingra for the petitioner.
P. K. Chatterjee, G. S. Chatterjee, for the respondent.
The Judgment of the Court was delivered by
Shelat, J. On May 7, 1971, the District Magistrate, Jalpai-
guri, in exercise of power conferred upon him by S. 3 (3) of
the West Bengal (Prevention of Violent Activities) Act, 1970
(President’s Act 19 of 1970) passed an order under sub-sec.
1 of that section directing the detention of the petitioner.
The order recited that the District Magistrate was satisfied
that it had become necessary to detain the petitioner "with
a view to preventing him from acting in any manner
prejudicial to the maintenance of public order". On that
very day, the District Magistrate reported to the State
Government the fact of his having passed the said order. In
pursuance of that order, the petitioner was arrested on May
9, 1971 and was detained in jail. The petitioner was
furnished, as required by the Act, with the grounds for his
detention at the time when his arrest was effected. On May
17, 1971, the State Government approved the said order. On
the same day the State Government reported the fact of the
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passing of the said order and its approval to the Central
Government. The petitioner made his representation which he
was entitled to make by virtue of S. 8 (i). That was
received by the State Government on May 27, 1971. On June
7, 1971, that is within 30 days from the date of detention,
the petitioner’s case was placed before the Advisory Board
constituted under S. 9 of the Act. The State Government
considered that representation, but rejected it by its order
dated July 1, 1971. On July 9, 1971, the Board reported
that there was, in its opinion, sufficient cause for the
petitioner’s detention, Thereupon, the State Government, by
its order dated July 29, 1971, confirmed the detention order
under s. 12.
The grounds for detention served on the petitioner stated
that the order was passed in view of his acting "in a manner
prejudicial to the maintenance of public order as evidenced
by the particulars given below". These particulars were :
"1. On 1-12-70 after midnight you along with
other entered into the Headmaster’s room of
Moynaguri Higher Secondary School, Police
Station Moynaguri, after breaking open the
doors and set fire to books, registers, a
typewriter, furniture etc. causing heavy loss
to the school. After completing the
operation you placed a bomb in the school
premises endangering the life of the
teaching staff and the students.
2. On 5-4-1971 at about 10.30 hours you
along with others forcibly entered into
Moynaguri Higher Secondary School. Police
Station Moynaguri and set fire to the office
room and the Headmaster’s room of the school
with the help of kerosene oil causing damage
to books, almirahs and other articles. While
committing the arson in the above school you
also threatened the teaching staff and the
duftry of the school with death if they would
dare to give you any resistance or divulge
your name to any authority holding you
responsible for the arson."
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The grounds also, informed the petitioner that he could make
a representation to the State Government, that his case
would be put up before the Board and that the Board would
grant him a personal hearing, if he so desired.
The case of the detenu, as stated in the petition, was that
he was at first arrested on suspicion on April 23, 1971 in
connection with G. R. Case No. 812 of 1971, but was
released on bail as there was no evidence against him. There
was another case also being G.R. 2639 of 1970 in connection
with the incident
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referred to in ground No. 1 set out above. The detenu
however, was not arrested in that connection. The two G.R.
Cases were started long before he was arrested on May 9,
1971 under the detention order dated May 7, 1971. He denied
that he was connected or associated with the incidents
mentioned in the said grounds, and said that the allegations
made against him therein were false, baseless, motivated and
vague, and that there was absolutely no material upon the
basis of which the order of detention could be made. He
also alleged that some rival parties, who were in league
with the police had falsely involved him in the incidents
referred to in the grounds and got the District Magistrate
to issue the said detention order. These allegations were
denied in the counter-affidavit filed on behalf of ’the
State Government, the assertion therein being that there was
reliable material before the District Magistrate relating to
the illegal and antisocial activities prejudicial to the
maintenance of public order. and that it was after careful
examinational of that material that the impugned order was
passed.
The allegations made by the petitioner were, in our view,
vague and indefinite and not backed by any material or
particulars, and therefore cannot be accepted. Besides, the
detenu’s case was placed before the Advisory Board together
with his representation and other relevant materials, and
according to the report of the Board, there was sufficient
material justifying the In the absence of any definite
material before us, it is not possible to accept the
extremely vague allegations made by the petitioner.
But Mr. Dinghra, who appeared amicus curicae for the peti-
tioner, raised two additional grounds. Neither of them was,
however, raised in the petition but since this was a habeas
corpus petition, and furthermore, made by the petitioner
from jail, lie was allowed to take them though ordinarily he
would not have been permitted to do so as they did not find
any place in the petition.
The two additional rounds were (1) that the rounds fur-
nished to the detenu did not constitute breach of public
order, and therefore, the detention did not fall under
sub-ss. (1) and (3) of s. 3; and (2) that although
the representation made by the detenu was received by
the Government on May 27, 1971,it was not considered and
disposed of till July 1, 1971, that the delay in doing so
was inordinate and was in violation of Art. 22(5) of the
Constitution, rendering the impugned order invalid.
In regard to the first contention, counsel urged that
assuming that the allegations made in the grounds for
detention were true, setting fire to an educational
institution and destroying thereby its,
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records might constitute an offence under the Penal Code,
but did not constitute disturbance or breach of public
order, which alone could warrant a detention order under the
Act. In support of this proposition, counsel referred to
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some of the decisions of this Court.
The detention order, no doubt, mentioned that it was issued
with a view to prevent the detenu acting prejudicially to
the maintenance of public order. The contention raised by
counsel, however, involves the question whether the acts
alleged against the detenu constituted breach of public
order or were such as would be prejudicial to its
maintenance. As to what is meant by the expression, ’public
order’, Hidayatullah, J., (as he then was) in Lohia v.
State(1), said that any contravention of law always affected
order, but before, it could be said to affect ’public
,order’, it must affect the community or the public at
large. He considered three concepts, viz., "law and order",
" public order" and "the security of the state" generally
used in preventive detention measures and suggested that to
appreciate the scope and extent of each of them, one should
imagine three concentric circles, the largest of them
representing "law and order", the next representing "public
order" and the smallest representing "the security of the
state". An act might affect "law and order", but not
"public order", just as an act might affect public order but
not "the security of the state". Therefore, if the
detention order were to use the expression "maintenance of
law and order", that would be widening the scope of the
detaining authority, if the statute concerned confined that
power in relation to acts prejudicial to "the maintenance of
public order". A similar distinction was also drawn in
Pushkar Mukherjee v. West Bengal(2), where Ramaswami, J.,
observed that the expression "public order" in s. 3 (I) of
the Preventive Detention Act, 1950 did not take in every
kind of infraction of law. An assault by one on another in
a house or even in a public street might create disorder but
not public disorder, for the latter was one which affected
the community or the public at large. Therefore, a line of
demarcation must be drawn between serious and aggravated
forms of disorder which affect the community or injure the
public interest and the relatively minor breaches of peace
of a purely local significance which primarily injure
specific individuals and only in a secondary sense public
interest. A mere disturbance of law and order leading to
disorder was, thus, not necessarily sufficient for action
under the Preventive Detention Act but a disturbance which
would affect public order fell within the scope of the Act.
But in Arun Ghosh v. West Bengal(3), it was pointed out that
the true distinction between the areas of "law and order"
and
(1) [1966] 1 S.C.R. 709. (2) [1969] 2 S.C.R. 635.
(3) [1970] 3 S.C.R. 288.
80
"public order" was one of degree and extent of the reach of
the act in question upon society. Acts similar in nature,
but committed in different contexts and circumstances might
cause different reactions; in one case it might affect the
problem of the breach of law and order, and in another the
breach of public order. The analogy resorted to by
Ramaswami, J., of crimes against individuals and crimes
against the public, though useful to a limited extent, would
not always be apt. An assault by one individual upon
another would affect law and order only and cause its
breach. A similar assault by a member of one community upon
a leading individual of another community, though similar in
quality, would differ in potentiality in the sense that it
might cause reverberations which might affect the even tempo
of the life of the community. As the Court pointed out,
"the act by itself is not determinant of its own gravity.
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In its quality it may not differ but in its potentiality it
may be very different". At the same time, the power of
detention having been permitted to the State under the
Constitution as an exceptional power, its exercise had to be
scrutinized with extreme care and could not be used as a
convenient substitute for the normal processes of the
criminal law of the country. (cf. S. K. Saha v.
Commissioner of Police, Calcutta(1).]
These are all cases under the Preventive Detention Act, IV
of 1950, which by s. 3 of it confers power of detention Oil
specified grounds which include acts prejudicial to the
maintenance of public order. The present Act likewise
confers such power with a view to prevent a person from
acting in any manner prejudicial to the security of the
State or the maintenance of public order under its s. 3 (I
). Though the Act does not define the expression "public
order", it does define the expression "acting in any manner
prejudicial to the security of the State or the maintenance
of public order". That expression under the definition
inter alia means "committing mischief within the meaning of
s. 425 of the Indian Penal Code, by fire or any explosive
substance on any property of Government or any local
authority or any corporation owned or controlled by
Government or any University or other educational
institution, or on any public building where the commission
of such mischief disturbs or is likely to disturb public
order. . . ." The definition itself thus draws a distinction
between mischief by fire or explosive substance upon
property of one of the specified categories and such
mischief upon any such properties which disturbs or is
likely to disturb public order. The former, however
reprehensible, would be taken care of by the Penal Code, and
it is only in respect of the latter that the drastic power
of detention without trial conferred by the first subsection
can be validly exercised. But to the extent that the
(1) [1970] 3 S.C.R. 360.
81
expression "public order" is not defined here also,
decisions under Act IV of 1950 delineating the sphere of
"public order" from those of "maintenance of law and order"
and "the security of the State" would still be of utility.
The acts alleged against the petitioner in the grounds for
detention are acts which fall under S. 3 (2) (b), in that,
they constitute mischief by fire and by explosive substance
on property of an educational institution. But the question
is whether these acts disturbed or were likely to disturb
public order; in the words of Hidayatullah, C.J., in Arun
Ghosh v. West Bengal(), disturb the even tempo of the life
of the community of that specified locality. The
distinction drawn by cl. (b) of s. 3 (2) then is between
causing fire, for instance, to a building of an educational
institution simpliciter, and committing mischief of the same
nature but such that it disturbs or is likely to disturb the
even tempo of the community in that particular locality.
The grounds set out two acts alleged against the petitioner.
The first, of December 1, 1970, was that the petitioner and
some others trespassed after midnight into the Headmaster’s
room in the Moynaguri Higher Secondary School and set fire
to books, registers, furniture etc., and then placed a bomb
in the school building thereby endangering the life of the
teaching staff and the students attending the school. The
second, of April 5, 1970, was that the petitioner along with
some others again trespassed into the same school and set
fire to parts of it and then threatened the members of its
staff with death if they offered resistance or disclosed his
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name to any authority.
The target of arson, (assuming the allegations to be true
which we have to assume) was an educational instituting and
particularly the registers and other papers maintained by
it. The object obviously was vandalism, to disrupt its
working by burning its records and to create a scare so that
neither the teaching staff nor the pupils would dare attend
it for prosecution of studies. The parents dare not
henceforth send their wards for fear that the school might
be set on fire while they are in it. The bomb was
manifestly placed in the premises for creating that scare.
It could not have been intended for any other purpose after
the records and furniture had been set on fire. In these
circumstances, the alleged acts did not merely constitute
mischief under s. .425 of the Penal Code, but constituted
such mischief which disturbed or was likely to disturb
public order. The acts in question, no doubt, would be acts
similar to those committed by a person who resorts to arson,
but in the circumstances were acts different in
potentiality, and therefore, fell within the definition in
s. 3 (2) (b) The, first argument urged on behalf of the
petitioner must, consequently, fail.
(1) [1970] 3 S.C.R. 288.
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The second argument related to the time taken by the State
Government in deciding the representation sent by the
petitioner from jail. As aforesaid, it was received by
Government on May 27, 1971, but was considered and rejected
on July 1, 1971, that is to say, after a lapse of 34 days.
Like S. 7(i) or the Preventive Detention Act, IV of 1950,
the present Act also provides by S. 8(i) that the detaining
authority shall provide to the detenu not later than five
days from the date of detention the grounds on which the
detention order his been made and shall afford him the
earliest opportunity of making a representation against the,
order to the State Government. In Jayanarayan Sukul v. West
Bengal() where also a point as to undue delay in the light
of Art. 22(5) of the Constitution and s. 7 of the Preventive
Detention Act, IV of 1950 was raised, Ray, J., speaking for
the Court, laid down four principles. These were
1. that the appropriate authority is bound
to give an opportunity to the detenu to make a
representation and to consider the
representation as early as possible;
2. that such a consideration of the
representation is entirely independent of any
action by the Advisory Board including
consideration by it of the detenu’s
representation;
3. that there should not be any delay in
the matter of consideration. though no hard
and fast rule can be laid down as regards the
time which can be taken in considering such a
representation;
4. that the appropriate government has to
exercise its opinion and judgment on the
representation independent of that of the
Advisory Board.
(cf. Khairul Haque v. West Bengal (2 ), which was applied
in this case and where the distinctive features of the
functions of the Government and the Board and their objects
were discussed.) No doubt Ray, J., it P. 232 of the report,
said that the Government had to come to its decision on the
representation before it sent the detenu’s case to the
Board. But, in that observation, he was not emphasising so
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much the point of time when the Government has to send the
detenu’s case including his, representation to the Board.
tit of the necessity of the Government considering and
deciding the representation independently of and before the
Board’s decision, a point made in Khairul Haque’s case(2).
The delay in Jayanarayan’s case(1) was of the month and
twenty day, and was
(1) [1970] 3 S.C.R. 225.
(2) Writ Petition No. 246 of 1969, decd. on September 10,
1969.
83
in the circumstances of that case held to be inordinate
vitiating. the detention.
The time gap between the receipt by Government of the peti-
tioner’s representation and the date of its decision was of
34 days. The question is whether that gap can be treated as
inordinate delay going to the root of the validity of the
detention or its continuation thereafter. The counter-
affidavit filed on behalf of the Government, no doubt, did
not contain any explanation, But that was because it
answered only the allegations in the petition filed by the
petitioner from ’all, which had in it only general
allegations such as the vagueness of the grounds of
detention mala fides etc., and did not raise specifically
any point on this aspect at all. The point to delay was
for the first time taken in the course of arguments when
the petition first came up for hearing before another of
this Court. At that time, Counsel for the State produced
the records of the case and nothings from the records were
actually read out before the Court in the hearing of the
petitioner’s counsel. That fact is not disputed before us
and so also the fact that those records showed that on June
7, 1971 Government had sent the files in connection with the
petitioner’s case and his representation to the Advisory
Board. As soon as the representation was returned to it,
Government considered it and rejected it but that was before
the Board made its report and sent it to Government. But
counsel urged that this fact may explain the lapse of time
from the date that the records were sent and the date when
they were returned, but not the delay between May 27, 1 971
and June, 7, 1971 during which Government could have arrived
at its decision. That argument has not much force, because
in a given case Government may not be able to reach a proper
conclusion within a short time, especially, in a case where
another authority in this case the District Magistrate, has
passed the questioned order. It might have to make
inquiries is to the situation in the locality, the nature
of and the circumstances in which detention was found
necessary. the previous history of the person detained etc.
Therefore, it is difficult to agree with counsel that
Government should have reached its conclusion during the
said period. No doubt, the, delay in deciding the
representation was of 34 days, but part of it was due to the
fact that the representation and the record remained with
the Board. In these circumstances, it is difficult to say
that there is a just and proper analogy between this case
and that of Khairul Haque (1) or Javanarayan (2) or that
upon such analogy we should reach the same conclusion which
was reached in those cases. As held in Jayanarayan’s
case(2) there can be no hard and fast rules with regard to
the time which Government can or should take,.
(1) W.P. No. 246 of 1969 decd. on Sept. 10, 1969.
(2) [1970] 3 S.C.R. 225.
84
that each case must be decided on its own facts. In the
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circumstances of the present case we are unable to hold that
the delay ’was so inordinate as to affect the validity of
the petitioner’s detention.
The petition fails and Is dismissed.
S.N. Petition dismissed.
85