Full Judgment Text
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PETITIONER:
ARUN GHOSH
Vs.
RESPONDENT:
STATE OF WEST BENGAL
DATE OF JUDGMENT:
02/12/1959
BENCH:
ACT:
Preventive Detention Act (4 of 1950), s. 3(2)-Molestation of
individual women and assaults on other individualy Whether
breach of public order-Validity of detention.
HEADNOTE:
The appellant molested two respectable young ladies
threatened their father’s life and assaulted two other
individuals. He was detained under s. 3(2) of the
Preventive Detention Act, 1950 in order to prevent him from
acting prejudicially to the maintenance of public order.
On the question of the legality of the detention.
HELD : 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 society.
The test is : Does it lead to a disturbance of the even
tempo and current of life of the community so as to amount
to a disturbance of the public order, or, does’ it affect
merely an individual without affecting the tranquillity of
society. [290 H; 291 D]
In the present case, however reprehensible the appellant’s
conduct might be, it did not add up to the situation where
it may be ’said the community at large was being disturbed.
Therefore, it could not be said to amount to an apprehension
of breach of public order, and hence, he was entitled to be
released. [291 G-H]
Dr. Ram Manahar Lohia v. State of Bihar, [19661 1 S.C.R.
709, relied upon.
Pushkar Mukherjee and Ors. v. The State of West Bengal,
[1969] 2 S.C.R. 635 and Shyamal Chakraborty v. Commissioner
of Police, Calcutta & Anr. [19701 1 S.C.R. 762, referred to.
JUDGMENT:
ORIGINAL JURISDICTION : Writ Petition No. 287 of 1969.
Petition under Art. 32 of the Constitution of India for the
writ in the nature of habeas corpus.
Janendra Lal, for the petitioner.
S. P. Mitra, G. S. Chatterjee for Sukumar Basu, for the
respondent.
The Judgement of the Court was delivered by
Hidayatullah, C.J. The petitioner Arun Ghosh has been
detained by the District Magistrate Malda under s. 3(2) of
the, Preventive Detention Act. The order was made on June
2, 1969 and he was arrested the following day. The order
states that it
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was made to prevent him from acting prejudicially to the
maintenance of public order. His representation
was.rejected by the Advisory board and also independently by
the State Government. We have looked into the case, and are
satisfied that there was no undue delay at any stage in
dealing with the various aspects of his detention as laid
down in the Act.
It is, however, contended that the grounds which were fur-
nished to him on June 3, 1969 do not bear upon the
maintenance of public order or of his acting prejudicially
to the maintenance of public order. This is the only point
urged in support of the petition by the learned counsel. In
the affidavit filed in reply the District Magistrate has
summarised the grounds-as ’anti-social activities including
rioting, assault and undue harassment to respectable young
ladies in the public street of Malda town.’ The details of
these activities are to be found in the grounds and may be
summarised as follows
18-5-1966-Teased one Rekha Rani Barua, and when her father
protested confined and assaulted him.
29-3-1968-One Deepak Kumar Ray was wrongfully restrained and
assaulted with lathis and rods.
1-4-1968-Attempt was made to assault Deepak Kumar Ray at the
Malda Sadar Hospital where he was being treated for his
injuries in the previous assault.
2-9-1968-Threatened one Phanindra C. Das that he would
insult his daughter publicly.
26-10-1968-Embraced Uma Das d/o Phanindra C. Das and threw
white powder on her face (Criminal
case started).
7-12-1968-Obscenely teased Smt. Sima Das, sister of Uma Das
and beat her with chappals.
18-12-1968-Smt. Sima Das was again teased.
26-1-1969-Threatened the life of Phanindra C. Das.
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(’); Pushkar
Mukherjee and Others v. State of West Bengal(’) and Shyamal
Chakraborty v. The Commissioner of Police,
(1) [19-66] 1 S.C.R. 709.
(2) [1969]2 S.C.R. 635.
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Calcutta and Another(1). In Dr. Ram Manohar Lohia’s case
this Court pointed out the difference between maintenance of
law and 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 a locality
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
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sort. Its implications are deeper and it affects the even
tempo of life and public order is jeopardized because the
repercussions of the ambrace large sections of the community
and incite them to make further breaches of ’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. Take the case of assault on girls. A guest
at a hotel may kiss or make advances to half a dozen chamber
maids. He may annoy them and also the management but he
does not cause disturbance of public order. He may even
have a fracas with the friends of one of the girls but even
then it would be a case of breach of law and order only.
Take another case of a man who molests women in lonely
places. As a result of his activities girls going to
colleges and schools are in constant danger and fear. Women
going for their ordinary business are afraid of being
waylaid 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 affect 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
(1) [1970] 1 S.C.R. 762.
291
of the act upon the society. The French distinguish law and
order and public order by designating the latter as order
publique. The latter expression has been recognised as
meaning something more, than ordinary maintenance of law and
order. Justice Ramaswami in Writ Petition No. 179 of 1968
drew a line of demarcation between the serious and
aggravated forms of breaches B Of Public order which affect
the community or endanger the public interest at large from
minor breaches of peace which do not affect the public at
large. He drew an analogy between public and private
crimes. The analogy is useful but not to be pushed too far.
A large number of acts directed against persons or indivi-
duals may total up into a breach of public order. In Dr.
Ram Manohar Lohia’s (1) case examples were given by Sarkar,
and Hidayatullah, JJ. They show how similar acts in
different contexts affect differently law and order on the
one hand and public order on the other. 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 failed in
every case on facts. There is no formula by which one case
can be distinguished from another.
In the present case the acts of the petitioner affected the
family of Phanindra C. Das and also two other individuals
who were assaulted. The case is distinguishable from Writ
Petition No. 102 of 1969 where three instances of rioting
armed with lathis, iron rods and acid bulbs etc. were held
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sufficient to disturb the even tempo of public life in that
locality and were treated as disturbance of public order.
On the other hand in Writ Petition No. 179 of 1968 assaults
on four persons A, B, C and D and throwing a cracker into a
police wireless van were not held to add up to the
disturbance of public order. They were treated as separate
acts which affected individuals but did not affect the
community at large.
In the present case all acts of molestation were directed
against the family of Phanindra C. Das and were not directed
against G women in general from the locality. Assaults also
were on individuals. The conduct may be reprehensible but
it does not add up to the situation where it may be said
that the community at large was being disturbed or in other
words there was a breach of public order or likelihood of a
breach of public order. The case falls within the dictum of
Justice Ramaswami and the distinction made in Dr. Ram
Manahar Lohia’s case(1)
The result therefore is that however reprehensible the con-
duct of Arun Ghosh may be, it cannot be said to amount to an
(1) [1966] 1 S.C.R. 709.
292
apprehension of breach of public order for which alone his
detention could be ordered. -Heis entitled to be
released and we order accordingly. He will released
forthwith unless required in some other connection.
V.P.S. Petition allowed.
293