Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6
PETITIONER:
KANU BISWAS
Vs.
RESPONDENT:
STATE OF WEST BENGAL
DATE OF JUDGMENT03/05/1972
BENCH:
KHANNA, HANS RAJ
BENCH:
KHANNA, HANS RAJ
SHELAT, J.M.
CITATION:
1972 AIR 1656 1973 SCR (1) 546
1972 SCC (3) 831
CITATOR INFO :
R 1973 SC 295 (7)
R 1974 SC1214 (3)
RF 1975 SC 953 (4,5)
R 1987 SC 998 (6)
R 1987 SC2332 (12)
R 1990 SC 220 (7)
R 1990 SC1086 (18)
RF 1992 SC 979 (10)
ACT:
Maintenance of Internal Security Act (26 of 1971), s. 3-
Maintenance of public order,’ scope of.
HEADNOTE:
The petitioner and his associates attacked a husband and
wife with open knives in the third class compartment of a
running train and robbed them of valuable property by
putting them in fear of death on one occasion, and on
another occasion, attacked a police party on the platform of
a railway station with bombs. dagger$, knives and iron rods
and exploded bombs with a view to kill the police party.
The petitioner was detained by an order under s. 3 of the
Maintenance of Internal Security Act 1971 with a view to
preventing him from acting in any manner Prejudicial to the
maintenance of public order, and the ’grounds of detention
were that the two incidents created terror and panic among
passengers and disturbed public order.
The, petitioner challenged the order of detention in this
Court.
Dismissing the petition.
HELD : Both the incidents referred to in the order affected
public order and not merely law and order. [550 E-F]
The question whether a man only committed a breach of law
and order or has act-ad in a manner likely to cause
disturbance of the public order, is a question of degree and
the extent of the reach of the act upon the society. The
test to be adopted in determining whether an act affects law
and order or public order 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 ? When two passengers are robbed at the point of
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6
knives while travelling in a third class compartment of a
running train the act affects riot only the passengers who
are deprived of their valuables but also the other
passengers who are watching in fear as helpless spectators.
Likewise, the attack against the police party on the
platform of a railway station by exploding bombs is bound to
create panic and confusion among the passengers at the
railway station. Consequently, there is bound to be terror
and panic amongst the travelling public. Therefore, the
acts in question, in the very nature of things, would
adversely affect the even tempo of life of the community and
cause a general disturbance of public tranquillity. [550 A-
F]
Tapan Kumar Mukherjee and ors. v. State of West Bengal,
A.I.R. 1972 S.C. 840. followed.
Dr. Ram Manohar Lohia v. State of Bihar, [1966] 1 S.C.R.
709, .Arun Ghosh v. State of West Bengal, [1970] 3 S.C.R.
288, Nagendra Nath Mondal v. State of West Bengal, [1972] 1
S.C.C. 498, Nandlal Roy @ Nonda Dulal Roy @ Pagla v. State
of West Bengal, W.P. No. 15 of 1972, decided on March 11,
1972. Sudhir Kumar Saha v. Commissioner of Police Calcutta
and Anr., [1970] 3 S.C.R. 360 and S. K. Kader v. State of
West Bengal, W.P. 35 of 1967 decided on May 2, 1972,
referred to.
547
JUDGMENT:
ORIGINAL JURISDICTION: Writ Petition No. 46 of 1972.
S, K. Bagga, for the, petitioner.
Prodyot Kumar Chakravarty and G. S. Chatterjee, for the
respondent.
The Judgment of the Court was delivered by
Khanna, J. This is a petition through jail under article 32
of the Constitution for issuing a writ of habeas cot-pus by
Kanu Biswas, who has been ordered by the District Magistrate
24Parganas to be detained under section 3 of the Maintenance
of Internal Security Act, 1971 (Act 26 of 1971) "with a view
to preventing him from acting in any manner prejudicial to
the maintenance of public order."
The order of detention was made by the District Magistrate
on November 13, 1971. The petitioner was arrested in
pursuance of the detention order on November 14, 1971 and
was served the same day with the order as well as the
grounds of detention together with vernacular translation
thereof. On November 18,1971 the District Magistrate sent
report to the State Government about the passing of the
detention order along with the grounds of detention
and other necessary particulars. The State Government
considered the matter and approved the detention order on
November 24, 1971. Necessary report was also sent on that
day by the State Government to the Central Government. On
December 13, 1971 the State Government placed the case of
the petitioner before the Advisory Board. In the meanwhile,
on December 12, 1971 the State Government received a
representation of the petitioner. The representation was
considered by the State Government and was rejected on
January 11, 1972. The representation was thereafter
forwarded to the Advisory Board. The Board, after
considering the, material placed before it, including the
petitioner’s representation, and after hearing the
petitioner in person, sent its report to the State
Government on January 14, 1972. Opinion was
expressed, by the Board that there was sufficient cause for
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6
the detention of the petitioner. On February 2, 1972
the State Government confirmed the order for the detention
of the petitioner. Communication about the confirmation of
the order was thereafter sent to the petitioner.
Affidavit of Shri B. Mukhopadhya, District Magistrate of 24-
Parganas, who passed the impugned order, has been filed in
opposition to the Petition. Mr. Bagga has argued the case
amicus curiae on behalf of the petitioner, while the State
has been represented by Mr. Chakravarti.
548
It has been argued on behalf of the petitioner that the
particular acts on account of which the order for the
detention of the petitioner has been made were not germane
to the maintenance of public order and, as such, the order
for his detention could not be validly made for preventing
him from acting in a manner prejudicial to the maintenance
of public order. In this respect we find that according to
the grounds of detention, the order for the petitioner s
detention was made on the ground that he had been acting in
a manner prejudicial to the maintenance of public order as
evidenced by the particulars given below; taken separately
or collectively
"That on 26-9-71 at about 18.30 hours while Baidyanath
Bandopadhya of Champapukur, P.S. Basirhat, District 24-
Parganas along with his wife were travelling ill a 3rd class
compartment of Up Basirhat local train from Barasat, You
along with your associates attacked him and his wife with
open knives between Champapukur R/s and Basirhat R/S and
robbed them of Wrist Watch, Gold Ornaments, Cash valued at
Rs. 725//- by putting them in fear of death. By your such
activities you created terror and panic among the travelling
passengers and public order was disturbed thereby.
On 4-11-71. at about 21.40 hours, you and your associates
armed with bombs, daggers, knives and iron rods etc.
attacked police on the platform at Beliagliata railway
station with a view to take their lives and to intimidate
the public you charged two bombs which exploded with
terrible sound endangering the on-duty police.
Your such action was so violent that it created panic and
confusion among the passengers there then. YOU have thus
action in a manner prejudicial to the maintenance of public
order."
It would appear from the above that the petitioner and his
associates attacked a husband and wife with open knives in
the, third class compartment of a running train and robbed
them of valuable property, including wrist watch, gold
ornaments and cash by putting them in fear of death. The
grounds of detention further show that the above act of the
petitioner and his associates created terror and panic among
the travelling passengers and thereby disturbed public
order. The second incident which took place at 9.40 p.m. on
November 4, 1971 related to the attack by the petitioner and
his associates on a police party on the platform of
Belighata railway station with a view to kill them. The
petitioner and his associates are stated to have been then
armed with bombs. daggers, knives and iron rods and they
exploded two bombs
549
with terrible sound. It is further stated that the above
act of the petitioner and his associates created panic and
confusion among the passengers and thus disturbed public
order. Each one of the above two incidents of September 26,
1971 and November 4, 1971, in our opinion, affected public
order and not merely law and order.
The distinction between the concept of public order and that
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6
of law and order has been adverted to by this Court in a
number of cases. In the case of Dr. Ram Manohar Lohia v.
State of Bihar(1), Hidayatullah J. (as he then was) said
that any contravention of law always affected order, but
before it could be said to affect public order, it must
affect the community at large. He considered three
concepts, law and order, public order and the security of
the State, and observed that to appreciate the scope and
extent of each one of them, one should imagine the
concentric circles. The largest of them represented law and
order, next represented public order and the smallest
represented the security order, just asan act might affect
public order but not the security of the State.In the
subsequent case of Arun Ghosh v. State of West Bengal 2
the Court dealt with the matter in the following words:
"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 tranquility. It is the degree of disturbance and its
effect upon the life of the community in a locality which
determines whether thedisturbance 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
repercussions of the act embrace 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 poten-
tiality it may be very different."
(1)[1966] 1 S.C.R. 709.
(2) [1970] 3 S.C.R. 288
550
The question where 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, according to the dictum
laid down in the above case is a question of degree and the
extent of the reach of the act upon the society. Public
order is what the French call "order publique" and is
something more than ordinary maintenance of law and order.
The test to be adopted in determining whether an act affects
law and order or public order, as laid down in the above
,,case, 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 tranquility of the society undisturbed ?
The principle enunciated above has been followed by this
Court in the case of Nagendra Nath Mondal V. State of West
Bengal(1) and Nandlal Roy Ca, Nonda Dulal Roy @ Pagla v.
State of West Bengal (WP No. 15 of 1972, decided on March
II, 1972.) In the light of what has been observed above, we
have no doubt that each one of the incidents of September
26, 1971 and November 4, 1971 was prejudicial to the
maintenance of public order. When two passengers are robbed
at the point of knife while travelling in a third class
compartment of a running train, the act of the miscreants
affects not only the passengers who are deprived ,of their
valuables but also the other passengers who watch tile whole
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6
thing in fear as helpless spectators. There is bound to be-
consequent terror and panic amongst the travelling public.
Like wise, attack directed against a police party on the
platform of railway station by exploring bombs is bound to
create panic an. confusion among the passengers at the
railway station. The act’ in question in the very nature of
things would adversely affect the even tempo of life of the
community and cause a general disturbance of public
tranquility.
Reference has been made on behalf of the petitioner to the
,case of Sudhir Kumar Saha v. Commissioner of Police,
Calcutta & A nr. (2). The petitioner in that case along
with others committed various acts on three occasions. On
the first occasion lie attached the people of a locality
with a knife and by hurling bottles at them.’ On the other
two.occasions he attacked the people of another locality by
hurling bombs at them.. It was held that the incidents were
not interlinked and could not have prejudiced tile-
maintenance of public order.
As against the above solitary decision, Mr. Chakravarti on
behalf of the respondent-State has referred to the principle
laid down in the case of Arun Ghosh v. State of West Bengal
(supra) as well as in the case of Nagendra Nath Mondal V.
State of West ,Bengal (supra). Apart from those two cases,
we find that in the
(2) [1970] 3 S.C.R. 360.
(1) [1972] I S.C.R. 498.
551
case of Tapan Ku-mat’ Mukherjee and Ors. v. State of West
Bengal(1) the allegation against the detenu was that he
along with other associates committed robbery in respect of
a fat, and a watch at the point of dagger in a running
train, and this created disturbance of public order.
Contention was raised that the act of the detenu and his
associates related only to law and order and not to public
order. This contention was repelled and it was observed
that the innocent passengers would be terror stricken by the
acts of the detenu and his associates. Another incident
which was referred to in that case related to throwing of
bombs on a shop. The bombs exploded and as a result of the
panic so caused in the locality, all the shops and houses
around the place were closed. The above round was held by
this Court to be germane to the disturbance of public order.
In case of Nandlal Roy (supra), the ground of detention
recited that the detenu and his associates while committing
theft of rice from a wagon threw bombs upon the members of
the Railway Protection Force. One member of the Railway
Protection Force was injured. The explosion of the bombs
was stated to have created panic in the station, area and
the adjoining locality. It was held that the activity of
the petitioner created not merely a question of the
maintenance of law and order but created a disturbance which
would be comprehended by the, expression " order publique".
The detention order was consequently upheld.
In S. K. Kedar v. State of West Bengal (WP No. 35 of 1972
decided on May 2, 1972) the allegation against the detenu
was that he and his associates while removing railway
material charged bombs and ballast upon R.P.F. party as a
consequence of which the members of R.P.F. party fired in
self-defence. The activity of the petitioner was considered
to be prejudicial to the maintenance of public order and the
detention order was upheld.
The facts of the present case are much more akin to those of
Tapan Kumar Mukherjee and Ors. v. State of West Bengal
(supra). The past activities of the petitioner as revealed
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6
in the grounds of detention, in our opinion, showed a
propensity to disturb public order. The authority
concerned, in the circumstances, could have validly made the
order for the detention of the petitioner to prevent him
from acting in a manner prejudicial to the maintenance of
public order.
The petition consequently fails and is dismissed.
V.P.S.
Petition dismissed.
(1) A I.R. 1972 S. C. 840.
552