Full Judgment Text
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PETITIONER:
ALIJAN MIAN AND ANOTHER
Vs.
RESPONDENT:
DISTRICT MAGISTRATE, DHANBAD
DATE OF JUDGMENT13/09/1983
BENCH:
MISRA, R.B. (J)
BENCH:
MISRA, R.B. (J)
SEN, A.P. (J)
VENKATARAMIAH, E.S. (J)
CITATION:
1983 AIR 1130 1983 SCR (3) 939
1983 SCC (4) 301 1983 SCALE (2)280
CITATOR INFO :
R 1984 SC1334 (21)
R 1985 SC 18 (13)
RF 1988 SC 596 (6,7,10,12)
RF 1988 SC1835 (8)
R 1989 SC2027 (20)
R 1989 SC2265 (13)
D 1990 SC 516 (8)
RF 1990 SC1196 (11)
RF 1990 SC1202 (10)
ACT:
National Security Act, 1980 (Act 65 of 1980)-Orders of
detention, passed under sub-section (2) of Section 3 of the
Act, on the ground that "the subject who is in jail and is
likely to be released on bail, if allowed to be at large,
will indulge in activities prejudicial to the maintenance of
public order"-Whether the detention is bad either on the
ground that there was no case made out for apprehension of
breach of public order or that the criminal proceedings
having been initiated, no case of preventive detention
arises or that the case is one of law and order and not a
case of public order or that there being no allegation in
the First Information Report, the detaining authority cannot
invent a new ground to fall under sub-section (2) of section
3 of the Act.
HEADNOTE:
Dismissing the petitions, the Court
^
HELD: 1. The clear words of the detention order show
that the detaining authority was alive to the fact that the
petitioners were in jail custody on the date of passing of
the detention orders, but it was satisfied that if they were
enlarged on bail, of which there was every likelihood, they
would create problems of public order and, therefore, it was
necessary to prevent them from doing so. The position would
have been entirely different if the petitioners were in jail
and had to remain in jail for a pretty long time, in which
situation there could be no apprehension of breach of public
order from them. [944 C-E]
2. Preventive detention is an anticipatory measure and
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does not relate to an offence while the criminal proceedings
are to punish a person for an offence committed by him. They
are not parallel proceedings. In the circumstances the
pendency of a criminal prosecution is no bar to an order of
preventive detention, nor is an order of preventive
detention a bar to prosecution. It is for the detaining
authority to have the subjective satisfaction whether in
such a case there are sufficient materials to place the
person under preventive detention in order to prevent him
from acting in a manner prejudicial to public order or the
like in future. [944 F-H]
K.M. Chokshi v. State of Gujarat, [1979] 4 SCC 14,
applied.
3.1. The difference between ’law and order’ and ’Public
order’ is now well settled. Applying the well settled law
enunciated in Ram Ranjan Chatterjee
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v. The State of West Bengal, [1975]3 SCR 301, to the two
incidents, it is clear that throwing a bomb in a large
gathering where a cultural programme was going on at the
dead of night resulting in the public running helter and
skelter to save their lives makes out a case of ’public
order’ inasmuch as it disturbed the tranquillity and the
even tempo of life of the public. Therefore, if the
detaining authority was satisfied that the two incidents
make out a case of apprehension of breach of public order,
the detention order cannot be faulted. [945 G; 946 E-G]
Ram Ranjan Chaterjee v. State of West Bengal, [1975] 3
S.C.R. 301 followed.
Saya Mala v. Home Secretary, Government of J & K, AIR
1982 SC. 1297, distinguished.
3:2. The two incidents in the instant case were
sufficient for the detaining authority to initiate
proceedings for preventive detention. It is for the
detaining authority to have the subjective satisfaction
about the apprehension of the breach of public order from
the incidents. Even one incident may be sufficient to
satisfy the detaining authority. It all depends upon the
nature of the incident. [947 G-H]
4. The absence of an allegation about the disturbance
of public order in the two First Information Reports will
not affect the position because there was additional
material before the detaining authority which satisfied him
about the apprehension of breach of public order from the
petitioners in case they were enlarged on bail. [948 C-D]
JUDGMENT:
EXTRAORDINARY ORIGINAL JURISDICTION : Writ Petition
(Criminal) Nos. 678 and 679 of 1983.
(Under article 32 of the Constitution of India)
Miss R. Vaigai for the Petitioners.
D. Goburdhan for the Respondent.
The Judgment of the Court was delivered by
MISRA J. These two connected petitions seek to
challenge the orders of detention dated 2nd December, 1982
passed by the District Magistrate, Dhanbad in exercise of
powers conferred by subs. (2) of s. 3 of the National
Security Act, 1980 (No. 65 of 1980) read with notification
No. 3183/C dated 15th of October, 1982 of the Government of
Bihar.
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Alijan Mian, the petitioner in the first petition, is
an employee of the Eastern Coalfields Limited working at
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Khudia Colliery as a dumper driver. Jadunandan Sah, the
petitioner in the second Petition, is also a dumper driver
in Gopi Nathpur Colliery.
The object of the order of detention as indicated in
the impugned order was to prevent the petitioners from
acting in any manner prejudicial to the maintenance of
public order. The grounds of detention supplied to the
petitioners are in identical terms and they are as follows:
"1. That on 15/16.10.82, at about 2.30 A.M. the
subject alongwith Jadunandan Sah and 3 others went
to Khudia Colliery and dragged one Shri Ram Briksh
Chauhan who were witnessing a cultural programme
and started assaulting him in presence of large
gathering who were there to see the cultural
programme. This created great panic and alarm in
the area and adversely affected the public order.
Hearing the cry, Mussafir Chauhan came there but
seeing the subject and his associates engaged in
the assault of his brother started running away
for his life. The subject and his associates, with
an intention to establish criminal supremacy and
to kill him threw two bombs on him, resulting in
grievous injury to Mussafir Singh. This adversely
affected the public order and persons who were
witnessing the cultural programme started running
helter and skelter for their lives. This refers to
Nirsa P.S. Case No. 189 dated 6.10.1982 u/s 307/34
IPC, 3/5 Explosive Sub. Act. Thus the subject
acted in a manner prejudicial to the maintenance
of the public order.
2. That on 8.11.82, at about 11.30 A.M. the subject
alongwith Rambriksh Singh, Jadunandan Mahato and
Chandra Shekhar Singh armed with bombs, gun, etc.
went to the house of Ram Naresh Chauhan in Khudia
Colliery. One of his associates under the
direction and guidance of the subject opened fire
on Shri Chauhan resulting in grievous injury to
him. Opening of gun fire in a thickly populated
residental colony of Khudia Colliery created great
panic and alarm in
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the area and adversely affected public order. This
refers to Nirsa P.S. case No. 208 dated 8.11.82
u/s. 307/34 I.P.C. and s. 27 Arms Act. Thus the
subject acted in a manner prejudicial to the
maintenance of public order. The subject is in
jail and is likely to be released on bail. As such
the detention order was served in jail.
In the circumstances I am satisfied that if he is
allowed to remain at large, he will indulge in
activities prejudicial to the maintenance of public
order.
For prevention of such activities, I consider his
detention necessary. Shri Alijan Mian is informed that
he may make a representation in writing against the
order under which he has been detained. His
representation, if any, may be addressed to the Deputy
Secretary, Home (Spl.) Department, Govt. of Bihar,
Patna and forwarded through the Superintendent of jail,
Dhanbad as early as possible."
The orders of detention were sequal to two incidents of
15/16th October and 8th November, 1982 giving rise to two
criminal cases, Nirsa P.S. Case No. 189 and Nirsa P.S. Case
No. 208 of 1982 respectively. The petitioner Alijan Mian was
arrested on 8th November, 1982 while the petitioner
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Jadunandan Sah was arrested on 12th of November, 1982 in
connection with the aforesaid incidents.
The petitioners made representation against the order
of detention in both the cases and the representations were
on the same pattern. Their stand was that they were active
members of the union of workers of the colliery, viz., the
Colliery Mazdoor Sabha There were other unions in the said
collieries and due to some inter union rivalry a first
information report against them was lodged by persons
belonging to a rival union for an alleged offence under ss.
307/34 IPC and 27A of the Arms Act. In the first information
report it was alleged that on 8th November the informant was
shot in his hand near his house by one Ram Bilas Singh and
that at that time the petitioners were with the said Ram
Bilas Singh. Their intention was to kill him because he did
not participate in the strike in the colliery. In the first
information report regarding the other.
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incident under ss. 307/34 IPC and ss. 3/5 of the Explosive
Substances Act it was alleged that on the night of 15/16th
October 1982 around 2 A.M. the petitioners were beating the
brother of the informant near a school, where some function
was going on. On seeing the petitioners in the company of
others the informant started running but he was chased by
others and a bomb was thrown at his back but he escaped. But
Alijan Mian, the petitioner, threw another bomb and the
informant was injured at his back and fell. The said persons
intended to kill him. The petitioners in both the cases were
later on granted bail but the two criminal cases mentioned
above are still going on.
By an order dated 13th December, 1982 the Government
approved the detentions order and informed the petitioners
by letter dated 30th December, 1982 of the reference of
their representation to the Advisory Board asking them to
appear in person before the Board. The petitioners appeared
in person before the Advisory Board.
The Advisory Board eventually gave an opinion that the
order of detention was justified. On the basis of that
report the Government ordered detention of the petitioners
upto 2nd December, 1983. The petitioners challenged the
order of detention by filing writ petitions in the High
Court but the same were dismissed in limine. The petitioners
instead of filing an appeal against the order of the High
Court rejecting the writ petitions have chosen to file the
present petitions under Art. 32 of the Constitution.
The contentions raised on behalf of the petitioners are
fourfold:
1. The petitioners were in jail when the detention
orders were passed, when there was absolutely no
apprehension of breach of public order from them.
2. The two incidents on the basis of which the
proceedings for preventive detention had been
started were already the subject matter of
criminal proceedings and in the circumstances the
proceedings for preventive detention were
absolutely uncalled for.
3. At the most the two incidents make out a case of
law and order and not a case of public order.
944
4. In the absence of any allegation in the first
information reports of the two incidents about the
apprehension of the breach of public order from
the petitioners the detaining authority could not
invent a ground regarding apprehension of breach
of public order from the petitioners.
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It may be pointed out at the very outset that the
detaining authority was alive to the fact that the
petitioners were in jail custody on the date of the passing
of the detention orders as will be clear from the following
statement in the grounds of detention:
"The subject is in jail and is likely to be
released on bail. In the circumstances I am satisfied
that if he is allowed to remain at large, he will
indulge in activities prejudicial to the maintenance of
public order."
The position would have been entirely different if the
petitioners were in jail and had to remain in jail for a
pretty long time. In such a situation there could be no
apprehension of breach of ’public order’ from the
petitioners. But the detaining authority was satisfied that
if the petitioners were enlarged on bail, of which there was
every likelihood, they would create problems of public
order. It was, therefore, necessary to prevent them from
acting in any manner prejudicial to public order.
As regards the contention that the criminal proceedings
as well as the proceedings for preventive detention could
not go together, it may be pointed out that preventive
detention is an anticipatory measure and does not relate to
an offence while the criminal proceedings are to punish a
person for an offence committed by him. They are not
parallel proceedings. In the circumstances the pendency of a
criminal prosecution is no bar to an order of preventive
detention, nor is an order of preventive detention a bar to
prosecution. It is for the detaining authority to have the
subjective satisfaction whether in such a case there are
sufficient materials to place the person under preventive
detention in order to prevent him from acting in a manner
prejudicial to public order or the like in future.
The learned counsel for the petitioners relied upon
K.M. Chokshi v. State of Gujarat(1) in support of the
contention that in
945
view of the criminal prosecution of the petitioners for the
two incidents, proceedings for the preventive detention were
uncalled for. In that case the Court after an analysis of
the various cases cited observed:
The principles energing from a review of the above
cases may be summarised in the following way: The
ordinary criminal process is not to be circumvented or
short-circuited by ready resort to preventive
detention. But, the possibility of launching a criminal
prosecution is not an absolute bar to an order of
preventive detention. Nor is it correct to say that if
such possibility is not present to the mind of the
detaining authority the order of detention is
necessarily bad. However, the failure of the detaining
authority to consider the possibility of launching a
criminal prosecution may, in the circumstances of a
case, lead to the conclusion that the detaining
authority had not applied its mind to the vital
question whether it was necessary to make an order of
preventive detention."
It is obvious from the above observation in the case cited
on behalf of the petitioners that criminal prosecution is
not an absolute bar to an order of preventive detention. If
the detaining authority has the subjective satisfaction that
it was necessary to detain the petitioners to prevent them
from indulging in activities prejudicial to public order, he
could certainly order detention of the petitioners. In the
instant case the detaining authority clearly stated that
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although the petitioners were in jail, they were likely to
be enlarged on bail and in that case there would be
apprehension from the petitioners regarding the breach of
public order.
This leads us to the third contention that the two
incidents makes out a case of law and order and not a case
of public order. The difference between ’law and order’ and
’public order’ is by now well settled. In Ram Ranjan
Chatterjee v. The State of West Bengal(1) this Court
observed:
"It may be remembered that qualitatively, the acts
which affect ’law and order’ are not different from the
946
acts which affect ’public order’. Indeed, a state of
peace of orderly tranquillity which prevails as a
result of observance of enforcement of internal laws
and regulations by the Government, is a feature common
to the concept of ’law and order’ and ’public order.
Every kind of disorder or contravention of law affects
that orderly tranquillity. The distinction between the
areas of ’law and order’ and ’public order’ as pointed
out by this Court in Arun Ghosh v. State of West
Bengal, "is one of degree and extent of the reach of
the act in question of society." It is the potentiality
of the act to disturb the even tempo of the life of the
community which makes it prejudicial to the maintenance
of public order. If the contravention in its effect is
confined only to a few individuals directly involved as
distinguished from a wide spectrum of the public, it
would raise a problem of law and order only. These
concentric concepts of ’law and order’ and ’public
order’ may have a common ’epicentre’, but it is the
length, magnitude and intensity of the terror-wave
unleashed by a particular eruption of disorder that
helps distinguish it as an act affecting ’public order’
from that concerning ’law and order’."
Applying the well-settled law on the question we have to
determine whether the two incidents make out a case of ’law
and order’ or ’public order’. It was for the detaining
authority to have the subjective satisfaction that there was
apprehension of breach of public order from the petitioners.
In one incident one of the petitioners threw a bomb in a
large gathering where a cultural programme was going on at
the dead of night whereupon the public started running
helter and skelter to save their lives. That will in our
opinion make out a case of ’public order’ in as much as it
disturbed the tranquillity and the even tempo of life of the
public. The second incident was also of the same nature. If
the detaining authority in the circumstances was satisfied
that the two incidents make out a case of apprehension of
breach of public order we find no infirmity in the order.
Reliance was also placed upon Jaya Mala v. Home
Secretary, Govt. of J. and K.(1). In that case also a
criminal case was started on
947
the basis of an incident and there being no suggestion that
the witnesses were not forthcoming in connection with the
alleged infraction of law it was not clear why normal
procedure of investigation, arrest and trial was not found
adequate to thwart the criminal activities of the detenu,
and in these circumstances this Court held that there was
non-application of mind of the detaining authority which
became evident from the frivolity of grounds on which the
detention order was founded. The order of detention was,
therefore, invalid. But this Court did lay down the law in
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the following terms:
"It is not for a moment suggested that power under
the preventive detention law cannot be exercised where
a criminal conduct which could not be easily prevented,
checked or thwarted, would not provide a ground
sufficient for detention under the preventive detention
laws. But it is equally important to bear in mind that
every minor infraction of law cannot be upgraded to the
height of an activity prejudicial to the maintenance of
public order. If every infraction of law having a penal
sanction by itself is a ground for detention danger
looms large that the normal criminal trials and
criminal courts set up for administering justice will
be substituted by detention laws often described as
lawless law."
The facts of that case were distinguishable from the facts
of the present case. In the present case the detaining
authority had the subjective satisfaction that if the
petitioners are allowed to remain at large, they will
indulge in activities prejudicial to the maintenance of
public order.
Now the question arises whether the two incidents were
sufficient for the detaining authority to initiate
proceedings for preventive detention. It is for the
detaining authority to have the subjective satisfaction
about the apprehension of the breach of the public order
from the incidents mentioned above. Even one incident may be
sufficient to satisfy the detaining authority. It all
depends upon the nature of the incident. In the case in hand
the detaining authority was fully satisfied that there was
apprehension of breach of public order from the petitioners
in case they were bailed out, of which there was every
likelihood. This contention in our opinion has no force.
948
This leads us to the last contention that in the
absence of any allegation in the first information report in
the two cases about the disturbance of public order the
detaining authority could not invent a ground regarding the
apprehension from the petitioners about the disturbance of
public order. A counter affidavit has been filed on behalf
of the detaining authority and in paragraph 3 it has been
averred that apart from the first information report in the
two cases there was the supervision note of the Deputy
Superintendent of Police, Dhanbad and the detaining
authority was satisfied on the basis of materials before him
that there was apprehension of breach of public order from
the petitioners. The absence of an allegation about the
disturbance of public order in the two first information
reports will not effect the position because there was
additional material before the detaining authority which
satisfied him about the apprehension of breach of public
order from the petitioners in case they were enlarged on
bail. This contention has, therefore no substance.
For the foregoing discussion we find no force in any of
the contentions and the petitions must fail. They are
accordingly dismissed.
S.R. Petitions dismissed.
949