Full Judgment Text
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PETITIONER:
VIJAY NARAIN SINGH
Vs.
RESPONDENT:
STATE OF BIHAR & ORS.
DATE OF JUDGMENT12/04/1984
BENCH:
REDDY, O. CHINNAPPA (J)
BENCH:
REDDY, O. CHINNAPPA (J)
SEN, A.P. (J)
VENKATARAMIAH, E.S. (J)
CITATION:
1984 AIR 1334 1984 SCR (3) 435
1984 SCC (3) 14 1984 SCALE (1)736
CITATOR INFO :
D 1986 SC2173 (12,13,14,16)
RF 1986 SC2177 (44)
R 1988 SC1256 (12)
R 1989 SC 364 (8,9,11)
RF 1989 SC2265 (17)
F 1990 SC2069 (5)
RF 1991 SC1640 (11,12)
ACT:
Bihar Control of Crimes Act 1981-Section 12 read with
section 2 (d). For preventive detention under section 12
authorities must be satisfied that the person to be detained
is anti-social element as defined in section 1(d).
Bihar Control of Crimes Act, 1981-Section 2 (d)-
Definition of ’antisocial element’-Interpretation of
expression ’habitually’ in sub-clause (i), (ii) and (iv)-
Meaning of.
Interpretation of statutes-Rule of-Law of preventive
detention must be strictly construed.
Practice-When person enlarged on bail by competent
criminal court, great caution should be exercised in
scrutinising validity of preventive detention order which is
based on the very same charge which is to be tried by
criminal court.
Words and Phrases-Expression ‘habitually’-Meaning of.
HEADNOTE:
The petitioner, who was facing a Sessions trial for
offences under section 302 read with sections 120B, 386 and
511 of the Indian Penal Code, was allowed to be enlarged on
bail by the High Court. But before the petitioner was
released, the District Magistrate passed an order on August
16, 1983 under section 12 (2) of the Bihar Control of Crimes
Act 1981 for detention of the petitioner, in order to
prevent him from acting in any manner prejudicial to the
maintenance of public order. The grounds of detention
supplied to the petitioner related to the incidents which
took place in 1975 and 1982 and also the incident which gave
rise to the above-mentioned trial. The petitioner challenged
the order of detention before the High Court under Article
226 of the Constitution. The High Court dismissed the
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petition on a technical ground. Hence this petition under
Article 32 of the Constitution. The petitioner contended:
(1) that the impugned order of detention was void under
Article 22 (5) of the Constitution as one of the grounds was
too remote and not proximate in point of time and had
therefore no rational connection for the subjective
satisfaction of the District Magistrate under section 12 (2)
of the Act, and (2) that the impugned order of detention was
male fide and consti-
436
tuted a flagrant abuse of power on the part of the District
Magistrate as it was meant to subvert judicial process by
trying to circumvent the order passed by the High Court
enlarging the petitioner on bail.
Allowing the petition by majority,
^
HELD: (Per Venkataramiah and Chinnappa Reddy, JJ.)
The law of preventive detention is a hard law and
therefore it should be strictly construed. Care should be
taken that the liberty of a person is not jeopardised unless
his case falls squarely within the four corners of the
relevant law. The law of preventive detention should not be
used merely to clip the wings of an accused who is involved
in a criminal prosecution. It is not intended for the
purpose of keeping a man under detention when under ordinary
criminal law it may not be possible to resist the issue of
orders of bail, unless the material available is such as
would satisfy the requirements of the legal provisions
authorising such detention. When a person is enlarged on
bail by a competent criminal court, great caution should be
exercised in scrutinising the validity of an order of
preventive detention which is based on the very same charge
which is to be tried by the criminal court. [459C-D]
Section 12 of the Bihar Control of Crimes Act, 1981
makes provision for the detention of an anti-social element.
The detaining authority should, therefore, be satisfied that
the person against whom an order is made under section 12 of
the Act is an anti-social element as defined in section 2
(d) of the Act. The two sub-clauses of section 2 (d) which
are relevant for the purposes of this case are sub-clause
(i) and sub-clause (iv). Under sub-clause (i) a person who
either by himself or as a member of or leader of a gang
habitually commits or attempts to commit or abets the
commission of offences punishable under Chapter XVI dealing
with offences affecting the human body or Chapter XVII
dealing with offences against property, of the Indian Penal
Code is considered to be an antisocial element. Under sub-
clause (iv) a person who has been habitually passing
indecent remarks to, or teasing women or girls, is an anti-
social element. In both these sub-clauses, the word
’habitually’ is used. The expression ’habitually’ means
’repeatedly’ or ’persistently’. It implies a thread of
continuity stringing together similar repetitive acts.
Repeated, persistent and similar, but not isolated,
individual and dissimilar acts are necessary to justify an
inference of habit. It connotes frequent commission of acts
or omissions of the same kind referred to in each of the
said subclauses or an aggregate of similar acts or
omissions. Whereas under sub-clause (iii) or sub-clause (v)
of section 2 (d) a single act or omission referred to in
them may be enough to treat the person concerned as an
’anti-social element’, in the case of sub-clause (i), sub-
clause (ii) or sub-clause (iv), there should be a repetition
of acts or omissions of the same kind referred to in sub-
clause (i), sub-clause (ii) or in sub-clause (iv) by the
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person concerned to treat him as an anti-social element’.
This appears to be clear from the use of the word
’habitually’ separately in sub-clause (i), sub-clause (ii)
and sub-clause (iv) of section 2 (d) and not in sub-clauses
(iii) and (v) of section 2 (d). If the acts or omissions in
question are not of the same kind or even if they are of
the same kind when
437
they are committed with a long interval of time between them
they cannot be treated as habitual ones. [457B-458C]
In the present case the District Magistrate has relied
on three incidents to hold that the petitioner is an anti-
social element. They are-(o) that on April 15, 1975 the
petitioner alongwith his associates had gone to the shop of
a cloth dealer of Bhagalpur Town armed with an unlicensed
pistol and had forcibly demanded subscription at the point
of gun and (ii) that on June 17/18, 1982 the petitioner was
found teasing and misbehaving with females returning from a
cinema hall. The third ground is the criminal case now
pending against the petitioner in the Sessions Court. The
first incident is of the year 1975. It is not stated how the
criminal case filed on the basis of that charge ended. The
next incident relates to the year 1982. The detaining
authority does not state how the criminal case filed in that
connection terminated. If they have both ended in favour of
the petitioner finding him clearly not guilty, they cannot
certainly constitute acts or omissions habitually committed
by the petitioner Moreover, the said two incidents are of
different kinds altogether. Whereas the first one may fall
under sub-clause (i) of section 2 (d) of the Act, the second
one falls under sub-clause (iv) thereof. They are, even if
true, not repetitions of acts or omissions of the same kind.
The third ground which is based on the pending Sessions case
is no doubt of the nature of acts or omissions referred to
in sub-clause (i) of section 2 (d). but the interval between
the first ground which falls under this sub-clause and this
one is nearly eight years and cannot, therefore, make the
petitioner a habitual offender of the type falling under
sub-clause (i) of section 2 (d). Therefore, it is not
possible to hold that the petitioner can be called an ’anti-
social element’ as defined by section 2 (d) of the Act. The
order of detention impugned in this case therefore, could
not have been passed under section 12 (2) of the Act which
authorises the detention of anti-social elements only.
[458D-459D]
(Per Chinnappa Reddy J. concurring)
I do not agree with the view of my brother Sen J. that
’those who are responsible for the national security or for
the maintenance of public order must be the sole judges of
what the national security or public order requires.’ It is
too perilous a proposition. Our Constitution does not give a
carta blanche to any organ of the State to be the sole
arbiter in such matters. Preventive detention is considered
so raeacherous and such an anathema to civilized thought and
democratic polity that safeguards against dndue exercise of
the power to detain without trial, have been built into the
Constitution itself and incorporated as Fundamental Rights.
There are two sentinels, one at either end. The Legislature
is required to make the law circumscribing the limits within
which persons may be preventively detained and providing for
the safeguards prescribed by the Constitution and the courts
are required to examine, when demanded; whether there has
been any excessive detention, that is, whether the limits
set by the Constitution and the legislature have been
transgressed. Preventive detention is not beyond judicial
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scrutiny. While adequacy or sufficiency may not be a ground
of challenge, relevancy and proximity are
438
tertainly grounds of challenge. Nor is it for the court to
put itself in the position of the detaining authority and to
satisfy itself that the untested facts reveal a path of
crime. [440E-441B]
I am of the view that the decision in Kamalkar Prasad
Chaturvedi’s case and the host of earlier cases are not
distinguishable. This Court has always taken the view that
remoteness in point of time makes a ground of detention
irrelevant. [441D]
Shibban Lal Saksena v. State of Uttar Pradesh & Ors.,
[1954] SCR 418 and Kamlakar Prasad Chaturvedi v. State of
Madhya Pradesh & Anr., [1983]4 SCC 433 referred to
(Per Sen J. dissenting)
On the facts set out in the grounds of detention the
petitioner answers the description of an anti-social element
as defined in s. 2 (d) of the Act. [444F]
The word ’habitually’ connotes some degree of frequency
and continuity. ’Habitually’ requires a continuance and
permanence of some tendency, something that was developed
into a propensity, that is, present from day-to-day. A
person is a habitual criminal who by force of habit or
inward disposition, inherent or latent in him, has grown
accustomed to lead a life of crime. It is the force of habit
inherent or latent in an individual with a criminal
instinct, with a criminal disposition of mind, that makes
him dangerous to the society in general. In simple language
the word ’habitually’ means ’by force of habit’. [444G-445E]
Stroud’s Judicial Dictionary’ 4th end., vol. 2, p. 1204
and Shorter Oxford English Dictionary, vol. 1. p. 910,
referred to.
It is not necessary that because of the word
’habitually’ in sub-cl. (i), sub-cl. (ii) or sub-cl. (iv),
there should be a repetition of same class of acts or
omissions referred to in sub-cl. (i), sub-cl. (ii) or in
sub-cl. (iv) by the person concerned before he can be
treated to be an anti-social element and detained by the
District Magistrate under s. 12 (2) of the Act. It is not
required that the nature or character of the anti-social
acts should be the same or similar. There may be commission
or attempt to commit or abetment of diverse nature of facts
constituting offences under Chapter XVI or Chapter XVII of
the Indian Penal Code. What has to be ’repetitive’ are the
anti-social acts. [447B-C]
The operation of s. 12 (2) of the Act cannot be
confined against habitual criminals who have a certain
number of prior convictions for offences of the ’character’
specified. The definition of ’anti-social element’ in s. 2
(d) of the Act nowhere requires that there should be a
number of prior convictions of a person in respect of
offences of a particular type.
439
It is not correct to say that merely because there was
an acquittal of a person, the detaining authority cannot
take the act complained of leading to his trial into
consideration. It may be that the trial of a dangerous
person may end in an acquittal for paucity of evidence due
to unwillingness of witnesses to come forward and depose
against him out of fright. If a person with criminal
tendencies consistently or persistently or repeatedly
commits or attempts to commit or abets the commission of
offences under Chapter XVI dealing with offences affecting
human body or Chapter XVI dealing with offences against
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property of the Indian Penal Code, there is no reason why he
should not be considered to be an ’antisocial element’.
[446G-H]
Those who are responsible for the national security or
for the maintenance of public order must be the sole judges
of what the national security or public order requires.
Sufficiency of the grounds is not for the court but for the
detaining authority for the formation of his subjective
satisfaction that the detention of a person is necessary
with a view to preventing him from acting in any manner
prejudicial to the maintenance of public order. The
sufficiency of the grounds upon which the subjective
satisfaction of the detaining authority is based, provided
they have a rational probative value and are not extraneous
to the scope or purpose of the legislative provision, cannot
be challenged in the court accept on the ground of mala
fides. It is not for the court to examine whether the
grounds upon which the detention order is based are good or
bad nor can it attempt to assess in what manner and to what
extent each of the grounds operated on the mind of the
appropriate authority and contributed to the creation of the
satisfaction on the basis of which the detention order was
based. [447D-449E]
Keshov Talpade v. The King-Emperor, [1943] FCR 88,
referred to
Shibban Lal Saksena v. State of Uttar Pradesh & Ors.,
[1954] SCR 318 and Kamlakar Prasad Chaturvedi v. State of
Madhya Pradesh & Anr., [1983] 4 SCC 443, distinguished
The past conduct or the antecedent history of a person
can properly be taken into account in making order of
detention. It is usually from prior events showing
tendencies or inclinations of a man that an inference can be
drawn whether he is likely, in the future, to act in a
manner prejudicial to the maintenance of public order.
[451B]
Merely because there is pending prosecution and the
accused is in jail, that is no impediment for his detention,
if the detaining authority is satisfied that his being
enlarged on bail would be prejudicial to the maintenance of
public order. [451D]
Fitrat Raza Khan v. State of U.P. & Ors., [1982] 2 SCC
449, Alijan Mian v. District Magistrate, Dhanbad & Ors.,
[1983] 3 SCC 301 and Raisuddin Babu Tamchi v. State of U. P.
JUDGMENT:
440
(Per Sen & Chinnappa Reddy, JJ.)
It has always been the view of this Court that the
detention of individuals without trial for any length of
time, however short, is wholly inconsistent with the basic
ideas of our Government and the gravity of the evil to the
community resulting from anti-social activities can never
furnish an adequate reason for invading the personal liberty
of the citizen except in accordance with the procedure
established by law. [441C]
&
ORIGINAL JURISDICTION Writ Petition (Criminal) No. 47
of 1984.
(Under article 32 of the Constitution of India)
R.K.Garg and U.S. Parsad for the Appellant.
S.N. Jha for the Respondent.
The following Judgements were delivered
CHINNAPPA REDDY, J. I entirely agree with my brother
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Venkataramiah, J. both on the question of interpretation of
the provisions of the Bihar Control of Crimes Act, 1981 and
on the question of the effect of the order of grant of bail
in the criminal proceeding arising out of the incident
constituting one of the grounds of detention. It is really
unnecessary for me to add anything to what has been said by
Venkataramish, J., but my brother Sen, J. has taken a
different view and out of respect to him, 1 propose to add a
few lines. I am unable to agree with my brother Sen, J. On
several of the view expressed by him in his dissent. In
particular, I do not agree with the view that ‘those who are
responsible for the national security or for the maintenance
of public order must be the sole judges of what the national
security or public order requires.’ It is too perilous a
proposition. Our Constitution does not give a carta blanche
to any organ of the State to be the sole arbiter in such
matters. Preventive detention is considered so treacherous
and such an anathema to civilized thought and democratic
polity that safeguards against undue exercise of the power
to detain without trial, have been built into the
Constitution itself and incorporated as Fundamental Rights.
There are two sentinels, one at either end. The legislature
is required to make the law circumscribing the limits within
which persons may be preventively detained and providing for
the safeguards prescribed by the Constitution and the courts
are required to examine, when demanded, whether there has
been any excessive detention, that is, whether the limits
set by the Constitution and the legislature have been
transgressed. Preventive detention is not be-
441
yond judicial scrutiny. while adequacy or sufficiency may
not be a ground of challenge, relevancy and proximity are
certainly grounds of challenge. Nor is it for the court to
put itself in the position of the detaining authority and to
satisfy itself that the untested facts reveal a path of
crime. I agree with my brother Sen, J. when he says, "It has
always been the view of this Court that the detention of
individuals without trials for any length of time, however,
short, is wholly inconsistent with the basic ideas of our
Government and the gravity of the evil to the community
resulting from anti-social activities can never furnish an
adequate reason for invading the personal liberty of the
citizen except in accordance with the procedure established
by law"
I am of the view that the decision in Kamlakar Prasad
Chaturvedi’s case and the host of earlier cases are not
distinguishable. This Court has always taken the view that
remoteness in point of time makes a ground of detention
irrelevant. In Fitrat Raza Khanis case, the two incidents
were not separated by any great length of time. On the other
hand, they were bound by a strong bond of inflammable
communal violence.
I agree with all that has been said by my brother
Venkataramiah, J. and concur with him and direct the detenu
to be set at liberty forthwith.
SEN, J. I have had the benefit of reading the opinion
prepared by my learned brother Venkataramiah, J. and it is
my misfortune that I cannot subscribe to the views expressed
by my learned brethren. I would like to give my reasons for
the dissent.
Although the petitioner claims to be a student leader
and has taken his degree in Master of Arts in Sociology in
the year 1982 and at present is a student of Law in the
Bhagalpur Law College, and asserts that at one time, in the
year 1980-81, he was elected as the President of the Post-
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Graduate Department of the Bhagalpur University and also
selected as a Senator, the facts emerging from the grounds
of detention clearly show that he has taken recourse to a
life of crime. The petitioner applies for a writ of habeas
corpus for quashing an order of detention dated August
16,1983
442
passed by the District Magistrate, Bhagalpur on being
satisfied that his detention was necessary with a view to
preventing him ’from acting in any manner prejudicial to the
maintenance of public order’. The facts have been set out in
the majority opinion and all that is necessary is to mention
the horrendous incident which is the direct and proximate
cause of the impugned order of detention.
It appears that there was a gruesome murder of two
young sons of Kashinath Bajoria, owner of Bajoria petrol
pump of Bhagalpur, on April 20, 1983. In the course of
investigation by the police it transpired that they were
kidnapped from the petrol pump on the earlier day i.e. on
April 19, 1983 and the petitioner Vijay Narain Singh
demanded a ransom of Rs. 50,000 from the father of the
victims. The demand for ransom having not been fulfilled,
the two boys were done to death brutally and their dead
bodies were thrown at a place near Mount Assis School and
Zila School and were discovered the next morning. On the
basis of first information report a case was registered at
Bhagalpur Kotwali (Police Case No. 281 dated April 20, 1983)
under ss. 364, 302 and 201, all read with s. 34 and s. 120B
of the Indian Penal Code, 1860 against the petitioner Vijay
Narain Singh, his brother Dhanonjoy Singh, one Bimlesh
Mishra and two unknown accused. The petitioner along with
his co-accused has been committed to the Court of Sessions
to stand his trial in Sessions Case No. 348 of 1983 and
charges have been framed under s. 302 read with s. 34/120B,
386 and 511 of the Indian Penal Code and the case was set
down for evidence on February 27, 1984 A learned Single
Judge of the Patna High Court by his order dated August 9,
1983 appears to have directed that the petitioner be
enlarged on bail of Rs. 10,000 with two sureties of the like
amount to the satisfaction of the Chief Judicial Magistrate,
Bhagalpur. The District Magistrate, Bhagalpur on being
satisfied that his detention was necessary with a view to
preventing him from acting in any manner prejudicial to the
maintenance of public order, passed the impugned order of
detention on August 16, 1983 before the petitioner could be
released on bail But the petitioner moved a petition in the
Patna High Court for grant of a writ of habeas corpus while
he was still in jail challenging the impugned order of
detention. When the matter came up for hearing before the
High Court on October 5, 1983, the learned Judges adverted
to the counter-affidavit filed on behalf of the State that
the impugned order of detention was prepared in advance for
service on the petitioner when he comes out of jail on the
strength of the bail
443
order issued by the High Court but by mistake the three
copies of the order instead of being sent to the District
Magistrate’s office for service were wrongly delivered at
the Central Jail, Bhagalpur. The learned Judges accordingly
by their order of even date dismissed the writ petition
holding that they were satisfied that the petitioner was not
in detention under the impugned detention order. They
however observed that if and when the petitioner was served
a copy of the detention order and placed under detention in
prison, he could file a fresh petition for a writ of habeas
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corpus. In stead of moving the High Court, the petitioner
has filed this petition under Art. 32 of the Constitution
before this Court. The order of detention is in two parts,
the first of which lays a factual basis for making the order
on the ground that the petitioner is an anti-social element.
The second part of the impugned order is styled as grounds.
But it would be seen that the grounds mentioned therein are
one and the same viz. his detention was necessary with a
view to preventing him ’from acting in any manner
prejudicial to the maintenance of public order’.
At the hearing, learned counsel for the petitioner
advanced no submission that the petitioner was not an ’anti-
social element’ within the meaning of s. 12 (2) of the Bihar
Control of Crimes Act, 1981 but rested himself content by
advancing a twofold submission, namely: (1) The impugned
order of detention passed by the District Magistrate,
Bhagalpur under s. 12(2) of the Act must be held to be void
under Art. 22(5) of the Constitution as one of the grounds
was too remote and not proximate in point of time and had
therefore no rational connection for the subjective
satisfaction of the District Magistrate s. 12(2) of the Act.
He relied upon the principles laid down by this Court in
Shibban Lal Saksena v. State of Uttar Pradesh & Ors. (1)
followed in serveal subsequent cases, and particularly on
the majority decision in the recent case of Kamlakar Prasad
Chaturvedi v. State of Madhya Pradesh & Anr(2 And The
impugned order of detention was mala fide and constitutes a
flagrant abuse of power on the part of the District
Magistrate as it is meant to subvert the judicial process by
trying to circumvent the order passed by the High Court
enlarging the petitioner on bail. There is, in my opinion,
no substance in any of these contentions but before. I deal
with them I must touch upon the question raised in the
majority opinion.
444
Inasmuch as the District Magistrate has chosen to take
recourse to s. 12(2) of the Act which is designed to make
special provisions for control and suppression of anti-
social elements with a view to maintenance of public order,
the question at once arises : Whether the petitioner answers
the description of an ’antisocial element’ as defined in s.
2(d) of the Act. ’Anti-social element’ as defined in s. 2(d)
means-
2(d) Anti-social element" means a person who is-
(i) either by himself or as a member of or leader of a
gang, habitually commits, or attempts to commit or
abets the commission of offences, punishable under
Chapter XVI or Chapter XVII of the Indian Penal
Code; or
(ii) habitually or abets the commission of offences
under the Suppression of Immoral Traffic in women
& Girls Act, 1956; or
(iii) who by words or otherwise promotes or attempts to
promote on grounds of religion, race, language,
caste or community or any other grounds
whatsoever, feelings of enmity or hatred between
different religions, racial or language groups of
castes or communities; or
(iv) has been found habitually passing indecent remarks
to or teasing women or girls; or
(v) who has been convicted of an offence under ss 25,
26, 27, 28 or 29 of the Arms Act, 1959."
There is no reasonable doubt that on the facts set out
in the grounds of detention the petitioner answers the
description of an anti-social element; but the suggestion in
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that he is not to be treated as one under s. 12(2) of the
Act because the definition of ’anti-social element’ in s.
2(d) of the Act is too narrow to include it. The word
’habitually’ connotes some degree of frequency and
continuity. ’Habitually’ requires a continuance and
permanence of some tendency, something that has developed
into a propensity, that is, present from day-to-day;
Stroud’s Judicial Dictionary, 4th edn., vol. 2, p. 1204.
My learned brother Venkataramiah, J. is inclined to
give a restricted meaning to the word ’habitually’ as
denoting ’repetitive’
445
and he is of the view that no order of detention under s.
12(2) of the Act could be made on the basis of a ’single
instance’, as a single act cannot be said to be forming the
habit of the person. That is to say, the act complained of
must be repeated more than once and be inherent in his
nature Further, he is inclined to think that section under
s. 12(2) of the Act can only be taken in resect of persons
against whom there are verdicts of guilt after the
conclusion of trials. According to him, merely on the basis
of institution of criminal cases a person cannot be labelled
as an anti-social element. I find considerable difficulty in
subscribing to either of his views.
According to its ordinary meaning, the word ’habitual’
as given in Shorter Oxford English Dictionary, vol. 1, p.
910 is :
"A. adj (1) Belonging to the habit or inward
disposition, inherent or latent in the mental
constitution;
(2) of the nature of a habit; fixed by habit;
constantly repeated, customary.
B. A habitual criminal, drunkard, etc."
A person is a habitual criminal who by force of habit
or inward disposition, inherent or latent in him, has grown
accustomed to lead a life of crime. It is the force of habit
inherent or latent in an individual with a criminal
instinct, with a criminal disposition of mind, that makes
him dangerous to the society in general. In strengthen
language the word ’habitually’ means ’by force of habit’.
The Act appears to be based on Prevention of Crime Act 1908
(c-59). By Prevention of Crime Act, as amended by the
Indictments Act, 1915, a person after three previous
convictions, after attaining sixteen years of age could,
with the consent of the Director of Public Prosecution in
certain cases, be charged with being a habitual criminal
and, if the charge was established, he could, in addition to
a punishment of penal servitude, in respect of crime for
which he has been so convicted, receive a further sentence
of not less than five years or more than 10 years, called a
sentence of preventive detention. Upon this question of a
man’s leading persistently a dishonest or criminal life,
where there has been a considerable lapse of time between a
man’s last conviction and the commission of the offence
which forms the subject of the primary indictment at the
trial, notice containing particulars must have been given
and proved of the facts upon which the prosecution relied
for saying that the offender is leading such a life.
446
If, on the other hand, the time between a man’s discharge
from prison and the commission of the next offence is a very
snort one, it may be open to the jury to find that he is
leading persistently a dishonest or criminal life by reason
of the mere fact that he has again committed an offence so
soon after his discharge from a previous one, provided the
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notice has state this as a ground. This essentially is a
question of fact. The scheme under the English Act is
entirely different where a person has to be charged at the
trial of being a habitual criminal. Therefore, the
considerations which govern the matter do not arise in case
of preventive detention under s. 12(2) of the Act.
I find it difficult to share the view that whereas
under sub-cl. (iii) or sub-cl. (v) of s. 2 (d) a single act
or omission referred to in them may be enough to treat the
person concerned as an ’anti-social element’, in the case of
sub-cl. (i), sub-cl. (ii) or sub-cl. (iv) because of the
word ’habitually’ there should be a repetition of same class
of acts or omissions referred to in sub-cl. (i), sub-cl.
(ii) or in sub-cl. (iv) by the person concerned to treat him
as an ’anti-social element’.
I also do not see why s. 12 (2) of the Act should be
confined in its operation against habitual criminals who
have a certain number of prior convictions for offences of
the ’character’ specified. The definition of ’anti-social
element in s.2 (d) of the Act nowhere requires that there
should be number of prior convictions of a person in respect
of offences of a particular type. I cannot also share the
view that the commission of an act referred to in one of the
sub-cl. (i), sub-cl. (ii) or sub-cl. (iv) of s 2 (d) and any
other act or omission referred to in any other of the said
sub-clauses would not be sufficient to treat a person as an
’anti-social element’. Further, I do not think it is correct
to say that merely because there was an acquittal of such a
person, the detaining authority cannot take the act
complained of leading to his trial into consideration. It
may be that the trial of a dangerous person may end in an
acquittal for paucity of evidence due to unwillingness of
witnesses to come forward and depose against him out of
fright. If a person with criminal tendencies consistently or
persistently or repeatedly commits or attempts to commit or
abets the commission of offences punishable under Chapter
XVI dealing with offences affecting human body or Chapter
XVII dealing with offences against property of the Indian
Penal Code, there is no reason why he should not be
considered to be an ’anti-social element’.
447
It is not difficult to conceive of a person who by
himself or as a member or leader of a gang habitually
commits or attempts to commit or abets the commission of
offences punishable under Chapter XVI or Chapter XVII of the
Indian Penal Code. It however does not follow that because
of the word ’habitually’ in sub-cl. (i), sub-cl. (ii) or
sub-cl (iv), there should be a repetition of same class of
acts or omissions referred to in sub-cl. (i), sub-cl. (ii)
or in sub-cl. (iv) by the person concerned before he can be
treated to be an anti-social element and detained by the
District Magistrate under s.12(2) of the Act. In my view, it
is not required that the nature or character of the anti-
social acts should be the same or similar. There may be
commission or attempt to commit or abetment of diverse
nature of acts constituting offences under Chapter XVI of
the Indian Penal Code. What has to be ’repetitive’ are the
anti-social acts.
Those who are responsible for the national security or
for the maintenance of public order must be the sole judges
of what the national security or public order requires.
Sufficiency of grounds is not for the Court but for the
detaining authority for the formation of his subjective
satisfaction that the detention of a person under s. 12(2)
of the Act is necessary with a view to preventing him from
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acting in any manner prejudicial to the maintenance of
public order. The power of preventive detention by the
District Magistrate under s.12(2) is necessarily subject to
the limitations enjoined on the exercise of such power by
Art. 22(5) of the Constitution. It has always been the view
of this Court that the detention of individuals without
trial for any length of time, however short, is wholly
inconsistent with the basic ideas of our Government and the
gravity of the evil to the community resulting from anti-
social activities can never furnish an adequate reason for
invading the personal liberty of the citizen except in
accordance with the procedure established by law. The Court
has therefore in a series of decisions forged certain
procedural safeguards in the case of preventive detention of
citizens. As observed by this Court in Narendra Purshotam
Umrao v. B.B. Gujral(1), when the liberty of the subject is
involved, whether it is under the Preventive Detention Act
or the Maintenance of Internal Security Act or the
Conservation of Foreign Exchange & Prevention of Smuggling
Activities Act or any other law providing for preventive
detention-
"It is the bounden duty of the court to satisfy
itself that all the safeguards provided by the law have
been scrupul-
448
ously observed and that the subject is not deprived of
his personal liberty otherwise than in accordance with
law."
Nonetheless, the community has a vital interest in the
proper enforcement of its laws particularly in an area where
there is worsening law and order situation, as unfortunately
is the case in some of the States today in dealing
effectively with persons engaged in anti-social activities
seeking to create serious public disorder by ordering their
preventive detention and at the same time in assuring that
the law is not used arbitrarily to suppress the citizen of
his right to life and liberty. The impugned order of
detention has not been challenged on the ground that the
grounds furnished were not adequate or sufficient for the
satisfaction of the detaining authority or for making of an
effective representation. The Court must therefore be
circumspect in striking down the impugned order of detention
where it meets with the requirements of Art. 22(5) of the
Constitution and where it is not suggested that the
detaining authority acted mala fide or that its order
constituted an abuse of power.
Turning to the merits of the contentions raised, I am
quite satisfied that the impugned order is not vitiated
because some of the grounds were non-existent or irrelevant
or were too remote in point of time to furnish a rational
nexus for the subjective satisfaction of the detaining
authority. The two decisions in Shibban Lal Saksena’s and
Kamlakar Prasad Chaturvedi’s cases are clearly
distinguishable on facts. In Shibban Lal Saksena’s cases the
detenu had been supplied with two grounds for his detention.
Subsequently, the detaining authority revoked one of the
grounds communicated to him earlier. It was contended on his
behalf that in such circumstances the detention was illegal
and he was entitled to be released. The contention on behalf
of the State was that although one of the grounds upon which
the original order of detention was based was unsubstantial
or non-existent and could not be made a ground of detention,
nonetheless the remaining ground was sufficient to sustain
the detention order. The Court rejected this contention and
held that it was stated that the sufficiency of the grounds
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upon which the subjective satisfaction of the detaining
authority is based, provided they have a rational probative
value and are not extraneous so the scope or purpose of the
legislative provision cannot be challenged in the Court
except on the ground of mala fides. It was observed:
449
"A court of law is not even competent to enquire
into the truth or otherwise of the facts which are
mentioned as grounds of detention in the communication
to the detenu under s.7 of the Act. What has happened,
however, in this case is somewhat peculiar. The
Government itself, in its communication dated the 13th
of March, 1953, has plainly admitted that one of the
grounds upon which the original on or of detention was
passed is unsubstantial or non-existent and cannot be
made a ground of detention. The question is, whether in
such circumstances the original order made under s.3(1)
(a) of the Act can be allowed to stand. The answer, in
our opinion, can only be in the negative."
The question was whether in such circumstances the
original order made under s.3(1) (a) of the Preventive
Detention Act, 1950 could be allowed to stand. The Court
laid down that if one of the two grounds was irrelevant for
the purpose of the Act or was wholly illusory, this would
vitiate the detention order as a whole. That is a principle
well-settled since the well-known case of Keshav Talpade v.
The King Emperor(1): The Court reiterated the principle and
said that it was not for the Court to examine whether the
two grounds upon which the detention order was based were
good or bad nor could it attempt to assess in what manner
and to what extent each of the grounds operated on the mind
of the appropriate authority and contributed to the creation
of the satisfaction on the basis of which the detention
order was based. It then added:
"To say that the other ground, which still
remains, is quite sufficient to sustain the order,
would be to substitute an objective judicial test for
the subjective decision of the executive authority
which is against the legislative policy underlying the
statute. In such cases, we think, position would be the
same as if one of these two grounds was irrelevant for
the purpose of the Act or was wholly illusory and this
would vitiate the detention order as a whole."
Following the decision in Shibban Lal Sakesena’s case,
the Court in Kamlakar Prasad Chaturvedi’s case, supra, by a
majority of 2:1 held the detention order dated May 6, 1983
passed by the District Magistrate under s.3(2) of the
National Security Act, 1980 to be
450
invalid inasmuch as some of the grounds were found to be too
remote and not proximate in point of time. Per contra,
Desai, J. following the recent decision of this Court in
Fitrat Raza Khan v. State of U.P. & Ors held that there is
no rigid or mechanical test to be applied. In Fitrat Raza
Khaa’s case, the Court held that when both the incidents
there were viewed in close proximity, the propensity of the
petitioner to resort to prejudicial activity became
manifest.
In Fitrat Raza Khan’s case, supra, the first incident
was of August 13, 1980 when the communal riots broke out in
Moradabad city, and the second of July 24, 1981. Although
there was a lapse of a year between the two incidents, the
second incident of July 24, 1981 was just on the eve of the
Id festival and the ground alleged was that the petitioner
was trying to instigate the Muslims to communal violence by
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promise of better arms, with a view to an open confrontation
between the two communities. It was observed that the two
grounds as set out in the order of detention were nothing
but narration of facts brining out the antecedent history of
the detenu and that the past conduct or the antecedent
history of a person can properly be taken into account in
making an order of detention and had observed:
"It is true that the order of detention is based
on two grounds which relate to two incidents, one of
August 13, 1980, and the other of July 24, 1981, i.e.,
the second incident was after a lapse of about a year,
but both the incidents show the propensities of the
petitioner to instigate the members of the Muslim
community to communal violence. The unfortunate
communal riots which took place in Moradabad city led
to widespread carnage and bloodshed resulting in the
loss of many innocent lives. The memory of the communal
riots is all too recent to be a thing of the past. The
past conduct or antecedent history of a person can
appropriately be taken into account in making a
detention order. It is usually from prior events
showing tendencies or inclinations of a man that an
inference can be drawn whether he is likely, in the
future, to act in a manner prejudicial to the
maintenance of public order. * It cannot be
said that the prejudicial conduct or antecedent history
of the petitioner was not
451
proximate in point of time and had no rational
connection with the conclusion that his detention was
necessary for maintenance of public order.’’
It is usually from prior events showing tendencies or
inclinations of a man that an inference can be drawn whether
he is likely, in the future, to act in a manner prejudicial
to the maintenance of public order.
Learned counsel for the petitioner also submitted that
the ordinary criminal process could not be circumvented by
resort to preventive detention. In somewhat similar
circumstances, the Court recently in Alijan Mian v. District
Magistrate, Dhanbad & Ors(1). held that merely because there
was pending prosecution and the accused were in jail, that
was no impediment for their detention under s.3(2) of the
National Security Act, 1980 if the detaining authority was
satisfied that their being enlarged on bail would be
prejudicial to the maintenance of public order. The same
view has been reiterated by this Court in Raisuddin Babu
Tamchi v. State of U.P. & Anr(2).
For my part, I would therefore, for the reasons stated,
dismiss the writ petition as well as the connected special
leave petition.
VENKATARAMIAH, J. This is a petition under Article 32
of the Constitution. The petitioner has questioned in this
case the validity of an order of detention dated August 16,
1983 passed by the District Magistrate, Bhagalpur, State of
Bihar, directing the detention of the petitioner under sub-
section (2) of section 12 of the Bihar Control of Crimes
Act, 1981 (hereinafter referred to as ’the Act’) read with
Notification No. H(P) 6844 dated June 20, 1983 of the
Government of Bihar vesting the powers of detention in the
District Magistrate, Bhagalpur.
The petitioner states that he having passed him M.A.
Examination was studying law in the Bhagalpur Law College in
the year, 1983. On the basis of information received on
April 20, 1983 about the unnatural deaths of two persons
within the jurisdiction of the Bhagalpur Kotwali Police
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Station, the police conducted investigation and at the
conclusion of that investigation they filed a charge sheet
452
in the court of the Magistrate having jurisdiction over the
area in question, who committed him alongwith some others to
the Court of Sessions for being tried for offences
punishable under section 302 read with section 120B, 386 and
511 of the Indian Penal Code. The said case is even now
pending. The petitioner moved the High Court of Patna for
enlarging him on bail during the pendency of the said
Session trial. On August 8, 1983, the bail petition was
heard and the High Court made an order enlarging the
petitioner on bail, the relevant part of which read thus:
"8.8.83. Heard learned counsel for the petitioner
and the State.
The submission of the petitioner is that he has
not been named in the F.I.R. and the only material
against him is that when Kashi Nath Bajoria, father of
the deceased learnt about taking away of his sons from
the petrol pump he went to the house of petitioner and
his brother Dhananja Singh and enquired about his sons.
On his enquiry the petitioner, his brother Bijoy and
his mother demanded a sum of Rs 50,000 for release of
his sons. It is further submitted that three persons
gave their confessional statement but even they did not
name the petitioner-
Whether the petitioner was in conspiracy or had
hand in the crime will be examined at the trial if such
occasion arises. In the circumstances of the present
case, let petitioner be released on bail of Rs 30,000
(Rupees ten thousand with two sureties of the like
amount each) to the satisfaction of the Chief Judicial
Magistrate, Bhagalpur in Bhagalpur Kotwali P.S. Case
No. 281/83 dated 20.4.83."
Even before the petitioner could furnish bail and
secure his release from jail as per the above order, the
District Magistrate passed the impugned order of detention
on August 16,1983, the relevant part of which reads thus:
Order No. 151 dated 16.8.83
Whereas I am satisfied that with a view to
preventing Shri Vijay Singh s/o Late Shri Jagannath
Singh of Mohalla Mundichak P.S. Kotwali. District
Bhagalpur from acting in
453
any manner prejudicial to the maintenance of public
order, it is necessary to make an order that he be
detained.
Now, therefore, in exercise of the powers
conferred by (Bihar Act 7 of 1981) sub-section 2 of
section 12 of the Bihar Control of Crimes Act, 1981
read with Notification H(P) 6844 dated 20.6.83 of the
Government of Bihar vesting the powers of detention in
District Magistrate, Bhagalpur, I hereby direct that
Shri Vijay Singh be detained.
He shall be detained in Special Central Jail,
Bhagalpur and classified as C and in division III.
District Magistrate
Bhagalpur"
The grounds of detention in support of the above order
read thus:
"In pursuance of section 17 of the Bihar Control
of Crimes Act, 1981 (Bihar Act 7 of 1981) Shri Vijay
Singh s/o Late Shri Jagannath Singh of Mohalla
Mundichak, P.S. Kotwali, District Bhagalpur is informed
that he was been directed to be detained in my Order
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No. 151/C dated 16.8.83.
The following incidents conclusively show that
Shri Vijay Singh is an "anti-social element".
His criminal activities enumerated below date back
to the year 1975.
(i) On 15.4.75 Vijay Singh alongwith his
associates went to the shop of Gopal Ram Ramchandra,
cloth dealer in Hariapatti market of Bhagalapur town
armed with unlicensed pistol and forcibly demanded
subscription at the point of pistol. On refusal, he
created a row in the shop and indulged in filthy
abuses, as a result of which the shopkeepers of the
area became terribly panicky and feeling of uttar
insecurity prevailed in the area. A case was instituted
in Kotwali P.S. vide Case No. 25 dated 15-4-75 under
section 144/448 I.P.C. In this case, he was
chargesheeted.
(ii) On 17/18-6-82 at night Vijay Singh was found
teasing and misbehaving with females returning from
Cinema hall at Khalifabagh Chowk, one of the busiest
throughfares of
454
the town. On information, the police rushed to the
spot. Vijay Singh had the avdacity to misbehave with
the police personnel including the Dy. S.P. (Hqrs.) who
happened to reach there. A case was instituted in this
connection vide Kotwali P.S. Case No. 349 dated 18-6-82
u/s 294/353 I. P. C. In this case, Vijay Singh was
chargesheeted.
Shri Vijay Singh has been detained on the
following grounds:-
Grounds:
On 19.4.1983, the criminal activities of Vijay
Singh mounted to its peak, when two young sons of Shri
Kashinath Bajoria, owner of Bajoria Petrol Pump,
Bhagalpur, namely, Krishna Kumar Bajoria and Santosh
Kumar Bajoria were kidnapped from their petrol pump.
Vijay Singh demanded a sum of Rs 50,000 (Fifty
thousand) from their father as ransom. As the demand
could not be fulfilled, the above-named two innocent
young men were done to death in a ghastly manner and
their dead bodies thrown away near Mount Assisi School
and Zila School which were discovered next morning.
These double murders caused panic throughout the
Bhagalpur Town and public order was gravely disturbed.
Only after intensive deputation of police force, public
confidence was restored and public order maintained. A
case was instituted vide Kotwali P.S. Case No. 281
dated 20-4-83 under sections 364/302/201/34/120(b)
I.P.C Charge-sheet has been submitted in this case
against Vijay Singh and others. Investigation shows
that Vijay Singh is mainly instrumental to this heinous
crime.
(Copy of F.I.R., brief of the case and copy of
Memo of evidence enclosed).
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 considered
his detention necessary. Shri Vijay Singh is informed
that he may make a representation in writing against
the order under which he is detained. His
representation, if any, may be addres
455
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sed to the Deputy Secretary, Home (Police) Department,
Government of Bihar, Patna, and forwarded by the
Superintendent of Jail through special messenger with a
copy to the undersigned.
Sd/-S.K. Sharma
16/8/83
District Magistrate
Bhagalpur"
Aggrieved by the above order of detention the
petitioner filed a petition under Article 226 of the
Constitution before the High Court. On behalf of the
detaining authority it was contended that the detention
order had been prepared in advance for service on the
petitioner when he came out of the jail on the strength of
the bail order which he had obtained in the criminal case;
that all the copies of order had been sent to the District
Magistrate’s office but by mistake of the messenger three
copies had been wrongly delivered at the Central Jail
Bhagalpur where the petitioner had been kept and that when
the mistake was detected by the Superintendent of the
Central Jail, he did not serve the copy of the order and had
returned all the copies. It was urged that since the order
of detention had not been served on the petitioner, the
petition was not maintainable. Accepting the above plea, the
High Court held that there was no occasion to quash the
order of detention as the petitioner had not been detained
pursuant to it. Accordingly it rejected the prayer of the
petitioner. Thereupon the petitioner filed the above writ
petition before teis Court, He has also filed a special
leave petition being S.L.P. (Criminal) 3306 of 1983 against
the order of the High Court.
In this Court, the respondents have not depended upon
the technical plea raised by them before the High Court but
have tried to justify the order of detention on merits.
I shall give a brief summary of the relevant provisions
of the Act. The Act was passed in 1981. It was enacted, as
its long title suggests, to make special provisions for the
control and suppression of antisocial elements with a view
to maintenance of public order. Section 2(d) of the Act
defines the expression ’Anti-Social Element’ thus:
"2.(d) "Anti-Social Elements" means a person who
is
(i) either by himself or as a member of or leader
of a gang, habitually commits, or attempts to
commit
456
or abets the commission of offences,
punishable under Chapter XVI or Chapter XVII
of the Indian Penal Code ; or
(ii) habitually comints or abets the commission of
offence under the Suppression of Immoral
Traffic in Women and Girls Act, 1956 ; or
(iii) who by words or otherwise promotes or attempt
to promote on grounds of religion, race,
language, cast or community or any other
grounds what-soever feelings of enmity or
hatred between different religions, racial or
language groups of castes or communities ; or
(iv) has been found habitually passing indecent
remarks to or teasing women or girls ; or
(v) who has been convicted of an offence under
sections 25, 26, 27, 28 or 29 of the Arms Act
of 1959." (underlining by us)
Section 3 to 11 of the Act deal with the provisions
relating to externment of anti-social elements. Chapter II
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of the Act deals with the provisions providing for the
preventive detention of anti-social elements. The relevant
part of section 12 of the Act which is in Chapter II of the
Act reads :
"12. Power to make order detaining certain
persons. The State Government may-(1) If satisfied with
respect to any person that with a view to preventing
him from acting in any manner prejudicial to the
maintenance of public order and there is reason to fear
that the activities of anti-social element cannot be
prevented otherwise than by the immediate arrest of
such person make an order directing that such anti-
social element be detained.
(2) If, having regard to the circumstances
prevailing or likely to prevail in any area within the
local limits of the jurisdiction of a District
Magistrate, the State Government is satisfied that it
is necessary so to do, it may by an order in writing
direct, that during such period as may be specified in
the order, such District Magistrate may also, if
satisfied as
457
provided in sub-section (1) exercise the power
conferred up-on by the said sub-section.. (underlining
by us)
It is seen from section 12 of the Act that it makes
provision for the detention of an anti-social element. If a
person is not an anti-social element, he cannot be detained
under the Act. The detaining authority should, therefore, be
satisfied that the person against whom an order is made
under section 12 of the Act is an anti-social element as
defined in section 2 (d) of the Act. Sub-clauses (ii), (iii)
and (v) of section 2 (d) of the Act which are not quite
relevant for the purposes of this case may be omitted from
consideration for the present. The two other sub-clauses
which need to be examined closely are sub-clauses (i) and
(iv) of section 2 (d). Under sub-clause (i) of section 2 (d)
of the Act, a person who either by himself or as a member of
or leader of a gang habitually commits or attempts to commit
or abets the commission of offences punishable under Chapter
XVI dealing with offenences affecting the human body or
Chapter XVII dealing with offences against property, of the
Indian Penal Code is considered to be an anti-social
element. Under sub-clause (iv) of section 2 (d) of the Act,
a person who has been habitually’ passing indecent remarks
to, or teasing women or girls, is an anti-social element. In
both these sub-clauses the word ’habitually’ is used. The
expression ’habitually’ means ’repeatedly’ or
’persistently’. It implies a thread of continuity stringing
together similar repetitive acts. Repeated, persistent and
similar, but not isolated, individual and dissimilar acts
are necessary to justify an inference of habit. If connotes
frequent commission of acts or omissions of the same kind
referred to in each of the said sub-clauses or an aggregate
of similar acts or omissions. This appears to be clear from
the use of the word ’habitually’ separately in sub-clause
(i), sub-clause (ii) and sub-clause (iv) of section 2 (b)
and not in sub-clauses (iii) and (v) of section 2 (d) . If
the State Legislature had intended that a commission of two
or more acts or omissions referred to in any of the sub-
clauses (i) to (v) of section 2 (d) was sufficient to make
a person an ’anti-social element’, the definition would have
run as ’Anti-Social Element’ means ’a person who habitually
is .....’ As section 2 (d) of the Act now stands, whereas
under sub-clause (iii) or sub-clause (v) of section 2 (d) a
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single act or omission referred to in them may be enough to
treat the person concerned as an ’anti-social element’, in
the case of sub-clause (i), sub-clause (ii) or sub-clause
(iv), there should be a repetition of acts or omissions of
the same kind referred to in sub-clause
458
(i), sub-clause (ii) or in sub-clause (iv) by the person
concerned to treat him as an ’anti-social element’.
Commission of an act or omission referred to in one of the
sub-clauses (i). (ii) and (iv) and of another act or
omission referred to in any other of the said sub-clauses
would not be sufficient to treat a person as an ’anti-social
element’. A single act or omission falling under sub-clause
(i) and a single act or omission falling under sub-clause
(iv) of section 2 (d) cannot, therefore, be characterised is
a habitual act or omission referred to in either of them.
Because the idea of ’habit’ involves an element of
persistence and a tendency to repeat the acts or omissions
of the same class or kind, if the acts or omission in
question are not of the same kind or even if they are of the
same kind when they are committed with a long interval of
time between the they cannot be treated as habitual ones.
In the present case the District Magistrate has relied
on three incidents to hold that the petitioner is an anti-
social element. They are-(i) that on April 15, 1975 the
petitioner alongwith his associates had gone to the shop of
a cloth dealer of Bhagalpur Town armed with an unlicensed
pistol and had forcibly demanded subscription at the point
of a gun and (ii) that on June 17/18, 1982 the petitioner
was found teasing and misbehaving with females returning
from a cinema hall. The third ground is the criminal case
now pending against the petitioner in the Sessions Court.
The first incident is of the year 1975. It is not stated how
the criminal case filed on the basis of that charge ended.
The next incident relates to the year 1982. The detaining
authority does not state how the criminal case filed in that
connection terminated. If they have both ended in favour of
the petitioner finding him clearly not guilty, they cannot
certainly constitute acts or omissions habitually committed
by the petitioner. Moreover the said two incidents are of
different kinds altogether. Whereas the first one may fall
under sub-clause (i) of section 2(d) of the Act, the second
one falls under sub-clause (iv) thereof. They are, even if
true, not repetitions of acts or omissions of the same kind.
The District Magistrate does not appear to have applied his
mind to the above aspects of the case. The third ground
which is based on the pending Sessions case is no doubt of
the nature of acts or commissions referred to in sub-clause
(i) of section 2(d) but the interval between the first
ground which falls under this sub-clause and this one is
nearly eight years and cannot, therefore, make the
petitioner a habitual offender of the type falling under
sub-clause (i) of
459
section 2 (d). When I say so I do not certainly minimise the
gravity of the offence alleged to have been committed by the
petitioner which is still to be tried by the Sessions Court.
If the petitioner is found guilty by the Court, he will have
to be awarded appropriate punishment. But the point for
consideration now is whether the filing of the charge sheet
is sufficient to bring the petitioner within the mischief of
the Act. The Court should examine the case without being
overwhelmed by the gruesomeness of the incident involved in
the criminal trial. It is well settled that the law of
preventive detention is a hard law and therefore it should
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be strictly construed. Care should be taken that tee liberty
of a person is not jeopardised unless his case falls
squarely within the four corners of the relevant law. The
law of preventive detention should not be used merely to
clip the wings of an accused who is involved in a criminal
prosecution. It is not intended for the purpose of keeping a
man under detention when under ordinary criminal law it may
not be possible to resist the issue of orders of bail,
unless the material available is such as would satisfy the
requirements of the legal provisions authorising such
detention. When a person is enlarged on bail by a competent
criminal court, great caution should be exercised in
scrutinising the validity of an order of preventive
detention which is based on the very same charge which is to
be tried by the criminal court.
Having given my anxious consideration to the case, I am
of the view that it is not possible to hold that the
petitioner can be called an ’anti-social element’ as defined
by section 2 (d) of the Act. The order of detention impugned
in this case, therefore, could not have been passed under
section 12 (2) of the Act which authorises the detention of
anti-social elements only.
Before leaving this case, I should state that a number
of decisions were cited before us in which it had been held
that an order of detention based on a criminal charge which
is still to be tried may not be invalid and that an order
granting bail by a criminal court cannot be a bar to the
passing of an order of detention. But I have not found it
necessary to deal with them here as they would have become
relevant only if I had been satisfied that the petitioner
was an anti-social element. Moreover the orders of detention
questioned in those cases were governed by the provisions of
the statutes under which they had been issued.
460
In the result, I quash the order of detention passed
against the petitioner. The petition is accordingly allowed.
The petitioner shall be set at liberty forthwith unless he
is required to be in custody on some other ground.
H.S.K. Petition allowed.
461