Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1332 OF 2008
(Arising out of SLP (Crl) No.4386 of 2008)
K.K. Saravana Babu .. Appellant (Detenu)
Versus
State of Tamil Nadu & Another .. Respondents
J U D G M E N T
Dalveer Bhandari, J.
1. Leave granted.
2. This appeal is directed against the judgment of the High
Court of Madras passed in Habeas Corpus Petition No.1677 of
th
2007 on 29 April, 2008.
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3. The detenu has challenged the detention order under
Section 3(1) of the Tamil Nadu Prevention of Dangerous
Activities of Bootleggers, Drug Offenders, Forest Offenders,
Goondas, Immoral Traffic Offenders, Sand Offenders, Slum
Grabbers and Video Pirates Act, 1982 (Tamil Nadu Act 14 of
1982) passed vide Order No. 360/07 dated 28.8.2007.
4. The detenu is involved in a land grabbing case registered
at St. Thomas Mount Central Crime Branch Cr. No. 70/2006
under sections 420, 465, 468 read with 471 and 120(B) IPC
and the said case is pending trial before the court.
Subsequently another case was registered against the detenu
during 2007 in Central Crime Branch, Chennai City X Crime
No. 364/2007 under sections 420, 465, 466, 467, 468 read
with 471 and 120(B) IPC for the offence of land grabbing and
his activities are said to have been adverse to the interest of
the land owners and prospective buyers. The modus
operandi of the detenu in both the cases is land grabbing in a
clandestine manner. The detaining authority had considered
the said aspect and came to the conclusion that in case the
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detenu is let out on bail he would again indulge in similar type
of offences and, therefore, it is imperative to detain him. The
order of detention came to be passed keeping in mind the
welfare of public who are owning lands as well as the
prospective buyers.
5. It may be pertinent to mention that a number of bail
applications of the detenu were dismissed and he was already
in jail on 28.08.2007 when the detention order was served on
him.
6. The detenu made a representation on 14.9.2007 to the
Secretary and the Advisory Board seeking revocation of the
detention order, which was rejected on 14.10.2007.
Thereafter, the detenu filed a Habeas Corpus petition seeking
quashing of the detention order. The said petition was
dismissed on 29.04.2008. The detenu aggrieved by the said
order preferred a special leave petition before this court. In
pursuance to the notice issued by this court, a counter
affidavit has been filed by the respondent.
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7. Mr. Huzefa Ahmadi, learned counsel appearing for the
detenu submitted that the detention order passed against the
detenu is illegal and unsustainable in law. The detention
order is based on aforementioned two criminal cases.
According to the detenu, all allegations incorporated in both
the criminal cases if taken to be true even then the detenu
cannot be said to have indulged in activities prejudicial to the
public order.
8. It was contended by the detenu that the grounds of
detention are based on cases pertaining to law and order
problem. The distinction between ‘law and order’ and ‘public
order’ has been very clearly defined in a catena of judgments
of this court. The clear legal position which emerges from the
number of judgments of this court clearly leads to the definite
conclusion that if allegations are taken to be correct even then
the activities of the detenu do not fall in the category of cases
affecting the public order.
9. Mr. Ahmadi also submitted that the High Court has
seriously erred in not properly appreciating the distinction
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between “law and order” and “public order” and rejected the
habeas corpus petition preferred by the detenu.
10. Mr. Ahmadi further contended that three bail
applications preferred by the detenu were rejected and no bail
application was pending when the detention order was
passed, therefore, the apprehension expressed by the
detaining authority that there was imminent possibility of
detenu likely to be released on bail was merely ipse dixit of the
detaining authority without any material on record.
11. Mr. Ahmadi submitted that the detention order ex facie is
arbitrary, illegal, mala fide and passed with an oblique motive.
He also contended that the State because of wrongful
detention has deprived the detenu of his fundamental rights
enshrined under Articles 21 and 22 of the Constitution of
India.
12. Mr. T.L.V. Iyer, learned senior counsel appearing for the
State of Tamil Nadu submitted that the detaining authority
after arriving at a subjective satisfaction clamped the above
order of detention on the basis of an appraisal of the material
placed by the sponsoring authority.
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13. Mr. Iyer further submitted that the detention order does
not constitute an infringement of the fundamental rights
guaranteed to the detenu under Articles 19, 21 and 22(5) of
the Constitution of India. Mr. Iyer contended that the detenu
is a slum grabber and involved in crime No. 70/2006 under
sections 420, 465, 468 read with 471 and 120(B) IPC and
crime No. 364/2007 under sections 420, 465, 466, 467, 468
read with 471 and 120(B) IPC and that, keeping in mind the
seriousness of the offence of land grabbing, the detaining
authority was justified in passing the detention order.
14. We have heard the learned counsel for the parties at
length and carefully gone through the record of the case.
15. This court on several occasions examined the concepts of
“law and order” and “public Order”. Immediately after the
Constitution came into force, a Constitution Bench of this
court in Brij Bhushan & Another v. The State of Delhi
(1950) SCR 605 dealt with a case pertaining to public order.
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The court observed that “public order” may well be
paraphrased in the context as “public tranquillity”.
16. Another celebrated Constitution Bench judgment of this
court is in the case of Romesh Thappar v. The State of
Madras (1950) SCR 594. In this case, Romesh Thappar, a
printer, publisher and editor of weekly journal in English
called Cross Roads printed and published in Bombay was
detained under the Madras Maintenance of Public Order Act,
1949. The detention order was challenged directly in the
Supreme Court of India by filing a writ petition under Article
32 of the Constitution. The allegation was that the detenu
circulated documents to disturb the public tranquillity and to
create disturbance of public order and tranquillity.
17. The court observed:-
“… ‘Public order’ is an expression of wide
connotation and signifies that state of tranquillity
which prevails among the members of a political
society as a result of internal regulations enforced
by the Government which they have established ….
… it must be taken that ‘public safety’ is used as a
part of the wider concept of public order ….. ”
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18. The distinction between “public order” and “law and
order” has been carefully defined in a Constitution Bench
judgment of this court in Dr. Ram Manohar Lohia v. State
of Bihar & Others (1966) 1 SCR 709. In this judgment,
Hidayatullah, J. by giving various illustrations clearly defined
the “public order” and “law and order”. Relevant portion of
the judgment reads thus:
“….Does the expression "public order" take in every
kind of disorder or only some? The answer to this
serves to distinguish "public order" from "law and
order" because the latter undoubtedly takes in all of
them. Public order if disturbed, must lead to public
disorder. Every breach of the peace does not lead to
public disorder. When two drunkards quarrel and
fight there is disorder but not public disorder. They
can be dealt with under the powers to maintain law
and order but cannot be detained on the ground
that they were disturbing public order. Suppose
that the two fighters were of rival communities and
one of them tried to raise communal passions. The
problem is still one of law and order but it raises
the apprehension of public disorder. Other
examples can be imagined. The contravention of law
always affects order but before it can be said to
affect public order, it must affect the community or
the public at large. A mere disturbance of law and
order leading to disorder is thus not necessarily
sufficient for action under the Defence of India Act
but disturbances which subvert the public order
are. A District Magistrate is entitled to take action
under Rule 30(l)(b) to prevent subversion of public
order but not in aid of maintenance of law and
order under ordinary circumstances.
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It will thus appear that just as "public order"
in the rulings of this Court (earlier cited) was said to
comprehend disorders of less gravity than those
affecting "security of State", "law and order" also
comprehends disorders of less gravity than those
affecting "public order". One has to imagine three
concentric circles. Law and order represents the
largest circle within which is the next circle
representing public order and the smallest circle
represents security of State. It is then easy to see
that an act may affect law and order but not public
order just as an act may affect public order but not
security of the State….”
19. In Arun Ghosh v. State of West Bengal (1970) 1 SCC
98, Hidayatullah, J. again had an occasion to deal with the
question of “public order” and “law and order”. In this
judgment, by giving various illustrations, very serious effort
has been made to explain the basic distinction between
“public order” and “law and order”. The relevant portion
reads as under:
“…Public order was said to embrace more of the
community than law and order. Public order is the
even tempo of the life of the community taking the
country as a whole or even a specified locality.
Disturbance of public order is to be distinguished
from acts directed against individuals which do not
disturb the society to the extent of causing a
general disturbance of public tranquillity. It is the
degree of disturbance and its affect upon the life of
the community in a locality which determines
whether the disturbance amounts only to a breach
of law and order. Take for instance, a man stabs
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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 potentiality it
may be very different. Take the case of assault on
girls. A guest at a hotel may kiss or make advances
to half a dozen chamber maids. He may annoy them
and also the management but he does not cause
disturbance of public order. He may even have a
fracas with the friends of one of the girls but even
then it would be a case of breach of law and order
only. Take another case of a man who molests
women in lonely places. As a result of his activities
girls going to colleges and schools are in constant
danger and fear. Women going for their ordinary
business are afraid of being waylaid and assaulted.
The activity of this man in its essential quality is
not different from the act of the other man but in its
potentiality and in its affect upon the public
tranquillity there is a vast difference. The act of the
man who molests the girls in lonely places causes a
disturbance in the even tempo of living which is the
first requirement of public order. He disturbs the
society and the community. His act makes all the
women apprehensive of their honour and he can be
said to be causing disturbance of public order and
not merely committing individual actions which
may be taken note of by the criminal prosecution
agencies. It means therefore that the question
whether a man has only committed a breach of law
and order or has acted in a manner likely to cause a
disturbance of the public order is a question of
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degree and the extent of the reach of the act upon
the society…”
20. The concept of ‘public order’ and ‘law and order’ has
been dealt with in the case of Pushkar Mukherjee & Others
v. The State of West Bengal, AIR 1970 SC 852. In this case,
the Court had relied on the important work of Dr. Allen on
‘Legal Duties’ and spelled out the distinction between ‘public’
and ‘private’ crimes in the realm of jurisprudence. In
considering the material elements of crime, the historic tests
which each community applies are intrinsic wrongfulness and
social expediency which are the two most important factors
which have led to the designation of certain conduct as
criminal. Dr. Allen has distinguished ‘public’ and ‘private’
crimes in the sense that some offences primarily injure
specific persons and only secondarily the public interest, while
others directly injure the public interest and affect individuals
only remotely. There is a broad distinction along these lines,
but differences naturally arise in the application of any such
test.
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21. This court in Babul Mitra alias Anil Mitra v. State of
West Bengal & Others (1973) 1 SCC 393 had an occasion to
deal with the question of “public order” and “law and order”.
The court observed that the true distinction between the areas
of “law and order” and “public Order” is one of degree and
extent of the reach of the act in question upon society. The
court pointed out that the act by itself is not determinant of its
own gravity. In its quality it may not differ but in its
potentiality it may be very different.
22. In Dipak Bose alias Naripada v. State of West
Bengal (1973) 4 SCC 43, a three-Judge Bench of this court
explained the distinction between “law and order” and “public
order” by giving illustrations. Relevant portion reads as
under:
“..Every assault in a public place like a public road
and terminating in the death of a victim is likely to
cause horror and even panic and terror in those
who are the spectators. But that does not mean
that all of such incidents do necessarily cause
disturbance or dislocation of the community life of
the localities in which they are committed. There is
nothing in the two incidents set out in the grounds
in the present case to suggest that either of them
was of that kind and gravity which would jeopardise
the maintenance of public order. No doubt bombs
were said to have been carried by those who are
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alleged to have committed the two acts stated in the
grounds. Possibly that was done to terrify the
respective victims and prevent them from offering
resistance. But it is not alleged in the grounds that
they were exploded to cause terror in the locality so
that those living there would be prevented from
following their usual avocations of life. The two
incidents alleged against the petitioner, thus,
pertained to specific individuals, and therefore,
related to and fell within the area of law and order.
In respect of such acts the drastic provisions of the
Act are not contemplated to be resorted to and the
ordinary provisions of our penal laws would be
sufficient to cope with them.”
23. In Kuso Sah v. The State of Bihar & Others (1974) 1
SCC 185, this court had also considered the issue of “public
order”. The court observed thus:
“These acts may raise problems of law and order
but we find it impossible to see their impact on
public order. The two concepts have well defined
contours, it being well established that stray and
unorganised crimes of theft and assault are not
matters of public order since they do not tend to
affect the even flow of public life. Infractions of law
are bound in some measure to lead to disorder but
every infraction of law does not necessarily result in
public disorder….”
24. This court in another important case Ashok Kumar v.
Delhi Administration & Others (1982) 2 SCC 403 clearly
14
spelled out a distinction between ‘law and order’ and ‘public
order’. In this case, the court observed as under:-
“13. The true distinction between the areas of
“public order” and “law and order” lies not in the
nature or quality of the act, but in the degree and
extent of its reach upon society. The distinction
between the two concepts of “law and order” and
“public order” is a fine one but this does not mean
that there can be no overlapping. Acts similar in
nature but committed in different contexts and
circumstances might cause different reactions. In
one case it might affect specific individuals only and
therefore touch the problem of law and order, while
in another it might affect public order. The act by
itself therefore is not detrimental of its own gravity.
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….”
25. It has to be seen whether the detenu’s activity had any
impact on the local community or to put it in the words of
Hidayatullah, J., had the act of the detenu disturbed the even
tempo of the life of the community of that specified locality?
26. Mr. Ahmadi, learned counsel for the detenu submitted
that the detenu was in jail at the time when the detention
order was passed. His three bail applications were rejected.
Since there was no bail application pending, therefore, there
was no imminent possibility of his being released by the court.
The detenu’s coming out on bail was merely ipse dixit of the
15
detaining authority unsupported by any material whatsoever.
There was no cogent material before the detaining authority
on the basis of which the detaining authority could be
satisfied that the detenu was likely to be released on bail. In
absence of any such material on record, the mere ipse dixit of
the detaining authority is not sufficient to sustain the order of
detention. The learned counsel for the detenu also placed
reliance on Ramesh Yadav v. District Magistrate, Etah &
Others (1985) 4 SCC 232. In this case the court observed as
under:-
“The order of detention was passed as the detaining
authority was apprehensive that in case the detenu
was released on bail he would again carry on his
criminal activities in the area. If the apprehension
of the detaining authority was true, the bail
application had to be opposed and in case bail was
granted, challenge against that order in the higher
forum had to be raised. Merely on the ground that
an accused in detention as an under-trial prisoner
was likely to get bail an order of detention under
the National Security Act should not ordinarily be
passed. We are inclined to agree with counsel for
the petitioner that the order of detention in the
circumstances is not sustainable and is contrary to
the well settled principles indicated by this Court in
a series of cases relating to preventive detention.
The impugned order, therefore, has to be quashed.”
27. Mr. Ahmadi, the learned counsel further placed reliance
on Binod Singh v. District Magistrate, Dhanbad, Bihar &
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Others (1986) 4 SCC 416. In this case, the court observed as
follows:-
“7. It is well settled in our constitutional
framework that the power of directing preventive
detention given to the appropriate authorities must
be exercised in exceptional cases as contemplated
by the various provisions of the different statutes
dealing with preventive detention and should be
used with great deal of circumspection. There must
be awareness of the facts necessitating preventive
custody of a person for social defence. If a man is in
custody and there is no imminent possibility of his
being released, the power of preventive detention
should not be exercised. In the instant case when
the actual order of detention was served upon the
detenu, the detenu was in jail. There is no
indication that this factor or the question that the
said detenu might be released or that there was
such a possibility of his release, was taken into
consideration by the detaining authority properly
and seriously before the service of the order. A bald
statement is merely an ipse dixit of the officer. If
there were cogent materials for thinking that the
detenu might be released then these should have
been made apparent. Eternal vigilance on the part
of the authority charged with both law and order
and public order is the price which the democracy
in this country extracts from the public officials in
order to protect the fundamental freedoms of our
citizens. In the affidavits on behalf of the detaining
authority though there are indications that transfer
of the detenu from one prison to another was
considered but the need to serve the detention
order while he was in custody was not properly
considered by the detaining authority in the light of
the relevant factors. At least the records of the case
do not indicate that. If that is the position, then
however disreputable the antecedents of a person
might have been, without consideration of all the
aforesaid relevant factors, the detenu could not
have been put into preventive custody. Therefore,
though the order of preventive detention when it
was passed was not invalid and on relevant
considerations, the service of the order was not on
proper consideration.”
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28. In Commissioner of Police & Others v. C. Anita (Smt.)
(2004) 7 SCC 467, this court again examined the issue of
“public order” and “law and order” and observed thus:
“7. ….The crucial issue is whether the activities of
the detenu were prejudicial to public order. While
the expression “law and order” is wider in scope
inasmuch as contravention of law always affects
order, “public order” has a narrower ambit, and
public order could be affected by only such
contravention which affects the community or the
public at large. Public order is the even tempo of life
of the community taking the country as a whole or
even a specified locality. The distinction between
the areas of “law and order” and “public order” is
one of the degree and extent of the reach of the act
in question on society. It is the potentiality of the
act to disturb the even tempo of life of the
community which makes it prejudicial to the
maintenance of the public order. If a contravention
in its effect is confined only to a few individuals
directly involved as distinct from a wide spectrum of
the public, it could raise problem of law and order
only. It is the length, magnitude and intensity of the
terror wave unleashed by a particular eruption of
disorder that helps to distinguish it as an act
affecting “public order” from that concerning “law
and order”. The question to ask is:
“Does it lead to disturbance of the
current life of the community so as to
amount to a disturbance of the public
order or does it affect merely an
individual leaving the tranquillity of the
society undisturbed?”
This question has to be faced in every case on its
facts.”
29. In R. Kalavathi v. State of Tamil Nadu (2006) 6 SCC
14, this court while dealing with the case affecting the public
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order observed that even a single act which has the propensity
of affecting the even tempo of life and public tranquillity would
be sufficient for detention.
30. Mr. Ahmadi, the learned counsel for the detenu placed
reliance on T.V. Sravanan alias S.A.R. Prasana
Venkatachaariar Chaturvedi v. State through Secretary
& Another (2006) 2 SCC 664. In this case the court observed
that when the detenu was already in custody, there was no
imminent possibility of his being released. In that event it
would not be appropriate to pass order of detention against
him. This proposition of law also seems to be well-settled, but
in view of the fact that the detenu succeeded in his threshold
submission that the detention order passed against him was
arbitrary, illegal and unsustainable because even assuming
the allegation in both the cases relied on by the detaining
authority are correct then also no case of disturbance of
public order is made out.
31. We have tried to deal with the important cases dealing
with the question of “law and order” and “public order” right
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from the case of Romesh Thappar (supra) to the latest case of
R. Kalavathi (supra) . This court has been consistent in its
approach while deciding the distinction between ‘law and
order’ and ‘public order’. According to the crystallized legal
position, cases affecting the public order are those which have
great potentiality to disturb peace and tranquillity of a
particular locality or in the words of Hidayatullah, J. disturb
the even tempo of the life of the community of that specified
locality.
32. In the instant case, in the grounds of detention, two
cases have been enumerated, one of which pertains to the
offences punishable under sections 420, 465, 468 read with
471 and 120(B) IPC in Crime No.70 of 2006. Another case
pertains to Crime No.364 of 2007 registered under sections
420, 465, 466, 467, 468 read with 471 and 120(B) IPC. The
facts of these cases have been carefully examined and even
assuming the allegations of these cases as true, even then by
no stretch of imagination, the offences committed by the
detenu can be called prejudicial to public order. The detenu
20
can be dealt with under the ordinary criminal law if it
becomes imperative.
33. In this view of the matter, the detention order passed
against the detenu is illegal, unsustainable and liable to be
quashed and we accordingly do so. Since we are quashing the
detention order on the threshold submission of the detenu,
therefore, it is not necessary to examine other submissions
advanced by the detenu. The detention order is accordingly
quashed. The detenu be set at liberty forthwith, if not
required in any other case. The appeal is accordingly allowed
and disposed of.
…….…………………….. J.
(Dalveer Bhandari)
…….…………………….. J.
(Harjit Singh Bedi)
New Delhi;
August 22, 2008.