Full Judgment Text
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PETITIONER:
RAJ KUMAR SINGH
Vs.
RESPONDENT:
STATE OF BIHAR & ORS.
DATE OF JUDGMENT26/09/1986
BENCH:
MUKHARJI, SABYASACHI (J)
BENCH:
MUKHARJI, SABYASACHI (J)
PATHAK, R.S.
CITATION:
1986 AIR 2173 1986 SCR (3) 933
1986 SCC (4) 407 JT 1986 555
1986 SCALE (2)541
CITATOR INFO :
RF 1987 SC2098 (7)
R 1988 SC1256 (12)
RF 1989 SC2265 (18)
RF 1990 SC 231 (10)
ACT:
Bihar Control of Crimes Act, 1981- section 12(2)-
Detention order-Valid of.
HEADNOTE:
The Bihar Control of Crimes Act, 1981 was enacted to
make special provisions for the control and suppression of
anti-social elements with a view to maintenance of public
order. Section 2(d) defines "Anti-Social Element" and s. 12
deals with power to make orders for detaining certain
persons.
Upon the materials, the District Magistrate, hl his
order of detention under s. 12(2) has stated that he was
satisfied that the petitioner was an anti-social element and
was habitually committing offences punishable under Chapters
XVI and XVII of the Indian Penal Code and as such his
movements and acts adversely affected the public order. The
incidents referred to in the grounds of detention showing
criminal propensity of the petitioner had taken place one
year prior to the date of passing of the detention order.
The petitioner unsuccessfully challenged his detention
before the High Court.
Dismissing the writ petition as well as the appeal,
this Court,
^
HELD: 1. Preventive Detention for social protection of
the community is a hard law but, it is a necessary evil in
the modern society and must be pragmatically construed, so
that it works. That is how law serves the society but does
not become an impotent agent. Anti-social elements creating
havoc have to be taken care of by law. Lawless multitude
bring democracy and Constitution into disrepute. Bad facts
bring hard laws-but these should be properly and legally
applied. It should be so construed that it does not endanger
social defence or the defence of the community, at the same
time does not infringe the liberties of the citizens . A
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balance should always be struck. [920B-D]
914
2. The executive authority is not the sole judge of
what is required for national security or public order. But,
the court cannot substitute its decision if the executive
authority or the appropriate authority acts on proper
materials and reasonably and rationally comes to that
conclusion even though a conclusion with which the court
might not be in agreement. It is not for the court to put
itself in the position of the detaining authority and to
satisfy itself that untested facts reveal a path of crime
provided these facts are relevant. [920E-F]
3. If, in the background of a case, and having regard
to the definition of ’anti-social element’ in s. 2(d) of the
Bihar Control of Crimes Act, 1981, an appropriate authority
charged with the implementation of the Act, comes to the
satisfaction that the detenu is one who is habitually
committing or abetting the commission of offences, such a
conclusion is neither irrational nor unreasonable. [919C-D]
4. In the instant case, it cannot be said that the
power of preventive detention has been used to clip the
’wings of the accused’ who was involved in a criminal
prosecution. The fact that the petitioner was in jail has
been taken into consideration and all the relevant documents
were in fact supplied to him. Judged by all relevant
standards the order of detention cannot be said to be either
illegal or beyond the authority of law. Therefore, there was
no ground for interference with the order of l detention.
[920H; 921A-G]
5. While adequacy or sufficiency is no ground of a
challenge, relevancy or proximity are grounds of challenge
and proximity would be relevant in order to determine
whether an order of detention was arrived at irrationally or
unreasonably. [919G-H]
Vijay Narain Singh v. State of Bihar & Ors., [1984] 3
SCR 435 and The Barium Chemicals Ltd. and Anr. v. The
Company Law Board and others, [1366] (Supp.) SCR 311,
followed.
Ichchu Devi Choraria v. Union of India & Ors., [1981] 1
SCR 640 at 651, Ibrahim Ahmed Batti v. State of Gujarat and
others, [1983] 1 SCR 540 at 558 and State of Punjab v.
Jagdev Singh Talwandi, [1984] 2 SCR at 62 & 63 inapplicable.
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
353 of 1986
915
From the Judgment and order dated 25.2.1986 of the
Patna High Court in C.W.J.C. No. 227 of 1985.
R.K. Garg and Miss Rani Jethmalani for the Petitioner.
D. Goburdhan for the Respondents.
The Judgment of the Court was delivered by
SABYASACHI MUKHARJI, J. This Appeal and the Writ
Petition challenge the order passed by the District
Magistrate, Dhanbad under section 12(2) of The Bihar Control
of Crimes Act, 1981 (hereinafter called the said ’Act’). The
order was passed on 15th January, 1985 and was served on the
petitioner on 7th December, 1985. The impugned order was
approved by the Government on 15th January, 1985.
The said Act was an Act to make special provisions for
the control and suppression of anti-social elements with a
view to maintenance of public order. Section 12 deals with
power to make orders for detaining persons, Clause (d) of
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section 2 of the said Act states "Anti-Social Element’ as 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 commits or abets the commission of
offences under the Suppression of Immoral Traffic
in Women and 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 of 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
Section 25, 26,27, 28 or 29 of the Arms Act of
1959.
916
Under section 3, the power is thereof externment on
certain conditions. Sub-sections(1) and (2) of section 12 of
the said Act provides as follows:
"12. Power to make orders detaining certain
persons-(l) The State Government may 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 elements can not 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 provided in sub-section
(1) exercise the power conferred upon by the said
sub-section:
Provided that the period specified in an order
made by the State Government under this sub-
section shall not, in the first instance exceed
three months, but the State Government may, if
satisfied as aforesaid that it is necessary so to
do, amend such order to extend such period from
time to time by any period not exceeding three
months at any one time."
The other provisions are not material for the present
purpose. In so far as these are relevant have been dealt
with in the judgment under appeal and it is not necessary to
reiterate these again.
The High Court in the judgment under appeal has
referred to the order of detention exhaustively.
The High Court has narrated the facts in the judgment
under appeal and stated as follows:
"On 11.3.84 on a confidential information a raid
was organised under the leadership of the officer-
in-charge of
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Dhanbad Police Station to apprehend one Sri
Raghunath Singh an absconder detenu of the
National Security Act. According to the
confidential information he was going to witness a
Qwali programme at Sijua gate within Jagota Police
station. As soon as the raiding party reached the
Sijua gate they saw that Raghunath Singh was
coming out of club and was going towards Sijua
More. The police cordoned him and told him about
his arrest under the National Security Act. On
this the aforementioned Raghunath Singh called one
Sakaldeo Singh who was coming towards him
alongwith his associates duly armed. Sakaldeo
Singh immediately reached the spot and asked the
detenu and his other associates to open fire. As
ordered the detenu opened fire on the police
party. The police party, however, escaped injury.
Meanwhile Raghunath Singh took the position and
opened fire from his revolver which hit the S.I.
Sri. R. K. Verma, a member of the raiding party
who fell on the ground. The police party also
opened fire but the detenu and his associates,
quite in number, under the coverage of firing fled
away by breaking the cordon of the police party.
The incident took place at about 1.50 a.m. in
presence of a large gathering which was witnessing
the Qwali programme. This created great panic and
alarm amongst the people who were witnessing the
programme and they started running helter and
skelter for their lives. A complete confusion
prevailed in the programme and the police had a
hard time to control the situation. This adversely
affected the public order. The people were so much
afraid that they stopped moving freely in the
area. It is alleged that the detenu is a terror in
the area and nobody dares to speak against him. He
is an uncrowned king of the Mafia World and the
people living in the area are under the constant
threat of life and property. A case bearing Jogta
P.S. Case No. 22 dated 11.3.84 under section
142/149/307/ 326/353/333/224/225 I.P.C./27 Arms
Act was registered for this incident and charge-
sheet had already been submitted in the case.
Besides the aforesaid ground two cases have been
referred to in the order of detention as
background to show the criminality of the detenu:
1. Kenduadih P.S. Case No. 43 dated 11.3.83 under
section 302/34 I.P.C./25(1A)/27 of the Arms
Act/3/5 of the
918
Explosive Substance Act. In this case the detenu
with his associates is alleged to have murdered
one Sri Nagendra Singh in broad day light and a
charge-sheet in this case had already been
submitted.
2. The other case referred to as a background is
that numbered as Kenduadih P.S. Case No. 31 dated
11.3.84 under section 25(1A)/35 Arms Act. In this
case a DBBL gun looted in Keswar P.S. Case No.
5/84 under section 395 of the Indian Penal Code
was recovered from the detenu’s house besides
cartridges of various Arms. A charge-sheet in this
case had also been submitted."
Upon these materials, the District Magistrate, in his
order of detention, has reiterated that he was satisfied
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that the petitioner is an anti-social element and habitually
commits offences punishable under Chapters XVI and XVII of
the Indian Penal Code and as such his movements and acts
adversely affect the public order.
The District Magistrate further stated that he was
satisfied on ground No. 1 referred to hereinbefore.
In so far as Jogta P.S. Case No. 22 dated 11.3.84 is
concerned, it was with regard to the same incident which
resulted in the detention of the petitioner/appellant. So
far as the background was concerned, the incident No. 2
mentioned therein was Kunduadih P.S. Case No. 31 dated
11.3.84 with regard to the same date i.e. 11.3.84 but with
regard to a different occurrence. In that case a gun was
looted and a case under I.P.C. was instituted under section
395 of the Indian Penal Code. Said gun was recovered from
the petitioner’s/appellant’s house beside cartridges of
various arms and a charge-sheet had been submit ted in
connection with Jogta P.S. Case No. 22 dated 11;3.84. These
cases were pending at the relevant date. Therefore, there
was no question of the acquittal or termination of the
petitioner one way or the other in respect of both the
incidents of the same date. In respect of Incident No. 1
referred to hereinbefore i.e. Kenduadih P.S. Case No. 43
dated 11.3.84 under section 302/34 I.P.C./25(1A)/27 Arms
Act/3/5 Explosive Substance Act in which the petitioner/
appellant and his associates are alleged to have murdered
Sri Nagendra Singh in the broad day light, a charge-sheet
had been submitted but the case had not been tried or
terminated in any manner. All these cases were pending
disposal.
919
There is a proximity between these incidents betraying
a nature and a tendency of committing these offences. But it
cannot be denied that these indicate, in the facts of this
case, that the petitioner/appellant was one who habitually
committed offences which are at least punishable under
I.P.C.
We have noted who is an anti-social element under the
Act. The petitioner/appellant has not yet been convicted
under any of these sections referred to hereinbefore. So far
as the incidents referred to hereinbefore betray criminal
propensity. The first incident is of a case which was one
year prior to the date of the detention order and the other
incident was of the same date. If in this background, an
appropriate authority charged with the implementation of the
Act comes to the satisfaction that the petitioner/appellant
is one who is habitually committing or abetting the
commission of offences, such a conclusion is neither
irrational nor unreasonable.
In Vijay Narain Singh v. State of Bihar & Ors., [1984]
3 SCR 435, this Act came up for consideration by this Court.
But in that case the facts were entirely different. In that
case the petitioner was facing trial for offences under
section 302 read with section 120B, 386 and 511 of the
Indian Penal Code and was allowed to be enlarged on bail by
the High Court. But before the petitioner was released in
that case the District Magistrate passed an order on 16th
August, 1983 under section 12(2) of the said Act for
detention of the petitioner. The grounds of detention
supplied to the petitioner related to the incidents which
took place in 1975 and 1982. There is a gap of 6-7 years in
between the majority of the judges in that decision (O.
Chinnappa Reddy and E.S. Venkataramiah, JJ) observed that
the law of preventive detention is hard law and therefore
should be strictly, construed. Care should, therefore, be
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taken that liberty of a person is not jeopardized unless his
case fell squarely within the four corners of the relevant
law. A.P. Sen, J. disagreed. It is not necessary to discuss
the decision in detail in view of the facts of that case and
difference of the facts in this case. We only reiterate that
what the majority of the learned judges said was that while
adequacy or sufficiency was no ground of a challenge, rele-
vancy or proximity were grounds of challenge. We may
respectfully add that proximity would be relevant in order
to determine whether an order of detention was arrived at
irrationally or unreasonably. It is well-settled that the
detaining authority is not the sole judge of what national
security or public order requires. But neither is the court
the sole judge of the position. When power is given to an
authority to act
920
on certain facts and if that authority acts on relevant
facts and arrives at a decision which cannot be described as
either irrational or unreasonable, in the sense that no
person instructed in law could have reasonably taken that
view, then the order is not bad and the Court cannot
substitute its decision or opinion, in place of the decision
of the authority concerned on the necessity of passing the
order. See in this connection the observations of The Barium
Chemicals Ltd. and Anr. v. The Company Law Board and others,
[1966] Suppl. SCR 311.
Preventive detention for the social protection of the
community is, as noted and observed in Vijay Narain Singh’s
case (supra), a hard law but, it is a necessary evil in the
modern society and must be pragmatically construed, so that
it works. That is how law serves the society but does not
become an impotent agent. Anti-social elements creating
havoc have to be taken care of by law. Lawless multitude
bring democracy and constitution into disrepute. Bad facts
bring hard laws-hut these should be properly and legally
applied. It should be so construed that it does not endanger
social defence or the defence of the community, at the same
time does not infringe the liberties of the citizens. A
balance should always be struck.
The executive authority is not the sole judge of what
is required for national security or public order. But the
court cannot substitute its decision if the executive
authority or the appropriate authority acts on proper
materials and reasonably and rationally comes to that
conclusion even though a conclusion with which the court
might not be in agreement. It is not for the court to put
itself in the position of the detaining authority and to
satisfy itself that untested facts reveal a path of crime
provided these facts are relevant. See in this connection
the observations of O. Chinnappa Reddy, J. in Vijay Narain
Singh’s case (supra) at Pages 440 and 441.
In the facts of this case and having regard to the
nature of the offences, the impugned order cannot be said to
be invalid and improper one. The High Court has very
exhaustively dealt with this aspect and we respectfully
agree with the High Court’s view.
There is no analogy between the instant case and the
facts of Vijay Narain Singh’s case (supra) decided by this
Court.
On materials on record it cannot be said as the High
Court has rightly pointed out that the power of preventive
detention has been
921
used to clip the ’wings of the accused’ who is involved in a
criminal prosecution. Certain allegations had been made that
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all materials had not been supplied to the accused. This is
not true because as the High Court noted that all relevant
F.I.Rs were received by the petitioner and in token whereof
he had put his signature in black and white in his own hand.
The fact that the petitioner was in jail has been taken
into consideration. How these factors and to what extent
these should be taken into consideration have been discussed
by this Court in Writ Petition (Criminal) No. 296 of 1986
(With SLP (Criminal) No. 1265 of 1986). It is not necessary
to reiterate them. In the instant case the limits have not
been transgressed.
In the background of the facts of this case that all
the relevant documents were in fact supplied and no other
document was asked for, the observations of this Court in
Ichchu Devi Chorana v. Union of India & Ors., [1981] 1 SCR
640 at 651 on which reliance was placed by Mr. Garg on
behalf of the petitioner/appellant do not apply.
Mr. Goberdhan, on behalf of the State of Bihar, rightly
pointed out that in the facts and circumstances of this case
and the background of the scheme of this Act, there was no
scope of the application of the principles reiterated by
this Court in Ibrahim Ahmed Batti v. State of Gujarat and
others, [1983] 1 SCR 540 at 558. Similarly the observations
of this Court in State of Punjab v. Jagdev Singh Talwandi
[1984] 2 SCR 50 at 62 & 63, upon which Mr. Garg relied can
have no application. All the relevant documents were
supplied. All the statutory safeguards were complied with.
In view of the backgrounds in the facts and
circumstances of this case and the grounds mentioned in the
affidavit of the District Magistrate filed before the High
Court in the case under appeal as well as in Writ Petition
in this Court and the facts found by the High Court which
are based on cogent and reliable evidence, there is no
ground for interference with the order of detention.
Preventive detention as reiterated is hard law and must
be applied with circumspection rationally, reasonably and on
relevant materials. Hard and ugly facts make application of
harsh laws imperative. The detenu’s rights and privileges as
a free man should not be unnecessarily curbed.
922
No other points were urged before us. This Court has
reiterated in Writ Petition (Criminal) No. 296 of 1986 with
SLP (Criminal) No. 1265 of 1986 the relevant aspect of the
preventive detention law. In that view of the matter it is
not necessary to reiterate those principles again here.
Preventive detention is a necessary evil in the modern
restless society. But simply because it is an evil, it
cannot be so interpreted as to be inoperative in any
practical manner. Judged by all relevant standards, the
impugned order of detention in the case of the petitioner
cannot be said to be either illegal or beyond the authority
of law.
Before we conclude we must point out that another point
was taken that in the order there was no mention of the
period of detention. There could not be an indefinite
detention. The State Government has clearly notified the
period of detention of the petitioner and indicated that he
should be in detention till 6th December, 1986. This appears
at Annexure I at page 52 of the Paper Book of Criminal
Appeal No. 353 of 1986. The said order was passed under
section 22 of the said Act by the State Government.
In the premises the Writ Petition fails and is
dismissed. The Criminal Appeal is also dismissed.
A.P.J. Petition and Appeal dismissed.
923
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