Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6
PETITIONER:
SUBHASH BHANDARI & ANR. ETC.
Vs.
RESPONDENT:
DISTRICT MAGISTRATE, LUCKNOW & ORS.
DATE OF JUDGMENT03/11/1987
BENCH:
RAY, B.C. (J)
BENCH:
RAY, B.C. (J)
SEN, A.P. (J)
CITATION:
1988 AIR 74 1988 SCR (1) 773
1987 SCC (4) 685 JT 1987 (4) 277
1987 SCALE (2)937
CITATOR INFO :
RF 1990 SC 220 (7)
RF 1992 SC 979 (12)
ACT:
National Security Act, 1980: Section 3-Detention-
Grounds of detention-Subjective satisfaction of the
detaining authority-Solitary criminal act-Whether and when
can be taken into consideration for making detention order.
HEADNOTE:
%
The appellants were contractors for the supply of
ballast to PWD. They were detained under section 3(2) of the
National Security Act, 1980. It was stated in the grounds of
detention that on account of business rivalry, appellants
and their companions attacked the complainant with fire arms
and hand grenades with intent to kill him, FIR was lodged by
the complainant, a case was registered against them under
section 147, 149, 307 I.P.C. and section 6 of the Explosives
Act, and a chargesheet put up against the appellants, and
since they had applied for bail, and if released there was a
possibility that they will again start activities causing
breach of public order, it was necessary to detain them in
order to prevent them from so acting.
The detention orders were approved by the State
Government under section 3(4) of the Act, and the
representations made by the appellants having been rejected
they were directed to be detained for a period of 12 months.
Challenging their detention, the appellants filed writ
petitions before the High Court contending that the alleged
assault on the complainant affected only an individual and
such a solitary act could not be considered to be an act
prejudicial to the maintenance of public order.
The High Court, dismissing the writ petitions, held
that the assault was to teach a lesson to the complainant
and serve as warning to prospective tenderers who may not
dare to submit their tenders and that the impact and reach
of the act went beyond the individual and affected the
community of contractors who take contracts for executing
the public works.
Allowing the appeals to this Court,
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6
774
^
HELD: Disturbance of public order is to be
distinguished from acts directed against individuals which
do not disturb the society to the extent of causing a
general disturbance of public tranquility. 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
different. [778C-D]
A solitary act of omission or commission can be taken
into consideration for being subjectively satisfied, by the
detaining authority to pass an Order of detention if the
reach, effect and potentiality of the act is such that it
disturbs public tranquility by creating terror and panic in
the society or a considerable number of the people in a
specified locality where the act is alleged to have been
committed. It is the degree and extent of the reach of the
act upon the society which is vital for considering the
question whether a man has committed only a breach of law
and order or has acted in a manner likely to cause
disturbance to public order. [779A-C]
In the instant case, the alleged act of assault by fire
arms is confined to the complainant and not to others. It is
an act infringing law and order and the reach and effect of
the act is not so extensive as to affect considerable
members of the society. In other words, this act does not
disturb public tranquility, nor does it create any terror or
panic in the minds of the people of the locality nor does it
affect in any manner the even tempo of the life of the
community. This criminal act emanates from business rivalry
between the detenus and the complainant. Therefore, such an
act cannot be the basis for subjective satisfaction of the
detaining authority to pass an order of detention on the
ground that the impugned act purports to affect public order
i.e. the even tempo of the life of the community, which is
the sole basis for clamping the order of detention.
Moreover, no injury was caused to the person of the
complainant, by the appellants nor any damage was caused to
the car though hand grenade was alleged to have been thrown
on the car. No mark has been caused to the car also. [778E-
H]
Gulab Mehra v. State of U. P. & Ors., 4 JT 1987 3 SC
559, applied.
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
558 and 559 of 1985.
From the Judgment and order dated 14.2.85 of the
Allahabad High Court in W.P. No. 5805 and 5806 of 1985.
775
Mohan Pandey for the Appellants.
Yogeshwar Prasad and Dalveer Bhandari for the
Respondents.
The Judgment of the Court was delivered by
B.C. RAY, J. These two appeals by special leave are
against the order passed on February 14, 1985 by the High
Court of Allahabad dismissing the writ petition No. 5806 of
1984 and writ petition No. 5805 of 1984 as well as writ
petition No. 309 of 1985 whereby the order of detention
passed against the appellants on October 1, and October 20,
1984 respectively under section 3(2) of the National
Security Act, 1980, was upheld as legal and valid.
The copy of the order of detention as well as the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6
grounds of detention and the first information report on the
basis of which the detention order was made, were served on
the appellants at the time of their detention. The grounds
of detention are as follows:-
"On 25.9.1984, Shri Surya Kumar, son of Shri
Vishwa Pal, resident of 33, Babuganj, P.S.
Hasanganj, District Lucknow, lodged a report at
P.S. Hazratganj, Lucknow that on 15.9.1984 there
was a tender for the supply of ballast in P.W.D.
in which tenders had been submitted by him in K.P.
Singh’s name. You keep share with K.P. Singh. On
account of your and K.P. Singh’s terror no other
person submits any tender against you people for
which reason you people obtain tenders at rates of
your choice. If any other person submits his
tender you and K.P. Singh terrorise him. On
account of the rates of his tender being lower on
15.9.1984, the tender of the complainant was
accepted in one group and in the remaining groups
the tenders of K.P. Singh etc. were accepted. For
this reason you and K.P. Singh bore a grudge
against the complainant.
On 25.9.1984 at about 3.45 P.M. when Surya
Kumar was going, in connection with his tender, in
his Ambassador Car No. USS-7418, accompanied by
his brother-in-law, opposite to the National
Highway Khand, he saw some contractors. On
reaching near them the complainant had just
started talking to them, when suddenly in two
cars, you with a pistol, Phool Chand with a
revolver, Jaleel with a revolver, Ashok with Desi
katta, Ashok Sonkar and Sarrif
776
with hand grenade and Shankar Dey with a gun along
with three other persons came and with intent to
kill the complainant fired at the complainant,
threw hand grenades which fell on the car of the
complainant. Consequently, there was a commotion.
Traffic was obstructed and public tranquility was
disturbed. The complainant immediately saving his
life took flight in his car. On the above
information by the complainant a case FIR No. 1034
was registered at police station, Hazratganj
against you and your other companions under
Section 147, 148, 149, 307 I.P.C. and Section 6 of
Explosives Act and after investigation a charge-
sheet No. 279 has been put up against you for the
said offence.
I have also been put up against you for the
said offence.
I have also come to know that on your behalf
an application for grant of bail has been moved in
a competent court, therefore, in case you come out
on bail from the jail you will again start
activities causing breach of public order
on the abovesaid grounds, I have been
satisfied that there is possibility of your acting
in a manner prejudicial to the maintenance of
public order and in order to prevent you from so
acting, it is necessary to detain you."
The said order of detention was duly approved by the
State Government under section 3(4) of the National Security
Act. The appellants made representation against the grounds
of detention. The representations were rejected by the
Government and the same were communicated to the appellants
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6
by the Joint Secretary, Vigilance & Home Department,
Government of U.P. On November 26, 1984, the Secretary,
Vigilance & Home Department, Government of U.P. informed the
appellants that the Government after considering the report
of the Advisory Board had confirmed the order of detention
and directed that the appellants be detained for a period of
12 months with effect from October 1, 1984 and October 20,
1984 respectively.
Aggrieved by this order of detention the appellants
moved applications under Article 226 of the Constitution of
India for quashing of the order of detention made by the
respondent No. 1 and for setting
777
them free. These were registered as writ petition No. 5806
of 1984 and writ petition No. 5805 of 1984. Another detenu
who was detained on identical grounds also filed writ
petition No. 309 of 1985 before the High Court.
The main contention advanced on behalf of the
appellants before the High Court was that on the basis of
facts alleged, at the most it could be said that the matter
related to the maintenance of law and order. It was not a
matter relating to the disturbance of public order. The
assault on Surya Kumar can only be on account of an ill-will
arising out of business rivalry. It had been submitted that
it affects only an individual and the society or community
were not affected by the alleged act of omission on the part
of the appellants. It therefore raised no problem of public
order. It had been further contended that a solitary act can
not be considered to be an act prejudiced to the maintenance
of public order.
The High Court of Allahabad after hearing the parties
and on a consideration of the decisions cited before it
found that whether an act creates a mere law and order
problem or affects the even tempo of the life of the
community, it is to be seen what is the extent of the impact
of the act in question upon the society as a whole; whether
the effect is restricted to an individual or a few
individuals alone or it creates a sense of insecurity,
danger and apprehension in the minds of the people in
general apart from those who are the victims of the
incident; whether the act or acts disturb the even tempo of
life of the society or a section of society; whether the act
leads to disturbance of public order or only law and order.
The High Court further found that in the context the act
committed tends to teach a lesson to the complainant and to
act as a warning to prospective tenderers in future who may
not dare to avail of the opportunity to submit their tenders
against that of the appellants. It was also found that the
impact and reach of the act in question goes beyond the
individual and affects the community of contractors who take
contracts for executing the public works. The Court further
held that the order of detention made by the detaining
authority is legal and valid and the writ petitions were
dismissed.
Undoubtedly, on the basis of the FIR lodged by Surya
Kumar a case under Section 147/148/149/307 I.P.C. and under
Section 5 of the Explosives Act has been registered as crime
No. 1034 and the said case is pending for decision before
the criminal court.
The main question which falls for decision is whether
the act
778
referred to in the grounds of detention is directed against
certain individuals creating a law and order problem or the
reach and potentiality of the act is so deep as to disturb
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6
the society to the extent of causing a general disturbance
of public tranquility.
It has now been well settled by several decisions of
this Court (the latest one being Gulab Mehra v. State of
U.P. & Ors., 4 JT 1987(3) SC 559 judgment in which case was
pronounced by us on September 15, 1987) that public order is
the even tempo of the life of the community taking the
country as a whole or even a specified locality. Disturbance
of public order is to be distinguished from acts directed
against individuals which do not disturb the society to the
extent of causing a general disturbance of public
tranquility. It is the degree of disturbance and its effect
upon the life of the community in a locality which
determines whether the disturbance amounts only to a breach
of law and order or it affects public order. It has also
been observed by this court that 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. Therefore it is the impact, reach and
potentiality of the act which in certain circumstances
affect the even tempo of life of the community and thereby
public order is jeopardized. Such an individual act can be
taken into consideration by the detaining authority while
passing an order of detention against the person alleged to
have committed the act.
In the instant case the alleged act of assault by fire
arms is confined to the complainant Surya Kumar and not to
others. It is an act infringing law and order and the reach
and effect of the act is not so extensive as to affect a
considerable members of the society. In other words, this
act does not disturb public tranquility nor does it create
any terror or panic in the minds of the people of the
locality nor does it affect in any manner the even tempo of
the life of the community. This criminal act emanates from
business rivalry between the detenus and the complainant.
Therefore such an act can not be the basis for subjective
satisfaction of the detaining authority to pass an order of
detention on the ground that the impugned act purports to
affect public order i.e. the even tempo of the life of the
community which is the sole basis for clamping the order of
detention. Moreover, no injury was caused to the person of
the complainant, Surya Kumar by the appellants nor any
damage was caused to the car though hand grenade was alleged
to have been thrown on the car. No mark has been caused to
the car also. It is relevant to mention in this connection
that the appellants were released on bail by this Court
after duly considering the facts and
779
circumstances of the case in July, 1985. The period of one
year has also expired. We have already held hereinbefore
that a solitary act of omission or commission can be taken
into consideration for being subjectively satisfied, by the
detaining authority to pass an order of detention if the
reach, effect and potentiality of the act is such that it
disturbs public tranquility by creating terror and panic in
the society or a considerable number of the people in a
specified locality where the act is alleged to have been
committed. Thus it is the degree and extent of the reach of
the act upon the society which is vital for considering the
question whether a man has committed only a breach of law
and order or has acted in a manner likely to cause
disturbance to public order.
It is pertinent to note in this connection that the
Criminal Appeal Nos. 826 and 827 of 1985 arising out of the
same incident and identical grounds of detention, filed by
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6
Ashok Arora and Ashok Kumar Sonkar have been allowed by this
Hon’ble Court by its order dated November 29, 1985 and the
appellants were directed to be set at liberty forthwith.
For the reasons aforesaid, we allow the appeals without
any order as to costs.
N.P.V. Appeals allowed.
780