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Awadh Kumar Shukla Vs. Superintendent of Central Jail and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad High Court
Decided On
Judge
Reported in1983CriLJ192
AppellantAwadh Kumar Shukla
RespondentSuperintendent of Central Jail and ors.
Cases ReferredBiram Chand v. State of U. P.
Excerpt:
- - naini, sent the representation to the district magistrate on 27-8-1982 and the state government as well as the advisory board direct on 28-8-1982. the petitioner further claims that sri laxmi narain dwivedi advocate, allahabad delivered an application and a copy of the representation to respondent no. it is not direct authority on the point that where the person sought to be detained under the preventive detention act is already in jail as under trial or convict but the district magistrate is satisfied that he is likely to be released on bail or acquitted that fact must be stated in the grounds itself as a separate ground and material in support should be supplied. this, in our opinion, clearly exhibits non-application of mind and would result in invalidation of the order. in the.....m. wahajuddin, j.1. petitioner avadh kumar shukla is detained in pursuance of the detention order dated 9-8-1982 of the district magistrate, allahabad, passed under section 3(2) of the national security act. the detenu was already in jail in connection with a criminal case when this detention order was passed and he was served with the order alone with grounds and materials on 10-8-1982. the order was approved by the state government on 16-8-1982. the detenu submitted his representation in triplicate to the superintendent, central jail, naini on 27-8-1982 and the superintendent, central jail. naini, sent the representation to the district magistrate on 27-8-1982 and the state government as well as the advisory board direct on 28-8-1982. the petitioner further claims that sri laxmi narain.....
Judgment:

M. Wahajuddin, J.

1. Petitioner Avadh Kumar Shukla is detained in pursuance of the detention order dated 9-8-1982 of the District Magistrate, Allahabad, passed under Section 3(2) of the National Security Act. The detenu was already in jail in connection with a criminal case when this detention order was passed and he was served with the order alone with grounds and materials on 10-8-1982. The order was approved by the State Government on 16-8-1982. The detenu submitted his representation in triplicate to the Superintendent, Central Jail, Naini on 27-8-1982 and the Superintendent, Central Jail. Naini, sent the representation to the District Magistrate on 27-8-1982 and the State Government as well as the Advisory Board direct on 28-8-1982. The petitioner further claims that Sri Laxmi Narain Dwivedi Advocate, Allahabad delivered an application and a copy of the representation to respondent No. 3, namely, the District Magistrate, Allahabad on 25-8-198?, who directed him to approach respondent No. 2 i. e, the City Magistrate, and Sri Laxmi Narain Dwivedi then contacted respondent No. 2 and ultimately the representation was delivered to respondent No. 3 on 26-8-1982. This is refuted by the District Magistrate. In between the State Government referred the matter to the Advisory Board on 19-8-1982 as required under Section 10 of the National Security Act (hereinafter referred to as N.S.A.). The representation was rejected by the State Government on 8-9-1982.

2. The petitioner has challenged his detention on a number of grounds. The first ground urged before us is that as the detenu was already in jail as under-trial since much before the order of detention was passed he could not be a risk to public security and public order and his detention is vitiated on that ground. The stand of the District Magistrate, Allahabad is that the detenu was likely to be released on bail in Criminal case in question, hence to prevent him from acting in future in a manner prejudicial to public order it was necessary to pass the detention order under N. S. A.

3. The proposition of law that it is open to pass such order in such situation is not disputed as such. What is urged is that firstly it should have been mentioned in the grounds of detention and secondly that no materials existed for the subjective satisfaction of the District Magistrate on the point. Not a single direct authority in support of the first contention has been cited by the petitioner's counsel. Reliance was placed by the learned Counsel for the petitioner upon the case of Smt. Icchu Devi v. Union of India : [1981]1SCR640 . That case is an authority for the proposition that the grounds of detention include documents relied upon in such grounds and the detaining authority is bound to furnish the same. It is not direct authority on the point that where the person sought to be detained under the Preventive Detention Act is already in jail as under trial or convict but the District Magistrate is satisfied that he is likely to be released on bail or acquitted that fact must be stated in the grounds itself as a separate ground and material in support should be supplied. This point was directly involved in the case of Vijay Kumar v. State of J. & K. : [1982]3SCR522 . In that case the following observations were made (Para 9);

Even though this affidavit was filed for the limited purpose, it came on record after the case was taken up for hearing by this Court and the affidavit at least does not throw any light on the vexed question whether the detaining authority was aware of the fact that the detenu on being suspected of having committed serious offence, was already in jail for a period of more than a fortnight before the dale of the impugned detention order ....There is nothing to indicate the awareness of the detaining authority that detenu was already in jail and yet the impugned order is required to be made. This, in our opinion, clearly exhibits non-application of mind and would result in invalidation of the order. We, however, do not base our order on this ground.

4. It is implicit in the observations made in that case that in case it is not laid down in the grounds itself the detaining authority can explain the matter in his counter affidavit. In that case the matter was not explained in the counter affidavit also and on the facts of the case it was apparent that any such materials were not before the detaining authority which could satisfy him that the detenu is likely to be released on bail and the detaining authority did not exercise its mind on the point hence the detention was held vitiated. It is the proposition of law laid down in a ruling whether expressly or implicit which have importance and which are to be weighed.

In the light of the facts of that case the detention was held vitiated but as the Supreme Court considered whether the matter has been explained in the counter affidavit or not though not mentioned in the grounds, for coming to its finding it would itself indicate that if the position stood explained though not satisfactorily explained in that case the detention cannot be held to be bad simply because those facts were not stated in the grounds of detention itself. We are bound by the observations of the Supreme Court in that case and the implied proposition laid down therein. It is a settled law that even the obiter in Supreme Court pronouncement is binding unless there is a direct authority to the contrary of the Supreme Court. In fact, in that case the observations were not made simply as obiter and whatever has been observed in that case and was taken into consideration related to the matter of detention of a detenu who was already in jail from before. In the case of Gopi Ram v. State of Rajasthan : 1967CriLJ279 the following observations were made and would indicate that while determining the validity of the detention of a detenu who is already in jail custody the surrounding circumstances have to be borne in mind:

In the case of a detention order which was served on the detenu while he was already in jail custody, the validity of the order of detention would not necessarily depend upon whether the order was served on him, when he was or was not in jail custody. All the surrounding circumstances have to be borne in mind for deciding whether or not the order is valid.

In case of Masood Alam v. Union of India : 1973CriLJ627 it was held that service of detention order on a person in jail custody is not illegal where detaining authority is satisfied on likelihood of objectionable activities on his release soon.

5. In the case of Ghetu Sheik v. State of West Bengal : 1975CriLJ795 the following observations were made (Para 7):

It is now settled law that if from the circumstances of a particular case, the detaining authority is satisfied that the detention or jail custody of the detenu is about to terminate shortly and further that 'In view of his prejudicial activities in the proximate past an apprehension of his acting in the same prejudicial manner after his release exists, the authority may, if the conditions of Section 3 are satisfied validly make an order of detention even while the detenu is still in jail.' In the grounds enumerated in the case of Dr. Rama Krishna Rawat v. D. M., Jabalpur : 1975CriLJ46 it does not appear that it was stated in the grounds itself that the detenu was to be released on bail shortly as a ground for passing the detention order yet the detention was not held vitiated. In fact the stress is upon the subjective satisfaction of the District Magistrate about the liklihood of the detenu indulging into activities in future in a manner prejudicial to the maintenance of public order and that is basic criterion for a proper approach.

6. The District Magistrate Sri H. C. Gupta in his first counter affidavit in para 9 stated that the petitioner was in jail and had moved an application for bail and since the bail had already been granted to the other accused Sri R.K, Rai, who is the main suspect in that case, there was every apprehension of the petitioner also being released on bail and consequently the detention order was passed. It would no doubt appear that some errors crept in the averments made in aforesaid para 9 but that error has also been satisfactorily explained in the second counter-affidavit later filed by the District Magistrate described as supplementary counter affidavit. In para 1 of the supplementary counter-affidavit he has owned the mistake and error in the averment made in para 9 of the first counter-affidavit by stating that he was informed on 7-8-1982 that the Sessions Judge was granting bail to R, K. Rai on his second bail application moved on 24-7-1982 but the actual position is that on a fervent request by the Government Counsel the Sessions Judge agreed to defer the order and the bail order was ultimately passed on 16-8-1982. Actually the order was passed on 16-8-1982 granting bail to Sri R.K. Rai. He also offered regret for the earlier mistake made in para 9 of the first counter-affidavit.

7. To satisfy ourselves we summoned the record of the bail matter of Sri R, K. Rai. The record reveals that on 2-8-1982 the bail application of Sri R.K. Rai was heard. The State counsel on the police report requested for some reasonable time so that the investigation may be proceeded without there being any chance of tampering with and time was allowed directing that the matter be put up for hearing on 7-8-1982 and also for orders. It would further appear that on 7-8-1982 the Sessions Judge heard the bail application and though that date was fixed for orders also, he reserved the order fixing 16-8-1982. It is matter of common experience that when such applications are heard and continued arguments are also heard, any shrewd counsel reads the mind of the court and it must have become evident to the D. G. C. that the bail application would be allowed. In any case he may have bona fide entertained such feeling though the order was actually not passed and signed, The Sessions Judge did ultimately pass the order on 16-8-1982 granting bail to Sri R.K. Rai, up to that stage as per observations of the Sessions Judge the prosecution was not able to collect positive evidence showing involvement of the applicant seeking bail in any conspiracy and holding that at best it may be a case under Section 411 I.P.C. to be granted bail.

The law is well settled that in matters of preventive detention subjective satisfaction of the detaining authority is paramount. Of course, it should not be whimsical or passed on imagination. To further satisfy ourselves we called, for the records also and perused it and the police reported for the preventive detention of the present detenu, the District Magistrate did apply and exercise his mind as to make a further query whether the detenu who was already in jail is likely to be released on bail. It was only then when he was satisfied on the point that he passed the detention order. He has thus not based his satisfaction either on whims or on imaginary grounds. His mind was very much focused on the point whether the detenu who is already in jail is likely to be released on bail and thereafter on his subjective satisfaction he has passed the order of detention notwithstanding that the detenu was already in jail as under trial. It cannot be urged that there was no base for such satisfaction.

8. It was next urged that once a preventive detention is made and the attention of the court is invited challenging the detention. the detaining authority is bound to justify it and for that the counter-affidavit is the only mode and the court cannot look into the records. There may be some casual observations of the Supreme Court in any particular case or cases. While handling habeas corpus petitions we have noticed that the Supreme Court in a number of cases itself asked for records to satisfy itself on any point. There is thus no legal bar to looking into the records and it is always open to a court, dispensing justice, to look into the records itself as to find the true position. In the present case we considered the perusal of the record as a must. The District Magistrate filed two counter-affidavits. In the first one some erroneous observations were made and the second counter-affidavit was filed to explain the matter also offering regrets for the errors in the averments made in the first counter-affidavit. In this background we considered it necessary in the ends of justice to look into the records as to satisfy ourselves whether the averment made in the second counter affidavit is just an afterthought, whenever any ambiguity occurs the records throw abundant light in the matter and in that background the records were also perused for which there is no legal bar.

9. It was next urged that pendency of bail application of Sri R.K. Rai and granting any bail to him is irrelevant and on the basis of the same it could neither be inferred nor thought that the present detenu may also be released on bail. Unfortunately in the bail application of R.K. Rai as well as in the bail order the crime number is not mentioned. However, from a perusal of the bail order it would be found that the case against Sri R.K. Rai related to the possession of a Car No. M.R.H. 2021 said to be stolen property. In the grounds furnished to the detenu it would be found that one of the cases referred therein related to Crime No. 457. A copy of the F.I.R. of that case was furnished to the detenu concerned but it has not been annexed. However, from a perusal of ground No. 1 it would be found that the case under Section 392 I.P.C. against the detenu concerned Crime No. 457 of 1982 which related to the very car which is said to have been recovered from the possession of Sri R.K. Rai on the pointing out of the detenu itself as .stated in the grounds. In the circumstances there is no force in the submission that Sri R.K. Rai who was granted bail was not involved in the crime in which the detenu was involved, rather Sri R.K. Rai was one of the main culprits and it was from his possession that the car was recovered. In the aforesaid circumstances when Sri R.K. Rai's bail application was heading for success any man of any ordinary intellect and prudence would bona fide believe that if the main person from whose possession the very car has been recovered is going to be released on bail, the detenu involved in the very case of robbery of car would more likely be released on bail on the grounds of parity in bail matters. We are constrained to observe that when the arguments in this habeas corpus petition commenced the counsel then arguing, it rightly did not dispute that : Sri R.K. Rai who has been granted bail was also involved in the very matter but still this dispute was raised at much later stage. The case of Satpal v. State of Punjab reported in : 1981CriLJ1867 is an authority for a proposition that the Court should not act on technicalities. While considering the delay on part of the State Government the following observations were made:

The contention that unexplained delay on the part of the State Government is sufficient to invalidate the order of detention can hardly be accepted. The Court must look at the substance of the matter and not act on mere technicalities.

The substance of the matter in this case is that the District Magistrate did focus his attention and did exercise his mind as to then arrive at subjective satisfaction that though the detenu then in jail as under trial, is likely to be released on bail and such satisfaction had a base and was not imaginary Or whimsical hence notwithstanding that it was not made a ground of detention was such as to incorporate it in the grounds, the detention is not vitiated on the alleged ground.

10. The next point urged is that the State Government itself did not forward the representation of the detenu to the Advisory Board. If is noteworthy that Section 10 of the N.S.A. requires that the State Government must place the relevant papers and representation of the detenu, if any received by that time, before the Advisory Board within three weeks from the date of detention. The expression 'within three weeks' would not mean that the State Government should necessarily wait up to dead line. In fact, Section 10 provides simply the maximum time limit and nothing beyond that. The State Government is thus empowered to place the relevant papers before the Advisory Board at any time within that period and rather in such matters expedition is always indicated though detention would not be vitiated even if the maximum period permissible is availed of. In the present case the detention order was passed on 9-8-1982 and served on 10-15-1982 and the matter was referred to the Advisory Board on 19-8-82 which was permissible in accordance with law.

By that time the detenu had not even made a representation as to admit of the State Government placing it before the Advisory Board on 19-8-1982. The learned Counsel for the petitioner further urged that the State Government has not placed it before the Advisory Board even after the representation was made and received by the State Government. We called for the records of the Advisory Board and we find that Superintendent Central Jail, Naini, who had received the representation in triplicate did send one of the representations direct to the Advisory Board by Special messenger and it was received at that end on 30-8-1982 that is within the period of three weeks as provided under Section 10 of the N.S.A. It was urged that the Superintendent Central Jail, Naini had no business to send it to the Advisory Board and it is the State Government which should have placed it before the Advisory Board itself. We are not convinced by such argument. The Superintendent Central Jail as well as the District Magistrate function as the limb of the State Government and are in no way strangers to the matter in the mechinery involved. Unexplained delay on the part of the Superintendent Central Jail or District Magistrate have vitiated detention because they are part of the whole machinery and limbs of the State Government.

When that is the position and through the Superintendent Central Jail, a limb of the State Government the representation was placed before the Advisory Board within three weeks as required there is no illegality or irregularity and in substance there is a compliance of Section 10 of the N.S.A. We got the records of the State Government also. The Superintendent Central Jail while despatching one of the representations in triplicate informed the State Government about the factual position and it would have been uncalled for duplication on the part of the State Government to send any second copy of the representation. As observed in the case of Satpal (supra) Courts have to look into the substance and not technicalities and once it is found that the representation of the detenu has been placed before the Advisory Board within the stipulated period most expeditiously through the limb of the State Government, there is complete compliance of Section 10 and the detention of the petitioner is not vitiated on that ground.

11. The third Point that has been urged is that the representation of the detenu was not dealt with expeditiously by the State Government and there is an unexplained delay on its part. The supplementary counter affidavit of Sri Vishnu Sahai, Upper Division Assistant. Confidential Section 6. U. P. Secretariat, Lucknow is important. It would show that the petitioner's representation was received by the State Govt. in the Secretariat on 30-8-1982. The comments of the District Magistrate, Allahabad was received On 4-9-1982. On the same day a detailed note on the petitioner's representation was prepared by the Section concerned and was submitted together with the representation to the Joint Secretary Home. 5-9-1982 was Sunday so the Joint Secretary Home examined it on 6-9-1982 and the Home Secretary himself also examined and on 7-9-1982 sent it to the Chief Minister for orders who rejected it on 8-9-1982. It was urged that after the representation was received by the State Government from the Superintendent Central Jail Naini the State Government should have immediately called for the comments of the District Magistrate, Allahabad instead of waiting fop his comments in pursuance of the copy of the representation delivered to him by the Superintendent Jail, Naini. We have a feeling that this submission is too technical, still in our anxiety to fully consider the arguments submitted before us for the detenu we perused the records of the State Government and we find that the State Government did not keep sleeping over the matter or in any way dealt with the representation in a cavalier manner and did send a wireless to the District Magistrate on 31-8-1982 calling for his comments.

12. The Superintendent Central Jail Naini forwarded the representation on 28-8-1982 so there was no delay at his end. It is urged that there has been delay on the part of the District Magistrate as well as State Government. It was argued that in the case of Harish Pahwa v. State of U. P. : 1981CriLJ750 the State Government received the representation on 4th June 1980 but for two days no action was taken. It is well settled that each case is decided in the light of its own individual facts and circumstances. In that case it was found that that apart from 4th and 5th June on 25th June 1980 also no action was taken. It was also not clear as to what consideration was given by the Government from 13th June to 16th June 1980.

In that case State Government took six days itself for its own consideration even after the opinion of the Law Department taking three days. The factual position was that the representation dated 3rd June 1980 was received by the State Government on 4th June 1980 and it was actually disposed of after a long interval on 24th June 1980. It was in this context that the delay in disposal of the representation was held fatal. Reliance was also placed upon the case of Smt. Icchu Devi : [1981]1SCR640 (supra). .In that case there was very long delay in the supply of documents and materials and that weighed with the court. Reliance was also placed upon the case of Smt. Khatoon Begum v. Union of India : 1981CriLJ606 particularly upon the following observation 'the right and an obligation to make and to consider the representation at the earliest opportunity is a Constitutional imperative which cannot be curtailed or abridged.'

In that case it was stressed that procedures calculated towards expeditious consideration of the representations should be adopted. According to the well settled law it is the ratio of the pronouncement which is important. It is also a well settled law that the law is to be applied to the facts of each individual case. As to the exact number of days to be taken in disposal of any representation any rigid and inflexible rule does not exist. In the case of Frances Coralie Mullin v. W. C. Khambra : 1980CriLJ548 after considering a number of other authorities dealing with the matter of delays, namely, (1) Jayanarayan Sukul v. State of West Bengal, : 1970CriLJ743 , (2) Narendra Purshotam Umrao v. B. B. Guzral, : 1979CriLJ469 and (3) Ramchandra A. Kamat v Union of India : [1980]2SCR1072 , the following observations were made while summing up:

Several such situations may arise compelling departure from the time imperative. But no allowance can be made for lethargic indifference. No allowance can be made for needless procrastination. But, allowance must surely be made for necessary consultation where legal intricacies and factual ramifications are involved.

It was also observed in this case that while in the case of Prabhakar Shankar Dhuri v. S. G. Pradhan. (1971) 3 SCC 896 (2) and in case of Kantilal Bose v. State of West Bengal : 1972CriLJ1034 delay of 16 days and 28 days respectively in disposing of the representation of the detenu was held fatal and in the case of Nagendra Nath Mondal v. State of West Bengal, : 1972CriLJ482 , a delay of 34 days did not affect the validity of detention. In the case of Shyam Ambalal Siroya v. Union of India, : 1980CriLJ555 it was observed that it may be permissible to take reasonable time for disposing of any review petition.

13. In the case of Tara Chand v. State : 1980CriLJ1015 it was held that if there is inordinate delay in considering the representation the (detention would be invalidated.

14. In case of Rattan Singh v. State of Punjab, (AIR 1982 SC 1) : (1982 Cri LJ 146) the law laid down is that the disposal should be with reasonable expedition.

15. The ratio of the latest pronouncements of the Supreme Court can thus be summed up as follows : (a) there should be no inordinate delay (b) the representation should not be dealt with in a cavalier fashion (c) it should be disposed of with reasonable expedition (d) allowance should be made for necessary consultations. The matter has to be examined in the background of the facts of individual case and then apply the law. It will be needless to multiply the citations. As laid down in Satpal's case (1981 Cri LJ 1867) (supra) Courts cannot be too technical in their approach and as observed in the case of Frances Coralie (1980 Cri LJ 548) (supra) things do not move mechanically and the time imperative can never be obsessive.

16. Now considering the facts of this case we find that there is no delay on the part of the Superintendent Central Jail, Naini in forwarding the representation. The counter affidavit of the District Magistrate would show that after receiving the representation from the Superintendent Central Jail, Naini, the District Magistrate invited comments from the S. P. City without any delay and that comment was received on 2-9-1982 along with the comments of the Station Officers Canington and Colonelgani respectively. When the two incidents mentioned in the grounds related to different offences it would be incumbent to call for their reports and comments before the District Magistrate could send his comments. The District Magistrate without any delay sent the comments on 3-9-1982, which was received by the State Government on 4-9-1982. The District Magistrate thus also did not cause any delay. To properly deal with any representation the State Government is justified in calling for the comments from the Home Department.

On 5th September, 1982 a detailed note was prepared by the Section concerned and the Joint Secretary Home examined it on 6-9-1982 and the Home Secretary examined it also on 7-9-1982, and thereafter it was immediately placed before the Chief Minister who rejected it on 8-9-1982. The time consumed at each end is reasonable. If things are not to be done just mechanically and mind has to be exercised as is imperative comments will be required. It is the District Magistrate who passed the detention order and his comments would be must and naturally when he formulated the grounds on the basis of incident police report was also imperative. It therefore cannot be urged that the representation was dealt with either in cavalier manner or with any inordinate delay. It is also not a case in which the representation was handled in unexpeditious manner. The arguments of the learned Counsel for the petitioner that according to law laid down by the Supreme Court every day's delay has to be explained is repelled by the following observations made in the case of L. M. S. Ummu Saleema v. B. B. Gujaral, : [1981]3SCR647 relying upon the case of Frances Coralie (1980 Cri LJ 548) (supra) 'The occasional observations made by this Court that each day's delay in dealing with the representation must be adequately explained are meant to emphasise the expedition with which the representation must be considered and not that it is a magical formula, the slightest breach of which must result in the release of the detenu. Law deals with the facts of life. In law, as in life, there are no invariable absolutes. Neither life nor law can be reduced to mere despotic formulae.

We therefore hold that there is no unexplained delay in disposing of representation of the detenu and consequently the detention is not vitiated on any such ground.

17. In half hearted manner it was also urged that the detenu furnished a representation through Laxmi Narain direct to the District Magistrate and the District Magistrate should have dealt with the same without waiting for the representation being forwarded by Superintendent Jail, Naini. The counter affidavit of the District Magistrate is categorical on the point. While replying to the averments made by the detenu in paragraphs 6 to 10 of the petition the District Magistrate in his first counter affidavit in paragraph 7 has stated that the application of Laxmi Narain Dwivedi was received by the District Magistrate together with the photostat copy of the application of Sri Kishori Lai Shukla and Sri Laxmi Narain Dwivedi addressed to Superintendent Jail, Naini for granting them permission to meet the detenu and the District Magistrate called for a report whether there was any objection for according such permission and there was 'no objection' report but none turned up.

He has denied that any representation annexed as Annexure 5 was presented to him. The circumstances bear out the stand of the District Magistrate. It seems that the Superintendent Naini Jail was contacted on behalf of the detenu and representations were furnished to him in triplicate which he forwarded including the one to the District Magistrate. Had any representations as such were, furnished to the District Magistrate for his consideration, a receipt would have been obtained in token of the same. In the circumstances we find it difficult to believe that actually any such representation was presented to the District Magistrate direct. The circumstances speak for themselves and suggest that actually the person concerned desired that the report may be got signed by the detenu and with that end in view first the D. M. was approached and then the representation in triplicate was delivered to the Superintendent Jail, Naini who after doing the needful forwarded it to the authority concerned.

18. The next point urged is that the matter referred to in the two grounds furnished to the detenu related to law and order and not public order, hence no detention order could be passed under Section 3(2) of the N. S. A. The first ground stated that on 16-12-1981 at about 6 P, M. Ashok Kumar Pandey with others with convoy of four new ambassador cars was to proceed from Shastri Bridge to Jhansi and Etah and when Ashok Kumar was standing at Shastri Bridge with his blueish white abmassador car the detenu with his companions arrived and entered the car and on pistol point made him drive and thereafter placed bandage over his eyes driving the car onward and then left Ashok Kumar near Shankargrah and proceeded with the looted car. A report about the matter was lodged at Daragani police station on 17-12-1981 and Crime No, 457 under Section 392 was registered and first a final report was made but on arrest of the detenu in Crime No. 256, under Sections 382, 392 and 411, within the circle of Police Station Canington and On his confession then made and the recovery of the car from Sri R.K. Rai, previous Reader of the S. S. P. Allahabad, on the pointing out of the detenu investigation started afresh which is pending.

It, was further stated that a copy of the confessional statement, a copy of the F.I.R. and a copy of the memo was furnished. The second ground recited that on 23-7-1982 at about 5.45 A. M. the detenu robbed the bullet motor cycle U.R. Section 348 at the gate of St. Joseph School, accompanied by his companion Sri S. B. Singh at pistol point and a report of the incident was lodged by father Apolin Lobo at P. S. Caning-ton on the same day and a case Crime No. 256 was registered and during investigation the involvement of detenu was found in the loot as is borne out by the police report a copy of which is furnished. It was also stated that the Motor Cycle was recovered from the possession of the detenu as is borne out by the recovery memo, copy of the F.I.R. is also furnished. It was further stated that the detenu has been dismissed but the District Magistrate is apprehensive that he may in future continue to indulge in such activities terrifying public. It was then further stated that the District Magistrate is satisfied that he may indulge in such activities and to prevent him from acting in any manner prejudicial to the maintenance of public order his detention is necessary.

19. The ratio of public order and law and order much depends upon the impact of the act. If the impact of the act is confined to individual only it may be a matter of law and order while if the act will have any impact upon a large section of the community the act will fall within the realm of the public order. It is the question of degree and the extent of the impact of the act upon the society which is vital. Public order embraces more of the community than law and order. One of the vital factors is to consider the effect of the act on the even tempo of the life of the community. In its quality the act within the orbit of law and order may not differ from the act within the orbit of public order and it is always the matter of potentiality and similar acts in different contexts affect public order on the one hand and law and order on the other hand. This principle of law has been laid down in the case of Arun Ghosh v. State of West Bengal, : 1970CriLJ1136 . We have mentioned this at the very outset to stress that each case has to be considered in the light of the individual facts and circumstances with an eye to the impact of the act and the similar act in one case may fall within the orbit of law and order while in other case, in view of its impact, may fall within orbit of public order and pronouncements cited by the other side have to be considered in that light.

20. Learned Counsel for the' applicant relied upon the following pronouncements of the Supreme Court:

1. Suslianta Goswami v. State of West Bengal (AIR 1969 SC 1004); 2. Kishori Mohan v. State of West Bengal : AIR1972SC1749 : 3. Dipak Bose v. State of West Bengal, : AIR1972SC2686 ; 4. Manu Bhushan v. State of West Bengal, : 1974CriLJ401 ; 5. Magan Gope v. State of West Bengal, : 1975CriLJ791 ; 6. Ashok Kumar v. Delhi Administration, : 1982CriLJ1191 .

21. It is the ratio of the pronouncements which are to weigh and not that in a particular case any particular act was held to be within the orbit of law and order.

22. In the case of Ashok Kumar (1982 Cri LJ 1191) (supra) it, was observed as follows (Para 13):

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 determinant of its own ; gravity. It is the potentiality of the act ! to disturb the even tempo of the life of the community which make it prejudicial 'to the maintenance of public order.

23. In the case of Kishori Mohan v. State of West Bengal : AIR1972SC1749 (supral also relying upon the case at Arun Ghosh (1970 Cri LJ 1136) (supra), stress was laid upon the potentialities of the act in question and not simply the act itself. It is the effect of the act which is vital and material. The State counsel has also relied upon five pronouncements reported in AIR 1972 SC, namely, (1) Sk. Kadar v. State of West Bengal, Page 1647 : (1972 Cri LJ 997) (2) Kanu Biswas v. State of West Bengal page 1656 : (1972 Cri LJ 1006) (3) Amiya Kumar v. State of West Bengal, page 2259 (4) Kishori Mohan v. State of West Bengal, page 1749. and (5) N. N. Mondal v. State of West Bengal page 665 : (1972 Cri LJ 482).

24. In the case of Sk. Kader (supra) it was observed that the test is whether the acts committed are of such a nature or potentiality as to travel beyond the immediate victims and affect the general public.

25. In the case of Kanu Biswas (1972 Cri LJ 1006) (supra) the observation made is that 'whether the act leads to the disturbance of the current of life of the community or whether it affects merely an individual leaving the tranquillity of the society undisturbed'.

26. In the case of Kishori Mohan : AIR1972SC1749 , (supra) it was observed that while one act may affect individuals another one act though of a similar kind may have such an impact that it would disturb the even tempo of the life of the community.

27. Similar tests were applied in the other cases also and we need not enter into a detailed discussion.

28. In the case of Manu Bhushan Roy v. State of West Bengal (1974 Cri LJ 401) (supra) a number of prouncements of Supreme Court including some of those mentioned by us were considered and the very tests were applied. The case of Dr. Ram Manohar Lohia reported in : 1966CriLJ608 was quoted and the following observations made in that case are important (para 7):

It is always a question of degree of the harm and its effect upon the community. 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 an individual leaving the tranquillity of the society undisturbed. This question has to be faced in every case on facts. There is no formula by which one case can be distinguished from another.

This very view was reaffirmed in the, case of N. N. Mondal (1972 Cri LJ 482) (supra). In the case of Wast Uddih Ahmed v. District Magistrate, Aligarh, : 1981CriLJ1825 , one of the later pronouncement the following observations were made which provide a test for determining whether the act falls within concept of law and order or public order.

The distinction between concepts of 'law and order' and 'public order' is one of the degree and the extent of the reach of the act upon the society. An act by itself is not determinant of its gravity. In its quality it may not differ from another but in its potentiality it may be very different. Any contravention of law always affects order but before it could be said to affect 'public order' it must affect the community or the public at large.

it will be needless to multiply the citations when it would be found that the concepts laid down in the case of Dr. Rani Manohar Lohia (1966 Cri LJ 608) (supra) and Arun Ghosh's case (1970 Cri LJ 1136) (supra) have been repeatedly reaffirmed and reiterated.

29. We have therefore to consider whether the impact of acts attributed to the detenu is confined to the individual or the potentiality of the act in the light of the facts and circumstances of . the case is such as would disturb the even tempo of the life of the community. We have already laid down the two acts attributed to the detenu earlier while laying down the grounds. When police personnel meant to protect the life and property of the citizens themselves indulge into activities disclosed in grounds Nos. 1 and 2 of the petition its impact will not remain confined to the individual victims but such act is bound to disturb the even tempo of the life of the community and create panic and no one will feel safe. To make one drive his car out of a convoy for different destinations on pistol point from an important place like Shastribridge and to forcibly enter into the car and then take away the car as loot is bound to create panic and is bound to disturb the even tempo of life of the community.

When such acts indulged into by a police personnel who exists for protecting the life and property of the people they are all the more bound to feel unsafe when such acts are indulged into in a big town like Allahabad and all the more so when any members of the force meant to provide protection and safety indulged into such acts people are bound to get reluctant to proceed on vehicles in the evening hours when any bridge is. to be crossed. Such acts attract wide publicity and create scare. In the like manner loot of a motor cycle in a broad day light on pistol point in the main city of a town like Allahabad again is bound to disturb the even tempo of the life of the community and. create a scare. The detenu may be no more in force but may yet indulge in such activity.

The potentiality of the aforesaid acts are such that the impact will not remain confined to the individual but would affect the smooth life of the community itself. When that is the position, the two activities attributed to the detenu fall within the realm of the public order and the subjective satisfaction of the District Magistrate cannot be considered to be mala fide. The District Magistrate would be well justified in believing that the detenu is likely to indulge in such activities in future also as to disturb the even tempo of the life of the community. The case of Jaya Mala v. Home Secretary, Government J. & K. : 1982CriLJ1777 , was also cited later. The facts of that case are distinguishable. What has been laid down in that ruling is that every minor infraction of law cannot be upgraded to the height of an activity prejudicial to the maintenance of public order. As observed earlier after laying down the principles laid down in large number of Supreme Court cases it is the impact of the act which is vital and we have considered this threadbare. We therefore hold that the detention of the detenu is not vitiated on any ground that the matter concerns law and order and not public order.

30. It was next urged that in one of the two cases, namely, case relating to Ciuine No. 256 of 82 has resulted into acquittal and consequently one of the grounds has become non-existent. It is noteworthy that the grounds on which the detention has been challenged are contained in pages 7 and 8 of the petition and this was not one of the grounds taken by the detenu. The matter involves a question of facts and it should have been expressly pleaded to enable the State Government to meet such stand. On merits also this ground has no force. Reliance was placed upon the case of Smt. Bimla Dewan v. Lieutenant Governor of Delhi, : 1982CriLJ1737 , a three Judges pronouncement of the Supreme Court. In that case grounds contained instances relating to criminal prosecution and the detenu was acquitted in many of them and it was held that the detention being based on consideration of such instances also is invalid.

31. The case of Hardhan Saha v. State of West Bengal. : 1974CriLJ1479 a five Judges Constitutional Bench ruling has threadbare considered this aspect. Vide this pronouncement the case of Biram Chand v. State of U. P. : 1974CriLJ817 was overruled. In the the case of the Biram Chand, the following observations were made (Para 11):

If the District Magistrate in the instant case had not at all taken recourse to the facts of the criminal cases pending against the detenu in Bihar in coming to the conclusion about his reasonable satisfaction for making an order of detention, the matter would have been different. It is clear that the District Magistrate has been influenced by the existence of the criminal prosecutions' in Bihar and he has chosen those grounds to furnish as aids to his satisfaction in order to make the order of detention. We are clearly of the view that the grounds with reference to the pending criminal prosecutions in Bihar could not provide a valid basis for making the impugned order of detention.

In Biram Chand's case a departure was made from the view taken in the case of Mohd. Salim Khan v. C. C. Bose, : 1972CriLJ1020 in which it was held that the mere fact that such criminal proceedings in connection with the same incidents had been adopted against the petitioner and he had been discharged by the trying Magistrate does not mean that no valid order of detention can be passed.

32. In the case, of Haradhan Saha (1974 Cri LJ 1479) (supra) a number of. other authorities taking such view as taken in the case of Md. Salim, (1972 Cri LJ 1020) (supra) have been considered and followed. It may be important to quote the entire paragraph 34 of that ruling referring to other citation as well.

The recent decisions of this Court on this subject are many. The decisions in Borjahan Gorey v. State of W, B. reported in : [1973]1SCR751 , Ashim Kumar Ray v. State of West Bengal, reported in : AIR1972SC2561 ; Abdul Aziz v. Distt. Magistrate, Bardwan, reported in : [1973]2SCR646 and Debu Mahto v. State of West Bengal reported in : 1974CriLJ699 , correctly lay down the principles to be followed as to whether a detention order is valid or not. The decision in Biram Chand v. State of U. P. reported in : 1974CriLJ817 which is a Division Bench decision of two learned Judges is contrary to the other Bench decisions consisting in each case of three learned Judges. The principles which can be broadly stated are these. First, merely because a detenu is liable to the tried in a criminal court for the commission of a criminal offence or to be proceeded against for preventing him from committing offences dealt with in Chapter VIII of the Code of Criminal Procedure would not itself debar the Government from taking action for his detention under the Act, Second, the fact that the Police arrests a person and later on enlarges him on bail and initiation steps to prosecute him under the Code of Criminal Procedure and even lodges a first information report may be no bar against the District Magistrate issuing an order under the preventive detention. Third, where the concerned person is actually in Jail custody at. the time when an order of detention is passer] against him and is not likely to be released for a fair length of time, it may be possible to contend that there could be no satisfaction on the part of the detaining authority as to the likelihood of such a person indulging in activities which would jeopardise the security of the State or the public order. Fourth, the mere circumstance that a detention order is passed during the pendency of the prosecution will not violate the order. Fifth, the order of detention is a precautionary measure. It is based on a reasonable prognosis of the future behaviour of a person based on his past conduct in the light of the surrounding circumstances.' In view of the law laid down in the case of Haradhan Saha as well as in a number of other pronouncements, any acquittal or discharge would not vitiate the detention and we are bound to follow the view taken by the larger Bench Haradhan Saha (supra) relying upon a number of other Supreme Court pronouncements. We, therefore, hold that the detention is not vitiated on account of acquittal in any case which also forms the ground of detention.

33. It was next urged that in the representation the detenu asked for some more materials which were not supplied. It is noteworthy that the list of documents supplied with the grounds to the detenu are contained in the grounds itself, and on scrutiny of such list it would be found that all the materials upon .which subjective satisfaction of the District Magistrate was based was supplied with the very grounds. It would no doubt be found that vide the representation the detenu asked for some additional materials. From the record of the District Magistrate it would be found that such materials were also later supplied and the detenu therefore could make any additional representation if he so desired.

It would be further found from the representation that a number of grounds were already taken in the representation. Had the State Government delayed the disposal of the representation it would have been urged that rights of the detenu guaranteed under Article 22(5) of the Constitution have been violated. In fact argument was also advanced that there was delay in the disposal of the representation of the detenu which was disposed of on 8-9-1982. It would amount to breathing cold and hot at the same lime as on the one hand urge that the State Government should have disposed of the representation much earlier than that date and on the other hand to argue that the State Government should have waited for any additional representation.

In fact, there is nothing to suggest that the detenu made any additional representation after the additional materials asked for were supplied. In the circumstances had the State Government left the present representation of the detenu undecided rather that would have vitiated the detention. It is not a case in which the detaining authority did not supply the materials in support of the grounds which were taken into consideration. It is also not a case in which the detenu did not make any representation before any additional materials were supplied. When that was the position, the State Government had no option but to dispose of the representation already made and the remedy of the detenu lay in making any additional representation which he does not appear to have made.

34. The result is that we do not find any force in thus petition and it is rejected.


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