Skip to content


Santosh Kumar Mohapatra and anr. Vs. State of Orissa and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Case NumberO.J.C. Nos. 1006 and 1007 of 1969
Judge
Reported inAIR1970Ori176; 1970CriLJ1374
ActsPreventive Detention Act, 1950 - Sections 3
AppellantSantosh Kumar Mohapatra and anr.
RespondentState of Orissa and anr.
Appellant AdvocateP. Palit, J. Patnaik, B.C. Ray, U.P. Mohanty, N. Kar and R. Pradhan
Respondent AdvocateAdv. General and S.N. Mitra, Adv.
DispositionApplication dismissed
Cases Referred(Shyamal Chakraverty v. Commr. of Police
Excerpt:
.....at an even tempo, however much one may dislike the act. it involves the conception of an organised life of a community, a society or a people in a collective sense territorially integrated in which various systems operate, system of administration, system of justice, system of education, system of commerce and, business and the like. he, in short, wanted to establish himself as a strong man of the locality whose will was to be respected and carried out. thus, in our opinion, the grounds of detention have a direct bearing on the question of maintenance of public order and activities of the detenus detailed therein are clearly prejudicial to maintenance of public order. act that past conduct or antecedent history of a person can be taken into account at the time of making the detention..........the people. upheaval in the life of an individual or a family scarcely affects community life or public life except where the association of a particular individual or the family with the community or national life is so deep that their personal character has practically ceased to exist. a stronger force is required to cause ripples in the life stream of a community than in the life of an individual or a family. that is why it has been said in many cases that stray acts directed against individuals are not subversive of public order and that it is the degree of disturbance and its effect upon the life of community in a locality which determines whether the disturbance amounts only to a breach of law and order or breach of public order. but prima facie it is difficult to conclude from.....
Judgment:

Bay, J.

1. Santosh Kumar Mohaoatra is the petitioner in O. J. C. No. 1006/69. He was taken into custody by the police acting under Section 151 of the Cr. P. C. and was produced before the Sub-Divisional Officer, Berhampur, on 21-7-69. The Magistrate remanded him to jail custody. Subsequently he was released on bail on 21-8-69. He was re-arrested at the jail gate and detained by Order No. 2316/69 dated 21-8-69 passed by the District Magistrate, Ganiam, in exercise of powers conferred on him by Section 3(2) of the Preventive Detention Act, 1950 (4 of 1950). The petitioner was arrested under this detention order on 21-8-69. The grounds for detention were served on the petitioner on 25-8-69, under Section 7 of the Preventive Detention Act. The petitioner made a full and complete representation, through a personal hearing before the Advisory Board which was of opinion that there was sufficient cause for detention of the petitioner. The Government of Orissa thereafter confirmed this detention order in exercise of the powers conferred under Sub-section (1) of Section 11 of the Preventive Detention Act and directed continuance of his detention for 12 months with effect from 22-8-69. Thereafter the present petition for issuance of a Writ of Habeas Corpus was filed on 14-11-69.

2. Bhagirathi Misra is the petitioner in O. J. C. No. 1007/69. He was arrestedby the police under Section 151, Cr. P. C. and produced before the Magistrate on 21-7-69. The Magistrate remanded him to jail custody. Subsequently he was released on bail. While corning out of jail, he was again apprehended on 21-8-69 at the iail gate on the authority of an order, No. 2314/69 dated 21-8-69 passed by the District Magistrate, Ganiam, in exercise of powers conferred on him by Section 3 (2) of the Preventive Detention Act, 4 of 1950. This order of detention was served on the petitioner that very day, and he was furnished with the grounds of detention on 25-8-69 under Section 7 thereof. This detenu made his representation through a personal hearing to the Advisory Board which expressed its opinion that there was sufficient cause for his detention. On Receipt of the report of the Advisory Board, Government of Orissa confirmed the detention order in exercise of powers under Section 11 (1) of the Act and directed continuance of the said detention for a period of twelve months from the date of detention. Hence this petition was filed under Article 226 of the Constitution of India and under Section 491, Cr. P. C. on 14-11-69 for an order directing his release.

3. The detention order in respect of each of these two petitioners is in identical term. One such detention order is, therefore, extracted herein below for reference:

'Whereas I Shri R. C. Patra, I. A. S. District Magistrate, Ganiam, am satisfied that with a view to preventing Sri Bhagirathi Misra, B.A., son of Sri Budhinath Misra, Bijjipur Tota Sahi, P. S. Berhampur town, District Ganiam, from acting in any manner prejudicial to the maintenance of public order, it is necessary to make the following order:

Now, therefore, in exercise of the powers conferred by Sub-section (2) (a) of Section 3 of the Preventive Detention Act, 1950 (Act 4/50). read with Section 4 thereof, I Shri R. C. Patra, I.A.S. District Magistrate, Ganiam, hereby direct that the said Shri Bhagirathi Misra be detained in the circle Jail, Berhampur, until further orders.'

4. Both these two petitions have been analogously heard as same contentions have been advanced on behalf of each petitioner. This judgment, therefore, . will govern these two cases.

5. The grounds of detention served on each petitioner comprise one main ground, and five sub-grounds. They are identical in each case. Each sub-ground has been particularised and made specific by detailing various activities indulged in by the petitioners. For the purpose of convenience, the grounds of detention containing numerous particulars are re-produced in two schedules, one in respect of each case, appended to the foot of this judgment. Schedule 1 sets out the grounds in respect of the petitioner in O. J. C. 1006/69 and Schedule II reproduces the grounds in respect of the petitioner in O. J. C. 1007/69.

6. Three contentions have been raised by learned counsel for the petitioners: They are: (i) The grounds on which the detention order was made have no bearing upon the question of maintenance of public order. The activities alleged against the petitioners can at most be regarded as prejudicial to law and order and as such, the detention of the petitioners with a view to preventing them from acting in any manner prejudicial to the, maintenance of public order, cannot be justified.

(ii) The particulars of the grounds which purport to demonstrate the past conduct or antecedent history of the petitioners on which the competent authority has ostensibly acted, are not proximate in point of time and have no rational connection with the satisfaction of the said competent authority that a detention order is called for; and (iii) Some of the grounds are vague and as such, the entire detention order is liable to be quashed.

7. Before dealing with the contentions, it is essential to notice the object and requirement of Section 3 of the P. D. Act, so far as they are relevant for our present purpose. The detention order is passed by the authorities enumerated therein in exercise of powers conferred thereunder. As a condition precedent to making an order for preventive detention with respect to any person, the detaining authority must be satisfied that the said person should be prevented from acting in any manner prejudicial to the maintenance of public order. Such satisfaction must obviously be reached on a consideration of the activities of the person against whom the detention order is to be made. Those activities must be of a period anterior to the point of time when the authority decides to make the detention order. The nature of such activities must be such as, in their essential quality or in their potentiality, would have effect on public order. Since the liberty of a citizen is sought to be taken away as a preventive measure in the interest of the community or the public at large, law enjoins that the grounds of such detention must be supplied to the detenu to enable him to make effective representation to the Government and the Advisory Board which is empowered to give its opinion as to the sufficiency of the cause for detention and send a report thereof to the appropriate Government. After perusing the report the appropriate Government may confirm the detention order and continue the detention of the personconcerned for such period as it thinks fit.

8. The subject of preventive detention has been judicially discussed almost threadbare, and many principles have been evolved and settled while adjudicating upon the validity or invalidity of the detention order. The present contentions have been canvassed within the ambit of those principles.

9. ' The first submission is that the activities alleged against the petitioners are not subversive of public order, but are mere disturbances of law and order leading to disorder. It is now well settled that there is distinction between the connotation of law and order' and 'public order'. This distinction and the connotation of the expression 'public order' have been elaborated upon by the Supreme Court in a number of cases.

The latest case on this point cited at the Bar is a decision (not yet reported) given on 2-12-1969 in Writ Petn. No. 287 of 1969 = (Since reported in AIR 1970 SC 1228) (Arun Ghosh v. State of West Bengal). In this case the earlier decisions of the Supreme Court made in (1966) 1 SCR 709 = (AIR 1966 SC 740) (Dr. Ram Manohar Lohia v. State of Bihar); an unreported case decided on 7-11-1969 in Writ Petition No. 179 of 1969 = (Since reported in AIR 1970 SC 852) (Pushkar Mukherjee v. State of West Bengal), and another unreported case decided on 4-8-1969 in Writ Petn. No. 102 of 1969 = (Since reported in AIR 1970 SC 269) (Shyamal Chakraverty v. Commr. of Police, West Bengal) have been noticed and considered.

10. The best exposition on this subject is to be found in the decision of the learned Chief Justice of the Supreme Court in the case of Writ Petn. No. 287 of 1969, D/- 2-12-1969 = (AIR 1970 SC 1228), Nothing better can be done than to quote extensively from the decision of. the Supreme Court in the case of Arun Ghosh referred to above. This is, what the learned Chief Justice has said:

'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 general disturbance and its effect upon the life of the community in a locality which determines whether the disturbance amounts only to breach of law and order. Take for instance, a man stabs 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 deeper and it affects the even tempo of life and public order is jeopardized because the repurcussions 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 grace 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 woman 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 effect upon the public tranquillity 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 oniv committed breach of law and order or has acted in a manner likely to cause a disturbance of the public order is a question of degree and the extent of the reach of the act upon the society.

X X X X XA large number of acts directed against persons or individuals may total up into a breach of public order. In Dr. Ram Manohar Lohia's case examples were given by Sarkar and Hidayatullah JJ. They show how similar acts in different contexts affect differently law and order on the one hand and public order on the other. 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 of 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 on every case on facts.'

11. Thus the 'public order' envisages the even tempo of the life of the community taking the country as a whole on even a specified locality. It involves the conception of an organised life of a community, a society or a people in a collective sense territorially integrated in which various systems operate, system of administration, system of justice, system of education, system of commerce and, business and the like. Such a collective life has a manner of activity of its own which is quite distinct from the life of individuals who comprise the community, the society or the people. Upheaval in the life of an individual or a family scarcely affects community life or public life except where the association of a particular individual or the family with the community or national life is so deep that their personal character has practically ceased to exist. A stronger force is required to cause ripples in the life stream of a community than in the life of an individual or a family. That is why it has been said in many cases that stray acts directed against individuals are not subversive of public order and that it is the degree of disturbance and its effect upon the life of community in a locality which determines whether the disturbance amounts only to a breach of law and order or breach of public order. But prima facie it is difficult to conclude from the mere gravity of an act or the degree of disturbance that there has been violation of public order and not of law and order. Therefore, it has been laid down in Arun Ghosh's case that the test in each case when preventive detention order is made is to assess the effect, both actual and potential of the acts of the detenu on the life of the community. If the actual or potential effect is to throw or tend to throw out of gear any system in the life of a community in any area, it would affect public order.

12. Fundamental rights of freedom of speech and expression, to assemble peaceably and without arms and to form associations or unions are always subject to reasonable restriction in the interest of public order imposed by law. Violent or non-violent, if an activity has the effect of upsetting the even tenor and tempo of life of a community, it is said to affect public order. It does not matter if the activity is motivated by high ideology or excited by laudable reformative spirit. For instance, if black-marketeers are dragged out and whipped in public streets, or houses of rich people are systematically raided and money and articles taken therefrom are distributed amongst the poor, or on plea of changing the system of education or imposing one's own idea on the system students are incited or forced to boycott classes and lecturers are prevented from teaching or in thename of socialism, fields of big landlords are trespassed upon and paddy grown thereon is forcibly cut and removed, all these activities will have the tendency of introducing element of fear and insecurity in the minds of the large section of the public and thereby affecting public order. So also non-violent Satyagraha before public offices and educational institutions and lying down on railway lines to prevent running of trains are activities which have the tendency to cause upheaval in the even tempo of the life of a community. There may also be cases where acts against individuals may have adverse effect on the public tranquillity. Instances, by way of illustration, have been cited in Arun Ghosh's case. Thus, the even tempo of the life of a community may be affected from various aspects. The question whether a particular activity has disturbed the public order or has caused merely a breach of law and order is always a question of degree and the extent of its reach upon the society.

It is therefore pertinent to enquire how grave are the activities comprised in the grounds and how extensively the society is affected by them either singly or cumulatively, so that the even tempo of life is disturbed. While doing so, we must assume for the present that all the particulars of the past conduct and antecedent history of the petitioners art not vague and are admissible ingredients for assessment by the detaining authority.

13. Coming to the case, of Santosh Kumar Mohapatra, petitioner in O. J. C. No. 1006 of 1969, it will be seen that he has been habitually indulging in various activities from 1964 till 13-7-1969 as disclosed by the five grounds, duly particularised and served on him, as reproduced in Schedule 1 to this judgment. The object of the petitioner's various acts has been set out in grounds A, B, C, D and E. The petitioner is directly associated with each act, sometimes alone, and sometimes with associates. His activities showed that he upset the peaceful atmosphere in various educational institutions forced hartals in Berhampur town, incited students to illegal activities, aided adoption of unfair means in university examinations by criminally intimidating invigilators. He with his associate's trespassed into shops and forced sales of goods at what he thought was fair price. He forced hartals and in every activity of his he exhibited violent conduct. He fomented linguistic and communal tensions affecting prejudicially the peaceful co-existence of people belonging to different communities and speaking different mother-tongues. He burnt and destroyed Christian churches. He carried out anti-Telugu and anti-Bengali activities. If it suited his whim, he insulted ladies bymaking indecent remark. He, in short, wanted to establish himself as a strong man of the locality whose will was to be respected and carried out. He wanted to place himself above law. It is not difficult to imagine that his activities affected the student community, the business community, administrative and police authorities in Ganjam District. He openly declared that he would retaliate against the police by resorting to Naxalite type of activities. There is no doubt that the petitioner disturbed the public tranquillity in various spheres of the life of the community habitually right upto 13-7-1969 which indicated that he is likely even in the future to act in a manner prejudicial to the public order. He has directed many of his violent acts against individuals but those activities in conjunction with his other misdeeds add upto a situation where public order and tranquillity is disturbed.

14. So far as petitioner Bhagirathi Misra in O. J. C. No, 1007/69 is concerned, his past conduct and antecedent history relates to the period from 1964 to 13-7-69. The grounds of detention are of the same nature as some of the grounds in regard to the petitioner Santosh Kumar Mohapatra. The only difference is that the number of activities of Santosh is more. Both of them indicate the same tendency to act in a manner prejudicial to public order. Thus, in our opinion, the grounds of detention have a direct bearing on the question of maintenance of public order and activities of the detenus detailed therein are clearly prejudicial to maintenance of public order. The first contention, therefore, fails.

15. The second contention is that the past conduct and antecedent history of the detenus are not proximate in point of time and have no rational connection with the satisfaction of the detaining authority. It is clear from an analysis of Section 3(1) (a) of the P. D. Act that past conduct or antecedent history of a person can be taken into account at the time of making the detention order, because, it is common place that the tendency, inclinations or proclivities of the detenu are largely and clearly indicated from such antecedent history and prior conducts and they also lend a valuable clue to the future propensities of the detenu. They afford invaluable material to the detaining authority to reach his satisfaction as to whether the detenu would act in future in a manner which would be prejudicial to the maintenance of public order. It is while past conduct or antecedent history is taken into account by the competent authority acting under Section 3 of the Act that the other doctrine that such past conduct or antecedent history must be proximate in point of time and have rational connec-tion with the satisfaction reached by him comes into operation. It does not require much argument to appreciate that past conduct of the detenu, if not proximate in point of time, cannqt reasonably lead to an inference that the tendency of the detenu is to act in a manner prejudicial to the public order in future. Unless such an inference is reached there would be nothing to prevent the detenu from doing to maintain public order and action under Section 3 of the Act will be unjustified. But keeping in mind the reasons for that rule, it is quite obvious that when the detenu has been acting prejudicially to the public order continuously, and repeatedly since a long time in the past upto the present, the entire antecedent history may be taken into account and that such past conduct has patently a rational connection with the satisfaction that the authority is to reach under Section 3(1) of the Act. This contention, therefore, fails.

16. The third and the last contention is that the grounds are vague. It is now well settled that if the grounds are vague, then the detention order cannot be maintained because the detenu by reason of the vagueness of the grounds is deprived of his constitutional right under Article 22(5) of the Constitution of making effective representation against his detention. So, if out of a number of grounds of detention, one is vague and the detenu, is, on that account, deprived of his right of making representation against that ground, his detention is liable to be quashed notwithstanding that the other grounds are good grounds, because in that case, it is impossible to predicate as to how the mind of the detaining authority might have acted by exclusion of the one ground found to be vague.

We have gone through the particulars one by one in each case. The particulars set forth in the grounds in respect of each petitioner implicate him and references therein to the date, place and the overt act are reasonably sufficient to give him notice of the matter with which he is charged. The petitioners are told what they did, when and where they did it. From the nature of the act imputed to him it is not possible to fill in all details and lack of such details does not make the grounds vague so as to virtually deprive the detenu of his statutory right of making an effective representation. In our opinion, there is no substance in this contention.

17. We are, therefore, satisfied that the acts of the petitioners amount to breaches of public order and their past conduct indicates a tendency or inclination on their part from which it is reasonable to infer that they are likely to act in a manner prejudicial to the main-tenance of the public order. In the circumstances the order of preventive detention must be maintained.

These two writ applications are accordingly dismissed.

G. K. Misra, C.J.

18. I agree.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //