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Dusmanta Kumar Dash Vs. State of Orissa and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Judge
Reported in1982CriLJ1627
AppellantDusmanta Kumar Dash
RespondentState of Orissa and anr.
Cases Referred and Haradhan Saha v. State of West Bengal
Excerpt:
.....equated with an ordinary murder which is not an uncommon occurrence, can hardly be said to disturb public peace or place public order in jeopardy, so as to bring the case within the purview of the act. though public order has not been defined, the distinction between law and order and public order has been clearly drawn and ordinarily problem of law and order cannot constitute itself o be a problem against public order. scooter from the house of the owner even when he was present and the detenu and his associate were able to keep the members of the staff of the college at, bay, is clearly indicative of the reaction of the incident and the effect it had in terrifying the people of the locality. we must also indicate that social metabolism has dwindled and what could once upon a time be..........were terrified and were to close down their shops.(v) during the night of 14/15-5-1981, the detenu armed with a sword went to hatbazar grounds where a palla (a music performance). was being held and shouted for one bikraro jena whom he wanted to kill because he had given evidence against him. one of the local police officers arrived at the scene and tried to seize the sword, but the detenu attacked him and inflicted injuries.3. the only contention in support of the petition raised by counsel for the petitioner was that grounds (i) and (v) were not connected with maintenance of public order and related to incidents which the ordinary law of the land could adequately deal with. since these two grounds did not come within the ambit of section 3(2) of the act, and the law being that.....
Judgment:

R.N. Misra, C.J.

1. Challenge in this application under Article 226 of the Constitution is to the order dated 10-8-1981 made in exercise of powers under Section 3(2) of the National Security Act, 65 of 1980 (hereinafter referred to as the 'Act') by the District Magistrate (opposite party No. 2) and grounds of detention as given in Annexure-1 were communicated on 12-8-1981.

2. The five grounds were provided to the detenu in accordance with the requirements of Section 8 of the Act. Shortly stated, the grounds are:

(i) On 9-2-1981 at 6 P. M. the detenu along with one Pradeep Kumar patnaik alias Chandu armed with gupti entered into the college campus of Nirakarpur College and forcibly took away a Lambretta Scooter No. APV 7079 belonging to Sri B. K. Murty, Head of the Department of physics of the said College from his residence in spite of protests and entreaties, The detenu found that the scooter was not in working order and carried it to a mechanic for repairs. The owner of the scooter along with other members of the staff reached the place, but all of them were helpless as the detenu had reputation of being a notorious and violent character. This incident spread a terror in the locality;

(ii) At about 3.30 A. M. in the night of 10-2-1931, the detenu along with Tukuna alias Manoranjan and Chandu alias Pradeep Kumar Patnaik came armed with Pharsa, sword and dagger and demanded of the santry constable No. 73 found at the Jatni Police Station to hand over the keys of the police Hazat so that the detenu could kill one Milu alias Manas Ranjan Mohanty and another Hadu alias Birendra Kumar Mohanly who were inside the Hazat having been accused of offences. The detenu and his associates forcibly searched the person of the constable after putting him in fear of death. The constable called the constable inside the police station to open the door and after coming in bolted the same from inside. The detenu and his associates forcibly broke open the door entered inside the Hazat. At that point of time, the A. S. I. of Police Sri N. C. Mohanty and Constable No. 269 B. Majhi shouted for help by raising a hulla and the Officer-in-charge and others appeared on the scene. In the scuffle, the A. S. I. sustained bleeding injuries.

(iii) While the detenu was on bail in a pending criminal case, at about 11 A.M. on 29-4-1981, he along with four or five persons armed with knives and guptis went to the shop of one Bijay Kumar Yadav of Ramchandrapur Bazar of Jatni and extorted Rs. 50/-from him under threat of life. This incident occurred in a busy market place in presence of many people of the locality and created panic among the law-abiding people. The detenu was arrested and charge-sheeted for offence under Section 384, penal Code, but after he was released on bail, he threatened the complainant and again extorted Rs. 300/-from him as penalty for having reported to the police.

(iv) On 29-4-1981, the detenu along with one Sukanta Behera of Hatbazar being armed with sword, bhalla, gupti and knife attacked one Appa Rao and his associates who were equally armed and in the open market before the members of public, the two groups indulged in rioting untill the local police arrived. The local shop-keepers were terrified and were to close down their shops.

(v) During the night of 14/15-5-1981, the detenu armed with a sword went to Hatbazar grounds where a Palla (a music performance). was being held and shouted for one Bikraro Jena whom he wanted to kill because he had given evidence against him. One of the local police officers arrived at the scene and tried to seize the sword, but the detenu attacked him and inflicted injuries.

3. The only contention in support of the petition raised by counsel for the petitioner was that grounds (i) and (v) were not connected with maintenance of public order and related to incidents which the ordinary law of the land could adequately deal with. Since these two grounds did not come within the ambit of Section 3(2) of the Act, and the law being that if one ground fails the entire order of detention gets vitiated, the order of detention is liable to be quashed.

It may be pertinent to indicate that one more contention had been advanced, namely, the order of detention had not been confirmed by the State Government on the basis of the report of the Advisory Board immediately after the report of the Board was received and, therefore, the further detention of the petitioner was violative of Article 22(4) of the Const., This point was, however, not pressed in course of argument as from the original records produced by learned Government Advocate it transpired that such an order had been made immediately after the receipt of the opinion of the Advisory Board.

4. The remaining submission which has been pressed at the hearing, therefore, is essentially based upon grounds (i) and (v) being not connected with 'public order' and, therefore, it has been contended that the detention is vitiated. Section 3(2) of the Act provides:

The Central Government on the State Government may, if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial ...to the maintenance of public order, ...it is necessary so to do make an order directing that such person be detained.

Sub-sec. (3) provides:

If, having regard to the circumstances prevailing or likely to prevail in any area within the local limits of the jurisdiction of a District Magistrate...., the State Government is satisfied that it is necessary so to do, it may, by order in writing, direct, that during such period as may be specified in the order, such District Magistrate ...may also, if satisfied as provided in Sub-section (2), exercise the powers conferred by the said Sub-section:

Provided....

In the instant case, power has been exercised under Section 3(3) to make the order of detention. Analysing the grounds (i) and (v), petitioner's counsel has argued that these two grounds are not connected with 'public order.' Reliance has been placed on the ratio laid down in the case Sushanta Goswami v. State of West Bengal AIR 1969 SC 1004, where it was pointed out (Para 8):. As has been observed in W. B. No. 179 of 1968. Dt. 7-11-1968 {SO the contravention of any law always affects order but before it can be said to affect public order it must affect the community or the public at large. A mere disturbance of law and order leading to disorder is not necessarily sufficient for action under the Act but a disturbance which will affect public order can alone justify detention under that head....

Reliance was next placed on the case of Kishori Mohan Bera v. State of West Bengal : AIR1972SC1749 , where referring to the case of Dr. Ram Manohar Lohia v. State of Bihar : 1966CriLJ608 , the Court observed (at p. 1752):

In Dr. Lohia v. State of Bihar : 1966CriLJ608 this Court explained the difference between the three concepts of law and order, public order and the security of the State and fictionally drew three concentric circles, the largest representing law and order, the next representing public order and the smallest representing security of the State. Every infraction of law must necessarily affect order, but an act affecting law and order may not necessarily also affect the public order. Likewise, an act may affect public order, but not necessarily the security of the State. These observations' clearly bring out the distinction between each of the three concepts, and the three imaginary concentric circles help to delineate the respective areas of the three concepts...

Reliance was next placed on the decision of the Supreme Court in the case of Manu Bhushan Roy Prodhan v. State of West Bengal : 1974CriLJ401 , where considering the facts of that case, the Court pointed out that where the ground of detention merely mentions murderous assault by the detenu on a person but does not show either the nature of the weapon used or the nature of extent of the injuries inflicted or the motive for the purpose of assault or as to how long after the assault the injured person died, the ground is not at all relevant for sustaining the order of detention for preventing the detenu from acting in a manner prejudicial to the maintenance of public order. This kind of solitary assault on one individual which may well be equated with an ordinary murder which is not an uncommon occurrence, can hardly be said to disturb public peace or place public order in jeopardy, so as to bring the case within the purview of the Act. It can only raise a law and order problem and no more; its impact on the society as a whole cannot be considered to be so extensive, widespread and forceful as to disturb the normal life of community thereby rudely shaking the balanced tempo of the orderly life of the general public.

A Bench of this Court in the case of Ashok Das v. Addl. Dist. Magistrate Cuttack : AIR1975Ori170 , dealt with the distinction between 'public order' and 'law and order' and stated (at p. 173).-

Public order and law and order were appropriately differentiated by the Supreme Court in the case of Arun Ghosh v. State of West Bengal : 1970CriLJ1136 . It was pointed out that the true distinction between the areas of law and order and public order is one of degree and extent of the reach of the act in question upon society. Acts similar in nature, but committed in different contexts and circumstances might cause different reactions : in one case it might amount to a breach of law and order and in another, breach of public order. Though Public order has not been defined, the distinction between law and order and public order has been clearly drawn and ordinarily problem of law and order cannot constitute itself o be a problem against public order...

5. Learned Government Advocate has also referred us to several cases of the Supreme Court such as Nishi Kanta Mondaly State of West Bengal : 1972CriLJ904 ; Borjahan Gorey v. State of West Bengal : [1973]1SCR751 : Mohd. Subrati alias Mohd Karim v. State of West Bengal AIR 1972 SC 207 : 1974 Cri LJ 397; Golam Hussain alias Gama v. Commr. of police, Calcutta : 1974CriLJ938 and Haradhan Saha v. State of West Bengal : 1974CriLJ1479 . From these cases, four tests can be culled out, namely (i) the potentiality of the act committed; (ii) the degree of its impact; (iii) extent of disturbance of even tempo of life of the community; and (iv) the reaction of common man with reference to the incident. As pointed out in Arun Ghosh's case AIR 1970 8C 1228 : 1970 Cri LJ 1136, the same act in a given setting may appertain t6 law and order while in a changed setting may be in the realm of public order.

6. The five acts referred to in the grounds are ill incidents between February and May bf 1981. Petitioner claims to be young man of 18, but from his activities catelogued above he seems to be a seasoned, Goonda, From the materials on record it is clear that he belongs to a gang, He is in the habit of moving about dangerously armed. The fact that he and his companions had the audacity to remove the Lambretta. scooter from the house of the owner even when he was present and the detenu and his associate were able to keep the members of the staff of the College at, bay, is clearly indicative of the reaction of the incident and the effect it had in terrifying the people of the locality. The allegation in ground No. (v) is that the detenu appeared armed with a sword at a public place where a music function was on, Notwithstanding the presence of so many he held out a public challenge to kill one Bikram Jena. Even when the police appeared he was prepared to enter into a combat. The setting in which the incidents referred to in grounds (i) and (v) go cured do not give us the impression that these were disjointed actions of the petitioner and had noting to do with public order. The dare devil way in which the detenu acted on both the occasions, the sitting in which the incidents took place, the reaction, that followed from these activities ' and the repercussion thereof on the locality leave no scope for doubt in our mind that these are related to public order.

To ascertain whether the order of detention is valid or is liable to be vacated on the argument advanced, it is not advisable to blindly follow the guideline in a different case. the problem arising in each case must be considered on its own, facts and in, the proper setting. To import the ratio of a case vitally connected with, facts thereof is bound to have misleading results.

We must also indicate that social metabolism has dwindled and what could once upon a time be either ignored or overlooked or would fail to give rise to a stir so as to disturb the even tempo of life is, of late, good enough to disturb the peace and tranquillity in the locality in a massive way. The manner in which the detenu acted is indicative of the fact that it was not a sporadic action being the outcome of the heal of the moment. These were all organised moves being the outcome of concerted action and we do not think, there is any scope to entertain the argument advanced on behalf of the petitionar that grounds (i) and (v) do not relate to public order, petitioner may be young but he is a completely misdirected evil spirit and merely on account of his age, we do not think he should be enlarged by striking down the order of detention. We must assume that the allegations are true because there has been no attempt to deny them, These are all subject matters of pending criminal cases. In quick succession within three months, a young man like the detenu has disturbed the peace of the locality on five occasions. From such conduct, it is reasonable to draw the inference that unless petitioner be detained, he would prove himself to be a social menace and if he is given more of opportunities to have his operations, he is bound to disturb the even tempo of the community's life. The distinction between detention in jail as a punitive measure following conviction and preventive detention which is essentially intended to prevent commission of crimes, is very clear and there is no scope for confusion between one and the other. From the petitioner's conduct spread over three months, the authorised public officer was justified in drawing the inferential conclusion that if the petitioner was not detained, he would indulge in the activities of the type relied upon and thereby the even tempo of social order was bound to be jeopardised.

7. On the analysis indicated, we are of the definite view that the writ application has no merit and the order of detention cannot be interfered with. The application is accordingly dismissed, but there would be no order for costs.

B.K. Behera, J.

8. I agree with my Lord the Chief Justice.


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