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Prakash Chandra Senapati Vs. District Magistrate and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Judge
Reported in40(1974)CLT749; 1975CriLJ560
AppellantPrakash Chandra Senapati
RespondentDistrict Magistrate and anr.
Cases ReferredKuso Sah v. State of Bihar
Excerpt:
.....him from acting in any manner prejudicial to- (i)..(ii) the security of the statt or the maintenance of public order, or (iii) the maintenance of supplies and services essential to the community, or (b)..it is necessary so to do, make an order directing that such person be detained. the allegation at its worst discloses an offence of extortion by an unlawful assembly of the petitioner and his associates. patnaik, learned counsel for the petitioner, has, however, contended that where the order of detention has been passed upon several grounds, some relating to one clause and others relating to another clause of section 3 of the act and some of the grounds relating to one of the provisions in section 3 turn out to be unsustainable the entire order of detention must fail. when..........has not been stated in the order of detention or at any time thereafter that bimal belonged to the bengali community. in the further particulars supplied to the petitioner by the detaining authority (annexure 4), the associates of the petitioner on this occasion consisted of some bengalis also. the allegation at its worst discloses an offence of extortion by an unlawful assembly of the petitioner and his associates. in the absence of the communal tinge in the activity, this incident can only partake of a law and order problem of the ordinary type. in the decision referred to above air 1966 sc 740 : (19'66 cri lj 608) it had been further indicated-it will thus appear that just as 'public order' in the rulings of this court was said to comprehend disorders of less gravity than those.....
Judgment:

R.N. Misra, J.

1. The petitioner challenges the order of his detention passed by the District Magistrate of Balasore in exercise of powers conferred under Sub-clauses (ii) and (iii) of Clause (a) of Sub-section (i) of Section 3 of the Maintenance of Internal Security Act, 26 of 1971 (hereafter referred to as-the 'Act') on 30th November 1973.

2. The petitioner is a resident of a village lying on the outskirts of the town of Balasore. On analysis, the grounds of detention appear to be the petitioner's indulging in acts prejudicial to the maintenance of public order as also of supplies essential to the community. In the Hindustan Standard, a newspaper published from Calcutta dated 5th of February, 1973, a leading article entitled 'Doctors from Orissa' was published. An anti-Bengali agitation spread in the district of Balasore for a few days following the said publication. The-petitioner is said to have indulged in a series of activities as per the following particulars:

(1) On 15-2-1973, a little before 9.00 p.m. he with his associates formed an unlawful assembly, broke open the cloth shop of a Bengali named Sri. Narayan Chandra Saha and decamped with about Rs. 1500/- worth of clothes.

(2) At about 9 P.M. that night, he and his associates formed another unlawful assembly within the town and were conspiring to carry on anti-bengali activity. Soon thereafter he and his associates were found committing theft of biscuits and & table fan from the shop of a Bengali gentleman named Suren Chandra Das.

(3) At about 10.00 P.M. that night, he and his associates broke open the medicine shop of another Bengali shop keeper Sri Prabir Kumar Ghose and committed theft of medicine and damaged the shop.

(4) The petitioner and his associates planned to commit assault on Bengalis living in Naya Bazar area of Balasore town and encouraged communal riots on 16-2-73. On account of such anti-social activities, curfew had to be clamped in the town on the night of 16th February.

(5) On the evening of 19-2-73, he and his associates threatened to beat and drive away the Bengali population of Bicharganj area within the town and intimidated the Bengali officers of the locality.

(6) On 2-7-1973 at about 11.30 A.M. he and his associates committed rioting, snatched away Rs. 2.40 Paise from one Bimal Sankar Das of Sahadebkhunta within the Balasore town and injured him.

(7) On 8-11-73 at about 8. 15 p.m. he and his associates threatened the Proprietor of a Sarala Lodging of Naya Bazar Sri Jayanta Kumar Das for not having allotted room numbers 1 to 4 of the Lodging to them.

For the prejudicial act against supplies essential to the community, a single event at about 2.00 A.M. on 28-11-73 has been given. The relevant ground in that regard is that the anti-smuggling staff led by the Anti-Smuggling Magistrate found the petitioner smuggling one quintal of rice by the 7 Down Puri-Howrah Express. The detection was near about the border area of Orissa and Bengal.

3. On behalf of the petitioner, the order of detention has been assailed on three grounds, namely-

(i) many of the grounds, are vague and the law being that if one of the grounds is vague the entire order of detention would fail the detention is bad.

(ii) the facts indicated in support of the order of detention on the ground of prejudicial activity against public order are irrelevant and do not relate to the domain of public order. The detention order is, therefore, vitiated, and

(iii) The order has been made mala fide. The petitioner's relationship with public officers having become strained he has been subjected to detention without basis.

4. The detaining authority has filed a counter-affidavit supporting the order of detention.

5. Section 3 of the Act provides:

(1) The Central Government or the State Government may,-

(a) if satisfied with respect to any person (including a foreigner) that with a view to preventing him from acting in any manner prejudicial to-

, (i)......

(ii) the security of the Statt or the maintenance of public order, or

(iii) the maintenance of supplies and services essential to the community, or

(b)...

it is necessary so to do, make an order directing that such person be detained.

The detaining authority has grounded the impugned order of detention on both the counts specified in Sub-clauses (ii) and (iii) above.

There is no dispute that in the month of February, there was an agitation in some parts of this State against local Bengali residents following the pub-location referred to above. Several places within the Balasore including the town itself had been very much disturb- ed. The even tempo of life in these areas for quite some time remained affected. Tension prevailed. Several townships were brought under night curfew to appropriately check the disturbance.

In Dr. Ram Manohar Lohia v State of Bihar AIR 1966 SC 740 : (19&6 Cri LJ 608). Hidayatullah, J. as the learned Judge then was, expressly brought out the distinction between public order and law and order thus:

We have here a case of detention under R. 30 of the Defence of India Rules which permits apprehension and detention of a person likely to act in a manner prejudicial to the maintenance of public order. It follows that if such a person is not detained public disorder is the apprehended result. Disorder is no doubt prevented by the maintenance of law and order also but disorder is a broad spectrum which includes at one> end small disturbances and at the other the most serious and cataclysmic happenings. Does the expression 'public order' take in every kind of disorders or only some of them? The answer to this serves to distinguish 'public order' from 'law and order' because the latter undoubtedly takes in all of them. Public order if disturbed, must lead to public disorder. Every breach of the peace does not lead to public disorder. When two drunkards quarrel and fight there is disorder but not public disorder. They can be dealt with under the powers to maintain law and order but cannot be detained on the ground that they were disturbing public order. Suppose that the two fighters were of rival communities and one of them tried to raise communal passions. The problem is still one of law and order but it raises the apprehension of public disorder. Other examples can be imag'ned. The contravention of 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 thus not necessarily sufficient for action under the Defence of India Act but disturbances which subvert the public order are. A District Magistrate is entitled to take action under R. 30(1)(b) to prevent subversion of public order but not in aid of maintenance of law and order under ordinary circumstances.

The law as indicated above is also the law under the 1971 Act. Disturbances of law and order have been left to be dealt with by the ordinary criminal law in force.

Detention under this Act is preventive and not punitive. Ordinary criminal law deals with offences after they have been committed unless a particular situation arises which under the preventive provisions of the Code of Criminal Procedure can be dealt with. Certain grave situations arise where the apprehension is of a serious character in relation to public order. Certain events take place which may not be adequately dealt with under the ordinary law. It may become difficult to prove the facts in a trial. To meet such situations, in relation to public order, the power has been invested in the detaining authority to detain the delinquent without trial. This is in recognition of the principle that social purpose is above individual liberty.

6. The incidents of the month of February appear to be connected with public order and if detention had been authorised on such grounds, the petitioner would not have been entitled to assail it. Two other events have been referred to justify the detention on the first ground. They are the incidents of 2nd July, 1973 and the November, 1973. In point of time, the first act of July is more than four months after a series of events of February. The allegation is that the petitioner and his associates had committed rioting and they snatched away Rs. 2.40 paise from one Bimal San-kar Das. It has not been stated in the order of detention or at any time thereafter that Bimal belonged to the Bengali community. In the further particulars supplied to the petitioner by the detaining authority (Annexure 4), the associates of the petitioner on this occasion consisted of some Bengalis also. The allegation at its worst discloses an offence of extortion by an unlawful assembly of the petitioner and his associates. In the absence of the communal tinge in the activity, this incident can only partake of a law and order problem of the ordinary type. In the decision referred to above AIR 1966 SC 740 : (19'66 Cri LJ 608) it had been further indicated-

It will thus appear that Just as 'public order' in the rulings of this court was said to comprehend disorders of less gravity than those affecting 'security of State', 'law and order' also comprehends disorders of less gravity than those affecting 'public order'. One has to imagine three concentric circles. Law and order represents the largest circle within which is the next circle representing public order and the smallest circle represents security of State. It is then easy to see that an act may affect law and order but not public order just as an act may affect pub- lic order but not security of the State....

This event, in our view, therefore, is not within the ambit of public order.

The next incident of 8-11-73 is also another event of this type. It has been alleged that the petitioner and his associates threatened the Proprietor of Sarala Lodging situated within the town of Balasore with assault when he refused to provide them accommodation in rooms 1 to 4 saying that those had been already allotted to others. Sri Jayanta Kumar Das, who is stated to be the Proprietor of the Lodging, is not alleged to belong to Bengali community. On the other hand, the petitioner has asserted that he is not one of that community and the said assertion has gone unchallenged. In Annexure-4, we find that one of the associates of the petitioner on that occasion was also a Bengali. This incident has, therefore, also no communal tinge. The two events of July and November of 1973 thus do not belong to the category of several incidents of February 1973 and for the reason indicated just above, the event of 8th November must also be branded only as belonging to the realm of law and order and not public order.

7. The next ground is one of smuggling rice into West Bengal from Balasore district. Law is settled beyond dispute that the satisfaction of the detaining authority is subjective and the Court cannot look for evidence to support the allegation. The petitioner has not been able to establish any mala fides though there has been some allegations made in the petition. Petitioner's counsel has not 'tried to support that plea at the hearing. Admittedly, the district of Balasore has been flood-stricken and there is acute dearth of paddy and rice. Clandestine removal of rice from such a scarce area would certainly affect prejudicially the maintenance of supplies essential to the community and we find no scope for interference with the detention on that ground.

8. Mr. Patnaik, learned counsel for the petitioner, has, however, contended that where the order of detention has been passed upon several grounds, some relating to one clause and others relating to another clause of Section 3 of the Act and some of the grounds relating to one of the provisions in Section 3 turn out to be unsustainable the entire order of detention must fail. It is not open to the Court to draw a dividing line between the two separate heads under Section 3 of the Act and sustain the order by saying that the grounds appertaining to one of the provisions are not open to challenge. The entire order of detention has to stand or fall all the grounds supporting it being tested together.

We had afforded opportunity to learned Counsel for the State to look into the law on this aspect of the matter. The decision of the Supreme Court in Kuso Sah v. State of Bihar : 1975CriLJ543 is an authority to support the contention of the petitioner. There the detention had been ordered to prevent the petitioner from acting in a manner prejudicial to the maintenance of public order and the maintenance of supplies and service essential to the community. The Court found that one ground related to a stray and simple fracas arising out of bottle neck on a public street and another had referred to an assault on a public servant. When these two grounds - both apparently stated to be prejudicial to the maintenance of public order - failed, the orders of detention which had been under both the sub-clauses of Section 3(1)(a) of the Act failed.

9. Learned Government Advocate contended that if the order of detention could be sustained on the series of activities of February, 1973, or on the ground of smuggling of November, 1973, mere inclusion of these two events of July and November, as indicated above, would not make the order of detention vulnerable. We are not prepared to accept such a contention. The Supreme Court has always emphasised on the feature that the gravity of the evil to the community resulting from anti-social activities can never furnish adequate reason for invading personal liberty of a citizen except in accordance with the procedure established by the Constitution and the laws. Observance of procedure has been the bastion against wanton assault on personal liberty over the years. Whatever be the impact on the maintenance of supplies and services essential to the community, when a certain procedure is prescribed by the Constitution or the laws for depriving a citizen of his personal liberty, the same has to be followed scrupulously to detain a citizen without trial and thus deprive him of personal liberty. The Courts have been unanimous that if one ground fails, the entire order of detention has to fail. These are pros which sustain the order and when one of them does not stand, the order of detention becomes vulnerable and the Court is not required to resuscitate it by throwing out the unsustainable ground and placing the order of detention on the valid ones.

10. On our aforesaid conclusions, the order of detention has to fail. We accordingly allow this application and direct that the petitioner shall be set at liberty forthwith.

B.K. Ray, J.

11. I agree.


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