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Debananda Das Mohapatra Vs. State of Orissa and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Judge
Reported in1982CriLJ1727
AppellantDebananda Das Mohapatra
RespondentState of Orissa and anr.
Cases ReferredAshadevi v. K. Shivraj
Excerpt:
.....subjective and the court's power is not annellate. it is equally well settled that if any single ground of detention fails, the order of detention has to be struck down because it is not possible to find out whether the detaining authority would have made the order of detention once the unsustainable ground was deleted. - 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. where there has been a prosecution and the same has failed, it is the duty of the detaining authority to take note of the fact that the prosecution has failed and yet if he is..........subjective and the court's power is not annellate. it is equally well settled that if any single ground of detention fails, the order of detention has to be struck down because it is not possible to find out whether the detaining authority would have made the order of detention once the unsustainable ground was deleted.4. mr. rath for the petitioner has raised two pointed contentions, namely:(i) ground no. 2 related to an incident dated 21-8-1980 and therein it had been stated that the petitioner had been charge-sheeted for offences under sections 148, 149, 324, 307 and 379, i.p.c. from the reading of the ground, it is manifest that the detaining authority took that the petitioner was under trial for the said offences. as a fact, however, the chief judicial magistrate, who tried the.....
Judgment:

R.N. Misra, C.J.

1. The petitioner was detained by the District Magistrate of Puri, opposite party No. 2, by an order made under Section 8 of the National Security Act of 1980 (hereinafter referred to as the 'Act') on 6-11-1981. The grounds of detention are as specified in Annexure-1. Challenge in this application is to the said order of detention. Five instances have been relied upon in support of the order of detention,

2. The petitioner, aged about 19 years, was a student of the Samanta chandrasekhar College at Puri. From the grounds of detention it appears that for his activities in the years 1980 and 1981 he has been prosecuted in five cases. The order of detention indicates that all these cases were in progress at the time the order was made,

3. Law is well settled that the satisfaction that detention is necessary is subjective and the Court's power is not annellate. It is equally well settled that if any single ground of detention fails, the order of detention has to be struck down because it is not possible to find out whether the detaining authority would have made the order of detention once the unsustainable ground was deleted.

4. Mr. Rath for the petitioner has raised two pointed contentions, namely:

(i) Ground No. 2 related to an incident dated 21-8-1980 and therein it had been stated that the petitioner had been charge-sheeted for offences under Sections 148, 149, 324, 307 and 379, I.P.C. From the reading of the ground, it is manifest that the detaining authority took that the petitioner was under trial for the said offences. As a fact, however, the Chief Judicial Magistrate, who tried the case as Assistant Sessions Judge, had acquitted the petitioner by judgment dated 2-7-1981, more than 4 months before the order of detention was made. According to the learned Counsel, if the detaining authority was aware of the fact that there was acquittal and had occasion to refer to the judgment, he might not have passed the order of detention.

(ii) Some of the grounds refer to incidents which relate to problems of law and order and not public order. It is contended that unless the events referred to were matters concerning public order, they could not be used as grounds for detention under the Act.

5. So far as the second contention is concerned, we are inclined to agree with the learned Government Advocate that there may be cases where matters which would be ordinarily law and order problems may take the colour of public order. We had occasion to deal with a similar contention in a recent case Dusmanta Kumar Dash v. State of Orissa, O. J. C. No. 2652 of 1981, disposed of on 21-12-1981: (reported in 1982 Cri LJ 1627) where we observed.-

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...

What was said on that occasion by this Court appropriately answers the contention of the learned Counsel for the petitioner. We do not think, there is any merit in the submission made.

6. So far as the first contention is concerned, the petitioner's counsel has submitted that if there was a judgment of acquittal in relation to the ground, it was the duty of the detaining authority, once he was relying on the prosecution of the petitioner as a ground for detention, to know the exact position with reference to the case and if the petitioner had already been acquitted, the detaining authority should not have proceeded on the footing that the petitioner was being tried for the same. It is quite possible that if the detaining authority had known about the judgment of acquittal, the ground may not have been used and if that instance was not available to be utilised against the petitioner, satisfaction that the petitioner should be detained may not have been reached. We were shown certain decisions of the Supreme Court by the learned Government Advocate where even after judgment of acquittal or closure of the prosecution, the facts relating to the prosecution were used as a ground for detention and the Court upheld it. (See Haradhan Sana v. State of West Bengal : 1974CriLJ1479 . In para 32 of the judgment, the learned Chief Justice stated for the Court thus:

The power of preventive detention is qualitatively different from punitive detention. The power of preventive detention is a precautionary power exercised in reasonable anticipation. It may or may not relate to an offence. It is not a parallel proceeding, it does not overlap with prosecution even if it relies on certain facts for which prosecution may be launched or may have been launched. An order of preventive detention may be made before or during prosecution. An order of preventive detention may be made with or without prosecution and in anticipation or after discharge or even acquittal. The pendency of prosecution is no bar to an order of preventive detention. An order of preventive detention is also not a bar to prosecution.

Mr. Rath for the petitioner does not dispute that even after aquittal the allegations leading to the prosecution could be utilised. The point here is somewhat different. The detaining authority has proceeded on the footing that the petitioner was being prosecuted for a case whereas as a fact he had already been acquitted. It was the duty of the detaining authority to know the exact position with reference to the materials which he was utilising to support the order of detention, if the detaining authority proceeds on the footing that the prosecution is pending while, as a fact, there has been an acquittal after a regular trial, we are inclined to agree that an infirmity creeps in. It is open to the detaining authority to reach his satisfaction which is subjective by knowing the exact position and, even when there it. an acquittal, by utilising the conduct of the detenu which led to his prosecution. Where there has been a prosecution and the same has failed, it is the duty of the detaining authority to take note of the fact that the prosecution has failed and yet if he is of the view that detention is necessary and should be grounded on the facts which once led to the prosecution, it can be made.

7. Preventive detention is a serious matter inasmuch as citizen's liberty is taken away without trial. Therefore, every order of detention is required to be strictly examined. The Supreme Court has, in the case of A.K. Roy v. Union of India : 1982CriLJ340 , reiterated this position. Our observations are in accord with what the Supreme Court said in the case of Ashadevi v. K. Shivraj AIR 1979 SC 447 : 1979 Cri LJ 203. In these premises, we are of the view that an infirmity has crept in with regard to ground No. 2 and since that fails to support the order of detention, the entire order is liable to be vacated,

8. We accordingly allow the application and direct that the petitioner be set at liberty forthwith,

R.C. Patnaik, J.

9. I agree.


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