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Pramila Bastia Vs. State of Orissa and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Judge
Reported in1984CriLJ1402
AppellantPramila Bastia
RespondentState of Orissa and ors.
Cases ReferredAbdul Azij v. Delhi Administration. Failure
Excerpt:
.....recorded under section 161 cr. it is well settled that when several incidents constitute the grounds of detention if there is any vice in any one of them, the order of detention must fail. whenever there is an armed hold-up by gangsters in an exclusive residential area of the city and persons are deprived of their belongings like a car, wrist-watch or cash, or ladies relieved of their gold chains or ornaments at the point of a knife or revolver, they become victims of organised crime. such particular acts when enumerated in the grounds of detention clearly show that the activities of the detenu cover a wide field and fall within the contours of the concept of public order. 7. now coming to the other contention raised on behalf of the petitioner that the detenu was deprived of his..........on 4.2.84. a copy of the same is enclosed herewith.by order dt. 5th mar. 1984 (annexure-2) the state government in the home department (opposite party no. 1) approved the detention order made by the district magistrate, cuttack. during pendency of the writ application, the advisory board opined that there was sufficient cause for detaining the detenu and on the said report the order of detention was confirmed by the state government.2. the order of detention has been challenged mainly on the grounds:(a) the incidents narrated in the grounds relate to law and order and not to public order.(b) the report of the superintendent of police, cuttack, which was relied upon by the detaining authority as well as the advisory board was not supplied to the detenu and as such, he was prejudiced.....
Judgment:

D.P. Mohapatra, J.

1. This is an application for issue of writ of habeas corpus directing release of the detenu Tulukishore Bastia who had been detained under the National Security Act, 1980 (hereinafter referred to as the 'Act'). The petitioner is the wife of the detenu.

The order of detention dt. 23.2.1984 (Annexure-1) was passed by the District Magistrate, Cuttack (Opposite Party No. 2) in exercise of the powers conferred under Section 3(2) of the Act, on being satisfied that with a view to preventing the detenu from acting in any manner prejudicial to the maintenance of public order, it is necessary to order his detention. On 25.2.1984, the grounds of detention (Annexure-3) were served on the detenu. The grounds which are in Oriya language contained two incidents which translated into English read as follows:

(1) On 3.2.84 night at about 11.45. P.M. your brother Balu Bastia after forcibly locking up the shop of Ajaya Behera situated on Medical Road in Mangalabag area, asked the nearby betel shop owner, Alakh Chandra Patra to keep the key of the shop. When Alekh Chandra Patra declined to keep the key, Balu Bastia not irritated and attacked him. On protest by Alekh Chandra Patra and others present there, Balu Bastia left the place after shouting in a threatening manner. On hearing the shouts of Balu Bastia, you any your friends Lalu Bastia, Chulo Bastia and Giridhari Mohapatra armed with Farsha, Bhujali and a Sword along with Balu Bastia rushed towards the shop of Alekh Chandra Patra with a view to attack him. You and your associates being highly irritated shouted on the road and brandished the sword and bhujali and thereby created an atmosphere of terror in the area. Out of fear, the shop-keepers closed the shops and people present there ran helter-skelter. By your action, the even tempo of life of the area was affected and for sometime public order was disturbed. About this incident Case No. 55 has been lodged on 3.2.84 in Managalabag Police-station. A copy of the FIR of the said case is enclosed herewith.

(2) On 4.2.1984, at about 11.45. P.M. you and your friends Balu Bastia, Chalu Bastia, Giria Mohapatra, Rabi Sahoo, Bijay Kar armed with Khukuri, Bhalla, Farsha, Sword and Lathi, with a view to kill Surojit Dey, Lalu Day working in 'Sura Saw Mill' at Malla Sahi, chased him from the river embankment towards the Saw Mill. At that time, S.I. Mangalabag Police-station, Rajat Kami Mishra, S.I.N.N. Das and A.S.I.N.N. Tripathy were going on Malla Sahi road looking for you in connection with some reports received against you. On seeing you and your associates chasing Surojit Dey, S.I. Negendranath Tripathy forbade you near Sura Saw Mill from doing so. Instead of paying heed to his orders you abused Sri Tripathy in a threatening manner and were about to attack him with the 'Khukuri' held by you and asked your associates to attack the other Police-officers. In order to save himself from you attack, Sri Tripathy had to take recourse to blank fire from his revolver twice, but in spite of it you did not desist from attacking him. When A.S.I. Tripathy fired the third time, injuring you, you and your associates ran away from the place. Seeing you and your associates attack the Police Officers on duty, on a crowded public road, the people in the area were terrified and out of fear they ran here and there and the flow of traffic in the area was stopped for sometime. Due to your violent activities, the shops in the locality were closed and the even tempo of life was affected and thereby public order was disturbed for some time. About this incident, Case No. 58 has been lodged in Mangalabag Police-station on 4.2.84. A copy of the same is enclosed herewith.

By order dt. 5th Mar. 1984 (Annexure-2) the State Government in the Home Department (Opposite Party No. 1) approved the detention order made by the District Magistrate, Cuttack. During pendency of the writ application, the Advisory Board opined that there was sufficient cause for detaining the detenu and on the said report the order of detention was confirmed by the State Government.

2. The order of detention has been challenged mainly on the grounds:

(a) The incidents narrated in the grounds relate to law and order and not to public order.

(b) The report of the Superintendent of Police, Cuttack, which was relied upon by the detaining authority as well as the Advisory Board was not supplied to the detenu and as such, he was prejudiced in making an effective representation against the order of detention.

(c) Portions of the FIR copies of which were supplied to the detenu were in English, a language with which the detenu was not conversant and he was thereby prejudiced to make, an effective representation regarding his detention.

(d) The State Government while confirming the order of detention merely perused the report of the Advisory Board and did not peruse the other relevant materials and hence the order is vitiated.

(e) The grounds are vague and confusing.

3. Two affidavits, both sworn to by the District Magistrate, Cuttack, the detaining authority, have been filed in reply to the writ petition and the further affidavit filed by the petitioner purporting to be on behalf of the opposite parties. No affidavit has been field by any competent officer of the State Government, though averments have been made in the writ petition and also the further affidavit filed by the petitioner, alleging non-application of mind by the State Government and non-consideration of the relevant materials while approving and confirming the order of detention. The District Magistrate is not competent to deal with these allegations against the State Government. As such, we are to proceed on the basis that these averments having not been controverted by the competent authority are to be accepted as correct.

In the counter-affidavit filed by the detaining authority, he has denied the allegations made in the writ petition. He has stated that the detenu did not submit any representation against the order of detention. The only representation submitted by him on 9.3.84 was for giving him better medical facility for the injuries sustained by him. He has further stated that along with the order of detention, copies of two F.I.R. mentioned in the grounds, as well as statements of witnesses recorded under Section 161 Cr.P.C. five, statements in Mangalabag Police-station Case No. 55 dt. 3.2.84 and six statements in Mangalabag police-station Case No. 58 dt. 4.2.84 were supplied to the detenu on 27.2.84 and hence, he was supplied with sufficient materials to enable him to make effective representation against the order of detention. He asserted that the incidents narrated in the grounds have nexus with public order and not merely with law and order.

4. In course of argument, Sri R.N. Mohanty, the learned Counsel appearing for the petitioner and Sri R.K. Patra, the learned Additional Government Advocate appearing for the opposite parties have reiterated the stand taken by their respective parties in the pleadings as indicated above. The learned Additional Government Advocate has also produced the relevant files of the opposite parties 1 and 2 which we have perused.

5. Before taking up the contentions raised on behalf of the petitioner, it would be worthwhile to quote the of-quoted passage from the decision of the Supreme Court in the case of Motilal Jain v. State of Bihar : 1969CriLJ33

Individual liberty is a cherished right, one of the most valuable fundamental rights, guaranteed by our Constitution to the citizens of the Country. If that right is invaded, excepting strictly in accordance with law, the aggrieved party is entitled to appeal to the judicial power of the State for relief. The interest of the society is no less important than that of the individual. Our Constitution has made provision for safeguarding the interests of the society. Its provisions harmonise the liberty of the individual with social interests. The authorities have to act solely on the basis of those provisions. They cannot deal with the liberty of the individual in a casual manner. Such an approach does not advance the true social interest. Continued indifference to individual liberty is bound to erode the structure of our democractic society.

We would now take up the first contention raised on behalf of the petitioner that the incident mentioned in the grounds merely relate to law and order and have no nexus with public order. It is well settled that when several incidents constitute the grounds of detention if there is any vice in any one of them, the order of detention must fail. The difference in the connotation of the two terms 'Law and order' and 'public order', has been the subject matter of decision in a large number of decisions of different High Courts and also the Supreme Court of India. It will be helpful to quote the words of Hidayatullah, J (as his Lordship then was) in this regard in the case of Ram Manohar Lohia v. State of Bihar : 1966CriLJ608 .

(51) We have here a case of detention under Rule 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 board 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 imagined. 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 Rule 30(1)(b) to prevent subversion of public order but not in aid of maintenance of law and order under ordinary circumstances.

This position has been reiterated by the Supreme Court in serveral cases, relevant passages of some of which are given below. In the case of Pushkar Mukherjee v. State of West Bengal : 1970CriLJ852 , the Court observed:

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. In this connection, we must draw a line of demarcation between serious and aggravated forms of disorder which directly affect the community or injure the public interest and the relatively minor breaches of peace of a purely local significance which primarily injure specific individuals and only in a secondary sense public interest. A mere disturbance of law and order leading to disorder is thus not necessarily sufficient for action under the Preventive Detention Act but a disturbance which will affect public order comes within the scope of the Act.

In the case of Arun Ghosh v. State of West Bangal : 1970CriLJ1136 , it was held:

The question whether a man has only committed a 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. 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. 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. Individual act can be a ground for detention only if it leads to disturbance of the current of life of the community so as to amount a disturbance of the public order and not if it affects merely an individual leaving the tranquillity of the society undisturbed.

Public order embraces 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 a general disturbance of public tranquillity. It is the degree of disturbance and its effect upon the life of the community in a locality which determines whether the disturbance amounts only to a breach of law and order.

In the case of Ram Ranjan Chatterjee. v. State of West Bengal : 1975CriLJ588 , it was observed as follows:

It may be remembered that qualitatively, the acts which affect Maw and order' are not different from the acts which affect 'public order'. Indeed, a state of peace or orderly tranquillity which prevails as a result of the observance or enforcement of internal laws and regulations by the Government is a feature common to the concepts of 'law and order' and 'public order'.

The 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 on society. It is the potentiality of the act to disturb the even tempo of the life of the community which makes it prejudicial to the maintenance of public order. If the contravention in its effect is confined only to a few individuals directly involved as distinguished from a wide spectrum of the public, it would raise a problem of law and order only. These concentric concepts of 'law and order' and 'public order' may. have a common 'epicentre', but it is the length, magnitude and intensity of the terror wave unleashed by a particular eruption of disorder that helps distinguish it as an act affecting 'public order' from that concerning 'law and order'.

In the case of Ashok Kumar v. Delhi Administration : 1982CriLJ1191 , the Court dealing with the question observed:

What essentially is a problem relating to law and order may due to sudden sporadic and intermittent acts of physical violence on innocent victims in the metropolitan city result in serious public disorder. It is the length, magnitude and intensity of the terror wave unleashed by a particular act or violence creating disorder that distinguishes it as an act affecting public order from that concerning law and order. Some offences primarily injure specific individuals and only secondarily the public interest, while others directly injure the public interest and affect individuals only remotely. The question is of the survival of the society and the problem is the method of control. Whenever there is an armed hold-up by gangsters in an exclusive residential area of the city and persons are deprived of their belongings like a car, wrist-watch or cash, or ladies relieved of their gold chains or ornaments at the point of a knife or revolver, they become victims of organised crime. Such particular acts when enumerated in the grounds of detention clearly show that the activities of the detenu cover a wide field and fall within the contours of the concept of public order.

The same view has also been taken in a recent decision of this Court in the case of Jyoti Ranjan Samantray v. State of Orissa (1983) 56 Cut LJ 88 : 1983 Cri LJ NOD 162, wherein the incidents similar to that in the present case were held as relating to 'law and order' and not 'public order'.

6. Considered in the light of the observations quoted above, we are unable to accept the contention of the learned Additional Government Advocate that first incident narrated in the grounds relates to not merely law and order but to public order. The incident took place at about mid-night (11.45 P.M.) was between some individuals. Even the averments in the grounds that due to the incidents the shops in the locality were closed and people ran helter-skelter does not find place in the F.I.R. Though the conduct of the detenu might be reprehensible and it might have caused some disorder as is likely to be caused in every case of infraction of the law, but it cannot be said that by such action the community at large was being disturbed or in other words, there was breach of or likelihood of breach of public order. There is no controversy over the legal position that if one of the incidents narrated in the grounds which form the basis of the subjective satisfaction of the detaining authority fails, the entire order is to be quashed.

7. Now coming to the other contention raised on behalf of the petitioner that the detenu was deprived of his right to submit an effective representation against the order of detention due to failure on the part of the authorities to supply all the materials, we are constrained to hold that the contention has substantial force. It is well settled that all documents, statements and other materials incorporated in the grounds by reference and which might have influenced the mind of the detaining authority, in arriving at the requisite subjective satisfaction must be furnished to the detenu : 1981CriLJ1011 Abdul Azij v. Delhi Administration. Failure to comply with this requirement would amount to breach of the mandate contained in Article 22(5) of the Constitution. It is also well settled that in preventive detention jurisprudence whatever little safeguards the Constitution and the enactment authorising such detention provide assume utmost importance and must be strictly adhered, to. A specific averment has been made in the additional affidavit filed by the petitioner that the report submitted by the Superintendent of Police, Cuttack was considered by the detaining authority (O.P. No. 2) while passing the order of detention but no copy of the same was supplied to the detenu. Though the detaining authority has personally sworn the affidavits in reply to the writ petition this averment has not been expressly denied. He has neither denied the existence of the report nor has he stated that the same was not considered by him while passing the order of detention. Indeed, from the records submitted by the learned Additional Government Advocate, we find that the report of the Superintendent of Police is available in the file. In these circumstances, it is difficult for us to accept the contention of the learned Additional Government Advocate that contents of the report in question did not weigh with the detaining authority while passing the order of detention. Accordingly, we must hold that the petitioner was prejudiced for non-supply of the report of the Superintendent of Police, Cuttack, in making an effective representation against the order of detention. The order of detention is vitiated on this ground also.

8. In view of our findings accepting the contentions of the learned Counsel for the petitioner on the two questions discussed above, we do not consider it necessary to go into other contentions raised by him.

9. In the result, the writ petition succeeds and the same is allowed. The order of detention passed against the detenu Tulu Kishdre Bastia is quashed. The detenu shall be set at liberty forthwith. In the facts and circumstances of the case, there will be no order for costs.

R.C. Patnaij, J.

10. I agree.


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