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Lawrance Vs. District Magistrate and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal;Constitution
CourtPunjab and Haryana High Court
Decided On
Case NumberCri W. No. 255-D/1965
Judge
Reported inAIR1967P& H137
ActsDefence of India Act, 1962 - Sections 3; Defence of India Rules, 1962 - Rule 30; Constitution of India - Article 226
AppellantLawrance
RespondentDistrict Magistrate and ors.
Appellant Advocate S.N. Chowdhri, Adv.
Respondent Advocate Nanak Chand, Adv.
DispositionPetition allowed
Cases ReferredDr. Ram Manohar Lohia v. State of Bihar
Excerpt:
.....is bad as it does not specify the activities which would have been prejudicial to the maintenance of peaceful conditions in delhi or civil defence or to the defence of india......of criminal procedure has challenged the order of his detention under rule 30 of the defence of india rules which was made by the district magistrate, delhi, on 4th september, 1965 and was confirmed by the administrator of union territory, delhi, on 6th september 1965. the order of detention reads as under:'whereas i, s.g. bose mullick, district magistrate, delhi, am satisfied from information received, that it is necessary to detain shri lawrance s/o chetu mal, r/o h. no. 4000, regharpura, p. s. karol bagh, delhi, with a view to preventing him from acting in any manner prejudicial to the defence of india and civil defence, the maintenance of public order, and the maintenance of peaceful conditions in delhi.now, therefore, in exercise of the powers conferred upon me under rule 30 of.....
Judgment:
ORDER

H.R. Khanna, J.

1. Lawrance, petitioner by means of this petition under Articles 226 and 227 of the Constitution of India, and Section 491 of the Code of Criminal Procedure has challenged the order of his detention under Rule 30 of the Defence of India Rules which was made by the District Magistrate, Delhi, on 4th September, 1965 and was confirmed by the Administrator of Union Territory, Delhi, on 6th September 1965. The order of detention reads as under:

'Whereas I, S.G. Bose Mullick, District Magistrate, Delhi, am satisfied from information received, that it is necessary to detain Shri Lawrance s/o Chetu Mal, r/o H. No. 4000, Regharpura, P. S. Karol Bagh, Delhi, with a view to preventing him from acting in any manner prejudicial to the defence of India and civil defence, the maintenance of public order, and the maintenance of peaceful conditions in Delhi.

Now, therefore, in exercise of the powers conferred upon me under Rule 30 of the Defence of India Rules, 1962, read with O. No. F 6 (2)/ 62-S. C. C. dated 20-11-1962, issued by the Administrator of the Union Territory of Delhi, I do hereby direct that the said Shri Lawrance be detained in the Central Jail, Tihar, New Delhi, in the custody of the Superintendent of the said Jail.

Given under my hand and seal of this Court this 4th day of September, 1965.

Sd/- S. G. Bose Mullick,

District Magistrate, Delhi.'

According to the petitioner, the order of detention is bad as it does not specify the activities which would have been prejudicial to the maintenance of peaceful conditions in Delhi or civil defence or to the defence of India. It is further stated that the petitioner has incurred the displeasure of police and has been falsely involved in some cases. The pendency of those cases, it is averred, does not affect the Defence of India.

2. The petition has been resisted by Mr. Nanak Chand on behalf of the respondents, and the affidavit of Shri S. G. Bose Mullick, District Magistrate, Delhi, has been filed. It has been denied that the petitioner has incurred the displeasure of the Police. According to Shri Mullick the petitioner has committed various offences, and his remaining at large is prejudicial to the maintenance of peaceful conditions in Delhi.

The various criminal activities of the petitioner have been enumerated, and it is stated that on 9th February 1962 he along with two others teased three young girls and when some respectables of the locality took exception to such conduct, the petitioner whipped out a knife and made murderous assault on them. The petitioner was arrested and (challaned,) and was convicted by the trial Court. The petitioner was also arrested in a case under the Excise Act which case is still pending. On 23rd December. 1962 the petitioner along with two others waylaid two college boys and robbed them of their wrist watch, muffler and Rs. 12 in cash The case on that account is still pending. On 15th April 1963 the petitioner along with three others teased a girl and when relations of the girl intervened he stabbed one of them, and a case under Section 326, Indian Penal Code, is pending.

On 29th July 1963 the petitioner asked a taxi driver for a free lift and on driver's refusal picked up a quarrel whereafter he was arrest -ed in a case under Section 107/151. Criminal Procedure Code. On 22nd August 1963 the petitioner along with others robbed a college boy of his golden ring and purse on the point of knife. The petitioner was tried on that account but was given the benefit of doubt and acquitted. A case under Sections 55 and 109 of the Code of Criminal Procedure is also pending against the petitioner for an incident which took place on 28th February 1965. Further according to the affidavit, the petitioner is a very dangerous character and threatens public of danger to their life if they would give evidence against him. The detention order is stated to be just, proper and bona fide

3. Mr. Chowdri on behalf of the petitioner has pointed out that the petitioner was acquitted on appeal by the High Court on 11th February 1965 in the case relating to the occurrence on 9th February 1962. It is further pointed out that the petitioner has not indulged in any anti-national activity and that his detention is misuse of the provisions of the Defence of India Rules.

4. I have given the matter my earnest consideration and am of the view that the order of detention is liable to be quashed. Under Rule 30 of the Defence of India Rules an order of detention of a person can be made 'with a view to preventing him from acting in any manner prejudicial to the defence of India and civil defence, public safety, the maintenance of public order. India's relations with foreign powers, the maintenance of peaceful conditions in any part of India, the efficient conduct of military operations or the maintenance of supplies and services essential to the life of the community.'

According to the order of detention in the present case, the detention of the petitioner was ordered with a view to preventing him from acting in any manner prejudicial to (i) the, defence of India and civil defence, (ii) the maintenance of public order and (iii) the maintenance of peaceful conditions in Delhi The affidavit filed on behalf of the District Magistrate. however, shows that the detention order was made because of certain unlawful activities of the petitioner which had a bearing on the maintenance of law and order, and keeping of peaceful conditions in parts of Delhi. Maintenance of Law and order is not one of the objects mentioned in Rule 30 for which an order of detention can be made. Maintenance of public order is, however, mentioned in the Rule as a legitimate object for which a person can be ordered to be detained.

Question consequently arises as to whether 'law and order' is synonymous with 'public order'. This question was considered by their Lordships of the Supreme Court in case Dr. Ram Manohar Lohia v. State of Bihar, Writ Petn. No. 79-D of 1965, decided on 7-9-1965: (reported in AIR 1966 S C 740), and was answered by the majority in the negative. It was, accordingly, held that an order of detention for maintenance of law and order was not warranted by Rule 30 of the Defence of India Rules Sarkar. J observed:

'It is commonplace that words in a statutory provision take their meaning from the context in which they are used. The context in the present case is the emergent situation created by external aggression. It would, therefore, be legitimate to hold that by maintenance of public order what was meant was prevention of disorder of a grave nature, a disorder which the authorities thought was necessary to prevent in view of the emergent situation. It is conceivable that the expression 'maintenance of law and order' occurring in the detention order may not have been used in the sense of prevention of disorder of a grave nature. The expression may mean prevention of disorder of comparatively lesser gravity and of local significance only. To take are illustration, if people indulging in the Hindu religious festivity of Holi become rowdy, prevention of that disturbance may be called the maintenance of law and order. Such maintenance of law and order was obviously not in the contemplation of the Rules.'

Hidayatullah, J. with whom Bachawat, J. agreed, observed:

'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.'

Mudholkar. J. observed:

'The expression 'law and order' does not find any place in the rule and is not synonymOUS with 'public order'. It seems to me that law and order' is a comprehensive expression in which would be included not merely public order, but matters such as public peace, tranquillity, orderliness in a locality or a local area and perhaps some other matters. 'Public order' is something distinct from order orderliness in a local area. Under Rule 30 (1) no power is conferred upon that authority to detain a person on the ground that it is necessary so to do in order to prevent that person from acting in a manner prejudicial to the maintenance of order in a local area.'

In view of the above observations, it cannot be said that the detention order of the petitioner was made with a view to preventing him from acting in a manner prejudicial to the maintenance of public order. There is also nothing in the affidavit of the District Magistrate to show that he had any information that the petitioner was acting or was about to act in any manner prejudicial to the defence of India and civil defence. There is no averment that any activity of the petitioner impeded the defence of India or that he did anything to obstruct the measures relating to civil defence.

The expressions defence of India and Civil defence, as observed by Hidayatullah, J. ;n Dr. Ram Manohar Lohia's case. Writ Petn. No. 79-D of 1965, dated 7-9-1965: (reported in AIR 1966 SC 740) (supra), connote defence of India and its people against aggression from outside and action of persons within the country. There is no allegation against the petitioner of his having indulged in any such subversive activity. I thus find that out of the three grounds mentioned by ,the District Magistrate in his order for the detention of the petitioner, his affidavit reveals that two grounds viz., those relating to the defence of India and civil defence and maintenance of public order, did not exist. It cannot be said as to how far the two non-existing grounds contributed to the making of the order of detention and weighed with the District Magistrate when he made that order. It is also difficult for the Court to express any opinion on the point as to whether the District Magistrate would have made the order of detention if he had not assumed the existence of the non-existing grounds because in doing so the Court would be entering into the realm of speculation. The order of detention, in the circumstances, cannot be sustained.

5. I am fortified in the above view by the dictum of their Lordships of the Supreme Court in Dr. Ram Manohar Lohia's case. Writ Petn. No. 79-D of 1965, dated 7-9-1965: (reported in AIR 1966 SC 740 (supra) The petitioner in the aforesaid case had been ordered to be detained under Rule 30 of the Defence of India Rules by the District Magistrate, Patna. While making the order of detention the District Magistrate had observed that he was doing so. 'with a view to preventing him (the petitioner) from acting in any manner prejudicial to the public safety and the maintenance of law and order.' It was held by the majority, as stated above, that at the maintenance of law and order was not one of the objects for which a person could be detained under Rule 30 of the Defence of India Rules, and as the words 'law and order' were not synonymous with 'Public order', the order was not legal.

Their Lordships also considered the fact that the order of detention had been made for public safety for which an order of detention can validly be made under Rule 30, but it was observed that as one of the objects of detention, namely, maintenance of law and order mentioned in the order, was not warranted by Rule 30, it could not be said in what manner and to what extent the valid and invalid grounds operated on the mind of the authority concerned and contributed to the creation of his subjective satisfaction which formed the basis of the order. The order was, accordingly, quashed. Although the facts of Dr. Ram Manohor Lohia's case are the converse of those of the present case, the above observations have a direct bearing on the present case. I would, therefore accept the petition, quash the impugned order and direct that the petitioner be set at liberty forthwith.


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