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Sudhir Kumar Saha Vs. Commissioner of Police, Calcutta & ANR [1969] INSC 339 (18 December 1969)

18/12/1969 HEGDE, K.S.

HEGDE, K.S.

SHAH, J.C.

CITATION: 1970 AIR 814 1970 SCR (3) 360 1970 SCC (1) 149

CITATOR INFO:

RF 1972 SC 665 (9) R 1972 SC1647 (5) RF 1972 SC1656 (7) RF 1972 SC2481 (10) E 1972 SC2686 (3) R 1973 SC 295 (7) F 1973 SC 844 (1) RF 1973 SC1091 (2) RF 1987 SC2332 (30) R 1990 SC1086 (18)

ACT:

Preventive Detention Act (4 of 1950), s. 3(2)-Acts prejudicial to maintenance of public order-What are.

HEADNOTE:

The petitioner along with others, committed various offences on three occasions. On the first occasion he attacked the people of a locality with a knife and by hurling bottles at them. On the other two occasions he attacked the people of another locality, by hurling bombs at them. He was detained under s. 3(2) of the Preventive Detention Act, 1950, with a view to preventing him from acting in any manner prejudicial to the maintenance of public order.

In a petition under Art. 32 for the issue of a writ of habeas corpus,

HELD : The incidents were not interlinked and could not have prejudiced the maintenance of public order. They were stray incidents spread over a period of one year and four months, directed against individuals, and did not disturb society to the extent of causing a general disturbance of public tranquillity; and hence,. the petitioner was entitled to be released. The power to detain is an exceptional power to be used in exceptional circumstances and cannot be used as a convenient substitute for the ordinary process of law. The acts complained of against the petitioner can at best be considered as prejudicial to "law and order" and not "public order" as required by the law relating to preventive detention. [361 H; 362 A-C, E-F] Ram Manohar Lohia v. State of Bihar, [1966] 1 S.C.R. 709 and Arun Ghosh v. State of West Bengal,.[1970] 3 S.C.R. 288, followed.

ORIGINAL JURISDICTION: Writ Petition No. 378 of 1969.

Petition under Art. 32 of the Constitution for a writ in the nature of habeas corpus.

D. P. Singh, for the petitioner.

G. S. Chatterjee for Sukumar Basu, for the respondents.

The Judgment of the Court was delivered by Hegde, J. In this petition under Art. 32 of the Constitution submitted from jail, the petitioner seeks a writ of habeas .corpus directing his release from detention. We have already directed the release of the petitioner on 15-12-1969. Now we proceed to give our reasons in support of that order.

The petitioner was ordered to be detained by the Commissioner of Police, Calcutta under s. 3(2) of the Preventive Detention Act, 1950 (Act IV of 1950) by his order dated July 15, 361 1969. It is stated in that order that the petitioner was ordered to be detained with a view to preventing him from acting in any manner prejudicial to the maintenance of "public order". That order was confirmed by the State Government after the same was approved by the Advisory Board.

From the grounds served on the petitioner, it appears that his detention was ordered because of the three instances mentioned therein. It is said therein that on 28-2-1968 between 9-50 p.m. and 10-30 p.m. the, petitioner armed with a knife along with some others, also armed, created disturbance on the Northern Avenue in the course of which he attacked the local people with knife as a result of which one Ajit Kumar Biswas sustained stab injuries. It is further alleged that during that incident, the petitioner and his associates hurled soda water bottles and brickbats towards the local people endangering their lives and safety and thereby they created fear and frightfulness amongst the people of the locality and thus affected public peace ,and tranquillity of the locality.

The second incident mentioned therein is that on 29-10-1968 at about 9-10 p.m. the petitioner being armed with bombs and accompanied by, some other created disturbance on Raja Manindra Road, in the course of which he and his associates hurled bombs, used swords, iron rods' and lathis against the local people endangering their lives and safety and thereby they created fear and frightfulness in the locality resulting in the disturbance of public peace and tranquillity of that locality.

The last incident mentioned is that on 28-6-1969 at about 11-15 p.m., the petitioner and his associates armed with bombs created disturbance on Raja Manindra Road in the course of which they indiscriminately hurled bombs towards the local ;people endangering their lives and safety and thereby they affected -_public peace and tranquillity of that locality.

From the record it does not appear that the petitioner was -prosecuted for any of the offences mentioned earlier. It is not known why he was not prosecuted. In the ordinary course, if there is truth in the allegations made, he should have been prosecuted and given an opportunity to defend himself. The allegations made against the petitioner do not amount to anything more, than that he committed certain breaches of law.

The freedom of the individual is of utmost importance in any civilized society. It is a human right. Under our Constitution it is a guaranteed right. It can be deprived of only by due process of law. The power to detain is an exceptional power to be used under exceptional circumstances. It is wrong to 362 consider the same, as the executive appears to have done in the present case, that it is a convenient substitute for the ordinary process of law. The detention of the petitioner under the circumstances of this case appears to be a gross misuse of the power conferred under the Preventive Detention Act.

The three incidents mentioned in the grounds are stray incidents spread over a period of one year and four months.

These incidents cannot be said to be inter-linked. They could not, have prejudiced the maintenance of 'public order' nor can they be held to be subversive of 'public order'.

They were at best prejudicial to "'law and order". The distinction between the maintenance of 'public order' and maintenance of "law and order' was brought out by this Court in Dr. Ram Manohar Lohia v State of Bihar('). Therein this Court pointed out that maintenance of "law and order" is a conception much wider than the conception of maintenance 'public order'. The latter is the prevention of a disorder of grave nature., Every act that affects "law and order" need not affect 'public order'. If it is otherwise everyone who disturbs "law and order", however petty the offence committed by him may be, can be detained under the Prevention Detention Act. This would be a total repudiation of the rule of law and an affront to our Constitution.

The lega position relating to the point in issue was again recently considered by this Court in Arun Ghosh v. State of West Bengal('), Therein it was observed that 'public order' is the even tempo of the life of the community taking the countryas a whole or ever a specified locality.

Disturbance of "public order" is to be distinguished from acts directed against individuals which do no disturb the society to the extent of causing a general disturbance of public tranquillity. It is the degree of disturbance and it, effect upon the life of the community in a locality which determines whether the disturbance amounts only to a breach of "law and order".

We are of the opinion that the grounds stated in support of the detention cannot amount to a disturbance of the, maintenance of 'public order'.

V.P.S.

(1) [1966] 1 S.C.R. 709.

(2) [19701 3 S.C.R. 288.

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