Shyamal Chakraborty Vs. Commissioner of
Police, Calcutta & ANR [1969] INSC 166 (4 August 1969)
04/08/1969 SIKRI, S.M.
SIKRI, S.M.
MITTER, G.K.
HEGDE, K.S.
CITATION: 1970 AIR 269 1970 SCR (1) 762 1969
SCC (2) 426
CITATOR INFO:
R 1970 SC 675 (14,15) RF 1972 SC2420 (6) R
1972 SC2481 (11) R 1973 SC 295 (7) RF 1975 SC 953 (4) R 1990 SC1086 (18) RF
1991 SC 574 (11) RF 1991 SC1090 (5)
ACT:
Preventive Detention Act, 1950, ss. 3 and
7--'Public order' in s. 3--Acts which are offences under Indian Penal Code
whether come under purview of 'public order'--Representation to Government by
detenu after case dealt with by Advisory Board--Duty of Government to consider
representation under s. 7.
HEADNOTE:
The petitioner was arrested and detained by
an order of the Commissioner of Police, Calcutta under s. 3(2) of the Preventive
Detention Act, 1950. According to the grounds of detention supplied to him his
activities were prejudicial to the maintenance of 'public order'. The
petitioners' case was placed before the Advisory Board and on obtaining its
opinion the Governor confirmed the order of detention. It was after this that
the petitioner made representations to the State Government. Then he filed the
present petition under Art. 32 of the Constitution based on the following
grounds: (i) that there was a breach of s. 7 of the Act inasmuch as his
representation's were not considered by the Government; (ii) that the grounds
furnished to him mentioned offences under the Indian Penal Code and these could
not be used for the purpose of detention except in emergencies:
(iii) that the grounds did not have any
relation to 'public
HELD: (i) It is obligatory on the Government
to deal with the representations made by the detenu, but in the present case
the detenu made his representations only after the Advisory Board had dealt
with the matter. The State Government was in the process of dealing with his
representation. In the circumstances it could not be said that there had been a
breach of s. 7 of the Act. [765 E-G] (ii) 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. [766 A] Pushkar Mukherjee & Ors. v.
The State of West Bengal, [1969] 2 S.C.R. 635, applied.
The grounds of detention supplied to the
detenu in the present case showed that on one occasion he took part in rioting
along with associates armed with lathis, iron rods and acid bulbs. On another
occasion he took part in assaulting a constable on duty. On a third occasion he
and his associates were armed with deadly weapons which were actually used in
indiscriminately endangering human lives in the locality. [766 C-D] From, these
activities the object of the detenu seems to have been to terrorise the
locality and bring the whole machinery of law and order to a halt. The
conclusion of the detaining authority that the detenu was likely to act in a
manner prejudicial to the maintenance of public order in the future and it was
necessary to prevent him from doing so, was justified. [766 E-F] 763 The fact
that public sector was affected by an act which was also an offence under the
Indian Penal Code .was irrelevant. [766 F]
ORIGINAL JURISDICTION: Writ Petition No. 102
of 1969.
Petition under Art. 32 of the Constitution of
India for a writ in the nature of habeas corpus. Vinoo Bhagat, for the
petitioner.
S.P. Mitra, G.S. Chatterjee for Sukumar Basu,
for the respondents.
The Judgment of the Court was delivered by
Sikri, J. This is a petition under Article 32 of the Constitution by Shyamal
Chakraborty who has been detained under the Preventive Detention Act, 1950
(hereinafter referred to as the Act). Three grounds have been urged by the
learned counsel why we should issue a writ of habeas corpus directing his
release: (1) that the detenu's representation was not considered by the
Government, (2) that the grounds furnished to the detenu mentioned offences
under the Indian Penal Code and cannot be used for the purpose of detaining the
detenu except in emergencies and (3) that the grounds do not have any relation
to the maintenance of public order. Following are the facts as they emerge from
the affidavits on record:
The detenu was detained by an order No.
3846-D.D. (S) dated 13th November, 1968 passed by the Commissioner of Police,
Calcutta in exercise of powers conferred on him by section 3(2) of the Act. The
detenu was arrested on November 13, 1968 and was served with the grounds of
detention both in English and in vernacular on the same day.
On 15th November. 1968, the Commissioner of
Police reported the fact of such detention of the petitioner together with the
grounds and other particulars having bearing on the necessity of the order to.
the State Government. On 19th November, 1968, the Governor was pleased to
approve the said order of detention under section 3(3) of the Act and on the
same day the Governor submitted the report to the Central Government under
section 3(4) of the Act together with grounds and other particulars having
bearing on the necessity of the order. On 7th December, 1968, his case was
placed before the Advisory Board under section 9 of the Act.
On 6th January, 1969, the Advisory Board
after consideration of the materials placed before it was of the opinion that
there was sufficient cause for detention of the petitioner.
The petitioner had not submitted any
representation to the State Government till then. By an order dated 8th
January, 1969 the Governor was pleased to confirm the order of detention. It
appears that on the 13th January, 1969 and 16th January, 1969 the detenu made
764 representations. After the receipt of these representations the same were
sent by the Home Department to the Commissioner of Police for his report. On
1st April, 1969 the Commissioner of Police informed the Home Department that he
did not recommend the release of the petitioner. But the representations of the
petitioner were not received back from the Commissioner of Police with his
letter of the 1st April, 1969. Later on the Commissioner of Police sent back
the representation dated 13th January, 1969 to the Home Department. This Court
on 28th March, 1969 issued a notice under Article 32 of the Constitution to the
Commissioner of Police and to the State Government to show cause why rule nisi
should not be issued made returnable three weeks hence.
On receipt of this notice the State
Government refrained from passing any order on the representation dated 13th
January, 1969. The representation dated 16th January, 1969 is untraceable, but
effort is being made to trace it.
According to the Commissioner of Police it
was on the same lines as the representation dated 13th January, 1969.
It is necessary to. reproduce the grounds of
detention served on the detenu and they are in the following terms :- "You
are being detained in pursuance of a detention order made under sub-section (2)
of section 3 of the Preventive Detention Act, 1950 (Act IV of 1950) on the
following grounds:
You have been acting in a manner prejudicial
to the maintenance of public order by the commission of offences of rioting,
assault etc. as detailed below:
(1) That on 28-6-68 at about 6 p..m. you
along with your associates being armed with lathis, iron rods, acid bulbs etc.
committed a riot in Kumartuli Park in course of which you severely assaulted
Shri Amal Krishna Roy of 20A, Abhoy Mitra Street and iron rods, acid bulbs etc.
were indiscriminately used endangering human lives.
(2) That on 23-7-68 at about 6.10 p.m.
you along with your associates being armed
with lathis, iron rod, hockey sticks etc.
attacked constables Sankar Lal Bose and
Jagdish Singh both of Shyampukur P.S. on Kaliprosad Chakraborty Street near the
Gaudiya Math who went there to. discharge their lawful duties, as a result of
which constable Sankar Lal Bose sustained bleeding injuries on his person.
(3) That in the night of 3-10-68 between
11.50 p.m. and 1.30 a.m. you along with your associates being 765 armed with
deadly weapons took part in a riot at Rabindra Sarani from Bug Bazar Street
crossing to Kumartuli Street crossing in course of which bombs, brickbats and
soda water bottles were indiscriminately hurled endangering human lives.
You are hereby informed that you may make a
representation to the State Government against the detention order and that
such representation should be addressed to the Assistant Secretary to the
Government of West Bengal, Home Department, Special Section, Writers'
Buildings, Calcutta and forwarded through the Superintendent of the Jail in
which you are detained as early as possible.
You are also informed that under section 10
of the Preventive Detention Act, 1950 (Act IV of 1950) the Advisory Board,
shall, if you desire to be heard, hear you in person and that if you desire to
be so heard by the Advisory Board you should intimate such desire in your
representation to the State Government".
Coming now to the first point raised by the
learned counsel it seems to us that there has been no breach of the provisions
of the Act. This Court has held that it is obligatory on the Government to deal
with the representations made by the detenu, but the facts recited above show
that the detenu did not choose to make a representation before the Advisory
Board dealt with the matter, and further the State Government was in the
process of dealing with the representation when this Court issued the notice.
Moreover, in the representation dated 13th January, 1969, the detenu barely
stated that the grounds were false and that the detenu was a poor man and the
family conditions were miserable and he was living peacefully, in the town and
had never committed any act which was manifestly prejudicial to the maintenance
of public order or communal harmony. He prayed that "under the
circumstances, I am to request you to kindly produce. me before the Advisory
Board and release me." At that stage it was impossible to produce him
before the Advisory Board. The Advisory Board had already dealt with the matter.
Under these circumstances we are unable to say that there has been a breach of
section 7. We trust that the State Government will now immediately deal with
the representation or representations and pass a suitable order.
It will be convenient to deal with the points
2 and 3 mentioned above together. It is true, as urged by the learned counsel
for the petitioner, that this Court has consistently held that the grounds must
have relevance to the maintenance of public order, and that they should not
relate merely to the maintenance of 766 order. It is true, as laid down by this
Court, that 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. As Ramaswami, J., put it in Pushkar Mukherjee & Ors. v. The State of
West Bengal(1), "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." The question
which arises is this: do the grounds reproduced above relate merely to
maintenance of order or do they relate to the maintenance of public order? It
will be noticed that the detenu in each of these cases acted along with
associates who were armed with lathis, iron rods, acid bulbs etc. It is clearly
said in ground No. 1 that he committed a riot and indiscriminately used acid
bulbs, iron rods, lathis etc. endangering human lives. This ground cannot be
said to have reference merely to maintenance of order because it affects the
locality and everybody who lives in the locality. Similarly, in the second
ground, he along with his associates prevented the police constables from
discharging their lawful duties and thus affected everybody living in the
locality.
In ground No. 3, again the whole locality was
in danger as the detenu and his associates were armed with deadly weapons and
these were in fact used for indiscriminately endangering human lives in the
locality. The object of the detenu seems to have been to terrorise the locality
and bring the whole machinery of law and order to a halt. We are unable to say
that the Commissioner of Police could not in view of these grounds come to the
conclusion that the detenu was likely to. act in a manner prejudicial to the
maintenance of public order in the future and it was necessary to prevent him
from doing so. The fact that public order is affected by an act which was also
an offence under the Indian Penal Code seems to us to be irrelevant.
In the result the petition fails and is
dismissed.
G.C. Petition dismissed.
(1) [1969] 2 S.C.R. 635.
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