Joydeb Gorai Vs. State of West Bengal
[1972] INSC 153 (24 July 1972)
SHELAT, J.M.
SHELAT, J.M.
DUA, I.D.
KHANNA, HANS RAJ
CITATION: 1972 AIR 2173 1973 SCR (1) 714 1972
SCC (2) 417
CITATOR INFO :
E 1972 SC2686 (3)
ACT:
West Bengal (Prevention of Violent Activities)
Act (19 of 1970) s.3(1) (2) (d) and (3)-Threat to kill a person and disturbing
public order-If valid ground of detention-Period within which confirmation of
order of detention by State Government should be passed.
HEADNOTE:
Section 3(2) (d) of the West Bengal
(Prevention of Violent Activities,' Act, 1970, amongst other things, provides
that the committing of any offence punishable with imprisonment for a term
extending to 7 years of more, where the commission of such offence disturbs or
is likely to disturb public order would be within the definition of the
expression "acting in any manner prejudicial to the maintenance of public
order".
In pursuance of an order under a. 3(1) and
(3) of the Act, the petitioner was arrested on August 6, 1971, with a view to
preventing him from acting in any manner prejudicial to the maintenance of
public order One of the grounds furnished to him was that he threatened to kill
a person on account of his refusal to rub out the anti-naxalite slogan, written
on the wall of his house, that the threat terrorised the common public and as
such they could not pursue their normal avocations, and that he disturbed
public order. The State Government confirmed the order on October 28, 1971,
after receipt of the opinion of the Advisory Board (Dismissing the petition
under Art. 32 Challenging the order of detention.
HELD : (1) Under s. 506 I.P.C., a threat to
commit an offence punish able with death or imprisonment for life shall be
punish-able with imprisonment of either description for a term which may extend
to 7 years. Hence the ground furnished was not extraneous or irrelevant since
the petitioner. had committed an offence enumerated in s. 3(2) (d) and there
was disturbance of public order. [716A-C] (2) There was no delay in passing the
order of confirmation, since it was passed before the expiry of three months
from the date of detention. [716H] Deb Sadhan Rov v. West Bengal, [1972] 1
S.C.C. 308 and Ujjal Manda v. West Bengal, [1972] 1 S.C.C. 456. followed.
ORIGINAL JURISDICTION: Writ Petition No. 39
of 1972.
Petition under Article 32 of the Constitution
of India for the enforcement of fundamental rights.
S. Lakshminarasu, for the petitioner.
G. L. Mukhoty and Sukumar Basu, for the
respondent.
The Judgment of the Court was delivered by
Shelat, J. The District Magistrate, Burdwan, passed the order impugned in this
petition on July 14, 1971 directing the 715 petitioner's detention under
sub-sec. (1) read with sub-sec.
(3) of sec. 3 of the West Bengal (Prevention
of Violent Activities) Act, being President's Act XIX of 1970, on the ground
that such detention was necessary "with a view to preventing him from
acting in any manner prejudicial to the maintenance of public order". In
pursuance of the order the petitioner was arrested on August 6, 1971 when he
was furnished, as required by the Act. the grounds of detention.
There is no dispute that consequent upon the
passing of the said order the Government of West Bengal and the other relevant
authorities under the Act duly took all consequential steps, such as the
reporting to and obtaining the Government's order of approval, reporting to the
Central Government, disposal of the petitioner's representation, referring the
petitioner's case to the Advisory Board and obtaining its opinion etc., within
the respective times prescribed by the Act.
Two grounds questioning the, validity of the
said order and the detention there under were, however, urged by Mr.
Lakshminarasu, appearing for the petitioner
amicus curiae.
The first was that the first ground in the
grounds of detention was irrelevant and therefore vitiated the entire order.
The second was that there was undue delay in the confirmation by the State
Government of the detention order and the continuance of detention there under
after the expiry of three months of detention.
The first ground in the grounds of detention
runs as follows "That on 7-2-71 at 13-30 hours you and your associates had
been to the house of Shri Bibhuti Bhusan Ghosh of Ranchi Dhowrah, Police
Station Kulti, and asked him to rub [out] the anti-naxalite slogans written on
the wall of his house. Being refused you threatened to kill him. Your such act
terrorised the common public and as such they could not pursue the normal
avocations of life. Moreover, it disturbed public order." The question is
whether threat to kill the said Bibhuti Bhusan Ghosh amounted to " acting
in any manner prejudicial to-the maintenance of public order" as, defined
in sec. 3 (2) (d) of the Act. Cl. (d), amongst other things provides that
committing any offence punishable with death or imprisonment for life or
imprisonment for a term extending to seven years or more, where the commission
of such, offence disturbs or is likely to disturb public order, would fall
within tile said definition of the expression "acting in any manner
prejudicial to the maintenance of public order". Sec. 506 of the Penal
Code provides that threat to 716 cause death or grievous hurt or to cause an
offence punishable with death or imprisonment for life shall be punishable with
imprisonment of either description for a term which may extend to seven years
or with fine or both.
That being so, the offence said to have been
committed by the petitioner clearly was one of the offences enumerated in cl.
(d) of sec. 3 (2) of the Act. Ground No. (1) further alleges that the threat to
kill the said Ghosh administered to him on account of his refusal to rub out
the antinaxalite slogans written on the wall of his house "terrorised the
common public and as such they could not pursue the normal avocations of
life" and furthermore, disturbed public order. This assertion, coupled
with the satisfaction of the other requirement of cl. (d) of sec. 3 (2),
namely, the committal of the offence of threatening to kill, would bring the
act in question within the expression "acting in any manner prejudicial to
the maintenance of public order" as defined in sec. 3 (2). It cannot,
therefore, be argued that ground No. (1) was extraneous or irrelevant to the
objects set out in sec. 3 of the Act and in respect of which a valid order of
detention could be made under the Act.
The second contention also is not such as ran
be sustained.
There is no dispute that the petitioner was
arrested on August 6, 1971 and the order of confirmation and the impugned
detention there under beyond the period of three months was passed by the State
Government on October 28, 1971, that is within three months from the date of
his arrest. Counsel, however, argued that though the decision of this Court
have laid down that such an order of confirmation has to be passed within three
months from the date of arrest, the appropriate Government has to pass such an
order as soon as possible and cannot delay in doing so until the expiry of
three months. In Deb Sadhan Roy v. West Bengal(1), a case under the President's
Act XIX of 1970, this Court laid down that it was essential that the
appropriate Government should take positive action on the report of the
Advisory Board, which action alone would determine whether the detention was to
be terminated or continued, that it would, therefore, prima facie, appear that
action should be taken immediately after the receipt of the opinion of the
Board, or at any rate, within three months from the date a person was detained,
and that failure to confirm or extend the period within three months would
result in the detention becoming illegal, the moment the three months period
elapsed without any such confirmation This decision, thus, makes it clear that
the legality of a detention order or the detention there under would not be
affected it an order of confirmation is passed before the expiry of three
(1)[1972] 1 S.C.C. 308.
717 months from the date of detention.
Similarly, in Ujjal Mandal v. West Bengal(1), Mathew, J., speaking for the
Court, observed at page 459 of the report as follows:
"To put the matter in a nut-shell : the
State Government has power under the Act to detain a person without trial
beyond a period of three months-, but limited to a period of on year.
That power the State Government may exercise
on receipt of the opinion of the Board that there is sufficient cause for the
detention.
When the State Government receives that
opinion, it has still the option to exercise the power and to continue the
detention beyond the period of three months or not.
Confirmation is the exercise of the power to
continue the detention after the expiry of three months. Unless that power is
exercised within the period of three months from the date of detention, the
detention after the expiry of that period would be without the authority of the
law." Therefore, if the order of confirmation has been passed, as it has
been done in the present case, within three months' time from the date of
arrest, neither the legality of the detention order nor the continued detention
there under is affected.
Both the contentions raised by counsel thus
having failed, the petition also must fail and is consequently dismissed.
V.P.S. Petition dismissed.
(1) [1972] IS.C.C.456.
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