Sasti @ Satish Chowdhary Vs. State of
West Bengal [1972] INSC 133 (2 May 1972)
KHANNA, HANS RAJ KHANNA, HANS RAJ SHELAT,
J.M.
CITATION: 1972 AIR 1668 1973 SCR (1) 467 1972
SCC (3) 826
CITATOR INFO :
RF 1973 SC 207 (7) R 1974 SC1214 (6) F 1975
SC 623 (3)
ACT:
Maintenance of Internal Security Act,
1971-Detention under s. 3--Alleged theft of copper wire by detenu mentioned as
ground of detention-Detention under Act whither valid when prosecution under
Indian Penal Code can be launched against detenu.
HEADNOTE:
The petitioner was detained by an order under
s. 3 of the Maintenance of Internal Security Act 1971. In a petition under Art.
32 of the Constitution it was urged on behalf of the petitioner that a
prosecution for theft under the Indian Penal Code could have been launched on
the facts alleged against him in the grounds of detention and therefore his-
detention was illegate.
Rejecting the plea,
HELD : It is always open to the detaining
authority to pass an order for the detention of a person if the grounds of
detention are germane to the object for which a detention order can legally be
made.The fact that the particular act of the detenue which provides the reason
for the making of the detention order constitutes ,in offence under the Indian
Penal Code would not prevent the detaining authority from passing the, order
for detention instead of proceeding against him in a court of law. The
detaining authority might well feel that though there was not sufficient
evidence admissible under the Indian Evidence Act for securing a conviction,
the activities of the person ordered to be detained were of such a nature as to
justify the order of detention. Even in cases where a person has been actually
prosecuted in a court of law in respect of an incident and has been discharged
by the trying magistrate, a valid order of his detention can be passed against
him in connection with that very incident. [46 H-470 C] Mohd. Salim Khan v,
Shri C. C. Bose & Anr. (Writ petition No. 435 of 1971 decided on April 25,
1972) relied on.
Sahib Singh Duggal v. Union of India, [1966]
1 S.C.R. 323 referred to.
The particulars of the incident in the
grounds of detention in the present case showed that the petitioner and his
associates committed theft in respect of overhead electric wires. The above act
of the petitioner and his associate created complete dislocation of electric
supplies of the area. The above ground of detention was germane to the object
for which a detention order can be made under section 3(1)(a)(iii) of the Act.
According to that provision, the detaining authority may, if satisfied with
respect to any person that with a view to preventing him from acting in any
manner prejudicial to the maintenance of supplies and services essential to the
community, it is. necessary so to do, make an order directing that such person
be detained.
[470 E-F] Pushkar Mukherjee & Ors, v. The
State of West Bengal, [1969] 2 S.C.R. 635, Arun Ghosh v. State of West Bengal
[1970] 3 S.C.R. 288 and Nagendra Nath Mondal v. State of West Bengal, [1972] 2
S.C.C. 498, referred to.
468
ORIGINAL JURISDICTION: Writ Petition No. 37
of 1972.
(Under Article 32 of the Constitution of
India for a writ in the nature of habeas corpus.
T. S. Arora, for the petitioner.
S. C. Majumdar and G. S. Chatterjee, for the
respondent.
The Judgment of the Court was delivered by-
Khanna, J. This is a petition through jail under article 32 of the Constitution
for the issuance of a writ of habeas corpus by Sasti alias Satish Chowdhary,
who has been ordered by the District Magistrate Howrah to be detained under
section 3 of the Maintenance of Internal Security Act, 1971 (hereinafter
referred to as the Act). The order recited that it was made with a view to
preventing the petitioner from acting in any manner prejudicial to the
maintenance of supplies and services essential to the community.
The order of detention was passed by the
District Magistrate on September 8, 1971. The petitioner, it is stated, was
found to be absconding soon after the passing of the order.
He was arrested on November 23, 1971 and was
served with the order of detention and the grounds of detention together with
vernacular translation thereof on the same day. in the meanwhile on September
8, 1971 the District Magistrate sent report to the State Government about his
having made the order of detention along with the grounds of detention and
other necessary particulars. The matter was then considered by the State
Government. It approved the detention order on September 10, 1971. The same day
the State Government sent report to the Central Government along with necessary
particulars regarding the necessity a the order. On December 10, 1971 the State
Government received a representation of the petitioner. The said
representation, after being considered, was rejected by the State Government on
December 21, 1971. On December 22, 1971 the. State Government placed the case
of the petitioner before the Advisory Board. The representation of the
petitioner was also sent to the Advisory Board. The said Board, after
considering the material placed before it, including the representation of the
petitioner, and after hearing him in person, sent its report to the state on
January 28, 1972. Opinion was expressed by the Advisory Board that there was
sufficient cause for the petitioner's detention. On February 11, 1972 the State
Government confirmed the order of detention of the petitioner.
Communication of the said confirmation was
thereafter sent to the petitioner.
469 In opposition to the petition Shri Dipak
Kumar Rudra, District Magistrate, who made the impugned order, has filed his
affidavit. Mr. Arora has argued the case amicus curiae on behalf of' the
petitioner, while the State has been reprensented by Mr.Majumdar, Before
dealing with the contention advanced by Mr. Arora, it would be pertinent to
reproduce the portion of the grounds of,' detention which contains the
necessary particulars :
"You are being detained in pursuance of
detention order made in exercise of the powers conferred by subsection (1) read
with sub-section (2) of section 3 of the Maintenance of Internal Security Act,
1971 (Act No. 26 of 1971), on the grounds that you have beer acting in a manner
prejudicial to the maintenance of supplies and services essential to the
community as evi-denced by the particulars given below :- (1) On 9.7.71 at
about 23.30 hrs. you and your associates Sk. Nazam, Kesta Adhikary, Bablu Das,
Kachi Chakravarty and 3/4 others were found to committee in respect of overhead
electric wires between two posts near Zanana Latrine of Lawrence & Co. at
Chakkashi by the darwans on duty. You and your associate Sk.Nazam were seen on
the top of the post cutting one end of the electric wire, while your associates
were rolling the cut end of the wire from other post. The darwans raised alarm
and surrounded you with the help, of local people. Your associate Sk. Nazam
with other escaped and you and two other of your associates could be arrested
at the spot with stolen copper wire. This created complete dislocation of
electric supplies of the area." It is argued by Mr. Arora that as the act
attributed to the- petitioner in the grounds of detention constituted an
offence under the Indian Penal Code, the petitioner could only be tried in a court
of law for the offence and no order for his detention On that score could be
made. This contention, in our opinion, is devoid of force. It is always open to
the detaining authority to pass an order for the detention of a person if the
grounds of detention are germane to the object for which a detention order can
legally be made. The fact that the particular act of the detenu which provides
the reason for the making of the detention order constitutes an offence under
the Indian Penal Code would not prevent the detaining authority from passing
the order for detention instead of proceeding against him in a court of law.
The detaining authority might well feel that though there was 470 -not
sufficient evidence admissible under the Indian Evidenre Act for securing a
conviction, the activities of;
the person ordered to be detained were of
such a nature as to justify the order of detention. There would. be no legal
bar to the making of detention order in such a case. It would, however, be
imperative that the incident which gives rise to the apprehension in the mind
of the detaining authority and induces that authority to pass the order for
detention should be relevant and germane to, the object for which a detention
order can be, made under the Act. Even in cases where a person has been
actually prosecuted in a court of law in respect of an incident and has been
discharged by the trying magistrate, a valid order of his detention can be
passed against him in connection with that very incident. It was recently observed
by this Court in the case of Mohd. Salim Khan v. Shri C. C. Bose & Anr. (Writ
petition No. 435 of 1971 decided on April 25, 1972) that from the mere fact
that a detenu was discharged in a criminal case relating to an incident by A
magistrate, it could not be said that the detention order on the basis of that
incident was incompetent, nor could it be inferred that it was without basis or
mala fide. Reliance in this connection was placed upon the case of Sahib Singh
Duggal v.Union India(1).
The particulars of the incident in the
grounds of detention show that the petitioner and his associates committed
theft in respect of overhead electric wires between two posts near Zanana
Latrine of Lawrence & Co. at Chakkashi. the above act of the petitioner and
his associates created complete dislocation of electric supplies of the area.
The above ground of detention, in our opinion, was germane to the object for
which a detention order ,can be made under section 3(1)(a) (iii) of the Act.
According to that provision, the detaining authority may, if satisfied with
respect to any person that with a view to preventing him from acting in any
manner prejudicial to the maintenance of supplies and services essential to the
community, it is necessary so to do make an order directing that such person be
detained.
Mr. Arora has referred to the case of Pushkar
Mukherjee & Ors. v. The State of West Bengal(2) wherein this Court dealt
with the difference between the concept of public order and law and order and
observed that the said difference was similar to the distinction between public
and private crimes in the realm of jurisprudence. It was observed that a line
of demarcation must be drawn between serious and aggravated forms of disorder
which directly affect the community any 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.
(1) [1966] 1 S.C.R. 313.
(2) [1969] 2 S.C.R. 635.
471 Pushkar Mukherjee's case(1) was referred
to in a later deci- sion of this Court in the case of Arjun Ghosh v. State of
West Bengal(2) and it was pointed out that the true distinction between the
areas of "law and order" and "public order" was one of
degree and extent of the reach of the act in question upon society. Acts
similar in nature, but committed in different contexts and cir-cumstances might
cause different reactions; in one case it might affect the problem of the
breach of law and order, and in another the breach of public order. It was
observed that the analogy resorted to in the Pushkar Mukherjee's case (supra)
of crimes against individuals and crimes against the public though useful to a
limited extent would not always be apt.
An assault by one individual upon another
would affect law and order only and cause its breach. A similar assault by a
member of one community upon a leading individual of another community, though
similar in quality, would differ in potentiality in the sense that it might
cause reverberations which might affect the even tempo of the life of the
community. The Court pointed out that "the act by itself is, not
determinant of its own gravity.. , In its quality it may not differ but in its
potentiality it may be very different." (see ,also Nagendra Nath, Mondal
v. State of West Bengal (3).
The distinction between public order and the
maintenance of law and order has, however not much material bearing 'on the
present case because, as stated above, the petitioner has been detained not
with a view to preventing him from acting in any manner prejudicial to the
maintenance of public order but with a view to preventing him from acting in
any manner prejudicial to the maintenance of supplies and services essential to
the community.
No other infirmity in the detention order and
the consequent detention of the petitioner has been brought to our notice.
The, petition consequently fails and is
dismissed.
G.C.
Petition dismissed.
(1) [1969] 2 S.C.R. 635. (2) [1970] 3 S.C.R.
288.
(3) [1972] 2 S.C.C. 498.
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