Kanu Biswas Vs. State of West Bengal
[1972] INSC 135 (3 May 1972)
KHANNA, HANS RAJ KHANNA, HANS RAJ SHELAT,
J.M.
CITATION: 1972 AIR 1656 1973 SCR (1) 546 1972
SCC (3) 831
CITATOR INFO:
R 1973 SC 295 (7) R 1974 SC1214 (3) RF 1975
SC 953 (4,5) R 1987 SC 998 (6) R 1987 SC2332 (12) R 1990 SC 220 (7) R 1990
SC1086 (18) RF 1992 SC 979 (10)
ACT:
Maintenance of Internal Security Act (26 of
1971), s. 3- Maintenance of public order,' scope of.
HEADNOTE:
The petitioner and his associates attacked a
husband and wife with open knives in the third class compartment of a running
train and robbed them of valuable property by putting them in fear of death on
one occasion, and on another occasion, attacked a police party on the platform
of a railway station with bombs. dagger$, knives and iron rods and exploded
bombs with a view to kill the police party.
The petitioner was detained by an order under
s. 3 of the Maintenance of Internal Security Act 1971 with a view to preventing
him from acting in any manner Prejudicial to the maintenance of public order,
and the 'grounds of detention were that the two incidents created terror and
panic among passengers and disturbed public order.
The, petitioner challenged the order of
detention in this Court.
Dismissing the petition.
HELD : Both the incidents referred to in the
order affected public order and not merely law and order. [550 E-F] The
question whether a man only committed a breach of law and order or has act-ad
in a manner likely to cause disturbance of the public order, is a question of
degree and the extent of the reach of the act upon the society. The test to be
adopted in determining whether an act affects law and order or public order is
: Does it lead to disturbance of the current of life of the community so as to
amount to a ,disturbance of the public order or does it affect merely an
individual leaving the tranquility of the society undisturbed ? When two
passengers are robbed at the point of knives while travelling in a third class
compartment of a running train the act affects riot only the passengers who are
deprived of their valuables but also the other passengers who are watching in
fear as helpless spectators.
Likewise, the attack against the police party
on the platform of a railway station by exploding bombs is bound to create
panic and confusion among the passengers at the railway station. Consequently,
there is bound to be terror and panic amongst the travelling public. Therefore,
the acts in question, in the very nature of things, would adversely affect the
even tempo of life of the community and cause a general disturbance of public
tranquillity. [550 A- F] Tapan Kumar Mukherjee and ors. v. State of West
Bengal, A.I.R. 1972 S.C. 840. followed.
Dr. Ram Manohar Lohia v. State of Bihar,
[1966] 1 S.C.R.
709, .Arun Ghosh v. State of West Bengal,
[1970] 3 S.C.R.
288, Nagendra Nath Mondal v. State of West
Bengal, [1972] 1 S.C.C. 498, Nandlal Roy @ Nonda Dulal Roy @ Pagla v. State of
West Bengal, W.P. No. 15 of 1972, decided on March 11, 1972. Sudhir Kumar Saha
v. Commissioner of Police Calcutta and Anr., [1970] 3 S.C.R. 360 and S. K.
Kader v. State of West Bengal, W.P. 35 of 1967 decided on May 2, 1972, referred
to.
547
ORIGINAL JURISDICTION: Writ Petition No. 46
of 1972.
S, K. Bagga, for the, petitioner.
Prodyot Kumar Chakravarty 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 issuing a writ of habeas cot-pus by Kanu Biswas, who has been ordered by
the District Magistrate 24Parganas to be detained under section 3 of the
Maintenance of Internal Security Act, 1971 (Act 26 of 1971) "with a view
to preventing him from acting in any manner prejudicial to the maintenance of
public order." The order of detention was made by the District Magistrate
on November 13, 1971. The petitioner was arrested in pursuance of the detention
order on November 14, 1971 and was served the same day with the order as well
as the grounds of detention together with vernacular translation thereof. On
November 18,1971 the District Magistrate sent report to the State Government
about the passing of the detention order along with the grounds of detention
and other necessary particulars. The State Government considered the matter and
approved the detention order on November 24, 1971. Necessary report was also
sent on that day by the State Government to the Central Government. On December
13, 1971 the State Government placed the case of the petitioner before the
Advisory Board. In the meanwhile, on December 12, 1971 the State Government
received a representation of the petitioner. The representation was considered
by the State Government and was rejected on January 11, 1972. The
representation was thereafter forwarded to the Advisory Board. The Board, after
considering the, material placed before it, including the petitioner's
representation, and after hearing the petitioner in person, sent its report to
the State Government on January 14, 1972. Opinion was expressed, by the Board
that there was sufficient cause for the detention of the petitioner. On
February 2, 1972 the State Government confirmed the order for the detention of
the petitioner. Communication about the confirmation of the order was
thereafter sent to the petitioner.
Affidavit of Shri B. Mukhopadhya, District
Magistrate of 24- Parganas, who passed the impugned order, has been filed in
opposition to the Petition. Mr. Bagga has argued the case amicus curiae on
behalf of the petitioner, while the State has been represented by Mr.
Chakravarti.
548 It has been argued on behalf of the
petitioner that the particular acts on account of which the order for the
detention of the petitioner has been made were not germane to the maintenance
of public order and, as such, the order for his detention could not be validly
made for preventing him from acting in a manner prejudicial to the maintenance
of public order. In this respect we find that according to the grounds of detention,
the order for the petitioner s detention was made on the ground that he had
been acting in a manner prejudicial to the maintenance of public order as
evidenced by the particulars given below; taken separately or collectively
"That on 26-9-71 at about 18.30 hours while Baidyanath Bandopadhya of
Champapukur, P.S. Basirhat, District 24- Parganas along with his wife were
travelling ill a 3rd class compartment of Up Basirhat local train from Barasat,
You along with your associates attacked him and his wife with open knives
between Champapukur R/s and Basirhat R/S and robbed them of Wrist Watch, Gold
Ornaments, Cash valued at Rs. 725//- by putting them in fear of death. By your
such activities you created terror and panic among the travelling passengers and
public order was disturbed thereby.
On 4-11-71. at about 21.40 hours, you and
your associates armed with bombs, daggers, knives and iron rods etc.
attacked police on the platform at
Beliagliata railway station with a view to take their lives and to intimidate
the public you charged two bombs which exploded with terrible sound endangering
the on-duty police.
Your such action was so violent that it
created panic and confusion among the passengers there then. YOU have thus
action in a manner prejudicial to the maintenance of public order." It
would appear from the above that the petitioner and his associates attacked a
husband and wife with open knives in the, third class compartment of a running
train and robbed them of valuable property, including wrist watch, gold
ornaments and cash by putting them in fear of death. The grounds of detention
further show that the above act of the petitioner and his associates created
terror and panic among the travelling passengers and thereby disturbed public
order. The second incident which took place at 9.40 p.m. on November 4, 1971
related to the attack by the petitioner and his associates on a police party on
the platform of Belighata railway station with a view to kill them. The
petitioner and his associates are stated to have been then armed with bombs.
daggers, knives and iron rods and they exploded two bombs 549 with terrible
sound. It is further stated that the above act of the petitioner and his
associates created panic and confusion among the passengers and thus disturbed
public order. Each one of the above two incidents of September 26, 1971 and
November 4, 1971, in our opinion, affected public order and not merely law and
order.
The distinction between the concept of public
order and that of law and order has been adverted to by this Court in a number
of cases. In the case of Dr. Ram Manohar Lohia v.State of Bihar(1),
Hidayatullah J. (as he then was) said that any contravention of law always
affected order, but before it could be said to affect public order, it must
affect the community at large. He considered three concepts, law and order,
public order and the security of the State, and observed that to appreciate the
scope and extent of each one of them, one should imagine the concentric
circles. The largest of them represented law and order, next represented public
order and the smallest represented the security order, just asan act might
affect public order but not the security of the State.In the subsequent case of
Arun Ghosh v. State of West Bengal 2 the Court dealt with the matter in the
following words:
"Public order is the even tempo of the
life of the community taking the country as a whole or even a specified
locality.
Disturbance of public order is to be
distinguished from acts directed against individuals which do not disturb the
society to the extent of causing a general disturbance, of public tranquility.
It is the degree of disturbance and its effect upon the life of the community
in a locality which determines whether thedisturbance amounts only to a breach
of law and order. Take for instance, a man stabs another.
People may be shocked and even disturbed, but
the life of the community keeps moving at an even tempo, however much one may
dislike the act. Take another case of a town where there is communal tension. A
man stabs a member of' the other community. This is an act of a very different
sort.
Its implications are deeper and it affects
the even tempo of life and public order is jeopardized because the
repercussions of the act embrace large sections of the community and incite
them to make further breaches of the law and order and to subvert the public
order. An Act by itself is not determinant of its own gravity. In its quality
it may not differ from another but in its poten- tiality it may be very different."
(1)[1966] 1 S.C.R. 709.
(2) [1970] 3 S.C.R. 288 550 The question
where a man has only committed a breach of law and order or has acted in a
manner likely to cause a disturbance ,of the public order, according to the
dictum laid down in the above case is a question of degree and the extent of
the reach of the act upon the society. Public order is what the French call
"order publique" and is something more than ordinary maintenance of
law and order.
The test to be adopted in determining whether
an act affects law and order or public order, as laid down in the above ,,case,
is : Does it lead to disturbance of the current of life of the community so as
to amount to a disturbance of the public order ,or does it affect merely an
individual leaving the tranquility of the society undisturbed ? The principle
enunciated above has been followed by this Court in the case of Nagendra Nath
Mondal V. State of West Bengal(1) and Nandlal Roy Ca, Nonda Dulal Roy @ Pagla
v.
State of West Bengal (WP No. 15 of 1972, decided
on March II, 1972.) In the light of what has been observed above, we have no
doubt that each one of the incidents of September 26, 1971 and November 4, 1971
was prejudicial to the maintenance of public order. When two passengers are
robbed at the point of knife while travelling in a third class compartment of a
running train, the act of the miscreants affects not only the passengers who
are deprived ,of their valuables but also the other passengers who watch tile
whole thing in fear as helpless spectators. There is bound to be- consequent
terror and panic amongst the travelling public.
Like wise, attack directed against a police
party on the platform of railway station by exploring bombs is bound to create
panic an. confusion among the passengers at the railway station. The act' in
question in the very nature of things would adversely affect the even tempo of
life of the community and cause a general disturbance of public tranquility.
Reference has been made on behalf of the
petitioner to the ,case of Sudhir Kumar Saha v. Commissioner of Police,
Calcutta & A nr. (2). The petitioner in that case along with others
committed various acts on three occasions. On the first occasion lie attached
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.. It was held that the incidents were not interlinked and could not
have prejudiced tile- maintenance of public order.
As against the above solitary decision, Mr.
Chakravarti on behalf of the respondent-State has referred to the principle
laid down in the case of Arun Ghosh v. State of West Bengal (supra) as well as
in the case of Nagendra Nath Mondal V.State of West ,Bengal (supra). Apart from
those two cases, we find that in the (2) [1970] 3 S.C.R. 360.
(1) [1972] I S.C.R. 498.
551 case of Tapan Ku-mat' Mukherjee and Ors.
v. State of West Bengal(1) the allegation against the detenu was that he along
with other associates committed robbery in respect of a fat, and a watch at the
point of dagger in a running train, and this created disturbance of public
order.
Contention was raised that the act of the
detenu and his associates related only to law and order and not to public
order. This contention was repelled and it was observed that the innocent
passengers would be terror stricken by the acts of the detenu and his
associates. Another incident which was referred to in that case related to
throwing of bombs on a shop. The bombs exploded and as a result of the panic so
caused in the locality, all the shops and houses around the place were closed.
The above round was held by this Court to be germane to the disturbance of
public order.
In case of Nandlal Roy (supra), the ground of
detention recited that the detenu and his associates while committing theft of
rice from a wagon threw bombs upon the members of the Railway Protection Force.
One member of the Railway Protection Force was injured. The explosion of the
bombs was stated to have created panic in the station, area and the adjoining
locality. It was held that the activity of the petitioner created not merely a
question of the maintenance of law and order but created a disturbance which
would be comprehended by the, expression " order publique".
The detention order was consequently upheld.
In S. K. Kedar v. State of West Bengal (WP
No. 35 of 1972 decided on May 2, 1972) the allegation against the detenu was
that he and his associates while removing railway material charged bombs and
ballast upon R.P.F. party as a consequence of which the members of R.P.F. party
fired in self-defence. The activity of the petitioner was considered to be
prejudicial to the maintenance of public order and the detention order was
upheld.
The facts of the present case are much more
akin to those of Tapan Kumar Mukherjee and Ors. v. State of West Bengal
(supra). The past activities of the petitioner as revealed in the grounds of
detention, in our opinion, showed a propensity to disturb public order. The
authority concerned, in the circumstances, could have validly made the order
for the detention of the petitioner to prevent him from acting in a manner
prejudicial to the maintenance of public order.
The petition consequently fails and is
dismissed.
V.P.S.
Petition dismissed.
(1) A I.R. 1972 S. C. 840.
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