Kuso Sah Vs. The State of Bihar &
Ors [1973] INSC 203 (8 November 1973)
CHANDRACHUD, Y.V.
CHANDRACHUD, Y.V.
DWIVEDI, S.N.
GOSWAMI, P.K.
CITATION: 1974 AIR 156 1974 SCR (2) 195 1974
SCC (1) 185
CITATOR INFO:
RF 1975 SC1215 (5) R 1987 SC 998 (6)
ACT:
Constitution of India Art. 32-Habeas
Corpus-Petitioner detained for two reasons : maintenance of public order and
maintenance of essential supplies and services-Two out of three grounds in
respect of first reason found irrelevant- Held entire order of detention is
illegal as the two reasons cannot be bifurcated.
HEADNOTE:
The petitioner was detained pursuant to an
order of detention dated April 2 1973 passed by the District Magistrate,
Monghyr, with a view to preventing the petitioner from "acting in any
manner prejudicial to the maintenance of public order and the maintenance' of
supplies and services essential to the community." The grounds of
detention served on the petitioner on April 6, 1973` were divided into two
parts, the first relating to public order and the second to essential supplies
and services. Two out of the three grounds mentioned in the first part set out
facts which referred respectively to a stray incident on a public street and an
assault on a public. servant. The petitioners challenged the order of detention
by a habeas corpus petition in this Court.
Allowing the Petition,
HELD : (1) The two concepts law and order'
'and 'public order' have well defined contours. Stray and unorganised crimes of
theft and assault are not matters of public order since they do not fend to
affect the even flow of public life. Infractions of law we bound in some
measure to lead to disorder but every infraction of law does not necessarily
result in public disorder. "Law and order comprehends & orders of less
gravity than these affecting "public order", just as public order,
comprehends disorders of less gravity than those affecting "security of
State. [196G] Pushkar Mukherjee and others v. The State of West Bengal [1969] 2
S.C.R. 635, 642 and Dr. Ram Manoher Lohia v., State of Bihar and Others [1966]
1 S.C.R. 709, 746. referred to.
(2)Two of the grounds on which the order of
detention rests bear no rational connection with "public order", in
the interests of which the petitioner was ordered to be detained. The order of
detention expressly states that it was passed with a view to preventing the
petitioner from.
acting in a manner prejudicial to the
maintenance of public order and the maintenance of supplies and service
essential to the community, and the District Magistrate was satisfied that if
the petitioner was allowed to remain at large he will indulge in activities
prejudicial to the maintenance of public order and maintenance of supplies and
services essential to the community. The two reasons maintenance of public order
and maintenance of supplies and services essential to the community cannot
therefore be bifurcated and considered in separate compartments. The subjective
satisfaction of the detaining authority embraces both the reasons and since two
out of the three grounds mentioned in the first part are irrelevant, the entire
order is illegal. [179D, 198D] Pushkar Mukherjee & Ors. V, The State of
West Bengal [1969] 2 S.C.R. 635, 642 and Motilal Jain v. State of Bihar &
Ors.
[1968] 3 S.C.R, 587, 593, referred to.
ORlGINAL JURISDICTION : Writ Petition No.
1607 of. 1973.
Under.Article 32 of the Constitution for
issue of a Writ in the nature of habeas corpus.
196 P. K. Chatterjee and Rathin Das, for the
petitioner.
K. K. Sinha and S. K. Sinha for the,
respondents.
The Judgment of the Court was delivered by
CHANDRACHUD J.-By this petition for the, writ of ha as corpus, the petitioner
challenges an order of detention dated April 2, 1973 passed by the District
Magistrate, Monghyr with a view to preventing the petitioner from "acting
in any manner prejudicial to the maintenance of public order and the
maintenance of supplies and services essential to the community The grounds of
detention served on the petitioner on April 6, 1973 are divided into two parts,
the first part referring to acts prejudicial to the maintenance of public order
and the second to those prejudicial to the maintenance of supplies and services
essential to the community.
Two out of the three grounds mentioned in the
first part read thus "(b) On 20-1-71 at about 2 A.M. he and his brother,
Garib Sao were leading two trucks with stolen Railway property in a car bearing
No. WBJ 6949. On the railway crossing near Jamui Rly. Station other,, standing
trucks on the road caused a bottleneck in his hurried journey. This led to a
clash and his men assaulted the truck drivers and threatened them with fire
arms. Some 15 of his Men were arrested then an( there by the Police with the
help of the public while he managed to escape along with his brother in the,
car bearing No.
WBJ 6948. This car is registered in the name
of his brother Rabig Sao. A case was registered in this connection vide
Lakshmipur P.S. Case No. 9 (1) 71 dated 20-1-71.
(c)He assaulted Shri Ram Singhasan Rai, Asst.
Suptd. Commercial Taxes, Intelligence Branch, Bhagalpur who had gone to his
factory in course of his duties and discharge of his legal obligations as Asst.
Suptd. Commercial Taxes Intelligence Branch and in connection therewith he has
been arrested. in Jamalpur P.S. case No. 21 dated 29-8-72 u/s 143, 333, 307,
325 etc. I.P.C." These acts may raise problems of law and order but we
find it impossible to see their impact on public order. The two concepts have
well defined contours, it being well Established that stray and unorganised
crimes of theft and assault are not matters of public order since they do not
tend to affect the even flow of public life. Infractions of law are bound in
some measure to lead to disorder but every infraction of law does not
necessarily result in public disorder. As observed in Pushkar Mukherjee
&.Ors. v. The State of West Bengal(1), a line of demarcation must be drawn
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 signi- (1)[1969] 2 S.C.R. 635, 642.
197 finance which primarily injure specific
individuals and only in a secondary sense public interest. 'In Dr. Ram Manohar
Lohia v. State of Bihar and, Ors.,(1) Hidayatullah, J. has expressed this concept
picturesquely by saying that one has to imagine three concentric circles; law
and order represents the largest circle within which is the next circle
representing public order and the smallest circle represents the security of
State. "Law and Order".
comprehends disorders of less gravity than
those affecting "public order", just as "public order"
comprehends disorders of less gravity than those affecting "security of
State".
The facts set out in ground (b) of the first
part refer to no more than a stray and simple fracas arising out of a traffic
bottleneck on a public street. Those set out in ground (1) refer to an assault
on a public servant, undoubtedly reprehensible if true, but not of the kind
that would reasonably affect public order.
Thus, two of the grounds on which the order
of detention rests bear no rational connection with "public order",
in the interests of which the petitioner was ordered to be detained. This Court
in Pushkar Mukherjee's case observed :
"that it is well established that the
constitutional requirement that the grounds must not be vague must be satisfied
with regard to each of the grounds...... and therefore even if one ground is
vague. and the other grounds are not vague, the detention is not in accordance
with procedures established by law and is therefore illegal. The power to
detain a person without the safeguard of a court trial is too drastic to permit
a lenient construction and therefore courts must be astute to ensure that the
detaining authority does not transgress the limitations subject to which alone
the power can be exercised. In Motilal Jain v. State of Bihar & ors.(2)
this Court observed : "the subjective satisfaction of the detaining
authority must be properly based on all the reasons on which it purports to be
based. If some out of those reasons are found to be non- existent or
irrelevant, the court cannot predicate what the subjective satisfaction of the
authority would have been on the exclusion of those reasons. To uphold the
order on the remaining reasons would be to substitute the objective standards
of the court for the subjective satisfaction of the authority." The order
of detention expressly states that it was passed with a view to preventing the
petitioner from acing in a manner prejudicial to the maintenance of public
order and the maintenance of supplies and services essential to the community.
The statement of grounds contains at the end the assertion that the District
Magistrate was satisfied that if the petitioner was allowed to remain at large
he will indulge in activities- (1) [1966] 1 S.C.R. 709, 746.
(2) [1968] 3 S. C. R. 587, 593.
198 prejudicial to the maintenance of public
order and supplies and services essential to the community. (emphasis
supplied). The two reasons, maintenance of public order and maintenance of
supplies and services essential to the, community, cannot therefore be
bifurcated and considered in separate compartments. The subjective satisfaction
of the detaining authority embraces both the reasons and since two out of the
three grounds mentioned in the first part are irrelevant, the entire order is
illegal.
For these reason I s we set aside the order
of detention.
We had earlier directed on the conclusion of
the arguments that the petitioner be set at liberty forthwith.
Back
