Alijan Mian & ANR Vs. District
Magistrate, Dhanbad [1983] INSC 120 (13 September 1983)
MISRA, R.B. (J) MISRA, R.B. (J) SEN, A.P. (J)
VENKATARAMIAH, E.S. (J)
CITATION: 1983 AIR 1130 1983 SCR (3) 939 1983
SCC (4) 301 1983 SCALE (2)280
CITATOR INFO :
R 1984 SC1334 (21) R 1985 SC 18 (13) RF 1988
SC 596 (6,7,10,12) RF 1988 SC1835 (8) R 1989 SC2027 (20) R 1989 SC2265 (13) D
1990 SC 516 (8) RF 1990 SC1196 (11) RF 1990 SC1202 (10)
ACT:
National Security Act, 1980 (Act 65 of
1980)-Orders of detention, passed under sub-section (2) of Section 3 of the
Act, on the ground that "the subject who is in jail and is likely to be
released on bail, if allowed to be at large, will indulge in activities
prejudicial to the maintenance of public order"-Whether the detention is
bad either on the ground that there was no case made out for apprehension of
breach of public order or that the criminal proceedings having been initiated,
no case of preventive detention arises or that the case is one of law and order
and not a case of public order or that there being no allegation in the First
Information Report, the detaining authority cannot invent a new ground to fall
under sub-section (2) of section 3 of the Act.
HEADNOTE:
Dismissing the petitions, the Court
HELD: 1. The clear words of the detention
order show that the detaining authority was alive to the fact that the
petitioners were in jail custody on the date of passing of the detention
orders, but it was satisfied that if they were enlarged on bail, of which there
was every likelihood, they would create problems of public order and,
therefore, it was necessary to prevent them from doing so. The position would
have been entirely different if the petitioners were in jail and had to remain
in jail for a pretty long time, in which situation there could be no
apprehension of breach of public order from them. [944 C-E]
2. Preventive detention is an anticipatory
measure and does not relate to an offence while the criminal proceedings are to
punish a person for an offence committed by him. They are not parallel
proceedings. In the circumstances the pendency of a criminal prosecution is no
bar to an order of preventive detention, nor is an order of preventive
detention a bar to prosecution. It is for the detaining authority to have the
subjective satisfaction whether in such a case there are sufficient materials
to place the person under preventive detention in order to prevent him from
acting in a manner prejudicial to public order or the like in future. [944 F-H]
K.M. Chokshi v. State of Gujarat, [1979] 4 SCC 14, applied.
3.1. The difference between 'law and order'
and 'Public order' is now well settled. Applying the well settled law
enunciated in Ram Ranjan Chatterjee 940 v. The State of West Bengal, [1975]3
SCR 301, to the two incidents, it is clear that throwing a bomb in a large
gathering where a cultural programme was going on at the dead of night
resulting in the public running helter and skelter to save their lives makes
out a case of 'public order' inasmuch as it disturbed the tranquillity and the
even tempo of life of the public. Therefore, if the detaining authority was
satisfied that the two incidents make out a case of apprehension of breach of
public order, the detention order cannot be faulted. [945 G; 946 E-G] Ram Ranjan
Chaterjee v. State of West Bengal, [1975] 3 S.C.R. 301 followed.
Saya Mala v. Home Secretary, Government of J
& K, AIR 1982 SC. 1297, distinguished.
3:2. The two incidents in the instant case
were sufficient for the detaining authority to initiate proceedings for
preventive detention. It is for the detaining authority to have the subjective
satisfaction about the apprehension of the breach of public order from the
incidents. Even one incident may be sufficient to satisfy the detaining
authority. It all depends upon the nature of the incident. [947 G-H]
4. The absence of an allegation about the
disturbance of public order in the two First Information Reports will not
affect the position because there was additional material before the detaining
authority which satisfied him about the apprehension of breach of public order
from the petitioners in case they were enlarged on bail. [948 C-D]
EXTRAORDINARY ORIGINAL JURISDICTION : Writ
Petition (Criminal) Nos. 678 and 679 of 1983.
(Under article 32 of the Constitution of
India) Miss R. Vaigai for the Petitioners.
D. Goburdhan for the Respondent.
The Judgment of the Court was delivered by
MISRA J. These two connected petitions seek to challenge the orders of
detention dated 2nd December, 1982 passed by the District Magistrate, Dhanbad
in exercise of powers conferred by subs. (2) of s. 3 of the National Security
Act, 1980 (No. 65 of 1980) read with notification No. 3183/C dated 15th of
October, 1982 of the Government of Bihar.
941 Alijan Mian, the petitioner in the first
petition, is an employee of the Eastern Coalfields Limited working at Khudia
Colliery as a dumper driver. Jadunandan Sah, the petitioner in the second
Petition, is also a dumper driver in Gopi Nathpur Colliery.
The object of the order of detention as
indicated in the impugned order was to prevent the petitioners from acting in
any manner prejudicial to the maintenance of public order. The grounds of
detention supplied to the petitioners are in identical terms and they are as
follows:
"1. That on 15/16.10.82, at about 2.30
A.M. the subject alongwith Jadunandan Sah and 3 others went to Khudia Colliery
and dragged one Shri Ram Briksh Chauhan who were witnessing a cultural
programme and started assaulting him in presence of large gathering who were
there to see the cultural programme. This created great panic and alarm in the
area and adversely affected the public order.
Hearing the cry, Mussafir Chauhan came there
but seeing the subject and his associates engaged in the assault of his brother
started running away for his life. The subject and his associates, with an
intention to establish criminal supremacy and to kill him threw two bombs on
him, resulting in grievous injury to Mussafir Singh. This adversely affected
the public order and persons who were witnessing the cultural programme started
running helter and skelter for their lives. This refers to Nirsa P.S. Case No.
189 dated 6.10.1982 u/s 307/34 IPC, 3/5 Explosive Sub. Act. Thus the subject
acted in a manner prejudicial to the maintenance of the public order.
2. That on 8.11.82, at about 11.30 A.M. the
subject along with Rambriksh Singh, Jadunandan Mahato and Chandra Shekhar Singh
armed with bombs, gun, etc.
went to the house of Ram Naresh Chauhan in
Khudia Colliery. One of his associates under the direction and guidance of the
subject opened fire on Shri Chauhan resulting in grievous injury to him.
Opening of gun fire in a thickly populated residental colony of Khudia Colliery
created great panic and alarm in 942 the area and adversely affected public
order. This refers to Nirsa P.S. case No. 208 dated 8.11.82 u/s. 307/34 I.P.C.
and s. 27 Arms Act. Thus the subject acted in a manner prejudicial to the
maintenance of public order. The subject is in jail and is likely to be
released on bail. As such the detention order was served in jail.
In the circumstances I am satisfied that if
he is allowed to remain at large, he will indulge in activities prejudicial to
the maintenance of public order.
For prevention of such activities, I consider
his detention necessary. Shri Alijan Mian is informed that he may make a
representation in writing against the order under which he has been detained.
His representation, if any, may be addressed to the Deputy Secretary, Home
(Spl.) Department, Govt. of Bihar, Patna and forwarded through the
Superintendent of jail, Dhanbad as early as possible." The orders of
detention were sequal to two incidents of 15/16th October and 8th November,
1982 giving rise to two criminal cases, Nirsa P.S. Case No. 189 and Nirsa P.S.
Case No. 208 of 1982 respectively. The petitioner Alijan Mian was arrested on
8th November, 1982 while the petitioner Jadunandan Sah was arrested on 12th of
November, 1982 in connection with the aforesaid incidents.
The petitioners made representation against
the order of detention in both the cases and the representations were on the
same pattern. Their stand was that they were active members of the union of
workers of the colliery, viz., the Colliery Mazdoor Sabha There were other
unions in the said collieries and due to some inter union rivalry a first
information report against them was lodged by persons belonging to a rival
union for an alleged offence under ss.
307/34 IPC and 27A of the Arms Act. In the
first information report it was alleged that on 8th November the informant was
shot in his hand near his house by one Ram Bilas Singh and that at that time
the petitioners were with the said Ram Bilas Singh. Their intention was to kill
him because he did not participate in the strike in the colliery. In the first
information report regarding the other.
943 incident under ss. 307/34 IPC and ss. 3/5
of the Explosive Substances Act it was alleged that on the night of 15/16th
October 1982 around 2 A.M. the petitioners were beating the brother of the
informant near a school, where some function was going on. On seeing the
petitioners in the company of others the informant started running but he was
chased by others and a bomb was thrown at his back but he escaped. But Alijan
Mian, the petitioner, threw another bomb and the informant was injured at his
back and fell. The said persons intended to kill him. The petitioners in both
the cases were later on granted bail but the two criminal cases mentioned above
are still going on.
By an order dated 13th December, 1982 the
Government approved the detentions order and informed the petitioners by letter
dated 30th December, 1982 of the reference of their representation to the
Advisory Board asking them to appear in person before the Board. The
petitioners appeared in person before the Advisory Board.
The Advisory Board eventually gave an opinion
that the order of detention was justified. On the basis of that report the
Government ordered detention of the petitioners upto 2nd December, 1983. The
petitioners challenged the order of detention by filing writ petitions in the
High Court but the same were dismissed in limine. The petitioners instead of
filing an appeal against the order of the High Court rejecting the writ
petitions have chosen to file the present petitions under Art. 32 of the
Constitution.
The contentions raised on behalf of the
petitioners are fourfold:
1. The petitioners were in jail when the
detention orders were passed, when there was absolutely no apprehension of
breach of public order from them.
2. The two incidents on the basis of which
the proceedings for preventive detention had been started were already the subject
matter of criminal proceedings and in the circumstances the proceedings for
preventive detention were absolutely uncalled for.
3. At the most the two incidents make out a
case of law and order and not a case of public order.
4. In the absence of any allegation in the
first information reports of the two incidents about the apprehension of the
breach of public order from the petitioners the detaining authority could not
invent a ground regarding apprehension of breach of public order from the petitioners.
It may be pointed out at the very outset that
the detaining authority was alive to the fact that the petitioners were in jail
custody on the date of the passing of the detention orders as will be clear
from the following statement in the grounds of detention:
"The subject is in jail and is likely to
be released on bail. In the circumstances I am satisfied that if he is allowed
to remain at large, he will indulge in activities prejudicial to the
maintenance of public order." The position would have been entirely
different if the petitioners were in jail and had to remain in jail for a
pretty long time. In such a situation there could be no apprehension of breach
of 'public order' from the petitioners. But the detaining authority was
satisfied that if the petitioners were enlarged on bail, of which there was
every likelihood, they would create problems of public order. It was,
therefore, necessary to prevent them from acting in any manner prejudicial to
public order.
As regards the contention that the criminal
proceedings as well as the proceedings for preventive detention could not go
together, it may be pointed out that preventive detention is an anticipatory
measure and does not relate to an offence while the criminal proceedings are to
punish a person for an offence committed by him. They are not parallel
proceedings. In the circumstances the pendency of a criminal prosecution is no
bar to an order of preventive detention, nor is an order of preventive
detention a bar to prosecution. It is for the detaining authority to have the
subjective satisfaction whether in such a case there are sufficient materials
to place the person under preventive detention in order to prevent him from
acting in a manner prejudicial to public order or the like in future.
The learned counsel for the petitioners
relied upon K.M. Chokshi v. State of Gujarat(1) in support of the contention
that in 945 view of the criminal prosecution of the petitioners for the two
incidents, proceedings for the preventive detention were uncalled for. In that
case the Court after an analysis of the various cases cited observed:
The principles energing from a review of the
above cases may be summarised in the following way: The ordinary criminal
process is not to be circumvented or short-circuited by ready resort to
preventive detention. But, the possibility of launching a criminal prosecution
is not an absolute bar to an order of preventive detention. Nor is it correct
to say that if such possibility is not present to the mind of the detaining
authority the order of detention is necessarily bad. However, the failure of
the detaining authority to consider the possibility of launching a criminal
prosecution may, in the circumstances of a case, lead to the conclusion that
the detaining authority had not applied its mind to the vital question whether
it was necessary to make an order of preventive detention." It is obvious
from the above observation in the case cited on behalf of the petitioners that
criminal prosecution is not an absolute bar to an order of preventive
detention. If the detaining authority has the subjective satisfaction that it
was necessary to detain the petitioners to prevent them from indulging in
activities prejudicial to public order, he could certainly order detention of the
petitioners. In the instant case the detaining authority clearly stated that
although the petitioners were in jail, they were likely to be enlarged on bail
and in that case there would be apprehension from the petitioners regarding the
breach of public order.
This leads us to the third contention that
the two incidents makes out a case of law and order and not a case of public
order. The difference between 'law and order' and 'public order' is by now well
settled. In Ram Ranjan Chatterjee v. The State of West Bengal(1) this Court
observed:
"It may be remembered that
qualitatively, the acts which affect 'law and order' are not different from the
946 acts which affect 'public order'. Indeed, a state of peace of orderly
tranquillity which prevails as a result of observance of enforcement of
internal laws and regulations by the Government, is a feature common to the
concept of 'law and order' and 'public order.
Every kind of disorder or contravention of
law affects that orderly tranquillity. The distinction between the areas of
'law and order' and 'public order' as pointed out by this Court in Arun Ghosh
v. State of West Bengal, "is one of degree and extent of the reach of the
act in question of society." It is the potentiality of the act to disturb
the even tempo of the life of the community which makes it prejudicial to the
maintenance of public order. If the contravention in its effect is confined
only to a few individuals directly involved as distinguished from a wide
spectrum of the public, it would raise a problem of law and order only. These
concentric concepts of 'law and order' and 'public order' may have a common
'epicentre', but it is the length, magnitude and intensity of the terror-wave
unleashed by a particular eruption of disorder that helps distinguish it as an
act affecting 'public order' from that concerning 'law and order'."
Applying the well-settled law on the question we have to determine whether the
two incidents make out a case of 'law and order' or 'public order'. It was for
the detaining authority to have the subjective satisfaction that there was
apprehension of breach of public order from the petitioners.
In one incident one of the petitioners threw
a bomb in a large gathering where a cultural programme was going on at the dead
of night whereupon the public started running helter and skelter to save their
lives. That will in our opinion make out a case of 'public order' in as much as
it disturbed the tranquillity and the even tempo of life of the public. The
second incident was also of the same nature. If the detaining authority in the
circumstances was satisfied that the two incidents make out a case of
apprehension of breach of public order we find no infirmity in the order.
Reliance was also placed upon Jaya Mala v.
Home Secretary, Govt. of J. and K.(1). In that case also a criminal case was
started on 947 the basis of an incident and there being no suggestion that the
witnesses were not forthcoming in connection with the alleged infraction of law
it was not clear why normal procedure of investigation, arrest and trial was
not found adequate to thwart the criminal activities of the detenu, and in
these circumstances this Court held that there was non-application of mind of
the detaining authority which became evident from the frivolity of grounds on
which the detention order was founded. The order of detention was, therefore,
invalid. But this Court did lay down the law in the following terms:
"It is not for a moment suggested that
power under the preventive detention law cannot be exercised where a criminal
conduct which could not be easily prevented, checked or thwarted, would not
provide a ground sufficient for detention under the preventive detention laws.
But it is equally important to bear in mind that every minor infraction of law
cannot be upgraded to the height of an activity prejudicial to the maintenance
of public order. If every infraction of law having a penal sanction by itself
is a ground for detention danger looms large that the normal criminal trials
and criminal courts set up for administering justice will be substituted by
detention laws often described as lawless law." The facts of that case
were distinguishable from the facts of the present case. In the present case
the detaining authority had the subjective satisfaction that if the petitioners
are allowed to remain at large, they will indulge in activities prejudicial to
the maintenance of public order.
Now the question arises whether the two
incidents were sufficient for the detaining authority to initiate proceedings
for preventive detention. It is for the detaining authority to have the
subjective satisfaction about the apprehension of the breach of the public
order from the incidents mentioned above. Even one incident may be sufficient
to satisfy the detaining authority. It all depends upon the nature of the
incident. In the case in hand the detaining authority was fully satisfied that
there was apprehension of breach of public order from the petitioners in case
they were bailed out, of which there was every likelihood. This contention in
our opinion has no force.
948 This leads us to the last contention that
in the absence of any allegation in the first information report in the two
cases about the disturbance of public order the detaining authority could not
invent a ground regarding the apprehension from the petitioners about the
disturbance of public order. A counter affidavit has been filed on behalf of
the detaining authority and in paragraph 3 it has been averred that apart from
the first information report in the two cases there was the supervision note of
the Deputy Superintendent of Police, Dhanbad and the detaining authority was
satisfied on the basis of materials before him that there was apprehension of
breach of public order from the petitioners. The absence of an allegation about
the disturbance of public order in the two first information reports will not
effect the position because there was additional material before the detaining
authority which satisfied him about the apprehension of breach of public order
from the petitioners in case they were enlarged on bail. This contention has,
therefore no substance.
For the foregoing discussion we find no force
in any of the contentions and the petitions must fail. They are accordingly
dismissed.
S.R. Petitions dismissed.
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