Vijay Narain Singh Vs. State of Bihar
& Ors [1984] INSC 79 (12 April 1984)
REDDY, O. CHINNAPPA (J) REDDY, O. CHINNAPPA
(J) SEN, A.P. (J) VENKATARAMIAH, E.S. (J)
CITATION: 1984 AIR 1334 1984 SCR (3) 435 1984
SCC (3) 14 1984 SCALE (1)736
CITATOR INFO :
D 1986 SC2173 (12,13,14,16) RF 1986 SC2177
(44) R 1988 SC1256 (12) R 1989 SC 364 (8,9,11) RF 1989 SC2265 (17) F 1990
SC2069 (5) RF 1991 SC1640 (11,12)
ACT:
Bihar Control of Crimes Act 1981-Section 12
read with section 2 (d). For preventive detention under section 12 authorities
must be satisfied that the person to be detained is anti-social element as
defined in section 1(d).
Bihar Control of Crimes Act, 1981-Section 2
(d)- Definition of 'antisocial element'-Interpretation of expression
'habitually' in sub-clause (i), (ii) and (iv)- Meaning of.
Interpretation of statutes-Rule of-Law of
preventive detention must be strictly construed.
Practice-When person enlarged on bail by
competent criminal court, great caution should be exercised in scrutinising
validity of preventive detention order which is based on the very same charge
which is to be tried by criminal court.
Words and Phrases-Expression
`habitually'-Meaning of.
HEADNOTE:
The petitioner, who was facing a Sessions
trial for offences under section 302 read with sections 120B, 386 and 511 of
the Indian Penal Code, was allowed to be enlarged on bail by the High Court.
But before the petitioner was released, the District Magistrate passed an order
on August 16, 1983 under section 12 (2) of the Bihar Control of Crimes Act 1981
for detention of the petitioner, in order to prevent him from acting in any
manner prejudicial to the maintenance of public order. The grounds of detention
supplied to the petitioner related to the incidents which took place in 1975 and
1982 and also the incident which gave rise to the above-mentioned trial. The
petitioner challenged the order of detention before the High Court under
Article 226 of the Constitution. The High Court dismissed the petition on a
technical ground. Hence this petition under Article 32 of the Constitution. The
petitioner contended:
(1) that the impugned order of detention was
void under Article 22 (5) of the Constitution as one of the grounds was too
remote and not proximate in point of time and had therefore no rational
connection for the subjective satisfaction of the District Magistrate under
section 12 (2) of the Act, and (2) that the impugned order of detention was
male fide and consti- 436 tuted a flagrant abuse of power on the part of the
District Magistrate as it was meant to subvert judicial process by trying to
circumvent the order passed by the High Court enlarging the petitioner on bail.
Allowing the petition by majority,
HELD: (Per Venkataramiah and Chinnappa Reddy,
JJ.) The law of preventive detention is a hard law and therefore it should be
strictly construed. Care should be taken that the liberty of a person is not
jeopardised unless his case falls squarely within the four corners of the
relevant law. The law of preventive detention should not be used merely to clip
the wings of an accused who is involved in a criminal prosecution. It is not
intended for the purpose of keeping a man under detention when under ordinary
criminal law it may not be possible to resist the issue of orders of bail, unless
the material available is such as would satisfy the requirements of the legal
provisions authorising such detention. When a person is enlarged on bail by a
competent criminal court, great caution should be exercised in scrutinising the
validity of an order of preventive detention which is based on the very same
charge which is to be tried by the criminal court. [459C-D] Section 12 of the
Bihar Control of Crimes Act, 1981 makes provision for the detention of an
anti-social element.
The detaining authority should, therefore, be
satisfied that the person against whom an order is made under section 12 of the
Act is an anti-social element as defined in section 2 (d) of the Act. The two
sub-clauses of section 2 (d) which are relevant for the purposes of this case
are sub-clause (i) and sub-clause (iv). Under sub-clause (i) a person who
either by himself or as a member of or leader of a gang habitually commits or
attempts to commit or abets the commission of offences punishable under Chapter
XVI dealing with offences affecting the human body or Chapter XVII dealing with
offences against property, of the Indian Penal Code is considered to be an
antisocial element. Under sub- clause (iv) a person who has been habitually
passing indecent remarks to, or teasing women or girls, is an anti- social
element. In both these sub-clauses, the word 'habitually' is used. The
expression 'habitually' means 'repeatedly' or 'persistently'. It implies a
thread of continuity stringing together similar repetitive acts.
Repeated, persistent and similar, but not
isolated, individual and dissimilar acts are necessary to justify an inference
of habit. It connotes frequent commission of acts or omissions of the same kind
referred to in each of the said subclauses or an aggregate of similar acts or
omissions. Whereas under sub-clause (iii) or sub-clause (v) of section 2 (d) a
single act or omission referred to in them may be enough to treat the person
concerned as an 'anti-social element', in the case of sub-clause (i), sub-
clause (ii) or sub-clause (iv), there should be a repetition of acts or
omissions of the same kind referred to in sub- clause (i), sub-clause (ii) or
in sub-clause (iv) by the person concerned to treat him as an anti-social
element'.
This appears to be clear from the use of the
word 'habitually' separately in sub-clause (i), sub-clause (ii) and sub-clause
(iv) of section 2 (d) and not in sub-clauses (iii) and (v) of section 2 (d). If
the acts or omissions in question are not of the same kind or even if they are
of the same kind when 437 they are committed with a long interval of time
between them they cannot be treated as habitual ones. [457B-458C] In the
present case the District Magistrate has relied on three incidents to hold that
the petitioner is an anti- social element. They are-(o) that on April 15, 1975
the petitioner alongwith his associates had gone to the shop of a cloth dealer
of Bhagalpur Town armed with an unlicensed pistol and had forcibly demanded
subscription at the point of gun and (ii) that on June 17/18, 1982 the
petitioner was found teasing and misbehaving with females returning from a
cinema hall. The third ground is the criminal case now pending against the
petitioner in the Sessions Court. The first incident is of the year 1975. It is
not stated how the criminal case filed on the basis of that charge ended. The
next incident relates to the year 1982. The detaining authority does not state
how the criminal case filed in that connection terminated. If they have both
ended in favour of the petitioner finding him clearly not guilty, they cannot
certainly constitute acts or omissions habitually committed by the petitioner
Moreover, the said two incidents are of different kinds altogether. Whereas the
first one may fall under sub-clause (i) of section 2 (d) of the Act, the second
one falls under sub-clause (iv) thereof. They are, even if true, not
repetitions of acts or omissions of the same kind.
The third ground which is based on the
pending Sessions case is no doubt of the nature of acts or omissions referred
to in sub-clause (i) of section 2 (d). but the interval between the first
ground which falls under this sub-clause and this one is nearly eight years and
cannot, therefore, make the petitioner a habitual offender of the type falling
under sub-clause (i) of section 2 (d). Therefore, it is not possible to hold
that the petitioner can be called an 'anti- social element' as defined by
section 2 (d) of the Act. The order of detention impugned in this case
therefore, could not have been passed under section 12 (2) of the Act which
authorises the detention of anti-social elements only.
[458D-459D] (Per Chinnappa Reddy J.
concurring) I do not agree with the view of my brother Sen J. that 'those who
are responsible for the national security or for the maintenance of public
order must be the sole judges of what the national security or public order
requires.' It is too perilous a proposition. Our Constitution does not give a
carta blanche to any organ of the State to be the sole arbiter in such matters.
Preventive detention is considered so raeacherous and such an anathema to
civilized thought and democratic polity that safeguards against dndue exercise
of the power to detain without trial, have been built into the Constitution
itself and incorporated as Fundamental Rights.
There are two sentinels, one at either end.
The Legislature is required to make the law circumscribing the limits within
which persons may be preventively detained and providing for the safeguards
prescribed by the Constitution and the courts are required to examine, when
demanded; whether there has been any excessive detention, that is, whether the
limits set by the Constitution and the legislature have been transgressed.
Preventive detention is not beyond judicial scrutiny. While adequacy or
sufficiency may not be a ground of challenge, relevancy and proximity are 438
tertainly grounds of challenge. Nor is it for the court to put itself in the
position of the detaining authority and to satisfy itself that the untested
facts reveal a path of crime. [440E-441B] I am of the view that the decision in
Kamalkar Prasad Chaturvedi's case and the host of earlier cases are not
distinguishable. This Court has always taken the view that remoteness in point
of time makes a ground of detention irrelevant. [441D] Shibban Lal Saksena v.
State of Uttar Pradesh & Ors., [1954] SCR 418 and Kamlakar Prasad
Chaturvedi v. State of Madhya Pradesh & Anr., [1983]4 SCC 433 referred to
(Per Sen J. dissenting) On the facts set out in the grounds of detention the
petitioner answers the description of an anti-social element as defined in s. 2
(d) of the Act. [444F] The word 'habitually' connotes some degree of frequency
and continuity. 'Habitually' requires a continuance and permanence of some
tendency, something that was developed into a propensity, that is, present from
day-to-day. A person is a habitual criminal who by force of habit or inward
disposition, inherent or latent in him, has grown accustomed to lead a life of
crime. It is the force of habit inherent or latent in an individual with a
criminal instinct, with a criminal disposition of mind, that makes him
dangerous to the society in general. In simple language the word 'habitually'
means 'by force of habit'. [444G-445E] Stroud's Judicial Dictionary' 4th end.,
vol. 2, p. 1204 and Shorter Oxford English Dictionary, vol. 1. p. 910, referred
to.
It is not necessary that because of the word
'habitually' in sub-cl. (i), sub-cl. (ii) or sub-cl. (iv), there should be a
repetition of same class of acts or omissions referred to in sub-cl. (i),
sub-cl. (ii) or in sub-cl. (iv) by the person concerned before he can be
treated to be an anti-social element and detained by the District Magistrate
under s. 12 (2) of the Act. It is not required that the nature or character of
the anti-social acts should be the same or similar. There may be commission or
attempt to commit or abetment of diverse nature of facts constituting offences
under Chapter XVI or Chapter XVII of the Indian Penal Code. What has to be
'repetitive' are the anti-social acts. [447B-C] The operation of s. 12 (2) of
the Act cannot be confined against habitual criminals who have a certain number
of prior convictions for offences of the 'character' specified. The definition
of 'anti-social element' in s. 2 (d) of the Act nowhere requires that there
should be a number of prior convictions of a person in respect of offences of a
particular type.
439 It is not correct to say that merely
because there was an acquittal of a person, the detaining authority cannot take
the act complained of leading to his trial into consideration. It may be that
the trial of a dangerous person may end in an acquittal for paucity of evidence
due to unwillingness of witnesses to come forward and depose against him out of
fright. If a person with criminal tendencies consistently or persistently or
repeatedly commits or attempts to commit or abets the commission of offences
under Chapter XVI dealing with offences affecting human body or Chapter XVI
dealing with offences against property of the Indian Penal Code, there is no
reason why he should not be considered to be an 'antisocial element'.
[446G-H] Those who are responsible for the
national security or for the maintenance of public order must be the sole
judges of what the national security or public order requires.
Sufficiency of the grounds is not for the
court but for the detaining authority for the formation of his subjective
satisfaction that the detention of a person is necessary with a view to
preventing him from acting in any manner prejudicial to the maintenance of
public order. The sufficiency of the grounds upon which the subjective
satisfaction of the detaining authority is based, provided they have a rational
probative value and are not extraneous to the scope or purpose of the legislative
provision, cannot be challenged in the court accept on the ground of mala
fides. It is not for the court to examine whether the grounds upon which the
detention order is based are good or bad nor can it attempt to assess in what
manner and to what extent each of the grounds operated on the mind of the
appropriate authority and contributed to the creation of the satisfaction on
the basis of which the detention order was based. [447D-449E] Keshov Talpade v.
The King-Emperor, [1943] FCR 88, referred to Shibban Lal Saksena v. State of
Uttar Pradesh & Ors., [1954] SCR 318 and Kamlakar Prasad Chaturvedi v.
State of Madhya Pradesh & Anr., [1983] 4 SCC 443, distinguished The past
conduct or the antecedent history of a person can properly be taken into account
in making order of detention. It is usually from prior events showing
tendencies or inclinations of a man that an inference can be drawn whether he
is likely, in the future, to act in a manner prejudicial to the maintenance of
public order.
[451B] Merely because there is pending
prosecution and the accused is in jail, that is no impediment for his
detention, if the detaining authority is satisfied that his being enlarged on
bail would be prejudicial to the maintenance of public order. [451D] Fitrat
Raza Khan v. State of U.P. & Ors., [1982] 2 SCC 449, Alijan Mian v.
District Magistrate, Dhanbad & Ors., [1983] 3 SCC 301 and Raisuddin Babu
Tamchi v. State of U. P. 440 (Per Sen & Chinnappa Reddy, JJ.) It has always
been the view of this Court that the detention of individuals without trial for
any length of time, however short, is wholly inconsistent with the basic ideas
of our Government and the gravity of the evil to the community resulting from
anti-social activities can never furnish an adequate reason for invading the
personal liberty of the citizen except in accordance with the procedure
established by law. [441C] & ORIGINAL JURISDICTION Writ Petition (Criminal)
No. 47 of 1984.
(Under article 32 of the Constitution of
India) R.K.Garg and U.S. Parsad for the Appellant.
S.N. Jha for the Respondent.
The following Judgements were delivered
CHINNAPPA REDDY, J. I entirely agree with my brother Venkataramiah, J. both on
the question of interpretation of the provisions of the Bihar Control of Crimes
Act, 1981 and on the question of the effect of the order of grant of bail in
the criminal proceeding arising out of the incident constituting one of the
grounds of detention. It is really unnecessary for me to add anything to what
has been said by Venkataramish, J., but my brother Sen, J. has taken a
different view and out of respect to him, 1 propose to add a few lines. I am
unable to agree with my brother Sen, J. On several of the view expressed by him
in his dissent. In particular, I do not agree with the view that `those who are
responsible for the national security or for the maintenance of public order
must be the sole judges of what the national security or public order
requires.' It is too perilous a proposition. Our Constitution does not give a
carta blanche to any organ of the State to be the sole arbiter in such matters.
Preventive detention is considered so treacherous and such an anathema to
civilized thought and democratic polity that safeguards against undue exercise
of the power to detain without trial, have been built into the Constitution
itself and incorporated as Fundamental Rights.
There are two sentinels, one at either end.
The legislature is required to make the law circumscribing the limits within
which persons may be preventively detained and providing for the safeguards
prescribed by the Constitution and the courts are required to examine, when
demanded, whether there has been any excessive detention, that is, whether the
limits set by the Constitution and the legislature have been transgressed. Preventive
detention is not be- 441 yond judicial scrutiny. while adequacy or sufficiency
may not be a ground of challenge, relevancy and proximity are certainly grounds
of challenge. Nor is it for the court to put itself in the position of the
detaining authority and to satisfy itself that the untested facts reveal a path
of crime. I agree with my brother Sen, J. when he says, "It has always
been the view of this Court that the detention of individuals without trials
for any length of time, however, short, is wholly inconsistent with the basic
ideas of our Government and the gravity of the evil to the community resulting
from anti-social activities can never furnish an adequate reason for invading
the personal liberty of the citizen except in accordance with the procedure
established by law" I am of the view that the decision in Kamlakar Prasad
Chaturvedi's case and the host of earlier cases are not distinguishable. This
Court has always taken the view that remoteness in point of time makes a ground
of detention irrelevant. In Fitrat Raza Khanis case, the two incidents were not
separated by any great length of time. On the other hand, they were bound by a
strong bond of inflammable communal violence.
I agree with all that has been said by my
brother Venkataramiah, J. and concur with him and direct the detenu to be set
at liberty forthwith.
SEN, J. I have had the benefit of reading the
opinion prepared by my learned brother Venkataramiah, J. and it is my
misfortune that I cannot subscribe to the views expressed by my learned
brethren. I would like to give my reasons for the dissent.
Although the petitioner claims to be a
student leader and has taken his degree in Master of Arts in Sociology in the
year 1982 and at present is a student of Law in the Bhagalpur Law College, and
asserts that at one time, in the year 1980-81, he was elected as the President
of the Post- Graduate Department of the Bhagalpur University and also selected
as a Senator, the facts emerging from the grounds of detention clearly show
that he has taken recourse to a life of crime. The petitioner applies for a
writ of habeas corpus for quashing an order of detention dated August 16,1983
442 passed by the District Magistrate, Bhagalpur on being satisfied that his
detention was necessary with a view to preventing him 'from acting in any
manner prejudicial to the maintenance of public order'. The facts have been set
out in the majority opinion and all that is necessary is to mention the
horrendous incident which is the direct and proximate cause of the impugned
order of detention.
It appears that there was a gruesome murder
of two young sons of Kashinath Bajoria, owner of Bajoria petrol pump of
Bhagalpur, on April 20, 1983. In the course of investigation by the police it
transpired that they were kidnapped from the petrol pump on the earlier day
i.e. on April 19, 1983 and the petitioner Vijay Narain Singh demanded a ransom
of Rs. 50,000 from the father of the victims. The demand for ransom having not
been fulfilled, the two boys were done to death brutally and their dead bodies
were thrown at a place near Mount Assis School and Zila School and were
discovered the next morning. On the basis of first information report a case
was registered at Bhagalpur Kotwali (Police Case No. 281 dated April 20, 1983)
under ss. 364, 302 and 201, all read with s. 34 and s. 120B of the Indian Penal
Code, 1860 against the petitioner Vijay Narain Singh, his brother Dhanonjoy
Singh, one Bimlesh Mishra and two unknown accused. The petitioner along with
his co-accused has been committed to the Court of Sessions to stand his trial
in Sessions Case No. 348 of 1983 and charges have been framed under s. 302 read
with s. 34/120B, 386 and 511 of the Indian Penal Code and the case was set down
for evidence on February 27, 1984 A learned Single Judge of the Patna High
Court by his order dated August 9, 1983 appears to have directed that the
petitioner be enlarged on bail of Rs. 10,000 with two sureties of the like
amount to the satisfaction of the Chief Judicial Magistrate, Bhagalpur. The
District Magistrate, Bhagalpur on being satisfied that his detention was
necessary with a view to preventing him from acting in any manner prejudicial
to the maintenance of public order, passed the impugned order of detention on
August 16, 1983 before the petitioner could be released on bail But the
petitioner moved a petition in the Patna High Court for grant of a writ of
habeas corpus while he was still in jail challenging the impugned order of
detention. When the matter came up for hearing before the High Court on October
5, 1983, the learned Judges adverted to the counter-affidavit filed on behalf
of the State that the impugned order of detention was prepared in advance for
service on the petitioner when he comes out of jail on the strength of the bail
443 order issued by the High Court but by mistake the three copies of the order
instead of being sent to the District Magistrate's office for service were
wrongly delivered at the Central Jail, Bhagalpur. The learned Judges
accordingly by their order of even date dismissed the writ petition holding
that they were satisfied that the petitioner was not in detention under the
impugned detention order. They however observed that if and when the petitioner
was served a copy of the detention order and placed under detention in prison,
he could file a fresh petition for a writ of habeas corpus. Instead of moving
the High Court, the petitioner has filed this petition under Art. 32 of the
Constitution before this Court. The order of detention is in two parts, the
first of which lays a factual basis for making the order on the ground that the
petitioner is an anti-social element.
The second part of the impugned order is
styled as grounds.
But it would be seen that the grounds
mentioned therein are one and the same viz. his detention was necessary with a
view to preventing him 'from acting in any manner prejudicial to the maintenance
of public order'.
At the hearing, learned counsel for the
petitioner advanced no submission that the petitioner was not an 'anti- social
element' within the meaning of s. 12 (2) of the Bihar Control of Crimes Act,
1981 but rested himself content by advancing a twofold submission, namely: (1)
The impugned order of detention passed by the District Magistrate, Bhagalpur
under s. 12(2) of the Act must be held to be void under Art. 22(5) of the
Constitution as one of the grounds was too remote and not proximate in point of
time and had therefore no rational connection for the subjective satisfaction
of the District Magistrate s. 12(2) of the Act.
He relied upon the principles laid down by
this Court in Shibban Lal Saksena v. State of Uttar Pradesh & Ors. (1)
followed in serveal subsequent cases, and particularly on the majority decision
in the recent case of Kamlakar Prasad Chaturvedi v. State of Madhya Pradesh
& Anr(2 And The impugned order of detention was mala fide and constitutes a
flagrant abuse of power on the part of the District Magistrate as it is meant
to subvert the judicial process by trying to circumvent the order passed by the
High Court enlarging the petitioner on bail. There is, in my opinion, no
substance in any of these contentions but before. I deal with them I must touch
upon the question raised in the majority opinion.
444 Inasmuch as the District Magistrate has
chosen to take recourse to s. 12(2) of the Act which is designed to make
special provisions for control and suppression of anti- social elements with a
view to maintenance of public order, the question at once arises : Whether the
petitioner answers the description of an 'antisocial element' as defined in s.
2(d) of the Act. 'Anti-social element' as
defined in s. 2(d) means- 2(d) Anti-social element" means a person who is-
(i) either by himself or as a member of or leader of a gang, habitually
commits, or attempts to commit or abets the commission of offences, punishable
under Chapter XVI or Chapter XVII of the Indian Penal Code; or (ii) habitually
or abets the commission of offences under the Suppression of Immoral Traffic in
women & Girls Act, 1956; or (iii) who by words or otherwise promotes or
attempts to promote on grounds of religion, race, language, caste or community
or any other grounds whatsoever, feelings of enmity or hatred between different
religions, racial or language groups of castes or communities; or (iv) has been
found habitually passing indecent remarks to or teasing women or girls; or (v)
who has been convicted of an offence under s 25, 26, 27, 28 or 29 of the Arms
Act, 1959." There is no reasonable doubt that on the facts set out in the
grounds of detention the petitioner answers the description of an anti-social
element; but the suggestion in that he is not to be treated as one under s.
12(2) of the Act because the definition of 'anti-social element' in s. 2(d) of
the Act is too narrow to include it. The word 'habitually' connotes some degree
of frequency and continuity. 'Habitually' requires a continuance and permanence
of some tendency, something that has developed into a propensity, that is,
present from day-to-day;
Stroud's Judicial Dictionary, 4th edn., vol.
2, p. 1204.
My learned brother Venkataramiah, J. is
inclined to give a restricted meaning to the word 'habitually' as denoting
'repetitive' 445 and he is of the view that no order of detention under s.
12(2) of the Act could be made on the basis
of a 'single instance', as a single act cannot be said to be forming the habit
of the person. That is to say, the act complained of must be repeated more than
once and be inherent in his nature Further, he is inclined to think that
section under s. 12(2) of the Act can only be taken in resect of persons
against whom there are verdicts of guilt after the conclusion of trials.
According to him, merely on the basis of institution of criminal cases a person
cannot be labelled as an anti-social element. I find considerable difficulty in
subscribing to either of his views.
According to its ordinary meaning, the word
'habitual' as given in Shorter Oxford English Dictionary, vol. 1, p.
910 is :
"A. adj (1) Belonging to the habit or
inward disposition, inherent or latent in the mental constitution;
(2) of the nature of a habit; fixed by habit;
constantly repeated, customary.
B. A habitual criminal, drunkard, etc."
A person is a habitual criminal who by force of habit or inward disposition,
inherent or latent in him, has grown accustomed to lead a life of crime. It is
the force of habit inherent or latent in an individual with a criminal
instinct, with a criminal disposition of mind, that makes him dangerous to the
society in general. In strengthen language the word 'habitually' means 'by
force of habit'.
The Act appears to be based on Prevention of
Crime Act 1908 (c-59). By Prevention of Crime Act, as amended by the
Indictments Act, 1915, a person after three previous convictions, after
attaining sixteen years of age could, with the consent of the Director of
Public Prosecution in certain cases, be charged with being a habitual criminal
and, if the charge was established, he could, in addition to a punishment of
penal servitude, in respect of crime for which he has been so convicted,
receive a further sentence of not less than five years or more than 10 years,
called a sentence of preventive detention. Upon this question of a man's
leading persistently a dishonest or criminal life, where there has been a
considerable lapse of time between a man's last conviction and the commission
of the offence which forms the subject of the primary indictment at the trial,
notice containing particulars must have been given and proved of the facts upon
which the prosecution relied for saying that the offender is leading such a
life.
446 If, on the other hand, the time between a
man's discharge from prison and the commission of the next offence is a very
snort one, it may be open to the jury to find that he is leading persistently a
dishonest or criminal life by reason of the mere fact that he has again
committed an offence so soon after his discharge from a previous one, provided the
notice has state this as a ground. This essentially is a question of fact. The
scheme under the English Act is entirely different where a person has to be
charged at the trial of being a habitual criminal. Therefore, the
considerations which govern the matter do not arise in case of preventive
detention under s. 12(2) of the Act.
I find it difficult to share the view that
whereas under sub-cl. (iii) or sub-cl. (v) of s. 2 (d) a single act or omission
referred to in them may be enough to treat the person concerned as an
'anti-social element', in the case of sub-cl. (i), sub-cl. (ii) or sub-cl. (iv)
because of the word 'habitually' there should be a repetition of same class of
acts or omissions referred to in sub-cl. (i), sub-cl.
(ii) or in sub-cl. (iv) by the person
concerned to treat him as an 'anti-social element'.
I also do not see why s. 12 (2) of the Act
should be confined in its operation against habitual criminals who have a
certain number of prior convictions for offences of the 'character' specified.
The definition of 'anti-social element in s.2 (d) of the Act nowhere requires
that there should be number of prior convictions of a person in respect of
offences of a particular type. I cannot also share the view that the commission
of an act referred to in one of the sub-cl. (i), sub-cl. (ii) or sub-cl. (iv)
of s 2 (d) and any other act or omission referred to in any other of the said
sub-clauses would not be sufficient to treat a person as an 'anti-social
element'. Further, I do not think it is correct to say that merely because
there was an acquittal of such a person, the detaining authority cannot take
the act complained of leading to his trial into consideration. It may be that
the trial of a dangerous person may end in an acquittal for paucity of evidence
due to unwillingness of witnesses to come forward and depose against him out of
fright. If a person with criminal tendencies consistently or persistently or
repeatedly commits or attempts to commit or abets the commission of offences
punishable under Chapter XVI dealing with offences affecting human body or
Chapter XVII dealing with offences against property of the Indian Penal Code,
there is no reason why he should not be considered to be an 'anti-social
element'.
447 It is not difficult to conceive of a
person who by himself or as a member or leader of a gang habitually commits or
attempts to commit or abets the commission of offences punishable under Chapter
XVI or Chapter XVII of the Indian Penal Code. It however does not follow that
because of the word 'habitually' in sub-cl. (i), sub-cl. (ii) or sub-cl (iv),
there should be a repetition of same class of acts or omissions referred to in
sub-cl. (i), sub-cl. (ii) or in sub-cl. (iv) by the person concerned before he
can be treated to be an anti-social element and detained by the District Magistrate
under s.12(2) of the Act. In my view, it is not required that the nature or
character of the anti- social acts should be the same or similar. There may be
commission or attempt to commit or abetment of diverse nature of acts
constituting offences under Chapter XVI of the Indian Penal Code. What has to
be 'repetitive' are the anti-social acts.
Those who are responsible for the national
security or for the maintenance of public order must be the sole judges of what
the national security or public order requires.
Sufficiency of grounds is not for the Court
but for the detaining authority for the formation of his subjective
satisfaction that the detention of a person under s. 12(2) of the Act is
necessary with a view to preventing him from acting in any manner prejudicial
to the maintenance of public order. The power of preventive detention by the
District Magistrate under s.12(2) is necessarily subject to the limitations
enjoined on the exercise of such power by Art. 22(5) of the Constitution. It
has always been the view of this Court that the detention of individuals
without trial for any length of time, however short, is wholly inconsistent
with the basic ideas of our Government and the gravity of the evil to the
community resulting from anti- social activities can never furnish an adequate
reason for invading the personal liberty of the citizen except in accordance
with the procedure established by law. The Court has therefore in a series of
decisions forged certain procedural safeguards in the case of preventive
detention of citizens. As observed by this Court in Narendra Purshotam Umrao v.
B.B. Gujral(1), when the liberty of the subject is involved, whether it is
under the Preventive Detention Act or the Maintenance of Internal Security Act
or the Conservation of Foreign Exchange & Prevention of Smuggling
Activities Act or any other law providing for preventive detention- "It is
the bounden duty of the court to satisfy itself that all the safeguards
provided by the law have been scrupulously observed and that the subject is not
deprived of his personal liberty otherwise than in accordance with law."
Nonetheless, the community has a vital interest in the proper enforcement of its
laws particularly in an area where there is worsening law and order situation,
as unfortunately is the case in some of the States today in dealing effectively
with persons engaged in anti-social activities seeking to create serious public
disorder by ordering their preventive detention and at the same time in
assuring that the law is not used arbitrarily to suppress the citizen of his
right to life and liberty. The impugned order of detention has not been
challenged on the ground that the grounds furnished were not adequate or
sufficient for the satisfaction of the detaining authority or for making of an
effective representation. The Court must therefore be circumspect in striking
down the impugned order of detention where it meets with the requirements of
Art. 22(5) of the Constitution and where it is not suggested that the detaining
authority acted mala fide or that its order constituted an abuse of power.
Turning to the merits of the contentions
raised, I am quite satisfied that the impugned order is not vitiated because
some of the grounds were non-existent or irrelevant or were too remote in point
of time to furnish a rational nexus for the subjective satisfaction of the
detaining authority. The two decisions in Shibban Lal Saksena's and Kamlakar Prasad
Chaturvedi's cases are clearly distinguishable on facts. In Shibban Lal
Saksena's cases the detenu had been supplied with two grounds for his
detention.
Subsequently, the detaining authority revoked
one of the grounds communicated to him earlier. It was contended on his behalf
that in such circumstances the detention was illegal and he was entitled to be
released. The contention on behalf of the State was that although one of the
grounds upon which the original order of detention was based was unsubstantial
or non-existent and could not be made a ground of detention, nonetheless the
remaining ground was sufficient to sustain the detention order. The Court
rejected this contention and held that it was stated that the sufficiency of
the grounds upon which the subjective satisfaction of the detaining authority
is based, provided they have a rational probative value and are not extraneous
so the scope or purpose of the legislative provision cannot be challenged in
the Court except on the ground of mala fides. It was observed:
449 "A court of law is not even
competent to enquire into the truth or otherwise of the facts which are
mentioned as grounds of detention in the communication to the detenu under s.7
of the Act. What has happened, however, in this case is somewhat peculiar. The
Government itself, in its communication dated the 13th of March, 1953, has
plainly admitted that one of the grounds upon which the original on or of
detention was passed is unsubstantial or non-existent and cannot be made a ground
of detention. The question is, whether in such circumstances the original order
made under s.3(1) (a) of the Act can be allowed to stand. The answer, in our
opinion, can only be in the negative." The question was whether in such
circumstances the original order made under s.3(1) (a) of the Preventive Detention
Act, 1950 could be allowed to stand. The Court laid down that if one of the two
grounds was irrelevant for the purpose of the Act or was wholly illusory, this
would vitiate the detention order as a whole. That is a principle well-settled
since the well-known case of Keshav Talpade v.
The King Emperor(1): The Court reiterated the
principle and said that it was not for the Court to examine whether the two
grounds upon which the detention order was based were good or bad nor could it
attempt to assess in what manner and to what extent each of the grounds
operated on the mind of the appropriate authority and contributed to the
creation of the satisfaction on the basis of which the detention order was
based. It then added:
"To say that the other ground, which
still remains, is quite sufficient to sustain the order, would be to substitute
an objective judicial test for the subjective decision of the executive
authority which is against the legislative policy underlying the statute. In
such cases, we think, position would be the same as if one of these two grounds
was irrelevant for the purpose of the Act or was wholly illusory and this would
vitiate the detention order as a whole." Following the decision in Shibban
Lal Sakesena's case, the Court in Kamlakar Prasad Chaturvedi's case, supra, by
a majority of 2:1 held the detention order dated May 6, 1983 passed by the
District Magistrate under s.3(2) of the National Security Act, 1980 to be 450
invalid inasmuch as some of the grounds were found to be too remote and not
proximate in point of time. Per contra, Desai, J. following the recent decision
of this Court in Fitrat Raza Khan v. State of U.P. & Ors held that there is
no rigid or mechanical test to be applied. In Fitrat Raza Khaa's case, the
Court held that when both the incidents there were viewed in close proximity,
the propensity of the petitioner to resort to prejudicial activity became
manifest.
In Fitrat Raza Khan's case, supra, the first
incident was of August 13, 1980 when the communal riots broke out in Moradabad
city, and the second of July 24, 1981. Although there was a lapse of a year
between the two incidents, the second incident of July 24, 1981 was just on the
eve of the Id festival and the ground alleged was that the petitioner was trying
to instigate the Muslims to communal violence by promise of better arms, with a
view to an open confrontation between the two communities. It was observed that
the two grounds as set out in the order of detention were nothing but narration
of facts brining out the antecedent history of the detenu and that the past
conduct or the antecedent history of a person can properly be taken into
account in making an order of detention and had observed:
"It is true that the order of detention
is based on two grounds which relate to two incidents, one of August 13, 1980,
and the other of July 24, 1981, i.e., the second incident was after a lapse of
about a year, but both the incidents show the propensities of the petitioner to
instigate the members of the Muslim community to communal violence. The
unfortunate communal riots which took place in Moradabad city led to widespread
carnage and bloodshed resulting in the loss of many innocent lives. The memory
of the communal riots is all too recent to be a thing of the past. The past
conduct or antecedent history of a person can appropriately be taken into
account in making a detention order. It is usually from prior events showing
tendencies or inclinations of a man that an inference can be drawn whether he
is likely, in the future, to act in a manner prejudicial to the maintenance of
public order. ************* It cannot be said that the prejudicial conduct or
antecedent history of the petitioner was not 451 proximate in point of time and
had no rational connection with the conclusion that his detention was necessary
for maintenance of public order.'' It is usually from prior events showing
tendencies or inclinations of a man that an inference can be drawn whether he
is likely, in the future, to act in a manner prejudicial to the maintenance of
public order.
Learned counsel for the petitioner also
submitted that the ordinary criminal process could not be circumvented by
resort to preventive detention. In somewhat similar circumstances, the Court
recently in Alijan Mian v. District Magistrate, Dhanbad & Ors(1). held that
merely because there was pending prosecution and the accused were in jail, that
was no impediment for their detention under s.3(2) of the National Security
Act, 1980 if the detaining authority was satisfied that their being enlarged on
bail would be prejudicial to the maintenance of public order. The same view has
been reiterated by this Court in Raisuddin Babu Tamchi v. State of U.P. &
Anr(2).
For my part, I would therefore, for the
reasons stated, dismiss the writ petition as well as the connected special
leave petition.
VENKATARAMIAH, J. This is a petition under
Article 32 of the Constitution. The petitioner has questioned in this case the
validity of an order of detention dated August 16, 1983 passed by the District
Magistrate, Bhagalpur, State of Bihar, directing the detention of the
petitioner under sub- section (2) of section 12 of the Bihar Control of Crimes
Act, 1981 (hereinafter referred to as 'the Act') read with Notification No.
H(P) 6844 dated June 20, 1983 of the Government of Bihar vesting the powers of
detention in the District Magistrate, Bhagalpur.
The petitioner states that he having passed
him M.A. Examination was studying law in the Bhagalpur Law College in the year,
1983. On the basis of information received on April 20, 1983 about the
unnatural deaths of two persons within the jurisdiction of the Bhagalpur
Kotwali Police Station, the police conducted investigation and at the
conclusion of that investigation they filed a charge sheet 452 in the court of
the Magistrate having jurisdiction over the area in question, who committed him
alongwith some others to the Court of Sessions for being tried for offences
punishable under section 302 read with section 120B, 386 and 511 of the Indian
Penal Code. The said case is even now pending. The petitioner moved the High
Court of Patna for enlarging him on bail during the pendency of the said
Session trial. On August 8, 1983, the bail petition was heard and the High
Court made an order enlarging the petitioner on bail, the relevant part of
which read thus:
"8.8.83. Heard learned counsel for the
petitioner and the State.
The submission of the petitioner is that he
has not been named in the F.I.R. and the only material against him is that when
Kashi Nath Bajoria, father of the deceased learnt about taking away of his sons
from the petrol pump he went to the house of petitioner and his brother
Dhananja Singh and enquired about his sons.
On his enquiry the petitioner, his brother
Bijoy and his mother demanded a sum of Rs 50,000 for release of his sons. It is
further submitted that three persons gave their confessional statement but even
they did not name the petitioner- Whether the petitioner was in conspiracy or
had hand in the crime will be examined at the trial if such occasion arises. In
the circumstances of the present case, let petitioner be released on bail of Rs
30,000 (Rupees ten thousand with two sureties of the like amount each) to the
satisfaction of the Chief Judicial Magistrate, Bhagalpur in Bhagalpur Kotwali
P.S. Case No. 281/83 dated 20.4.83." Even before the petitioner could
furnish bail and secure his release from jail as per the above order, the
District Magistrate passed the impugned order of detention on August 16,1983,
the relevant part of which reads thus:
Order No. 151 dated 16.8.83 Whereas I am
satisfied that with a view to preventing Shri Vijay Singh s/o Late Shri
Jagannath Singh of Mohalla Mundichak P.S. Kotwali. District Bhagalpur from
acting in 453 any manner prejudicial to the maintenance of public order, it is
necessary to make an order that he be detained.
Now, therefore, in exercise of the powers
conferred by (Bihar Act 7 of 1981) sub-section 2 of section 12 of the Bihar
Control of Crimes Act, 1981 read with Notification H(P) 6844 dated 20.6.83 of
the Government of Bihar vesting the powers of detention in District Magistrate,
Bhagalpur, I hereby direct that Shri Vijay Singh be detained.
He shall be detained in Special Central Jail,
Bhagalpur and classified as C and in division III.
District Magistrate Bhagalpur" The
grounds of detention in support of the above order read thus:
"In pursuance of section 17 of the Bihar
Control of Crimes Act, 1981 (Bihar Act 7 of 1981) Shri Vijay Singh s/o Late
Shri Jagannath Singh of Mohalla Mundichak, P.S. Kotwali, District Bhagalpur is
informed that he was been directed to be detained in my Order No. 151/C dated
16.8.83.
The following incidents conclusively show
that Shri Vijay Singh is an "anti-social element".
His criminal activities enumerated below date
back to the year 1975.
(i) On 15.4.75 Vijay Singh alongwith his
associates went to the shop of Gopal Ram Ramchandra, cloth dealer in Hariapatti
market of Bhagalapur town armed with unlicensed pistol and forcibly demanded
subscription at the point of pistol. On refusal, he created a row in the shop
and indulged in filthy abuses, as a result of which the shopkeepers of the area
became terribly panicky and feeling of uttar insecurity prevailed in the area.
A case was instituted in Kotwali P.S. vide Case No. 25 dated 15-4-75 under
section 144/448 I.P.C. In this case, he was chargesheeted.
(ii) On 17/18-6-82 at night Vijay Singh was
found teasing and misbehaving with females returning from Cinema hall at
Khalifabagh Chowk, one of the busiest throughfares of 454 the town. On
information, the police rushed to the spot. Vijay Singh had the avdacity to
misbehave with the police personnel including the Dy. S.P. (Hqrs.) who happened
to reach there. A case was instituted in this connection vide Kotwali P.S. Case
No. 349 dated 18-6-82 u/s 294/353 I. P. C. In this case, Vijay Singh was
chargesheeted.
Shri Vijay Singh has been detained on the
following grounds:- Grounds:
On 19.4.1983, the criminal activities of
Vijay Singh mounted to its peak, when two young sons of Shri Kashinath Bajoria,
owner of Bajoria Petrol Pump, Bhagalpur, namely, Krishna Kumar Bajoria and
Santosh Kumar Bajoria were kidnapped from their petrol pump.
Vijay Singh demanded a sum of Rs 50,000
(Fifty thousand) from their father as ransom. As the demand could not be
fulfilled, the above-named two innocent young men were done to death in a
ghastly manner and their dead bodies thrown away near Mount Assisi School and
Zila School which were discovered next morning.
These double murders caused panic throughout
the Bhagalpur Town and public order was gravely disturbed.
Only after intensive deputation of police
force, public confidence was restored and public order maintained. A case was
instituted vide Kotwali P.S. Case No. 281 dated 20-4-83 under sections
364/302/201/34/120(b) I.P.C Charge-sheet has been submitted in this case
against Vijay Singh and others. Investigation shows that Vijay Singh is mainly
instrumental to this heinous crime.
(Copy of F.I.R., brief of the case and copy
of Memo of evidence enclosed).
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
considered his detention necessary. Shri Vijay Singh is informed that he may
make a representation in writing against the order under which he is detained.
His representation, if any, may be addres 455 sed to the Deputy Secretary, Home
(Police) Department, Government of Bihar, Patna, and forwarded by the
Superintendent of Jail through special messenger with a copy to the
undersigned.
Sd/-S.K. Sharma 16/8/83 District Magistrate
Bhagalpur" Aggrieved by the above order of detention the petitioner filed
a petition under Article 226 of the Constitution before the High Court. On
behalf of the detaining authority it was contended that the detention order had
been prepared in advance for service on the petitioner when he came out of the
jail on the strength of the bail order which he had obtained in the criminal
case;
that all the copies of order had been sent to
the District Magistrate's office but by mistake of the messenger three copies
had been wrongly delivered at the Central Jail Bhagalpur where the petitioner
had been kept and that when the mistake was detected by the Superintendent of
the Central Jail, he did not serve the copy of the order and had returned all
the copies. It was urged that since the order of detention had not been served
on the petitioner, the petition was not maintainable. Accepting the above plea,
the High Court held that there was no occasion to quash the order of detention
as the petitioner had not been detained pursuant to it. Accordingly it rejected
the prayer of the petitioner. Thereupon the petitioner filed the above writ
petition before teis Court, He has also filed a special leave petition being
S.L.P. (Criminal) 3306 of 1983 against the order of the High Court.
In this Court, the respondents have not
depended upon the technical plea raised by them before the High Court but have
tried to justify the order of detention on merits.
I shall give a brief summary of the relevant
provisions of the Act. The Act was passed in 1981. It was enacted, as its long
title suggests, to make special provisions for the control and suppression of
antisocial elements with a view to maintenance of public order. Section 2(d) of
the Act defines the expression 'Anti-Social Element' thus:
"2.(d) "Anti-Social Elements"
means a person who is (i) either by himself or as a member of or leader of a
gang, habitually commits, or attempts to commit 456 or abets the commission of
offences, punishable under Chapter XVI or Chapter XVII of the Indian Penal Code
; or (ii) habitually comints or abets the commission of offence under the
Suppression of Immoral Traffic in Women and Girls Act, 1956 ; or (iii) who by
words or otherwise promotes or attempt to promote on grounds of religion, race,
language, cast or community or any other grounds what-soever feelings of enmity
or hatred between different religions, racial or language groups of castes or
communities ; or (iv) has been found habitually passing indecent remarks to or
teasing women or girls ; or (v) who has been convicted of an offence under
sections 25, 26, 27, 28 or 29 of the Arms Act of 1959." (underlining by
us) Section 3 to 11 of the Act deal with the provisions relating to externment
of anti-social elements. Chapter II of the Act deals with the provisions
providing for the preventive detention of anti-social elements. The relevant
part of section 12 of the Act which is in Chapter II of the Act reads :
"12. Power to make order detaining
certain persons. The State Government may-(1) If satisfied with respect to any
person that with a view to preventing him from acting in any manner prejudicial
to the maintenance of public order and there is reason to fear that the
activities of anti-social element cannot be prevented otherwise than by the
immediate arrest of such person make an order directing that such anti- social
element be detained.
(2) If, having regard to the circumstances
prevailing or likely to prevail in any area within the local limits of the
jurisdiction of a District Magistrate, the State Government is satisfied that
it is necessary so to do, it may by an order in writing direct, that during
such period as may be specified in the order, such District Magistrate may
also, if satisfied as 457 provided in sub-section (1) exercise the power
conferred up-on by the said sub-section.. (underlining by us) It is seen from
section 12 of the Act that it makes provision for the detention of an
anti-social element. If a person is not an anti-social element, he cannot be
detained under the Act. The detaining authority should, therefore, be satisfied
that the person against whom an order is made under section 12 of the Act is an
anti-social element as defined in section 2 (d) of the Act. Sub-clauses (ii),
(iii) and (v) of section 2 (d) of the Act which are not quite relevant for the
purposes of this case may be omitted from consideration for the present. The
two other sub-clauses which need to be examined closely are sub-clauses (i) and
(iv) of section 2 (d). Under sub-clause (i) of section 2 (d) of the Act, a
person who either by himself or as a member of or leader of a gang habitually commits
or attempts to commit or abets the commission of offences punishable under
Chapter XVI dealing with offenences affecting the human body or Chapter XVII
dealing with offences against property, of the Indian Penal Code is considered
to be an anti-social element. Under sub-clause (iv) of section 2 (d) of the
Act, a person who has been habitually' passing indecent remarks to, or teasing
women or girls, is an anti-social element. In both these sub-clauses the word
'habitually' is used. The expression 'habitually' means 'repeatedly' or
'persistently'. It implies a thread of continuity stringing together similar
repetitive acts. Repeated, persistent and similar, but not isolated, individual
and dissimilar acts are necessary to justify an inference of habit. If connotes
frequent commission of acts or omissions of the same kind referred to in each
of the said sub-clauses or an aggregate of similar acts or omissions. This
appears to be clear from the use of the word 'habitually' separately in
sub-clause (i), sub-clause (ii) and sub-clause (iv) of section 2 (b) and not in
sub-clauses (iii) and (v) of section 2 (d) . If the State Legislature had
intended that a commission of two or more acts or omissions referred to in any
of the sub- clauses (i) to (v) of section 2 (d) was sufficient to make a person
an 'anti-social element', the definition would have run as 'Anti-Social
Element' means 'a person who habitually is .....' As section 2 (d) of the Act
now stands, whereas under sub-clause (iii) or sub-clause (v) of section 2 (d) a
single act or omission referred to in them may be enough to treat the person
concerned as an 'anti-social element', in the case of sub-clause (i),
sub-clause (ii) or sub-clause (iv), there should be a repetition of acts or
omissions of the same kind referred to in sub-clause 458 (i), sub-clause (ii)
or in sub-clause (iv) by the person concerned to treat him as an 'anti-social
element'.
Commission of an act or omission referred to
in one of the sub-clauses (i). (ii) and (iv) and of another act or omission
referred to in any other of the said sub-clauses would not be sufficient to
treat a person as an 'anti-social element'. A single act or omission falling
under sub-clause (i) and a single act or omission falling under sub-clause (iv)
of section 2 (d) cannot, therefore, be characterised is a habitual act or
omission referred to in either of them.
Because the idea of 'habit' involves an
element of persistence and a tendency to repeat the acts or omissions of the
same class or kind, if the acts or omission in question are not of the same
kind or even if they are of the same kind when they are committed with a long
interval of time between the they cannot be treated as habitual ones.
In the present case the District Magistrate
has relied on three incidents to hold that the petitioner is an anti- social
element. They are-(i) that on April 15, 1975 the petitioner along with his
associates had gone to the shop of a cloth dealer of Bhagalpur Town armed with
an unlicensed pistol and had forcibly demanded subscription at the point of a
gun and (ii) that on June 17/18, 1982 the petitioner was found teasing and
misbehaving with females returning from a cinema hall. The third ground is the
criminal case now pending against the petitioner in the Sessions Court.
The first incident is of the year 1975. It is
not stated how the criminal case filed on the basis of that charge ended.
The next incident relates to the year 1982.
The detaining authority does not state how the criminal case filed in that
connection terminated. If they have both ended in favour of the petitioner
finding him clearly not guilty, they cannot certainly constitute acts or
omissions habitually committed by the petitioner. Moreover the said two
incidents are of different kinds altogether. Whereas the first one may fall
under sub-clause (i) of section 2(d) of the Act, the second one falls under
sub-clause (iv) thereof. They are, even if true, not repetitions of acts or
omissions of the same kind.
The District Magistrate does not appear to
have applied his mind to the above aspects of the case. The third ground which
is based on the pending Sessions case is no doubt of the nature of acts or
commissions referred to in sub-clause (i) of section 2(d) but the interval
between the first ground which falls under this sub-clause and this one is
nearly eight years and cannot, therefore, make the petitioner a habitual
offender of the type falling under sub-clause (i) of 459 section 2 (d). When I
say so I do not certainly minimise the gravity of the offence alleged to have
been committed by the petitioner which is still to be tried by the Sessions
Court.
If the petitioner is found guilty by the
Court, he will have to be awarded appropriate punishment. But the point for
consideration now is whether the filing of the charge sheet is sufficient to
bring the petitioner within the mischief of the Act. The Court should examine
the case without being overwhelmed by the gruesomeness of the incident involved
in the criminal trial. It is well settled that the law of preventive detention
is a hard law and therefore it should be strictly construed. Care should be
taken that tee liberty of a person is not jeopardised unless his case falls
squarely within the four corners of the relevant law. The law of preventive
detention should not be used merely to clip the wings of an accused who is
involved in a criminal prosecution. It is not intended for the purpose of
keeping a man under detention when under ordinary criminal law it may not be
possible to resist the issue of orders of bail, unless the material available
is such as would satisfy the requirements of the legal provisions authorising
such detention. When a person is enlarged on bail by a competent criminal
court, great caution should be exercised in scrutinising the validity of an
order of preventive detention which is based on the very same charge which is
to be tried by the criminal court.
Having given my anxious consideration to the
case, I am of the view that it is not possible to hold that the petitioner can
be called an 'anti-social element' as defined by section 2 (d) of the Act. The
order of detention impugned in this case, therefore, could not have been passed
under section 12 (2) of the Act which authorises the detention of anti-social
elements only.
Before leaving this case, I should state that
a number of decisions were cited before us in which it had been held that an
order of detention based on a criminal charge which is still to be tried may
not be invalid and that an order granting bail by a criminal court cannot be a
bar to the passing of an order of detention. But I have not found it necessary
to deal with them here as they would have become relevant only if I had been
satisfied that the petitioner was an anti-social element. Moreover the orders
of detention questioned in those cases were governed by the provisions of the
statutes under which they had been issued.
460 In the result, I quash the order of
detention passed against the petitioner. The petition is accordingly allowed.
The petitioner shall be set at liberty
forthwith unless he is required to be in custody on some other ground.
H.S.K. Petition allowed.
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