Raj Kumar Singh Vs. State of Bihar
& Ors [1986] INSC 202 (26 September 1986)
MUKHARJI, SABYASACHI (J) MUKHARJI, SABYASACHI
(J) PATHAK, R.S.
CITATION: 1986 AIR 2173 1986 SCR (3) 933 1986
SCC (4) 407 JT 1986 555 1986 SCALE (2)541
CITATOR INFO: RF 1987 SC2098 (7) R 1988
SC1256 (12) RF 1989 SC2265 (18) RF 1990 SC 231 (10)
ACT:
Bihar Control of Crimes Act, 1981- section
12(2)- Detention order-Valid of.
HEADNOTE:
The Bihar Control of Crimes Act, 1981 was
enacted to make special provisions for the control and suppression of
anti-social elements with a view to maintenance of public order. Section 2(d)
defines "Anti-Social Element" and s. 12 deals with power to make
orders for detaining certain persons.
Upon the materials, the District Magistrate,
hl his order of detention under s. 12(2) has stated that he was satisfied that
the petitioner was an anti-social element and was habitually committing
offences punishable under Chapters XVI and XVII of the Indian Penal Code and as
such his movements and acts adversely affected the public order. The incidents
referred to in the grounds of detention showing criminal propensity of the
petitioner had taken place one year prior to the date of passing of the
detention order.
The petitioner unsuccessfully challenged his
detention before the High Court.
Dismissing the writ petition as well as the
appeal, this Court, ^
HELD: 1. Preventive Detention for social
protection of the community is a hard law but, it is a necessary evil in the
modern society and must be pragmatically construed, so that it works. That is
how law serves the society but does not become an impotent agent. Anti-social
elements creating havoc have to be taken care of by law. Lawless multitude
bring democracy and Constitution into disrepute. Bad facts bring hard laws-but
these should be properly and legally applied. It should be so construed that it
does not endanger social defence or the defence of the community, at the same
time does not infringe the liberties of the citizens . A balance should always
be struck. [920B-D] 914
2. The executive authority is not the sole
judge of what is required for national security or public order. But, the court
cannot substitute its decision if the executive authority or the appropriate
authority acts on proper materials and reasonably and rationally comes to that
conclusion even though a conclusion with which the court might not be in
agreement. It is not for the court to put itself in the position of the
detaining authority and to satisfy itself that untested facts reveal a path of
crime provided these facts are relevant. [920E-F]
3. If, in the background of a case, and
having regard to the definition of 'anti-social element' in s. 2(d) of the
Bihar Control of Crimes Act, 1981, an appropriate authority charged with the implementation
of the Act, comes to the satisfaction that the detenu is one who is habitually
committing or abetting the commission of offences, such a conclusion is neither
irrational nor unreasonable. [919C-D]
4. In the instant case, it cannot be said that
the power of preventive detention has been used to clip the 'wings of the
accused' who was involved in a criminal prosecution. The fact that the
petitioner was in jail has been taken into consideration and all the relevant
documents were in fact supplied to him. Judged by all relevant standards the
order of detention cannot be said to be either illegal or beyond the authority
of law. Therefore, there was no ground for interference with the order of l
detention.
[920H; 921A-G]
5. While adequacy or sufficiency is no ground
of a challenge, relevancy or proximity are grounds of challenge and proximity
would be relevant in order to determine whether an order of detention was
arrived at irrationally or unreasonably. [919G-H] Vijay Narain Singh v. State
of Bihar & Ors., [1984] 3 SCR 435 and The Barium Chemicals Ltd. and Anr. v.
The Company Law Board and others, [1366] (Supp.) SCR 311, followed.
Ichchu Devi Choraria v. Union of India &
Ors., [1981] 1 SCR 640 at 651, Ibrahim Ahmed Batti v. State of Gujarat and others,
[1983] 1 SCR 540 at 558 and State of Punjab v. Jagdev Singh Talwandi, [1984] 2
SCR at 62 & 63 inapplicable.
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
353 of 1986 915 From the Judgment and order
dated 25.2.1986 of the Patna High Court in C.W.J.C. No. 227 of 1985.
R.K. Garg and Miss Rani Jethmalani for the
Petitioner.
D. Goburdhan for the Respondents.
The Judgment of the Court was delivered by
SABYASACHI MUKHARJI, J. This Appeal and the Writ Petition challenge the order
passed by the District Magistrate, Dhanbad under section 12(2) of The Bihar
Control of Crimes Act, 1981 (hereinafter called the said 'Act'). The order was
passed on 15th January, 1985 and was served on the petitioner on 7th December,
1985. The impugned order was approved by the Government on 15th January, 1985.
The said Act was an Act to make special
provisions for the control and suppression of anti-social elements with a view
to maintenance of public order. Section 12 deals with power to make orders for
detaining persons, Clause (d) of section 2 of the said Act states
"Anti-Social Element' as 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 commits or abets the commission of
offences under the Suppression of Immoral Traffic in Women and 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 of 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 Section 25, 26,27, 28 or 29 of the Arms Act of 1959.
916 Under section 3, the power is thereof
externment on certain conditions. Sub-sections(1) and (2) of section 12 of the
said Act provides as follows:
"12. Power to make orders detaining
certain persons-(l) The State Government may if satisfied with respect to any
person that with a view to preventing him from acting in any manner prejudicial
to the maintenance of public order and there is reason to fear that the
activities of anti-social elements can not 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 provided in sub-section (1) exercise the power conferred
upon by the said sub-section:
Provided that the period specified in an
order made by the State Government under this sub- section shall not, in the
first instance exceed three months, but the State Government may, if satisfied
as aforesaid that it is necessary so to do, amend such order to extend such
period from time to time by any period not exceeding three months at any one
time." The other provisions are not material for the present purpose. In
so far as these are relevant have been dealt with in the judgment under appeal
and it is not necessary to reiterate these again.
The High Court in the judgment under appeal
has referred to the order of detention exhaustively.
The High Court has narrated the facts in the
judgment under appeal and stated as follows:
"On 11.3.84 on a confidential
information a raid was organised under the leadership of the officer- in-charge
of 917 Dhanbad Police Station to apprehend one Sri Raghunath Singh an absconder
detenu of the National Security Act. According to the confidential information
he was going to witness a Qwali programme at Sijua gate within Jagota Police
station. As soon as the raiding party reached the Sijua gate they saw that
Raghunath Singh was coming out of club and was going towards Sijua More. The
police cordoned him and told him about his arrest under the National Security
Act. On this the aforementioned Raghunath Singh called one Sakaldeo Singh who
was coming towards him alongwith his associates duly armed. Sakaldeo Singh
immediately reached the spot and asked the detenu and his other associates to
open fire. As ordered the detenu opened fire on the police party. The police party,
however, escaped injury.
Meanwhile Raghunath Singh took the position
and opened fire from his revolver which hit the S.I.
Sri. R. K. Verma, a member of the raiding
party who fell on the ground. The police party also opened fire but the detenu
and his associates, quite in number, under the coverage of firing fled away by
breaking the cordon of the police party.
The incident took place at about 1.50 a.m. in
presence of a large gathering which was witnessing the Qwali programme. This
created great panic and alarm amongst the people who were witnessing the
programme and they started running helter and skelter for their lives. A
complete confusion prevailed in the programme and the police had a hard time to
control the situation. This adversely affected the public order. The people
were so much afraid that they stopped moving freely in the area. It is alleged
that the detenu is a terror in the area and nobody dares to speak against him.
He is an uncrowned king of the Mafia World and the people living in the area
are under the constant threat of life and property. A case bearing Jogta P.S.
Case No. 22 dated 11.3.84 under section 142/149/307/ 326/353/333/224/225
I.P.C./27 Arms Act was registered for this incident and charge- sheet had
already been submitted in the case.
Besides the aforesaid ground two cases have
been referred to in the order of detention as background to show the
criminality of the detenu:
1. Kenduadih P.S. Case No. 43 dated 11.3.83
under section 302/34 I.P.C./25(1A)/27 of the Arms Act/3/5 of the 918 Explosive
Substance Act. In this case the detenu with his associates is alleged to have
murdered one Sri Nagendra Singh in broad day light and a charge-sheet in this
case had already been submitted.
2. The other case referred to as a background
is that numbered as Kenduadih P.S. Case No. 31 dated 11.3.84 under section
25(1A)/35 Arms Act. In this case a DBBL gun looted in Keswar P.S. Case No.
5/84 under section 395 of the Indian Penal
Code was recovered from the detenu's house besides cartridges of various Arms.
A charge-sheet in this case had also been submitted." Upon these
materials, the District Magistrate, in his order of detention, has reiterated
that he was satisfied that the petitioner is an anti-social element and
habitually commits offences punishable under Chapters XVI and XVII of the
Indian Penal Code and as such his movements and acts adversely affect the
public order.
The District Magistrate further stated that
he was satisfied on ground No. 1 referred to hereinbefore.
In so far as Jogta P.S. Case No. 22 dated
11.3.84 is concerned, it was with regard to the same incident which resulted in
the detention of the petitioner/appellant. So far as the background was
concerned, the incident No. 2 mentioned therein was Kunduadih P.S. Case No. 31
dated 11.3.84 with regard to the same date i.e. 11.3.84 but with regard to a
different occurrence. In that case a gun was looted and a case under I.P.C. was
instituted under section 395 of the Indian Penal Code. Said gun was recovered
from the petitioner's/appellant's house beside cartridges of various arms and a
charge-sheet had been submit ted in connection with Jogta P.S. Case No. 22
dated 11;3.84. These cases were pending at the relevant date. Therefore, there
was no question of the acquittal or termination of the petitioner one way or
the other in respect of both the incidents of the same date. In respect of
Incident No. 1 referred to hereinbefore i.e. Kenduadih P.S. Case No. 43 dated
11.3.84 under section 302/34 I.P.C./25(1A)/27 Arms Act/3/5 Explosive Substance
Act in which the petitioner/ appellant and his associates are alleged to have
murdered Sri Nagendra Singh in the broad day light, a charge-sheet had been
submitted but the case had not been tried or terminated in any manner. All
these cases were pending disposal.
919 There is a proximity between these
incidents betraying a nature and a tendency of committing these offences. But
it cannot be denied that these indicate, in the facts of this case, that the
petitioner/appellant was one who habitually committed offences which are at
least punishable under I.P.C.
We have noted who is an anti-social element
under the Act. The petitioner/appellant has not yet been convicted under any of
these sections referred to hereinbefore. So far as the incidents referred to
hereinbefore betray criminal propensity. The first incident is of a case which
was one year prior to the date of the detention order and the other incident
was of the same date. If in this background, an appropriate authority charged
with the implementation of the Act comes to the satisfaction that the
petitioner/appellant is one who is habitually committing or abetting the
commission of offences, such a conclusion is neither irrational nor
unreasonable.
In Vijay Narain Singh v. State of Bihar &
Ors., [1984] 3 SCR 435, this Act came up for consideration by this Court.
But in that case the facts were entirely
different. In that case the petitioner was facing trial for offences under
section 302 read with section 120B, 386 and 511 of the Indian Penal Code and
was allowed to be enlarged on bail by the High Court. But before the petitioner
was released in that case the District Magistrate passed an order on 16th
August, 1983 under section 12(2) of the said Act for detention of the
petitioner. The grounds of detention supplied to the petitioner related to the
incidents which took place in 1975 and 1982. There is a gap of 6-7 years in
between the majority of the judges in that decision (O.
Chinnappa Reddy and E.S. Venkataramiah, JJ)
observed that the law of preventive detention is hard law and therefore should
be strictly, construed. Care should, therefore, be taken that liberty of a
person is not jeopardized unless his case fell squarely within the four corners
of the relevant law. A.P. Sen, J. disagreed. It is not necessary to discuss the
decision in detail in view of the facts of that case and difference of the
facts in this case. We only reiterate that what the majority of the learned
judges said was that while adequacy or sufficiency was no ground of a
challenge, rele- vancy or proximity were grounds of challenge. We may
respectfully add that proximity would be relevant in order to determine whether
an order of detention was arrived at irrationally or unreasonably. It is
well-settled that the detaining authority is not the sole judge of what
national security or public order requires. But neither is the court the sole
judge of the position. When power is given to an authority to act 920 on
certain facts and if that authority acts on relevant facts and arrives at a
decision which cannot be described as either irrational or unreasonable, in the
sense that no person instructed in law could have reasonably taken that view,
then the order is not bad and the Court cannot substitute its decision or opinion,
in place of the decision of the authority concerned on the necessity of passing
the order. See in this connection the observations of The Barium Chemicals Ltd.
and Anr. v. The Company Law Board and others, [1966] Suppl. SCR 311.
Preventive detention for the social
protection of the community is, as noted and observed in Vijay Narain Singh's
case (supra), a hard law but, it is a necessary evil in the modern society and
must be pragmatically construed, so that it works. That is how law serves the
society but does not become an impotent agent. Anti-social elements creating
havoc have to be taken care of by law. Lawless multitude bring democracy and
constitution into disrepute. Bad facts bring hard laws-hut these should be
properly and legally applied. It should be so construed that it does not
endanger social defence or the defence of the community, at the same time does
not infringe the liberties of the citizens. A balance should always be struck.
The executive authority is not the sole judge
of what is required for national security or public order. But the court cannot
substitute its decision if the executive authority or the appropriate authority
acts on proper materials and reasonably and rationally comes to that conclusion
even though a conclusion with which the court might not be in agreement. It is
not for the court to put itself in the position of the detaining authority and
to satisfy itself that untested facts reveal a path of crime provided these
facts are relevant. See in this connection the observations of O. Chinnappa
Reddy, J. in Vijay Narain Singh's case (supra) at Pages 440 and 441.
In the facts of this case and having regard
to the nature of the offences, the impugned order cannot be said to be invalid
and improper one. The High Court has very exhaustively dealt with this aspect
and we respectfully agree with the High Court's view.
There is no analogy between the instant case
and the facts of Vijay Narain Singh's case (supra) decided by this Court.
On materials on record it cannot be said as
the High Court has rightly pointed out that the power of preventive detention
has been 921 used to clip the 'wings of the accused' who is involved in a
criminal prosecution. Certain allegations had been made that all materials had
not been supplied to the accused. This is not true because as the High Court
noted that all relevant F.I.Rs were received by the petitioner and in token
whereof he had put his signature in black and white in his own hand.
The fact that the petitioner was in jail has
been taken into consideration. How these factors and to what extent these
should be taken into consideration have been discussed by this Court in Writ
Petition (Criminal) No. 296 of 1986 (With SLP (Criminal) No. 1265 of 1986). It
is not necessary to reiterate them. In the instant case the limits have not
been transgressed.
In the background of the facts of this case
that all the relevant documents were in fact supplied and no other document was
asked for, the observations of this Court in Ichchu Devi Chorana v. Union of
India & Ors., [1981] 1 SCR 640 at 651 on which reliance was placed by Mr.
Garg on behalf of the petitioner/appellant do not apply.
Mr. Goberdhan, on behalf of the State of
Bihar, rightly pointed out that in the facts and circumstances of this case and
the background of the scheme of this Act, there was no scope of the application
of the principles reiterated by this Court in Ibrahim Ahmed Batti v. State of
Gujarat and others, [1983] 1 SCR 540 at 558. Similarly the observations of this
Court in State of Punjab v. Jagdev Singh Talwandi [1984] 2 SCR 50 at 62 &
63, upon which Mr. Garg relied can have no application. All the relevant
documents were supplied. All the statutory safeguards were complied with.
In view of the backgrounds in the facts and
circumstances of this case and the grounds mentioned in the affidavit of the
District Magistrate filed before the High Court in the case under appeal as
well as in Writ Petition in this Court and the facts found by the High Court
which are based on cogent and reliable evidence, there is no ground for
interference with the order of detention.
Preventive detention as reiterated is hard
law and must be applied with circumspection rationally, reasonably and on
relevant materials. Hard and ugly facts make application of harsh laws
imperative. The detenu's rights and privileges as a free man should not be
unnecessarily curbed.
922 No other points were urged before us.
This Court has reiterated in Writ Petition (Criminal) No. 296 of 1986 with SLP
(Criminal) No. 1265 of 1986 the relevant aspect of the preventive detention
law. In that view of the matter it is not necessary to reiterate those
principles again here.
Preventive detention is a necessary evil in
the modern restless society. But simply because it is an evil, it cannot be so
interpreted as to be inoperative in any practical manner. Judged by all
relevant standards, the impugned order of detention in the case of the
petitioner cannot be said to be either illegal or beyond the authority of law.
Before we conclude we must point out that
another point was taken that in the order there was no mention of the period of
detention. There could not be an indefinite detention. The State Government has
clearly notified the period of detention of the petitioner and indicated that
he should be in detention till 6th December, 1986. This appears at Annexure I
at page 52 of the Paper Book of Criminal Appeal No. 353 of 1986. The said order
was passed under section 22 of the said Act by the State Government.
In the premises the Writ Petition fails and
is dismissed. The Criminal Appeal is also dismissed.
A.P.J. Petition and Appeal dismissed.
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