of U.P Vs. Kamal Klshore Saini  INSC 317 (6 November 1987)
B.C. (J) RAY, B.C. (J) SEN, A.P. (J)
1988 AIR 208 1988 SCR (1) 859 1988 SCC (1) 287 JT 1987 (4) 285 1987 SCALE
INFO : R 1989 SC 764 (18)
Security Act, 1980-Detention under section 3(2) thereof.
The respondent, Kamal Kishore Saini, was detained under an order of detention
under section 3(2) of the National Security Act, 1980. He challenged the said
order of detention before the High Court under Article 226 of the Constitution.
Of India. The High Court quashed the order of detention. The State appealed to
this Court by special leave.
the appeal, the Court, ^
The order of detention is illegal and bad on the ground of non-supply of the
vital documents and materials to the detenu to enable him to make an effective
representation against the grounds of detention and as such his right of making
an effective representation as contemplated under Article 22(5) of the
Constitution of India has been infringed. Also, the non-production of the
relevant materials before the detaining authority for his consideration before
his passing the order of detention, renders the order of detention invalid and
Asha Devi v. K. Shivrai, [19791 1 SCC 222; Gurdip Singh v. Union of India, AIR
1981 SC 362; Dr. Ram Manohar Lohia v. State of Bihar & Qrs.,  1 SCR
705; Arun Ghosh v. State of West Bengal,  3 SCK 283 Pushkar Mukharjee v.
State of West Bengal, AIR 1970 SC 352; Ashok Kumar v. Delhi Administration,
 2 SCC 403, and Gulab Mehra v. State of U. P. & Ors. J 4 JT 1987 (3)
559, referred to.
APPELLATE Jurisdiction: Criminal Appeal No. 531 of 1986.
the Judgment and order dated 17.4.1986 of the Allahabad High Court in W. P. No.
6823 of 1985 .
Bhandari for the petitioner. 860 Shakeel Ahmed Syed for the Respondent.
Judgment of the Court was delivered by B.C. RAY, J. This appeal by special
leave is against the judgment and order passed by the High Court of Judicature
at Allahabad in writ petition Nos. 6823 of 1985 and 6522 of 1985. The facts
giving rise to this appeal are as follows:- The respondent Kamal Kishore Saini
was detained under Section3(2) of National Security Act, 1980 by an order
served on him on 28th November, 1985 on three grounds which are stated
hereunder:- (I) That on 4th June, 1985 one Jeet Narain Awasthi, resident of
Indira Nagar, Police Station Ghazipur, Lucknow lodged a First Information
Report at Police Station Ghazipur that on the night of 4/5th June, 1985 his
younger brother Vishnu Narain Awasthi at about 20 hours had left to sleep in
house No. 2040 of Indira Nagar, Lucknow occupied by Sri R.S. Raghuvanshi since
Sri Raghuvanshi had gone out to Jaunpur, his home town and had entrusted
custody of his house to the said Vishnu Narain Awasthi. At 11.00 in the night
some persons informed the complainant that his brother had been shot by certain
persons and when the complainant reached the spot he found Vishnu Narain
Awasthi lying in a pool of blood and he had already died. It is alleged that on
the basis of the F.I.R. On 4th June, 1985 crime No. 101 of 1985 under Section
302 of the Indian Penal Code was registered at the Ghazipur Police Station
against unknown accused. The names of the detenus, it is said figured during
investigation and the charge-sheet has been submitted in the concerned court
which is pending trial.
That on 13th June, 1985 one Baldeo Prasad Awasthi, resident of Ismailganj,
Police Station Ghazipur, Lucknow lodged a First Information Report at Police
Station Alambagh, Lucknow that his son Ram Kumar and his son-in-law, Nand
Kishore had gone to meet an accused in the District Jail where the complainant
also reached at about 1.30 p.m.
they could not meet the accused. Ram Kumar and Nand Kishore proceeded towards
home on one rickshaw while the other rickshaw was being occupied by the
complainant. When they reached a little distance from the Jail, near the
residence of the jail Superintendent, at about 1.45 p.m.
Hazra and Kamal Kishore Saini, the two detenus and one Anandi Shukla, said to
be an accomplice of one Ram Gopal, came on a scooter, stopped it and challenged
Ram Kumar, Nand Kishore and the complainant and filed at 861 them. The
complainant as also Ram Kumar and. Nand Kishore ran helter and skelter when the
accused are said to have chased Ram Kumar for about 200 steps and fired twice
or thrice as a consequence of which Ram Kumar fell dead on the spot and Nand
Kishore as also the rickshaw-puller and the complainant sustained injuries. On
this basis crime No. 222 of 1985 under Section 302/307 of the Indian Penal Code
was registered on 13th June 1985 at about 14.30 hours at Police Station Lucknow
in which both the petitioners and Anandi Shukla were named. After investigation
a charge-sheet has been submitted to the court which is pending consideration.
That on 16th August, 1985 at about 14. 10 hours Head Constable 129 C.P. Balram
Pandey of the Reserve Police Lines, Lucknow lodged a First Information Report
at Police Station Qaiserbagh, Lucknow that on the same day he was on duty along
with other police men in the Judicial Lock-up, Collectorate, Lucknow. It was
alleged that the complainant accompanied by other policemen on duty were
bringing back accused after their production in the court of the Chief Judicial
Magistrate, Lucknow. Both the detenus (petitioners) proceeded towards an
accused, Vijay Pratap Singh, whereupon Vijay Pratap Singh, in panic tried to
retract and turned back when Rajiv Hazra is said to have given a call that it
was appropriate time to finish the enemy who was before them as a result of
which both the detenus took out their pistols and Kamal Kishore Saini, the
detenu, with the intention of killing Vijay Pratap Singh fired at him which
resulted in injuries to him and since this incident thither and an atmosphere
of terror spread over the area. On the basis of this F.I.R., Crime No. 450 of
1985 under Section 307/34 of the Indian Penal Code was registered at the
Qaiserbagh Police Station on 16th August, 1985 and after investigation, the
charge-sheet has been submitted which is under consideration.
other detenu Rajiv Hazra was served with a detention order on identical rounds
by the District Magistrate, Lucknow.
said order of detention was challenged in two writ petitions filed before the
High Court of Allahabad under Article 226 of the Constitution of India praying
for a writ of mandamus or order or direction in the nature of writ of habeas
corpus for producing the body of the respondent along with other respondent
detenus before the Court and for quashing of the order of detention. In the
said order of detention it has also been stated that the District Magistrate
after considering the fact that since the two detenus/petitioners had filed 862
applications for bail which were pending before the Court and for which the
detenus were likely to be released on bail, passed the impugned order of
detention after being subjectively satisfied that the petitioners on their
release from jail will participate in activities prejudicial to the maintenance
of public order. The grounds of detention were duly served on the detenus
mentioning therein that the detenus may make representation to the State
Government against the said order of detention and the same would be placed
before the Advisory Board before whom the detenus would be afforded opportunity
of personal hearing.
petitioners along with other detenus contended in the writ petitions that as
regards the ground No. 1 the detenus were not afforded a fair and reasonable
opportunity of making an effective representation before the State Government
under Section 10 of the National Security Act (Act No. 65 of 1985) inasmuch as
they had not been supplied with the relevant documents in support of the
grounds except the first information reports and copies of extract of
chargesheet submitted in the two cases. It has been further submitted that the
statements recorded under Section 16 1 of the Code of Criminal Procedure which
form a part of the charge-sheet and accompanied by the same, were not supplied
to the two detenus along with the grounds. It has been further submitted that
the petitioners were not named in the F.I.R. the basis on which their
complicity came to be known, is the material found in the course of the
investigation. It has been submitted that the detenus as such could not make an
effective representation in the absence of these relevant material documents.
As regards the third ground it has also been submitted that an application was
filed by three under- trials Rajendra Singh, Pooran Mal and Jhamman on 8th
October, 1985 addressed to the Judicial Magistrate, Lucknow submitted to the
Superintendent District Jail, Lucknow for being forwarded to the Magistrate
stating that some unknown persons had fired at Vijay Pratap Singh and Kamal
Kishore Saini and other persons names had been implicated falsely.
has also been contended therein that in the bail applications moved on behalf
of the petitioners before the Sessions Judge, Lucknow, this fact was also
mentioned. This bail application was moved much before the order of detention
which was passed on 28th November, 1985. These relevant materials were not
produced before the detaining authority for his consideration before the
passing of the order of detention. As regards the first two grounds Nos. 1 and
2, it has been contended further that they pertain to the maintenance of law
and order and not to public order.
After hearing the learned counsel for the parties the High Court of Allahabad
held that so far as ground No. 1 was concerned the respective detenus were
denied a fair and reasonable opportunity to represent against the order of
detention and the detention order thus stood vitiated. It was also held that
the incidents referred to in ground Nos. I and 2 do not affect public order
inasmuch as the reach and effect and the potentiality of the said incidents did
not disturb the even tempo of the life of the community, as it did not create
any terror and panic in the locality. These incidents are confined to
particular persons. It has also been held that relevant materials such as the
application of the three under-trials as well as the statement in the bail
application of the detenus referring to the statement of the under-trials that
the detenus had been implicated falsely were not placed before the detaining
authority and as such the order of detention passed by the detaining authority
was invalid and bad in as much as there was no proper subjective satisfaction
of the detaining authority due to non consideration of the application of the
co-accused and the police report. The order of detention was therefore, quashed
by the High Court.
this order the instant appeal has been filed on special leave. The learned
counsel appearing on behalf of the State, appellant did not question before us
the validity and legality of the finding of the High Court in so far as it
relates to the non-supply of the relevant and vital materials, that is, the
statements recorded under Section 161 of the Code of Criminal Procedure so far
as ground No. 1 of the order of detention is concerned, to the detenus and also
of the non-placement of the application made by the co- accused before the
Judicial Magistrate to the effect that the detenus were falsely implicated in
the said case as Vijay Pratap Singh was fired at by some unknown assailants and
this fact was also mentioned in the bail application made by the detenus before
the Court and the police report submitted thereon. The only challenge made on
behalf of the appellant is to the finding of the High Court to the effect that
the incidents referred to in ground Nos. 1 & 2 created only law and order
problem and it did not affect public order. In other words, the even tempo of the
life of the community has not at all been affected by the said incident.
is relevant to mention in this connection that the names of the detenus were
not mentioned in the F.I.R. in respect of incident in ground No. 1 and the
basis of their complicity came to be known only in the material found in the
course of the investigation. The detenus were supplied only with the copy of
the F.I.R and also extract of the charge-sheet and not the statements under
Section 161 of the Code of Criminal Procedure. It is undisputed 864 that the
charge-sheet was subsequently submitted in the Court and the respondents were
furnished with the copies of the statements recorded under Section 161 of Cr.
P.C. long after the passing of the order of detention communicating the grounds
of detention. Similarly, with regard to ground No. 3, the application of the
co-accused as well as the statement made in the bail application filed on
behalf of the detenus alleging that they had been falsely implicated in the
same case and the police report thereon, were not produced before the detaining
authority before passing of the detention order. The High Court, therefore, was
justified in holding that the assertion made in the return that even if the
material had been placed before the detaining authority, he would not have
changed the subjective satisfaction as this has never been accepted as a
correct preposition of law. It is incumbent to place all the vital materials
before the detaining authority to enable him to come to a subjective satisfaction
as to the passing of the order of detention as mandatorily required under the
Act. This finding of the High Court is quite in accordance with the decision of
this Court in the case of Asha Devi v. K Shivraj, [ 1979] 1 SCC 222 and Gurdip
Singh v. Union of India., AIR 1981 (SC) 362.
High Court has found that the incidents mentioned in ground Nos. 1 and 2 are
confined to law and order problem and not public order inasmuch as these
incidents concerned particular individuals and do not create any terror or
panic in the locality affecting E. the even tempo of the life of the community.
This Court in the case of Dr. Ram Manohar Lohia v. State of Bihar and Ors., l
1966] 1 SCR 709 has observed:- "The contravention of law always affects
order but before it can be said to affect public order it must affect the
community or the public at large.
are three concepts according to the learned Judge (Hidayatullah, J) i.e.
"law and order", "public order" and "security of the
State". It has been observed that to appreciate the scope and extent of
each of them one should imagine three concentric circles. The largest of them
represented law and order, next represented public order and the smallest
represented the security of the State. An act might affect law and order but
not public order just as an act might affect public order but not the security
of the State".
observation has been made in the case of Arun Ghosh v. State of West Bengal,
 3 SCR 288 The observation is to the following effect:
"Public order is the even tempo of the life of the community taking the
country as a whole or even a specified locality. Disturbance of public order is
to be distinguished from acts directed against individuals which do not disturb
the society to the extent of causing a general disturbance of public
tranquility. It is the degree of disturbance and its effect upon the life of
the community in a locality which determines whether the disturbance amounts
only to a breach of law and order. Take for instance, a man stabs another.
may be shocked and even disturbed, but the life of the community keeps moving
at an even tempo, however much one may dislike the act. Take another case of
town where there is communal tension. A man stabs a member of the other
community. This is an act of a very different sort. Its implications are deeper
and it affects the even tempo of life and public order is jeopardized because
the repercussions of the act embrace large sections of the community and incite
them to make further breaches of law and order and to subvert the public order.
An act by itself is not determinant of its own gravity. In its quality it may
not differ from another but in its potentiality it may be very different."
In the case of Pushkar Mukherjee v. State of West Bengal, AIR 1970 (SC) 852 it
has been observed by this Court:- "The contravention of any law always
affects order but before it can be said to affect public order, it must affect
the community or the public at large. In this connection we must draw a line of
demarcation between serious and aggravated forms of disorder which directly
affect the community or injure the public interest and the relatively minor
breaches of peace of a purely local significance which primarily injure
specific individuals and only in a secondary sense public interest. A mere
disturbance of law and order leading to disorder is thus not necessarily sufficient
for action under the Preventive Detention Act but a disturbance which will
affect public order comes within the scope of the Act. A District Magistrate is
therefore entitled to take action under Section 3(1) of the Act to prevent
subversion of public order but not in aid of maintenance of law and order under
ordinary circumstances." 866 In the case of Ashok Kumar v. Delhi
Administration,  2 SCC 403 to which one of us was a party, this Court
while dealing with the distinction between "Public order" and
"law and order" observed that:
true distinction between the areas of 'Public order' and 'law and order' lies
not in the nature or quality of the act, but in the degree and extent of its
reach upon society. The distinction between the two concepts-of 'law and order'
and 'public order' is a fine one but this does not mean that there can be no
overlapping. Acts similar in nature but committed in different contexts and
circumstances might cause different reactions. In one case it might affect
specific individuals only and therefore touch the problem of law and order. The
act by itself therefore is not determinant of its own gravity. 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."
Considering all these decisions we have held in the case of Gulab Mehra v.
State of U.P. & Ors., 4 JT 1987(3) 559 (judgment of this case was
pronounced on September 15, 1987) that whether an act relates to law and order
or to public order depends upon the effect of the act on the life of the
community or in other words the reach and effect and potentiality of the act if
so put as to disturb or dislocate the even tempo of the life of the community,
it will be an act which will affect public order.
the instant case, the criminal acts referred in the ground No. 1 are to the
effect that on 4th June, 1985 at about 11 P.M. some persons informed the
complainant that his brother has been shot by some persons and when complainant
reached the spot he found his brother Vishnu Narain Awasthi Iying in the pool
of blood and he had already died. Crime case No. 109 of 1985 under Section 302 I.P.C.
was registered at Ghazipur Police Station. This incident is confined to
individual persons and it is private crime as distinct from public crime. It
does not in any way affect the even tempo of the life of the community nor does
it affect the peace and tranquility of people of that particular locality where
the crime has been committed. So far as the second crime referred to in ground
No. 2 is concerned, it is to the effect that the complainant went to Lucknow
Jail along with his son, Ram Kumar and son-in-law, Nand Kishore to see an
accused in the District Jail.
They could not meet the accused. Ram Kumar and Nand Kishore proceeded towards
home in one rickshaw while the complainant was coming by another rickshaw. When
they reached a little distance from the Jail near the residence of the Jail
Superintendent at about 1.45 p.m. the detenus Rajiv Hazra and Kamal Kishore
Saini along with another one Anandi Sukhla said to be the accomplice of one Ram
Gopal, come on a scooter, stopped it and challenge Ram Kumar and Nand Kishore
and the complainant. They fired at them. The complainant, Ram Kumar and Nand
Kishore ran helter and skelter. The accused chased Ram Kumar and fired twice or
thrice and in consequence of it Ram Kumar fell dead on the spot and Nand Kishore
and the rickshaw-puller sustained injuries. On these basis crime case No. 222
of 1985 under Section 302/307 I.P.C. was registered on 13th June, 1985. This
firing was made in a public street during the day time. This incident does
affect public order as its reach and impact is to disturb public tranquility
and it affects the even tempo of the life of the people in the locality where
the incident is alleged to have occurred. Therefore, the finding of the High
Court with regard to this incident that it did not disturb in any way the
public order is not legal and valid.
regards the incident referred to in ground No. 3, that is, the complaint
regarding the firing by Kamal Kishore Saini, the detenu on Vijay Pratap Singh,
an under-trial prisoner, in the court compound while he was being taken back
from the court by the complainant and other policemen on duty, undoubtedly
affects public order inasmuch as the firing of shot in the court compound
created panic and terror in the minds of persons present there and thus it
affects the even tempo of the life of the community in that place. This
incident certainly affects public order and not merely law and order inasmuch
as the reach, effect and potentiality of the act purports to disturb the even
tempo of the life of the community i.e. the people of that area.
impugned order of detention was clamped on 28th November, 1985 and the period
of one year as provided in Section 13 of the National Security Act has also
we have already upheld the finding of the High Court that the order of
detention is illegal and bad for non-supply of vital documents to the detenus
to enable them to make an effective representation against the grounds of
detention and as such their right to make an effective representation as
contemplated under Article 22(5) of the Constitution of India has been
infringed rendering the impugned order as illegal and bad. Furthermore, the
non- production of relevant materials i.e. the statement of the under-trial
prisoners in their application in the court that 868 the detenus had been
falsely implicated in the crime case No. 450 of 1985 under section 307;34
I.P.C. as mentioned in ground No. 3 and also the statement to that effect in
the bail petition and the police report thereon, before the detaining authority
for his consideration before passing the order of detention, renders the order
of detention invalid and illegal.
the reason aforesaid we dismiss the appeal S.L. Appeal dismissed.