Subhash Bhandari & ANR Vs.
District Magistrate, Lucknow & Ors [1987] INSC 309 (3 November 1987)
RAY, B.C. (J) RAY, B.C. (J) SEN,
A.P. (J)
CITATION: 1988 AIR 74 1988 SCR
(1) 773 1987 SCC (4) 685 JT 1987 (4) 277 1987 SCALE (2)937
CITATOR INFO : RF 1990 SC 220 (7)
RF 1992 SC 979 (12)
ACT:
National Security Act, 1980: Section 3-Detention- Grounds of detention-Subjective
satisfaction of the detaining authority-Solitary criminal act-Whether and when
can be taken into consideration for making detention order.
HEADNOTE:
% The appellants were contractors
for the supply of ballast to PWD. They were detained under section 3(2) of the National Security
Act, 1980. It was stated in the grounds of detention
that on account of business rivalry, appellants and their companions attacked
the complainant with fire arms and hand grenades with intent to kill him, FIR
was lodged by the complainant, a case was registered against them under section
147, 149, 307 I.P.C. and section 6 of the Explosives Act, and a charge sheet
put up against the appellants, and since they had applied for bail, and if
released there was a possibility that they will again start activities causing
breach of public order, it was necessary to detain them in order to prevent
them from so acting.
The detention orders were
approved by the State Government under section 3(4) of the Act, and the
representations made by the appellants having been rejected they were directed
to be detained for a period of 12 months.
Challenging their detention, the
appellants filed writ petitions before the High Court contending that the
alleged assault on the complainant affected only an individual and such a
solitary act could not be considered to be an act prejudicial to the
maintenance of public order.
The High Court, dismissing the
writ petitions, held that the assault was to teach a lesson to the complainant
and serve as warning to prospective tenders who may not dare to submit their
tenders and that the impact and reach of the act went beyond the individual and
affected the community of contractors who take contracts for executing the
public works.
Allowing the appeals to this
Court, 774 ^
HELD: 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. 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
different. [778C-D] A solitary act of omission or commission can be taken into
consideration for being subjectively satisfied, by the detaining authority to
pass an Order of detention if the reach, effect and potentiality of the act is
such that it disturbs public tranquility by creating terror and panic in the
society or a considerable number of the people in a specified locality where
the act is alleged to have been committed. It is the degree and extent of the
reach of the act upon the society which is vital for considering the question
whether a man has committed only a breach of law and order or has acted in a
manner likely to cause disturbance to public order. [779A-C] In the instant
case, the alleged act of assault by fire arms is confined to the complainant
and not to others. It is an act infringing law and order and the reach and
effect of the act is not so extensive as to affect considerable members of the
society. In other words, this act does not disturb public tranquility, nor does
it create any terror or panic in the minds of the people of the locality nor
does it affect in any manner the even tempo of the life of the community. This
criminal act emanates from business rivalry between the detenus and the
complainant. Therefore, such an act cannot be the basis for subjective
satisfaction of the detaining authority to pass an order of detention on the
ground that the impugned act purports to affect public order i.e. the even
tempo of the life of the community, which is the sole basis for clamping the
order of detention.
Moreover, no injury was caused to
the person of the complainant, by the appellants nor any damage was caused to
the car though hand grenade was alleged to have been thrown on the car. No mark
has been caused to the car also. [778E- H] Gulab Mehra v. State of U. P. &
Ors., 4 JT 1987 3 SC 559, applied.
Criminal Appellate Jurisdiction: Criminal
Appeal No.
558 and 559 of 1985.
From the Judgment and order dated
14.2.85 of the Allahabad High Court in W.P. No. 5805 and 5806 of 1985.
775 Mohan Pandey for the
Appellants.
Yogeshwar Prasad and Dalveer
Bhandari for the Respondents.
The Judgment of the Court was
delivered by B.C. RAY, J. These two appeals by special leave are against the
order passed on February 14, 1985 by the High Court of Allahabad dismissing the
writ petition No. 5806 of 1984 and writ petition No. 5805 of 1984 as well as
writ petition No. 309 of 1985 whereby the order of detention passed against the
appellants on October 1, and October 20, 1984 respectively under section 3(2)
of the National Security Act, 1980,
was upheld as legal and valid.
The copy of the order of
detention as well as the grounds of detention and the first information report
on the basis of which the detention order was made, were served on the
appellants at the time of their detention. The grounds of detention are as
follows:- "On 25.9.1984, Shri Surya Kumar, son of Shri Vishwa Pal,
resident of 33, Babuganj, P.S. Hasanganj, District Lucknow, lodged a report at
P.S. Hazratganj, Lucknow that on 15.9.1984 there was a tender for the supply of
ballast in P.W.D. in which tenders had been submitted by him in K.P. Singh's
name. You keep share with K.P. Singh. On account of your and K.P. Singh's
terror no other person submits any tender against you people for which reason
you people obtain tenders at rates of your choice. If any other person submits
his tender you and K.P. Singh terrorise him. On account of the rates of his
tender being lower on 15.9.1984, the tender of the complainant was accepted in
one group and in the remaining groups the tenders of K.P. Singh etc. were
accepted. For this reason you and K.P. Singh bore a grudge against the
complainant.
On 25.9.1984 at about 3.45 P.M.
when Surya Kumar was going, in connection with his tender, in his Ambassador
Car No. USS-7418, accompanied by his brother-in-law, opposite to the National
Highway Khand, he saw some contractors. On reaching near them the complainant
had just started talking to them, when suddenly in two cars, you with a pistol,
Phool Chand with a revolver, Jaleel with a revolver, Ashok with Desi katta,
Ashok Sonkar and Sarrif 776 with hand grenade and Shankar Dey with a gun along
with three other persons came and with intent to kill the complainant fired at
the complainant, threw hand grenades which fell on the car of the complainant.
Consequently, there was a commotion.
Traffic was obstructed and public
tranquility was disturbed. The complainant immediately saving his life took
flight in his car. On the above information by the complainant a case FIR No.
1034 was registered at police station, Hazratganj against you and your other
companions under Section 147, 148, 149, 307 I.P.C. and Section 6 of Explosives
Act and after investigation a charge- sheet No. 279 has been put up against you
for the said offence.
I have also been put up against
you for the said offence.
I have also come to know that on
your behalf an application for grant of bail has been moved in a competent
court, therefore, in case you come out on bail from the jail you will again
start activities causing breach of public order on the above said grounds, I
have been satisfied that there is possibility of your acting in a manner
prejudicial to the maintenance of public order and in order to prevent you from
so acting, it is necessary to detain you." The said order of detention was
duly approved by the State Government under section 3(4) of the National Security Act. The appellants made representation against
the grounds of detention. The representations were rejected by the Government
and the same were communicated to the appellants by the Joint Secretary,
Vigilance & Home Department, Government of U.P. On November 26, 1984, the
Secretary, Vigilance & Home Department, Government of U.P. informed the
appellants that the Government after considering the report of the Advisory
Board had confirmed the order of detention and directed that the appellants be
detained for a period of 12 months with effect from October 1, 1984 and October
20, 1984 respectively.
Aggrieved by this order of
detention the appellants moved applications under Article 226 of the
Constitution of India for quashing of the order of detention made by the
respondent No. 1 and for setting 777 them free. These were registered as writ
petition No. 5806 of 1984 and writ petition No. 5805 of 1984. Another detenu
who was detained on identical grounds also filed writ petition No. 309 of 1985
before the High Court.
The main contention advanced on
behalf of the appellants before the High Court was that on the basis of facts
alleged, at the most it could be said that the matter related to the
maintenance of law and order. It was not a matter relating to the disturbance
of public order. The assault on Surya Kumar can only be on account of an
ill-will arising out of business rivalry. It had been submitted that it affects
only an individual and the society or community were not affected by the
alleged act of omission on the part of the appellants. It therefore raised no
problem of public order. It had been further contended that a solitary act can
not be considered to be an act prejudiced to the maintenance of public order.
The High Court of Allahabad after
hearing the parties and on a consideration of the decisions cited before it
found that whether an act creates a mere law and order problem or affects the
even tempo of the life of the community, it is to be seen what is the extent of
the impact of the act in question upon the society as a whole; whether the
effect is restricted to an individual or a few individuals alone or it creates
a sense of insecurity, danger and apprehension in the minds of the people in
general apart from those who are the victims of the incident; whether the act
or acts disturb the even tempo of life of the society or a section of society;
whether the act leads to disturbance of public order or only law and order.
The High Court further found that
in the context the act committed tends to teach a lesson to the complainant and
to act as a warning to prospective tenders in future who may not dare to avail
of the opportunity to submit their tenders against that of the appellants. It
was also found that the impact and reach of the act in question goes beyond the
individual and affects the community of contractors who take contracts for
executing the public works. The Court further held that the order of detention
made by the detaining authority is legal and valid and the writ petitions were
dismissed.
Undoubtedly, on the basis of the
FIR lodged by Surya Kumar a case under Section 147/148/149/307 I.P.C. and under
Section 5 of the Explosives Act has been registered as crime No. 1034 and the
said case is pending for decision before the criminal court.
The main question which falls for
decision is whether the act 778 referred to in the grounds of detention is
directed against certain individuals creating a law and order problem or the
reach and potentiality of the act is so deep as to disturb the society to the
extent of causing a general disturbance of public tranquility.
It has now been well settled by
several decisions of this Court (the latest one being Gulab Mehra v. State of
U.P. & Ors., 4 JT 1987(3) SC 559 judgment in which case was pronounced by
us on September 15, 1987) that 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 or it affects public
order. It has also been observed by this court that 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. Therefore it is the impact, reach and
potentiality of the act which in certain circumstances affects the even tempo
of life of the community and thereby public order is jeopardized. Such an
individual act can be taken into consideration by the detaining authority while
passing an order of detention against the person alleged to have committed the
act.
In the instant case the alleged
act of assault by fire arms is confined to the complainant Surya Kumar and not
to others. It is an act infringing law and order and the reach and effect of
the act is not so extensive as to affect considerable, members of the society.
In other words, this act does not disturb public tranquility nor does it create
any terror or panic in the minds of the people of the locality nor does it
affect in any manner the even tempo of the life of the community. This criminal
act emanates from business rivalry between the detenus and the complainant.
Therefore such an act can not be
the basis for subjective satisfaction of the detaining authority to pass an
order of detention on the ground that the impugned act purports to affect
public order i.e. the even tempo of the life of the community which is the sole
basis for clamping the order of detention. Moreover, no injury was caused to
the person of the complainant, Surya Kumar by the appellants nor any damage was
caused to the car though hand grenade was alleged to have been thrown on the
car. No mark has been caused to the car also. It is relevant to mention in this
connection that the appellants were released on bail by this Court after duly
considering the facts and 779 circumstances of the case in July, 1985. The
period of one year has also expired. We have already held hereinbefore that a
solitary act of omission or commission can be taken into consideration for being
subjectively satisfied, by the detaining authority to pass an order of
detention if the reach, effect and potentiality of the act is such that it
disturbs public tranquility by creating terror and panic in the society or a
considerable number of the people in a specified locality where the act is
alleged to have been committed. Thus it is the degree and extent of the reach
of the act upon the society which is vital for considering the question whether
a man has committed only a breach of law and order or has acted in a manner
likely to cause disturbance to public order.
It is pertinent to note in this
connection that the Criminal Appeal Nos. 826 and 827 of 1985 arising out of the
same incident and identical grounds of detention, filed by Ashok Arora and
Ashok Kumar Sonkar have been allowed by this Hon'ble Court by its order dated
November 29, 1985 and the appellants were directed to be set at liberty
forthwith.
For the reasons aforesaid, we
allow the appeals without any order as to costs.
N.P.V. Appeals allowed.
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