K.K. Saravana Babu Vs.
State of Tamil Nadu & ANR. [2008] INSC 1406 (22 August 2008)
Judgment
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1332 OF 2008
(Arising out of SLP (Crl) No.4386 of 2008) K.K. Saravana Babu .. Appellant
(Detenu) Versus State of Tamil Nadu & Another .. Respondents
Dalveer Bhandari, J.
1.
Leave
granted.
2.
This
appeal is directed against the judgment of the High Court of Madras passed in
Habeas Corpus Petition No.1677 of 2007 on 29th April, 2008.
3.
The
detenu has challenged the detention order under Section 3(1) of the Tamil Nadu
Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Forest
Offenders, Goondas, Immoral Traffic Offenders, Sand Offenders, Slum Grabbers
and Video Pirates Act, 1982 (Tamil Nadu Act 14 of 1982) passed vide Order No.
360/07 dated 28.8.2007.
4.
The
detenu is involved in a land grabbing case registered at St. Thomas Mount
Central Crime Branch Cr. No. 70/2006 under sections 420, 465, 468 read with 471
and 120(B) IPC and the said case is pending trial before the court.
Subsequently another
case was registered against the detenu during 2007 in Central Crime Branch,
Chennai City X Crime No. 364/2007 under sections 420, 465, 466, 467, 468 read
with 471 and 120(B) IPC for the offence of land grabbing and his activities are
said to have been adverse to the interest of the land owners and prospective
buyers. The modus operandi of the detenu in both the cases is land grabbing in
a clandestine manner. The detaining authority had considered the said aspect
and came to the conclusion that in case the 3 detenu is let out on bail he
would again indulge in similar type of offences and, therefore, it is
imperative to detain him. The order of detention came to be passed keeping in
mind the welfare of public who are owning lands as well as the prospective
buyers.
5.
It
may be pertinent to mention that a number of bail applications of the detenu
were dismissed and he was already in jail on 28.08.2007 when the detention
order was served on him.
6.
The
detenu made a representation on 14.9.2007 to the Secretary and the Advisory
Board seeking revocation of the detention order, which was rejected on
14.10.2007.
Thereafter, the
detenu filed a Habeas Corpus petition seeking quashing of the detention order.
The said petition was dismissed on 29.04.2008. The detenu aggrieved by the said
order preferred a special leave petition before this court. In pursuance to the
notice issued by this court, a counter affidavit has been filed by the
respondent.
7.
Mr.
Huzefa Ahmadi, learned counsel appearing for the detenu submitted that the
detention order passed against the detenu is illegal and unsustainable in law.
The detention order is based on aforementioned two criminal cases.
According to the
detenu, all allegations incorporated in both the criminal cases if taken to be
true even then the detenu cannot be said to have indulged in activities
prejudicial to the public order.
8.
It
was contended by the detenu that the grounds of detention are based on cases
pertaining to law and order problem. The distinction between `law and order'
and `public order' has been very clearly defined in a catena of judgments of
this court. The clear legal position which emerges from the number of judgments
of this court clearly leads to the definite conclusion that if allegations are
taken to be correct even then the activities of the detenu do not fall in the
category of cases affecting the public order.
9.
Mr.
Ahmadi also submitted that the High Court has seriously erred in not properly appreciating
the distinction 5 between "law and order" and "public
order" and rejected the habeas corpus petition preferred by the detenu.
10.
Mr.
Ahmadi further contended that three bail applications preferred by the detenu
were rejected and no bail application was pending when the detention order was
passed, therefore, the apprehension expressed by the detaining authority that
there was imminent possibility of detenu likely to be released on bail was
merely ipse dixit of the detaining authority without any material on record.
11.
Mr.
Ahmadi submitted that the detention order ex facie is arbitrary, illegal, mala
fide and passed with an oblique motive.
He also contended
that the State because of wrongful detention has deprived the detenu of his
fundamental rights enshrined under Articles 21 and 22 of the Constitution of
India.
12.
Mr.
T.L.V. Iyer, learned senior counsel appearing for the State of Tamil Nadu
submitted that the detaining authority after arriving at a subjective
satisfaction clamped the above order of detention on the basis of an appraisal
of the material placed by the sponsoring authority.
13.
Mr.
Iyer further submitted that the detention order does not constitute an
infringement of the fundamental rights guaranteed to the detenu under Articles
19, 21 and 22(5) of the Constitution of India. Mr. Iyer contended that the
detenu is a slum grabber and involved in crime No. 70/2006 under sections 420,
465, 468 read with 471 and 120(B) IPC and crime No. 364/2007 under sections
420, 465, 466, 467, 468 read with 471 and 120(B) IPC and that, keeping in mind
the seriousness of the offence of land grabbing, the detaining authority was
justified in passing the detention order.
14.
We
have heard the learned counsel for the parties at length and carefully gone
through the record of the case.
15.
This
court on several occasions examined the concepts of "law and order"
and "public Order". Immediately after the Constitution came into
force, a Constitution Bench of this court in Brij Bhushan & Another v. The
State of Delhi (1950) SCR 605 dealt with a case pertaining to public order.
The court observed
that "public order" may well be paraphrased in the context as
"public tranquillity".
16.
Another
celebrated Constitution Bench judgment of this court is in the case of Romesh
Thappar v. The State of Madras (1950) SCR 594. In this case, Romesh Thappar, a
printer, publisher and editor of weekly journal in English called Cross Roads
printed and published in Bombay was detained under the Madras Maintenance of
Public Order Act, 1949. The detention order was challenged directly in the
Supreme Court of India by filing a writ petition under Article 32 of the
Constitution. The allegation was that the detenu circulated documents to
disturb the public tranquillity and to create disturbance of public order and
tranquillity.
17.
The
court observed:- "... `Public order' is an expression of wide connotation
and signifies that state of tranquillity which prevails among the members of a
political society as a result of internal regulations enforced by the Government
which they have established ....
... it must be taken
that `public safety' is used as a part of the wider concept of public order
..... "
18.
The
distinction between "public order" and "law and order" has
been carefully defined in a Constitution Bench judgment of this court in Dr.
Ram Manohar Lohia v. State of Bihar & Others (1966) 1 SCR 709. In this
judgment, Hidayatullah, J. by giving various illustrations clearly defined the
"public order" and "law and order". Relevant portion of the
judgment reads thus:
"....Does the
expression "public order" take in every kind of disorder or only
some? The answer to this serves to distinguish "public order" from
"law and order" because the latter undoubtedly takes in all of them.
Public order if disturbed, must lead to public disorder. Every breach of the
peace does not lead to public disorder. When two drunkards quarrel and fight
there is disorder but not public disorder. They can be dealt with under the
powers to maintain law and order but cannot be detained on the ground that they
were disturbing public order. Suppose that the two fighters were of rival
communities and one of them tried to raise communal passions. The problem is
still one of law and order but it raises the apprehension of public disorder. Other
examples can be imagined. 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. A mere disturbance of law and order leading to disorder is
thus not necessarily sufficient for action under the Defence of India Act but
disturbances which subvert the public order are. A District Magistrate is
entitled to take action under Rule 30(l)(b) to prevent subversion of public
order but not in aid of maintenance of law and order under ordinary
circumstances.
9 It will thus
appear that just as "public order" in the rulings of this Court
(earlier cited) was said to comprehend disorders of less gravity than those
affecting "security of State", "law and order" also
comprehends disorders of less gravity than those affecting "public
order". One has to imagine three concentric circles. Law and order
represents the largest circle within which is the next circle representing
public order and the smallest circle represents security of State. It is then
easy to see that an act may affect law and order but not public order just as
an act may affect public order but not security of the State...."
19.
In
Arun Ghosh v. State of West Bengal (1970) 1 SCC 98, Hidayatullah, J. again had
an occasion to deal with the question of "public order" and "law
and order". In this judgment, by giving various illustrations, very
serious effort has been made to explain the basic distinction between
"public order" and "law and order". The relevant portion
reads as under:
"...Public order
was said to embrace more of the community than law and order. 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 tranquillity. It is the degree of disturbance and its affect 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 10
another. People 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 a 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 the 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. Take the case of assault on girls. A guest at a hotel
may kiss or make advances to half a dozen chamber maids. He may annoy them and
also the management but he does not cause disturbance of public order. He may
even have a fracas with the friends of one of the girls but even then it would
be a case of breach of law and order only. Take another case of a man who
molests women in lonely places. As a result of his activities girls going to
colleges and schools are in constant danger and fear. Women going for their
ordinary business are afraid of being waylaid and assaulted.
The activity of this
man in its essential quality is not different from the act of the other man but
in its potentiality and in its affect upon the public tranquillity there is a
vast difference. The act of the man who molests the girls in lonely places
causes a disturbance in the even tempo of living which is the first requirement
of public order. He disturbs the society and the community. His act makes all
the women apprehensive of their honour and he can be said to be causing
disturbance of public order and not merely committing individual actions which
may be taken note of by the criminal prosecution agencies. It means therefore
that the question whether a man has only committed a breach of law and order or
has acted in a manner likely to cause a disturbance of the public order is a
question of 11 degree and the extent of the reach of the act upon the
society..."
20.
The
concept of `public order' and `law and order' has been dealt with in the case
of Pushkar Mukherjee & Others v. The State of West Bengal, AIR 1970 SC 852.
In this case, the Court had relied on the important work of Dr. Allen on `Legal
Duties' and spelled out the distinction between `public' and `private' crimes
in the realm of jurisprudence. In considering the material elements of crime,
the historic tests which each community applies are intrinsic wrongfulness and
social expediency which are the two most important factors which have led to
the designation of certain conduct as criminal. Dr. Allen has distinguished
`public' and `private' crimes in the sense that some offences primarily injure
specific persons and only secondarily the public interest, while others
directly injure the public interest and affect individuals only remotely. There
is a broad distinction along these lines, but differences naturally arise in
the application of any such test.
21.
This
court in Babul Mitra alias Anil Mitra v. State of West Bengal & Others
(1973) 1 SCC 393 had an occasion to deal with the question of "public
order" and "law and order".
The court observed
that the true distinction between the areas of "law and order" and
"public Order" is one of degree and extent of the reach of the act in
question upon society. The court pointed out that the act by itself is not
determinant of its own gravity. In its quality it may not differ but in its
potentiality it may be very different.
22.
In
Dipak Bose alias Naripada v. State of West Bengal (1973) 4 SCC 43, a
three-Judge Bench of this court explained the distinction between "law and
order" and "public order" by giving illustrations. Relevant
portion reads as under:
"..Every assault
in a public place like a public road and terminating in the death of a victim
is likely to cause horror and even panic and terror in those who are the
spectators. But that does not mean that all of such incidents do necessarily
cause disturbance or dislocation of the community life of the localities in
which they are committed. There is nothing in the two incidents set out in the
grounds in the present case to suggest that either of them was of that kind and
gravity which would jeopardise the maintenance of public order. No doubt bombs
were said to have been carried by those who are 13 alleged to have committed
the two acts stated in the grounds. Possibly that was done to terrify the
respective victims and prevent them from offering resistance. But it is not
alleged in the grounds that they were exploded to cause terror in the locality
so that those living there would be prevented from following their usual
avocations of life. The two incidents alleged against the petitioner, thus,
pertained to specific individuals, and therefore, related to and fell within
the area of law and order.
In respect of such
acts the drastic provisions of the Act are not contemplated to be resorted to
and the ordinary provisions of our penal laws would be sufficient to cope with
them."
23.
In
Kuso Sah v. The State of Bihar & Others (1974) 1 SCC 185, this court had
also considered the issue of "public order". The court observed thus:
"These acts may
raise problems of law and order but we find it impossible to see their impact
on public order. The two concepts have well defined contours, it being well established
that stray and unorganised crimes of theft and assault are not matters of
public order since they do not tend to affect the even flow of public life.
Infractions of law are bound in some measure to lead to disorder but every
infraction of law does not necessarily result in public disorder...."
24.
This
court in another important case Ashok Kumar v. Delhi Administration &
Others (1982) 2 SCC 403 clearly 14 spelled out a distinction between `law and
order' and `public order'. In this case, the court observed as under:-
"13. The 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, while in another it might affect
public order. The act by itself therefore is not detrimental 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...."
25.
It
has to be seen whether the detenu's activity had any impact on the local
community or to put it in the words of Hidayatullah, J., had the act of the
detenu disturbed the even tempo of the life of the community of that specified
locality?
26.
Mr.
Ahmadi, learned counsel for the detenu submitted that the detenu was in jail at
the time when the detention order was passed. His three bail applications were
rejected.
Since there was no
bail application pending, therefore, there was no imminent possibility of his
being released by the court.
The detenu's coming
out on bail was merely ipse dixit of the 15 detaining authority unsupported by
any material whatsoever.
There was no cogent
material before the detaining authority on the basis of which the detaining
authority could be satisfied that the detenu was likely to be released on bail.
In absence of any such material on record, the mere ipse dixit of the detaining
authority is not sufficient to sustain the order of detention. The learned
counsel for the detenu also placed reliance on Ramesh Yadav v. District
Magistrate, Etah & Others (1985) 4 SCC 232. In this case the court observed
as under:- "The order of detention was passed as the detaining authority
was apprehensive that in case the detenu was released on bail he would again
carry on his criminal activities in the area. If the apprehension of the
detaining authority was true, the bail application had to be opposed and in
case bail was granted, challenge against that order in the higher forum had to
be raised. Merely on the ground that an accused in detention as an under-trial
prisoner was likely to get bail an order of detention under the National
Security Act should not ordinarily be passed. We are inclined to agree with
counsel for the petitioner that the order of detention in the circumstances is
not sustainable and is contrary to the well settled principles indicated by
this Court in a series of cases relating to preventive detention.
The impugned order,
therefore, has to be quashed."
27.
Mr.
Ahmadi, the learned counsel further placed reliance on Binod Singh v. District
Magistrate, Dhanbad, Bihar & Others (1986) 4 SCC 416. In this case, the
court observed as follows:- "7. It is well settled in our constitutional
framework that the power of directing preventive detention given to the
appropriate authorities must be exercised in exceptional cases as contemplated
by the various provisions of the different statutes dealing with preventive
detention and should be used with great deal of circumspection. There must be
awareness of the facts necessitating preventive custody of a person for social
defence. If a man is in custody and there is no imminent possibility of his
being released, the power of preventive detention should not be exercised. In
the instant case when the actual order of detention was served upon the detenu,
the detenu was in jail. There is no indication that this factor or the question
that the said detenu might be released or that there was such a possibility of
his release, was taken into consideration by the detaining authority properly
and seriously before the service of the order. A bald statement is merely an
ipse dixit of the officer. If there were cogent materials for thinking that the
detenu might be released then these should have been made apparent. Eternal
vigilance on the part of the authority charged with both law and order and
public order is the price which the democracy in this country extracts from the
public officials in order to protect the fundamental freedoms of our citizens.
In the affidavits on behalf of the detaining authority though there are
indications that transfer of the detenu from one prison to another was
considered but the need to serve the detention order while he was in custody
was not properly considered by the detaining authority in the light of the
relevant factors. At least the records of the case do not indicate that. If
that is the position, then however disreputable the antecedents of a person
might have been, without consideration of all the aforesaid relevant factors,
the detenu could not have been put into preventive custody. Therefore, though
the order of preventive detention when it was passed was not invalid and on relevant
considerations, the service of the order was not on proper consideration."
28.
In
Commissioner of Police & Others v. C. Anita (Smt.) (2004) 7 SCC 467, this
court again examined the issue of "public order" and "law and
order" and observed thus:
"7. ....The
crucial issue is whether the activities of the detenu were prejudicial to
public order. While the expression "law and order" is wider in scope
inasmuch as contravention of law always affects order, "public order"
has a narrower ambit, and public order could be affected by only such
contravention which affects the community or the public at large. Public order
is the even tempo of life of the community taking the country as a whole or
even a specified locality. The distinction between the areas of "law and
order" and "public order" is one of the degree and extent of the
reach of the act in question on society. It is the potentiality of the act to
disturb the even tempo of life of the community which makes it prejudicial to
the maintenance of the public order. If a contravention in its effect is
confined only to a few individuals directly involved as distinct from a wide
spectrum of the public, it could raise problem of law and order only. It is the
length, magnitude and intensity of the terror wave unleashed by a particular
eruption of disorder that helps to distinguish it as an act affecting
"public order" from that concerning "law and order". The
question to ask is:
"Does it lead to
disturbance of the current life of the community so as to amount to a disturbance
of the public order or does it affect merely an individual leaving the
tranquillity of the society undisturbed?"
This question has to
be faced in every case on its facts."
29.
In
R. Kalavathi v. State of Tamil Nadu (2006) 6 SCC 14, this court while dealing
with the case affecting the public 18 order observed that even a single act
which has the propensity of affecting the even tempo of life and public
tranquillity would be sufficient for detention.
30.
Mr.
Ahmadi, the learned counsel for the detenu placed reliance on T.V. Sravanan
alias S.A.R. Prasana Venkatachaariar Chaturvedi v. State through Secretary
& Another (2006) 2 SCC 664. In this case the court observed that when the
detenu was already in custody, there was no imminent possibility of his being
released. In that event it would not be appropriate to pass order of detention
against him. This proposition of law also seems to be well-settled, but in view
of the fact that the detenu succeeded in his threshold submission that the
detention order passed against him was arbitrary, illegal and unsustainable
because even assuming the allegation in both the cases relied on by the
detaining authority are correct then also no case of disturbance of public
order is made out.
31.
We
have tried to deal with the important cases dealing with the question of
"law and order" and "public order" right 19 from the case
of Romesh Thappar (supra) to the latest case of R. Kalavathi (supra). This
court has been consistent in its approach while deciding the distinction between
`law and order' and `public order'. According to the crystallized legal
position, cases affecting the public order are those which have great
potentiality to disturb peace and tranquillity of a particular locality or in
the words of Hidayatullah, J. disturb the even tempo of the life of the
community of that specified locality.
32.
In
the instant case, in the grounds of detention, two cases have been enumerated,
one of which pertains to the offences punishable under sections 420, 465, 468
read with 471 and 120(B) IPC in Crime No.70 of 2006. Another case pertains to
Crime No.364 of 2007 registered under sections 420, 465, 466, 467, 468 read
with 471 and 120(B) IPC. The facts of these cases have been carefully examined
and even assuming the allegations of these cases as true, even then by no
stretch of imagination, the offences committed by the detenu can be called
prejudicial to public order. The detenu 20 can be dealt with under the
ordinary criminal law if it becomes imperative.
33.
In
this view of the matter, the detention order passed against the detenu is
illegal, unsustainable and liable to be quashed and we accordingly do so. Since
we are quashing the detention order on the threshold submission of the detenu,
therefore, it is not necessary to examine other submissions advanced by the
detenu. The detention order is accordingly quashed. The detenu be set at
liberty forthwith, if not required in any other case. The appeal is accordingly
allowed and disposed of.
.................................J.
(Dalveer Bhandari)
.................................J.(Harjit
Singh Bedi)
New
Delhi;
August
22, 2008.
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