NAGENDRA NATH MONDAL versus THE STATE OF WEST BENGAL

NAGENDRA NAm MONDAL

mE STATE OF WEST BENGAL

January 13, 1972

[1. M. SHl!LAT AND H. R. KHANNA, JJ.]

West Beng4l Prevention of Violent A.ct/vlll., A.ct, 1910--Sectlon 3(2)(b)-A.cts prejudicial to the maintenonce of public. order-Tests for determining.

A.ct, 1910--Sectlon

Practice and procedure-Habeas Corpus-Grounds not urged In th• petition, if can be urged.

The petitioner was detained under the West Bengal Prevention of Violent Activities Act, 1970. The grounds for detention staled that he, along with others, on two occasions, entered the premises of eduealiotial institutions, set fire to books, registers, furniture etc., placed bombs in the building and threatened the staff with death and thereby committed "mil-chief" disturbin~ "public order" within the meaning of S. 3(2)(b) of the Act. The petitioner's representation was received by the State Government on May 27, 1971. On June 7, 1971 the petitioner's case was placed be-fore the Advisory Board. The State Govel'nment considered the represen-tation and rejected it by its order dated July 1, 1971. On July 9, 1971 the Board reported that there was in its opinion sufficient cause for the P'~titioner's detention.

The petitioner sent his habeas corpus petition from jail in which he denied the allegations made ag<linst him. At the hearing of the petition, the counsel for the petitioner raised two additional grounds (i) that the grounds furnished to thll detenu did not constitute breach of public order, and therefore, the detention was illegal; and (li) that the delay in consl-d-M'ing the petitioner's representation was inordinate, iand ther.efore, was in violation of Artic!!e 22(5) of Con,titution.

Dismissing the petition,

HELD : (i) According to th;: Report of the Advisory Board, there was sufficient material justifying the order and in the absence of any definite material, it is not possible to. accept the vague allegations by the petitioner. [78 El

(ii) Ordinarily grounds which do not find any place in the petition would not be permitted to be raised before this Court. But since this was habeas corpus petition and, furtherm~re, made by the petitioner from jail such grounds could be allowed to be raised. [78 Fl

(iii) The true distinction between the area of Jaw and order and public order is ode of degree of extent of the breach of the act in question upon society. Any 'contravention of law always affects order, but before it could be said to affect 'public order' it must affect the community at large. Acts similar in nature, but committed in different contexts and clrcum· stances might affect the problem of Jaw and order and in another, the breach of public order. Thll anaolgy of crimes against individuals and crimes against the public, though usdful to limited extent, would not always be apt. [79 li-80 Bl .

Lohia v. State [1966] I S.C.R, 709, Pushkar Mukhtrl., v. West Bengal f,19691 2 S.C.R. 635: Arun Gho.h v. West Bengal [!9701 3 S.Gl.R. 288 and S. K. Sah• v. Commissioner of Police, Calcutta [19701 3 S.C.R. '360 r~erred to.

(iv) The distinction drawn by Clause (b) of S. 3(2) is between caus· ing fire to building of an educational institution simp/iciler arid CQ!Illllitting mischief of the same nature but such that it disturbs or is likely to disturb the even tempo of the community in that particular locality. The object of the acts complained of. as vandalism, to disturb .pie working of the institution by burning its records and to create scare so that neitl:\er the teaching staff, nor the pupils would ,dare attend it for prose-cution of studies. In these circumstances, the alleged acts did not merely constitute mischief under S. 425 of the Penal Code, but constituted such mischief which disturbed or was likely to disturb public order and, there-fore, fell within the definition in Sectio~ 3(2)(b). [81 G, HJ

(v) In the circumstances of the present case, it oannot be held that the delay w .. so inordinate as to affect the validity of the detention. No doubt, the delay in deciding the representation was 34 days, but most of it was due to the fact that the representation and the record remained w;th the Board. In given case, Government may not be able to reach proper conclusion within sho'rt time especially, where another authority has passed ·the questioned order. {83 Pl !ayanarayan Sukul v. West Ben!!al fl9701 3 S.C.R. and Khalrul Haque v. West Bengal, writ petition aecided on September 10, 1969, referred to.

ORIGINAL JURISDICTION: Writ Petition No. ·308 of 1971.

Under Article 32 of the Constitution of India for writ in the nature of habeas corpus.

S. K. Dhingra for the petitioner.

P. K. Chatterjee, G. S. Chatterjee, for the respondent.

The Judgment of the Court was delivered by

Shelat, J. On May 7, 1971, the District Magistrate, Jalpai· guri, in exetcise of power conferred upon him by s. 3 ( 3) of the West Bengal (Prevention of Violent Activities) Act, 1970 (Pre-'sident's Act 19 of 1970) passed an order under sub-sec. 1 of that section directing the detenti0n of the petitioner. The order recited that the District Magistrate was satisfied that it ha<! be· come necessary to detain the petitioner ''with view to prevent· ing him from acting in any manner prejudicial to the maintenance of public order". On that very day, the District Magistrate reported to the State Government the fact of his having passed the said order. In pursuance of that order, the petitioner was arrested on May 9, 1971 and was detained in jail. The peti-tioner was furnished, as required by the Act, with the grounds ff for his detention at the time when his arrest was effected. On May 17. 1971, the State Government approved the said order. On the same day the State Government reported the fa9t of the

passing of the said order and its approval to the Central Govern-ment. The petitioner made his representation which he was entitled to make by v~e of s. S(i). That was received by the State Government on May 27, 1971. On June 7, 1971, that is within 30 days from the date of detention, the petitioner's case was placed before the Advisory Board constitnted under s. 9 of the Act. The State Government considered that representation, but rejected it by its order dated July 1, 1971. On July 9, 1971, the Board reported that there was, in its opinion, sufficient cause for the petitioner's detention. Thereupon, the State Government, by its order dated July 29, 1971, confirmed the detention order under s. 12.

The grounds for detention served on the petitioner stated that the. order was passed in view of his acting "in manner prejudi· cial to the maintenance of public order as evidenced by the parti-culars given below". These particulars were :

"1. On 1-12-70 after midnight you along with other entered into the Headmaster's room of Moynaguri of Moynaguri Moynaguri Higher Secondary School, Police Station Moynaguri, after breaking open the doors and set fire to books, registers, typewriter, furnitnre etc. causing heavy loss to the school. After completing the operation you placed bomb in the school premises endangering the life of the teaching staff and the stndents. 2. On 5-4-1971 at about 10.30 hours you along with others forcibly entered into Moynaguri Higher Secondary School, Police Station Moynaguri and set fire to the office room and the Headmaster's room of the school with the help of kerosene oil causing damage to books, almirahs and other articles. While committing the arson in the above school you also threatened the teaching staff and the -duftry of the school with death if they would dare to give you any resistasnce or divulge your name to any authority holding you responsible for the arson:·other entered into the Headmaster's room of Moynaguri of Moynaguri Moynaguri Higher Secondary School, Police Station Moynaguri, after breaking open the doors and set fire to books, registers, typewriter, furnitnre etc. causing heavy loss to the school. After completing the operation you placed bomb in the school premises endangering the life of the teaching staff and the stndents.

The grounds also informed the petitioner that he could make representation to the State Government, that his case would be put up before the· Board and that the Board would grant him personal hearing, if he so desired.

The case of the detenu, as stated in the petition, was that he was at first arrested on suspicion Oil April 23, 1971 in connectioo with G. R. Case No. 812 of 1971, but was released on bail as there was no evidence against him. There was another case also being G.R. 2639 of 1970 in connectioo with the incident

SUPllBME COUll T llllPOll TS

referred to in ground No. 1 sot out above. The detenu, however, was not arrested in that connection. The two G.R. Cases were started long before he was arrested on May 9, 1971 under the detention order dated May 7, 197 L He denied that he was connected or associated with the incidents mentioned Jn the said grounds, anJ said that the allegations made against him therein were false, baseless, motivated and vague, and that there was absolutely no material upon the basis of which the order of deten-tion could be made. He also alleged that some rival parties, who were in league with the police had falsely involved him in the incidents referred to in the grounds and got the District Magistrate to issue the said detention order. These allegations were denied in the counter-affidavit filed on behalf of the State Government, the assertion therein being that there was reliable material before the District Magistrate relating to the illegal and anti-social activities prejudicial to the maintenance of public order, and that it was after careful examination of that material that the impugned order was passed.

The allegations made by the petitioner were, in our view, vague and indefinite and not backed by any material or particu-lars, and therefore cannot be accepted. Besides, the detenu's case was placed before the Advisory Board together with his re-presentation and other relevant materials, and according to the report of the Board, there was sufficient ma,terial justifying the order. In the absence of any definite material before us, it is not possible to accept the extremely vague allegations made by the petitioner.

But Mr. Dinghra, who appeared amicus curiae for the peti-tioner, raised two additional grounds. Neither of them was, however, raised in the petition but since this was habeas corpus petition, and fuvthermore, made by the petitioner from jail, he was allowed to take them though ordinarily he would not have been permitted to do so as they did not find any place in the petition. The two additional grounds were ( 1) that the grounds fur-nished to the detenu did not constitute breach of public order, and therefore, the detention did not fall under sub-ss. ( 1) and (3) of s. 3; and (2) that although the representation made by the detenu was received by the Gov~rnment on May 27, . 1971, it was not considered and disposed of till July 1, 1971, that the delay in doing so was inordinate and was in violation of Art. 22(5) of the Constitution, rendering the impugned order invalid.

In regard to the .first contention, counsel urged that assuming that the allegations made in the grounds for detention were true, setting fire to an educational institution and destroying thereby its

records might constitute an offence under the Penal Code, but did not constitute disturbance or breach of public order, which alone could warrant detention order under the Act. In support of this proposition, counsel referred to some of the decisions of this Court.

The detention order, no doubt, mentioned that it was issued with view to prevent the detenu acting prejudicially to the maintenance of public order. The contention raised by counsel, however, involves the question whether the acts alleged against the detenu constituted breach of public order or were such as would be prejudicial to its maintenance. As to what is meant by the expression, 'public order', Hidayatullah, J., (as he then was) in Lohia v. State('), said that any contravention of law always affected order, but before it could be said to affect 'public order', it must affect the community or the public at large. He considered three concepts, viz., "law and order'', "public order" and "the security of the state" generally used in preventive deten-tion measures and suggested that to appreciate the scope and extent of each of them, one should imagine three concentric cir-D cles, the largest of them representing "law and order", the next representing "public order" and the smallest representing "the security of the state". An act might affect "law and order'', but not "public order", just as an aot might affect public order but not "the security of the state". Therefore, if the detention order were to use the expression "maintenance of Jaw and order", that would be widening the scope of the detaining authority, if the statute concerned confined that power in relation to acts prejudi-cial to "the maintenance of public order". similar distinction was also drawn in Pushkar Mukherjee v. West Benga/([2]), where Ramaswami, J., observed that ,the expression "public order" in s. 3 ( 1) of the Preventive Detention Act, 1950 did not take in every kind of infraction of law. An assault by one on another in house or even in public street might create disorder but not public disorder, for the latter was one which affected the com-munity or the public at large. Therefore, line of demarcation must be drawn between serious and aggravated forms of disorder which affect the community or injure the public interest and the relatively minor breaches of peace of purely local significance which primarily injure specific individuals and only in secon-dary sense public interest. mere disturbance of law and order leading to disorder was, thus, not necessarily sufficient for action ' under tho Preve.ntive Detention Act but disturbance which would affect public order fell within the. scope of the Act.

But in Arun Ghosh v. West Bengal('), it was pointed out that the true distinction between the areas of "law and order" and

(I) [1966) I S.C.R. 709.

(2) (19691 2 S.C.R. 635. 3 S.C.R. 288.

"public order" was one of degree and extent of the reach of the act in question upon society. Acts similar in nature, but com-mitted in different contexts and circumstances might cause diffe-rent reactions; in one case it might affect the problem of the breach of law and order, and in another the breach of public order. The analogy resorted to by Ramaswami, J., of crimes agai~t !ndividuals and crimes against the· public, though useful 8 to !Im1ted extent, would not always be apt. An assault by one individual upon another would affeot Jaw and order only and cause its breach. similar assault by member of one commu-nity upon leading individual of another community, though similar in quality, would differ in potentiality in the sense that it might cause reverberations which might affect the even tempo of the life of the community. As the Court pointed out, "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". At the same time, the power of detention having been permitted to the State under the Constitution as an exceptional power, its exercise had to be scrutinized with extreme care and could not be used as convenient substitute for the normal processes of the criminal law of the country. (cf. S. K. Saha v. Commissioner of Police, Calcutta(').]

These are all cases under the Preventive Detention Act, IV of 1950, which by s. 3 of it confers power of detention on speci-fied grounds which include acts prejudicial to the maintenance of public order. The present Act likewise confers such power with view to prevent person from acting in any manner pre-judicial to the security of the State or the maintenance of public order under its s. 3 (1). Though the Act does not define the expression "public order", it does define the expression "acting in any manner prejudicial to the security of the State or the main-tenance of public order". That expression under the definition inter alia means "committing mischief within the meaning of s. 425 of the Indian Penal Code, by fire or any explosive subs-tance on any property of Government or any local authority or any corporation owned or contr\)lled by Government or any Uni-versity or other educational institution, or on any public building where the commission of such mischief disturbs or is likely to disturb public order .... " The definition itself thus draws dis-tinction between mischief by fire or explosive substance upon property of one of the specified categories and such mischief upon any such properties which disturbs or is likely to disturb public order. The former, however reprehensible, would be taken care of by the Penal Code, and it is only in respect of the latter that the drastic power of detention without trial conferred by the first sub-section can be validly exercised. But to the extent that the

expression "public order" is not defined here also, decisions under Aot IV of 1950 delineating the sphere of "public order" from those of "maintenance of law and order" and "the security of the State'.' would still be of utility.

The acts alleged against the petitioner in the grounds for detention are acts which fall under s. 3(2)(b), in that, they cons-B titute mischief by fire and by explosive substance on property of an educational institution. But the question is whether these acts disturbed or were likely to disturb public order; in the words Of Hidayatullah, C.1., in Arun <Jhosh v. West Bengal('), disturb the even tempo of the life of the community of that specified loca-lity. The distinction drawn by cl. (b) of s. 3 (2) then is between causing fire, for instance, to building of an educational institu-tion simpliciter, and committing mischief of the same nature but such that it disturbs or is likely to disturb the even tempo of the community in that particular locality.

The grounds set out two acts alleged against the petitioner. The first, of December 1, 1970, was that the petitioner and some others trespassed after midnight into the Headmaster's room in the Moynaguri Higher Secondary School and set fire to books. registers, furniture etc., and then placed bomb in the school building thereby endangering the life of the teaching staff and the students attending the school. The second, of April 5, 1970, was that the petitioner along with some others again trespassed into the same school and set fire to parts of it and then threatened the members of its stall' with death if they offered resistance or dis-closed his name to any authority.

The target of arson, (assuming the allegations to be true which we have to assume) was an educational institution and particularly the registers and other papers maintained by it. The object obviously was vandalism, to disrupt its working by burning 1 its records and to create scare so that neither the teaching staff nor the pupils would dare attend it for prosecution of studies. The parents dare not henceforth send their wards for · fear that the school might be set on fire while they are in it. The bomb was manifestly placed in the premises for creating that scare. It could not have been intended for any other purpose after the records and furniture had been set on fire. In these circums-tances, the alleged acts did not merely constitute mischief under s. 425 of the Penal Code, but constituted such mischief which disturbed or was likely to disturb public order. The acts in question, no doubt, would be acts similar to those committed by perlOD. who resorts to arson, but in the circumstances were acts different in potentiality, and therefore, fell within the definition in s. 3(2)(b). The first argument urged on behalf of the peti· tionei' must, consequently, fail.

(I) [1970)3 S.C.R. 288.

The second argument related to the time taken by the State Government in deciding the reprerentation sent by the petitioner from jail. As aforesaid, it was received by Government on May 27, 1971, but was considered and rejected on July 1, 1971, that is to say. after lapse of 34 days. Like s. 7(i) of the Preventive Detention Act, IV of 1950, the present Act also provides by s. 8(1) that the detaining authority .shall provide to the detenu not later than five days from the date of detention the grounds on which tile detention order has been made and shall afford him the earliest opportunity of making representation against the order· to the State Government. In Ja,vanarayan Sukul v. West Bengal(') where also point as to undue delay in the light of Art. 22(5) of the Constitution and s. 7 of the Preventive Detention Act, lV of 1950 was raised, Ray, J., speaking for the Court, laid down four principles . These were :

1. that the appropriate authority is bound to give an opportunity to the detenu lei make represen~tion and to consider the representation as early as possible;

2. that such consideration of the representation is entirely independent of any action by the Advisory Board including consideration by it of the detenu's represen· tation;

3. that there should not be any delay in the matter of consideration, though no hard and fast rule can be laid down as regards the ttlne which can be taken in considering such representation;

4 •. that the appropirate government has to exercise its opinion and judgment on the representation indepen-dent of that of the Advisory Board.

(cf. Khair11l Haque v. West Bengal('), which was applied in this case and where the distinctive features of the functions of the Gov-ernment and the Board and their objects were discussed.) No doubt, Ray, J., at p. 232 of the report, said that the Government had to come to its decision on the representation before it seiit the detenu's case to the Bo!lfd. But, in that observation, he was not emphasising so much the point of time when the Government has to send the detenu's case including his representation to.the Board, but of the necessity of the Government considering and deciding the representation independently of and before the Boani'a deci-sion, point made in Khairul Haque's case([1]). The delay in J.ayClrtllrayan' s case ( [1]) was ol the month and twenty days, and was

(I) [1970] 3 S.C.R. 225.

(2) Writ Petkion No. 246 of 1969, deed. on September 10, 19611.

in the circumstances of that case held to be inordinate vitiating the detention .

The time gap between the receipt by Government of the ~­tioner's representation aiid .the date of its decision was o~ 34 ~ys. The question is whether that gap can be treated as inordinate delay going to the root of the validity of the detention or its con-tinuation thereafter. The counter-affidavit filed on behalf of the Government, no doubt, did not contain any explanation. But that was because it answered only the allegations in the petition filed by the petitioner from jail, which had in it only general allegations. such as the vagueness of the grounds of detention, mala {ides etc,. and did not raise specifically any point on this aspect at all. The point as to delay was for the first time taken in the course of argu· ments when the peition first came up for hearing before anothet Bench of this Court. At that time, counsel· for the State produced the records of the case and notings from the records were actually read out before the Court in the hearing of the petitioner's counsel. That fact is not disputed before us and so also the fact that those ICcords showed that on June 7. 1971 Government had sent tho files in connection with the petitioner's case and his representation to the Advisory Board. As soon as the representation was returned to it, Government considered it and rejected it but that was before the Board made its report and sent it to Government. But counsel urged that this face may ex1>lain the lapse of time from the dato that the records were sent and the date when they were returned, but not the delay between May 27, 1971 and June 7, 1971 during which Government could have arrived at its decision. That argu· ment has not m.uch force, because in given case Government may not be able to reach proper conclusion within short time, especially, in case where another authority, in this c'ase the District Magistrate, has passed the questioned order. It might have to make inquiries as to the situation in the locality, the nature of and the circumstances ia which detention was found necessarV. the previous history of the person detained etc. Therefore, it is difficult.to agree with counsel that Government should have reached· it.s ~onclusion during .the said j,eriod. No doubt, the delay in de-G c1dmg the representation was of 34 days, but part of it was due to . the fact that the representation and the record remained with the Board. In .these circumstances, it is difficult to say that there is iust and proper analoinr between this case and that of Khairur Haque('), or Jayanarayan([1 ]) or'lhat upon such analogy we should reach, the same conclusion which was reached in those cases. As held m Jayanarayan's caH([1]) there can be no liard and fast rut~ with regard to the time which Government can or should take,.

(I) W.P. No. 246 or 1969 deed. on Sept. 10, 1969.

.and that each case must be decided on i\is own facts. In the cir-A cumstances of the present case we are unable to hold that the delay was so inordinate as to affect the validity of the petitioner's deten-tion.

The petition fails and is dismissed.

Petition dismissed .