KANU BISWAS versus STATE OF WEST BENGAL

KANU BISWAS ·v.

STATE OF WEST BENGAL May 3, 1972

[J. M. SHELAT AND H. R. KHANNA, JJ.)

Maintenance of Internal se,·urity Adt (26 of 1971), S. 3-Maintenancc 'IOj ptthtic order,' scope of,

The petition·.;:r and hb assocj~tes attacked · .a hushand and wit!; with dpell .lmive; in the ....- third .. class · co !'J1larttncnt · of !_llnniiig traio w robbed them of valuable property by putting them ,nt'fear of death 'OR ·l)lle occasion, and on another occasion, attack!W police party oo &be plllitforin of railway station wit~ bombs, daJger~. knives and iron rods and exploded bombs with view to kill the police party. Tt·" petitioner was. deta:n:d hv un order under s. 3 of the Maintenan~ of Internal Security Act. 1971 with view to preventing him from actin2 in 11ny ltl1lnner prejudicial to t~e maintenance of public order, and tlr.! wownds of detention were that the two incidencts created terror aM panic among passenger; and disturbed public order.

Tr.r! petitioner challenged the order of detention in this Court.-

Dismissing the petition.

HELD : Beth the incidents referred to in the order affect~d public order and not rt~erelv law and order. [550 E-FJ

The question whether <t man only committ·~d breach of law and order or has act-ed in manner likely to cause disturbance of the public order, is question -of dcgr·:!c and tl'!e extent of the reach of the act upon the society. The test to be adopt.cd in determinin~ whett.er an act affects law and order or public order is : Does it lead to. distur· bance of the current of life of the community so as to amount to disturbance of the Public or~r· or does it aff.ect merely an individual leaving the tranquillity of the society undisturbed ? When two paS9!n-gers are robbed at the point of knives while travelling in third class compartment of -a running train the act affects not only the passen-gers who ar•.! deprived of their valuables but also the other· passengers who are watching in ft~a'r as helpless spectators. Likewise, . the attack against the police pM'ty on the platform of railway station by explod-ing bombs is bound .to create panic and confusion among the passen-gers at the railway station. Consequently, there is bound ·to be terror and panic amongst the travelling pu!>lic. Therefore, th:: acts in ques-tion, in the very nature of things, would adversely affect the even tempo of liti! of the community and cause general disturbance of · public tranquillity. [550 A-Fl

Tapan Kumar Mukherjee and ors. v. State of We.r~ Btngal, A.I.R. 1972 S.C. 840. followed.

Dr. RG.m Ma11ohar Lohia v. State of Bihar, [1966] 1 S.C.R. 70.9, .Arun Ghosh v. State ·Of We'l•t Bengal, [1970] 3 S.C.R. 288, Nagendra Nath Mondal'v . State of West Bengal, [19721 1 S.C.C. 498. Nand/al Roy @ Nonda Dulal Roy @ Pagla v. State of West Bengal, W.P. No. 15 of 1972, decid~ on March 11, 1972. Sudhir Kumar Saha v. Com-missioner of Police Calcutta and Anr., [19701 3 S.C.R. 360 a·nd S. K . Kader v. Sta:e of West Bef!gal, W.P. 35 of 1967 ~cided on May 2. 1972, referred to.

IA~m BtSWAS "·· STATB (Kir•~tra, 1.)

O..to~NAL lURl'SDICT~oN : Wtit PetitiOh No. 46 'Of J 972.

S. K. BaSK~', for the petition.er.

Pradyot Kumar Chakravarty and G. 's. Chattuju, for the tespondent.

The Judgment of the Court was delivered by

K~ 1. This is petition through jail under article 32 of the Constitution for issuing writ of habeas cor:iws by Kanu Biswas, who has been ordered by the District Magistrate 24-.Parganas to be detained under seption 3 of the Maintenance of Internal ,Security Act, 1971 (A~t 26 of 1971) "with view to preventing him from acting in any manner prejudicial to the maintenance of public order."

The order of detention was made by the District Magistrate on November 13, 1971. The petitioner was arrested in pursuance 0 of the detention order on November 14, 1971 and was· served the same day with the order as well as the grounds of detention to-. gether with vernacular translation thereof.' On November 18, 1971 the District Magistrate sent r~port to the State Government about the passing of the detention order along with the grounds of detention and other necessary particulars. The State Government considered the matter and approved the detention order on Nov-E ember 24, 1971, Necessary 'report was also sent on that day by the State Government to the Central Government. On Decem~ ber 13, 1971 the State Government placed the case of the. peti-tioner before the Advisory Board. In the meanwhile, on Decem-ber 12, 1971 the State Government received representation of the petitioner. The representation was considered by the State Government and was rejected on January 11, 1972. The repre-sentation was thereafter forwarded to the Advisory Board. The Board, after considering the material placed before it, including the petitioner's representation, and after hearing the petitioner in person, sent its report to the State Government on January 14, 1972. Opinion was expressed by the Board that there was suffi-G cient cause for the detention of the petitioner. On February 2, 1972 the State Government confumed the order for the detention ()f the petitioner. Communication about the confirmation of the order was thereafter sent to the petitioner.

Affidavit of Shri. B. Mukhopadhya, District Magistrate of 24~ Parganas, who passed the impu~ned order, has been filed in oppo-sition to the petition. Mr. Bagga has argued the case amict.s ctrrin~ on he.ha1( nf th petitioner, while the State has been reprc-'Sented by Mr. Chakravarti.

[1973] 1 s.c.R.

It has. been arg\}ed on behalf of the petitioner that the particular acts on account of which the order for the detention of ,the p~ti­tioner has been made were not germane to the maintenance of p1.1blic order. and, as such, the order for his detention could not be validly made for preventing him from acting in manner prejudi-cial to the maintenance of public or.der. In tl)is respect we find that according to the grounds of detention, the order for .the peti-tioner's detention was made on the ground that he had been acting in a.mann.er prejudicial to the maintenance of public order as evi-denced by the particulars given below; taken separately or collec-tively' : .

"That on 26-9-71 at about 18.30 hours while Baidya-·nath Bandopadhya of Champapukur, P.S. Basirhat, District 24-Parganas along with his wife were travelling in 3rd class compartment of Up Basirhat local train from Barasat, you along with your associates attacked him and his wife with open knives between Champa-pukur R/s and Sasirhat R/S and robbed them of Wrist Watch, Gold Ornaments, Cash valued at Rs. 725/- by putting them in fear of deat3. By your such activities you created terror and panic among the travelJing pas-sengers and public order was disturbed thereby.

On 4-11-71 at about 21.40 hours, you and your associates armed with bombs, daggers, knives and iroo rods etc. attacked police on the p1atfonn at Beliaghata railway station with view to take their lives and to inti-mida~e the public you charged two bombs which. explod-ed with terrible sound endangering the on-duty police.

Your such action was so violent that it created panic and confusion among th~. passengers there. then. You have thus acted in manner prejudicial to the mainte-nance of public order." ·

It would appear from the above that the petitioner and his asso-ciates attacked husband and wife with open. knives in the third class compartment of running train and robbed them of valuable property, including wrist watch~ gold ornaments and cash by put· ting them in fear of death. The grounds of detention f_urther show that the above act of the petitioner and his associates created terror and panic among the travelling passengers and thereby disturbed public order. The second incident which took place at 9.40 p.m. on November 4, 1971 related to the attack by the petitioner and his associates on police party on the ·platform of _Beltaghata railway station with view to kill them. The peti-t!oner and his associates are stated to have been then anned with bombs, daggers, knives and iron rods and they exploded two bombs

KANU BISWAS v. STATE (Khanna, J.}

with terrible sound. It is further stated that the above zt of the-petitioner and his associates created panic and comusioo among the passengers and thus disturbed public order. p:am ane: of the: above two incidents of September 26, 1971 and November4, 1971,. in our opinion, affected public order and not merely law and order .. .

The distinction between the ~oricept of public order and that 8 [' . ]of Jaw and order has been adverted to by this Court in riuniber· cf cases. In th~case of Dr. Ram Manohar Lohia v. State of BiharC), Hida~atullah J. (as he then was) said that any contra-· vention of law always affected order, but before it could be said to affect public order, it must affect the community at large. He considered three concepts, law and order, public order and the-e security of the State, and observed that to appreciate the scope and extent of each one of them, one should 'imagine . the 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. In the subsequent case of Arun Ghosh v. State of' West Bengal(2), the Court dealt with the matter in the following words:

"Public order is the even tempo of the life of the· community taking the country as whole or even spe-· cified locality., .Disturbance of public order is to be dis-tinguished from acts. directed against individuals which: do not disturb· the society to the exte.nt of causing ~eneral disturbance of public tranquility. It is the-degree of disturbance and its effect upon the life of the-community in locality which detennines whether tJte-, disturbance amounts only to breach of law and ()rder. Take for instance, man stabs another. People may qe· shocked and even .disturbed, but the life of the commu-nity 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 member of' the other community. This is an act of 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 y_uality it may not differ from another but in its poten-tiality it may be ve:y different."

(2) [1970] 3 S.C.R. 288.

(t) [1966] 1 s.c.R. 709.

[1973] 1 s c. a.

sso _ St!PR'E'ME COURT. lt'EPORTS

tioll whell\er rnan has only. commirre·d bteach ·Thd qn:r or has .acted in rtlMHret hlc'ety ·to cause dislu ~ law J. : th~rpublic ~er, ~cordittg to ttre dicttun laid down in thera~ce ase is quest-rort of 4egf'ee and the extent of the reach of th ve J; ~ the society. PUbl!c order is what t~e French call .. ;rdct ~blique" and is somethmg more than ordu1ary maintenanc er faw and order. The test to be ~dopted in det_ennining Wheth!r ~~ , act affects law and order o~ publtc order, as latd down in the abo 8 <Jase, is : Does it lead to dtsturbanc~ of the current of life of ~: ! .community so as to amou~t t? .a dtsturb~nce of the public order 'Or does it affect merely an n~dlVldual leavmg the tranquility of th :society undil>turbed ?

The principle enunciated above has been followed by this Court in the case of Nagendra Nath Monda/ v. State of West Ben. ;ga[(l) and Nand/a/ Roy @ Nonda Dulal Roy @ Pagla v. State of West Bengal (WP No. 15 of 1972, decided on March ll, 1972.) In the light of what has been observed abov~. we have no doubt 1hat each one of tte incidents of September 26, 1971 and No,·cm-ber 4, 1971 was prejudicial to the m&intenanc.-e of public order. 1 .When two passengers are robbed at the point of knife while tra--velling in third class compartment of running train, the act of the miscreants affects not only the passengers who are deprived .. ·~ -of whole thing in fear as helpless spectators. their valuables but a~o the other passengers There who is bound watch to th~ be • ·consequent terror and panic amongst the travelling public. Like-wi~e. attack. directed ayainst police party on the platfor~ of ' railwa~ s~uon by exploding bombs is bound to create pante and _confust~n a~ong the passengers at the railway station. The acts tn q~cstton tn the very nature of thinas would adversely affect the even tempo of life of the community "and causl! ger.erll distur· bance of public tranquility.

Reference has been made on behalf of the petitioner to the r ~ase of Sudhir Kumar Saha v. Commissioner of Police, Calcutta & mttte vanous acts . · Anr ([2 ]) : Th pe on t.1 t. toner tilree occasions. · m that case along with ·ot On the first occasionh ers · om 'bo ~:~c~e~hthe people of locality wlth knife and by hurling bOt of em. 9° the other two occasions he attacked the pe<>P · ~3other locahty by hurling bombs at them It was held that the ~~\ ~nts were not interlihkcd aud could n~t have prejudiced tM n enance of public order. bch~f 0~r,~~~~t the above solitary decision, Mr. Chakrdvarti 1 ~d down In the /espondent-State has referred to the principl¢ :u) :J.s well us in th: ~! Artin Ghosh v. State of West Bengal (suff:st ~ Bt'ngal (supra) Ase of Nagendra Nath Monda/ v. State of. the , • part frorn tb~ two C09e6, we fiiid that ln 0) l!YI~JI S.C.R. 4,18. . )60. (2} [1970) )S.C.It·cas.e of Tapan Kumar Mukherjee arzd Ors. v. State of West Ben-gafC) ·the allegation against the detenu was that he along with other associates committed robbery in respect of fan and watch at the point of dagger in running train, and this created distur-bance of public order. Contention was raised that the act of the detenu and his associates related only to law and order and not to public order. This content,ion was repelled and it was observed that the innocent passengers would be terror stricken by the acts of the detenu and his associates. Another incident which was referred to in that case related to throwing of bombs on shop. The bombs exploded arrd as result of the panic so caused in the locality,. all the shops and houses around the place were closed. The above ground was held by this Court to be germane to the disturbance of public order. In case of Nandlal Roy (supra), the ground of detention recited that the detenu and his associates while committing theft of rice from wagon threw bombs upon the members of the Railway Protection Force. One member of the Railway Protection Force was injured. The explosion of the bombs was stated to have created panic in the station area and the adjoining locality. It was hel<l that t,he activity of the petition~r created not merely question of the maintenance of la.w and order but created disturbance which would be comprehended by the eJI!pression "order publique". The detention order was conse-quently upheld. lh S. K. Kedar v. State of West Bengal,•(WP West Bengal,•(WP (WP No. 35 of of 1972'

lh S. K. Kedar v. State of West Bengal,•(WP West Bengal,•(WP (WP No. 35 of of 1972' decided on May 2, 1972) the allegation against. the Qetenu W<!.S. that be and his assoc4\tes while removing railway ma~fi~l charged bombs and ballast upon R.P·.F. party ~s· consequence of whicb· the members of R.P.F. party fired in self-defence. The activity· of the petiti:>ner was considered to be prejudicial to the mainte-F nance of public order anti. tM detention orqer 'was upheld.

The facts of the pres~nt case are much more akin to those of Tapan Kumar Mukherjee and Ors. v. State of West Bengal' (supra). The past actjvities of the p,etitioner as revealed in the· grounds of detention, jn our opiniof1.! showed ~ propensity· to dis-turb public order. The authority cdncerned, in the circumstances, could have validly ma4e the order for the detention of the peti·. tioner to prevent him, from acting in manner prejudidal to the: maintenance of publio ordct\

The petition consequently fails and is dismissed.

P~tition dismissed.

(1) A.T.R. 1972 S.C. 840.