VIJAY NARAIN SINGH versus STATE OF BIHAR & ORS

VIJAY NARAIN SINGH

STATE OF BIHAR & ORS April 12, 1984 [O. CI!INNAPPA REDDY,, A.P. SEN AND VENKATARAMIAI!, JJ.]

. Bihar Control of Crimes Act 1981-Section 12 read .with section 2 (d). For preventive detention under section 12 authorities mu1t be ~atisfied that the.person to be detained is anti-social element as defined in section 2 (d).

Bihar Control ofC,'imes Act, 1981-Sectlon 2 (d)- Definition of 'antl· social element' -Interpretation of expression 'habitual/I in sub-clause (j), (Ii) and (iv)-M_eanlng of. ·

[titerpretatlon of statutes-Rule o~-Law of pre11entive detention must

be strictly construed.

Practice-When· ,,erson enlarged on bail by competent criminal court, great caution should be exercised in scrutinising validity of preventive detention order which is based on ihe 'Jery ~atne charge which is to be tried by cr[1]mlnal court.

· '.ff'ords and Phrases-Expression 'habitually'-Meaning ~!•

The petititiner, /\'ho Was facing Sessions trial for Offences under section 302 read with sections 120B, 386 and 5ll of the Indian Penal Code, \Vas allowed to be enlarged on bail by the l-Iigh Court. But before the retitloner was released, the District M;lgistrate passed an order on August 16, 1981 for detention 1983 under section of the petitioner, -12 (2) of in ordthe Bihar 0er to prevent Control him of Crimes. Act from acting · in any manner prejudicia'l to the maintenance of public order. The grounds of deteo\ion supplied to tbe petitioner related to the incidents which took place in 1975 and 1982 and als·o the incident which gave rise to the above-mentioned trial. The petitioner challenged the order· of detention bef\'re ihe High Court under Article 22() of the ContsitutiOn. The High Court dismissed the petition on technical ground. Hence this petition under Article. 32 of tho Constitution. The petitioner contended : (1) lhat the i1npugned order ot detention was void uiider Article 22 ($) of the Constitution as one o·r the grounds was too remote and not proxima.te in point of time and had therefore no rational connection {or the subjective satisfactiotl of the District Magistrate under section 12 (2) of the Act, ap<l (il ttiat the imp11gned order of detention was mala fide and consli·

toted ftagf.ant abuse of ~ower on the part of the District Magistrate as it was meant to subvert judicial proCess by trying to circumvent the order passed by the High Court .enlarging .th·e petitioner on bail.

II owing· the petition by majority,

HELD : (Per Ven~ataramiah and Chinnappa Reddy, JJ.)

The law of preventive detention is a. )lard law and therefore it !<.hould be strictly construedw Care should ~e taken that the· liberty of persqn is not jeopardised· unless his case falls squarely within the .four corners of the relevant law. The Ja_w of J:l'reventive d1:tention shOuld.not be used ' prosecution. merely ·to clip the wings It is not intended for the purpose of an accused who is -involved in criminal of0keeping man· under detention when _under ordi.Iiary criminal Jaw it may not ,be possible to resist the is.sue of orders of baiJ, unless the· 1naterial .available is si.ich as would satisfy the requiremelits of-the legal provisions authorising· such detention. When ,Person is_ enlarged on b::t.il by competent Criminal court, great caution sh_ould be exercised in scrutinising tlte validity of an. order or preventive detention which is based on the very same charge which is to be tried by the criminal court. [459C·D)S~tion 12 of the Bihar Control of Crimes Act, 1981 makes pro· vision for the detention of an anti· social elemei:J.t. The detaining autho-rity should, therefore, be satisfied that ·the person against whom an order is made under section 12" of the Act is an-.aati-social element as defined in section 2 (d) of the Act. The two sub-clauses of section 2 (d) which are relevant for the purposes of this case are Sub-clause {i) and sub.clause - (iv). Unde; sub-clause (i) person who either by himself or as melnber -of or leader of a. gang habitually comtrlits or attempt; to.commit or abets the commi.ssion of Offences punishable und~r Chapter XVI dealing· with . offences affecting the human body or Chapter XVII dealing with. offences against property, of the ladian Peria! Code is considered 'to be an anti .. social element. Under sub-clause (iv) person who has been habitually passing indecent remarks to, or teasing women or girls, i's an anti-social element; Io b'oth these sub.clauses, the wofd 'babitually..,_s used. The ·expression 'habitually' ri'1~aos 'IeSpeatedly' or 'persistently'. It implies ·thread of continuity stringing toiether similar repetitive acts. RepeatedJ persJstent and similar, but not isolated, individrial and dis-similar acts a·re necessary to justify an infereoi;;e of habit. It _connotes frequent commiS-sion of acts or omissions of the same kind referred. to in each of the said ~ub­~Iau'Ses or an aggregate of similar acts or on1issions. Whereas under sub-clause· (iii) :>r sub-clause (v) of section 2 (d) ·a. sing-10 act or omission referred to in tbe.m may be enough to treat the pCrson concerned as ai:J. ianti-social element', in the case of sub·ciause (i), sub~clause (ii) or sub-claUse {iv), there should be repetition of acts ur omissions of, the· s~me kind referred to in sub-clause_ (i), sub-clause (ii) or in sub-clause (iv) by the person concerned to tre_at him aS an 'anti-social.element,. This appears· to be clear from the use of the word 'habitually' separately in sub-clause (i), sub-clause (ii) and sub-clause (iv) of .-ection i (d) and not in sub-clauses (iii) and (v).-of section 2 (d). I~ the acts or omissions in question «r~ nqt qf the . s«111e ~ind or or even if ther are of the same llin.d wbeq

v. N •. SINGH v. BIHAR (Sen, J.)

they are committed with long interval of tin1e bel\veen them th~y cannot be treafed as habitual ones. [457B-458C]

lo th~ present case the District Magistrate has relied on three inci .. dents: to hold that the P.etitioner -is an anti·soclal element. They are:-... (o) that on April 15, 19T5 the petitioner alongwith his associates had .. gone to the shop of cloth dealer ·of Bhagalpur Town armed with an Unlicensed pist01 and had forcibiy demanded subscription at the point of gun and (iif ibat on June. 11i1s, ~82 the petitioner was found te.asing and mhbehaving with femal~s retu~ning from cinema ball. The third grouad is the. crtminal case now pending against the petitioner in the Sessions cOurt. The first incident is of 1he year 1975. It js not stated · hciw the criminal ca·~~ filed on the bc:sis of that ch_arge ead~d. ·The i:iex't ·incident relates to the yeaf J982." The detaining authority does not state how the criminal case filed in that connection terminated. rr they -have both ended in favour of the petitioner finding him clearly not guiltyJ they cannot certainly. constitute acts or omissions -habitually committed ·by the Petifioncr Moreover. the said t~o incidents are Of different kinds altogether. Whereas the first one may fall under sub-clause (i) of · section 2 (d) of the ActJ the second one falls under sub-clause Uv) thereof. They are, even if true, not repetitions of acts- or Omissions of the same kind. The third ground which is based on the pending Sessions case is no doubt of ·the nature of acts or onihsioris referred to in sub·clause (i) of secttion 2 (d) but_ the interval between the first ground which falls under this sub-cla'use and _this one is nearly sight years and cannot, therefore, make the petitioner .a habitual offender of the type falling under srib-clause (i) of section 2 (d). Therefore, it is not possible to hold tbat the ·petitioner can be called an tanti~social element• as defined by section 2 (d) of the Act. The order of detention impugned in this case therefore, could not .. ve been.passed under section 12 (2} of the Act which authorises the.detection of anti-social elements only. [458D·459D)

(Per Chinnappa Reddy J. _concurring)

I do not agree with the view of' my brother Sen J. tb'at 'those who are respcn,ib'e for the natioral sc·curi1y or for the maintenance of public order must be the- sole judges of· what' the nationa I security or public ·Order requires.' It is too perilous proposition. Our Constitution does vot g:ve carta·blanche to· any organ of the State to be the sole arbit61' in such matters. Preve.Diive detention is considered so iaea:cherous and such en anathema to civilized rhouglit and- democratic polity that - safe. guards against dndue exercise of the power to detain withOut trial,- have . been built into the Constitution itself and incorporate.d as Funnamental Rights. 'there are two sentinels, one at either end. The Legislature is required to make the law circumscribi ig the limits within which persons may be preventively detained :fnd providing for the safeguards prescrfbed· by the-Coristitution and the courts arc required to examine, when deman· ded, whether there has been any exces'sive detention, that 'is, whether the lin1its set by the Constitution and the legislature have been transgressed. Preventive detention is not beyond judicial scrutiny, While adequacy or sufficiency may not be ground. of chf'llenge, relevancy and ProximHy are

tertainly grounds of ·challenge. Nor is it for the court to put itself in the po~ition of the detaining authority and to satisfy itself that the un · tested facts reveal path of crime. [440E·441B] · I am of the view that the deCision in Kamalkar Prasad ·Chtiturvedi's case and the host of earlier cases earlier cases are not disliQguishable. not disliQguishable. disliQguishable. This Court Court has always taken the view 1bat re·moteness in point of time niakes groun<1 of detention irreleyant. [441D] · •

· I am of the view that the deCision in Kamalkar Prasad ·Chtiturvedi's case and the host of earlier cases earlier cases are not disliQguishable. not disliQguishable. disliQguishable. This Court Court

Shibban Lal Saksena v. State ofUttar Pradeih ·& Ors., [19S4] SCR 418 ·and Kamlakar Prasad Chaturvedi v. State of Matbzya Pradesh & Anr., [1983] 4 S,CC 433 referred to •

(Per Sen J, dissenting) ·

On the facts set out in ·the grounds "Of detention the petitioner answers the description of an anti·socia1 element as define.a in s. 2' (d) of 'the Act. [444F]

~ The wrird rhabitually, connotes some degree of frequency and c~nti• nuity .. 'Habitually' requires contiouance and perinanericQ of sonie tendency. something that was develOped into propensity, that is, preseq,t from day-to·day. person is hab-it'ual crimi'nal who by fo~ce of habit or inward disposition, inherent or latent in h_im,. has grown accustomed to Jead 1ife of criine. It is the force of. habit inherent or latent in an individual· with criminal instinct, with criminal disposition of mind, tµat ma.kes. him dangerous to the society ii:i general. Io simple !an_guage the word 'habitually' means . 'by force uf habit'. [444G·445E] .

Stroud's Judicial.Dictionary, 4th end .. vol. 2, p. 1204 and Shorter Oxford English Dictionary; vol. !. p. 910<referred to.

It is not neces,ary that because of the_ word 'habitual1y' in sub-cl. (i), sub·cL (H) or sub-cl. (iv), there ~hould be repetition of Samei class of acts or omissions referred to in sub-c1. (i);sub-cJ •. Cii) o"r in sub~cl •. (iv) by the person concerned before ·he can be treated to be Sn aot.i-social element and detained bf the District Magistrate under s. 12 (2\ of the acts should be the sameAct.- ."It is not required that 0 or similar. There may be commission the .nature or chaiacter of the or .anti~social attempt to ·commit or abetment of diverse nature of facts Constituting offences under Chapter XVI or Chapter XVII o(the Indian Penal Code ... What has to be 'repetitive' are the anti~social acts. [447B-C]

,The operation of s. 12 (2) of the Act cannot be· confined against habitual criminals who have certain number of prior convictions for offences of the 'character' specified. The definition of 'anti-social elem1X1t' in s. 2 {d) of the Act nowhere requires that the.re should be number of prior <;Qpyii;\i<>ns of. person in ·respect of, offence~ of particular ty~e.

~- N. SING!{ v. B!l!AR (Sen, ·i.)

It is not·correct to say that merely because there was an· acquittal of person, the detaining authority c.1.nnot take the ac·t con1plained of leading to his trial into consideration. It may be that the trial of dangerous ·p_erson may end in an acquittal for paucity qf evidence due to unwillingness of witnesses to Come.forward and depose against him out of fright. If person with criminal teadeacies consistently or persistently or repeated'y commits or attempts to commit or abets the commission of Offences un_der Chapter XVI aealing with offences affecting human body or Chapter XVI dealing with offences against property of t4e Indian Penal Code, there is no reason why he should not be consid_ered tO be an 'anti .. social element'.• [446G-H]Those who are responsible for the national ~ecurity or for the main·· tenance of public order must be the sole judges ·of what the national security or-pµblic order requires. Sufficiency of the . grounds is not for the court but for the detaining authority for the formation of his sub-jective satisfaction that the detention of person is necessary with view to preventing him ·rrom acting in any m.anner prejudicial to the mainte-nance of public order. The sufficiency of ·the grouods upon which the Subjective "sitisfaction of the detaining authority i;;; based, provided they have rational probat"i~. value and are not extraneous · to the scOpe or pllrpose of the legish,ltive provision, cannot be challenged in the court accept on the ground of mctla fides. It is not "rOr the court to examine whether the grounds upon which the detention order is- based are good or bild nor can·it attempt to assess in what manner and to what extent each Or the grounds ·operated on the inind of the appropriate luthority and contributed to the creation of .the satisfacti-on. on thci basis of which the detention order was based. [447D-4'49E)

Kes/w; Ta/pade v. The Kini·Emperor, [1943] FCR 88, refered to

Shibban Lal Saksena v. State of Urtar Pradesh & Ors., [1954] SCR 318 a,nd Kamlakat _Prasad Chaturvedi v. State of Madhya Pradesh & Anr., [1983] 4 sec 443, distinguished • •

The past conduct or the antecedent history of person can pf"operly be taken into account in making order of detention. It is usual1y from prior events showing tendencies or inclinations of ""man that an inference can be drawn whether he is likely, in the future, to act in manner prejudicial to the maintenance of public order. [451B]

Merely because there is pending prosecut Ion_ and thC( accuse'd is in jail, that is no impediment for his Peteatio~ if the detaining authority is satisfied that his· being enlarged on bail would be prejudicial to the main-tenance of public order. [451D]

Fitrat Raza Khan v. State of U. P. & Ors., (1982] 2 SCC 449, Alijan Mian v. District Magistrate, Dhtinbad & Ors.,. [1983] 3 SCC 301 and Ral· suddln Babu Tamchi v. State of [}. P. & Anr., AIR [1984] SC 46, referred· to.

. . SUPREME COUR'!' REPORTS •

[l984] 3 S.C. R ..

(Per Sen & Chinnappa Reddy; JJ;)

It has· always been the view of this ·court that the .detention of individuals without trial for any length of time, however short, is wholly inconsistent with_ th·e basii;; .ideas·of our .. Govef.Dment and the gravity of the evil to the community resulting from anti.social a-ctivities c,an never. furnish an adequate reasJn for inVading the personal liberty of the citizen B· excep~ in acc.ordance with'the procedure establish.e~ by law .... [t41CJ

ORIGINAL JURISDICTION Writ Petition (Criminal) No. 47 of 1984.

(Under article 32 of the Con1titution of India}

R.K. Garg and U.S. Parsad for the Appellant,

S.N. Jha for the Respondent.

The following Judgements were delivered

CHINNAPPA REDDY, J. I entirely agree with my brother . Venkataramiah, J. both on the. question of interpretation of the pro· visiOns of the Bihar Control of Crimes Act, 1981 and ·on the question of the effect of the order of grant of bail in the criminal proceeding arising out of the incident constituting one of the grounds of deten- · tion. ·It is 1eally unnecessary for me to add anything to what has been said by Venkataramish, J., but my brother Sen, J. has taken ·· different view and out of respect to him, I propose to add few Jines·· I am unable to agree with my brother Sen, J. on several.of the view expressed by him i11 his dissent. In particular, I do not agree with the. view that 'those, who are responsible for the national security or · for the maintenance of p~blic order must be the sole judges of what · the national security or public order. requires.' It is too perilous •proposition: Our' Constitutio11 does not give carta blanche. to any organ ofthe State to be the sole arbiter in such matters. Preventive detention is considered .so. treacherous and such an anathem:a to civilized· thought and democratic p~lity that safe~uards against undue exercise of the power to detain without trial, h~ve bee_n built into the Constitution. itself and incorporated as Fundamental Rights. There are two se~tinels, one at either end. The legislature is rquir· · ed to make the law circumscribing the limit.s within which persons may be preventively detained ·and providing for the safeguards prescribed by the Co.nstitution and the courts are rec{Uired to exa-. mine, when demanded, whether there has been any excessive deten· tion, that is, whether the limits ·set by the Constitution and the legislature have been transgressed. Preventive detention is notbe·

v. N. SING!! v. Bll!AR. (Sen, J.)

yond judicial scrutiny. while adequacy or sufficiency may not be ground of challeug:, relevancy and proximity are certainly grounds of chaUenge. Nor is it for the court to pnt itself in the position of the det3ining authority and, to satisfy itself that the untested facts reveal path of crime .. I agree with my brother Sen, J. when he says, "It has ·always been the view of this Court that the detention · of individuals without trials for any length 9f time, however, short, is wholly inconsistent with the basic ideas of our Goverment and the gravity of the evil to the community resnlting from anfrsocial activities can never furnish an adequate reason for invading the personal liberty of the citizen except in accordance with t4e pro-cedure established by la'Y"· · ·

I am of the view that the decision in Kam!akar Pra.oad Chaturvedi's([1]> case and the host of· earlier cases are not distinguish-able. This Court has always taken the view that remotenessi!l point ·of time makes ground of.detention irrelevant. In Fitrat Raza Khanis([2]l c~se, the two incidents were not s·eparated by any great length of time. On the other hand, they were bound by strong bond of infl~mmable communal violence.

I agree with all thllt has been said. . by . my brother Venkataramiah, J. and concur with him nnd direct the detenu to be set at liberty forthwith.

S_EN, J. I have had the benefit of reading the opinion prepared by my learned brother Venkataramiah, J. and it is my misfortune that I cannot subscribe to the views expressed by my learned brethren. I would like to give my reasons for tile dissent.

Although the petitioner claims to be student leader and has taken his degree in Master of Arts in Sociology in the year 1982 and at present is student of Law in the Bhagalpur Law College, and asserts that at one !lme, in the year · 1980:81, he was elected as the Pressident of the Post-Graduate Department of the Bhagalpur University and also selected as a·Senator, the facts emerging from the grounds of detention clearly show that he has taken recourse to life of crime. The petitioner applies for writ -0f habeas . corpus for quashing an order· of detention dated August 16, 1983

sUPREMa COURT RHPORTS

passed by· the District Maghtrate, Bhagalpur on being satisfied 0that his detention was necessary with view to preventing him 'from acting ·in ·any manner prejudicial. to the maint01unc1 of public ord,er'. The facts have been set out in t!ie'majority opinion and all that is necessary is to· mention the horrendous incident which is the direct and proximate cause of ihe impugned order of detention. •

It appears that there was gruesome murder of two young sons of Kashinath Bajoria, owner of Bajoria petrol pump of Bhagalpur, on April 20, 1983. In fhe coures of imestigation by the police ittranspired that they were kidnapped from the petrol pump on the earlier day i.e. on April 19, 1983 and the petitioner Vijay Narain Singh demanded ransom of Rs. 50,000 from the father of the victims, The demand for ransom ·having not been. fulfilled, the two boys we-re done to death . brutally and their dead bodies were thrown at place near M;ount Assis School and Zila Scho.ol and ~ere discovered the next morning. On~ the. basis of first information report case was registeJ'<<d a,t Bhagalpur Kotwali (Police Case No. 281 dated April 20, :1983) un" er ss. 364,. 302 and 201, all read withs. 34 ands. 120B of the Ind:al'IPenal Code, 1860 against the . petitioner Vijay Na;ain Singh, his brot~e.r Dhanonjoy Singh, one Bimlesh Mishra and two U!).known 11ccl1l>ed. The petitio.ner along with his co-accused.has. been co.mmitted to the Court of Sessions to stand his trial in Sessions Case No. 348 of · 1983 aud charges have been framed under s. 302 read with s. 34/l20B, 386 and 511 of the Indian Penal Code and tjie case • was set down for evidence on February 27, 198,4. learned Single Judg~ of tile Patna.High Court by his or\ier dat¢ August 9, 1983 appears to have directed that the. petitioner be, enlarged on bail of Rs. 10,000 with two sureties of the like, iunountto the satfsfaction of the ChiQf Judicial Magistrate, Bhagalpur. •The Districl Magistrate, Bhagalpur on being. satisfied that his deten-tion was necessary witfi view to preventing him from acting 'in any manner prejudicial to the maintenance of public order, passed the impugned order of detention on August 16, 1983 before the petitioner could be released on bail. Bu~.the petitioner moved a· petition in the Patna High Court for grant of writ of ~beas corpus while he was still in jail' challenging the.· impugned· order of detention. When the matter came up for hearing before the High Codrt ·on October 5, 1983, the leiirned Judges adverted to, the counter-affidavit filed on behalf of the State that the impug.ned order of ·detention was prepared in advance for. serv.ice on th.~ petitioner when ~e comes out .of jail on the strength of the bail

v. N. S\NGH v. BIHAR (Sen, i.)

order issued by the High Court but by mistake the three copies of the order. imtead of being. sent to the Disirict Magistrate's office for service were wrongly delivered at the Central Jail, Bhagalpur. The learned Judges ,accordingly .by their order of .ewn date dismissed the writ petition holding that they were satisfied· that the petitioner was not in detention under the impµ~ned detention order. They however observed that if and when the petitioner was served copy of the detention order and placed underaeten· tion in prison, he could fib fresh petition for writ of habeas corpus. In stead of moving the High Court, the petitioner has filed this petition under Art. 32 of the Constitution before this CoutJ. The order of detention is in two parts, the first of which lays factual basis for making the order on the ground that the petitioner is an anti'.social element. The .second part of the . impugned order is styled as grounds. But it would be seen· that the grounds mentioned therein are one and the same . viz. his detention was· necessary with view to preventing him 'from acting in any manner prejudicial to the maintenance of' public order'. ,,,.

At the hearing, learned couhsel for the petitioner advanced no submiss10n that the petitioner was not an 'anti-social element' within the meaning of s: 12 (21 o the Bihar Control of Crimes Act, 1981 but rested himself content by advancing two-fold submission, namely: (l) The impugned order of detention passed by the District Magistraie, Bhagalpur under s. 12(2) of the Act must be held to be void under Art. 22( 5). of the Constitution as one of the grounds was too remote and not proxil)late in point of time and had therefore no rattonal connection for the subjective satisfaction of the District Magistrates. 12(2) of the Act. He relied upon the principles laid down by this Court Shibban Lal Saksena v. State of Uttar Pradesh & Ors. (l} followed in serveal siibsequent cases, apd particularly on the majority decision in the . recent case of Kam/akar Prasad Chaturvedi v. State of Madhya . Pradesh & Anr(2 And The impugned order of detention was 'ma/a fide and constitutes flagrant abuse of power on the part of ' the District Magistrate as it is meant to subvert the judicial ' process by trying to ·circumvent the order p11ssed by the High Court enlarging the petitioner on bail. There is, in my opinion,. no substance in any of these contentions. but before. I deal with' them I must touch upon the question raised in the majority . opinion.

(I) {1954] S.C.R. 418 (2) [l 983] s.c.c. 443.

[1984) 3 s.c.P..

SUPREME COi.JJ\T REPORTS

Inasmuch as the District Magistrate has chosen to take recourse t.o s. 12(2) of the Act which is designed to make special provisions for con'trol and suppression of anti-social elements with vll!w to maintenance of ·public order, the question at once arises : Whether the petitioner answers the description of an 'anti-social. element' as defined ill s. 2(d) of the Act. 'Anti-social · elemeJlt' as defined in s. 2{d) means-

"2(d) Anti-social efement" means person who is-

(i) either by himself or as member of or lead~r of a. gang, habitually commits, or attempts to commit or abets the . the commission of offences, punishable under Chapter XVI or Chapter XVII of th.e Indian Penal Code; or

· (ii) habitually or abets the commission· of offences under the Suppression ·of Immoral Traffic in women & Girls · Act, 1956; or

(iii) who by words· or otherwise promotes or attempts to . promote on grounds of religiop, race, language, caste or community or any other grounds. whatsoever ,.feelings of enmity .or .hatred between different religions, racial or language groups of caste~ or communities; or ·

(iv) has been found habitually passing indecent remarks to -0r teasing women -0r girls; or

(v) who .has been convicted of an offence under ss 25, 26, 27, 28 or 29 of the Arms Act, 1959."

There is no reasonable do.ibt that on t~e facts set out in the . grounds of detention the petitioner answers the description of an auti·social element; but the suggestion in th.at he is not to be ·treated as one under s. 12(2) of the Act because .the definition. of 'anti·§ocial element' in S', 2(dJ of the Act is too nat·row to inolude it. The word 'habitually' connotes some degree of frequency and continuity. 'Habitually' . require§ continuance and per-. manence of some tendency, something that has developed into propensity, that is, present from day-locday; Stroud's Judicial Dictionary, 4th edn,, vol. 2, p. 1204.

My learned brother Venkataramiah, J. is inclined to give restricted meaning to the word 'habitually' as· denoting 'repetitive'

v. N. SlNGI! v. BiHAR (Sen, J.)

and he is of the view that no order of detention under s. 12(2) of the Act could be made on the basis of 'single instance', as single act cannot be said to be forming the habit of the person. That is to say, the act complained of must be repeated more ihan once and be inherent in his nature Further, he is inclined to think that section under s. 12(2) of the Act can only b~ taken in' respect of persons against whom there are verdicts of guilt after the conclusion of trials. According to him, merely on the basis of institution of criminal cases person cannot be leb.elled as an anti-social element. I find considrnble difficulty ln subscri-bing to either of his views.

'According to its ordinary meaning, the word 'habitual' as given irt Shorter Oxford English Dictionary, vol. I, p. 910 is :

"A. adj (1) Belonging to the habit or inward disposi-tion, inherent qr latent in the mental constitution;

(2) of the nature of habit; fixed by habit; constantly repeated, customary.

B. habitual criminal, drunkard, etc."

.person is -habitual criminal who by force of .. habit or m-ward disposi<ion, inherent or latent"in him, has grown ac.customed to lead life of crime.. It is the force of habit inherent or latent in an individual with criminal instinct, with criminal' disposi-tion of minJ, that makes him dangerous to the society in genera] • In strengthen language the word 'habitually' means 'by force of habit'. The Act appears tO' be bas~d on Prevention of Crime Act 1908 (c-59). By Prevention of Crime Act, as amende\I by the Indictments Act, 1915, person after three previous convi~tions, after attaining sixteen years of age could, with the consent of the Director of Public Pros,cution in certain cases, be charged with being habitual criminal and, if the charge was established, he could, in addition to p1,mishment -0f p·enal serviiude, in respect of crime for which he bas been so ·convicted, receive further sentence of-not less than five years or more than 10 years, called sentence of preventive ·detention. Upon this question of man'; • leading .·persistently dishonest or criminal life, :where there has been considerable lapse of time between man's last conviction and the. commission of the offence which forms rhe subject of the primary indictment at the trial, n.otice ·containing particulars must have been given and prqved of the facts upon which the'prose-cution relied for saying that the offender is leading such life,

tl984] 3 s.c.ll..

.If, on th3 oth~r han1, the tim~ between man's discharge from prison and the commiS'sion of the next offence is .a very swrt one, . it may be open to the..juri to find that he is leading persistently .dishonest or criminal life by reason· of the mere fact that he has again committed an offence so. soon after his discharge from previous oqe, provided the notice has stated this as ground.-This essentially is quc;tion of . fact. The scheme under the English Act is entirely different wl].ere person has to be charged at the trfal of being habitual criminal. Therdore, the consi-. derations which govern the matter do not arise in case of preven· tlve detention under s. J 2(2) of the Act .

I find it difllcnlt to share the view that w)lereas under sub-cl. (iii) or sub-cl. <v) ofs. 2 (d) sfogle act or omission referred to ill them may be enough to treat the per~on concerned as an 'anti·social element', in the case of sub-cl. (i), sub-cl. (ii) or su,b-cl. (iv) be1:ause of th~ word 'habitually' there should be repetition of same class of acts or omissions referred to in sub-cl. .. (i), sub-cl. (ii) or in sub-cl. (iv) by the person concerned to treat him as an 'anti-social element'.

1 also do not see whys. 12 (2) of the Act should be confined in its ·operation against habitual criminals who have a. certain number of prior convictions fot offences of the 'character' speci-filed. The definition of 'anti-social element in s.2 (d) of the Act · nowh~re requires that there should be number of prior convictions of pefsOn in resl'ect of offences of particular. typ~. I cannot also share the. view that the commission of an act referred to in one of the sub-cl. (i), sub-cl. (ii) or sub-cl. (iv) of-s 2 (d) and any other act or omission referred to in any other of the said sub-clauses would not be suflic;ient to treat person as an 'anti-s0cial ele-ment'. Further, I do not think it is . correct to say that. merely because there was an acquittal of such person, the ·detaining authority ca•mot take the. act complained of leading to his- trial into consideration. It may be that the trial of dangerous p•rson may end in an acquittal for paucity of evidence due to unwilling qess of witnesses to come :forward and depose against him out. •of fright. If person with. criminai ·tendencies consistently or peJJistently or repeatedly commits or attempts 'to com·mit or apets, the commission of offences punishable under Chapter XVI dealing with offences affecting human body or Chapter. XVII dealing with offences against property of the llldian Penal Code, there is no reason why he should· 'not be considered to be an '1111ticsocial element' •

V.N. siNGH v. BiliAR (Sen, J.)

It is not difficult·to conceive of person who by himself or as member or leader of gang habitually commits or attempts to commit or abets the commission of offences punishable under Chap-ter XVI or Chapter XVII of the Indian Penal Code. It however does not. follo·w that because of the word 'habitually' in sub-cl. (i),, sub-cl. (ii) or sub-cl (iv), there should be repetition of same class of acts or omissions refen.ed to in sub-cl. (i), sub-cl. (ii). or in sub-cl. (iv) by the person concerned before he can be treated to be an anti-social element and detained by the District Magirtrate under s.12(2) of the' Act. In my view, it is not required that the nature or character of the anti-social acts should be the same or similar. There may be commission or attempt to commit or abetment of diverse nature of acts constituting offences under Chapter XVI of the Indian Penal Code. What has· to be 'repetitive' are the anti-social acts.

Those who are responsible for' the national security or for the maintenance of public order must be the sole judges of what the national security or public order requires. Sufficiency of grounds is not for the.Court but for the detaining authority for the formation 9f his subjective satisfaction that the detention of person under s. 12(2) of the Act is necessary with view to preventing him from acting, in any manner prejudiCial to the maintenance of public order. The power of preventive detention by the District Magistrate under· s.12(2) is necessarily subject to the limitations enjoined on the exer-cise of such power by Art. 22(5) of the CQnstitution. It has always been the view of this Court that the detention of individuals without trial for any length of ti!lle, howe".er short, is ~holly inconsistent with the basic ideas of our Government and the gravity of the evil to the conimnnity resulting from anti-social activities can never furnish an adequate reason for invading the personal liberty of the. citizen except in accordance with the procedure established by law. The Court has therefore in series of decisions forged certain· proce(lural safeguards. in .the ·case of preventive detention of citizens. As observed by this Court in Narendra Purshotam· Umrao v. B.B. Gujra/([1]), when the liberty of the subject is involved, whether it Is · under the Preventive Detention Act or the Maintenance of Internal Security Act or· the Conservation of Foreign Exchange & Prevention of Smuggling Activities Act or any other law providing for preven-. tive detention.,..-

"It is the bounden duty of the court to 'satisfy itself tliat all t.he safeguards provided by the law have been scru1ml-Vl [1979] 2S.C.R. 31~-

ously observed and. that the subject is not deprived of his personal liberty otherwise than in accordance with law."

Nonetheless, the. community has vital interest in the proper enforcement of its laws particularly in an area where there is worsening law and order situation, as urifortunately. is the case in some of the States today in dealing effectively with persons engaged in anti-social activities seeking to create serious public disorder by ordering their preventive detention and at the same time in assuring that the law is not used arbitrarily to suppress the citizen of his right to life and liberly. The impugned order of detention has"not been challenged on the ground that. the grounds furnished ·were not adequate or sufficient for the satisfactfon of the detaining authority or for making of an effective representation. The Court must therefore be circumspect in ·striking down the impugned order of detention where it meets with the requirements of Art.22(5) of the Constitution and where it is not suggested that the detaining autho-. rity. acted ma/a fide' or that its order constituted an·abuse of power.. Turning to the merits of the contentions raised, I am quite satisfied that the impugned order. is not vitiated beCi\USe some of the grounds·were non-existent or irrelevant or were too remote in point . . . of time to furnish rational nexus for the subjective satisfaction. of th.e.detaining authority. The two decisions in Shibban Lal Saksena's and Kamlakar Prasad Chaturvedi's cases are· clearly distinguishable on facts. In Shibban f.,al Saksena's case, th~ detenu had beeh sup-plied with two grounds for his deteniion. Subsequently, the · detaining authority revoked one of the grounds communicated to him earlier. It was contended on his behalf that in such circum-. stances the detenti_on was illegal'and he was entitled to be released. · The contention on behalf of the State was that although one of the grounds upon·which the original order of detention was based ·was unsubstantial or non-existent an.d could not be made ground of · detention, nonetheless the r<emaining ground was sufficient to sustain the detention order. · The Court rejected this ·contention and held that it was stated that the sufficiency of the grounds upon which the subje~tive satisfaction of the detaining authority is based, provided .. they have rational probative value and are not extraneous so the scope or purpose of the legislative provision cannot be challenged in the Co11rt expept on the ~round or'mala fides, lt w~s observed;

V.N. S/NG!I v. DIHAR (Sen, J.)

"A court of law is not even competent to enquire into , the truth or otherwise of the facts which are mentioned as ground£ of detention in the commuuication to the detenu under s.7 of the Act, What has happened, .however, in. this case is somewhat peculiar. The Government itself, in its co~~unication da'ted the 13th of March, 1953, has plainly admitted that one of the grounds upon which the original on or of detention was passed is unsubstantial or non-existent and cannot be made· ground of detention. The. question is, whether in such circumstances the· original order made under s.3(1) {a) of the Act can be allowed to stand. The answer, in our opinion, can only· be in the negative."

The question was whether in such circumstances the original order·made under s.3(1) (a) of the Preventive Detention Act, 1950 could be allowed to stand. The Court laid down that if one of the twq grounds was irrelevant for the purpose of the Act or was wh..olly illusory, this would vitiate the detention order as wh?le .. That is, principle well-s-ettled since the well-known case of Keshav Ta/pade. v. Th~ King Emperor('), The Court reiterated the prineiple and said that it was not for the Court to examine whether the two grounds upon whfoh the detention order was based were good or bad ·nor could it attempt to assess in what manner and to what extent each of the grounds operated on the mind of the ~propriate authority and contributed to the "creation of the satisfaction on the basis of which the detention order was based. It then added:

"To say that the other ground, which .still remains, is 9uite sufficient to sustain the <;>rder, would .be to substitute an objective· judicial test for the subjective decision of the execu-tive authority. which is · against the legislative policy underlying the statute. In such cases, we think, position would be the same as if one of these two grounds was irrele-vant for the purpose of 'the Act or was wholly illusory and this would vitiate the detention order as whole." .

Following the decision in Shibban Lal Sakesena's case, the Court in Kamlakar Prasad Chaturvedi's case, supra, by m~jority of 2:1. held the detention order dated May 6, 1983 passed by the District. Magistrate under s.3'(2) of the National Security Act, 1980 to l?e

invalid inasmuch as some of the grounds were lfound to be too remote andnot proximate in point of tirile. ·Per contra, Desai, J. · following the recent ,decision of this Court in Fit,:at Raza Kht:ln v. State of U.P. & Ors' . . held that there is no rigid or mechanical test to be applied. In Fitrat Raza Khaa's case, the.Court held that when both. the incidents there were viewed in close proximity, the propensity of the petitioner to resort to prejudicial· activity became manifest. · ·

In Fitrat Raza Khan's case, supra, the first incident was of August 13, 1980 when the communal riots broke out in Moradabad city, and the second of July 24, 1981. Although there was lapse of year between the two incidents, the second incident of July 24, 1981 was just on the eve of the Id festival and the grQund alleged was that the petitioner was trying to instigate the Muslims to communal violence by promise of better arms, with view to an open confron-tation between the.two fommunitie~. It was '.observed that the two grounds as set out in the· order of detention were nothing tiUt ·narration of fects brining out the antecedent history of the detehu and that the past conduct or the arlteced·e.nt history of person can properly be taken into account in making an order of detention

and had observed : .. "It is

"It is true that the order of detentiim is based on two grounds which relate to two incidents, one pf August ·13, 1980, and the other of July 24, 1981, i.e., the second incident was . after lapse of about year, but both the incidents show the propensities of the petitioner to instigate the pi embers of the Muslim cbmmunity. to' communal violence: The unfortunate communal riots which took place in .Moradabad city led to . widespread carnage and bloodshed resulting in ·the loss of many innocent lives. The memory of the communaLriots is 'Ill too re·cent to be thing of the past. The past conduct or antecedent history of porson· can appropriately be taken into account in making"a detention order. It is u~ually from prior events showing tendellctes or incliiiations of. man that an inference can be drawn whether he is li!<ely, in the future, to act in ·manner prejudicial to the maintenance of public order.•••••••••••••• It cannot be said that the prejudicial .conduct or antecedent history of the petitioner was not

. .)....

. proximate in point of time and had no rational connection \vith the cotictusion that his detention was necessary for riiaihtenance of public order."

It is usually from prior events showin11 tendencies or inclini-tions of man that an inference can be drawn whether he is likely, in the future, to act in manner prejudicial to the maintena~ce cif public ocder.

Learned counsel for the petitioner also submitted thaf the ordinary criminal process·could not be circumvented by resort' to preventive detention. Jn somewhat similar circumstances, the .Court recently in Alijan Mian v. District Magi.itrate, Dhdnbad & Ors('). h~ld that merely because there was pending prosecution and the accused were in jail, that was no impediment for the.ir detention under s.3(2) of the National Security Act, 1980 if the detaining authority was 'satisfied.that their being enlarged on bail would be preju<licial to the maintenance of public order. The same view has been reiterated by this Court in Raisuddin · Babu Tame/Ii v. State of U.P. & Anr('!. -

For my part, I would. therefore, for the reasons stated, dismiss the writ petition as well as the connected special leav~ petition.

VENKATARA:MIAH, J. This is petition under Article 32 of the Constitutio.n, The petitioner has questioned in this case the validity of an .order of detention dated August 16, 1983 passed by the District Magistrate, Bhagalpur, State of Bihar, directing the deten-tion Of the petitioner under subcsection (2) of section 12 of the Blhar Control of Crimes· Act, 1981 (hereinafter referred to as 'the Act') read with Notification No. H(P) 6844 dated June 20, 1983 of the Government of Bihar vesting the powers of detention in the District Magistrate, Bhagalpur.

The petitioner states that he having passed him M.A. Examina-. tion was studying llrw 1n the Bhagalpur Law College in ttle year, 1983. On the basis of information received 01i April 20, 1983 about ' the u·nnatural deaths of two persons within the jurisdiction of the Bhagalpur Kotwali .Police Station, the police conducted fovestigation ancl at the conclusion of that investigation they filed charge sheet

[1984] 3. S.C.R,.

in the court of the Magistrate having jurisdiction over the area in question, who' committed him · alongwith some others to the Court · of Sessions for b.eing tried for offences punishable under section 302 read with section 120B, 386 and 511 of the In di.an Penal Code. The said case is even now pending. The petitioner moved the High Couit of Patna. for enlarging him on bail during the pend ency of ·· .the said Session· trial On August 8, 1983, tl)e bail petition was heard and the High Court made an order enla(ging the petitioner . ~on bail, the relevant part of which read thus: •.

"8.8.83. Heard learned counsel for the petitioner and the State.

The submission of the petitioner is that he has not • been named in the F.I.R. and the only material against him is that when Kashi Nath Bajoria; father of the deceased· learnt about taking away of his sons from the petrol pump· he weut to the house of petitioner and his brother Dhananja Singh and enquired about his sons. On his enquiry the petitioner, bis brothei; Bijoy and his mother de;nanded sum of Rs 50,000. for release of his sons. It is further submitt~d that three persons gave their confessional. statement but even they did not name the petitioner-

Whether the petitioner was in conspiracy or had hand :in the crime. will be examined at the trial if such occasion arises. In the circumstances of the present case, let petitioner be released on bail of Rs 30,000 (Rupees ten thousand with two sureties of the like amount each) .. to the satisf~ction of the Chief Judicial !.Magistrate, Bhagalpur in Bhagalpur Kotwali P.S. Case No. 281/83 dated 20.4.83."

.Even before the petitioner could furnish bail and secure his ·,release from jail as· per the above order,' the District Magistrate . passed-the impugned. o.rder of detention OQ, Aug)lst 16, 1983, the .'relevant part of which reads thus : . ·

"Order No. 151dated16.8.83

Whereas I am satisfied that with view to preventing Shri Vi jay Singh s/o Late Shri Jagannath Singh of Mohalla Mundichak P.S. Kotwali. District ·Bhagalpur from acting in

V.N. SINGH v. BIHAR (Vtnkataramiah, J.)

.any manner prejudicial to the maintenance of public order, · it is necessary to make an. order that he pe detained.

Now, therefore, in exercise oi:the powers conferred lty . (Bihar A6t 7 of 19SI) sub-section 2 of section 12 of the Bihar · Control of Crimes Act, 1981 read with Notification H(P) 6844 <lated 20.6.83 of the Government of Bihar vesting the powers of detention in District Magistrate, Bhagalpur, I hereby direct that Shri Vijay Singh be detained.

He shall be detained in Special Central Jail, Bhagalpur and classified as and in division III.

District Magistrate Bhagalpur"

The grounds of detention in support of the above order rea• ithus :

"In pursuance of section .17 of the Dihar Control ef Crimes Act, 1981 (Bihar Act 7 of 1981) Shri Vijay Singh s/& Late Shri Jagannath Singh of fy!ohalla Mundichak, P.S. Kotwali, District Bhagalpur is informed that he was beea ·directed to be detained in my Qrder No. 151/C dated 16.8.83.

The· following incidents conclusively show that Shri · 'Vi jay Singh is an "anti-social element". , ·

His criminal activities enumerated below dat~ back to the ye11;r 1975.

(i) On 15.4.75 Vijay Singh alongwith his associates ·went-to the shop of Gopal Ram Ramchandra, cloth dealer in Hariapatti market of Bhaga,lapur to\vn armed with unlicensed ,pistol an.d forcibly demanded subscription at the ppint of pistol. On refusal, he created row in the shop and indulged in filthy abuses, as result of which the !lhopkeepers of the ,are.a be.came terribly panicky and feeling of uttar insecurity prevailed in the area. case was instituted in Kotwali p,s. vide Case No. 25 dated 15-4-75 under section 144/448 I.P.G •• Jn this case, he was chargesheeted.

(ii) On 17./18-6-82 at night Vijay Singh was founii ;teasing and misbehaving with females returning from Cine111a hall at {<.halifabagh Chowk, one of the busiest thr6ughfarcs tf

/:A , -·

<i •. 0 (J

[1984) 3 s.c.R.

SUPREMB COURT REPORTS

·, .,1,. ' ., . •\~ . ' . , ~:-_,::. . ' '... -.. \' . ... ' ' the to.wn.~ On. in{o<niatjgp, )he, poli_sr ,,ru~he? )o.tne ~ppt. ViJay Singh had the avdacity to misbehave with the pol\ce · p~sQ!llleLincludipg ~l!.e _J1¥, ~.p, tl;!qr~,) whq.~al?pened to n:ach,Uiwei ~-S?~'?.<'"fa,s1 insHt,~\~<l .. in th.i• c~,nect.io~, v.~de· · 1$;0{1Y,ali ~ .S. ,~_se .. ~o:1 ?1%:.~/l\~lji J ~.-6;,8~.u/s 294/353 I.P:C .. In lh1s case, V1iay Smgh was cbargeslleeted .

. sbri v1]~;, Sr'if~ h~"s ill'iJ d~tai&d on !ri~ roirc\~ihg; grou11d.s :-1 •-.: i i.,L.1- '1~' Grounds:

:. , .J;?l\J.9 .4.1983; the criminal activities of Vijay Singh> mounted to its peak, when two yong sons of Sbri Kashinath BliJtlria, nwner of,Bajqri~ ~~trsJ, •. P.9!1'I?• l'IJ1a~alJ?;Uy n,~mely, Krishna Kumer Bajoria and Santosh Kumer BaJoria w~re . kidnapped from their petrol pump. Vijay Singh demarid~d ~ siim of· Rs 5Q',Ol)O (Fifiy . .tbousandJ .f(l)JnJ}1eir father as. rariso:.h. As the demand could not b~ ful;filled, th.e 0above-n!undd two innocent )!DUllg rn.eii W,<re c\OM to dt;.ath in ~ti,astly manner altd their •. dea4 bo>lies thi-o_wn a!vay n~ar Mo\int Assisi School and.~Zi'a Scb.ooJ whi,ch wer~ dij9ovo;:,ed. n.ext morning. These >iouble murders caused panic through-out tflh nhagalpur Town and public order was gravely disturb-ed. Only after io.tensive deputation of police force, public conJi>ience was rcst0red and public order maintained. case ~~s instituted yide l.t6twtili P.S. Case No. 281 dated 20-4-83 .under sections 364/302/201/_34/120(b} I.P.C.. Charge-sheet ha's. been submitted in this case against . Vijay Singh and ot!Jers. lnyestiga{ion _shows that Vi]ay Singh is. mainly instrumentarto this heinous crime. ·

, (Copy of F.I.R., brief of· the case and copy of Memo of evidence enclosed).

Jn the circumstances, I am. sat.i~fied that if ~e is allowed to remain at large, he will indulge i.il a·ctivities prejucl.icfal to the ~aintenance of public order. ·

. . . .For prevent'ion of such. activities, I considered" his. -detention necessary. Shri V ijay Singh is informed that he nlllY ·make representation in writing against the or>!er-under· which he is detained. His representation, if any, liiay be addies-.

tied to the Deputy Secretary, Home (Police) Department, -Oov'ennient of B!har, r>atna, 'arid forwarded 'by the Supcr-intendeht of Jaifthrough special messenger with copy.to the -undersigned.

Sd/~S.K. Sharma ' 16f8/83 District Magistrate 'Bhagalpur"

Aggrievd by th, ao we orJ :.r of. deteotion .the petitioner filee petitfon under A•ticlc 2!,6 of the Consiiiu\ion before the High <:ourt. On behalf of the d.talning authority it' was c'ontended that the detention o•·der had 'been' pre.rared 'in aovance for service on 0 the petitioner when he came' out or tlie' jail dn ine strength of the bail oi-d'e'r which h'e had obtain"ed ii\ i!ie criminal case ; that all the -copies of order had been sent to 'the District Migisfrate's office but ,l>Y mistake of the messenger three c0pies had been wrongly deliver-ed ai the Centrai Jail Ohagalifur w,11ere the petitioner hairbeen kept and that when the mistake ;~as detected by the 'Superintendent of the returned all the 'Copies. Central Jail, he did It ·not was urged serve the copy that since of th~ the orcter o'rder 00f and detell-had tion had not be.en served on the petitioner, the petition was not . maintainable. Accepting the above plea, the High Court held that ·there was no occasion to quash \he order of· detention as the p<!titiorier had not been detained pursuant to it. Accordingly it r~jec•ed .the prayer ·of. the petitioner. Thereupon the petitioner :filed the above writ petition before· teis Court, He has -also !jle..t special leave petition being S.L.P. (Criminal) 3306 of 1983 agai11st the .order of the Hillh Court. Jn this Court, the respondents have not depended upon tlae .F <technical 'plea raised by them' bef'ore fhe Hish . Cotirf b'u't have'tdell to justify ihe order of detention 'oi) me,rits. ' · · · . ·~ .

I shall give brief summary of the relevant provisions of the Act. TM Act was passed in· 191\1. It was 'enacted, as Its Jimg'title sug-:gests, to make special provisions for lhe control and suppression: of :antisocial elements with view to maintenance of public order • .Section 2(d) of the Act ·define.s the .expression 'Anti-Social Element' 1hns ·: · -

''.2.(d) "Anti-Social 1$le)lle1!ts" means per.son who is ·-

(i) either by himself or as a· member of or leader of • { iang, - · habitually • •• "' -commits; ciratteqipts to'c'6'nln:i1t -.i ·,•t '' ' --' .- , "· I • '.d . .-'' .,;.1

[1984] 3 S.C.R~

. ' Section 3 to 11 of the Act deal with the provisions relating tcr extcrpment of anti-social elements. Chapter II of the Ac.t deals witb the provisions providing for the preventive deterition of anti-social elclllc.nts. The rele~ant part of sec'tion 12 of the A•t which is in @ltapter JI of the Act reads :

"12. Power to make order detaining certain persons • 'Ihe State Government may-(!) If satisfied with re•pect to. any person that with view to pi·eventirig him from acting in any manner prejudicial to the maintenance of public order and there is reason to fear that the activities of anti-social element cannot be prevented otherwise than by the immediate arrest of such person make an order directing that such anti-sociaf element be detained.

· (2) If, having regard io the i:;ircumstances prevailing o; likely to prevail in any area within the local limits of the. jurisdiction of District Ma,gistrate, the State Government fa. satisfied that it is necessary so to do, it may by an order in writing direct, that during such period- as may be specified in (he order, such District Magistrate may also, if satisfied a~

provided in sub-section (I) exercise the power conferred up-on by the said sub-section ..................... (underlining by us),

It is seen from secfrm 12 of the Act that it makes provisiom for the detention of an anti-social clement. · If a. person is not a11· anti-social element, he cannot be detained under the Act. .The detaining authority should, therefore, be satisfied that the person against whom ·an order is made under section 12 of the Act is aa 'anti·social element as defined in section 2 (d) of the Act; Sub-clauses (ii), (iii) and (v) of section 2 (d) of the Act which are not quite relevant for the purposes of this case may be omitted from consideration for the present. The two other sub-clauses whicla need to be ·examined closely are sub-cla.uses (i) and. (iv) of sectioa 2 (d). 'Under sub-clause {i) of section 2 (d) of the Act, a·. persoa who either by ftimself or as member ·of or leader of gang halli: tua//y commits or at\empts to commit or abets the cominission of offences punishable under Chapter XVI dealing with offenences affec-ting tlie human body or Chapter XVII dealing with offences against property, of the Indian Penal Code is considered to be an anit-social element. Under sub-clause (iv) of section 2 (d) of the Act, persoa who has been habitually passing indecent remarks ,to, o{ teasini: women or girls, is an anti-social element. In both thes.e sub-.clauses the word 'habitually' is used. The expres"sion 'habitually' means 'repeatedly' or 'persistently'. lt implies thread of continuity stringing together similar repetitive acts. Repeated, persistent and similar, but no.\ isolated, individual and dissimilar acts are necessary to justify an inference of habit. I( c~nnotes frequent cominissio11 of acts or omissions of the same kind. referred to in each of the said· sub·clauses or an aggergate of similar acts or omissions. This appears to be clear from the use bf the word 'habitually' separately in sub-• clause (i), sub~clause (ii) and sub·cla.use (iv) of section 2 (b) and not in sub-clauses (iii) and (V) of section 2 (d). If the State Legisla· ture had intended that commission of twp or more acts or omis-sions referred to'in any of the sub-clauses (i) to lv) of of section 2 (d) was sufficient to make person an 'artti-social element', the defini-tion would have run as 'Anti-Social Element' means 'a person who habitually is . ·· .............. .' A's section 2 ( d) of the Act now stands, whereas under sub'.clause (iii) or sub·clause (v) of section 2 (d) single act or omission referred to in them may be enough to treat the person concerned as an .'anti-soda! element', in the case of sub- · clause (i}, sub-clause (ii) or sub'clause (iv), there should be repeti-tion of acts or omissions of the same kind refrrred to in sub-clause

[1984] 3 s .. c.R.

(i), sub-clause (ii) or in sub-clause (iv) by the peyson concerned to treat him as an 'anti-social elment'. Con1mission ofan act or· oillis-. sion referred to in one of the sub-clauses (i). (ii) and (iv) an.'t'of anoth·er act or omission referred to in any other of the said sub-·· c1~uses ,~·ould nof be sufficient to treat person as an 'anti-social ekfuent'. A.single act or omission falling under sub-dause (i) end single act. or oniission falling under sub-clause (iv) of section 2 (d) cannot, therefore; be characterised as habitual act or omission referred to in either of them. Because tbe idea of 'habit' involves an ·element of persistence and tendency to repeat the acts or omissions of the same class or kin·d, if tire acts or omission in qucs-. tion are not of the same kind or even if they are of the same kind . when they are committed with long inicrval of time betw~en them they cannot be treated as habitual ones. .

In the pre\ent case th.e District - Magistrate has relied pn three ·incidrnts to hold that the petitioner. is an. anti-social ele~ O c: m~nt~ Tl~ey are-(iJ that en April 15, 1915 the petitioner ·along-wifl) his associates llad ·gone }o the sl1op of . cloth dealer of B4,?galjiur To'!"n armed )Vi th an unJicens\!d pistol and bad ·forcibly demande.d subscription at the po in( of gun. and (ij) that on June I77i's, 198.2 the petitioner was fourid-t~asing and misbehaving wiih feljlales r~turning from cinema h·alf. The third ground '.is the crfwlria,l c~se now pending agaiµst th~ potitioner. ii;i the ~eS>ions Co~rt. The first incident is of the year I 975. It is not 'statccj how ·th~ criminal c~s~ filed on the basis of that charge ended. The next ini;:io!"nt rel9tes to tht year 198.2. The detafoing authority does not stat.e hoiv the cri111i~al cese filed in that. cbnnection te~mi­na(ed. ff they have b0th ended in favour· of the petitioner fin.ding' -him clearly not guilty, they oonnot certainly constitute acts or 0njlssions h~bi1uajly cJmmitt~d by the petitioner. · M.Qreove; the sai,d (WO incidents .arc of different kinds altogether. Whereas the nrs.t one 'may fatt unQer sub-clause (i) of section 2(dJ· of the Act, 1he secon!i one foils iinder sub-clause (iv) thereof. They arc, . even if true, npt repetitions of acts or omissions of tl;e s;ime !<ind. Th.e ):listrict Magistrate does not appear to have applied his mii1d · to t)le above aspects of the case. The thfrd ground. which is based on !Ue pendipg'Sessions cµse is no doubt of 'the. nature of acts or couiissi,ons re(erred to in sub-claµse ti) of section 2(o) but the inter-val betw.een the' first groun'd wl;ich falls under thls sub-clause and th~ ~ne js nearly eight years an.d Cf!nrot, therefore, make the peii- ·. tioper .~ ·:. ·a :_ ! ' habitual -· : offe~der '. ' -of the ,' type failing under sub'.cJause t -''' ' • ; ' • {iJ of

section 2 (d). WJ1en I ~ay ~o I go i;i9,t c~rtainly minimise the gravity -0f ·the offence alleged to have been committed by the petitioner -which is still to be tried by the Sessions Court. If the petition:er is found guilty by the Court,· he ·will have· to be awarded app,ro·. priate punishment.But the point for consideration now is whether the filing of ·the charge sheet is sufficient to bring the petiiioner -wit~in the mischief of the Act. The Court should examine the case without being overwhelmed by the gruesomeness of the incident involved in the criminal trial. It is well settled that the.Jaw of preventive detention is hard Jaw and therefore it should be strictly· <:onstrued. Care should be taken that tee liberty of person is not jeopardised uriless pis case falls ·Squarely within the four corners of . ·the relevant Jaw. The law of preventive detention should not be used merely to clip the wings of an accused who is involved in criminal prosecution. It is not- intended for the purpose of keeping man 'under detention when under ordinary· criminal law it may not be

possible to resist the issue of orders of bail, unless the material available is such as would satisfy the requirements of the legal ·provisions authorising such detention. When person is enlarged on bail by competent criminal court, great caution shouli! be· ·exercised in scrutinising the validi!y of an order of preventive deten· -tion which is based o.n the v<'ry same charge which is to be tded by •the criminal court.

Having given my anxious consideration to the case; I am of the view that it is not possible to hold that the petitioner 'can be -called an 'anti-so9ial ekment' as defined by section 2 (d) of the Act. "The order of detention impugned in this case, therefore, could not have been passed under section 12 (2) of the. Act which authorises ;tke detention of anti-social elements only.

Before leaving this case, I should state that number 0f decisions were ciied' before us in whi.ch it had been held that an ·Order of detention based on criminal charge which is still .to be .tried may riot ·be invalid and that an order granting bail by crinli· nal court cannot be bar· to the passing of an order of detention. • But I have not found it ·necessary to deal with them h<;re as they · -would have become relevant only if I had been satisfied that the ;petitioner was an anti-social element. Moreover the oraers of deten-aion questioned in those cases were governed by the provisions of the statutes undCI which they had been issued~

[1984) 3 s.c.R..:.

490. . SUPREME COURT )\);PORTS

t In the result, I quash the order o( detention, p~ssect: against the petitioner. The petition is accordingly allowed. The petitioner shall be set at liberty forthwith unless he is required to be.-ht custody on some other ground.

Petition allowed_

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