Patna High Court
Satish Kumar Singh Alias Sitv (C-2 ... vs State Of Bihar And Ors. on 19 June, 1996
Equivalent citations: 1997(1)BLJR422
Author: N.N. Singh
Bench: N.N. Singh
JUDGMENT S.K. Chattopadhyaya, J.
1. This writ petition under Article 226 and 227 of the Constitution has been filed by the petitioner challenging the correctness and validity of the detention order dated 28.10, 95 passed by the District Magistrate, Ranchi detaining the petitioner in exercise of his powers under Sub-section (2) of Section 12 of the Bihar Control of Crimes Act, 1981 (hereinafter referred to as 'the Act') with a view to prevent the petitioner-detenu from acting in any manner prejudicial to the maintenance of public order. The said order of the District Magistrate was subsequently approved by the State Government on 8.11, 95 and also by the Advisory Board by its .order dated 22nd December, 1995.
2. Before adverting to the contentions raised by the learned Counsel for the parties it will be useful to state the grounds on which the petitioner-detenu was detained. The grounds of detention which are served on the detenu in Jail on 28.10.95 itself are reproduced hereinbelow:
1. "On 17.1.95 the complainant Shekhar Kumar Gupta was sitting in the counter of his shop, Ranchi Motor Accessories located at Kutchery Road bye lane along with his younger brother Manoj Kumar Gupta and two staff. At about 10 A.M. the subject Satish Kumar Singh alias Situ alias Ashok Kumar Singh came there along with one associate on a Vespa Scooter without number plate. The complainant disclosed that the subject Satish Kumar Singh alias Situ and Ashok Kumar Singh had also visited his shop about twenty days ago and had demanded Rangdari but the complainant had not obliged them. The subject Satish Kumar Singh @ Situ Kumar Singh took out a pistol from his waist and shot at the complainant injuring lower side of his left leg telling the complainant about the consequence of non-payment of Rengdari. After this incident the subject and his associate fled away on the scooter and the complainant was taken to Nagar Mul Seva Sadan for treatment by his brother. The people of the area had become so much terror stricken that they could not muster strength to oppose the subject Satish Kumar Singh @ Situ @ Ashok Kumar Singh whose activities are to terrorise the people and the ship keepers to realise Rangdari. The shop keepers started closing their shops just in the evening and they lied away after seeing the subject Satish Kumar Singh @ Situ @ Ashok Kumar Singh. As such the public order in the area was completely disturbed. The police had to depute sufficient police force to restore normalcy and public order in the area. This refers to Kotwali P.S. case No. 21/95 under Section 452/387/307 I.P.C and 27 Arms Act. Charge-sheet is likely to be submitted in this case against the subject. Copy of F.I.R. enclosed.
2. On 19.6.95 the complainant Kunal Basu was present in Ardhana Apartment, North Office Para along with his staff in connection with construction of the apartment. At about 9.45 A.M. the subject Satish Kumar Singh @ Situ @ Ashok Kumar Singh came there along with two associates and they caught hold of the staff, D. Basu and started assaulting him and wanted to know where-about of Kunal Basu. On hearing this the complainant came out and disclosed his identity on which the subject Satish Kumar Singh @ Situ @ Ashok Kumar Singh and his associates forcibly took the complainant towards the backside of the apartment and demanded fifty thousand rupees as Rangdari. The complainant showed his inability to give such a huge amount and promised to manage five to then thousand rupees. The subject Satish Kumar Singh @ Situ @ Ashok Kumar and his associates took out revolver and carbine and threatened the complainant of death and gave thirty Second time to manage the Rangdari amount. The complainant became terror stricken and demanded some more time on .which they caught hold of the complainant and tried to take him away. Seeing this the staff and labourers of the complainant raised alarm and on their hulla many people from the side of Lore to School and A.G., Office rushed towards the apartment under construction and on seeing them the subject and his associates tried to flee away on a Yamaha Motor cycle firing from their arms. One person was also injured due to their firing. The subject Satish Kumar Singh @Situ @ Ashok Kumar Singh and one of his associate, Altaf Khan were apprehended along with their motor-cycle by the people assembled there. The subject had also confessed his crime before the public. In the meantime the police also reached there and took charge of the subject and his associate and recovered fire arms and cartridge. This incident of firing created a great terror and hue and cry was created and all the shop keepers closed their shops. The people of the area were so much terror stricken that they started closing their houses and shops before dusk and public introduce special intensive patrolling and conducted raids to apprehend criminals in order to restore public order and confidence amongst the people. This refers to Doranda P.S. Case No. 155/95 under Section 452/387/364/324/307/414 IPC 25(B) (A)/26/27/35 Arms Act. Charge-sheet has been submitted in this case against the subject and his associates. Copies of F.I.R. and charge-sheet are enclosed.
3. On the aforesaid grounds and the reports of the police, respondent No. 3 concluded that the petitioner is an anti-social element and habitually commits offences punishable under Chapter XVI and XVII of the Indian Penal Code and his movements and acts are such that it adversely affects the public order. Respondents No. 3 was reported by the sponsoring authority that the petitioner-detenu is in jail and since he has applied for bail, he is likely to come out on bail. On this report, respondent No. 3 was satisfied that if the petitioner is allowed to remain at large, he will indulge in activities prejudicial to the maintenance of public order.
4. Mr. P.S. Dayal, learned Sr. counsel has strenuously assailed the impugned order of detention by submitting that there was no material before respondent No. 3 to show that the petitioner is an anti-social element as defined under Section 12 of the Act. He submits that the grounds for detention do not indicate that the petitioner's action in any manner is prejudicial to the maintenance of public order. Only because the petitioner has applied for bail, he continues, he cannot be detained under the Act on a mere presumption that he is going to be released on bail.
5. Mr. V. Shivnath, learned Government Pleader No. 1 strongly countering the argument of Mr. Dayal, has contended that the reasons for detaining the petitioner-detenu in exercise of powers under Section 12(1) of the Act is legal and valid inasmuch as from the grounds of detention it is clear that the petitioner is a habitual offender who commits or abets commission of such offences and he is an anti-social element. He submits that the action of the petitioner has compelled the detaining authority to hold that his activities are prejudicial to the maintenance of public order and not law and order. According to him the grounds set forth are enough indication of the fact that for such activities the tempo and tranquillity of the society at large was going to be disturbed.
6. Before dealing with the point as to whether the petitioner-detenu can be said to be an anti-social element, one has to fine out the distinction between 'law and order' and 'public order'. The object of the Act as revealed from the Preamble, is to make special provision for the control and suppression of antisocial element with a view to maintain the public order. It is, therefore, necessary to find out the meaning of the expression 'public order' as distinguished from 'law and order'. Though these expressions have not been defined in the Act but they have been subject to judicial scrutiny from time to time. The distinction between the expression 'public Order' and 'law and order' is well settled by several decisions of the Apex Court as well as this Court and it would be useful for deciding the point in controversy to refer some of the recent decisions pointing out the guidelines in this regard.
7. In the case of Ashok Kumar v. Delhi Administration their lordships held that the true distinction between area of public order and law and order lies not in the nature or quality of the Act but in the degree and extent go its reach upon the society. Similarly, in the case of Gulab Mehra v. State of U.P. and Ors. it is held that an Act whether amounts to a breach of law and order or breach of public order solely depends upon its intent and reach of the society. If the Act is restricted to particular individual or a group of individuals, it breaches the law and order problem but if the effect and reach and potentiality of the act is so deep affect the community at large and or the even tempo of the community then it becomes a breach of public order.
8. In the case of Arun Ghosh v. State of West Bengal the Supreme Court had an occasion to deal with the distinction between 'law and order' and 'public order'. Their lordships observed that public order would embrass more of the community than the law and order. Disturbance by public order has to be distinguished from Acts directed against the individuals which do not disturb the society to the extent of causing a general disturbance of public tranquillity. It is degree of disturbances and its effect upon life of the community in a locality which determines as to whether disturbance amounts only to a breach of law and order. Their lordships further observed that the implications of public order are degree and it affects even the tempo of life and public order is jeopardised because the repercussion of the acts embraces each section of the community and incite them to make further breaches of law and order and to disturb the public order. An Act by itself is not determinant of its own gravity. In its quality it may defer from another but in its potentiality it may be very different.
9. In the case of Piyush Kantilal Mehta v. Commissioner of police reported in 1989 (sup) (1) SCC 322 their lordships took the view that in order that an activity may be said to affect adversely the maintenance of public order, there must be material to show that there has been a feeling of insecurity among the general public. If any act of a person creates panic and fear in the mind of the members of the public upsetting the even tempo of life of the community, such Act must be said to have a strong bearing on the question of maintenance of public order. Their Lordships pointedly observed in the aforesaid case that commission of an offence will not necessarily come within the purview of 'public order' which can be dealt with under ordinary general law of the land.
10. Reviewing several decisions, in the case of Sri Mustakmiya Jabbarmiya Shaikh v. MM. Mehta, Commissioner of Police and Ors. reported in JT 1995 (4) SC 215, their lordships observed as follows:-
A distinction has to be drawn between law and order and maintenance of public order because most often the two expressions are confused and detention orders are passed by the authorities concerned in respect of the activities of a person which excessively fall within the domain of law and order and which have nothing to do with the maintenance of public order. In this connection it may be stated that in order to bring the activities of a person within the expression of 'acting in any manner prejudicial to the maintenance of public order', the fall out and the extent and reach of the alleged activities must be of such a nature that they travel beyond the capacity of the ordinary law to deal with him or to prevent his subversive activities affecting the community at large or a large section of society. It is the degree of disturbance and its impact upon the even tempo of life of the society or the people of a locality which determines whether the disturbance caused by such activity amounts only to a breach of 'law and order' or it amounts to 'public order'. If the activity falls within the category of disturbance of 'public order' then it becomes essential to treach such a criminal and deal with him differently than an ordinary criminal under the law as his activities would fall beyond the frontiers of law and order, disturbing the even tempo of life of the community of the specified locality.
11. Now reverting to the grounds of detention and the summary of incidents alleged against the petitioner-detenu as mentioned in the beginning of this judgment it may be stated that the first incident is said to have taken place on 17.1.95 when the petitioner come to the shop of the complainant, Sekhar Kumar Gupta on a Vespa Scooter without number plate at 10 a.m. Sekhar Kumar Gupta complained that the petitioner also visited his shop about 20 days ago and demanded Rangdari but as the complainant, Gupta, did not oblige him, the petitioner took out a pistol and shot at the complainant injuring on lower side of his left leg threatening him about the consequences of nonpayment of Rangdari. The petitioner and his companions fled away on the scooter and the complainant was taken to Seva Sadan for treatment by his brother, Manoj Kumar Gupta. The people of the area had become so much terror stricken that they could not muster strength to oppose the petitioner whose activities are to terrorise the people and the shop keepers to realise Rangdari. After this incident the shop keepers started closing their shops just in the evening and then flee away after seeing the petitioner. Public order in the area was completely disturbed and, as such, sufficient police force was deputed to restore normalcy of public order in the area. FIR was lodged under Sections 452, 387, 307 and 304 of the Indian Penal Code and Section 27 of the Arms Act and charge-sheet was likely to be submitted regarding this case against the petitioner.
The second incidence is said to have happened on 19.6.95 when Kunal Basu of North Office Para with his staff was present in Aradhana Apartment in connection with construction of the said apartment. At about 9.45 a.m. the petitioner came along with two associates and caught hold of one staff, D. Basu and started assaulting him and wanted to know the where about of Kunal Basu, The complainant, Kunal Basu came out and disclosed his identity on which the petitioner and his associates forcibly took the complainant behind the back side of the apartment and demanded Rs. 50, 000/- as Rangdari. The complainant, however, showed his inability to give such a huge amount and promised to manage 5 to 10 thousand rupees. The petitioner and his associates took out revolver and carbine and threatened the complainant of death and gave 30 second time to manage the Rangdari. Kunal Basu, however, demanded some more time on which they caught hold of the complainant and tried to take him away. On alarm being raised by the staffs and labourers of the complainant many people from the side of Loreto school and A.G. Office rushed together towards the apartment and on seeing them, the petitioner and his associates tried to flee away on motor cycle, firing from their arms. One person 'was a injured by that firing. The petitioner along with his associates. Altaf Khan were apprehended along with their motor cycle by the people assembled there. The petitioner is alleged to have confessed his crime before the public. The police reached in the meantime and took the charge of the detenu and his associates, recovered fire arms and cartridges. This incident of firing created terror and hue and cry as a result of which all the shop keepers closed their shops. The people of the area were so much terror stricken that they started closing their houses and public order was very much disturbed. In order to restore the public order and confidence in the people intensive patrolling was introduced and raid for apprehending the criminals were also conducted. This gave rise to a case under Sections 452, 387, 364, 324, 307 and 414 IPC read with Sections 25(B)(A)/ 26, 27 and 35 of the Arms Act. In this case charge sheet has already been submitted against the petitioner and his associates.
12. The argument of Mr. V. Shivnath that on the premises of these allegations against the detenu-petitioner and the history of criminal antecedents as contained in Annexure-A to the supplementary counter affidavit of respondent No. 3, it will appear that the acts of the petitioner are not isolated one and, as such, cannot be said to be a problem relating to law and order.
13. In the present case so far as the first incident which occurred on 17.1.95, is concerned, the same is vague inasmuch as neither any witness was examined to substantiate the allegation that the people and shop keepers of the area could not muster strength to oppose the subject. Even Manoj Kumar Gupta, the brother of the complainant, Sekhar Kumar Gupta and other two staffs who were alleged to have been present on the date and time of occurrence have not stated anything about the incident. Though the FIR was lodged under Sections 452, 387, 324 and 307 of the Indian Penal Code and Section 27 of the Arms Act but, as it appears from the grounds of detention, that the charge sheet was not submitted even on 28th October, 1995 though the incident is said to have taken place on 17.1.95.
As regards second incident which occurred on 19.6.95 in which charge-sheet has been submitted, the grounds is vague inasmuch as neither the names of the witnesses in whose presence the threat was given and the incident occurred, have been mentioned. For the second incident case under Sections 452, 387, 364, 307 and 414 of the Penal Code and Section 25 and other sections of the Arms Act is pending.
14. The petitioner was taken into custody and is in jail as an under trial prisoner since 19.6.95. Only because the petitioner filed in application for bail, the detaining authority presumed that the petitioner would be released on bail. The satisfaction of the detaining authority that since the petitioner was moved for bail, is likely to come out very soon an bail and on presumption that if the petitioners comes out from jail, he would be indulged in such criminal activities, in our opinion, cannot be a valid subjective satisfaction of the detaining authority.
15. In the case of Manekalal Chokshi v. State of Gujarat their lordships have observed as follows:-
The ordinary criminal process is not to be circumvented or short circuited by ready resort to preventive detention. But, the possibility of launching a criminal prosecution is not an absolute bar to an order of preventive detention. Nor is it correct to say that if such possibility is not present to the mind of the detaining authority the order of detention is necessarily bad. However, the failure of the detaining authority to consider the possibility of launching a criminal prosecution may, in the circumstances of the case, lead to the conclusion that the detaining authority had not applied its mind to the vital question whether it was necessary to make an order of preventive detention. Where an express allegation is made that the order of detention was issued in a mechanical fashion without keeping present to its mind the question whether it was necessary to make such an order when an ordinary criminal prosecution could well serve the purpose, the detaining authority must satisfy the court that question too was borne in mind before the order of detention was made. If the detaining authority fails to satisfy the court that the detaining authority so bore the question in mind the court would be justified in drawing the inference that there was no application of the mind by the detaining authority to the vital question whether it was necessary to preventively detain the detenu.
16. In the backdrops of this decision it was the duty of the detaining authority to satisfy the court in the present case that to make such preventive order. When an ordinary criminal prosecution could well serve the purpose, the detaining authority must satisfy the court that question too was borne in mind before the order of detention was made. In the instant was respondents have utterly failed to satisfy the court that an ordinary criminal prosecution could not serve the purpose. Only because a bail application has been filed by the about, it cannot be presumed that he would be granted bail. This apprehension of the detaining authority further shows that the police had no material in his possession to oppose the prayer for bail before the court of law. If this be the position, the Court will be justified in coming to the conclusion that as because the police has failed to perform its statutory duty by collecting evidence against the detenu-petitioner, in order to overcome its own failure, the sponsoring authorities have suggested the detaining authority, the District Magistrate to take steps under the Act. In our view, this cannot be said to be application of mind by the detaining authority.
17. In the instant case though the respondent No. 3 has filed an affidavit but he has not specifically stated that the petitioner was already in judicial custody and considering his past activities he was subjectively satisfied that if set free or released from jail custody on bail, there was likelihood of the petitioner indulging in criminal activities endangering the public order.
18. On the other hand, the grounds of detention as well as reports of the D.S.P. and the Sr. S.P. Ranchi makes it clear that these two officers were of the opinion that the petitioner, if allowed to remain outside the jail, it would be prejudicial to public order. It appears that the detaining authority in, the instant case was satisfied only from the reports of the police and the materials placed before him that the petitioner is an anti-social element and habitually commits offences punishable under Chapter XVI and XVII of the Indian Penal Code and his movement and Acts are such that adversely affects the public order. This clearly goes to show that the Deputy Superintendent of police and the Sr. Superintendent of Police, Ranchi have arrogated to themselves the knowledge about the subjective satisfaction of the District Magistrate on whom the power is conferred by the Act. The report submitted by the Dy. Superintendent of police and the Sr. S.P., Ranchi to the District Magistrate. Ranchi wherein it has been specifically stated that it was apprehended that the petitioner who is at present in Ranchi jail and has applied for bail, if enlarged on bail, public order will be disturbed. There is nothing to show that these was awareness in the mind of the District Magistrate, the detaining authority of the fact that the petitioner was in jail at the time of clamping of the order of detention and the detaining authority was satisfied in considering his antecedents and previous criminal acts, that there is likelihood of his indulging in criminal activities jeopardizing the public order if he is enlarged on bail and that there is every likelihood that the petitioner may be released on bail within a short time.
19. In almost similar circumstances the Apex Court in the case of Gulab Mehra (supra) has held that on these grounds alone the order of detention is invalid. Their lordships were also of the opinion, as observed by us, that the respondents can very well oppose the bail application when it comes for hearing and if at all the appellant released on bail, the respondents are not without any remedy. They can file an application in revision for cancellation of bail order. In such circumstance, their lordships held that passing of the order of detention of the appellant, who is already in custody, is fully bad and, as such, the same is invalid in law.
20. Strong reliance has been placed by Mr. V. Shivnath in the case of Mrs. Harpreet Kaur Harvinder Singh Bedi v. State of Maharastra and Anr. reported in 1992 SC 979 and in the case of Smt, Kailash Laxman Joshi v. B. Akashi, Commissioner of Police, Thana and Ors. reported in 1995 Cr LJR 231. In the case of Harpreet Kaur (supra) their lordships, while interpreting provisions of Section 2(a) of the Maharastra Prevention of Dangerous Activities of Slumlords Bootleggers and Drug Offenders Act, 1981, have observed that it is the fall our of the activities of the bootleggers which determine whether the public order has been affected within the meaning of its deeming provisions or not. This Legislative intent, according to their lordships, has to be kept in view while dealing with detention under the Act. On such interpretation being given, their lordships distinguished the cases of Om Prakash , Rashid Mian and Piyush Kantilal Male . According to their lordships the activities of the detenu were not merely of bootlegging as was the position in the aforesaid two cases but were further to adversely affect even the tempo of the society by creating feeling of insecurity among those who were likely to depose against him as also the law enforcement agency. The facts and circumstances of Harpreet Kanr's case, in our opinion, was entirely different. In the aforesaid case the allegation was that though the detenu was apprehended after much effect, he was admitted to bail by the Magistrate on the condition that he would attend the police station every day till certain date. The detenu failed to carry out the condition and his bail was cancelled. He was taken into custody. However, he moved the Sessions Court against the cancellation of his bail and was again admitted to bail. During investigation of that case, the police recorded the statements of four witnesses who were, however, willing to make statements only on the condition of anonymity, fearing retaliation from the detenu in case they deposed against him. This very character of the detenu, Harpreet Kaur, let the detaining authority to pass an order of detention under the Maharastra Prevention of Dangerous "Activities of Slumlords, Bootleggers and Drug Offenders Act, 1981 and scrutinising the activities of the detenu their lordships were of the opinion that public order was deemed to have been adversely affected.
21. Similarly, in the case of Smt, Kailash Laxman Joshi (supra) a Division Bench of the Bombay High Court, on consideration of the facts and circumstances upheld the order of detention. Para 43 of the judgment reads as under.-
Thus it will be noticed that the demands for the ransom payment under threats have been made by the petitioners and his associates from the businessmen and ship-keepers from a particular locality. All the victims are. non else than shop-keepers with whom otherwise the petitioner and his associates have to dealings or connection whatsoever. It is not a case of singling out a particular shop-keeper or shop-keepers fro payment of ransom moneys but demand expected to be complied with by shop-keepers in the locality whenever such demand is made by the petitioner and his associates. It is not as if the demand and threat following it were intended only against the victims referred to in the incidents. It is clear that the demand had been made as part of a scheme to extort money from all the shop-keepers under threat that their continuous running of business and their lives would be in danger if ransom demand is not met with. The manner in which the demand was made from the various shop-keepers, referred to in the grounds, would have certainly made all the shop-keepers in the locality feel apprehension /that they too will be forced to make payment to the petitioner and his associates.
22. It is to be noticed that in the aforesaid Bombay case the target of the detenu was a particular locality in which she used to terrorise the businessmen and shop-keepers of that locality. However, in the instant case there is no such allegation against the petitioner-detenu. One incident is said to have taken place at Kachahari road and the second one at North Office Para, Doranda which are admittedly not the same locality.
23. Apart from this the respondents have not suggested either in the grounds of detention or in their counter affidavit that before these two incidents the petitioner was indulged in other criminal activities and he was previously in jail. It is not the case that after releasing on bail in connection with some other previous cases the petitioner has indulged in similar activities as stated in the grounds of detention. Under this circumstances, we cannot but hold that the passing of the order of detention of the petitioner who is already in custody, is fully bad and, as such, the same is invalid in law.
24. Learned G.P.I, has laid much emphasis on the term 'Anti Social Element' with reference to Section 2(d)(1) of the Bihar Control of Crimes Act, 1981. Continuing his argument, he submits that the aforesaid two grounds for passing the order of detention are sufficient to hold that the petitioner-detenu is an 'anti social element'. According to him, the petitioner habitually commits or attempts to commit or abates the commission of offenders punishable under chapter XVI and XVII of the Indian Penal Code and this fact led the detaining authority to satisfy that his detention under the Act is necessary for preventing any further problem regarding public order. In our considered opinion, the argument of Mr. Shivnath is misconceived.
25. In the case of Sri Mustakmiyan (supra) the Supreme Court had the occasion to deal with the word 'habit while interpreting Clause (c) of Section 2 of the Gujarat Prevention of Antisocial Activities Act, 1985. Section 2(c) of the said Act reads as under:-
Dangerous person' means a person who either by himself or as a member or leader of a gang habitually commits or attempts to commit or abates the commission of any offence punishable under chapter XVI and chapter XVII of the IPC or any of the offences punishable under Chapter V of the Arms Act, 1959.
26. Thus it will appear that in place of the term 'anti social element' as mentioned in the Act, in the Gujarat Act, the term dangerous person' has been inserted. Their lordships of the Supreme Court noticed that the detenu Mustakmiyan had as many as five criminal antecedents. A chart has been given in para 2 of the judgment and on consideration, their lordships held that they were the incidents directed against single individuals having no adverse effect on public order disturbing even the tempo of life or even the tranquillity of the locality. According to the Superme Court such casual and isolated incidents can hardly nave any implication which may affect even the tempo of life or jeopardise the public order and incite the public to make further breaches of law and order which may result in subversion of the public order. It has been held that the term 'habitual 'means constant, customary and addicted to specified habit and the term 'habitual criminal' may be applied to any one who has been previously convicted of a crime to the sentence and committed to prison more than twice. According to their lordships, the word 'habitually' means usually and generally.
27. In the case of Bijay Narayan Singh v. State of Bihar which has been referred in Mustakmiyan's case (supra), the Supreme Court construed the expression 'habitually' to mean repeatedly or persistently and observed that it implies a thread of continuity stringing together similar repetitive acts but not isolated, individual and dissimilar acts and that repeated, persistent and similar acts are necessary to justify an inference of habit.
28. On the backdrops these authorities pronouncements of their lordships of the Supermen Court, are of the opinion that the respondents have failed to make out any case against the detenu-petitioner which can justify in holding the petitioner to be 'anti social element'.
29. Considering all aspects of the matter we are of the opinion that the detaining authority has passed the impugned order of detention against the petitioner without application of mind and, therefore, the detention order cannot be sustained.
30. In the result, we allow the writ application and quash the order of detention.