Patna High Court
Binod Kumar Srivastava vs State Of Bihar And Anr. on 21 November, 1985
Equivalent citations: 1986(34)BLJR143
JUDGMENT U.P. Singh, J.
1. The petitioner has challenged the order of detention dated 12-9-1985 contained in Annexure-1, whereby the District Magistrate, Singhbhum, in exercise of his powers under Section 12(1) of the Bihar Control of Crimes Act, 1981 (in short "the Act") has directed that the petitioner be detained with a view to prevent him from acting in any manner prejudicial to the maintenance of public order. The grounds for detention are stated in Annexure 2.
2. While the petitioner was in custody on 12-9-1985 he received the order of detention passed by respondent No. 2. The alleged grounds of detention served on him on 16-9-1985 are:
(1) That on 25-4-1984 while his competitor Ramesh Prasad Yaday was coming back from Ranchi in his car after filing tenders, the petitioner overtook Sri Yadav's car, fired several rounds killing three persons and kidnapped one person. A case was registered under Sections 147, 148, 149, 302 and 364 of the Indian Penal Code and Section 27 of the Arms Act, and the same is under investigation.
(2) On 4-7-1985 the petitioner with his gang followed his competitor Thikedar Sri Jawahar Kishore Roy in a car and kidnapped him with an intention to murder. A case was registered under Sections 147, 148, 341, 342 and 364 of the Indian Penal Code and Section 27 of the Arms Act, Charge sheet has been submitted against the petitioner and others in that case.
(3) On receipt of a confidential report by the Superintendent of Police, Jamshedpur, on 12-9-1985 that the two gangs were likely to fight at the time of filing tenders, Armed Force was deputed to check the criminal. A suspicious jeep was coming from Adityapur which disobeyed the signal and did not stop. It fled away towards Mango. It was later stopped and the petitioner was found driving the jeep. On search one double barrel gun with 16 cartridges were recovered from the jeep and one loaded country made pistol was recovered from the petitioner. Cartridges of rifle and gun were recovered from his associates. During investigation it transpired that the petitioner was going to file tenders and to terrorise. A case under Sections 25-A and 26/35 Arms Act was registered.
3. Besides the three grounds mentioned above, the detaining authority also took into consideration the backgrounds showing that the petitioner was a veteran criminal and an anti-social element. The three backgrounds mentioned are:
(i) That on 13-1-1983, in broad day light, he along with his gang entered the office of R.E.O. Jamshedpur and shot dead his competitor Sri Girish Singh. A case was registered under Sections 147, 148, 149, and 302 of the Indian Penal Code and Section 27 of the Arms Act.
(ii) That on 13-4-1984 while the workers of his competitor were working he along with his gang assaulted the workers and due to fear they fled away. A case was registered under Sections 147, 341, 342 and 323 of the Indian Penal Code.
(iii) That on 25-5-1985 the officer-in-charge registered a case under Section 107 of the Code of Criminal Procedure against the petitioner and 9 others to maintain peace in the area. It was group rivalry.
On these grounds it was alleged that his activities created panic and the people and Government servants are afraid of him and thereby the normal life has been disturbed.
4. As regards ground No. (1) the allegations have been denied as false. It was stated that on the date of the alleged occurrence, the petitioner was hospitalised at Maharajganj Hospital in the district of Siwan at a distance of 500 Kms, from the place of occurrence. On that ground he had been granted anticipatory bail by the High Court primarily because he was found to be an indoor patient in the said hospital between 24-5-1984 to 30-5-1984. It is further stated that the occurrence took place at a distance of 100 Kms, from the place where the petitioner ordinarily resides and, therefore, it could not be said that the alleged occurrence could, in any event, have affected the public order in the mohalla. As regards ground No. (2) it was stated that the allegation was against one Shambhu Singh and the petitioner was named at the instance of the informant party, and no overt act was attributed against the petitioner. As regards ground No. (3) it was stated that the allegations made therein do not come under the purview of the definition' anti-social element' in as much as no overt act was attributed against the petitioner. It would appear from the seizure list that the recovery was made from the car and not from the conscious possession of the petitioner who was travelling in the said car along with others.
5. In so far as the incidents mentioned in the background are concerned it was urged that in the first incident the petitioner was not even named in the first information report. Regarding the second incident the Police has submitted charge sheet which has been accepted by the court below. In so far as background No. (3) is concerned it is stated that case was falsely instituted by the officer-in-charge of Mango Police Station against the petitioner and 9 others.
6. Mr. Garg, learned Counsel appearing for the petitioner contended that:
(a) The alleged grounds did not warrant detention of the petitioner under the provisions of the Bihar Control of Crimes Act, 1981;
(b) even if one of the grounds is bad and non-existent, the entire detention is vitiated;
(c) when the order of detention was served, the petitioner was in jail custody and no special reason was assigned as to why it was necessary to pass the order of detention;
(d) in the case under the Arms Act the petitioner was not found in possession of any arms ; and
(e) even if the allegations are taken into consideration, they do not come under the purview of the definition of Section 2(d)(1) and the facts mentioned in the grounds do not affect the public order.
7. Mr. Garg confined his argument and submitted that the instances mentioned in the grounds are stray acts directed against individuals and are not subversive of public order and, therefore, the detention on the ostensible ground of preventing the petitioner from acting in any manner prejudicial to public order was not justified. Reference may be made to a decision of the Supreme Court in the case of Dipak Bose alias Harpanda v. State of West Bengal A.I.R. 1962 S.C. 2686, wherein it was held:
Every assault in a public place like a public road, and terminating in the death of a victim is likely to cause horror and even panic and terror in those who are the spectators. But that does not mean that all of such incidents do necessarily cause disturbance or dislocation of the community of the localities in which they are committed.
8. In the present case no instance set out in the grounds suggests that either of them was of that kind and gravity which would jeopardise the maintenance of public order. The instances alleged against the petitioner pertain to specific individuals, and, therefore, relate and fall within the area of law and order. In respect of such acts the drastic provisions of the Act are not contemplated to be referred to and the ordinary provisions of our penal laws, would be sufficient to cope with them. In the facts of the present case, however, reprehensible the conduct of the petitioner may be, it cannot be said to amount apprehension of the breach of public order for which alone his detention could be ordered. Disturbance of public order is to be distinguished from acts directed against individuals which do no disturb the society to the extent of causing a general disturbance of public tranquillity. It is the degree of disturbance and its effect upon the life of the community in a locality which determines whether the disturbance amounts only to a breach of law and order. An act by itself is not determinant of its own gravity. In its quality it may not differ from another but in its potentiality it may be very different. Similar acts in different context affect differently law and order on the one hand and public order on the other. It is always a question of degree of the harm and its effect upon the community. The question to ask is ; does it lead to disturbance of the current of life of the community so as to amount a disturbance of the public order or does it affect merely an individual leaving the tranquillity of the society undisturbed ? This question has to be faced in every case on facts. There is no formula by which one case can be distinguished from another.
9. In the case of Vijai Narain Singh v. State of Bihar 1984 (32) B.L.J.R. 384, the Supreme Court had the occasion to consider the relevant provisions of the Bihar Control of Crimes Act, 1981. Section 2(d) of the Act defines the expression 'antisocial element'. Their Lordships after considering the relevant provisions of the Act held that Section 12 of the Act makes provision for the detention of an anti-social element and if a person is not an anti-social element he cannot be detained under the Act. Their Lordships further held that:
This expression 'habitually' means 'repeatedly' or persisently'. It implies a thread of continuity stringing together similar repetitive acts. Repeated, persistent and similar, but not isolated, individual and dissimilar acts are necessary to justify an interference of habit. It connotes frequent commission of acts or omissions of the same kind referred to in each of the said sub-clauses of the aggregate of similar acts or omissions. 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 Section 2(d) and not in Sub-clause (iii) and (v) of Section 2(d). As Section 2(d) of the Act now stands, whereas under Sub-clause (iii) or Sub-clause (v) of Section 2(d) a single act or omission referred to in them may be enough to treat the person concerned as an 'anti-social element', in the case of Sub-clause (i), Sub-clause (ii) or Sub-clause (iv), there should be a repetition of acts or omissions of the same kind referred to in Sub-clause (i), Sub-clause (ii) or in Sub-clause (iv) by the person concerned to treat him as an 'anti-social element. Commission of an act or omission referred to in one of the Sub-clauses (i), (ii) and (iv) and of another act or omission referred to in any other of the said Sub-clauses would not be sufficient to treat a person as an 'anti-social element. A single act or omission falling under Sub-clause (i) and act or omission falling under Sub-clause (iv) of Section 2(d) cannot, therefore, be characterised as a habitual act or omission referred to an either of them. Because the idea of 'habit' involves an element of persistence and a tendency to repeat the acts or omissions of the same class or kind, if the acts or omissions in question, are not of the same kind or even if they are of the same kind when they are committed with a long interval of time between them they cannot be treated as habitual ones. It is well settled that the law of preventive detention is a hard law and therefore it should be strictly construed. Care should be taken that the liberty of a person is not jeopardised unless his case falls squarely within the four corners of the relevant law. The law of preventive detention should not be used merely to clip the wings of an accused who is involved in a criminal prosecution. It is not intended for the purpose of keeping a 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 a person is enlarged on bail by a competent crimi-cal court, great caution should be exercised in scrutining the validity of an order of preventive detention which is based on the very same charge which is to be tried by the criminal court.
10. Since I uphold the contention of the learned Counsel appearing for the petitioner on the above two principal points it is not necessary for me to deal with the other questions raised by the learned Counsel. I have given my anxious consideration to the case and I am of the view that it is not possible to hold that the petitioner can be called an anti-social element 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 authorise the detention of anti-social elements only.
11. In the result I quash the order of detention passed against the petitioner. This petition is accordingly allowed. The petitioner shall be set at liberty forthwith if not wanted in any other case.