Madras High Court
N.Indirani vs The Secretary To Government on 18 August, 2013
Author: S.Manikumar
Bench: S.Manikumar
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 18.08.2013 CORAM THE HONOURABLE MR.JUSTICE S.MANIKUMAR AND THE HONOURABLE MR.JUSTICE V.S.RAVI H.C.P.(MD).263 of 2014 N.Indirani W/O.Nallu, 88-B, Mahalipatti Road, Nagupillai Thoppu, Madurai-625 001. : Petitioner Vs. 1.The Secretary to Government, Home, Prohibition and Excise Department, Fort St. George, Chennai. 2.The District Collector/District Magistrate, Ramanathapuram District, Ramanathapuram. : Respondents Prayer Writ of Habeas Corpus is filed under Article 226 of the Constitution of India, calling for the records pertaining to the detention order dated 02.02.2014 in Vide No.2/Goonda/2014, passed by the second respondent and quash the same as illegal and further direct the Respondents to produce the body of the detenue viz., Raja @ Nagamurugan, S/o.Nallu aged 26/14 detained at Central Prison, Madurai before this Court and set him at liberty. !For Petitioner : M/s.Eddy and Emboss Law Firm Mr.S.J.Chakkaravarthy ^For Respondents : Mr.C.Ramesh Additional Public Prosecutor :ORDER
(Order of the Court was made by V.S.RAVI, J.) The petitioner is the mother of the detenu, namely Raja @ Nagamurugan and in view of the detention order passed by the second respondent, in No.2/Goonda/2014, dated 02.02.2014, her son has been designed as a "Goonda" . She has come forward with the petition before this Court to quash the said order of detention passed by the second respondent.
2.Brief averments made in the petition as well as the contention put forth on behalf of the petitioner by the counsel for the petitioner are as follows;-
2.1.The detenue has come to the adverse notice of the police in three cases. The first case has been registered in Cr.No.68 of 2013 under Sections 147, 148, 341, 427 and 302 IPC on the file of C2 Subramaniapuram Police Station, Madurai. The second adverse case has been registered in Cr.No.142 of 2012 for the offence under Section 302, 201 IPC r/w 34 IPC on the file of B4 Keeraithurai Police Station. The third adverse case has been registered in Cr.No.749 of 2010 for the offences under Sections 392 r/w 397 and 506 (ii) IPC. The second adverse case has ended in acquittal. The first adverse case is under investigation and the third adverse case is pending trial, when the order of Detention came to be passed. The ground case came to be registered on 07.01.2014, in Cr.No.3/2014 for the offences under Sections 147, 341, 323, 365 IPC @ 147, 148, 341, 323, 324, 387, 364(A), 307 IPC on the file of Rameswaram Temple Police Station.
2.2. The order of detention has been assailed on the following grounds. The second respondent failed to note that the ground case can be dealt with under ordinary law of the land and there is no necessity to invoke the preventive detention, as against the detenu.
2.3.The petitioner has made a representation to the first respondent on 11.02.2014 to the Principal Secretary to Government. On 03.03.2014, the said representation has been rejected by the Deputy Secretary of the Government, who is not the competent authority.
2.4.Apart from that there is a delay in considering the said representation.
2.5.Further, the grounds of detention, has defective translation. At para 1 of the grounds of detention in English version it has been stated that 'the detenu has surrendered in adverse case in Cr.No.68/2013 before the learned Judicial Magistrate, Natham on 02.02.2014 and produced before the Judicial Magistrate No.IV, Madurai, on 05.02.2014. But, the above sentence has not been stated in the Tamil version of the grounds of detention.
2.6.In the grounds of detention, there are unfilled blanks with regard to the proceedings number and the date of detention. Therefore, it would vitiate the entire proceedings and it also shows the non application of mind of the Detaining Authority.
2.7.Further, the detenu has not been furnished with the copy of the complaint alleged to have been given by the complainant P.Murugan in the ground case, in Cr.No.3/2014 and it has caused prejudice to the detenu in making an effective representation and hence, the Detention order is liable to be quashed on that ground also.
2.8.The booklet furnished to the detenu namely the document relied upon by the Detaining Authority, is not legible and readable, more particularly page Nos.2, 4, 35, 36, 37, 65, 66, 67, 68, 81 to 86 and hence, the detenu is prejudiced. Details of the documents, furnished to the detenu, have been done as an empty formality.
2.9.The Detaining Authority has furnished the detention order to the detenu on 03.02.2014 and the affidavit filed by the Sponsoring Authority has been furnished to the detenu on 06.02.2014. Lateron, booklet of documents, has been supplied to the detenu on 07.02.2014. The above dates and events have clearly show that perception and conception are in favour of the detenue and that the Detaining Authority has passed the order of Detention without perusing the affidavit of the Sponsoring Authority, as well as the booklet. Furnishing of copy of the grounds of detention, as well as booklet of documents, on various dates are against the mandatory provisions of Section 8(1) of the Act 14 of 1982.
2.10.Photographs of the accused has been published in the newspaper and placed in the booklet of the documents served on the detenue, and that the same has been placed before the Detaining Authority. The same is not permissible, without the permission of Magistrate under Section 5 of Identification of Prisoners Act, 1920 and that the same has not even looked into nor any clarification has been sought for, by the Detaining Authority, which shows non application of mind. Hence, the order of Detention is liable to be quashed.
2.11.In support of his contention, learned counsel for the petitioner has relied on the following judgments;-
i) 2011 (1) MWN (Cr) 599(DB) (Mageswari v. The Government of Tamil Nadu), wherein this Court has clearly held as follows;
?Therefore, we are of the view that the supply of copies of materials relied on along with the grounds of detention is also the requirement of the said provisions to enable the detenu to make an effective representation at the earliest point of time.?
In the present case also, it is seen that the copies of material documents have not been furnished to the detenu, with full particulars and details, in time. Further, the Respondents have not come forward with any counter, explaining the delay.
(ii) Further, in the case reported in 2013 (1) LW (Cri) 161 ( R.Shanmugavalli V. The State of Tamil Nadu, Rep by its Secretary, Home, Prohibition and Excise Department and Anr.), it is clearly held as follows;- ?The consistent judicial view of the Hon'ble Apex Court and the Division Bench of this Court is that there cannot be any violation of such statutory provisions in the matter of curtailing a person's liberty and the procedural safeguards incorporated in section 8(1) of Act 14 of 1982?.
3. Based on the counter affidavit filed by the second respondent, Mr.C.Ramesh, learned Additional Public Prosecutor submitted that the detention order has been passed, after arriving at a subjective satisfaction, that there is compelling necessity to detain the detenu, in order to prevent him from acting in a manner prejudicial to the maintenance of Public Order. The detenu came to adverse notice habitually and his activities have been found prejudicial to the maintenance of Public Order, which has been well established by the documents and materials supplied to the detenu. Further, after perusal of all the documents and materials placed before the second respondent, by the Sponsoring Authority and after arriving at the subjective satisfaction on the materials placed, the detenu has been ordered to be detained. The representation of the petitioner dated 11.02.2014 has been duly considered and remarks on the representation has been sent to the first respondent vide Ref.No.2/Goonda/2014 dated 24.02.2014. All the particulars in the grounds of detention have been correctly filled up and the Detention Order has been passed only after perusal of all the documents. Even though the copy of complaint has not been served, the Sponsoring Authority has registered First Information Report, only on the basis of the complaint given by the defacto complainant and that the same has been served to the detenu. All the pages in the booklet furnished to the detenu are legible and readable and further, the detenu has not given any representation to the Detaining Authority regarding the said submission. The Detention Order has been passed following the procedure and after arriving at a subjective satisfaction. In view of the above, the learned Additional Public Prosecutor, prays for dismissal of the present Habeas Corpus Petition.
3.1. Further, in support of his contention, the learned Additional Public Prosecutor relied on the decision of the Honourable Supreme Court reported in (2012) 2 SCC 389 (G.REDDEIAH v. GOVT. OF A.P.), wherein it is held as follows;-
?Preventive Detention. Purpose of Preventive Detention. Held is not to punish detenu for something he has done but to prevent him from doing it.? Further, each case has to be decided on the facts and circumstances, and situation of the particular case, on hand.
3.2.Further, in the judgment reported in CDJ 2007 MHC 5033 (Andal vs. District Magistrate and District Collector, Tiruvannamalai District & Another), it is clearly held as follows;-
"The mandate enacted in the Section is a safety valve for a citizen who is robbed of his liberty and to disable the authorities from manipulating the grounds of detention. The section has to be interpreted literally. No relaxation is permissible."
4. Based on the contentions of both sides, the following point arises for consideration:
i)Whether the petitioner is entitled to get the above mentioned relief, for the reasons stated in the present petition?
ii) Whether the order of preventive detention has been passed, on proper and valid grounds?
5. The detenue has come to the adverse notice of the police in three cases, and the above mentioned second adverse case has already ended in acquittal as per the said Detention Order. From the materials available on record, it could be seen that the detenu has been arrested on 07.01.2014 in connection with the ground case in Cr.No.3 of 2014, and he has been granted bail in Cr.M.P.No.217 of 2014, by the order of the learned Principal Sessions Judge, Ramanathapuram, dated 30.01.2014, as it is evident from the copy of the order enclosed at page number 99 of the booklet. It is pertinent to point out that the detention order has been passed on 02.02.2014. Learned counsel for the petitioner has categorically pointed out that there is no bonafide in the action of the Detaining Authority in passing the Detention Order on 02.02.2014, after knowing fully well that bail has been granted to the detenu by the Trial Court.
6. The petitioner has stated in the affidavit enclosed with the petition, that the petitioner has submitted a representation to the first respondent on 11.02.2014 and as per the information given in the grounds of detention, the said representation has been rejected by the Authority on 03.03.2014 and also, there has been an undue delay in considering the representation of the petitioner sent to the first respondent, by the proper Authority. Further, at page number 28 of the typed set of papers enclosed along with the petition, the petitioner has enclosed the letter of the official dated 03.03.2014 rejecting the representation dated 11.02.2014 sent by the petitioner. The order has been signed, by the Deputy Secretary to Government. The Deputy Secretary has only conveyed the decision of the Government and therefore, the contention that the rejection is by an incompetent authority, cannot be countenanced. There has been delay in considering the said representation submitted by the petitioner to the first respondent.
7. Further, in ground number 5, the petitioner has specifically stated that the grounds of detention has defective translation, as in the para 1 of the grounds of detention in English version, it has been stated that 'the detenu has surrendered in adverse case in Cr.No.68/2013 before the Judicial Magistrate, Natham on 02.02.2013 and produced before the Judicial Magistrate No.IV, Madurai, on 05.02.2013 and, the above sentence has not been stated in the Tamil version of the grounds of detention. The said defective translation has been seen at page nos.13 and 19 of the booklet furnished by the respondents, to the detenu. Further at ground number 8, it has been stated that the detenu has not been furnished with the copy of the complaint alleged to have been given by the complainant P.Murugan in the ground case in Cr.No.3/2014. On that ground the petitioner has rightly raised an objection to the effect that the detenu is prejudiced in making effective representation, by comparing the complaint with the FIR and on such ground, the detention order is liable to be quashed. In the counter affidavit also, the second respondent has admitted that the said copy of complaint has not been served. In the judgment dated 13.09.2008 in H.C.P.(MD).No.906 of 2008 (Indira v. Govt. of Tamil Nadu), this Court has clearly held as follows:-
"Further, the details of the complaints were not furnished in the adverse cases. This would show that there is non-application of mind on the part of the detaining authority and there is also pre determination on the part of the sponsoring authority. Therefore, the impugned order of detention is liable to be set aside."
8. Further at ground number 10, as rightly pointed out by the petitioner, the document at page number 85 of the booklet, is not legible and thus, the detenu was prejudiced. The petitioner has pointed out at, ground number 11 that the Detaining Authority has furnished the detention order to the detenu on 03.02.2014 and the affidavit filed by the Sponsoring Authority has been supplied to the detenu on 06.02.2014. The booklet of the document has been furnished to the detenu on 07.02.2014. The contention of the petitioner is that mandatory provision, Section 8(1) of the Act 14 of 1982 has not been followed.
8.1. On the aspect of computation of period, it is worthwhile to consider a decision of the Supreme Court in Jitender Tyagi v. Delhi Administration and another reported in AIR 1990 SC 487, wherein, the Apex Court had an occasion to consider, as to how, the period has be to be computed. That was a case, where a contention was raised that the approval of the State Government was not done, within 12 days, from the date of passing of the order of detention. The detention order was passed on 19.01.1989, under NSA Act, 1980. The Administrator of Delhi approved the order on 31.01.1989. Addressing the issue, the Apex Court, at Paragraphs 4, 7, 8, 13 and 16, held as follows:
?Under sub-section (4) of section 3, "no such order shall remain in force for more than twelve days after the making thereof unless, in the meantime, it has been approved by the State Government". The question that arises for our consideration relates to the computation of the period of twelve days. To be more explicit, the question is whether in computing the period of twelve days, the day on which the order of detention is passed should be included or not. It is submitted on behalf of the petitioner that the day on which the order of detention was passed should be included and the order approving the detention having been passed on January 31, 1989, that is, on the thirteenth day after the expiry of twelve days, it had ceased to be in force.
7. Now, we may consider the question as to the computation of twelve days as referred to in sub-section (4) of section 3. Sub-section (4), inter alia, provides that when an order is made by an officer mentioned in sub-
section (3), he shall forthwith report the facts to the State Government. It is contended on behalf of the petitioner that under sub-section (4), the officer has to act forthwith after the making of the order in reporting the fact to the State Government and this is sufficient indication that the day on which the order of detention is made should be included in computing the period of twelve days.
8. In our opinion, sub-section (4) has given a clear indication as to the computation of twelve days. The period of twelve days has to be calculated 'after' the making of the order of detention. Thus, it is apparent that the period of twelve days comes after the making of the order of detention. It is true that in sub-section (4), the officer making the order of detention shall forthwith report the fact to the State Government, but the word 'forthwith' will not be taken into consideration for the purpose of computing the period of twelve days inasmuch as there is a clear indication that the said period shall be computed after the order is made. In other words, sub-section (4) itself excludes the day on which the order is made. Computation of twelve days including the day on which the detention order is made will be ignoring the direction of the legislature, as given in sub- section (4) itself, that the said period of twelve days will commence after the making of the detention order. It is, however, submitted that when two interpretations are possible, that which ensures to the benefit of the detenu should be accepted. In our opinion, sub-section (4) admits of only one interpretation regarding the computation of twelve days and, accordingly, the question as to the adoption of the interpretation which ensures to the benefit of the detenu does not arise.
13. Thus, it is apparent from the above decision that the day on which the cause of action arises has to be excluded in computing a particular period of time and, in the instant case, such an exclusion has to be made in view of the word "after" in sub-section (4) of section 3 of the Act.
16. ........Be that as it may, we have no hesitation in holding that in computing the period of twelve days referred to in sub-section (4) of section 3 of the Act, the day on which the order of detention was passed should be excluded and, upon such computation, it must be held that the approval of the order of detention was made within twelve days after the making of the order of detention.?
8.2. It is worthwhile to extract the decision made in Haru Das Gupta v. State of Bengal, [1972] 3 SCR 329, referred to in Jitender Tyagi's case, which is as follows:
?12. In Haru Das Gupta v. State of Bengal, [1972] 3 SCR 329, the question was whether under section 12 of the West Bengal (Prevention of Violent Activities) Act, 1970, the order or decision of the State Government confirming the detention order was made within three months from the date of detention. In holding that in computing the said period of three months, the date of detention shall be excluded, this Court has laid down that the effect of defining a period from such a day until such a day within which an act is to be done is to exclude the first day and to include the last day. This Court has agreed to the view expressed by Wills, J. in Ratcliff v. Bartholomew, [1892] 1 Q.B. 161 that a complaint under the Prevention of Cruelty to Animals Act filed on June 30 in respect of an act alleged to have been committed on May 30 was "within one calendar month after the cause of such complaint shall arise". The principle on the basis of which that view was expressed by Wills, J. is that the day on which the cause for the complaint arose had to be excluded while computing the period within which under the Act, the complaint had to be filed.?
8.3. In P.Sivakami v. State of Tamil Nadu reported in 2012 (2) LW (Crl.) 679, a Hon'ble Division Bench of this Court considered a similar case, involving computation of the period of detention. The detention order was passed on 27.04.2012. It was served on 02.05.2012. One of the contentions, challenging the order of detention was that, there was a violation of Section 8(1) of the Act, in that, the detention order was not served within five days, from the date of detention. Answering the issue, as to how, the period has to be computed, after considering a decision of the Apex Court in Tarun Prasad Chatterjee v. Dinanth Sharma reported in 2000 (8) SCC 649, the Hon'ble Division Bench of this Court at Paragraph 7, rejected the ground of delay, in furnishing the grounds of detention, as follows:
?7.Considering the ratio laid down by the Hon'ble Apex Court, we are of the view that the date of detention order will have to be excluded for the purpose of calculating five days period, which has been mentioned under Section 8(1) of the Act, for communicating documents pertaining to the detention order. Therefore, this contention of the learned counsel for the Petitioner is liable to be rejected and accordingly rejected.?
8.4. It is also worthwhile to extract the decision made in Tarun Prasad Chatterjee v. Dinanth Sharma reported in 2000 (8) SCC 649, referred to in P.Sivakami's case, as follows:
?10.Section 9 of the General Clauses Act 1897 gives statutory recognition to the well-established principle applicable to the construction of statutes that ordinarily in computing the period of time prescribed, the rule observed is to exclude the first and include the last day.
11.In Halsbury's Laws of England, 37th Edn., Vol.3, p.92, it is stated as follows:
"Days included or excluded.-- When a period of time running from a given day or even to another day or event is prescribed by law or fixed as contract, and the question arises whether the computation is to be made inclusively or exclusively of the first-mentioned or of the last mentioned day, regard must be had to the context and to the purposes for which the computation has to be made. Where there is room for doubt, the enactment or instrument ought to be so construed as to effectuate and not to defeat the intention of Parliament or of the parties, as the case may be. Expressions such as 'from such a day' or 'until such a day' are equivocal, since they do not make it clear whether the inclusion or the exclusion of the day named may be intended. As a general rule, however, the effect of defining a period in such a manner is to exclude the first day and to include the last day."
12.Section 9 says that in any Central Act or regulation made after the commencement of the General Clauses Act, 1897, it shall be sufficient for the purpose of excluding the first in a series of days or any other period of time, to use the word "from", and, for the purpose of including the last in a series of days or any period of time, to use the word "to". The principle is that when a period is delimited by statute or rule, which has both a beginning and an end and the word "from" is used indicating the beginning, the opening day is to be excluded and if the last day is to be included the word "to" is to be used. In order to exclude the first day of the period, the crucial thing to be noted is whether the period of limitation is delimited by a series of days or by any fixed period. This is intended to obviate the difficulties or inconvenience that may be caused to some parties. For instance, if a policy of insurance has to be good for one day from 1st January, it might be valid only for a few hours after its execution and the party or the beneficiary in the insurance policy would not get reasonable time to lay claim, unless 1st January is excluded from the period of computation."
In the light of the above decisions, we are not in agreement with the contentions of the learned counsel for the petitioner, on the aspect of violation of Section 8(1) of the Act.
9. Though the learned counsel for the petitioner has submitted that the photograph of the accused has been published in the newspaper, and that the same has been placed before the Detaining Authority, which is not permissible, without the permission of Magistrate under Section 5 of Identification of Prisoners Act, 1920 and on that ground also, the detention order is liable to be quashed, we are not in agreement with the said contention, for the reason that it has no relevance to the subjective satisfaction arrived at by the detaining authority, in the context, in which the petitioner has raised the abovesaid ground.
10. Though the learned counsel for the petitioner has not made any contention as to whether public order was affected, we on our own perused the entire materials. None of the statements recorded from the witnesses under Section 161(3) of the Criminal Procedure Code indicate that public order was affected. Statements recorded from them only indicate that an offence has been committed against an individual. There is no material in the entire booklet indicating that the place where the offence was committed and the manner in which it was committed has affected peace and tranquility of the area or locality. At this juncture, we wish to consider few judgments of the Apex Court as to what 'public order' means:-
(1) In Revana Siddaiah Vs. State of Mysore, reported in AIR 1952 Mys 85 ; (1952) Crl.L.J. 1526, it has been held that 'public order' has a comprehensive meaning so as to include public safety in its relation to the maintenance of public order and maintenance of public order involves consideration of public safety. They are closely allied concepts.
(2) In Menon, M.P. Vs. State, reported in AIR 1953 Tr & Coch 540 :
(1953) Cr.L.J. 1786, it has been held that the 'public order' in the State list must be interpreted to include public safety in its relation to maintenance of public order, as both of them being interdependent.
(3) The difference between the law and order and public order has been very succinctly stated in Ram Manohar Lohiya (Dr.) v. State of Bihar reported in AIR 1966 SC 740 = 1966 Crl.L.J 608, wherein, it is stated that:
?It will thus appear that just as ?public order? in the rulings of this Court (earlier cited) was said to comprehend disorders of less gravity than those affecting ?security of State?, ?law and order? also comprehends disorders of less gravity than those affecting ?public order?. One has to imagine three concentric circles. Law and order represents the largest circle within which is the next circle representing public order and the smallest circle represents security of State. It is then easy to see that an act may affect law and order but not public order just as an act may affect public order but not security of the State. But using the expression ?maintenance of law and order? the District Magistrate was widening his own field of action and was adding a clause to the Defence of India Rules.?
(4) In Pushkar Mukherjee v. State of West Bengal reported in 1969 (1) SCC 10 = AIR 1970 SC 852, at Paragraph 14 and 15, the Apex Court, held as follows:
?Does the expression ?public order? take in every kind of infraction of order or only some categories thereof. It is manifest that every act of assault or injury to specific persons does not lead to public disorder. When two people quarrel and fight and assault each other inside a house or in a street, it may be said that there is disorder but not public disorder. Such cases are dealt with under the powers vested in the executive authorities under the provisions of ordinary criminal law but the culprits cannot be detained on the grounds that they were disturbing public order. The contravention of any law always affects order but before it can be said to affect public order, it must affect the community or the public at large. In this connection we must draw a line of demarcation between serious and aggravated forms of disorder which directly affect the community or injure the public interest and the relatively minor breaches of peace of a purely local significance which primarily injure specific individuals and only in a secondary sense public interest. A mere disturbance of law and order leading to disorder is thus not necessarily sufficient for action under the Preventive Detention Act but a disturbance which will affect public order comes within the scope of the Act. A District Magistrate is therefore entitled to take action under s. 3(1) of the Act to pre- vent subversion of public order but not in aid of maintenance of law and order under ordinary circumstances."
(5) In Arun Ghosh vs. State of W.B, reported in 1970 (1) SCC 98 = 1970 SCC (Crl) 67, it has been held that ?the question whether a man has only committed a breach of law and order, or has acted in a manner likely to cause a disturbance of the public order, is a question of degree and the extent of the reach of the act upon society. The test is: Does it lead to a disturbance of the even tempo of the life of the community so as to amount to a disturbance of the public order, or, does it affect merely an individual without affecting the tranquility of society.?
(6) In the above reported case, the Hon'ble Mr.Justice Hidayatullah, had an occasion to deal with the question of 'public order' and 'law and order'. In this judgment, by giving various illustrations, very serious effort has been made to explain the basic distinction between 'public order' and 'law and order'. The relevant portion reads as hereunder:
"3...."Public order was said to embrace more of the community than law and order. Public order is the even tempo of the life of the community taking the country as a whole or even a specified locality. Disturbance of public order is to be distinguished from acts directed against individuals which do not 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. Take for instance, a man stabs another. People may be shocked and even disturbed, but the life of the community keeps moving at an even tempo, however much one may dislike the act. Take another case of a town where there is communal tension. A man stabs a member of the other community. This is an act of a very different sort. Its implications are deeper and it affects the even tempo of life and public order is jeopardised because the repercussions of the act embrace large sections of the community and incite them to make further breaches of the law and order and to subvert the public order. An act by itself is not determinant of its own gravity. In its quality it may not differ from another but in its potentiality it may be very different. Take the case of assault on girls. A guest at a hotel may kiss or make advances to half a dozen chamber maids. He may annoy them and also the management but he does not cause disturbance of public order. He may even have a fracas with the friends of one of the girls but even then it would be a case of breach of law and order only. Take another case of a man who molests women in lonely places. As a result of his activities girls going to colleges and schools are in constant danger and fear. Women going for their ordinary business are afraid of being waylaid and assaulted. The activity of this man in its essential quality is not different from the act of the other man but in its potentiality and in its affect upon the public tranquillity there is a vast difference. The act of the man who molests the girls in lonely places causes a disturbance in the even tempo of living which is the first requirement of public order. He disturbs the society and the community. His act makes all the women apprehensive of their honour and he can be said to be causing disturbance of public order and not merely committing individual actions which may be taken note of by the criminal prosecution agencies. It means therefore that the question whether a man has only committed a breach of law and order or has acted in a manner likely to cause a disturbance of the public order is a question of degree and the extent of the reach of the act upon the society."
(7) Distinguishing the aspects of "Law and Order" and "Public Order", in Amiya Kumar Karmakar Vs. State of West Bengal, reported in (1972) 2 SCC 672 : AIR 1972 SC 2259, the Apex Court held that the true distinction between the areas of "law and Order" and "public Order" lies not merely in the nature of quality of the act, but in the degree and extent of its reach upon society. Acts similar in nature, but committed in different contexts and circumstances, might cause different reactions. In one case, it might affect specific individuals only, and therefore, touches the problem of law and order only, while in another it might affect "public Order".
(8) The Apex Court in Babul Mitra v. State of W.B. (1973) 1 SCC 393) had an occasion to deal with the question of 'public order' and 'law and order'. The Court observed that the true distinction between the areas of 'law and order' and 'public order' is one of degree and extent of the reach of the act in question upon society. The Court pointed out that the act by itself is not determinant of its own gravity. In its quality it may not differ but in its potentiality it may be very different.
(9) In Dipak Bose v. State of W.B. (1973) 4 SCC 43, a three-Judge Bench of the Supreme Court explained the distinction between 'law and order' and 'public order' by giving illustrations. Relevant portion reads as under:
(SCC p. 46, para 4) "4.....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 life of the localities in which they are committed. There is nothing in the two incidents set out in the grounds in the present case to suggest that either of them was of that kind and gravity which would jeopardise the maintenance of public order. No doubt bombs were said to have been carried by those who are alleged to have committed the two acts stated in the grounds. Possibly that was done to terrify the respective victims and prevent them from offering resistance. But it is not alleged in the grounds that they were exploded to cause terror in the locality so that those living there would be prevented from following their usual avocations of life. The two incidents alleged against the petitioner, thus, pertained to specific individuals, and therefore, related to and fell within the area of law and order. In respect of such acts the drastic provisions of the Act are not contemplated to be resorted to and the ordinary provisions of our penal laws would be sufficient to cope with them.
(10) In Ram Ranjan Chatterjee Vs. State of West Bengal reported in (1975) 4 SCC 143 : AIR 1975 SC 609 (611), the Hon'ble Supreme Court held that the acts which "Law and Order" are not different from the acts which affect "public Order". Indeed, a state of peace or orderly tranquility which prevails as a result of the observance or enforcement of internal laws and regulations by the Government, is a feature common to the concepts of 'law and order' and 'public order'.
(11) The Apex Court Court in another important case Ashok Kumar v. Delhi Admn. (1982) 2 SCC 403) clearly spelled out a distinction between 'law and order' and 'public order'. In this case, the Court observed as under:(SCC pp. 409-10, para 13) ?13.The true distinction between the areas of 'public order' and 'law and order' lies not in the nature or quality of the act, but in the degree and extent of its reach upon society. The distinction between the two concepts of 'law and order' and 'public order' is a fine one but this does not mean that there can be no overlapping. Acts similar in nature but committed in different contexts and circumstances might cause different reactions. In one case it might affect specific individuals only and therefore touch the problem of law and order, while in another it might affect public order. The act by itself therefore is not determinant of its own gravity. It is the potentiality of the act to disturb the even tempo of the life of the community which makes it prejudicial to the maintenance of public order 17??It is the length, magnitude and intensity of the terror wave unleashed by a particular act of violence creating disorder that distinguishes it as an act affecting public order from that concerning law and order. Some offences primarily injure specific individuals and only secondarily the public interest, while others directly injure the public interest and affect individuals only remotely. The question is of the survival of the society and the problem is the method of control.?
(12) In Ajay Dixit vs. State of U.P and others, reported in 1984 (4) SCC 400, the Apex Court observed that the contravention 'of law' always affects 'order' but before it could be said to affect 'public order', it must affect the community or the public at large. One has to imagine three concentric circles, the largest, representing ?law and order?, the next representing, ?public order? and the smallest, representing ?security of State?. An act may affect ?law and order? but not ?security of the State?. Therefore, the Apex Court observed that one must be careful in using these expressions.
(13) In State of U.P vs. Hari Shankar Tewari, reported in 1987 (2) SCC 490, the majority opinion of the judgment of the Allahabad High Court in Ashok Dixit vs. State, (Full Bench) extracted in Hari Shankar Tewari's case reads as follows:-
"A solitary assault on one individual which may well be equated with ordinary murder can hardly be said to disturb public peace or place public order in jeopardy so as to bring the case within the purview of the Act. It can only raise a 'law and order' problem and no more. Assaulting an individual in a bus or train on account of enmity may affect only certain individuals; but if the assault is made indiscriminately in the bus or train and passengers are harassed indiscriminately, the same would be likely to endanger public order as this kind of incident is bound to have such impact that it will disturb the even tempo of life of the community. The act or incident which may be attributed to the detenu may be reprehensible and yet if it concerns only specific individuals and it has no impact on the general members of the community and has no potentiality of disturbing the even tempo of life of the people, it cannot be held to be an activity prejudicial to public order."
(14) In Angoori Devi Vs. Union of India, AIR 1989 SC 371 : (1989) 1 SCC 385, the Hon'ble Apex Court held that if the act is confined to an individual without directly or indirectly affecting the tempo of the life of the community, it may be a matter of law and order only. But where the gravity of the act is otherwise and likely to endanger the public order.
(15) In Piyush Kantilal Mehta v. Commissioner of Police reported in 1989 Supp (1) SCC 322, at Paragraph 16, the Supreme Court held as follows:
?A person may be very fierce by nature, but so long as the public generally are not affected by his activities or conduct, the question of maintenance of public order will not arise. In order that an activity may be said to affect adversely the maintenance of public order, there must be materials to show that there has been a feel- ing of insecurity among the general public. If any act of a person creates panic or fear in the minds of the members of the public upset- ting the even tempo of life of the community, such act must be said to have a direct bearing on the question of maintenance of public order. The commission of an offence will not necessarily come within the purview of 'public order'." (16) In Abdul Razak Nannekhan Pathan v. Police Commissioner, Ahmedabad reported in 1989 (4) SCC 43, the petitioner therein was clamped under the detention laws, describing him as a dangerous and terrible person, in the area. He was alleged to have committed offences, affecting human body in the area, by holding deadly weapons; robbing and demanded money in the area in drunken condition. Statement of four persons, residing in the area, were recorded by the Police. In some of the cases, the petitioner therein was acquitted. Though statements were recorded, names and addresses of the witnesses, were disclosed, because they were afraid of damage to their person, and property and their safety. It was contended that the petitioner therein had acted in a manner prejudicial to the maintenance of the public order. After observing that the cases registered against the petitioner therein disclosed only particular persons, which has nothing to do with the maintenance of public order, the Supreme Court, at Paragraph 13, held as follows:
?The other three cases which are under investigation also relate to assault to private individuals and they have nothing to do with the disturbance of even tempo of the life of the community or of men of a particular locality nor does it affect the even flow of life of the public as a whole. Section 3(1) clearly mandates that the order of detention can be made only when the State Government or its authorised officer has come to a subjective satisfaction that a person is required to be detained in order to prevent him from acting in any manner prejudicial to the maintenance of the public order. Sub- section 4 embodies a deeming clause to the effect that a person should be deemed to act in any manner prejudicial to the maintenance of public order when such person is engaged in any activities as a dangerous person which affect ad- versely or are likely to affect adversely the maintenance of public order. Explanation 2 clause 4 further provides that for the purpose of this sub-section public order shall be deemed likely to be affected adversely or shall be deemed likely to be affected adversely inter alia if any of the activities of any person referred to in this sub-section directly or indirectly, is causing or is likely to cause any harm, danger or alarm or feeling of insecurity among the general public or any section thereof or a grave or wide-spread danger of life, property or public health. Coming to this particular case, the criminal cases mentioned in the grounds do not refer to any dangerous, harmful or adverse act or alarm which gives rise to a feeling of insecurity for the general public amongst the persons of a locality. The criminal cases are confined to certain private individuals and it is merely a law and order problem and it has nothing to do with maintenance of public order. Its reach and effect is not so deep as to affect the public at large. It does not create or tend or create any panic in the mind of people of particular locality or public in general nor it affects adversely the maintenance of public order. There is nothing to show that the above activities of the petitioner have affected or tended to affect the even tempo of fife of the community. An act may create a law and order problem but such an act does not necessarily cause an obstruction to the maintenance of public order.?
(17) In T.Devaki vs. Government of Tamil Nadu and others, reported in 1990 (2) SCC 456, the detenue threw a knife towards a Minister, which according to the State was with an intention to kill him, but he missed the target, lateron, he was overpowered by the police. A case under Sections 147, 148, 307 r/w Section 149 IPC and Section 27 of the Indian Arms Act was registered and that he was detained. One of the grounds alleged was that there is no public order and it was only a case of law and order. After extracting the incident as described in the grounds of detention, in paragraph 17 of the judgment, on the aspect, as to whether the said act falls within the parameters of public order, the Supreme Court, at paragraphs 18 and 19, held as follows:-
?18.The question which falls for consideration is whether single incident of murderous assault by the detenu and his associates on the Minister at the Seminar held at Dry Chilly Merchants' Association Kalai Arangam Hall was prejudicial to the maintenance of public order. Any disorderly behaviour of a person in the public or commission of a criminal offence is bound to some extent affect the peace prevailing in the locality and it may also affect law and order problem but the same need not affect maintenance of public order. There is basic difference between law and order' and 'public order', this aspect has been considered by this Court in a number of decisions, see: Dr. Ram Manohar Lohia v. State of Bihar, [1966] 1 SCR 709; Pushkar Mukherjee & Ors. v. The State of West Bengal, [1969] 2 SCR 635 and Shymal Chakra- borty v. Commissioner of Police Calcutta & Anr., [1970] 1 SCR
762. In these cases it was emphasised that an act disturbing public order is directed against individuals which does not disturb the society to the extent of causing a general disturbance of public peace and tranquillity. It is the degree of disturbance and its effect upon the life of the community in the locality which determines the nature and character of breach of public order.
In Arun Ghosh v. State of West Bengal, [1970] 3 SCR 288 the Court held that the question whether a man has only committed a breach of law and order, or has acted in a manner likely to cause disturbance of the public order, is a question of degree and the extent of the reach of the act upon the society. This view was reiterated in Nagendra Nath Mondal v. State of West Bengal, [1972] 1 SCC 498; Sudhir Kumar Saha v. Commissioner of Police, Calcutta, [1970] 3 SCR 360; S.K. Kedar v. State of West Bengal, [1972] 3 SCC 816; Kanu Biswas v. State of West Bengal, [1972] 3 SCC 831; Kishori Mohan v. State of West Bengal, [1972] 3 SCC 845 and Amiya Kumar Karmakar v. State of West Bengal, [1972] 2 SCC 672.
19.........It is alleged that the attempted murderous assault on Thiru Durai Murugan created scare and a feeling of insecurity in the minds of the persons present in the hail and the detenu's action interrupted the "proceedings of the Seminar for a while" (emphasis supplied). This shows that the detenu's activity disturbed the proceedings of the Seminar for a while but the Seminar appears to have continued later on. The incident did not and could not affect public peace and tranquillity nor it had potential to create a sense of alarm and insecurity in the locality. How could a single murderous assault on the Minister concerned at the Seminar could prejudicially affect the even tempo of the life of the community? No doubt, in paragraph 4 of the grounds the detaining authority has stated that by committing this grave offence in public, in broad day light, the detenu created a sense of alarm, scare and a feeling of insecurity in the minds of the public of the area and there by acted in a manner prejudicial to the maintenance of public order which affected even tempo of life of the community. Repetition of these words in the ground are not sufficient to inject the requisite degree of quality and potentiality in the incident in question. A solitary assault on one individual can hardly be said to disturb public peace or place public order in jeopardy so much as to bring the case within the purview of the Act. Such a solitary incident can only raise a law and order problem and no more. Moreover, there is no material on record to show that the reach and potentiality of the aforesaid incident was so great as to disturb the normal life of the community in the locality or it disturbed general peace and tranquillity. In the absence of such material it is not possible to hold that the incident at the seminar was prejudicial to the maintenance of public order. In Manu Bhusan Roy Prodhan v. State of West Bengal & Ors., [1973] 3 SCC 663 this Court held that a solitary assault on one individual, which may well be equated with an ordinary murder which is not an uncommon occurrence, can hardly be said to disturb public peace and its impact on the society as a whole cannot be considered to be so extensive, widespread and forceful as to disturb the normal life of the community, thereby shaking the balanced tempo of the orderly life of the general public. The Court held that the detention order which had been made for preventing the petitioner from acting in a manner prejudicial to the maintenance of public order, was not sustainable in law. On a careful consideration of the matter in all its aspects and having regard to the circumstances in which the alleged incident took place on 29.7.89, we are of the opinion that the solitary incident as alleged in the ground of detention is not relevant for sustaining the order of detention for the purpose of preventing the petitioner from acting in a manner prejudicial to the maintenance of public order.?
(18) In Mageswari Vs. District Magistrate and District Collector of Salem, reported in 1991 (1) MWN Crl. 28, a Hon'ble Division Bench of this Court has held that "An act disturbing "public order" is one which is directed against the society and not against an individual in the sense, that, it does not disturb the society to the extent of causing a general disturbance of public peace and tranquility. It is the degree of disturbance which affects the life of the community in the locality which determines the nature and character of breach of public sector.
(19) In Harpreet Kaur (Mrs) Harvinder Singh Bedi vs. State of Maharashtra and others, reported in 1992 (2) SCC 177, it was a case of bootlegging. It was alleged that in furtherance of his activities and escape from the clutches of law, he even tried to run over, by his speeding vehicle, the police party, which tried to signal him, to a stop, exhorting all the time that, he would kill any one, who come in his way, He continued to drive in a reckless speed and dashed against a pedestrian causing injuries to him, where again, he had exhorted that any one, who would come in his way, would meet death. Four witnesses who agreed to give statements to the police, on conditions of anonymity, clearly stated that they would not depose against the detenu, for fear of retaliation, as the detenu had threatened to do away with any one who would depose against him. Evidence of these witnesses were taken into consideration, for arriving at the subjective satisfaction, that the activities had impact on the members of the community. On the aspect, as to whether the above alleged objectional activities, had any prejudicial effect and whether they were prejudicial to the maintenance of public order, the Hon'ble Supreme Court, at paragraphs 13 to 16, 18, 24 and 25, held as follows:-
10. "Public Order" or "Law and Order" are two different and distinct concepts and there is abundance of authority of this Court drawing a clear distinction between the two. With a view to determining the validity or otherwise of the order of detention, it would be necessary to notice the difference between the two concepts.
After extracting the judgments in Ram Manohar Lohia v. State of Bihar, AIR 1966 SC 740 and Arun Ghosh v. State of West Bengal, [1970] 1 SCC 98, the Apex Court considered the following decisions:-
13. A Constitution Bench in Madhu Limaye v. Ved Murti, [1970] 3 SCC 738 again dealt with the question and it was observed:
"In our judgment, the expression `in the interest of public order' in the Constitution is capable of taking within itself not only those acts which disturb the security of the State or act within order publique as described but also certain acts which disturb public tranquillity or are breaches of the peace. It is not necessary to give the expression a narrow meaning because, as has been observed, the expression `in the interest of public order' is very wide."
14. In Kanu Biswas v. State of West Bengal, [1972] 3 SCC [p.756] 831, this Court opined:
"The question whether a man has only committed a breach of law and order or has acted in a manner likely to cause a disturbance of the public order,... is a question of degree and the extent of the reach of the act upon the society . Public order is what the French call "ordre publique" and is something more than ordinary maintenance of law and order. The test to be adopted in determining whether an act affects law and order or public order, as laid down in the above case, is: Does it lead to disturbance of the current of life of the community so as to amount to a disturbance of the public order or does it affect merely an individual leaving the tranquility of society undisturbed?"
15. In Ashok Kumar v. Delhi Administration, [1982] 2 SCC 403 this Court re-examined the question and observed:
"The true distinction between the areas of `public order' and `law and order' lies not in the nature of quality of the act, but in the degree and extent of its reach upon society. The distinction between the two concepts of `law and order' and `public order' is a fine one but this does not mean that there can be no overlapping. Acts similar in nature but committed in different contexts and circumstances might cause different reactions. In one case it might affect specific individuals only and therefore touch the problem of law and order, while in another it might affect public order. The act by itself therefore is not determinant of its own gravity. It is the potentiality of the act to disturb the even tempo of the life of the community which makes it prejudicial to the maintenance of public order."
16. In Subhash Bhandari v. District Magistrate, Lucknow, [1987] 4 SCC 685, a Division Bench of this Court has held:
"A solitary act of omission or commission can be taken into consideration for being subjectively satisfied, by the detaining authority to pass an order of detention if the reach, effect and potentiality of the act is such that it disturbs public tranquility by creating terror and panic in the society or a considerable number of the people in a specified locality where the act is alleged to have been committed. Thus it is the degree and extent of the reach of the act upon the society which is vital for considering the question whether a man has committed only a breach of law and order or has acted in a manner likely to cause disturbance to public order."
18. From the law laid by this Court, as noticed above, it follows that it is the degree and extent of the each of the objectionable activity upon the society which is vital for considering the question whether a man has committed only a breach of `law and order' or has acted in a manner likely to cause disturbance to `public order'. It is the potentiality of the act to disturb the even tempo of life of the community which makes it prejudicial to the maintenance of `public order'. Whenever an order of detention is questioned, the courts apply these tests to find out whether the objectionable activities upon which the order of detention is grounded fall under the classification of being prejudicial to "public order" or belong to the category of being prejudicial only to `law and order'. An order of detention under the Act would be valid if the activities of a detenu affect `public order' but would not be so where the same affect only the maintenance of `law and order'. Facts of each case have, therefore, to be carefully scrutinised to test the validity of an order of detention.
24. Crime is a revolt against the whole society and an attack on the civilization of the day. Order is the basic need of any organised civilized society and any attempt to disturb that order affects the society and the community. The distinction between breach of `law and order' and disturbance of `public order' is one of degree and the extent of reach of the activity in question upon the society. In their essential quality, the activities which affects `law and order' and those which disturb `public order' may not be different but in their potentiality and effect upon even tempo of the society and public tranquility there is a vast difference. In each case, therefore, the courts have to see the length, magnitude and intensity of questionable activities of a person to find out whether his activities are prejudicial to maintenance of `public order ' or only `law and order'.
25...... Respect for law has to be maintained in the interest of the society and discouragement of a criminal is one of the ways to maintain it. The objectionable activities of a detenu have, therefore, to be judged in the totality of the circumstances to find out whether those activities have any prejudicial affect on the society as a whole or not. If the society, and not only an individual, suffers on account of the questionable activities of a person, then those activities are prejudicial to the maintenance of `public order' and are not merely prejudicial to the maintenance of `law and order'.
(20) In Kamlakar Shankar Patil Vs. B.Akashi, reported in (1994) Cr.L.J. 1870, it has been held that 'public order' has a very wide connotation and the same is the basic need in any organised society. It implies to the orderly State of society and community in which citizens can peacefully pursue their normal activities of life.
(21) In Darpan Kumar Sharma v. State of Tamil Nadu reported in 2003 (1) Crimes 446 (SC) = AIR 2003 SC 832, the petitioner therein robbed one person at knife point. He was detained under Act 14 of 2014. Three other cases, registered at various police stations, were also disclosed in the order of detention. Alleging that the petitioner therein would induldge in activities, prejudicial to the maintenance of the public order, he was detained. Upon considering the materials on record, the Supreme Court, at Paragraph 6, observed that, ?Therefore, there is no material on record to show that the reach and potentiality of the single incident of robbery was so great as to disturb the even tempo or normal life of the community in the locality or disturb general peace and tranquillity or create a sense of alarm and insecurity in the locality. Though in the grounds of detention the detaining authority had stated that by committing this offence in public the detenu created a sense of alarm, scare and a feeling of insecurity in the minds of the public of the area and thereby acted in a manner prejudicial to the maintenance of public order which affected even tempo of life of the community, but citation of these words in the order of detention is more in the nature of a ritual rather than with any significance to the content of the matter.?
(22) In Murugan @ Senthilvel @ Kumar vs. The District Collector, Kanyakumari District, Nagercoil and another, reported in 2004 (1) MWN (Cr.) 244 (DB), at paragraph 22, this Court has held as follows:-
22. This makes us to conclude that the last adverse case and the ground case have a solitary instance, upon which, the order of detention was clamped against the detenu. It was repeatedly held that there should be material on record to show that the reach and potentiality of the single incident was so great as to disturb even the tempo or normal life of the community in the locality or to disturb the general peace and tranquility or create a sense of alarm and insecurity in the locality. Mere words in the nature of ritual in the order of detention may not be sufficient.
(23) In Commr. of Police v. C. Anita ((2004) 7 SCC 467) this Court again examined the issue of 'public order' and 'law and order' and observed thus: (SCC pp. 471-72, paras 7, 12 and 13) "7.....The crucial issue is whether the activities of the detenu were prejudicial to public order. While the expression 'law and order' is wider in scope inasmuch as contravention of law always affects order, 'public order; has a narrower ambit, and public order could be affected by only such contravention which affects the community or the public at large. Public order is the even tempo of life of the community taking the country as a whole or even a specified locality. The distinction between the areas of 'law and order' and 'public order' is one of the degree and extent of the reach of the act in question on society. It is the potentiality of the act to disturb the even tempo of life of the community which makes it prejudicial to the maintenance of the public order. If a contravention in its effect is confined only to a few individuals directly involved as distinct from a wide spectrum of the public, it could raise problem of law and order only. It is the length, magnitude and intensity of the terror wave unleashed by a particular eruption of disorder that helps to distinguish it as an act affecting 'public order' from that concerning 'law and order'. The question to ask is:
''Does it lead to disturbance of the current life of the community so as to amount to 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 its facts.
12. The true distinction between the areas of law and order and public order lies not merely in the nature or quality of the act, but in the degree and extent of its reach upon society. Acts similar in nature, but committed in different contexts and circumstances, might cause different reactions. In one case it might affect specific individuals only, and, therefore, touches the problem of law and order only, while in another it might affect public order. The act by itself, therefore, is not determinant of its own gravity.
In its quality it may not differ from other similar acts, but in its potentiality, that is, in its impact on society, it may be very different.
13. The two concepts have well-defined contours, it being well established that stray and unorganised crimes of theft and assault are not matters of public order since they do not tend to affect the even flow of public life. Infractions of law are bound in some measure to lead to disorder but every infraction of law does not necessarily result in public disorder. Law and order represents the largest scale within which is the next circle representing public order and the smallest circle represents the security of State. "Law and order" comprehends disorders of less gravity than those affecting "public order" just as "public order" comprehends disorders of less gravity than those affecting "security of State".? (24) In Kausalya v. The District Collector reported in 2005 (1) MLJ (Cri.) 612, a Manager of a Temple was brutally murdered, while he was in the office of the temple. Detention orders were issued, holding that crimes were committed in public place, which created fear and panic and a feeling of insecurity in the minds of the people of the area and thereby, acts committed were in the manner prejudicial to the maintenance of public order. Detention orders were challenged on the grounds that there were no materials to support the same. After considering a catena of decisions, the Hon'ble Division Bench of this Court, at Paragraph 13 of the judgment summaried the principles to be taken into consideration, ?(1) The maintenance of law and order relates to the crimes committed by private individuals. The maintenance of public order relates to the disturbance to the even tempo of the life and public tranquility and its effect upon the life of the community in a locality.
(2) Every assault in a public place, resulting in the death of a victim, may cause panic to those who are spectators, but that does not mean that the said incident would cause disturbance or dislocation of the community life of the locality, in the absence of the material that the act is committed in a public place to cause terror to the people in the locality so that they would be prevented from following their usual avocations. (3) The impact on "public order" and "law and order" depends upon the nature of the act, the place where it is committed and the motive force behind it (emphasis supplied). If the act is confined to an individual without affecting the tempo of the life of the community, it is a matter of law and order only and it may not fall within the orbit of public order. (4) In order to bring the activity so as to show that it would affect the maintenance of public order, there must be material to show that there has been a feeling of insecurity among the general public. (5) The mere words in the grounds of detention "by committing this grave offence in public, the detenu created a sense of alarm, scare and a feeling of insecurity in the minds of the public of the area" would not be sufficient to inject the requisite degree of quality and potentiality to show that the incident was so grave as to disturb the normal life of the community in the locality, in the absence of such materials.?
Ultimately, at Paragraph 51, the Hon'ble Division Bench of this Court held as follows:
?51. To sum up: The sponsoring authority neither collected nor placed any material before the detaining authority to enable the authority to arrive at a subjective satisfaction to conclude that due to the ground incident which took place on 3.9.2004 in which Sankararaman, the Manager of the temple was done to death inside his office, there is a disturbance to the public order and even tempo of the life has been greatly affected, thereby the detenus created a sense of scare and a feeling of insecurity in the minds of the community in the locality. Even then, the detaining authority has mechanically passed the detention orders which are in question before this Court, although the incidents quoted in the detention orders do not attract the disturbance to the public order. The failure of the detaining authority to verify about the applicability of the disturbance to the public order in these cases would vitiate the detention orders and therefore, those orders are held to be not legal and accordingly, the same are quashed.?
(25) In the judgment of the Hon'ble Apex Court, reported in 2008 (9) SCC 89 (K.K.Saravana Babu V. State of T.N.) in respect of Tamil Nadu Act 14 of 1982, the allegation against the detenu was with regard to land grabbing.
In the said decision the Apex Court dealt with the distinction between "public order" and "law and order".
?15. This Court on several occasions examined the concepts of 'law and order' and 'public order'. Immediately after the Constitution came into force, a Constitution Bench of this Court in Brij Bhushan v. State of Delhi (AIR 1950 SC 129) dealt with a case pertaining to public order. The Court observed that 'public order' may well be paraphrased, in the context as 'public tranquillity'.
16. Another celebrated Constitution Bench judgment of this Court is in Romesh Thappar v. State of Madras (AIR 1950 SC 124). In this case, Romesh Thappar, a printer, publisher and editor of a weekly journal in English called Cross Roads, printed and published in Bombay, was detained under the Madras Maintenance of Public Order Act, 1949. The detention order was challenged directly in the Supreme Court of India by filing a writ petition under Article 32 of the Constitution. The allegation was that the detenu circulated documents to disturb the public tranquillity and to create disturbance of public order and tranquillity. The Court observed:(AIR p. 127, para 7) 'Public order' is an expression of wide connotation and signifies that state of tranquillity which prevails among the members of a political society as a result of the internal regulations enforced by the Government which they have established, ... it must be taken that 'public safety' is used as a part of the wider concept of public order' (26) In V.Jagadeeskumar vs. Government of Tamil Nadu, reported in 2010 (3) CTC 246, this Court held as follows:-
16. The allegation made against the detenu is that he is indulging in activities prejudicial to the maintenance of public health and public order by way of advertisement in electronic media by giving false promise and collecting huge sums of money by inducing the patients.
The court, on the facts and circumstances held that ?The said activity, prejudicial to the maintenance of public health, will definitely come under the meaning of disturbance of public order.? It is worthwhile to consider the decisions therein.
(a) In the decision reported in (1995) 3 SCC 237 (Mustakmiya Jabbarmiya Shaikh v. M.M.Mehta), 'public order' and 'law and order' are explained by the Supreme Court in paragraph 9, which reads thus,--
"9. Further, sub-section (1) of Section 3 of the Act confers power on the State Government and a District Magistrate or a Commissioner of Police, under the direction of the State Government to detain a person on being satisfied that, it is necessary to do so, with a view to preventing him from acting in any manner prejudicial to the maintenance of 'public order'. The explanation attached to sub-section (4) of Section 3 reproduced above in the foregoing para contemplates that 'public order' shall be deemed to have been affected adversely or shall be deemed likely to be affected adversely inter alia if any of the activities of any person referred to in sub-section (4) directly or indirectly, are causing or is likely to cause any harm, danger or alarm or feeling of insecurity among the general public or any section thereof or a grave or widespread danger to life, property or public health. Sub-section (4) of Section 3 also provides that for the purpose of Section 3, a person shall be deemed to be acting in any manner prejudicial to the maintenance of public order when such person is a 'dangerous person' and engaged in activities which affect adversely or are likely to affect adversely the maintenance of public order. It, therefore, becomes necessary to determine whether besides the person being a 'dangerous person' his alleged activities fall within the ambit of the expression 'public order'. 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 exclusively 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 treat 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. Judgment in Arun Ghosh v. State of W.B. ((1970) 1 SCC 98 : 1970 SCC (Cri) 67), is referred.
(b) In (2004) 7 SCC 467 (Commissioner of Police v. C.Anita), the meaning of 'law and order' and 'public order' were discussed and held as follows:
"7. ........ The crucial issue is whether the activities of the detenu were prejudicial to public order. While the expression 'law and order' is wider in scope inasmuch as contravention of law always affects order, 'public order', has a narrower ambit, and public order could be affected by only such contravention which affects the community or the public at large. Public order is the even tempo of life of the community taking the country as a whole or even a specified locality. The distinction between the areas of 'law and order' and 'public order' is one of the degree and extent of the reach of the act in question on society. It is the potentiality of the act to disturb the even tempo of life of the community which makes it prejudicial to the maintenance of the public order. If a contravention in its effect is confined only to a few individuals directly involved as distinct from a wide spectrum of the public, it could raise problem of law and order only. It is the length, magnitude and intensity of the terror wave unleashed by a particular eruption of disorder that helps to distinguish it as an act affecting 'public order' from that concerning 'law and order'. The question to ask is: 'Does it lead to disturbance of the current life of the community so as to amount to 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 its facts."
The said decision is reiterated in (2008) 9 SCC 89 (K.K.Saravana Babu v. State of Tamil Nadu) (27) In R.L.Ashokan vs. State of Tamil Nadu, reported in 2011 (6) CTC 655, the occurrence was in the office of the complainant. On the aspect as to whether it was prejudicial to the maintenance of public order, a Hon'ble Division Bench of this Court, after considering the reasons stated in the grounds of detention that the said acts, caused disruption to public peace and public order, at paragraphs 13 to 15 held as follows:-
13.It is also to be seen whether the detenu's activity had any impact on the local community or in other words, whether the act of the detenu has caused harm, danger, or alarm, or a feeling of insecurity among the general public, or any section thereof. The unlawful activities alleged on the part of the detenu, is against an individual, namely the complainant in the case, and the alleged occurrence took place inside the Office of the detenu. As per the averred facts, the unlawful activity on the part of the detenu, has no potentiality to disturb peace and tranquility and it cannot be termed as causing any harm, danger, or alarm, or a feeling of insecurity among the general public.
14..... According to the crystallised legal position, cases affecting the public order, are those which have great potentiality to disturb peace and tranquillity of a particular locality or in the words of Hidayatullah, J.
disturb the even tempo of the life of the community of that specified locality."
15.In the present case, the alleged act attributed to the detenu affects a specific individual namely the complainant, and it is only a problem of law and order and it cannot be termed as one affecting public order. In such circumstances, the observation of the detaining authority, in paragraph No.4 of the grounds of detention, that the detenu caused disruption to public peace and public order and was acting in a manner detrimental to its maintenance, is not based on any material and it vitiates the order of detention. For the above said reasons, the order of detention is liable to be set aside.
(28) In Leema Rose vs. District Magistrate, (HCP.No.1636/2011, Decided on 29.03.2012), the alleged occurrence is said to have taken place inside the Mill premises, where except the accused, complainant, his driver and Manager, nobody else was present. No statement under Section 161 CRPC was recorded from the member of the public to the effect that public were terrorised. There were no materials in the grounds of detention as to how even tempo of the society was affected. However, by arriving at the subjective satisfaction that the detenu had created panic and feeling of insecurity in the minds of the public of that locality and thereby acted in a manner prejudicial to the maintenance of public order, detention was ordered. One of the contentions raised was that the alleged act did not attract public order and therefore, detention order should be set aside. Opposing the said contention, learned Public Prosecutor has submitted that though the occurrence had taken place inside the Mill premises, since the detenu was involved in four other cases and was a habitual offender, and therefore, the detaining authority has come to the conclusion that he was a Goonda as defined under the Act 14 of 1982 and therefore, the abovesaid facts are more than sufficient to pass an order of detention.
On the aspect as to whether the occurrence had created a public order, the Hon'ble Division Bench held that the facts disclose that the occurrence was inside the Textile Mill of the de facto complainant and not in public place or in presence of public affecting peace of the locality or localities and in such circumstances, it could not be said even tempo of public was affected in the area or areas concerned, attracting public order. On the materials considered , the Hon'ble Division Bench further observed that the detaining authority has not, in detail, considered the particulars and materials relating to the crime numbers, and has not specifically mentioned in the grounds of detention, that the acts committed by the detenu, in respect of the crime numbers, created panic in the mind of the public of that locality or the public were terrorised.
11. Further, it is useful to extract the decision in Senthamilselvi V. State of Tamil Nadu and Another (2006 (5) SCC 676), the Honourable Supreme Court has clearly pointed out as follows:-
?The duty of the Court is to see that efficacy of safeguards provided in the law of preventive detention is not lost in mechanical, routine, dull casualness and chill indifference, on the part of the authorities entrusted with their application and there can be hard-and-fast rule as to the measure of reasonable time for disposal of representation. Therefore, each case has to be considered on its facts.?
In present case also it is found out that the conditions of prevention detention have to be examined and having regard to the facts and circumstance, it is seen that the efficacy of safeguards provided in the law of preventive detention have not been followed by the respondents herein properly.
12. Having considered the facts and circumstances of the present case and the submissions made on behalf of the petitioner raised in the petition, it is seen that the citations relied on by the learned Additional Public Prosecutor is not applicable to the facts and circumstances of the present case and taking note of the ratio laid down by the judgments relied on by the learned counsel for the petitioner, this Court is of the view that the impugned Detention Order has to be set aside, for the above mentioned facts and circumstance and reasons.
13. In the result, the impugned Detention Order in No.2Goonda/2014, dated 02.02.2014, by the second respondent detaining the detenu namely Raja @ Nagamurugan S/o.Nallu, is quashed and the Habeas Corpus Petition is allowed. The detenu is ordered to be set at liberty forthwith, unless his custody is required in connection with any other case.
To
1.The Secretary to Government, Home, Prohibition and Excise Department, Fort St. George, Chennai.
2.The District Collector/District Magistrate, Ramanathapuram District, Ramanathapuram.
3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.