Kanu Biswas v. State of West Bengal

Judgment

The Judgment of the Court was delivered by 1. This is a petition through jail under article 32 of the Constitution for issuing a writ of habeas cor:iws by Kanu Biswas, who has been ordered by the District Magistrate 24- .Parganas to be detained under seption 3 of the Maintenance of Internal ,Security Act, 1971 (A~t 26 of 1971) "with a view to preventing him from acting in any manner prejudicial to the maintenance of public order." The order of detention was made by the District Magistrate on November 13, 1971. The petitioner was arrested in pursuance of the detention order on November 14, 1971 and was· served the same day with the order as well as the grounds of detention to- . gether with vernacular translation thereof.' On November 18, 1971 the District Magistrate sent r~port to the State Government about the passing of the detention order along with the grounds of detention and other necessary particulars.

The State Government considered the matter and approved the detention order on November 24, 1971, Necessary 'report was also sent on that day by the State Government to the Central Government. On Decem~ ber 13, 1971 the State Government placed the case of the. petitioner before the Advisory Board. In the meanwhile, on December 12, 1971 the State Government received a representation of the petitioner. The representation was considered by the State Government and was rejected on January 11, 1972. The representation was thereafter forwarded to the Advisory Board. The Board, after considering the material placed before it, including the petitioner's representation, and after hearing the petitioner in person, sent its report to the State Government on January 14, 1972. Opinion was expressed by the Board that there was sufficient cause for the detention of the petitioner. On February 2, 1972 the State Government confumed the order for the detention ()f the petitioner.

Communication about the confirmation of the order was thereafter sent to the petitioner. Affidavit of Shri. B. Mukhopadhya, District Magistrate of 24~ Parganas, who passed the impu~ned order, has been filed in opposition to the petition. Mr. Bagga has argued the case amict.s ctrrin~ on he.ha1( nf th petitioner, while the State has been reprc- 'Sented by Mr. Chakravarti. It has. been arg\}ed on behalf of the petitioner that the particular acts on account of which the order for the detention of ,the p~ti­ tioner has been made were not germane to the maintenance of p1.1blic order. and, as such, the order for his detention could not be validly made for preventing him from acting in a manner prejudicial to the maintenance of public or.der.

In tl)is respect we find that according to the grounds of detention, the order for .the petitioner's detention was made on the ground that he had been acting in a.mann.er prejudicial to the maintenance of public order as evidenced by the particulars given below; taken separately or collectively' : "That on 26-9-71 at about 18.30 hours while Baidya- ·nath Bandopadhya of Champapukur, P.S. Basirhat, District 24-Parganas along with his wife were travelling in a 3rd class compartment of Up Basirhat local train from Barasat, you along with your associates attacked him and his wife with open knives between Champapukur R/s and Sasirhat R/S and robbed them of Wrist Watch, Gold Ornaments, Cash valued at Rs. 725/- by putting them in fear of deat3. By your such activities you created terror and panic among the travelJing passengers and public order was disturbed thereby.

On 4-11-71 at about 21.40 hours, you and your associates armed with bombs, daggers, knives and iroo rods etc. attacked police on the p1atfonn at Beliaghata railway station with a view to take their lives and to intimida~e the public you charged two bombs which. exploded with terrible sound endangering the on-duty police. Your such action was so violent that it created panic and confusion among th~. passengers there. then. You have thus acted in a manner prejudicial to the maintenance of public order." It would appear from the above that the petitioner and his associates attacked a husband and wife with open. knives in the third class compartment of a running train and robbed them of valuable property, including wrist watch~ gold ornaments and cash by put· ting them in fear of death. The grounds of detention f_urther show that the above act of the petitioner and his associates created terror and panic among the travelling passengers and thereby disturbed public order.

The second incident which took place at 9.40 p.m. on November 4, 1971 related to the attack by the petitioner and his associates on a police party on the ·platform of _Beltaghata railway station with a view to kill them. The petit!oner and his associates are stated to have been then anned with bombs, daggers, knives and iron rods and they exploded two bombs KANU BISWAS v. STATE (Khanna, J.} with terrible sound. It is further stated that the above zt of thepetitioner and his associates created panic and comusioo among the passengers and thus disturbed public order. p:am ane: of the: above two incidents of September 26, 1971 and November4, 1971,. in our opinion, affected public order and not merely law and order .. 8 ' . The distinction between the ~oricept of public order and that of Jaw and order has been adverted to by this Court in a riuniber· cf cases. In th~case of Dr. Ram Manohar Lohia v. State of BiharC), Hida~atullah J. (as he then was) said that any contra-· vention of law always affected order, but before it could be said to affect public order, it must affect the community at large.

He considered three concepts, law and order, public order and thesecurity of the State, and observed that to appreciate the scope and extent of each one of them, one should 'imagine . the concentric· circles.. The largest of them represented law and order, next represented public order and the smallest represented the security of the State. An act might affect law and order but not publicorder, just as -an act might affect public order but not the security of the State. In the subsequent case of Arun Ghosh v. State of' West Bengal(2), the Court dealt with the matter in the following words: "Public order is the even tempo of the life of the· community taking the country as a whole or even a spe-· cified locality., .Disturbance of public order is to be distinguished from acts. directed against individuals which: do not disturb· the society to the exte.nt of causing a ~eneral disturbance of public tranquility.

It is thedegree of disturbance and its effect upon the life of thecommunity in a locality which detennines whether tJtedisturbance amounts only to a breach of law and ()rder. Take for instance, a man stabs another. People may qe· 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 jeopardized because the repercussions of the act embrace large sections of the community and incite them to make further breaches of the law and order and to subvert the public order. An Act by itself is not determinant of its own gravity. In its y_uality it may not differ from another but in its potentiality it may be ve:y different." (t) [1966] 1 s.c.R. 709. (2) [1970] 3 S.C.R. 288. sso St!PR'E'ME COURT. lt'EPORTS [1973]

1 s c. a. tioll whell\er a rnan has only. commirre·d a bteach ·Thd qn:r or has .acted in a rtlMHret hlc'ety ·to cause a dislu ~ law th~rpublic ~er, ~cordittg to ttre dicttun laid down in thera~ce ase is a quest-rort of 4egf'ee and the extent of the reach of th ve J; ~ the society. PUbl!c order is what t~e French call .. ;rdct ~blique" and is somethmg more than ordu1ary maintenanc er faw and order. The test to be ~dopted in det_ennining Wheth!r ~~ , act affects law and order o~ publtc order, as latd down in the abo 8 <Jase, is : Does it lead to dtsturbanc~ of the current of life of ~: ! .community so as to amou~t t? .a dtsturb~nce of the public order 'Or does it affect merely an n~dlVldual leavmg the tranquility of th :society undil>turbed ? The principle enunciated above has been followed by this Court in the case of Nagendra Nath Monda/ v. State of West Ben. C ;ga[(l) and Nand/a/ Roy @ Nonda Dulal Roy @ Pagla v. State of West Bengal (WP No. 15 of 1972, decided on March ll, 1972.)

In the light of what has been observed abov~. we have no doubt 1hat each one of tte incidents of September 26, 1971 and No,·cmber 4, 1971 was prejudicial to the m&intenanc.-e of public order. 1 .When two passengers are robbed at the point of knife while tra- -velling in a third class compartment of a running train, the act of the miscreants affects not only the passengers who are deprived -of their valuables but a~o the other passengers who watch th~ whole thing in fear as helpless spectators. There is bound to be ·consequent terror and panic amongst the travelling public. Likewi~e. attack. directed ayainst a police party on the platfor~ of a E ' railwa~ s~uon by exploding bombs is bound to create pante and _confust~n a~ong the passengers at the railway station. The acts tn q~cstton tn the very nature of thinas would adversely affect the even tempo of life of the community "and causl! a ger.erll distur· bance of public tranquility.

Reference has been made on behalf of the petitioner to the r ~ase of Sudhir Kumar Saha v. Commissioner of Police, Calcutta & Anr (2 ) Th t.t. om . d · e pe 1 toner m that case along with ·ot ers c · mttte vanous acts on tilree occasions. On the first occasion'bo ~:~c~e~hthe people of a locality wlth a knife and by hurling bOt of em. 9° the other two occasions he attacked the pe<>P e G ~3other locahty by hurling bombs at them It was held that the ~~\ ~nts were not interlihkcd aud could n~t have prejudiced tM n enance of public order. bch~f 0~r,~~~~t the above solitary decision, Mr. Chakrdvarti 1 down In the /espondent-State has referred to the principl¢ :J.s well us in th: ~! Artin Ghosh v. State of West Bengal (suff:st ~ Bt'ngal (supra) Ase of Nagendra Nath Monda/ v. State of. the part frorn tb~ two C09e6, we fiiid that ln 0) l!YI~JI S.C.R. 4,18. )60. (2} [1970) )S.C.It· KANU BISWAS v. STATE (Khanna, J.) cas.e of Tapan Kumar Mukherjee arzd Ors. v. State of West BengafC) ·the allegation against the detenu was that he along with other associates committed robbery in respect of a fan and a watch at the point of dagger in a running train, and this created disturbance of public order.

Contention was raised that the act of the detenu and his associates related only to law and order and not to public order. This content,ion was repelled and it was observed that the innocent passengers would be terror stricken by the acts of the detenu and his associates. Another incident which was referred to in that case related to throwing of bombs on a shop. The bombs exploded arrd as a result of the panic so caused in the locality,. all the shops and houses around the place were closed. The above ground was held by this Court to be germane to the disturbance of public order. In case of Nandlal Roy (supra), the ground of detention recited that the detenu and his associates while committing theft of rice from a wagon threw bombs upon the members of the Railway Protection Force. One member of the Railway Protection Force was injured. The explosion of the bombs was stated to have created panic in the station area and the adjoining locality.

It was hel<l that t,he activity of the petition~r created not merely a question of the maintenance of la.w and order but created a disturbance which would be comprehended by the eJI!pression "order publique". The detention order was consequently upheld. lh S. K. Kedar v. State of West Bengal,•(WP No. 35 of 1972' decided on May 2, 1972) the allegation against. the Qetenu W<!.S. that be and his assoc4\tes while removing railway ma~fi~l charged bombs and ballast upon R.P·.F. party ~s· a consequence of whicb· the members of R.P.F. party fired in self-defence. The activity· of the petiti:>ner was considered to be prejudicial to the maintenance of public order anti. tM detention orqer 'was upheld. The facts of the pres~nt case are much more akin to those of Tapan Kumar Mukherjee and Ors. v. State of West Bengal' (supra). The past actjvities of the p,etitioner as revealed in the· grounds of detention, jn our opiniof1.! showed ~ propensity· to disturb public order.

The authority cdncerned, in the circumstances, could have validly ma4e the order for the detention of the peti·. tioner to prevent him, from acting in a manner prejudidal to the: maintenance of publio ordct\ The petition consequently fails and is dismissed. V.R.S. P~tition dismissed. (1) A.T.R. 1972 S.C. 840.