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PETITIONER: KANU BISWAS

       Vs.

RESPONDENT: STATE OF WEST BENGAL

DATE OF JUDGMENT03/05/1972

BENCH: KHANNA, HANS RAJ BENCH: KHANNA, HANS RAJ SHELAT, J.M.

CITATION:  1972 AIR 1656            1973 SCR  (1) 546  1972 SCC  (3) 831  CITATOR INFO :  R          1973 SC 295  (7)  R          1974 SC1214  (3)  RF         1975 SC 953  (4,5)  R          1987 SC 998  (6)  R          1987 SC2332  (12)  R          1990 SC 220  (7)  R          1990 SC1086  (18)  RF         1992 SC 979  (10)

ACT: Maintenance  of  Internal Security Act (26 of 1971),  s.  3- Maintenance of public order,’ scope of.

HEADNOTE: 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  by putting  them  in  fear of death on  one  occasion,  and  on another occasion, attacked a police party on the platform of a railway station with bombs. dagger$, knives and iron  rods and  exploded  bombs with a view to kill the  police  party. The  petitioner was detained by an order under s. 3  of  the Maintenance  of  Internal Security Act 1971 with a  view  to preventing him from acting in any manner Prejudicial to  the maintenance  of public order, and the ’grounds of  detention were  that the two incidents created terror and panic  among passengers and disturbed public order. The,  petitioner challenged the order of detention  in  this Court. Dismissing the petition. HELD : Both the incidents referred to in the order  affected public order and not merely law and order. [550 E-F] The  question whether a man only committed a breach  of  law and  order  or  has  act-ad 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.   The test to be adopted in determining whether an act affects law and  order or public order 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  tranquillity  of   the   society undisturbed ? When two passengers are robbed at the point of

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knives  while travelling in a third class compartment  of  a running  train the act affects riot only the passengers  who are   deprived  of  their  valuables  but  also  the   other passengers who are watching in fear as helpless  spectators. Likewise,  the  attack  against  the  police  party  on  the platform of a railway station by exploding bombs is bound to create  panic  and  confusion among the  passengers  at  the railway station.  Consequently, there is bound to be  terror and  panic  amongst the travelling public.   Therefore,  the  acts  in  question,  in the very nature  of  things,  would adversely affect the even tempo of life of the community and cause a general disturbance of public tranquillity. [550  A- F] Tapan  Kumar  Mukherjee and ors. v. State  of  West  Bengal, A.I.R. 1972 S.C. 840. followed. Dr.   Ram Manohar Lohia v. State of Bihar, [1966]  1  S.C.R. 709,  .Arun Ghosh v. State of West Bengal, [1970]  3  S.C.R. 288, Nagendra Nath Mondal v. State of West Bengal, [1972]  1 S.C.C.  498, Nandlal Roy @ Nonda Dulal Roy @ Pagla v.  State of  West Bengal, W.P. No. 15 of 1972, decided on  March  11, 1972.  Sudhir Kumar Saha v. Commissioner of Police  Calcutta and  Anr., [1970] 3 S.C.R. 360 and S. K. Kader v.  State  of West  Bengal,  W.P.  35  of 1967 decided  on  May  2,  1972, referred to.                             547

JUDGMENT: ORIGINAL JURISDICTION: Writ Petition No. 46 of 1972. S, K. Bagga, for the, petitioner. Prodyot  Kumar  Chakravarty and G. S.  Chatterjee,  for  the respondent. The Judgment of the Court was delivered by Khanna, J. This is a petition through jail under article  32 of the Constitution for issuing a writ of habeas cot-pus  by Kanu Biswas, who has been ordered by the District Magistrate 24Parganas to be detained under section 3 of the Maintenance of Internal Security Act, 1971 (Act 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 together with  vernacular  translation thereof.    On November 18,1971 the District Magistrate sent report 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 December  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

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the detention of the petitioner. On February 2,        1972 the  State Government confirmed the order for the  detention of  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 impugned order, has been filed  in opposition  to the Petition. Mr. Bagga has argued  the  case amicus  curiae on behalf of the petitioner, while the  State has been represented by Mr. Chakravarti. 548 It  has  been argued on behalf of the  petitioner  that  the particular  acts  on  account of which  the  order  for  the detention  of the petitioner has been made were not  germane to  the maintenance of public 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 order.  In this 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  manner 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  Baidyanath Bandopadhya  of  Champapukur, P.S.  Basirhat,  District  24- Parganas along with his wife were travelling ill 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 Basirhat  R/S  and robbed  them of Wrist Watch, Gold Ornaments, Cash valued  at Rs.  725//- by putting them in fear of death.  By your  such activities you created terror and panic among the travelling 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  iron  rods  etc. attacked  police  on  the platform  at  Beliagliata  railway station  with a view to take their lives and  to  intimidate 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 the passengers there then.  YOU  have  thus action 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 putting them in fear of  death.   The grounds of detention further 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 Belighata  railway  station with a view to kill  them.   The petitioner  and his associates are stated to have been  then armed  with  bombs. daggers, knives and iron rods  and  they exploded two bombs 549 with  terrible sound.  It is further stated that  the  above act  of the petitioner and his associates created panic  and confusion  among  the passengers and thus  disturbed  public order.  Each one of the above two incidents of September 26, 1971  and November 4, 1971, in our opinion, affected  public order and not merely law and order. The distinction between the concept of public order and that

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of  law  and order has been adverted to by this Court  in  a number  of cases.  In the case of Dr. Ram Manohar  Lohia  v. State  of  Bihar(1), Hidayatullah J. (as he then  was)  said that  any  contravention 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 the  security  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 order, just asan 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 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 tranquility.  It is the degree of disturbance and its effect  upon the life of the community in a  locality  which determines  whether thedisturbance 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   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 quality  it  may not differ from another but in  its  poten- tiality it may be very different." (1)[1966] 1 S.C.R. 709. (2) [1970] 3 S.C.R. 288 550 The question where 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, according to  the  dictum laid down in the above case is a question of degree and  the extent  of  the reach of the act upon the  society.   Public order  is  what  the French call  "order  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 the society undisturbed ? The  principle  enunciated above has been followed  by  this Court  in the case of Nagendra Nath Mondal V. State of  West Bengal(1)  and  Nandlal Roy Ca, Nonda Dulal Roy @  Pagla  v. State  of West Bengal (WP No. 15 of 1972, decided  on  March II, 1972.) In the light of what has been observed above,  we have  no doubt that each one of the incidents  of  September 26,  1971  and  November  4, 1971  was  prejudicial  to  the maintenance of public order.  When two passengers are robbed at  the  point of knife while travelling 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 also the other passengers who watch tile whole

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thing in fear as helpless spectators.  There is bound to be- consequent  terror and panic amongst the travelling  public. Like  wise,  attack directed against a police party  on  the platform  of railway station by exploring bombs is bound  to create  panic  an.  confusion among the  passengers  at  the railway station.  The act’ in question in the very nature of things would adversely affect the even tempo of life of  the community   and  cause  a  general  disturbance  of   public tranquility. Reference  has been made on behalf of the petitioner to  the ,case  of  Sudhir  Kumar Saha  v.  Commissioner  of  Police, Calcutta  &  A nr. (2).  The petitioner in that  case  along with  others committed various acts on three occasions.   On the  first  occasion lie attached the people of  a  locality with  a knife and by hurling bottles at them.’ On the  other two.occasions he attacked the people of another locality  by hurling bombs at them.. It was held that the incidents  were not   interlinked  and  could  not  have  prejudiced   tile- maintenance of public order. As  against the above solitary decision, Mr. Chakravarti  on behalf of the respondent-State has referred to the principle laid down in the case of Arun Ghosh v. State of West  Bengal (supra)  as well as in the case of Nagendra Nath  Mondal  V. State of West ,Bengal (supra).  Apart from those two  cases, we find that in the (2) [1970] 3 S.C.R. 360. (1) [1972] I S.C.R. 498. 551 case  of Tapan Ku-mat’ Mukherjee and Ors. v. State  of  West Bengal(1)  the  allegation against the detenu  was  that  he along with other associates committed robbery in respect  of a  fat,  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  contention 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 and as a result of  the panic  so caused in the locality, all the shops  and  houses around the place were closed.  The above round 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 held that the  activity  of the  petitioner  created  not  merely  a  question  of   the maintenance of law and order but created a disturbance which would be comprehended by the, expression "  order publique". The detention order was consequently upheld. In  S. K. Kedar v. State of West Bengal (WP No. 35  of  1972 decided  on May 2, 1972) the allegation against  the  detenu was  that  he  and his  associates  while  removing  railway material  charged bombs and ballast upon R.P.F. party  as  a consequence  of which the members of R.P.F. party  fired  in self-defence.  The activity of the petitioner was considered to be prejudicial to the maintenance of public order and the detention order was upheld. The facts of the present case are much more akin to those of Tapan  Kumar  Mukherjee  and Ors. v. State  of  West  Bengal (supra).  The past activities of the petitioner as  revealed

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in  the  grounds  of detention, in  our  opinion,  showed  a propensity   to   disturb  public  order.    The   authority concerned, in the circumstances, could have validly made the order  for  the detention of the petitioner to  prevent  him from  acting in a manner prejudicial to the  maintenance  of public order. The petition consequently fails and is dismissed. V.P.S. Petition dismissed. (1)  A I.R. 1972 S. C. 840. 552