http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 9  

PETITIONER: NAGENDRA NATH MONDAL

       Vs.

RESPONDENT: THE STATE OF WEST BENGAL

DATE OF JUDGMENT13/01/1972

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

CITATION:  1972 AIR  665            1972 SCR  (3)  75  1972 SCC  (1) 498  CITATOR INFO :  R          1972 SC1256  (8)  R          1972 SC1566  (4)  R          1972 SC1623  (7)  R          1972 SC1656  (6,8)  RF         1972 SC1668  (7)  R          1972 SC1749  (7)  R          1972 SC1753  (9)  RF         1972 SC2132  (4)  R          1972 SC2143  (6)  RF         1972 SC2420  (4,5)  E          1972 SC2623  (9)  E          1972 SC2686  (3)  F          1973 SC 197  (9,10)  R          1973 SC 295  (7)  R          1980 SC 849  (7,8)  R          1981 SC2166  (21)  RF         1987 SC 998  (6)  RF         1987 SC2332  (16A)  R          1989 SC 764  (13)  R          1990 SC1086  (18)

ACT: West  Bengal Prevention of         Violent  Activities  Act, 1970-Section 3(2)(b)-Acts prejudicial to the maintenance  of public order-Tests for determining. Practice  and procedure-Habeas Corpus-Grounds not  urged  in the petition, if can be urged.

HEADNOTE: The petitioner was detained under the West Bengal Prevention of Violent Activities Act, 1970.  The grounds for  detention stated  that  he,  along with  others,  on  two,  occasions, entered  the premises of educational institutions, set  fire to  books,  registers, furniture etc., placed bombs  in  the building  and  threatened the staff with death  and  thereby committed  "mischief" disturbing "public order"  within  the meaning  of  S.  3(2)(b)  of  the  Act.   The   petitioner’s representation  was received by the State Government on  May 27, 1971.  On June 7, 1971 the petitioner’s case was  placed before the Advisory Board.  The State Government  considered the  representation and rejected it by its order dated  July 1, 1971.  On July 9, 1971 the Board reported that there  was

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 9  

in  its  opinion  sufficient  cause  for  the   petitioner’s detention. The petitioner sent his habeas corpus petition from jail  in which  he denied the allegations made against him.   At  the hearing  of  the petition, the counsel  for  the  petitioner raised two additional grounds (i) that the grounds furnished to  the detenu did not constitute breach of  public  order., and therefore, the detention was illegal; and (ii) that  the delay  in considering the petitioner’s representation.   Nas inordinate, and therefore, was in violation of Article 22(5) of Constitution. Dismissing the petition, HELD  : (i) According to the Report of the  Advisory  Board, there  was sufficient material justifying the order  and  in the absence of any definite material, it is not possible  lo accept the vague allegations by the petitioner. [780 E] (ii)Ordinarily  grounds which (lo not find any place in  the petition  would  not be permitted to be raised  before  this Court.   But  since this was a habea  scorpus  petition  and furthermore,  made by the petitioner from jail such  grounds could be allowed to be raised. [78 F] (iii)The true distinction between the area of law and  order and public order is one of degree of extent of the breach of the  act in question upon society. Any contravention of  law always affects order, but before it could be said to  affect ’public  order’ it must affect the community at large.  Acts similar  in nature, but committed in different contexts  and circumstances might affect the problem of law and order  and in  another,  the breach of public order.   The  analogy  of crimes  against individuals and crimes against  the  public, though useful to a limited extent, would not always be  apt. [79 H-80B] 76 Lohia  v.  State [1966] 1 S.C.R. 709, Pushkar  Mukherjee  v. West  Bengal [1969] 2 S.C.R. 635; Arun Ghosh v. West  Bengal [1970]  3  S.C.R.  288 and S. K.  Saha  v.  Commissioner  of Police, Calcutta [1970] 3 S.C.R. 360 referred to. (iv) The  distinction  drawn  by Clause (b) of  S.  3(2)  is between   causing  fire  to  building  of   an   educational institution simpliciter and committing mischief of the  same nature but such that it disturbs or is likely to disturb the even  tempo  of the community in that  particular  locality. The  object  of  the acts complained  of  as  vandalism,  to disturb  the  working  of the  institution  by  burning  its records  and to create a scare so that neither the  teaching staff, nor the pupils would dare attend it for prose caution of studies.  In these circumstances the alleged acts did not merely  constitute mischief under S. 425 of the Penal  Code, but constituted such mischief which disturbed or was  likely to  disturb  public order and, therefore,  fell  within  the definition in Section 3(2)(b) [81 G-H] (v)  In the circumstances of the present case, it cannot  be held  that  the  delay was so inordinate as  to  affect  the validity of the detention.  No doubt, the delay in  deciding the  representation was 34 days, but most of it was  due  to the  fact  that the representation and the  record  remained with the Board.  In a given case, Government may not be able to reach a proper conclusion within a short time especially, where another authority has passed the questioned order. 183 F]  Jayanarayan  Sukul v. West Bengal [1970]  3  S.C.R.  and Khairul  Haque  v.  West Bengal, writ  petition  decided  on September 10, 1969, referred to.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 9  

JUDGMENT: ORIGINAL JURISDICTION : Writ Petition No. 308 of 1971. Under Article 32 of the Constitution of India for a writ  in the nature of habeas corpus. S.   K. Dhingra for the petitioner. P.   K. Chatterjee, G. S. Chatterjee, for the respondent. The Judgment of the Court was delivered by Shelat, J. On May 7, 1971, the District Magistrate,  Jalpai- guri, in exercise of power conferred upon him by S. 3 (3) of the West Bengal (Prevention of Violent Activities) Act, 1970 (President’s Act 19 of 1970) passed an order under  sub-sec. 1 of that section directing the detention of the petitioner. The order recited that the District Magistrate was satisfied that it had become necessary to detain the petitioner  "with a  view  to  preventing  him  from  acting  in  any   manner prejudicial  to the maintenance of public order".   On  that very  day,  the District Magistrate reported  to  the  State Government the fact of his having passed the said order.  In pursuance of that order, the petitioner was arrested on  May 9,  1971  and  was detained in  jail.   The  petitioner  was furnished, as required by the Act, with the grounds for  his detention at the time when his arrest was effected.  On  May 17, 1971, the State Government approved the said order.   On the same day the State Government reported the fact of the 77 passing  of the said order and its approval to  the  Central Government.  The petitioner made his representation which he was  entitled  to  make by virtue of S.  8  (i).   That  was received  by the State Government on May 27, 1971.  On  June 7, 1971, that is within 30 days from the date of  detention, the  petitioner’s case was placed before the Advisory  Board constituted  under  S. 9 of the Act.  The  State  Government considered that representation, but rejected it by its order dated  July  1, 1971.  On July 9, 1971, the  Board  reported that  there  was, in its opinion, sufficient cause  for  the petitioner’s detention, Thereupon, the State Government,  by its order dated July 29, 1971, confirmed the detention order under s. 12. The  grounds for detention served on the  petitioner  stated that the order was passed in view of his acting "in a manner prejudicial to the maintenance of public order as  evidenced by the particulars given below".  These particulars were :               "1.  On 1-12-70 after midnight you along  with               other  entered into the Headmaster’s  room  of               Moynaguri  Higher  Secondary  School,   Police               Station  Moynaguri,  after breaking  open  the               doors  and  set fire to  books,  registers,  a               typewriter, furniture etc. causing heavy  loss               to the     school.    After   completing   the               operation you placed a  bomb  in  the   school               premises endangering the life of    the               teaching staff and the students.               2.    On  5-4-1971  at about 10.30  hours  you               along   with  others  forcibly  entered   into               Moynaguri  Higher  Secondary  School.   Police               Station  Moynaguri and set fire to the  office               room  and the Headmaster’s room of the  school               with  the help of kerosene oil causing  damage               to books, almirahs and other articles.   While               committing  the arson in the above school  you               also  threatened  the teaching staff  and  the               duftry of the school with death if they  would               dare  to  give you any resistance  or  divulge               your   name  to  any  authority  holding   you               responsible for the arson."

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 9  

The grounds also, informed the petitioner that he could make a  representation  to the State Government,  that  his  case would  be put up before the Board and that the  Board  would grant him a personal hearing, if he so desired. The case of the detenu, as stated in the petition, was  that he  was at first arrested on suspicion on April 23, 1971  in connection   with  G.  R.  Case No. 812  of  1971,  but  was released on bail as there was no evidence against him. There was another case also being G.R. 2639 of 1970 in  connection with the incident 78 referred  to  in  ground No. 1 set out  above.   The  detenu however, was not arrested in that connection.  The two  G.R. Cases  were  started long before he was arrested on  May  9, 1971 under the detention order dated May 7, 1971.  He denied that  he  was  connected or associated  with  the  incidents mentioned in the said grounds, and said that the allegations made against him therein were false, baseless, motivated and vague,  and that there was absolutely no material  upon  the basis  of  which the order of detention could be  made.   He also  alleged  that some rival parties, who were  in  league with  the police had falsely involved him in  the  incidents referred  to in the grounds and got the District  Magistrate to  issue the said detention order.  These allegations  were denied  in  the counter-affidavit filed on  behalf  of  ’the State Government, the assertion therein being that there was reliable material before the District Magistrate relating to the  illegal  and antisocial activities prejudicial  to  the maintenance  of public order. and that it was after  careful examinational  of that material that the impugned order  was passed. The  allegations made by the petitioner were, in  our  view, vague  and  indefinite  and not backed by  any  material  or particulars, and therefore cannot be accepted.  Besides, the detenu’s case was placed before the Advisory Board  together with  his representation and other relevant  materials,  and according  to the report of the Board, there was  sufficient material  justifying  the  In the absence  of  any  definite material  before  us,  it  is not  possible  to  accept  the extremely vague allegations made by the petitioner. But  Mr. Dinghra, who appeared amicus curicae for the  peti- tioner, raised two additional grounds.  Neither of them was, however, raised in the petition but since this was a  habeas corpus  petition,  and furthermore, made by  the  petitioner from jail, lie was allowed to take them though ordinarily he would not have been permitted to do so as they did not  find any place in the petition. The  two additional rounds were (1) that the rounds  fur- nished  to  the detenu did not constitute breach  of  public order, and     therefore,  the detention did not fall  under sub-ss. (1)         and (3)   of s. 3; and (2) that although the representation made by the     detenu  was  received  by the  Government  on May 27, 1971,it was not  considered  and disposed  of till July 1, 1971, that the delay in  doing  so was  inordinate  and was in violation of Art. 22(5)  of  the Constitution, rendering the impugned order invalid. In  regard  to  the first  contention,  counsel  urged  that assuming  that  the  allegations made  in  the  grounds  for detention   were  true,  setting  fire  to  an   educational institution and destroying thereby its, 79 records  might constitute an offence under the  Penal  Code, but  did  not  constitute disturbance or  breach  of  public order, which alone could warrant a detention order under the Act.   In support of this proposition, counsel  referred  to

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 9  

some of the decisions of this Court. The detention order, no doubt, mentioned that it was  issued with  a view to prevent the detenu acting  prejudicially  to the  maintenance of public order.  The contention raised  by counsel,  however,  involves the question whether  the  acts alleged  against  the detenu constituted  breach  of  public order   or  were  such  as  would  be  prejudicial  to   its maintenance.  As to what is meant by the expression, ’public order’,  Hidayatullah,  J.,  (as he then was)  in  Lohia  v. State(1), said that any contravention of law always affected order,  but  before,  it could be  said  to  affect  ’public ,order’,  it  must  affect the community or  the  public  at large.  He considered three concepts, viz., "law and order", "  public order" and "the security of the  state"  generally used in preventive detention measures and suggested that  to appreciate the scope and extent of each of them, one  should imagine  three  concentric  circles,  the  largest  of  them representing "law and order", the next representing  "public order"  and the smallest representing "the security  of  the state".   An  act  might affect "law  and  order",  but  not "public order", just as an act might affect public order but not  "the  security  of  the  state".   Therefore,  if   the detention  order were to use the expression "maintenance  of law  and  order", that would be widening the  scope  of  the detaining authority, if the statute concerned confined  that power in relation to acts prejudicial to "the maintenance of public  order".   A similar distinction was  also  drawn  in Pushkar  Mukherjee v. West Bengal(2), where  Ramaswami,  J., observed  that the expression "public order" in s. 3 (I)  of the  Preventive  Detention Act, 1950 did not take  in  every kind of infraction of law.  An assault by one on another  in a house or even in a public street might create disorder but not  public disorder, for the latter was one which  affected the community or the public at large.  Therefore, a line  of demarcation  must  be drawn between serious  and  aggravated forms  of disorder which 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  was, thus, not necessarily sufficient  for  action under  the Preventive Detention Act but a disturbance  which would affect public order fell within the scope of the Act. But in Arun Ghosh v. West Bengal(3), it was pointed out that the  true distinction between the areas of "law  and  order" and (1) [1966] 1 S.C.R. 709.       (2) [1969] 2 S.C.R. 635. (3) [1970] 3 S.C.R. 288. 80 "public order" was one of degree and extent of the reach  of the  act in question upon society.  Acts similar in  nature, but committed in different contexts and circumstances  might cause  different reactions; in one case it might affect  the problem  of the breach of law and order, and in another  the breach  of  public  order.   The  analogy  resorted  to   by Ramaswami,  J.,  of crimes against  individuals  and  crimes against the public, though useful to a limited extent, would not  always  be  apt.  An assault  by  one  individual  upon another  would  affect  law and order  only  and  cause  its breach.  A similar assault by a member of one community upon a leading individual of another community, though similar in quality,  would differ in potentiality in the sense that  it might cause reverberations which might affect the even tempo of  the  life of the community.  As the Court  pointed  out, "the  act by itself is not determinant of its  own  gravity.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 9  

In its quality it may not differ but in its potentiality  it may  be  very different".  At the same time,  the  power  of detention  having  been  permitted to the  State  under  the Constitution as an exceptional power, its exercise had to be scrutinized  with  extreme care and could not be used  as  a convenient  substitute  for  the  normal  processes  of  the criminal   law  of  the  country.  (cf.   S.  K.   Saha   v. Commissioner of Police, Calcutta(1).] These  are all cases under the Preventive Detention Act,  IV of 1950, which by s. 3 of it confers power of detention  Oil specified  grounds  which include acts  prejudicial  to  the maintenance  of  public  order.  The  present  Act  likewise confers  such  power with a view to prevent  a  person  from acting  in  any manner prejudicial to the  security  of  the State  or the maintenance of public order under its s. 3  (I ).  Though  the Act does not define the  expression  "public order", it does define the expression "acting in any  manner prejudicial to the security of the State or the  maintenance of  public  order".  That expression  under  the  definition inter alia means "committing mischief within the meaning  of s.  425 of the Indian Penal Code, by fire or  any  explosive substance  on  any  property  of  Government  or  any  local authority   or  any  corporation  owned  or  controlled   by Government   or   any  University   or   other   educational institution, or on any public building where the  commission of  such  mischief disturbs or is likely to  disturb  public order. . . ." The definition itself thus draws a distinction between  mischief  by  fire  or  explosive  substance   upon property  of  one  of  the  specified  categories  and  such mischief  upon  any  such properties which  disturbs  or  is likely  to  disturb  public  order.   The  former,   however reprehensible, would be taken care of by the Penal Code, and it  is only in respect of the latter that the drastic  power of detention without trial conferred by the first subsection can be validly exercised.  But to the extent that the (1)  [1970] 3 S.C.R. 360. 81 expression   "public  order"  is  not  defined  here   also, decisions  under  Act IV of 1950 delineating the  sphere  of "public order" from those of "maintenance of law and  order" and "the security of the State" would still be of utility. The  acts alleged against the petitioner in the grounds  for detention  are acts which fall under S. 3 (2) (b), in  that, they constitute mischief by fire and by explosive  substance on property of an educational institution.  But the question is  whether these acts disturbed or were likely  to  disturb public  order; in the words of Hidayatullah, C.J.,  in  Arun Ghosh  v. West Bengal(), disturb the even tempo of the  life of   the   community  of  that  specified   locality.    The distinction  drawn  by cl. (b) of s. 3 (2) then  is  between causing fire, for instance, to a building of an  educational institution simpliciter, and committing mischief of the same nature but such that it disturbs or is likely to disturb the even tempo of the community in that particular locality. The grounds set out two acts alleged against the petitioner. The first, of December 1, 1970, was that the petitioner  and some others trespassed after midnight into the  Headmaster’s room  in the Moynaguri Higher Secondary School and set  fire to books, registers, furniture etc., and then placed a  bomb in  the school building thereby endangering the life of  the teaching  staff and the students attending the school.   The second, of April 5, 1970, was that the petitioner along with some  others again trespassed into the same school  and  set fire  to parts of it and then threatened the members of  its staff with death if they offered resistance or disclosed his

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 9  

name to any authority. The  target of arson, (assuming the allegations to  be  true which we have to assume) was an educational instituting  and particularly  the registers and other papers  maintained  by it.   The  object obviously was vandalism,  to  disrupt  its working by burning its records and to create a scare so that neither the teaching staff nor the pupils would dare  attend it  for  prosecution  of  studies.   The  parents  dare  not henceforth  send their wards for fear that the school  might be  set  on  fire  while  they are  in  it.   The  bomb  was manifestly  placed in the premises for creating that  scare. It could not have been intended for any other purpose  after the  records and furniture had been set on fire.   In  these circumstances,  the alleged acts did not  merely  constitute mischief  under s. .425 of the Penal Code,  but  constituted such  mischief  which  disturbed or was  likely  to  disturb public order.  The acts in question, no doubt, would be acts similar to those committed by a person who resorts to arson, but   in   the   circumstances  were   acts   different   in potentiality,  and therefore, fell within the definition  in s.  3  (2) (b) The, first argument urged on  behalf  of  the petitioner must, consequently, fail. (1)  [1970] 3 S.C.R. 288. 82 The second argument related to the time taken by the  State Government  in  deciding  the  representation  sent  by  the petitioner  from  jail.  As aforesaid, it  was  received  by Government on May 27, 1971, but was considered and  rejected on  July 1, 1971, that is to say, after a lapse of 34  days. Like  S. 7(i) or the Preventive Detention Act, IV  of  1950, the present Act also provides by S. 8(i) that the  detaining authority  shall provide to the detenu not later  than  five days  from  the date of detention the grounds on  which  the detention  order  his  been made and shall  afford  him  the earliest opportunity of making a representation against the, order to the State Government.  In Jayanarayan Sukul v. West Bengal()  where also a point as to undue delay in the  light of Art. 22(5) of the Constitution and s. 7 of the Preventive Detention Act, IV of 1950 was raised, Ray, J., speaking  for the Court, laid down four principles.  These were               1.    that the appropriate authority is  bound               to give an opportunity to the detenu to make a               representation    and    to    consider    the               representation as early as possible;               2.    that   such  a  consideration   of   the               representation is entirely independent of  any               action   by  the  Advisory   Board   including               consideration   by   it   of   the    detenu’s               representation;               3.    that  there should not be any  delay  in               the  matter of consideration. though  no  hard               and fast rule can be laid down as regards  the               time which can be taken in considering such  a               representation;               4.    that  the appropriate government has  to               exercise  its  opinion  and  judgment  on  the               representation  independent  of  that  of  the               Advisory Board. (cf.   Khairul Haque v. West Bengal (2 ), which was  applied in  this  case  and where the distinctive  features  of  the functions of the Government and the Board and their  objects were discussed.) No doubt Ray, J., it P. 232 of the  report, said that the Government had to come to its decision on  the representation  before  it  sent the detenu’s  case  to  the Board.  But, in that observation, he was not emphasising  so

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 9  

much  the point of time when the Government has to send  the detenu’s  case including his, representation to  the  Board. tit  of  the  necessity of the  Government  considering  and deciding the representation independently of and before  the Board’s  decision, a point made in Khairul Haque’s  case(2). The  delay  in Jayanarayan’s case(1) was of  the  month  and twenty day, and was (1)  [1970] 3 S.C.R. 225. (2)  Writ  Petition No. 246 of 1969, decd. on September  10, 1969. 83 in  the  circumstances of that case held  to  be  inordinate vitiating. the detention. The time gap between the receipt by Government of the  peti- tioner’s representation and the date of its decision was  of 34 days.  The question is whether that gap can be treated as inordinate  delay going to the root of the validity  of  the detention  or  its continuation  thereafter.   The  counter- affidavit  filed on behalf of the Government, no doubt,  did not  contain  any  explanation,  But  that  was  because  it answered  only the allegations in the petition filed by  the petitioner   from  ’all,  which  had  in  it  only   general allegations  such  as  the  vagueness  of  the  grounds   of detention  mala fides etc., and did not  raise  specifically any point on this aspect at all.  The point  to  delay   was for the first time taken in the course of arguments     when the  petition  first came up for hearing before  another  of this  Court.  At that time, Counsel for the  State  produced the  records of the case and nothings from the records  were actually  read  out before the Court in the hearing  of  the petitioner’s  counsel.  That fact is not disputed before  us and so also the fact that those records showed that on  June 7, 1971 Government had sent the files in connection with the petitioner’s  case  and his representation to  the  Advisory Board.   As soon as the representation was returned  to  it, Government considered it and rejected it but that was before the  Board made its report and sent it to  Government.   But counsel  urged that this fact may explain the lapse of  time from  the date that the records were sent and the date  when they were returned, but not the delay between May 27, 1  971 and June, 7, 1971 during which Government could have arrived at its decision.  That argument has not much force,  because in a given case Government may not be able to reach a proper conclusion within a short time, especially, in a case  where another authority in this case the District Magistrate,  has passed  the  questioned  order.   It  might  have  to   make inquiries is to the situation in the locality, the  nature of  and  the  circumstances in  which  detention  was  found necessary. the previous history of the person detained  etc. Therefore,  it  is  difficult to  agree  with  counsel  that Government  should  have reached its conclusion  during  the said   period.   No  doubt,  the,  delay  in  deciding   the representation was of 34 days, but part of it was due to the fact  that the representation and the record  remained  with the  Board.  In these circumstances, it is difficult to  say that  there is a just and proper analogy between  this  case and  that  of Khairul Haque (1) or Javanarayan (2)  or  that upon such analogy we should reach the same conclusion  which was  reached  in  those cases.   As  held  in  Jayanarayan’s case(2)  there can be no hard and fast rules with regard  to the time which Government can or should take,. (1) W.P. No. 246 of 1969 decd. on Sept. 10, 1969. (2) [1970] 3 S.C.R. 225. 84 that  each  case must be decided on its own facts.   In  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 9  

circumstances of the present case we are unable to hold that the  delay ’was so inordinate as to affect the  validity  of the petitioner’s detention. The petition fails and Is dismissed. S.N.       Petition dismissed. 85