REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.   1332     OF 2008 (Arising out of SLP (Crl) No.4386 of 2008)

K.K. Saravana Babu .. Appellant (Detenu)

Versus

State of Tamil Nadu & Another .. Respondents

J U D G M E N T

Dalveer Bhandari, J.

1. Leave granted.

2. This appeal is directed against the judgment of the High

Court of Madras passed in Habeas Corpus Petition No.1677 of

2007 on 29th April, 2008.  

3. The  detenu  has  challenged  the  detention  order  under

Section  3(1)  of  the  Tamil  Nadu  Prevention  of  Dangerous

Activities  of  Bootleggers,  Drug  Offenders,  Forest  Offenders,

Goondas,  Immoral  Traffic  Offenders,  Sand  Offenders,  Slum

Grabbers and Video Pirates Act, 1982 (Tamil Nadu Act 14 of

1982) passed vide Order No. 360/07 dated 28.8.2007.  

4. The detenu is involved in a land grabbing case registered

at St. Thomas Mount Central Crime Branch Cr. No. 70/2006

under sections 420, 465, 468 read with 471 and 120(B) IPC

and  the  said  case  is  pending  trial  before  the  court.

Subsequently another case was registered against the detenu

during 2007 in Central Crime Branch, Chennai City X Crime

No. 364/2007 under sections 420, 465, 466, 467, 468 read

with 471 and 120(B) IPC for the offence of land grabbing and

his activities are said to have been adverse to the interest of

the  land  owners  and  prospective  buyers.    The  modus

operandi of the detenu in both the cases is land grabbing in a

clandestine manner.  The detaining authority had considered

the said aspect and came to the conclusion that in case the

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detenu is let out on bail he would again indulge in similar type

of offences and, therefore, it is imperative to detain him.  The

order  of  detention  came  to  be  passed  keeping  in  mind the

welfare  of  public  who  are  owning  lands  as  well  as  the

prospective buyers.

5. It  may be  pertinent  to  mention  that  a  number  of  bail

applications of the detenu were dismissed and he was already

in jail on 28.08.2007 when the detention order was served on

him.   

6. The detenu made a representation on 14.9.2007 to the

Secretary  and the Advisory  Board seeking revocation of  the

detention  order,  which  was  rejected  on  14.10.2007.

Thereafter, the detenu filed a Habeas Corpus petition seeking

quashing  of  the  detention  order.   The  said  petition  was

dismissed on 29.04.2008.  The detenu aggrieved by the said

order preferred a special leave petition before this court.  In

pursuance  to  the  notice  issued  by  this  court,  a  counter

affidavit has been filed by the respondent.

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7. Mr.  Huzefa  Ahmadi,  learned counsel  appearing for  the

detenu submitted that the detention order passed against the

detenu  is  illegal  and  unsustainable  in  law.   The  detention

order  is  based  on  aforementioned  two  criminal  cases.

According to the detenu, all allegations incorporated in both

the criminal cases if taken to be true even then the detenu

cannot be said to have indulged in activities prejudicial to the

public order.   

8. It  was  contended  by  the  detenu  that  the  grounds  of

detention  are  based  on  cases  pertaining  to  law  and  order

problem.  The distinction between ‘law and order’ and ‘public

order’ has been very clearly defined in a catena of judgments

of this court.  The clear legal position which emerges from the

number of judgments of this court clearly leads to the definite

conclusion that if allegations are taken to be correct even then

the activities of the detenu do not fall in the category of cases

affecting the public order.   

9. Mr.  Ahmadi  also  submitted  that  the  High  Court  has

seriously  erred  in  not  properly  appreciating  the  distinction

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between “law and order” and “public order” and rejected the

habeas corpus petition preferred by the detenu.

10. Mr.  Ahmadi  further  contended  that  three  bail

applications preferred by the detenu were rejected and no bail

application  was  pending  when  the  detention  order  was

passed,  therefore,  the  apprehension  expressed  by  the

detaining  authority  that  there  was  imminent  possibility  of

detenu likely to be released on bail was merely ipse dixit of the

detaining authority without any material on record.   

11. Mr. Ahmadi submitted that the detention order ex facie is

arbitrary, illegal, mala fide and passed with an oblique motive.

He  also  contended  that  the  State  because  of  wrongful

detention has deprived the detenu of his fundamental rights

enshrined  under  Articles  21  and  22  of  the  Constitution  of

India.  

12. Mr. T.L.V. Iyer, learned senior counsel appearing for the

State  of  Tamil  Nadu submitted  that  the detaining authority

after  arriving at a subjective  satisfaction clamped the above

order of detention on the basis of an appraisal of the material

placed by the sponsoring authority.    

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13. Mr. Iyer further submitted that the detention order does

not  constitute  an  infringement  of  the  fundamental  rights

guaranteed to the detenu under Articles 19, 21 and 22(5) of

the Constitution of India.   Mr. Iyer contended that the detenu

is a slum grabber and involved in crime No. 70/2006 under

sections  420,  465,  468  read  with 471 and 120(B)  IPC  and

crime No. 364/2007 under sections 420, 465, 466, 467, 468

read with 471 and 120(B) IPC and that, keeping in mind the

seriousness  of  the  offence  of  land  grabbing,  the  detaining

authority was justified in passing the detention order.

14. We  have  heard  the  learned  counsel  for  the  parties  at

length and carefully gone through the record of the case.

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 & Another  v.  The State  of  Delhi

(1950) SCR 605 dealt with a case pertaining to public order.

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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 the  case  of  Romesh Thappar  v.  The State  of

Madras  (1950) SCR 594.  In this case, Romesh Thappar, a

printer,  publisher  and  editor  of  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.

17. The court observed:-

“…  ‘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 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 ….. ”

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18. The  distinction  between  “public  order”  and  “law  and

order”  has  been  carefully  defined  in  a  Constitution  Bench

judgment of this court in Dr. Ram Manohar Lohia v.  State

of  Bihar & Others  (1966)  1  SCR 709.   In  this  judgment,

Hidayatullah, J. by giving various illustrations clearly defined

the “public order” and “law and order”.   Relevant portion of

the judgment reads thus:

“….Does the expression "public order" take in every kind of disorder or only some? The answer to this serves to distinguish "public order" from "law and order" because the latter undoubtedly takes in all of them. Public order if disturbed, must lead to public disorder. Every breach of the peace does not lead to public  disorder. When two drunkards quarrel  and fight there is disorder but not public disorder. They can be dealt with under the powers to maintain law and order  but  cannot  be  detained  on the  ground that  they  were  disturbing  public  order.  Suppose that the two fighters were of rival communities and one of them tried to raise communal passions. The problem is still one of law and order but it raises the  apprehension  of  public  disorder.  Other examples can be imagined. The contravention of law always  affects  order  but  before  it  can  be  said  to affect public order, it must affect the community or the public at large. A mere disturbance of law and order  leading  to  disorder  is  thus  not  necessarily sufficient for action under the Defence of India Act but  disturbances  which  subvert  the  public  order are. A District Magistrate is entitled to take action under Rule 30(l)(b) to prevent subversion of public order  but  not  in  aid  of  maintenance  of  law  and order under ordinary circumstances.

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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….”

19. In  Arun Ghosh v.  State of West Bengal  (1970) 1 SCC

98, Hidayatullah, J. again 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 under:

“…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 affect 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

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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 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

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degree and the extent of the reach of the act upon the society…”

20. The  concept  of  ‘public  order’  and  ‘law  and  order’  has

been dealt with in the case of Pushkar Mukherjee & Others

v. The State of West Bengal, AIR 1970 SC 852.  In this case,

the Court had relied on the important work of Dr. Allen on

‘Legal Duties’ and spelled out the distinction between ‘public’

and  ‘private’  crimes  in  the  realm  of  jurisprudence.   In

considering the material elements of crime, the historic tests

which each community applies are intrinsic wrongfulness and

social  expediency which are the two most important factors

which  have  led  to  the  designation  of  certain  conduct  as

criminal.   Dr.  Allen  has  distinguished  ‘public’  and  ‘private’

crimes  in  the  sense  that  some  offences  primarily  injure

specific persons and only secondarily the public interest, while

others directly injure the public interest and affect individuals

only remotely.  There is a broad distinction along these lines,

but differences naturally arise in the application of any such

test.  

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21. This court in Babul Mitra alias Anil Mitra v. State of

West Bengal & Others (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.   

22. In  Dipak  Bose  alias  Naripada  v.  State  of  West

Bengal  (1973) 4 SCC 43, a three-Judge Bench of this court

explained the distinction between “law and order” and “public

order”  by  giving  illustrations.   Relevant  portion  reads  as

under:

“..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

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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.”

23. In Kuso Sah v. The State of Bihar & Others (1974) 1

SCC 185, this court had also considered the issue of “public

order”. The court observed thus:

“These  acts may raise  problems of  law and order but  we  find  it  impossible  to  see  their  impact  on public  order.  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….”

24. This court in another important case  Ashok Kumar v.

Delhi Administration & Others (1982)  2  SCC 403 clearly

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spelled out a distinction between ‘law and order’ and ‘public

order’.  In this case, the court observed as under:-

“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 detrimental 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….”

25. It has to be seen whether the  detenu’s activity  had any

impact on the local community or to put it in the words of

Hidayatullah, J., had the act of the detenu disturbed the even

tempo of the life of the community of that specified locality?  

26. Mr.  Ahmadi,  learned counsel  for the detenu submitted

that the detenu was in jail  at  the time when the detention

order was passed.  His three bail applications were rejected.

Since there was no bail application pending, therefore, there

was no imminent possibility of his being released by the court.

The detenu’s coming out on bail was merely ipse dixit of the

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detaining authority unsupported by any material whatsoever.

There was no cogent material before the detaining authority

on  the  basis  of  which  the  detaining  authority  could  be

satisfied that the detenu was likely to be released on bail.  In

absence of any such material on record, the mere ipse dixit of

the detaining authority is not sufficient to sustain the order of

detention.   The  learned  counsel  for  the  detenu also  placed

reliance on  Ramesh Yadav v. District Magistrate, Etah &

Others  (1985) 4 SCC 232.  In this case the court observed as

under:-

“The order of detention was passed as the detaining authority was apprehensive that in case the detenu was released on bail  he would again carry on his criminal activities in the area. If the apprehension of  the  detaining  authority  was  true,  the  bail application had to be opposed and in case bail was granted, challenge against that order in the higher forum had to be raised. Merely on the ground that an accused in detention as an under-trial prisoner was likely to get bail  an order of detention under the National Security Act should not ordinarily be passed.  We are inclined to agree with counsel  for the  petitioner  that  the  order  of  detention  in  the circumstances is not sustainable and is contrary to the well settled principles indicated by this Court in a  series  of  cases  relating  to  preventive  detention. The impugned order, therefore, has to be quashed.”

27. Mr. Ahmadi, the learned counsel further placed reliance

on Binod Singh v. District Magistrate, Dhanbad, Bihar &

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Others (1986) 4 SCC 416.  In this case, the court observed as

follows:-  

“7. It  is  well  settled  in  our  constitutional framework  that  the  power  of  directing  preventive detention given to the appropriate authorities must be exercised in exceptional cases as contemplated by the various provisions of  the different statutes dealing  with  preventive  detention  and  should  be used with great deal of circumspection. There must be awareness of the facts necessitating preventive custody of a person for social defence. If a man is in custody and there is no imminent possibility of his being  released,  the  power  of  preventive  detention should not be exercised. In the instant case when the actual order of detention was served upon the detenu,  the  detenu  was  in  jail.  There  is  no indication that this factor or the question that the said  detenu  might  be  released  or  that  there  was such  a  possibility  of  his  release,  was  taken  into consideration  by  the  detaining  authority  properly and seriously before the service of the order. A bald statement  is  merely an ipse  dixit  of  the officer.  If there  were  cogent  materials  for  thinking  that  the detenu might be released  then these should have been made apparent. Eternal vigilance on the part of  the authority charged with both law and order and public order is the price which the democracy in this country extracts from the public officials in order  to protect  the  fundamental  freedoms of  our citizens. In the affidavits on behalf of the detaining authority though there are indications that transfer of  the  detenu  from  one  prison  to  another  was considered  but  the  need  to  serve  the  detention order  while  he  was  in  custody  was  not  properly considered by the detaining authority in the light of the relevant factors. At least the records of the case do  not  indicate  that.  If  that  is  the  position,  then however  disreputable  the antecedents of  a person might  have  been,  without  consideration of  all  the aforesaid  relevant  factors,  the  detenu  could  not have  been put into  preventive  custody.  Therefore, though  the  order  of  preventive  detention  when  it was  passed  was  not  invalid  and  on  relevant considerations, the service of the order was not on proper consideration.”

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28. In Commissioner of Police & Others v. C. Anita (Smt.)

(2004)  7  SCC 467,  this  court  again  examined  the  issue  of

“public order” and “law and order” and observed thus:

“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.”

29. In R. Kalavathi v.  State of Tamil Nadu (2006) 6 SCC

14, this court while dealing with the case affecting the public

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order observed that even a single act which has the propensity

of affecting the even tempo of life and public tranquillity would

be sufficient for detention.

30. Mr. Ahmadi, the learned counsel for the detenu placed

reliance  on  T.V.  Sravanan  alias  S.A.R.  Prasana

Venkatachaariar Chaturvedi v. State through Secretary

& Another (2006) 2 SCC 664.  In this case the court observed

that when the detenu was already in custody, there was no

imminent  possibility  of  his  being  released.  In  that  event  it

would not be appropriate to pass order of detention against

him.  This proposition of law also seems to be well-settled, but

in view of the fact that the detenu succeeded in his threshold

submission that the detention order passed against him was

arbitrary,  illegal  and unsustainable  because  even  assuming

the  allegation  in  both  the  cases  relied  on  by  the  detaining

authority  are  correct  then  also  no  case  of  disturbance  of

public order is made out.  

31. We have tried to deal with the important cases dealing

with the question of “law and order” and “public order” right

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from the case of Romesh Thappar (supra) to the latest case of

R.  Kalavathi (supra).  This court has been consistent in its

approach  while  deciding  the  distinction  between  ‘law  and

order’  and ‘public order’.   According to the crystallized 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.   

32. In  the  instant  case,  in  the  grounds  of  detention,  two

cases  have  been  enumerated,  one  of  which pertains  to  the

offences punishable under sections  420, 465, 468 read with

471 and 120(B) IPC in Crime No.70 of 2006.  Another case

pertains to Crime No.364 of 2007 registered under sections

420, 465, 466, 467, 468 read with 471 and 120(B) IPC.  The

facts of these cases have been carefully examined and even

assuming the allegations of these cases as true, even then by

no  stretch  of  imagination,  the  offences  committed  by  the

detenu can be called prejudicial to public order.  The detenu

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can  be  dealt  with  under  the  ordinary  criminal  law  if  it

becomes imperative.   

33. In  this  view of  the matter,  the  detention order  passed

against the detenu is illegal,  unsustainable  and liable  to be

quashed and we accordingly do so.  Since we are quashing the

detention order  on the threshold submission of  the detenu,

therefore,  it  is  not necessary  to  examine other  submissions

advanced by the detenu.  The detention order is accordingly

quashed.   The  detenu  be  set  at  liberty  forthwith,  if  not

required in any other case.  The appeal is accordingly allowed

and disposed of.  

…….……………………..J.   (Dalveer Bhandari)

…….……………………..J.   (Harjit Singh Bedi)

New Delhi; August 22, 2008.

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