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PETITIONER: S. K. KEDAR

       Vs.

RESPONDENT: STATE OF WEST BENGAL

DATE OF JUDGMENT02/05/1972

BENCH: MATHEW, KUTTYIL KURIEN BENCH: MATHEW, KUTTYIL KURIEN REDDY, P. JAGANMOHAN MITTER, G.K.

CITATION:  1972 AIR 1647            1973 SCR  (1) 488  1971 SCC  (3) 816  CITATOR INFO :  R          1972 SC1653  (14)  R          1972 SC1656  (9)  R          1973 SC 295  (7)  F          1973 SC1062  (4)  R          1987 SC 998  (6)  RF         1987 SC2332  (18)  RF         1989 SC 764  (14)  R          1990 SC1086  (18)

ACT: West  Bengal (Prevention of Violent Activities) Act  (19  of 1970),  S.  11  ’Public order’, scope  of  Advisory  Board’s obligation to hear detenu in person-Scope of

HEADNOTE: In exercise of the powers conferred under s. 3(1) and (3) of the,  West  Bengal (Prevention of Violent  Activities)  Act, 1970  the District Megistrate passed an order detaining  the petitioner  with  a  view to prevent him from  acting  in  a manner prejudicial to the maintenance of public order.   The grounds  of detention were that he along with his  associate attacked  the  Railway Police Force with bombs  and  created disturbance of public order.  After his arrest the case  was referred  to  the  Advisory  Board  and  the  Board,   after considering  the entire material before it, reported to  the State  Government  that there was sufficient cause  for  the detention  of  the petitioner.  On the same day  he  sent  a representation  that  he may be heard in  person  which  the Board received two days later.  The Board however heard him, found   no  reason  to  revise  its  opinion,  and  sent   a supplementary report to that effect. The petitioner challenged the detention in this Court. Dismissing the petition, HELD:     (1)  The  question  whether  a  person  has   only committed  a  breach  of law and order or has  acted  in  a manner  likely to Cause disturbance of the public  order  is one  of degree and the extent of the reach. of the act  upon society.  The act by itself is not determinative of its  own gravity.  In its quality it may not differ from another  but in its potentiality it may be very different.  Similar  acts in  different contexts effect differently law and  order  on

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the one hand and public order on the other.  It is always  a question  of  degree  of  the harm and  its  effect  on  the community.  In the final analysis it depends on the facts of each, case whether the acts prepetrated are such a nature of potentiality. [441D-G] Pushkar  Mukherjee and others v. The State of  West  Bengal, (1969)  2 S.C.R. 635, Sudhir Kumar Saha v.  Commissioner  of Police,  Calcutta  and  another A.I.R. 1970  S.C.  8.14  and Nagendra  Nath  Mondal v. The State of West  Bengal,  [1972] S.C.R.  498 and Arun Ghosh v. State W. Bengal,  A.I.R.  1970 S.C. 1228, referred to. In  the present case, the acts attributed to the  petitioner are such as would bring them within the ambit of s. 3(2) (b) and  (d)  of the Act.  Attacking the Railway  Police,  Force party  with bombs at the railway station was bound to  cause scare  among  all  the members of the public  who  would  be resorting to the station yard and interfere with their acti- vities  in getting the goods loaded or unloaded.   The  acts had the potentiality of affecting the even tempo of the life of  the community in the locality by  their  reverberations. Therefore,  the  grounds  communicated  to  the   petitioner disclosed  that  he  indulged  in  an  activity  which   was prejudicial  to  the maintenance of public order  [491  G-H, 492A-B] 489 (2)  Section II of the Act provides that the Advisory  Board may give personal hearing if it considers it essential or if the  person  concerned desires to be heard.  In  this  case, the.   Board  did  not consider it  essential  to  hear  the petitioner in person before submitting its report.  But when petitioner  sent  a representation that he may be  heard  in person   the   Board  heard  him   before   submitting   the supplementary  report.   Therefore,  the  petitioner  cannot contend  that he was not personally heard before  the  Board submitted its opinion. [492E-G]

JUDGMENT: ORIGINAL JURISDICTION : Writ Petition No. 35 of 1972. Under article 32 of the Constitution of India for a writ  in the nature of habeas corpus. S.   K. Gambhir, for the petitioner. P.   K.   Chakravarti   and  G.  S.  Chatterjee,   for   the respondent. The Judgment of the Court was delivered by Mathew, J. This is an application filed under Article 32  of the  Constitution for the issue of a writ in the  nature  of habeas  corpus and to release the petitioner who is  alleged to be in illegal custody. In the exercise of the power conferred under sub-section (1) read  with sub-section (3) of section 3 of the  West  Bengal (Prevention  of Violent Activities) Act,  1970  (President’s Act  19 of 1970), hereinafter referred to as the ’Act’,  the District  Magistrate, 24 Parganas, passed an order  on  July 10,  197 1, detaining the petitioner with a view to  prevent him  from acting in a manner prejudicial to the  maintenance of public order.  Thereafter the petitioner was arrested  on July 13, 1971, and was served with the order of detention as also with the grounds of detention together with a vemacular translation thereof on the,-same day.  On July 14, 1971, the District  Magistrate reported to the State Government  about the  passing  of  the  detention  order.   The  report   was considered by the State Government on July 21, 1971, and the

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Government  approved  the order of detention passed  by  the District Magistrate.  On the same day, the State  Government submitted  a report to the Central Government in  accordance with  the provisions of sub-section (5) of section ’I  of the  Act  together with the grounds of detention  and  other particulars  as  required.  On August 11,  1971,  the  State Government  placed  the case of the  petitioner  before  the Advisory  Board  under  section 10 of the  Act.   The  State Government received a representation from the petitioner  on September 8, 1971.  The representation was considered by the Government  and it was rejected by an order dated  September 10, 1971. The representation was, however, forwarded to  the Advisory Board for consideration of the same by. the  Board. The  Advisory  Board, after consideration of  the  materials placed  before  it,  submitted  its  report  to  the   State Government  on September 6, 1971, incorporating its  opinion that  there  was sufficient cause for the detention  of  the petitioner.  The 490 petitioner  prayed,. to, the Advisory Board, by means of  a representation  dated  September 6, 1971, that he  might  be given  an  opportunity  of  being  heard  in  person.   This representation  was  received  by  the  Advisory  Board   on September  8,  1971, and the Board heard the  petitioner  on September   18,   1971.   Therefore,  the   Board   sent   a supplementary  report  to the State Government on  the  same day,  stating  that  the Board did not find  any  reason  to revise its previous opinion.  The State Government confirmed the  order of detention on October 7,1971, and the order  of confirmation was communicated to the detenu on the same day. The  grounds  of detention communicated  to  the  petitioner stated "(1) That on 5-7-1971 at about 0530 hrs. you along with your associates, while removing Brake Blocks, Vertical Levers and other  railway  materials from wagon Nos.  NRP 1820  and  PW 3471 at Chitpur Rly.  Yard,, charged bombs and ballasts upon the  on-duty  R.P.F. party, when challenged by  them.   Your attack  grew so violent that RK 6448 Ram Bachan Rai  of  the R.P.F.  Party had to fire, one round in self-defence,,  when you all fled away.  You created disturbance of public  order thereby., (2)  That  on 5-7-1971 night again at 20.30 hrs., you  along with  your  associates, while, removing iron  rods  from  BF Wagon  No. ER99155 at Chitpur Rly.  Yard, charged bombs  and ballasts upon the on-duty R.P.F. party at Chitpur post, when challenged  by  them.  Your attack grew so violent  that  RK 6756 Madan Mohan Prasad of the R.P.F. party had to fire  two rounds  upon you in self-defence culminating (in)  death  of one of your associates on the spot, when you all fled  away, you created disturbance of public order thereby." Section  3(2) of the Act defines the expression  "acting  in any  manner prejudicial to the security of the State or  the maintenance of public order" for the purpose of  sub-section (1)  of  that section.  Clauses (b) and (d) of  sub  section 3(2) read as follows:- "(b) Committing mischief, within the meaning of section  425 of  the  Indian  Penal Code, (45 of 1860)  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;" 491 "(d)  committing  or instigating any person  to  commit  any

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offence  punishable with death or imprisonment for  life  or imprisonment for a term extending to seven years or more  or any  offense, under the Arms Act, 1959 (54 of 1959)  or  the Explosive  Substances  Act,  1:908 (6  of  1908)  where  the commission  of  such  offence  disturbs,  or  is  likely  to disturb, public order;" The question is,. whether the offences alleged to have  been committed  by the petitioner in the grounds communicated  to him  would  amount  to commision  of  offences  which  would disturb  public order or which are likely to disturb  public order. The  relevant  criteria  to  distinguish  in  the   abstract betwe en  acts prejudicial to maintenance of law  and  order and  those  which are prejudicial to maintenance  of  public order  are  laid down in a number of rulings of  this  Court (see  Pushkar  Mukherjee  and others v. The  State  of  West Bengal(1),  Sudhir  Kumar Saha v. Commisssioner  of  Police, Calcutta  and  another(2) and Nagendra Nath  Mondal  v.  The State of West Bengal(3).  The question whether a person  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 one  of degree and the extent of the reach of the  act  upon the  society.  An act by itself is not determinative of  its own gravity.  In its quality it may not differ from  another but  in its potentiality it may be very different.   Similar acts in different contexts affect differently law and  order on the one hand and public order on the other.  It is always a  question  of degree of the harm and its effect  upon  the community.   Public order is the even tempo of the  life  of the  community  taking  the country as a  whole  or  even  a specified locality.  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 the law and order (see, Arun Ghosh v. State of Bengal(4).  In the final analysis, one must always return to the  facts of the case to see whether the acts perpetrated are of  such a  nature or of such potentiality as to travel  beyond  the, immediate victims and affect the general or local public.  A case  by  case adjudication gives the judicial  process  the impact of actuality and thereby saves it from the hazards of generalisation. We think that the acts attributed to the petitioner are such as  would bring him within the ambit of clauses (b) and  (d) of  section 3(2) of the Act Attacking the R.P.F. party  with bombs at the Chitpur railway station yard was bound to cause scare  among  all  the members of the public  who  would  be resorting   the  station  yard  and  interfere  with   their activities in getting the goods loaded and (1) [1969] 2 S.C.R. 635  (2) A.I.R. 1970 S.C. 614 (3) [1972] 1 S.C.C. 498. (4) A.I.R. 1970 S.C. 1228 14-LI286SupCI/72 492 unloaded.   The  acts attributed to the petitioner  had  the potentiality of affecting the even tempo of the life of  the community  in  the  locality by  their  reverberations.   We therefore,  overrule  the  contention  of  counsel  for  the petitioner  that the grounds communicated to the  petitioner did not disclose that he indulged in any activity which  was prejudicial to the maintenance of public order. It  was  contended  that the petitioner  was  not  given  an opportunity of being personally heard by the Advisory  Board before  it sent the, report incorporating its  opinion  that there   was  sufficient  cause  for  the  detention  of  the petitioner.  We do not think that there is any substance  in this  contention either.  Section 1 1 of the Act, so far  as

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it is relevant, provides : "  1. Procedure for Advisory Boards (1) The  Advisory  Board shall after considering the materials placed before it  and, after  calling for such further information as it  may  deem necessary  from  the  State Government or  from  any  person called for the purpose through the State Government or  from the  per-son  concerned, and if in any  particular  case  it considers  it essential so to de or if the person  concerned desires to be heard, after hearing him in person, submit its report  to  the State Government within ten weeks  from  the date of detention." In  this  case, the Board did not consider it  essential  to hear the petitioner in person before submitting its  report. So, unless the petitioner requested for a personal  hearing, there  was no obligation on the part of the Board to give  a personal  hearing  to  him.  The Board  considered  all  the relevant  materials relating to the case of  the  petitioner and it came to a conclusion that there was sufficient  cause for  the  detention of the petitioner in  its  report  dated September  6, 1971.  On the same day the petitioner  sent  a representation to the Board that he may be heard in  person. That  representation reached the Board only on September  8, 1971.   Thereafter the Board heard the petitioner in  person on  September  18, 1971, but found no reason to  revise  its previous opinion.  So it submitted a supplementary report to the Government on September 18, 1971, to that effect. We, therefore, dismiss the petition. V.P.S. Petition dismissed. 493