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PETITIONER: STATE OF U.P

       Vs.

RESPONDENT: KAMAL KlSHORE SAINI

DATE OF JUDGMENT06/11/1987

BENCH: RAY, B.C. (J) BENCH: RAY, B.C. (J) SEN, A.P. (J)

CITATION:  1988 AIR  208            1988 SCR  (1) 859  1988 SCC  (1) 287        JT 1987 (4)   285  1987 SCALE  (2)989  CITATOR INFO :  R          1989 SC 764  (18)

ACT:      National Security  Act,  1980-Detention  under  section 3(2) thereof.

HEADNOTE: %      The respondent, Kamal Kishore Saini, was detained under an order  of detention  under section  3(2) of  the National Security  Act,   1980.  He  challenged  the  said  order  of detention before  the High  Court under  Article 226  of the Constitution. Of  India. The High Court quashed the order of detention. The  State appealed  to  this  Court  by  special leave.      Dismissing the appeal, the Court, ^      HELD: The  order of detention is illegal and bad on the ground of non-supply of the vital documents and materials to the detenu to enable him to make an effective representation against the  grounds of  detention and  as such his right of making an  effective representation  as  contemplated  under Article  22(5)   of  the  Constitution  of  India  has  been infringed.  Also,   the  non-production   of  the   relevant materials   before   the   detaining   authority   for   his consideration before  his passing  the order  of  detention, renders the order of detention invalid and illegal. [867G-H; 868A-B]      Asha Devi v. K. Shivrai, [19791 1 SCC 222; Gurdip Singh v. Union of India, AIR 1981 SC 362; Dr. Ram Manohar Lohia v. State of Bihar & Qrs., [1966] 1 SCR 705; Arun Ghosh v. State of West  Bengal, [1970] 3 SCK 283 Pushkar Mukharjee v. State of West  Bengal, AIR  1970 SC  352;  Ashok  Kumar  v.  Delhi Administration, [1982]  2 SCC  403, and Gulab Mehra v. State of U. P. & Ors. J 4 JT 1987 (3) 559, referred to.

JUDGMENT:      CRIMINAL APPELLATE  JURlSDICTION: Criminal  Appeal  No. 531 of 1986.

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    From the  Judgment and  order dated  17.4.1986  of  the Allahabad High Court in W. P. No. 6823 of 1985 .      DalVeer Bhandari for the petitioner. 860      Shakeel Ahmed Syed for the Respondent.      The Judgment of the Court was delivered by      B.C. RAY,  J. This  appeal by  special leave is against the  judgment   and  order  passed  by  the  High  Court  of Judicature at  Allahabad in  writ petition Nos. 6823 of 1985 and 6522  of 1985.  The facts giving rise to this appeal are as follows:-      The respondent  Kamal Kishore  Saini was detained under Section3(2) of  National Security  Act,  1980  by  an  order served on  him on 28th November, 1985 on three grounds which are stated hereunder:-      (I) That  on 4th  June, 1985  one Jeet  Narain Awasthi, resident of  Indira Nagar,  Police Station Ghazipur, Lucknow lodged a First Information Report at Police Station Ghazipur that on  the night  of 4/5th  June, 1985 his younger brother Vishnu Narain Awasthi at about 20 hours had left to sleep in house No. 2040 of Indira Nagar, Lucknow occupied by Sri R.S. Raghuvanshi since  Sri Raghuvanshi  had gone out to Jaunpur, his home  town and had entrusted custody of his house to the said Vishnu  Narain Awasthi.  At 11.00  in  the  night  some persons informed  the complainant  that his brother had been shot by certain persons and when the complainant reached the spot he found Vishnu Narain Awasthi lying in a pool of blood and he  had already died. It is alleged that on the basis of the F.I.R.  On 4th  June, 1985  crime No.  101 of 1985 under Section 302  of the  Indian Penal Code was registered at the Ghazipur Police  Station against  unknown accused. The names of the  detenus, it is said figured during investigation and the charge-sheet  has been  submitted in the concerned court which is pending trial.      (2) That  on 13th June, 1985 one Baldeo Prasad Awasthi, resident of  Ismailganj, Police  Station  Ghazipur,  Lucknow lodged  a   First  Information   Report  at  Police  Station Alambagh, Lucknow that his son Ram Kumar and his son-in-law, Nand Kishore  had gone  to meet  an accused  in the District Jail where  the complainant  also reached at about 1.30 p.m. but they  could not  meet the  accused. Ram  Kumar and  Nand Kishore proceeded  towards home  on one  rickshaw while  the other rickshaw  was being  occupied by the complainant. When they reached  a little  distance from  the  Jail,  near  the residence of  the jail  Superintendent, at  about 1.45  p.m. Rajiv Hazra and Kamal Kishore Saini, the two detenus and one Anandi Shukla,  said to  be an  accomplice of one Ram Gopal, came on a scooter, stopped it and challenged Ram Kumar, Nand Kishore and the complainant and filed at 861 them. The  complainant as  also Ram  Kumar and. Nand Kishore ran helter  and skelter  when the  accused are  said to have chased Ram  Kumar for  about 200  steps and  fired twice  or thrice as  a consequence of which Ram Kumar fell dead on the spot and  Nand Kishore  as also  the rickshaw-puller and the complainant sustained  injuries. On this basis crime No. 222 of 1985  under Section  302/307 of the Indian Penal Code was registered on  13th June 1985 at about 14.30 hours at Police Station Lucknow  in which  both the  petitioners and  Anandi Shukla were  named. After  investigation a  charge-sheet has been submitted to the court which is pending consideration.      3. That on 16th August, 1985 at about 14. 10 hours Head Constable 129  C.P. Balram  Pandey  of  the  Reserve  Police Lines, Lucknow  lodged a  First Information Report at Police Station Qaiserbagh,  Lucknow that  on the same day he was on

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duty along  with other  police men  in the Judicial Lock-up, Collectorate, Lucknow.  It was  alleged that the complainant accompanied by  other policemen  on duty  were bringing back accused after  their production  in the  court of  the Chief Judicial Magistrate, Lucknow. Both the detenus (petitioners) proceeded towards  an accused, Vijay Pratap Singh, whereupon Vijay Pratap  Singh, in  panic tried  to retract  and turned back when  Rajiv Hazra  is said to have given a call that it was appropriate time to finish the enemy who was before them as a result of which both the detenus took out their pistols and Kamal  Kishore Saini,  the detenu, with the intention of killing Vijay  Pratap Singh  fired at  him which resulted in injuries to  him and  since this  incident  thither  and  an atmosphere of  terror spread  over the area. On the basis of this F.I.R.,  Crime No.  450 of 1985 under Section 307/34 of the Indian  Penal Code  was  registered  at  the  Qaiserbagh Police Station on 16th August, 1985 and after investigation, the  charge-sheet   has  been   submitted  which   is  under consideration.      The  other   detenu  Rajiv  Hazra  was  served  with  a detention  order   on  identical   rounds  by  the  District Magistrate, Lucknow.      The said  order of detention was challenged in two writ petitions filed  before the  High Court  of Allahabad  under Article 226  of the Constitution of India praying for a writ of mandamus  or order  or direction in the nature of writ of habeas corpus for producing the body of the respondent along with other  respondent detenus  before  the  Court  and  for quashing of  the order  of detention.  In the  said order of detention  it   has  also  been  stated  that  the  District Magistrate after  considering the  fact that  since the  two detenus/petitioners had filed 862 applications for  bail which  were pending  before the Court and for  which the  detenus were  likely to  be released  on bail, passed  the impugned  order of  detention after  being subjectively satisfied that the petitioners on their release from jail  will participate in activities prejudicial to the maintenance of  public order.  The grounds of detention were duly served  on the  detenus  mentioning  therein  that  the detenus may  make representation  to  the  State  Government against the  said order  of detention  and the same would be placed before  the Advisory  Board before  whom the  detenus would be afforded opportunity of personal hearing.      The petitioners  along with  other detenus contended in the writ  petitions that  as regards  the ground  No. 1  the detenus were  not afforded a fair and reasonable opportunity of making  an  effective  representation  before  the  State Government under  Section 10  of the  National Security  Act (Act No.  65 of 1985) inasmuch as they had not been supplied with the relevant documents in support of the grounds except the first  information reports  and  copies  of  extract  of chargesheet submitted  in the two cases. It has been further submitted that the statements recorded under Section 16 1 of the Code  of Criminal  Procedure which  form a  part of  the charge-sheet and  accompanied by the same, were not supplied to the  two detenus  along with  the grounds.  It  has  been further submitted that the petitioners were not named in the F.I.R. the basis on which their complicity came to be known, is the material found in the course of the investigation. It has been  submitted that  the detenus as such could not make an effective representation in the absence of these relevant material documents.  As regards the third ground it has also been submitted that an application was filed by three under- trials  Rajendra  Singh,  Pooran  Mal  and  Jhamman  on  8th

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October, 1985  addressed to the Judicial Magistrate, Lucknow submitted to  the Superintendent  District Jail, Lucknow for being forwarded  to the Magistrate stating that some unknown persons had  fired at  Vijay Pratap  Singh and Kamal Kishore Saini and  other persons  names had been implicated falsely. It  has  also  been  contended  therein  that  in  the  bail applications moved  on behalf  of the petitioners before the Sessions Judge,  Lucknow, this fact was also mentioned. This bail  application   was  moved  much  before  the  order  of detention which  was passed  on 28th  November, 1985.  These relevant materials  were not  produced before  the detaining authority for  his consideration  before the  passing of the order of  detention. As regards the first two grounds Nos. 1 and 2,  it has  been contended  further that they pertain to the maintenance of law and order and not to public order. 863      After hearing  the learned  counsel for the parties the High Court of Allahabad held that so far as ground No. 1 was concerned the  respective detenus  were denied  a  fair  and reasonable opportunity  to represent  against the  order  of detention and  the detention  order thus  stood vitiated. It was also  held that the incidents referred to in ground Nos. I and 2 do not affect public order inasmuch as the reach and effect and  the potentiality  of the  said incidents did not disturb the  even tempo  of the life of the community, as it did not  create any  terror and panic in the locality. These incidents are  confined to  particular persons.  It has also been held that relevant materials such as the application of the three  under-trials as well as the statement in the bail application of the detenus referring to the statement of the under-trials that  the detenus  had been  implicated falsely were not  placed before  the detaining authority and as such the order of detention passed by the detaining authority was invalid and bad in as much as there was no proper subjective satisfaction  of   the  detaining   authority  due   to  non consideration of  the application  of the co-accused and the police report. The order of detention was therefore, quashed by the High Court.      Against this order the instant appeal has been filed on special leave.  The learned  counsel appearing  on behalf of the State, appellant did not question before us the validity and legality  of the  finding of the High Court in so far as it relates  to the  non-supply of  the  relevant  and  vital materials, that  is, the  statements recorded  under Section 161 of the Code of Criminal Procedure so far as ground No. 1 of the  order of  detention is concerned, to the detenus and also of the non-placement of the application made by the co- accused before  the Judicial  Magistrate to  the effect that the detenus  were falsely  implicated in  the said  case  as Vijay Pratap  Singh was  fired at by some unknown assailants and this  fact was  also mentioned  in the  bail application made by  the detenus  before the Court and the police report submitted thereon.  The only challenge made on behalf of the appellant is  to the finding of the High Court to the effect that the  incidents referred to in ground Nos. 1 & 2 created only law  and order  problem and  it did  not affect  public order. In  other words,  the even  tempo of  the life of the community has not at all been affected by the said incident. It is  relevant to mention in this connection that the names of the  detenus were  not mentioned in the F.I.R. in respect of  incident  in  ground  No.  1  and  the  basis  of  their complicity came  to be  known only  in the material found in the course  of the  investigation. The detenus were supplied only with  the copy  of the  F.I.R and  also extract  of the charge-sheet and not the statements under Section 161 of the

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Code of Criminal Procedure. It is undisputed 864 that the  charge-sheet was  subsequently  submitted  in  the Court and  the respondents were furnished with the copies of the statements  recorded under  Section 161 of Cr. P.C. long after the  passing of  the order  of detention communicating the grounds  of detention.  Similarly, with regard to ground No. 3,  the application  of the  co-accused as  well as  the statement made  in the  bail application  filed on behalf of the detenus  alleging that  they had been falsely implicated in the  same case  and the  police report  thereon, were not produced before  the detaining  authority before  passing of the  detention   order.  The   High  Court,  therefore,  was justified in  holding that  the assertion made in the return that even  if  the  material  had  been  placed  before  the detaining  authority,   he  would   not  have   changed  the subjective satisfaction as this has never been accepted as a correct preposition of law. It is incumbent to place all the vital materials before the detaining authority to enable him to come  to a  subjective satisfaction  as to the passing of the order  of detention  as mandatorily  required under  the Act. This  finding of  the High Court is quite in accordance with the  decision of this Court in the case of Asha Devi v. K Shivraj,  [ 1979]  1 SCC  222 and Gurdip Singh v. Union of India., AIR 1981 (SC) 362.      The High  Court has  found that the incidents mentioned in ground Nos. 1 and 2 are confined to law and order problem and not  public order  inasmuch as these incidents concerned particular individuals and do not create any terror or panic in the  locality affecting  E. the even tempo of the life of the community.  This Court  in the  case of  Dr. Ram Manohar Lohia v.  State of  Bihar and  Ors., l  1966] 1  SCR 709 has observed:-                "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.      There are three concepts according to the learned Judge      (Hidayatullah, J)  i.e. "law and order", "public order"      and "security  of the State". It has been observed that      to appreciate  the scope and extent of each of them one      should imagine three 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 public      order just  as an act might affect public order but not      the security of the State".      Similar observation  has been  made in the case of Arun Ghosh v.  State  of  West  Bengal,  [1970]  3  SCR  288  The observation is to the following effect: 865           "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           the disturbance  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  town  where  there  is  communal

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         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 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."      In the  case of  Pushkar Mukherjee  v.  State  of  West Bengal, AIR  1970 (SC)  852 it  has been  observed  by  this Court:-           "The contravention of any law always affects order           but before  it can be said to affect public order,           it must  affect the  community or  the  public  at           large. In  this connection  we must draw a line of           demarcation between  serious and  aggravated forms           of disorder which directly 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 is thus not necessarily suffi-           cient for  action under  the Preventive  Detention           Act but  a disturbance  which will  affect  public           order  comes  within  the  scope  of  the  Act.  A           District Magistrate  is therefore entitled to take           action under  Section 3(1)  of the  Act to prevent           subversion of  public order  but  not  in  aid  of           maintenance  of   law  and  order  under  ordinary           circumstances." 866      In the  case of  Ashok Kumar  v. Delhi  Administration, [1982] 2  SCC 403 to which one of us was a party, this Court while dealing  with the  distinction between  "Public order" and "law and order" observed that:           "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.  The act by itself therefore is           not determinant  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."      Considering all  these decisions  we have  held in  the case of  Gulab Mehra  v. State  of U.P. & Ors., 4 JT 1987(3) 559 (judgment  of this  case was pronounced on September 15, 1987) that  whether an  act relates  to law  and order or to public order  depends upon the effect of the act on the life of the  community or in other words the reach and effect and potentiality of the act if so put as to disturb or dislocate the even  tempo of  the life of the community, it will be an act which will affect public order.      In the  instant case, the criminal acts referred in the

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ground No.  1 are  to the  effect that  on 4th June, 1985 at about 11 P.M. some persons informed the complainant that his brother has  been shot  by some persons and when complainant reached the  spot he found his brother Vishnu Narain Awasthi Iying in  the pool  of blood  and he had already died. Crime case No. 109 of 1985 under Section 302 I.P.C. was registered at Ghazipur  Police Station.  This incident  is confined  to individual persons  and it is private crime as distinct from public crime.  It does  not in any way affect the even tempo of the  life of  the community  nor does it affect the peace and tranquility  of people of that particular locality where the crime  has been  committed. So  far as  the second crime referred to  in ground  No. 2  is concerned,  it is  to  the effect that  the complainant went to Lucknow Jail along with his son,  Ram Kumar  and son-in-law,  Nand Kishore to see an accused in the District Jail. 867 They could  not meet the accused. Ram Kumar and Nand Kishore proceeded towards home in one rickshaw while the complainant was coming  by another  rickshaw. When they reached a little distance from  the Jail  near  the  residence  of  the  Jail Superintendent at  about 1.45  p.m. the  detenus Rajiv Hazra and Kamal Kishore Saini along with another one Anandi Sukhla said to  be the  accomplice of  one Ram  Gopal,  come  on  a scooter, stopped it and challenge Ram Kumar and Nand Kishore and the  complainant. They  fired at  them. The complainant, Ram Kumar  and Nand  Kishore ran  helter  and  skelter.  The accused chased  Ram Kumar  and fired  twice or thrice and in consequence of  it Ram  Kumar fell dead on the spot and Nand Kishore and the rickshaw-puller sustained injuries. On these basis crime  case No.  222 of  1985  under  Section  302/307 I.P.C. was  registered on  13th June,  1985. This firing was made in  a public  street during the day time. This incident does affect  public order  as its  reach and  impact  is  to disturb public  tranquility and it affects the even tempo of the life of the people in the locality where the incident is alleged to have occurred. Therefore, the finding of the High Court with  regard to  this incident that it did not disturb in any way the public order is not legal and valid.      As regards  the incident  referred to  in ground No. 3, that is, the complaint regarding the firing by Kamal Kishore Saini, the  detenu on  Vijay Pratap  Singh,  an  under-trial prisoner, in  the court  compound while  he was  being taken back from  the court  by the complainant and other policemen on duty,  undoubtedly affects  public order  inasmuch as the firing of  shot in  the court  compound  created  panic  and terror in  the minds  of persons  present there  and thus it affects the  even tempo of the life of the community in that place. This  incident certainly affects public order and not merely law  and order  inasmuch as  the  reach,  effect  and potentiality of  the act  purports to disturb the even tempo of the life of the community i.e. the people of that area.      The impugned  order of  detention was  clamped on  28th November, 1985  and the  period of  one year  as provided in Section 13  of the  National Security  Act has also expired. Moreover, we  have already  upheld the  finding of  the High Court that  the order  of detention  is illegal  and bad for non-supply of  vital documents to the detenus to enable them to make  an effective  representation against the grounds of detention and  as such  their right  to  make  an  effective representation as  contemplated under  Article 22(5)  of the Constitution of  India  has  been  infringed  rendering  the impugned order  as illegal  and bad.  Furthermore, the  non- production of  relevant materials  i.e. the statement of the under-trial prisoners in their application in the court that

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868 the detenus  had been  falsely implicated  in the crime case No. 450  of 1985 under section 307;34 I.P.C. as mentioned in ground No.  3 and  also the  statement to that effect in the bail petition  and the  police report  thereon,  before  the detaining authority for his consideration before passing the order of  detention, renders  the order of detention invalid and illegal.      for the reason aforesaid we dismiss the  appeal S.L.                                       Appeal dismissed. 869