9911796707
TMI Blog2013 (7) TMI 1188X X X X Extracts X X X X X X X X Extracts X X X X ..... the detention as provided under Section 3(3) of the Act. Thereafter, on 12.3.2013, the Government referred the matter to the Advisory Board as provided under Section 9 of the Act and the Advisory Board heard the detenu on 21.3.2013 when the detenu submitted a representation to the Board. After considering the matter and hearing the detenu, the Advisory Board submitted its report under Section 10(1) of the Act with its opinion that there was sufficient cause for the detention of the detenu. On that basis, the Government passed order dated 5.4.2013 confirming the detention as provided in Section 10(4) of the Act. 4. In the meanwhile, on 2.4.2013, the detenu submitted a representation to the jail authorities and the jail authorities forwarded the representation to the Government under cover of their letter dated 2.4.2013 and the Government received the representation on 9.4.2013. That representation was considered and was rejected by the Government by its order dated 11.4.2013. It is in the aforesaid circumstances, the petitioner, who claims to be a friend of the detenu, has filed this writ petition seeking to challenge Ext. P1 and to set the detenu at liberty by issuance of a writ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urrence in question was on 8.7.2011 and after investigation, this case was also charge sheeted for offences under Sections 323, 324, 294(b) and 506(ii) of IPC and the case is now pending before the Judicial First Class Magistrate's Court, Kollam as C.C. No. 738/2012. The third case is C.C. No. 216/2012 pending before the Judicial First Class Magistrate's Court, Kollam, which was registered as Crime No. 1289/2011. The occurrence in relation to this case was on 17.11.2011 and the offences alleged are under Sections 294(b), 341, 323 and 34 of IPC. The fourth case charge sheeted before the Judicial First Class Magistrate Court, Kollam is in relation to Crime No. 751/2012, where the occurrence was on 19.7.2012 and the offences alleged are under Sections 294(b) and 506(ii), 341 and 34 of IPC. 9. In addition to the aforesaid four cases, the detaining authority has also referred to the pendency of Crime Nos. 115/2012, 976/2012, 1210/2012, involving offences under IPC, and 1098/2010 (under Section 107 of the Cr.P.C.), in which also, the detenu is an accused. It is taking note of the facts in all these criminal cases the detaining authority declared the detenu a 'known rowdy' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .... 17. 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 and 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: (AIR pp. 758-59, paras 51-52), 51. ....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 riyal communities and one of them tried to raise communal passions. The problem is still one of law and order but it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng 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 ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In its quality it may not differ but in its potentiality it may be very different. 21. 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: 4. 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 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 loca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... community of that specified locality? 25. 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 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. 26. The learned counsel for the detenu also placed reliance on Ramesh Yadav v. District Magistrate, Etah and Others (1985) 4 SCC 232. In this case the court observed as under:- 6. 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 authori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve 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. 28. In Commissioner of Police and 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: (SCC pp. 471-72, para. 7 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 orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atest 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 tranquility 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. 11. Principles laid down in the aforesaid judgment shows that "public order" is distinct and different from "law and order" and the Apex Court has consciously observed that "public order" may well be paraphrased in the context of legislations such as the Act as "public tranquility". Therefore, any act, which adversely affects the public tranquility of an area is an act affecting public order of the area. Insofar as this case is concerned, the facts narrated in Ext. P1 order itself would show that various crimes have been allegedly committed by the detenu, in public places and in day light and as a result, the people in the locality are terrorized and that because of these acts, tranq ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order. A detenu - either a known goonda or known rowdy cannot validly urge that he is not a known goonda or known rowdy for the reason that the cases relied on against him under S. 2(t), 2(p) or 2(o) are cases which do not reveal commission of organised crime and they do not pose any threat to public order. That does not appear to be the scheme of the Act at all. Initial threshold satisfaction that a person is a known goonda or a known rowdy must certainly be entertained by the detaining authority. To entertain that, the detenu need only satisfy the definition of goonda and known goonda or rowdy and known rowdy. The definitions of these expressions in 2(j) (inclusive latter part) and 2(o) as also 2(t) and 2(p) do not at all demand that the offences referred to therein must also be instances of organised crime or that they must threaten public order. Such a requirement cannot be read into the definition of 'rowdy' in S. 2(t) or known rowdy in 2(p) or even the definition of goonda in S. 2(j) (inclusive latter half) and known goonda in 2(o). Of course, we repeat that while considering the latter subjective satisfaction, it will certainly have to be considered whether the subj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has no case that the offences, which are alleged against him in the four crimes relied on against him, do not fall under the provisions, which are specified in Section 2(t) of the Act. Once that legislative specification is satisfied, a detenu cannot argue that in his view the offences are not grave enough and therefore, are extraneous and invalid to render his detention illegal and unconstitutional. 15. The learned counsel for the petitioner then contended that Ext. P1 order of detention was not approved by the Government in time and that therefore, his continued detention was unconstitutional. The provision for approval of detention is contained in Section 3(3) of the Act, which reads thus: 3. Power to make orders for detaining Known Goondas and Known Rowdies- (1) xx xx xx (2) xx xx xx (3) When any order is made under this section by the authorised officer under subsection (2), he shall forthwith report the fact to the Government and the Director General of Police, Kerala, together with a copy of the order and supporting records which, in his opinion, have a bearing on the matter and no such order shall remain in force for more than 12 days, excluding public holidays, fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as detained. The contention of delay is raised by the learned counsel for the petitioner on the basis that Ext. P24 order was received by the jail authorities only on 21.3.2013. In this context we should state that we have not been shown any authority to take the view that the Government is also required to communicate its order to the detenu, within the 12 days specified. If that be so, since approval has already been accorded by the Government on 7.3.2013, what happened subsequent thereto, at best, is only the delay in communicating the order and that delay cannot have any impact on the legality of the approval already granted by the Government. From the files produced by the learned Government Pleader, we also found that even though Ext. P24 was received by the jail authorities only on 21.3.2013, a copy of Ext. P24 order was served on the detenu and he acknowledged the same by affixing his signature on 12.3.2013 itself. In such circumstances, we are not impressed by the argument of the learned counsel for the petitioner. 18. The learned counsel for the petitioner contended that since it was stated in Exts. P3 and P4 that if order of approval was not received within 12 days of d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt of such officer under Section 3(3)". Section 10 deals with the procedure of the Advisory Board and further action. As per this provision, once the reference is received by the Board, it shall after considering the reference and the materials placed before it and after calling for such further information as it may deem necessary from the Government or from any other person and after hearing the detenu, if he so desires, prepare its report in the manner as provided therein as to whether or not there is sufficient cause for the detention of the person concerned. It shall thereupon submit its report to the Government within nine weeks from the date of detention. Sub Section 4 provides that in every case where the Advisory Board has reported that there is, in its opinion, sufficient cause for the detention of a person, the Government may confirm the detention order and continue the detention of the person concerned for such period as it thinks fit and that in case where the Advisory Board has reported that there is in its opinion, no sufficient cause for the detention of the person concerned, the Government shall revoke the detention order and release the person forthwith. 20. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontext. 23. It was then contended by the learned counsel for the petitioner that even the representation dated 2.4.13, which was rejected by order dated 11.4.13 did not receive a proper consideration. Counsel relied on the judgment of the Apex Court in Babu M. v. State of Kerala and Others, 2010 (1) KHC 214 to impress upon us the nature of consideration that a representation made by the detenu in a case of preventive detention should receive. We have considered this contention of the learned counsel. We do agree that as held by the Apex Court that representation made by a detenu in a case of preventive detention should have a real and proper consideration although the order that is to be passed by the authority concerned need not be a speaking order. However, this contention of the learned counsel can be answered only with reference to the relevant averments in the counter affidavit and the order dated 11.4.13 passed by the Government. 24. The file containing order dated 11.4.13 was made available by the learned Government Pleader. It is revealed that the order was issued by the Principal Secretary, Home Department, which shows that the representation was considered by the Princi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... subsequent two reports of the sponsoring authority were given to the detenu and are included at Sl. Nos. 4 and 5 of the list. 28. In this context, counsel also contended that documents in relation to Section 107 Cr.P.C. proceedings were also relied on in Ext. P1 order and that it was not served on the detenu. In Ext. P1 order what is stated by the detaining authority is that though Section 107 proceedings have been initiated against the detenu on 18.7.2010 and are pending before Sub Divisional Magistrate, Kollam, there has not been any progress in the matter and it was therefore that he was satisfied that in spite of the above, the detenu should be detained under the Act. This therefore means that the detaining authority did not rely on the 107 Cr.P.C. proceedings and only if the detaining authority had relied on such proceedings, detaining authority would have been obliged to supply the documents in relation thereto to the detenu in compliance with the principles laid down by the Apex Court in the judgment referred to above. Further, if the document in relation to Crime No. 1098/10 was of any advantage to the detenu and if he wanted to rely on the same, it was for him to have mad ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
