TMI Blog1984 (4) TMI 311X X X X Extracts X X X X X X X X Extracts X X X X ..... ust be the sole judges of what the national security or public order requires.' It is too perilous a proposition. Our Constitution does not give a carta blanche to any organ of the State to be the sole arbiter in such matters. Preventive detention is considered so treacherous and such an anathema to civilized thought and democratic polity that safeguards against undue exercise of the power to detain without trial, have been built into the Constitution itself and incorporated as Fundamental Rights. There are two sentinels, one at either end. The legislature is required to make the law circumscribing the limits within which persons may be preventively detained and providing for the safeguards prescribed by the Constitution and the courts are required to examine, when demanded, whether there has been any excessive detention, that is, whether the limits set by the Constitution and the legislature have been transgressed. Preventive detention is not be- yond judicial scrutiny. while adequacy or sufficiency may not be a ground of challenge, relevancy and proximity are certainly grounds of challenge. Nor is it for the court to put itself in the position of the detaining authority an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... young sons of Kashinath Bajoria, owner of Bajoria petrol pump of Bhagalpur, on April 20, 1983. In the course of investigation by the police it transpired that they were kidnapped from the petrol pump on the earlier day i.e. on April 19, 1983 and the petitioner Vijay Narain Singh demanded a ransom of ₹ 50,000 from the father of the victims. The demand for ransom having not been fulfilled, the two boys were done to death brutally and their dead bodies were thrown at a place near Mount Assis School and Zila School and were discovered the next morning. On the basis of first information report a case was registered at Bhagalpur Kotwali (Police Case No. 281 dated April 20, 1983) under ss. 364, 302 and 201, all read with s. 34 and s. 120B of the Indian Penal Code, 1860 against the petitioner Vijay Narain Singh, his brother Dhanonjoy Singh, one Bimlesh Mishra and two unknown accused. The petitioner along with his co-accused has been committed to the Court of Sessions to stand his trial in Sessions Case No. 348 of 1983 and charges have been framed under s. 302 read with s. 34/120B, 386 and 511 of the Indian Penal Code and the case was set down for evidence on February 27, 1984 A learn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, 1981 but rested himself content by advancing a twofold submission, namely: (1) The impugned order of detention passed by the District Magistrate, Bhagalpur under s. 12(2) of the Act must be held to be void under Art. 22(5) of the Constitution as one of the grounds was too remote and not proximate in point of time and had therefore no rational connection for the subjective satisfaction of the District Magistrate s. 12(2) of the Act. He relied upon the principles laid down by this Court in Shibban Lal Saksena v. State of Uttar Pradesh Ors. (1) followed in serveal subsequent cases, and particularly on the majority decision in the recent case of Kamlakar Prasad Chaturvedi v. State of Madhya Pradesh Anr(2 And The impugned order of detention was mala fide and constitutes a flagrant abuse of power on the part of the District Magistrate as it is meant to subvert the judicial process by trying to circumvent the order passed by the High Court enlarging the petitioner on bail. There is, in my opinion, no substance in any of these contentions but before. I deal with them I must touch upon the question raised in the majority opinion. Inasmuch as the District Magistrate has chosen to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act can only be taken in resect of persons against whom there are verdicts of guilt after the conclusion of trials. According to him, merely on the basis of institution of criminal cases a person cannot be labelled as an anti-social element. I find considerable difficulty in subscribing to either of his views. According to its ordinary meaning, the word 'habitual' as given in Shorter Oxford English Dictionary, vol. 1, p. 910 is : A. adj (1) Belonging to the habit or inward disposition, inherent or latent in the mental constitution; (2) of the nature of a habit; fixed by habit; constantly repeated, customary. B. A habitual criminal, drunkard, etc. A person is a habitual criminal who by force of habit or inward disposition, inherent or latent in him, has grown accustomed to lead a life of crime. It is the force of habit inherent or latent in an individual with a criminal instinct, with a criminal disposition of mind, that makes him dangerous to the society in general. In strengthen language the word 'habitually' means 'by force of habit'. The Act appears to be based on Prevention of Crime Act 1908 (c-59). By Prevention of Crime Act, as am ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... element in s.2 (d) of the Act nowhere requires that there should be number of prior convictions of a person in respect of offences of a particular type. I cannot also share the view that the commission of an act referred to in one of the sub-cl. (i), sub-cl. (ii) or sub-cl. (iv) of s 2 (d) and any other act or omission referred to in any other of the said sub-clauses would not be sufficient to treat a person as an 'anti-social element'. Further, I do not think it is correct to say that merely because there was an acquittal of such a person, the detaining authority cannot take the act complained of leading to his trial into consideration. It may be that the trial of a dangerous person may end in an acquittal for paucity of evidence due to unwillingness of witnesses to come forward and depose against him out of fright. If a person with criminal tendencies consistently or persistently or repeatedly commits or attempts to commit or abets the commission of offences punishable under Chapter XVI dealing with offences affecting human body or Chapter XVII dealing with offences against property of the Indian Penal Code, there is no reason why he should not be considered to be an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal Security Act or the Conservation of Foreign Exchange Prevention of Smuggling Activities Act or any other law providing for preventive detention- It is the bounden duty of the court to satisfy itself that all the safeguards provided by the law have been scrupul- ously observed and that the subject is not deprived of his personal liberty otherwise than in accordance with law. Nonetheless, the community has a vital interest in the proper enforcement of its laws particularly in an area where there is worsening law and order situation, as unfortunately is the case in some of the States today in dealing effectively with persons engaged in anti-social activities seeking to create serious public disorder by ordering their preventive detention and at the same time in assuring that the law is not used arbitrarily to suppress the citizen of his right to life and liberty. The impugned order of detention has not been challenged on the ground that the grounds furnished were not adequate or sufficient for the satisfaction of the detaining authority or for making of an effective representation. The Court must therefore be circumspect in striking down the impugned order of detentio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entive Detention Act, 1950 could be allowed to stand. The Court laid down that if one of the two grounds was irrelevant for the purpose of the Act or was wholly illusory, this would vitiate the detention order as a whole. That is a principle well-settled since the well-known case of Keshav Talpade v. The King Emperor(1): The Court reiterated the principle and said that it was not for the Court to examine whether the two grounds upon which the detention order was based were good or bad nor could it attempt to assess in what manner and to what extent each of the grounds operated on the mind of the appropriate authority and contributed to the creation of the satisfaction on the basis of which the detention order was based. It then added: To say that the other ground, which still remains, is quite sufficient to sustain the order, would be to substitute an objective judicial test for the subjective decision of the executive authority which is against the legislative policy underlying the statute. In such cases, we think, position would be the same as if one of these two grounds was irrelevant for the purpose of the Act or was wholly illusory and this would vitiate the detention orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly, in the future, to act in a manner prejudicial to the maintenance of public order. ************* It cannot be said that the prejudicial conduct or antecedent history of the petitioner was not proximate in point of time and had no rational connection with the conclusion that his detention was necessary for maintenance of public order.'' It is usually from prior events showing tendencies or inclinations of a man that an inference can be drawn whether he is likely, in the future, to act in a manner prejudicial to the maintenance of public order. Learned counsel for the petitioner also submitted that the ordinary criminal process could not be circumvented by resort to preventive detention. In somewhat similar circumstances, the Court recently in Alijan Mian v. District Magistrate, Dhanbad Ors(1). held that merely because there was pending prosecution and the accused were in jail, that was no impediment for their detention under s.3(2) of the National Security Act, 1980 if the detaining authority was satisfied that their being enlarged on bail would be prejudicial to the maintenance of public order. The same view has been reiterated by this Court in Raisuddin Babu Tamchi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l be examined at the trial if such occasion arises. In the circumstances of the present case, let petitioner be released on bail of ₹ 30,000 (Rupees ten thousand with two sureties of the like amount each) to the satisfaction of the Chief Judicial Magistrate, Bhagalpur in Bhagalpur Kotwali P.S. Case No. 281/83 dated 20.4.83. Even before the petitioner could furnish bail and secure his release from jail as per the above order, the District Magistrate passed the impugned order of detention on August 16,1983, the relevant part of which reads thus: Order No. 151 dated 16.8.83 Whereas I am satisfied that with a view to preventing Shri Vijay Singh s/o Late Shri Jagannath Singh of Mohalla Mundichak P.S. Kotwali. District Bhagalpur from acting in any manner prejudicial to the maintenance of public order, it is necessary to make an order that he be detained. Now, therefore, in exercise of the powers conferred by (Bihar Act 7 of 1981) sub-section 2 of section 12 of the Bihar Control of Crimes Act, 1981 read with Notification H(P) 6844 dated 20.6.83 of the Government of Bihar vesting the powers of detention in District Magistrate, Bhagalpur, I hereby direct that Shri Vijay Sing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rning. These double murders caused panic throughout the Bhagalpur Town and public order was gravely disturbed. Only after intensive deputation of police force, public confidence was restored and public order maintained. A case was instituted vide Kotwali P.S. Case No. 281 dated 20-4-83 under sections 364/302/201/34/120(b) I.P.C Charge-sheet has been submitted in this case against Vijay Singh and others. Investigation shows that Vijay Singh is mainly instrumental to this heinous crime. (Copy of F.I.R., brief of the case and copy of Memo of evidence enclosed). In the circumstances, I am satisfied that if he is allowed to remain at large, he will indulge in activities prejudicial to the maintenance of public order. For prevention of such activities, I considered his detention necessary. Shri Vijay Singh is informed that he may make a representation in writing against the order under which he is detained. His representation, if any, may be addres sed to the Deputy Secretary, Home (Police) Department, Government of Bihar, Patna, and forwarded by the Superintendent of Jail through special messenger with a copy to the undersigned. Sd/-S.K. Sharma 16/8/83 District Magistrate Bh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity or hatred between different religions, racial or language groups of castes or communities ; or (iv) has been found habitually passing indecent remarks to or teasing women or girls ; or (v) who has been convicted of an offence under sections 25, 26, 27, 28 or 29 of the Arms Act of 1959. (underlining by us) Section 3 to 11 of the Act deal with the provisions relating to externment of anti-social elements. Chapter II of the Act deals with the provisions providing for the preventive detention of anti-social elements. The relevant part of section 12 of the Act which is in Chapter II of the Act reads : 12. Power to make order detaining certain persons. The State Government may-(1) If satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the maintenance of public order and there is reason to fear that the activities of anti-social element cannot be prevented otherwise than by the immediate arrest of such person make an order directing that such anti- social element be detained. (2) If, having regard to the circumstances prevailing or likely to prevail in any area within the local limits of the jurisdiction of a D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... referred to in any of the sub- clauses (i) to (v) of section 2 (d) was sufficient to make a person an 'anti-social element', the definition would have run as 'Anti-Social Element' means 'a person who habitually is .....' As section 2 (d) of the Act now stands, whereas under sub-clause (iii) or sub-clause (v) of section 2 (d) a single act or omission referred to in them may be enough to treat the person concerned as an 'anti-social element', in the case of sub-clause (i), sub-clause (ii) or sub-clause (iv), there should be a repetition of acts or omissions of the same kind referred to in sub-clause (i), sub-clause (ii) or in sub-clause (iv) by the person concerned to treat him as an 'anti-social element'. Commission of an act or omission referred to in one of the sub-clauses (i). (ii) and (iv) and of another act or omission referred to in any other of the said sub-clauses would not be sufficient to treat a person as an 'anti-social element'. A single act or omission falling under sub-clause (i) and a single act or omission falling under sub-clause (iv) of section 2 (d) cannot, therefore, be characterised is a habitual a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... will have to be awarded appropriate punishment. But the point for consideration now is whether the filing of the charge sheet is sufficient to bring the petitioner within the mischief of the Act. The Court should examine the case without being overwhelmed by the gruesomeness of the incident involved in the criminal trial. It is well settled that the law of preventive detention is a hard law and therefore it should be strictly construed. Care should be taken that tee liberty of a person is not jeopardised unless his case falls squarely within the four corners of the relevant law. The law of preventive detention should not be used merely to clip the wings of an accused who is involved in a criminal prosecution. It is not intended for the purpose of keeping a man under detention when under ordinary criminal law it may not be possible to resist the issue of orders of bail, unless the material available is such as would satisfy the requirements of the legal provisions authorising such detention. When a person is enlarged on bail by a competent criminal court, great caution should be exercised in scrutinising the validity of an order of preventive detention which is based on the very sa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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