Dismissed

Samaresh Chandra Bose etc. etc. v. District Magistrate, Burdwan

Supreme Court14 Aug 19721972 INSC 171 · [1973] 1 S.C.R. 8591972 INSC 171

Case brief

AI extract

What is this about?

The Supreme Court dismissed writ petitions challenging detention orders under the Internal Security Act. It held that the government explained the 22-day delay in considering the representation reasonably due to the 1971 war context and worker strikes. The Court found the detention grounds sufficiently specific and that the acts of terrorizing locals and attacking police clearly raised public orde

What did the court decide?

Petitions dismissed and detention orders quashed orders relied upon.

What the court decided

Samaresh Chandra Bose etc. etc. versus… — Civil Procedure and Limitation | Supreme Court (1973)

¶1

859 SAMARESII CHANDRA BOSE ETC. ETC. v. DISTRICT MAGISfRATE. Bt.t"RDWAN August 14, 1972

¶2

[1. M. SHI!LAT, I. D. DUA AND H. R. KHANNA, JJ.] J MainttiiiUICt of lnrtrnal Securit,v Act No. 26 of 1911--sution 3(l IM 3(2), whtthtr delay o/22 days in considering the rtprtstntc.:ion o/ 1~ ktenwu by the Governmrnt unju.stifitd-Whethtr vr'olt"ct · J ,1auut • pot '/ t 1 1 co opponentz a nd po 11 ce party affects public ordtr- " prarWit lllt tit kttlltion order passed against dtttnu~ in jail Is ptr se m:tla fide. t u . The delef!ues and some other persons belonging to CPI(M) killed a iriver beloogmg to CPl. It was furthe.r alleged that the detenues attacked C the police party with bombs. The detention order was issutd while the 4etcnues were still in custoy. The detention Y.-aJ challenged, intu alia, oa the ground that the dcten!Jon .was vagu. that the alleged acts of violence tlid not raise aoy problem of public; order and that the detention was mal• {We. The detenues also challenged the validity of s. 17(a).

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Dillmissiog the petition,

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D HELD : (i) The reasons aiven by the Government, for delay, namely, Pwtani au;ressioo durin& Bangladesh war, go-41Dw movement of ~~o-o·kers. iDcrease in the number or detention cases and spate of anti-social activities •1 Nualites aod other political extermists, W'Crc clear and 0011viDcin1. 'There was oo inordinate delay in the eoosider~tion of repres.eot_ations. ~· aidering the facts ot the case, the represeotallons were COOS!dered WJih fliiO!lable di.sp:~tch. /862E]

¶5

E Ujagar Singh v. The Smte o f Punjab, n952l S.C.R. 155 and :-4miyo KJUnDT Karmal.4r v. Stott of West Bengal W.P. No. 190 of 1972, rdied on.

¶6

(ii) The petitioners knew who the "poli!ical oponents" re and ~ detention order upressly stated the respective par1tes 10 wch tbe pe acne" and the \ictim belonged. The two grouds of de!CnllO"' art0tr t~: linked It cannot therefore be said that the pehtlonen did oOt &<:t pp r !unity· to malte effective representation due to vaguene~ or ambtgully⁰ F 'be crounds fumilihcd. !865H]

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, I . I I I I 1 I ., · t I I

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. (ill) It is quite clear that the pet_itioners an':o a::v~;: t:C1r ~~nrcj 111 acts prima fac/ designed to terr?r'f peopled all this mu.st have inevioppooentt and to cow down tho poh<7 orce rmal peaceful civU life of llible e!fect of disturbin!f and plys d pact of the activities of the 1lle eeoeral public. The magrutut ::.n and trooqu:Uitv of the lawG Pe'titiooc: ahd hls associates on thc acts of the detcnuea rslsed abidio1 ~ ,rderly alfectina aocipublic ctv cl.carly showsorder. t868 01 a

¶9

. r of p 0 1ict, (19701 1 S.C.R. 76l.

¶10

Shyamfal Chakraborty v. Commisslorte reUcd oo. Salta C.Jl. 138 $wdltv l{utrtllr v. SIUhanta Goswcml, In 111 : [196⁹ 1 i_S.360 and Anut GMtlt • · Stott of H Ctsslorur, .Calcutta. f1970l 3 ·· ished "m Btnc'l/, (1970] S.C.Jl. 2811, dUUDJU • tude tho debiP rt f taw cannot prce oec;etsity • (iY) The earlier discharge In a ~~cti~e satisfaction abOUt the IDJ authority !rom coming to a su l

¶11

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860

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SUPJ.EMB COUIT J.EPOllTS

¶14

[1973) l S.C.R

¶15

of the petitioner's detention which is preventive in c;haracter. The detention order is not reiJdered illegal or rna~ fide simply because the order was passed when the detenues were still in jail. f868F]

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(v) Challenge, to s. 17(a), introduced as an amendment by Defence of India Act, 42 Ql[ 1971 was not pressed.

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OPIGINAL JURISDICTION: Writ Petirtions Nos. 216-218 of 1912. B

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Under Article 32 of the Constitution of India for the enforce-ment of fundamen1al rights.

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Somnath Chatterjee, Narnarayan Gooptu, Pulakmondal and Rathin Das, for the petitioners.

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D. N. Mukherjee and G. Mukh()ty, for the respondents.

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The Judgment of the Court was delivered by

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Dua, J. These three writ petitions (Samaresh Chandra Bose v. District Ma_gistrate, Burdwan & Ors. W.P. No. 216 of 1972; Shymal Biswas v. District Magis~rate, Burdwan etc., W.P. No. D 217 of 1972 ,and Dulal Chandra Das v. District Magistrate, Burdwan etc., W.P. No. 218 of 1972) raise common questions of law and fact and are, therefore, being disposed of by a common judgment. In fact tthe main arguments were addressed only in Samaresh Chandra Bose v. District Magistrate (W.P. No. 216 of 1972), the arguments of this case having been adopted in the E ·other two cases. We would, tlrerefore, refel to the facts in W.P. No. 216 of 1972.

¶25

Samaresh Chandra Bose who is employed as a Supervisor of AUoy Steel Plant, Durgapur was, according to the common .case of both sides arrel\ted on October 13, · 1971 and was an accused in Uurgapur P.S. case (No. 33 dated October 14, 1971) under ss. '147/1881307, I.P.C. and under s. 6(3) of the Indian Explosives Act. According to the petition.'!r he was woken up while asleep in his quarters and arrested on the morning where· as according to the respondent he was arrested at about 8.15 p.m. from Tilak Road "B" Zone, Durgapur. It is alleged that the petitioner, along with his associates, Shyamal IJiswas and Dulal Chandra Das (the two writ peti1ioners in the connected ca<;es) and others ha~ hurled a bomb towards a police party on patrol duty and after having done so they tried to run .away, but thev were chased and'. pN:imatelv all three were apprehended. The petitioner, according to the resoondent. was also wanted in connection with Durgaour P .S. case (No. 17 dated October 8, 1971), described by the titioner in oaratr:mh 8 of his writ petition to be under ss. 148/149/326/307/326/302, I.P.C. The petitioner was discharged in both the aforesaid criminal cases on October

¶26

¶27

¶28

S. C. BOSE v. DIST. MA61STRATE (Dua, J.) 861

¶29

A 28, 1971. After his discharge the petitioner was served wtth the detention order dated October 26, 1971 made by the District Magistrate, Durgapur in exercise of the power conferred on him by s. 3 (1 ) and ( 2) of the Maintenance of Internal Security Act, 26 of 1971 (hereinafter called the Act) and arrested on October 28. 1971.

¶30

B On behalf of the petitioner Shri Somnath Chatterjee, his learned Advocate, submitted as the first ground of attack against the order of detention that the petitioner's representation to the State Government was not considered with due expedition as contemplated by Art. 22 ( 5) of the Constitution. The representation was received by the State Government on <:: November 23, 1971 but it was disposed of about 22 days. thereafter on December 16, 1971. According to him the explanation for the delay furnished by the respondent is highly unsatisfactory and this inordinate delay has, therefore, rendered the petitioner's detention invalid.

¶31

is i

¶32

·-^., '>, l'· ~,-

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D It is not disputed that the representation received on November 23, 1971 was considered on December 16, 1971. The explanation ~iven ·by the State for 'the aforesaid delay in considering the petitioner's representation is contained in paragraph 10 of the counter-affidavit, wherein it is averred :

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" .... that the written representation of the detenu

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was duly considered by the S a•te Gtvernment expedi~ tiously and the same· was rejected af~~r due consideration. I further state that at that time due •to influx of refugees ahd due to Pakistan aggression, most of the officers of the Home Department were very busy with serious problems which faced the coun1ry at ·that time and as such the said representation of the petitioner could not be considered earlier. Moreover I further state that due to ga-slow movement of workers launched co-ordination committee of the Statt! Government Employees during the period September to November 1971 there was serious dislocation and delay in movement of files an..d di<;posal of cases. I further state· that delay was also caused due to abrupt increase in n¹ Jmber of detention ;::ases durine: that time as there was spate of antisocial activities by Naxalites and other political extremists in the State. I state that all the above factors contributed towards the delay of about 28 davs in considering the representation of the detenu petitioner." ·

H This explanation in a nut-shell shows the following reasons for

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the delay in considering the petitioner's representation

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( 1 ) influx of refugees;

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162 SUPREME COUllT REPORTS

¶43

[1973] l S.C.lt.

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A (2) Pakistani a~gression keepinJ.! most of the officers of the Home Department busy with the serious problems facing the country; ( 3) o-slow movement of the workers launched by Co-ordination Committee of the State- Govern. ment employees durin the month of September B to November, 1971 giving rise to serious dislocation and delay in the movement of files and disposal of cases;

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( 4) abrupt increase in the number of detention cases;

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{ 5) spate of anti-social activities by Naxalites and other polhical extremists in the State.

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AlthouJ.'.)l according to Shri Chatterjee's submission this ex~ planation is vague and ambiguous. and does not disclose precise material on which the delay can be held by this Court to have D been satisfactorily explained, we are unable to find any ambiguity or _vagueness in irt. In our opinion, the explanation contains distinct reasons based on facts which are quite clear, definite and rdevant and they can legitimately be taken into account for determining whether the State Government had considered the petitioner's representation with reasonable despatch and expeJition or had inordinately delayed its consideration. The explanation E convincingly shows that there was no inordinate delay on the part of the State Government and that the representation was duly considered with reasonable dispatch or as expeditiously as practicable in the peculiar circumstances of the case, thereby fully complying with the provisions of Art. 22 ( 5) of the Con')titu· tion. This Court in Ujagar Singh v. The State of Punjab(l) while construing the words "as soon as may be" in s. 7 of the Prev,·mtive Detention Act, 4 of 1950 said that these words mean reasonable dispatch and what is reasonable dispatch depends on the facts of each case, it being not possible to set down an arbi· trary time limit. Recently in a number of decisons this. Court ha<; taken a similar view. No precedent has been brought to our notice on the authority of which we may be obliged to hold that the reasons contained in the explanation before us do not sati factorily account for the delay of 22 days and that the detention must on that account be held to have become invalid .. On the other hand a recent decision of this Court dated Julv 31, 1972 in Amiya Kumar Karmarkar v. State of West Bengal(² ) delay of 21 days in somewhat similar circumstances was held not .to H amount to inordinate delay so as to render the detention invalid.

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E " ' i

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~-· ,----------(1) £l9S2} S. C. R. 756.

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(2) W.P. No. 190 of 1972.

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S. C. BOSE v. DIST. MAGISTRATE (Dua, ].) 8 63

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A Shri Chatterjee faintly contended that according to the veri·

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.fication of the counter-affidavit the conteuts of para 10 are hased on infortnaLion derived from the records and, , therefore, this should more appropriately have been affirmed by the District MaJtistrate and not by lthe Deputy Secretary of the Homo (Special) Department. This submission seems to us to be miB-

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B conceived. In the State of West Bengal a Special Section Jf tho Home Department has been created for the purpose of dealing with the law and order situation. In para 6(h) of the counter affidavit it ij stated that on November 23, 1971 the Home !)e.. part.ment (Special . Section) received the petitioner!s representation. From para 8 of the counter-affidavit it appears that tho

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c said representation was addressed to the Assistant Secretary, Home, (Special ) Department. It is indeed this Department which, as suggested in para 24 of the counter-affidavit, has in its custody, relevant records of the State Government from which the required relevant infonnation has been derived by 'the depom~nt who is the Deputy Secretary of the Home (Special) Department, Government of West Bengal. He has affirmed that he has gone through

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D the records kept in the Special Section and that he is well·acquaint~ ed with the facts and circumstances of the case. It is noteworthy that in this case there is no chaUenge to the bona fides of the officer (District Magistrate, Dunzapur) making •hoe order of detention : had there been such a challenge one mi!zht have as a rulo expected the officer concerned to file an affidavit controverting

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E that challenge. This contention is thus also unacceptable.

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Shri Chatterjee also submitted that there is no material on tho

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record suggesting that the Special Section itself did not continuo to function effectively by reason of the five grounds contained in

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the explanation for the delay in the considering the petitioner's represen' ation. According to the learned counsel 'this Section should not ·have taken more than just seven days for makin~ available to the State Government the requisrte material for performing i'ts constitutional duty as contemplated ~Y rt. 22 ( 5). Shri Chatterjee indeed went to the lenl:!th of sugstmg that the

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explanation contained in the counter.affidavit was an after-thought. We are whollv unable to agree with this submission. The very

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. f·· ) G fact that a Special Section of the Home Department was constdered necessary to be created in the Sta·oe of West Bengal for dealing with inter alia the cases of detenues, convincingly <;uggests that the situation there was far from normal; besides it is a matter of public historv of which iudicial notice c1n be -raken, and indeed even Shri Chatterjee could not controvert it, that for several mon1h~ nrecedin!! the Tndo-P~k war which be{!l'ln on

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H December 3, 1971, there was a continuous influx of refugees (runnhw into several millions) from. wh~t was then known a!!

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East Pakistan and is now free Republic of Bangia Desh and that

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864

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[1973] 1 s.c.a.

¶70

SUPREME COURT REPORTS

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on our eastern borders the situation was anything but n01mal. Indeed, this unprecedented influx of refugees from the very nature of things could not but give rise to colossal problems affecting inter alia the law and order situation and maintenance of _security in the State of West Bengal. Between November 23 and Decem~ ber 16, 1971.. therefore, the entire Home Department in West Bengal, including its Special Section which owed its birth to the urgent need of dealing with the. detenus and other allied problems, can Jetimately be assumed to have been under conside1able stress and strain on account of the vexed problem posed by the indiscriminate influx of refugees· with unknown antece· dents from across our eastern borders. We are, therefore, wholly unable to agree with Shri Chatterjee that there is no relevant material fQr holding that the workin of the Special Section of the Home Department was also adversely affected for the reasons contained in the respondent's explanation.

The two grounds on the basis of which the petitioner has been detained are :

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''On 8-10-71 at about 13-45 hours you along with your associates J?ulal Chandra Das and 30/35 others, belonging to CPI (M) with a view to reduce your political om?Qnents to submission and passivity, being a~!Iled with lethal weapon like daggers de. stopped D.o.; P. Bus No. WGH 7664 forcibly between 24th and :26th street on Sibaii Road, throwing brickbats, pulled down tthe driver from the bus, assaulted him and stabbed Shri Jiten Chowdhury of 8/9 Akbar Road, a dri ·,.;r of D S.P. Bus, belonging to CPI, who was travelling in the said bus and murdered him. Your act crated a·general sense of panic and insecurity ir. the minds of the resi dents of the area of Sibaii Road in A Zone Steel Township, who could not follow their normal avocations for a few days after the incident under the influence of terror.

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Following a series of interparty _clashes on 8-1 0-71 curfew orders were promulgated under section 144 Cr. P.C. in D.SP. Township between 6 p.m. and 5 a.m. with effect from 8-10-71. On 13-10-71 during the curfew hours at about 20-15 hours you along with your associatec; Dulal Chandra Das and others belonf!ing to CPI(M) bein!! armed with leth!il weap?rts lie bom~s, knives etc., attacked lorrv no. WGD 536 m whtch poltce party un<ter 'he leadership of H.C/1209 Anii Kumar Samanta of B Zone O.P. was on patrol. duty. You hurled bomb aiming the police party with a view to lill

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¶82

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S. c. COSE v. DIST. MAOISTAATB (Dua, J.) 865

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A them near street no. 1 of Tilak Road. 1be bomb missed 'them and it exploded on the road. the police party after the explosion chased you and your associates and could arrest you and 2 others, while others fte4 away. On search o:ue knife and a cycle chain was recovered from pOssession of Samaresh Bose. Your act was B intended to cow down the police and your political opponents by terror for promoting the objectives of the party to which you belong. By attempting to murder poli~:e perioD.nel engaged in maintenance of public order in the residential township area within curfew period) you created a nse of panic and insecurity in the minds of local people to such an extent that they were hesitan c to pursue their normal avocations for a considerable period after tlle incident.,,

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The learned counsel faintly suggested that on December 8, 1971 the hdo-Pak war was at its height and, therefore, it ii inconceivable that the incident mentioned in gmund no. 1 could have D occurred oo that day becauoo no one would have been so reckless as to dare to indulge in such a violt activity, when armed forces must be deemed to be present in the State in large numbers for fihtin~ war on the .eastern border. This contention is difficult to accept. The fact of the occurrence having taken place must be accepted as stated in the _g,rounds because the subjective satisfaction of the detaining authority on this point is final. Indeed, E ilt has also been affinned in the counter-affidavit. Once. the occurrence is acce-pted, then, even on Shri Chatterjoo's own line of reasonin~ the necessity of the order for the detention of the petitioner and his associates would appear too obvious to require any furt.her proof. This occurrence highlights the terrorising character of the petitioner's party.

¶86

The learned counsel then urged that both the grounds ere vae because the expression "political opponents" has not been explained with precision. In our opinion, the learned counsel is not quite correct.in his. submission. In ground no. 1 it is clearly stated that the petitioner and his associates belongin to CPI(M). 'With a view to · reduce their -oolitical opponents to submission and G passivity, being armed with lethal weapons etc., -stabbed Shri Jiten Choudhury, a driver of D.S.P. (Durgapur Steel Project) Bus belonging to the C.P.l. (emphasis supplied). The political parties are, therefore, quite clearly and specifically referred to in ground no. 1. It cannot be said tha.t the petitioner was kept in, the dark or that he was unable to understand the reference to the political opponents in this ~ound and · was, therefore. not in a ·position to make a proper, effective reprec;entation. In J!fQund no. 2 undoubtedly there is no reference to C.P.I. such as is found in ground no. 1. But in our opinion ground no. 2 has . to be ~Lt72Sup.CI/73

¶87

[1973 J 1 S.C.R.

¶88

866 SUPREME COUitT ltlPORTS

¶89

read and understood in the light of the reference made to the political oppouents in ground no. 1. The two grounds have to_ be read together in this respect as they are clearly inter-linked. Reference in ground no. 2 to a series of inter-party clashes on October 8, makes the position further clear. Ground no. 2 states that the petitioner's act wa! intended to cow down the police and the political opponents by terror for promoting the objectives of the party to which he belonged. The petitioner's party being clearly specified in ground no. 1 which is inter-linked with ground no. 2, the challenge on the ground of vagueness or ambiguity in .ground no. 2 must be held to be devoid of merit.

¶90

Shri Chatterjee 1then said that this ground does not give rise to any problem of public order. We are unable to .accept this submission. Attempting to murder police ·personnel engaged. on patrol duty in the residential township area during curfew period in order to overawe hem is, in our view, an act which would obviously create a feeling of panic, alann and insecurity 'in the mind of the local inhabitanti in general : it would also suggeit that any one opposing the political ideology of the petitioner's party would be similarly exposed to violence at the hands of the petitioner and his associates, who are not afraid even of the police force. This clearly illustrates how direct and extensive i~; the reach of this crime en the general public. The faint sugei tion tha:t during curfew time th incident mentioned in gro··nd no. 2 could not reasonably raise any problem of public order because there w:--uld hardly be many members of the public pre~:~nt in the stn:.ets, eems to us to be misconceived. The incident is said to have taken place at abotllt 8-15 p.m. on Octobr 13. 1971 during curfew hours. Tho area in question in residential township area. People, though not moving about in the streets, would normally speaking be awake in their own houses and they could not be unaware of such a serious clash between the petitioner and his associates a.rmed with bombs etc., on the one side and the police patrol party on the other, on whom the bomb& were hurled. This clash must have caused serious disturbance of peace and ltratJquillitv in the Iocalitv and would inevitably had attracted attention of its residont9. Attack with bombs and other lethal weapqns on police· patrol party in the circumstances .::annot but hav.e a !!rave impact on public order and on even tempo of the life of the community. People, thoueh keeping in-doorg in their houses, would quite naturally ge( panic-stricken and feet frightened ~.t'Q. move about · freely in the performance of their normal daily activities : they are also likely to feel scared of movinl:! out durine: curfew hours with the permission of the authoritief; concerned for doing even most urgent work. Reference was made bv Shri Chatterjee to the decision of this Court in Re : Sushanta Goswami(l) where the incidents relied upon by 1he . (II [1969] 3 S.C. R. 138.

1- B C D E	s._p.BOSE_v.DIST, MAGISTRATE(Dua,J.) 867 dctaiJlillgauthoriwreheldtoreJ,atoonlytotheproblemoflaw d order. ThemcJdents theredonotseemtobearanycom· Jll .11withthosebefore:JSar.dthepetitioner's·counselalsoulti· Ydidnot!eriouslypressthepoint.Thedecisionreporfoi ••_SudhirKumar Saha_v.Commissioner,Calcutta(l)·dealswita : caseofstray incidentsanddoesnotconstitU'teanybi.IJdinl pcentforthecaseinhand.Referencewasfurthermadeto A.runGho!h_v.State.ofWestB:ngal( 2 )_but.thereagain the acts cJ_thedetenuweredtr~~edagamstthefaml}yofoneindhidl andnota_gainstwomen m generalinthelocality.Itwas heldia thoreported casethatthedetenu•sconducthoweverreprehen· Jiblodidnot createthosituationwhereitcouldbesaidthatthe lifeofthecommunityatlargewasbeingseriouslydisturbedor. J)Utoutofear:inother wordsthattherewasabreach,orlike- lihoodofa breach;ofpublicorder.Thereported case is clearly disinl1:llishable. "Th.. actsimputedto:hepetitionerinthecase inbanddirectlyraiseproblemof"publicorder. Thpetitioner a.odh.iaassociates belongtoapoliticalpartyandthetwogrounds a.refoundedoninter-linked incidents, which are closely related tointer-partyclashes precedin!!thepromulgatiortofthecurfow orderonOctober8, 1971fo1lowintheir politicalopponentJikn Choudhury'smurder.Thesecond incid-entisa direct violent cwh.withthepoliceforceduringthecurfewperiod._It_is,there· fore,not possible tosustainShriChatterjee's contentionthatthese twooundsdonotraiso theproblemofpublicorder.These factsseemtorearaclol!resembla.ncc to thoseof_AmiyaKumar_ KMMJkar(Supra). Onbehalfoftherespondentourattenotibnwasdrawn_to _Sh}•amalChakraborty_v.CommissionerofPolice,Caicutrae> wheretheQuestionwasdiscussedir~these words :
p f ,,	"The Questionwhicharoseisthis :dothegrounds reproducedabove relatemerelytomaintenanceoforder ordotheyrelateto.themaintenanceofpublicorder? Itwillbonoticedthatthedetenuineachofthese cases acttdalontwith associateswhowerearmedwith lailiis, ironrods, acid bulbs,Cite.Itisclearly saidinound no.1thathecommittedariotandindiscriminately used aciubulbsironrods lathisetc.endaerinhuman lives. Th~~undannatbesaidtohaverdc:renc-! merely tomaintecanceoford!rbecauseitafftsthe localityandeverybodywbolive.<;inthelocality. Simi- larly,in thesecond ground, bo alongwit?hisociats reventedthe police constabt·!S fromdtscbr~mg.the1r lawfuldutiesandthusaffected everybody hvmg m the _ _locality, ~~lll97iJJYsr R:J""w.-- (2) (1970) 3 S.C.R. 288. (3)(197Cl)3 S.C.R.762.

1-
B
C
D
E

s._p.BOSE_v.DIST, MAGISTRATE(Dua,J.)
867
dctaiJlillgauthoriwreheldtoreJ,atoonlytotheproblemoflaw
d order.
ThemcJdents theredonotseemtobearanycom·
Jll .11withthosebefore:JSar.dthepetitioner's·counselalsoulti·
Ydidnot!eriouslypressthepoint.Thedecisionreporfoi
••_SudhirKumar Saha_v.Commissioner,Calcutta(l)·dealswita
:
caseofstray incidentsanddoesnotconstitU'teanybi.IJdinl
pcentforthecaseinhand.Referencewasfurthermadeto
A.runGho!h_v.State.ofWestB:ngal(
2
)_but.thereagain the acts
cJ_thedetenuweredtr~~edagamstthefaml}yofoneindhidl
andnota_gainstwomen m generalinthelocality.Itwas heldia
thoreported casethatthedetenu•sconducthoweverreprehen·
Jiblodidnot createthosituationwhereitcouldbesaidthatthe
lifeofthecommunityatlargewasbeingseriouslydisturbedor.
J)Utoutofear:inother wordsthattherewasabreach,orlike-
lihoodofa breach;ofpublicorder.Thereported case is clearly
disinl1:llishable.
"Th.. actsimputedto:hepetitionerinthecase
inbanddirectlyraiseproblemof"publicorder.
Thpetitioner
a.odh.iaassociates belongtoapoliticalpartyandthetwogrounds
a.refoundedoninter-linked incidents, which are closely related
tointer-partyclashes precedin!!thepromulgatiortofthecurfow
orderonOctober8, 1971fo1lowintheir politicalopponentJikn
Choudhury'smurder.Thesecond incid-entisa direct violent
cwh.withthepoliceforceduringthecurfewperiod._It_is,there·
fore,not possible tosustainShriChatterjee's contentionthatthese
twooundsdonotraiso theproblemofpublicorder.These
factsseemtorearaclol!resembla.ncc to thoseof_AmiyaKumar_
KMMJkar(Supra).
Onbehalfoftherespondentourattenotibnwasdrawn_to
_Sh}•amalChakraborty_v.CommissionerofPolice,Caicutrae>
wheretheQuestionwasdiscussedir~these words :

p
f
,,

"The Questionwhicharoseisthis :dothegrounds
reproducedabove relatemerelytomaintenanceoforder
ordotheyrelateto.themaintenanceofpublicorder?
Itwillbonoticedthatthedetenuineachofthese cases
acttdalontwith associateswhowerearmedwith lailiis,
ironrods, acid bulbs,Cite.Itisclearly saidinound
no.1thathecommittedariotandindiscriminately used
aciubulbsironrods lathisetc.endaerinhuman
lives.
Th~~undannatbesaidtohaverdc:renc-!
merely tomaintecanceoford!rbecauseitafftsthe
localityandeverybodywbolive.<;inthelocality. Simi-
larly,in thesecond ground, bo alongwit?hisociats
reventedthe police constabt·!S fromdtscbr~mg.the1r
lawfuldutiesandthusaffected everybody hvmg m the
_ _locality,
~~lll97iJJYsr R:J""w.--
(2) (1970) 3 S.C.R. 288.
(3)(197Cl)3 S.C.R.762.

• c j I I r

868

[1973] 1 S.C.R.

SUPREME COURT REPOR.TS

¶103

In .suound no. 3, again the whole locality was in danger as the detenu aild his assocjates were armed with deadly weapons and these were in fact used for indisctiminately endan~ring human lives in the locality. The object of the detenu seems to have been to terrorise the locality and bring the whole machinery of l9,W and order to a halt. We are unable to say that the Commissioner of Police cOuld not in view of these grounds come to the conclusion that the detenu was likely to act in a manner prejudicial to the maintenan£e of public order in the future and it was necessary to .prevent· him from doing 50. The fact that public order is affected by an act which was also an offence under the Indian Penal Code seems to us to be irrelevant."

¶104

The reasoning of this decision fully applies to the case before us. It is quite clear that the petitioner and his associates had indulged in· acts prima facie designed to teno~:jse people, to overowe their JtOlitical pponents, and 1o cow down the police force, and all this must have the inevHai;Je effect of disturbing and paralysing the nonnal, peaceful c;vic life of the general public. The magnitude of !11e impact of the activities of the peHtioner and his assoe.iates on the peace and tranquillity of the law-abiding. orderly society clearly shows that they were directed. to brin a halt to the machinery of Jaw and order. This must necessarily raise a problem affecting public order. On these grounds the detention order cannot but be held to be justified. As a preventive measure this order ri_g;htJy ensures protection of liberty of the public wronully endangered by the petitioner's -terrorising activities.

¶105

The fact that the petitioner was discharged in a criminal case for the offences for which he was arrested on October 8, ·1971 and tha't the detention order is dated October 26, 1971 when he was still in jail custody would not render the detenJion order either iHe_gal or mala fide. After the order of discharge the petitioner was .e;oin_g to be released soon and if the detaining authority felt satisfied on the material before it which was germane to the object of detention, then, the petitioner's detention is n9t open to challenge in be present proceedings. His detention ·.is preventive : he is to be prevented from acting in future in any manner prejudicial to the maintenance of public order. His earlier dischar~~ in a court of law cannot preclude the detaining authority from coming to a· subjective satisfaction ab?ut the necessity of the petitioner's detention on grounds which are ~ennane and relevant.

¶106

Before closing we may refer to another point sought to be raised by Shri Chatterjee. He has referred us to the Defence of India Act, 42 of 1971 which came into force on December 4,

D E F G

S. C. BOS! v. DIST. MAGIJnATB (Dua, J.) ~6_9

¶112

A 1971. -This nactment pbrports to amend the Act in several res· pects. It adds s. 17 A after s. 17 and the new section provides "NotwithWldiag anytbina contained in the fore-

¶113

goinJZ provisions of this Act, during the period of operatipn of the Proclamation of Emergency issued on

¶114

8 the 3rd day of Decembert 1971, any person (including a foreigner) in respect of whom an order of detention has been ·made under this Act, may be detained without obtainin~ the opinion of the Advisory Board for a period longer than three moD'ths, but not exceeduig two years from the date of his detention in any of the foJiowing classes of cases or under any of the following

¶115

c circumstances, namely : (a) where such person had been detained with a

¶116

view to preventin~ him from acting in any manner prejudicial to the defence of India, relations of India with forei~ powers or the security of India ...... "

¶117

D The ·learned counsel apprehending that this amendment of the Act may entail the peti~ioner's detention beyond a period of 12

¶118

JD.Onths as contemplated in the unamended Act, desired to challenge this amendment.

¶119

In the counter-affidavit, howe-rer, it is averred in para 6A

¶120

that the State Government, _ while affirming the petitioner's order

¶121

E of detention directed on December 24, 1971 that his detention is to continue till the expiration of 12 months from the _ da-te of his detentiQn. The pregent detention of the pethioner is in any event valid under the unamended Act. In view of this and of para 6A of the counter-affidavit Shri Chat:teriee did not .press his challenge to the validity of the afotementioned amendment. We

¶122

F are; therefore, not called upon to consider the effect of •the said amendment on the present case. It would, however, be open to the petitioner 1o take whatever ·suitable steps are open to him after the expiry of 12 months from the date of his detention if he feels ag~rieved.

¶123

No fresh arguments were addressed in the other two w .. it

¶124

G petitions and it was conceded that our order in W.P. No. 216 of 1972 would also. c~ver tho other two petitions. The final reault ·is that all the three petitions fail and are dismissed.

¶125

S.B.W.

¶126

Petitions dismissed.

Samaresh Chandra Bose etc. etc. v. District Magistrate, Burdwan

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Samaresh Chandra Bose etc. etc. v. District Magistrate, Burdwan

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