Supreme Court of India
ALIJAN MIAN AND ANOTHERversusDISTRICT MAGISTRATE, DHANBAD
- Citation
- 1983 INSC 119
- Decided
- 13 September 1983
- Disposal
- Dismissed
- Bench
- A P SEN
Holding
The detention orders were valid as the detaining authority’s subjective satisfaction that the petitioners, if released on bail, would likely disturb public order justified preventive detention under the National Security Act.
Summary
The Supreme Court examined two writ petitions challenging orders of preventive detention under the National Security Act, 1980 issued against Alijan Mian and Jadunandan Sah, who were already in jail and likely to be released on bail. The detaining authority justified the detention on the ground that, if released, the petitioners would likely engage in activities prejudicial to public order, citing two violent incidents involving bombs and assault. The Court held that preventive detention is an anticipatory measure distinct from criminal prosecution and that pending criminal cases do not bar such detention. It further clarified that the distinction between "law and order" and "public order" hinges on the magnitude of disturbance, and the incidents in question qualified as a threat to public order. The Court also ruled that the authority could rely on material beyond the FIR to form its subjective satisfaction, and therefore dismissed the petitions.
Issues considered
- Whether a preventive detention order under the National Security Act can be valid when the detainee is already in custody and likely to be released on bail, based on anticipated breach of public order.
- Whether pending criminal proceedings preclude the issuance of a preventive detention order.
- Whether the incidents alleged constitute a disturbance of public order as opposed to merely law and order.
- Whether the detaining authority may invoke grounds not expressly mentioned in the First Information Report.
Legislation cited
- Arms Acts. 27
- Constitution of Indias. Article 32
- Explosive Substances Acts. 3/5
- Indian Penal Code, 1860s. 307, s. 34
- National Security Act, 1980s. Section 3(2)
Subjects
preventive detentionNational Security Actpublic orderlaw and orderanticipatory detentionbailcriminal proceedingssubjective satisfactionFIR
Judgment
939
ALIJAN MIAN AND ANOTHER
A
v.
DISTRICT MAGISTRATE, DHANBAD
September 13, 1983
(A. i:'· SEN, E. S. VENKATAAAMJAH AND R. B. MISRA JJ.]
National security Act, 1980 (Act 6~ of 1980)-0rders of detention, passed
under sub-section (2) of Section 3 of the Act, on the ground that "the subject who c
•• is in jail and ;s likely to be released on bail, if allowed to be at large, will indulge
in activities prejudicial to the maintenance of public order" - Whether the deten-
tion is bad either on the ground that there was tio c ase made out for apptehension
of breach of public order or that the criminal proceedings having been initiated, no
case of preventive detention arises or that the case is one of law and Order and
not a case of public order or that there being no al{egation in t~e First lnfonna-
tion Report, the detaining authority cannot inverlt a new ground to fall under
D
sub-section (2) of section 3 of tire Act. ·
Dismissing the petitions, the Court
HELD : 1. The clear words Q(, the detention order show that the
detaining authority was al~ve to the fact· that the petitioners wer~ in jail custody E
on the date of passing of the detention orders, but it was satisfied that if they
were enlarged on bail, of whi~h there was every likelihood, they would create
problems of public order and, therefore, it was necessary to prevent them from
doing so. The position would have been entirely different if the petitioners·
were in jail and had to remain in jail for a pretty long time, in which situation
there could be no apprehensi,on of breach of public order from them. [944 C-E]
. ' ' F
2. .Preventive detention is an anticipatory measure and does not relate
to an offence while t~e criminal proceedings are to punish a person for an
offence committed by him. They are not parallel proceedings. In the circum-
stances the peiidency of a criminal prosecution is no bar to an order of pre-
ventive detention, nor is an order of preventive detention a bar to prosecution.
It is for the detaining authority to have the subjective satisfaction whether in
such a case there are sufficient materials to place the person ·under preventive
detention in order to prevent him from acting in a manner prejudicial to public
• order or the like in future. [944 F-H]
K. M. Chokshi v. State of Gujarat, [1979) 4 SCC 14, applied. H
3.1. · The difference between 'law and order' ;ind 'Public order' is noW
well settled. Applying the. well settled law enunciated in Fam Ranjan Chatterjee
..
940 SUPREME COURT REPORTS [1983] 3 s.c.R.
,;.
v. The State of West Bengal, [1975] 3 SCR 301, to the two incidents, it is clear
A tpat throwing a bomb in a large gathering where a cultural programme was
going on at the dead of night . resulting in the public running helter and
skelter to save their lives makes out a case of 'public order' inasmuch as it
disturbed the tranquillity and the even tempo· of life of the public. Therefore,
if the detaiDing authority was satisfied that· the two incidents make out a case
of apprehensioii of breach of public order, the detention order can·not be
faulted. [945 G; 946 E-G] ,
B
Ram Ranjan Chatterjee v. State of West Bengal, [1975] 3 S.C.R. 301
followed. •
.iQya Mala v. Home /Secretary, Government of J & K, AIR 1982 SC:
C 1297, distinguished.
3:2. The twO incidents in· the instant case were sufficient for the.detain-
..
ing authority to initiate proceedings for preventive detention. It is for the
detaining authority to have the subjective satisfaction about the apprehension
of the breach of public order from the incidents. Even one inciderit may be
sufficient to satisfy the detaining authority. It all depends upon tl~e nature of
D the incident. [947 G-H]
•
4. The absence of an allegation: ·about the disturbance of public order
· in the two First ·Information Reports will not affect the position because there
was additional material before the detaining authority which i;atisfied him
abciut the apprehension of breach of public order from the petitioners in case
they were enlarged on bail. (948 C-D] ,
E
'EXTRAORDINJ..RY ORIGINAL JURISDICTION Writ Petition
(Criminal) Nos. 678 and 679 of 1983.
(Under article 32 of the Constitution of India)
F
Miss R. Vaigai for the Petitioners.
•
D. Goburdhan for the Respondent.
,..
G
The Judgment of the Cour~ was delivered by
MISRA J. These two connected petitions seek to challenge
the orders of detention dated 2nd December, 1982 passed by the
B District Magistrate, Dhanbad iri exercise of powers conferred by sub-
s. (2) of s. 3 of the National Security Act, 1980 (No. 65 of 1980) read
'•
with notification No. 3183/C dated 15th of October, 1982 of the
Government of Bihar.
AL!IAN MJAN v. DISTRICT MAGISTRATE (Misra, J.) 941
Alijan Mian, the petitioner in the first petition, is an employee
of the Eastern Coalfields Limited working 'at Khudia Colliery as a A
dumper driver. Jadunandan Sah, the petitioner in the second
petition, is also a dumper driver in Gopi Nathpur Colliery.
The object of the order of detention as indicated in the
impugned order was to prevent the petitioners from acting in any B
manner prejudicial to the maintenance of public order. The grounds
of detention supplied to the petitioners are in identical terms and
they are as follows :
"!. That on 15/16.10.82, at about 2.30 A. M. the subject
alongwith Jadunandan Sa& and 3 others went to c
. Khudia ·Colliery and dragged one Shri Ram Briksh
Chauhan who were witnessing a cultural programme
and started assaulting him in presence of large gather-
ing who· were there to see the cultural progralllllle.
This created great panic and alarm in the area and D
adversely affected the public order. Hearing the cry,
: Mussafir Chauhan came there but seeing the subject
and his associates engaged in the assault of his brother
started running away for his life. The subject and his
associates, with an intention to establish criminal
supremacy and to kill him threw two bombs on him, E
resulting in grievous injury to Mussafir Singh. This ad-
versely affected the public order and persons who were
witnessing the cultural programme started running
helter and skelter for their lives. This refers to Nirsa
P. S. Case No. 189 dated 6.10.1982 u/s 307/34 IPC, F
3/5 Explosive Sub. Act. Thus the subject acted in a
manner prejudicial to the maintenance of the public
order.
2. That on 8.11.82, at about 11.30 A. M. the subject
G
alongwith Rambriksh Singh, Jadunandan Mahato and
Chandra Shekhar Singh armed with bombs, gun, etc.
went to the house of Ram Naresh Chauhan in Khudia
Colliery. One of his associates under the direction
+ and guidance of the subject opened fire 'on Shri H
Chauhan resulting in grievous injury to him. Opening
of gun fire in a thickly populated residental colony
of Khudia Colliery created great panic and alarm in
(
.942 SUPREME· COURT REPORTS [1983] 3 S.C.R •
the area and adversely affected public order. -, This
'A refers to Nirsa P. S. case No. 208 dated 8.1l.82 u/s.
307 /34 l.P.C. and s. 27 Arms Act. Thus the subject
acted in a manner prejudicial to the maintenance of
public order. The subject is-in jail and° is likely to
be r_eleased on bail. As such the detention order was
B served in jail.
In the circumstances I am satisfied that if he is allow-
. ed to remain at large, he will , indulge· in activities
prejudicial to the maintena11ce of public order.
c For prevc11tion of such activities, I consider his
detention necessary. Shri A!ijan Mian is informed that ·
he may make a representation in writing against the
order under which.he has been detained. His representa-
tion, if.any, may be addressed to the. Deputy Secretary,
D Home (Sp!.) Department, Govt. of Bibar, Patna and
forwarded through the Superintendent of jail, Dhanbad
. as early as possible." ·- ,. -
'
. The orders of detention were _sequal to two incidents of 15/16th
October and 8th November, 1982 giving rise to two criminal cases,
E Nirsa P. S. Case No. 189 and Nirsa P. S. Case No. 208 ·of 1982
respectively. The petitioner Alijan Mian was arrested on· 8th
November, 1982 while the petitioner Jadunandan Sah was arrested
on pth of Noveniber, 1982° in connection with the aforesaid
incidents ..
-F
The petitioners made representation against the order of deten-
tion in both the cases and the representations were on the same
pattern. Their stand was that they were active members of the
union of workers of the colliery, viz., the Colliery Mazdoor Sabha
There were other _unions in the ·said collieries and due to some inter-
G
union rivalry a first infosmation report 'against them was lodged by
persons belonging to a rival union: for an alleged offence under ss..
307 /34 IPC and 27 A of the Arms Act. In the first' information
report it was alleged that on 8th November 'theinformant was shot
in his hand near his honse by one Ram Bilas Singh and that at that
.H time the petitioners were with the said Ram Bilas Singh. ' Their
intention was to kill him becanse he did not participate in the strike
in the colliery. In the first information. report regarding the oiher
ALIJAN MIAN v. DISTRICT MAGHTRATE (A:isra, J.) 943
incident under ss. 307 /34 JPC and ss. 3/5 of the Explosive Substances
Act it was alleged that on the night of 15/16th Oetober.1982 around A
2 A. M. the petitioners were beating the brother of the informant
near a school, where some function was going on. On seeing the
petitioners in the company. of others the informant started running
but he was chased by others and a bomb· was thrown at his back
but 1 be escaped. But Alijan Mian, the petitioner, threw another B
bomb and the informant was injured at his back and fell. The said
persons intended to kill him. The petitioners in both the cases were
later on granted bail but tl;e two criminal cases mentioned above are
still going on.
By an order dated 13th pecember, 1982 the Government c
.' approved the detentions order and informed the petitioners by letter
dated 30th December, 1982 of the reference of their representation
to the Advisory Board asking them to appear in person before the
Board. The petitioners appeared in ,person before the Advisory
Board. ·
,D
The .Advisory Board eventually gave an opinion that the order
., of detention was justified. On tbe basis of that report the Govern·
ment ordered detention of the petitioners upto 2nd December, 1983.
The petitioners challenged the order of detention by filing writ
petitions in the High Court but the same were dismissed in limine. E
The petitioners instead of filidg an appeal against the order of the
High Court rejecting the writ petiiions have chosen to file the present
petitions under Art. 32 of the Constitution.
The contentions raised on behalf of the petitioners are four-
F
fold :
I. The petitioners were in jail when the detention orders
were passed, when there was absolutely no apprehen-
sion of breach of public order from them.
2. The two incidents on the basis of which the proceed-
ings for preventive detention had been started were
already the subject matter of criminal proceedings
and in the circumstances the proceedings for preven-
tive detention were absolutely uncalled for.
H
3. At the most the two in~idents make out a case of law
and or<:Ier and n9t a case of public order,
'
944 SUPREME COURT REPORTS [1983] 3 s.c.R.
4. In the absence of any allegation in the first
A· information reports of ihe two incidents .about the
apprehension of the breach of public ordet from the
petitioners the detaining authority could not invent'.
a ground regarding apprehension of breach of public
order from the petitioners.
B
·' It' may be pointed out at the very outset that the detaining
authority wa·s alive to 'the fact that the petitioners were in jail custody
on the date of the passing of· the detention ·orders as will be clear ·
from the following statement in the grounds of detention : ·
c. "The subject is in jail and is likely to be released on
bail. In the circumstances I am satisfied that if he is
allowed to remain at large, he will indulge in activities
· prej)!dicial to the maintenance of public order."
The position would have been entirely different if the petitioners were
in jail and had to remain in jail for a pretty lopg time. In such a
situation there could be no apprehension of breach of 'public order'
from the petitioners. But the' detaining authority was satisfied .that -~
if the petitioners were enlarged on bail, of which there was every
likelihood, they would create problems of public order. It was,
. therefore, necessary to prevent them from acting ii} any manner
prejudicial to public order.
'
As regards the contention that the criminal procedings as well
as the proceedings for preventive detention could not .go to.gether, it
may be pointed out that· preventive detention is an anticipatory
F measure and qoes ·not relate to an offence while the criminal proceed-
ings are to punish a person for an offence committed by him. They ·
are not parallel proceedings. In the circumstances the pendency of
a criminal p,rosecution is no bar to an order of preventive detention,
nor is an order of preventive detention a bar to prosecution. It is for
G the detaining authority to have the' subjective satisfaction whether in'
kuch a case there are sufficient materials to place the person.under·
preventive detention in order to prevent .him from acting in a manner.
prejudicial to public order or the like in future.
'
The learned counsel for the petitioners relied upon K. M.
H
Chokshi v. Siate of Gujarat(') in support of the contention that in
(3) (1979] 4 s.c.c. 274.
ALIJAN MIAN v. DISTRICT MAGISTRATE (Misra, J.) 945
vie~ of the criminal prosecution of the petitioners for the two inci-
,\
dents, proceedings for the preventive detention were uncalled for. A
In that case the c'ourt after an analysis of the various cases cited
observed:
The principles energing from a review of the above
cases may be summarised in the following way : The ordi-
', nary criminal process is not to be circumvented or short·
'
B
:circuited by ready· resort' ; to preventive detention. But,
the possibility ·of launching a criminal prosecution is
not an absolute bar to an order of preventive detention.
Nor is it correct to .say, that if such possibility is not.
present to the mind of the detaining authority the order
'
of detention is necessari\y'bad. However, the failure"qf
c
.' the. detaining authority to co~sider the possibility of
launching a criminal prosecution may: in the circum".
stances of a case, lead to the conclusion that the detaining
authority had not applied its mi11d to the vital question
whether it was necessary to' make an .order of preventive D
detention."
• It is obvious from the above observation in the case cited on behalf
of the petitioners that criminal prosecu!ion is not an absolute bar to
an order of preventive detention. If the detaining authority has the E
subjective satisfaction tliat it was necessary to detain the petitioners
to prevent them from indulging in activities prejudicial to public
orde~, he could certainly order detention of the petitioners. · In
the instant case the detaining authority clearly stated that although
the petitioners were in jail, they were likely to be enlarged on bail·
and in that case there would be apprehension from the petitioners. ·F
regarding the breach of public order,
This leads us 'to the third 'contention that the two incidents
makes out a case oflaw and order and not' a case' of public order.
The difference between 'law and order' and 'public order' is by now
well settled. In Ram Ranjan Chatterjee v. The State of WesrBenga/(1)
G
this Court observed :
"It may be remembered that qualitatively, the acts
which affect 'law and order' are not different from the B
(I) [197Sj 3. S,C.R. 3Q\,
•
. 946
..
SUPREME COURT REPORTS (1983] 3 S.R.C.
·acts which affect 'public order'. 11\deed, a state of peace .
of orderly tranquillity which prevails as a result of obser-
. vance of enforcement of internal laws and regulations by J.
the Government, is a feature . common to the concept of
'!aw and order' and 'public order. Every kind of disorder
or contravention of law affects that orderly tranquillity.
The distinction between the areas of 'law and order' and
B
'public order' as·pointed out by this Court in Arun GhoJh
v. State of West Bengal, "is one of degree and extent of
the reach of the act in question of society." It is the
potentiality of the act to disturb the even tempo of the
life of the community which makes it prejudicial to the
c maintenance of public order. If the contravention in its
effect is confined only to a few individuals directly in-
. valved as distinguished from a wide spectrum of the
public, it would raise a problem of law and order only.
These concentric concepts of 'law and order' and 'public
order' may hav.e a common 'epicentre', but it is the length,
D magnitude and intensity of the terror-wave unleashed by a
particular eruption of disorder that helps distinguish it. as
an act affecting 'public order' from that concerning 'law
and order'.'' ••
E Applying the well-settled law on the question we have to determine
whether the two incidents make out a case of 'Jaw and order' or
'public order'. It was for the detaining authority to have the sub-
jective satisfaction that there was apprehension of breach of public
order from the petitioners. In· one incident one of the petitioners
threw a bomb in a large gathering where a cultural programme was
G going on at the dead of night whereupon the public started running
helter and skelter to save their lives. Thai will in our opinion make
out a case of 'public order' in as mucb as it disturbed the tranc;iuillity
and the even tempo of life of the public. The second incident was
also of the same nature. If the detaining authority in the circum-
F stances was satisfied that the two incidents make out a case of
, apprehe.nsion of breach of public. order we find no infirmity in the
order.
Reliance was· also placed upon Jaya Mala v, Home Secretary,
H Govt. of J. and K(I). In that case also· a criminal case was started on
(I) A.I.]l.. 1973 S,C. 27$.
\
ALi!AN MJAN v. DISTRICT MAGISTRATE (Misra;J.) ' 947
'
the basis of an incident and there being no snggestion that the witnes-
ses were not forthcoming in connection with the alleged infraction of A
law it was not clear why normal procedure of investigation, arrest
and trial was' not found adequate to thwart the criminal activities
of the detenu, and in these circumstances this Court held that there
was non-application of mind of the detaining authority which became
evident from the frivolity of grounds on which the detention order \ B
was founded. The order. of detention was, therefore, invalid. But
this Court did lay down the law in the following terms :
"It is not for a moment suggested that power under
the preventive detention law cannot be exercised where a C
criminal conduct which could not b~ easily prevented,
> ' checked or thwarted, would not provide a ground
sufficient for detention under the preventive detention
laws. But it is equally important to bear iu mind that
every minor infraction of law cannot be upgraded to the
height of an activity prejudicial to the maintenance of D
public order. If every infraction of law having a penal
... -"'. sanction by itself is a gr~und for detention danger looms
large that the normal criminal trials and criminal courts ·
set up for administering justice will be substituted by
detention laws often described as lawless law." E
The facts of that case were distinguishable from the facts of the
' · present case. In the present case the detaining authority had the
subjective satisfaction that if the petitioners are allowed to remain
at large, they will indulge in activities prejudicial to the maintenance F
of public order.
Now the question arises whether the two incidents were snffi-
cient for the detaining authority to initiate proceedingsfor preventive
detention. It is for the detaining authority io have the subjective G
satisfaction about the apprehension of the breach of the pnblic order
from the incidents mentioned above. Even one incident maji be suffi-
cient to satisfy !he detaining authority. It all depends upon the nature
of the incident. In the case in hand the detaining authority was fully
satisfied that there was apprehension· of breach of public order from
the petitioners in case they were bailed out, of which there was every
H
likelihood. This contention in our opinion has no force.
948 ! SUPREME couk'r REPOR'i's [1~83] 3 s.c.ll.
This leads us to the last. contention that in the absence of any
allegation in thdirst infonµation report in the two cases .about the
disturbance of public order the detaining authority could not invent
a ground regarding the apprehension from the petitioners about the
disturbance of public order.· A counter affidavit has been filed on
. behalf of the detaining authority and in paragraph 3 it has been
averred that apart from the first information report in the two cases
B
there was the supervision note of the Deputy Superintendent of
Police, Dhanbad and the detaining authority was satisfied ·on the
basis of materials before him that there was apprehension of breach
of public order from the petitioners. The ·absence Of an. allegation
about the disturbance of public order in the two first . information
c reports will not effect the position because there was additional
material before the detaining authority which satisfied him about
the apprehension of breach of public order from the petitioners in
case they were enlarged on bail. This contention has, therefore no
substance. '
D For the foregoing discussion we, find no force in any of the
' contentions and the petitions must · fail. They are accordingly
dismissed.
S. R. Petitions dismissed.
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