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S.K Kedar v. State Of West Bengal .
Factual and Procedural Background
The petitioner was detained under Section 3(1), read with Section 3(3), of the West Bengal (Prevention of Violent Activities) Act, 1970 (“the Act”) by an order of the District Magistrate, 24-Parganas dated 10 July 1971, with a view to preventing him from acting in a manner prejudicial to public order. He was arrested and served with the detention order and grounds on 13 July 1971.
The detention order was:
- Approved by the State Government on 21 July 1971 and reported to the Central Government the same day.
- Placed before the Advisory Board on 11 August 1971.
- Upheld by the Advisory Board in its report of 6 September 1971; the Board later heard the petitioner in person on 18 September 1971 and reaffirmed its view.
- Confirmed by the State Government on 7 October 1971.
The present petition under Article 32 of the Constitution seeks a writ of habeas corpus, alleging that the detention is illegal.
Legal Issues Presented
- Whether the acts alleged against the petitioner—throwing bombs and projectiles at Railway Protection Force (R.P.F.) personnel while stealing railway materials—constitute activities “prejudicial to the maintenance of public order” under Section 3(2)(b) and (d) of the Act.
- Whether the Advisory Board’s failure to hear the petitioner in person before issuing its initial report vitiates the detention order.
Arguments of the Parties
Petitioner's Arguments
- The incidents described in the grounds amount, at most, to ordinary law-and-order offences and do not disturb public order; therefore, detention under the Act is unwarranted.
- The Advisory Board was obliged to grant a personal hearing before forming its opinion; absence of such hearing renders the detention illegal.
The opinion does not detail the State's counter-arguments separately.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Pushkar Mukherjee v. State of West Bengal (1969) 1 SCC 10 | Distinction between “law and order” and “public order.” | Cited as part of the established jurisprudence guiding the assessment of whether particular acts affect public order. |
| Sudhir Kumar Saha v. Commissioner of Police, Calcutta (1970) 1 SCC 149 | Criteria for evaluating the reach and impact of an act upon society when determining public order. | Used to underscore that the gravity and potential impact of an act, not its mere form, determine if public order is affected. |
| Nagendra Nath Mondal v. State of West Bengal (1972) 1 SCC 498 | Further elaboration on the law-and-order/public-order dichotomy. | Invoked to reaffirm that the court must assess the degree of disturbance to societal life. |
| Arun Ghosh v. State of West Bengal (1970) 1 SCC 98 | Defines “public order” as the even tempo of community life and emphasises context-specific analysis. | Relied upon to hold that bomb attacks in a railway yard have a wider impact sufficient to disturb public order. |
Court's Reasoning and Analysis
Justice K.K. Mathew reiterated that whether conduct threatens public order is a matter of degree, depending on the act’s reach and its effect on the community. Applying the standards articulated in the cited precedents, the Court reasoned as follows:
- The petitioner and his associates allegedly hurled bombs at R.P.F. personnel in the Chitpur railway yard on two separate occasions while removing railway property. Such acts are expressly covered by Section 3(2)(b) and (d) of the Act, which refer to mischief by explosive substances and to serious offences likely to disturb public order.
- Bomb attacks in a busy railway yard would create fear among members of the public who rely on the yard for loading and unloading goods, thereby disrupting the “even tempo” of life in that locality. The acts therefore transcend ordinary breaches of law and order and directly threaten public order.
- Regarding the Advisory Board procedure, Section 11 of the Act obliges the Board to grant a personal hearing only if it deems it essential or if the detenu requests it. The Board issued its first report on 6 September 1971, before receiving any request. Upon receiving the petitioner’s request on 8 September 1971, the Board granted a personal hearing on 18 September 1971 and, after hearing him, found no reason to change its opinion. Hence, the statutory requirement was met.
Holding and Implications
Petition Dismissed.
The detention order was upheld. The petitioner remains lawfully detained under the Act. The judgment applies established principles to the facts and sets no new precedent beyond reaffirming existing tests for distinguishing between law-and-order issues and threats to public order.
K.K Mathew, J.— This is an application filed under Article 32 of the Constitution for the issue of a writ in the nature of habeas corpus and to release the petitioner who is alleged to be in illegal custody.
2. In the exercise of the power conferred under sub-section (1), read with sub-section (3) of Section 3 of the West Bengal (Prevention of Violent Activities) Act, 1970 (President's Act 19 of 1970), hereinafter referred to as the “Act”, the District Magistrate, 24 Parganas, passed an order on July 10, 1971, detaining the petitioner with a view to prevent him from acting in a manner prejudicial to the maintenance of public order. Thereafter the petitioner was arrested on July 13, 1971, and was served with the order of detention as also with the grounds of detention together with a vernacular translation thereof on the same day. On July 14, 1971, the District Magistrate reported to the State Government about the passing of the detention order. The report was considered by the State Government on July 21, 1971, and the Government approved the order of detention passed by the District Magistrate. On the same day, the State Government submitted a report to the Central Government in accordance with the provisions of sub-section (5) of Section 3 of the Act together with the grounds of detention and other particulars as required. On August 11, 1971, the State Government placed the case of the petitioner before the Advisory Board under Section 10 of the Act. The State Government received a representation from the petitioner on September 8, 1971. The representation was considered by the Government and it was rejected by an order, dated September 10, 1971. The representation was, however, forwarded to the Advisory Board for consideration of the same by the Board. The Advisory Board, after consideration of the materials placed before it, submitted its report to the State Government on September 6, 1971, incorporating its opinion that there was sufficient cause for the detention of the petitioner. The petitioner prayed, to the Advisory Board, by means of a representation, dated September 6,1971, that he might be given an opportunity of being heard in person. This representation was received by the Advisory Board on September 8, 1971, and the Board heard the petitioner on September 18, 1971. Therefore, the Board sent a supplementary report to the State Government on the same day, stating that the Board did not find any reason to revise its previous opinion. The State Government confirmed the order of detention on October 7, 1971, and the order of confirmation was communicated to the detenu on the same day.
3. The grounds of detention communicated to the petitioner stated:
“(1) That on July 5, 1971 at about 05.30 hrs you along with your associates, while removing Brake Blocks, Vertical Levers and other railway materials from wagon Nos. NEP 1820 and PW 3471 at Chitpur Rly. Yard, charged bombs and ballasts upon the on-duty R.P.F party, when challenged by them. Your attack grew so violent that RK 6448 Ram Bachan Rai of the R.P.F party had to fire one round in self-defence, when you all fled away. You created disturbance of public order thereby.
(2) That on July 5, 1971, night again at 20.30 hrs., you along with your associates, while removing iron rods from B.F Wagon No. ER 99155 at Chitpur Rly. Yard, charged bombs and ballasts upon the on-duty R.P.F party at Chitpur post, when challenged by them. Your attack grew so violent that RK 6756 Madan Mohan Prasad of the R.P.F party had to fire two rounds upon you in self-defence culminating (in) death of one of your associates on the spot, when you all fled away, you created disturbance of public order thereby.”
4. Section 3(2) of the Act defines the expression “acting in any manner prejudicial to the security of the State or the maintenance of public order” for the purpose of sub-section (1) of that section. Clauses (b) and (d) of sub-section (2) of Section 3 read as follows:
“(b) Committing mischief, within the meaning of Section 425 of the Indian Penal Code (45 of 1860) by fire or any explosive substance on any property of Government or any local authority or any corporation owned or controlled by Government or any University or other educational institution or on any public building, where the commission of such mischief disturbs, or is likely to disturb, public order;”
(d) committing, or instigating any person to commit any offence punishable with death or imprisonment for life or imprisonment for a term extending to seven years or more or any offence under the Arms Act, 1959 (54 of 1959) or the Explosive Substances Act, 1908 (6 of 1908) where the commission of such offence disturbs, or is likely to disturb, public order;”
5. The question is, whether the offences alleged to have been committed by the petitioner in the grounds communicated to him would amount to commission of offences which would disturb public order or which are likely to disturb public order.
6. The relevant criteria to distinguish in the abstract between acts prejudicial to maintenance of law and order and those which are prejudicial to maintenance of public order are laid down in a number of rulings of this Court (see Pushkar Mukherjee v. State of West Bengal, (1969) 1 SCC 10, (1969) 2 SCR 635 Sudhir Kumar Saha v. Commissioner of Police, Calcutta, (1970) 1 SCC 149, AIR 1970 SC 814, (1970) 3 SCR 360 and Nagendra Nath Mondal v. State of W.B (1972) 1 SCC 498. The question whether a person has only committed a breach of law and order or has acted in a manner likely to cause a disturbance of the public order is one of degree and the extent of the reach of the act upon the society. An act by itself is not determinative of its own gravity. In its quality it may not differ from another but in its potentiality it may be very different. Similar acts in different contexts affect differently law and order on the one hand and public order on the other. It is always a question of degree of the harm and its effect upon the community. Public order is the even tempo of the life of the community taking the country as a whole or even a specified locality. It is the degree of disturbance and its effect upon the life of the community in a locality which determines whether the disturbance amounts only to a breach of the law and order (see Arun Ghosh v. State of West Bengal) (1970) 1 SCC 98, AIR 1970 SC 1228, (1970) 3 SCR 228.
7. In the final, analysis, one must always return to the facts of the case to see whether the acts perpetrated are of such a nature or of such potentiality as to travel beyond the immediate victims and affect the general or local public. A case by case, adjudication gives the judicial process the impact of actuality and thereby saves it from the hazards of generalisation.
8. We think that the acts attributed to the petitioner are such as would bring him within the ambit of clauses (b) and (d) of Section 3(2) of the Act. Attacking the R.P.F party with bombs at the Chitpur railway station yard was bound to cause scare among all the members of the public who would be resorting the station yard and interfere with their activities in getting the goods loaded and unloaded. The acts attributed to the petitioner had the potentiality affecting the even tempo of the life of the community in the locality by their reverberations. We therefore, overrule the contention of counsel for the petitioner that the grounds communicated to the petitioner did not disclose that he indulged in any activity which was prejudicial to the maintenance of public order.
9. It was contended that the petitioner was not given an opportunity of being personally heard by the Advisory Board before it sent the report incorporating its opinion that there was sufficient cause for the detention of the petitioner. We do not think that there is any substance in this contention either. Section 11 of the Act, so far as it is relevant, provides:
“11. Procedure for Advisory Boards. — (1) The Advisory Board shall after considering the materials placed before it and, after calling for such further information as it may deem necessary from the State Government or from any person called for the purpose through the State Government or from the person concerned, and if in any particular case it considers it essential so to do or if the person concerned desires to be heard, after hearing him in person, submit its report to the State Government within ten weeks from the date of detention.”
In this case, the Board did not consider it essential to hear the petitioner in person before submitting its report. So, unless the petitioner requested for a personal hearing, there was no obligation on the part of the Board to give a personal hearing to him. The Board considered all the relevant materials relating to the case of the petitioner and it came to a conclusion that there was sufficient cause for the detention of the petitioner in its report, dated September 6, 1971. On the same day the petitioner sent a representation to the Board that he may be heard in person. That representation reached the Board only on September 8, 1971. Thereafter the Board heard the petitioner in person on September 18, 1971, but found no reason to revise its previous opinion. So it submitted a supplementary report to the Government on September 18, 1971, to that effect.
10. We, therefore, dismiss the petition.
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