1994 ALLMR ONLINE 99
BOMBAY HIGH COURT

A.C. AGARWAL AND M.L. DUDHAT, JJ.

Kamlakar Shankar Patil and etc Vs. B. Akashi Commissioner of Police of Thane District and another

Criminal Writ Petns. Nos. 1337 and 1358 of 1993

27th January, 1994


Respondent Counsel: Smt. R.P. Desai, Asst. Govt. Pleader, .

National Security Act (1980),S. 3(2)

Cases Cited:
1989 Cri LJ 956 : AIR 1989 SC 491 (Rel. on) [Para 3]
1987 Cri LJ 840 : AIR 1987 SC 998 (Rel, on) [Para 4]
1970 Cri LJ 852 : AIR 1970 SC 852 (Rel.on) [Para 3]
1970 Cri LJ l136 : AIR 1970 SC 1228 (Disting) [Para 13]
1966 Cri LJ 608 : AIR 1966 SC 740 [Para 13]


JUDGMENT

ASHOK AGARWAL, J.:-The present petitions seek to impugn the orders of detention passed on 10th Sept. 1993 passed by the Commissioner of Police, Thane, under Section 3(2) of the National Security Act. The orders of detention were served on the detenus-petitioners on the very day, i.e. on 10th Sept., 1993. The grounds of detention were contemporaneously served on the detenus on the very day namely 10th Sept. 1993. The grounds of detention are practically identical in both the petitions. Grounds of detention in Criminal Writ Petition No. 1357 of 1993 inter alia recite as under:--

"On 3-4-1992 at about 10.00 hours, the daughter of the complainant Miss Pushpa along with her friends Miss Vanita and Miss Jaishri who were also studying in Funde High School and staying in Bhendkhal village, left home for High School for attending Examination paper. When they were crossing a Nallaha situated in the limits of Navghar village, you and your associate Abhay Parshuram Bhagat came there in a hired Maruti Van No. MH/03/B/916 and your associate Abhay dragged Miss Pushpa and forcibly took her in the said Van. Miss Pushpa and her friends Miss Vanita and Miss Jaishri raised hue and cry for help, but your associate Abhay at the point of knife threatened Miss Pushpa with murder it she shouted and you and your associate Abhay took her away in the said Van with an intention to marry your associate Abhay Bhagat with her forcibly. Some boys seeing Miss Pushpa being taken away in a Maruti Van, went running to the house of the complainant and told him about the incident. Therefore, the complainant and some others from the village, went running to Funde High School where they learnnt about kidnapping of Miss Pushpa in a Maruti Van. The complainant Shri Pandharinath Thakur immediatellly rushed to Urban Police Station and filed this complaint upon which an offence vide Urban Police Station Crime No. I-34/ 1992 under sections 363, 506, 34,IPC was registered.

After kidnapping Miss Pushpa in a Maruti Van, you took common photographs of your associate Abhay Bhagat with Miss Pushpa in the running Van. You and your associate Abhay took Miss Pushpa to a distant place at Kajupada, Kesariwadi, Taluka Bassein, District Thane. On reaching there, you and your associate Abhay left the Maruti Van and your associate Ahhay threatened the driver of the said Van with dire consequences it he mentioned kidnapping of Miss Pushpa to anybody. You and your associate Abhay then detained Miss Pushpa in the house of one Ganpat Chaudhari, whom your associate Abhay was knowing and left the house for

bringing clothes. After your departure from the house Miss Pushpa narrated about the incident to Ganpat Chaudhari and his wife Smt. Janabai and requested them to accompany her to the Police Station. But Ganpat Chaudhari refused to accompany her because of fear from you and your associate, but the couple advised her to leave the house on the pretext of answering a call of nature and to get to Kashmira Police Station. Accordingly, Miss Pushpa left the house and with the help of others went to Kashmira Police Station and apprised of her kidnapping by you and your associate Abhay Bhagat. The Kashmira Police with the help of Ganpat Chaudhari and others searched and apprehended you and your associate Abhay at Kajupada. You and your associate Abhay Bhagat were later arrested in this case on 4-4-1992 at 12.30 hours. Because of this incident of forcibly kidnapping a school going innocent girl who was going to attend her annual examination paper, there was panic amongst members of public of Bhendkhal village and to express their anger about 150 women and about 125 men took out a Morcha to Urban Police Station on 6-4-1992 in protest of the incident which proves that the even tempo of the society was disturbed. During investigation of the case, the left foot sleeper of Miss Pushpa which had slipped from her foot while being dragged by your associate Abhay was seized from the scene of offence. Maruti Van No. MH/03/B/916 used for kidnapping Miss Pushpa - was seized under panchanama. The camera used for taking out common photographs of Miss Pushpa with your associate Abhay and the knife were seized at the instance of your associate Abhay from Kajupada, Thane. You and your associate Abhay Bhagat were ordered to be released on bail by the Ilnd Addl. Sessions Judge, Rajgad, Alibag on certain conditions by an order dated 28-4-1992. Accordingly, you were released on bail on 29-14-1992. After due investigation, you, your associate Abhay Bhagat and also driver of Maruti Van named Bharatsingh Nankuprasadsingh were chargesheeted in the court of law on 24-6-1992 under Sections 363, 364, 366, 354, 354 I.P.C: The case is sub judice.

(b) As stated above, because of kidnapping of a school going girl forcibly by you and your associate Abhay, the people of Bhendkhal consisting about 150 women and 125 men had taken out a Morcha to Urban Police Station on 6-4 -1992 in protest of the crime demanding stern action against the culprits. Complainant Shri Rajesh Baburao Thakur, who is also resident of Bhendkhal village had taken active part in the said Morcha and had also delivered his speech. Therefore, you and your associates had borne grudge against the complainant.

On 23-5-1993 there was marriage ceremony of one Pandurang Hari Patil, a friend of the complainant Rajesh Thakur and the marriage was to be solemnised at multipurpose hall in JNPT township.

The complainant Shri Rajesh Thakur had gone for the marriage. The marriage was solemnized at 16.30 hours and thereafter reception was going on. The newly wedded couple was on the stage. The complainant was sitting on a chair near the stage with others and they were chit-chatting. At about 17.30 hours, you with associates Abhay Parshuram Bhagat and Kamalakar Krishna Bhoir went there in an autorickshaw No. MH/06/ 1985 and with common intention you suddenly staeted assaulting the complainant with Gupti on both shoulders while your associate Abhay Bhagat stabbed him with knife in his stomach causing stab wounds on his person and attempted to commit his murder. Seeing Rajesh Thakur being stabbed, there was chaos, hue and cry in the reception hall and people who were present there ran helter skelter out of fear of their lives and there was terror, fear and panic amongst them. The nwely wedded couple sitting on the stage had also to leave the place, hurriedly to home, as a result of which public order was disturbed. After assaulting the complainant Rajesh Thakur, you and your associates left the Place, gave a dash to the rickshaw driver, forcibly occupied his rickshaw and escaped from the place in the said rickshaw, In this connection an offence vide

Nhava Seva Police Station C.R. No.1-24/ 1993 under Sections 307, 506, 34, I.P.C. was registered on the complaint of Shri Rajesh Baburao Thakur. The complainant was first taken to township dispensary and after giving treatment the medical officer referred him to Sterling Hospital, Vashi from where he was again transferred to Sion Hospital, Bombay for further treatment. During investigation, you and your associates were arrested in this case on 25-5-1993 and the Gupti used by you in the commission of offence was recovered at your instance on 27-5-1993. The knife used by your associate Abhay Bhagat was recovered at his instance on 27-5-1993. The autorickshaw which you and your associates had robbed for escaping from the place, was recovered at the instance of your other associate Kamalakar Krishna Bhoir from Navghar village on 25-5-1993. You and your associates had filed application for grant of bail in the Sessions Court, Alibag on 6-7-1993 and you all were ordered to be released on bail by the Sessions Court, Alibag by an order dated 9-7-1993 on certain condition. Accordingly, you were released on bail from Thane Central Prison on 12-7-1993. After due investigation, you and your two associates were charge-sheeted in the Court of law on 17-7-1993 under Sections 307, 392, 506, 34, I.P.C. The case is subjudice.

2. The short question that arises for our consideration is whether---- the aforesaid facts can amount to breach of public order or whether it amounts to breach of law and order. The incidents, which are relied upon, are two in number. The first incident is alleged to have taken place on 3rd April, 1992 and the second on 23rd May, 1993. The incidents are thus separated by a period of over one year.

3. In the case of "Pushker Mukherjee v. State of West Bengal", AIR 1970 SC 852 : (1970 Cri LJ 852) a distinction between law and tinder and public order has been described by the Supreme Court as under (Para 8) :

"........... Does the expression 'public' order take in every kind of infraction or order or only some categories thereof ? It is manifest that every act of assault or injury to specific persons does not lead to public disorder. When two people quarrel and fight and assault each other inside a house or in a street, it may be said that there is disorder but not public disorder. Such cases are dealt with under the powers vested in the executive authorities under the provisions of ordinary criminal law but the culprits cannot be detained on the ground that they were disturbing public order. The contravention of any law always affects order but before it can be said to affect public order, it must affect the community or the public at large. In this connection we must draw a line of demarcatiton between serious and aggravat forms of disorder which directly affected the community or injure the public interest and the relatively minor breaches of peace of a purely local significance which primarily injure specific individual and only in a secondary sense public interest. A mere disturbance of law and order leading to disorder is thus not necessarily sufficient for action under the Preventive Detention Act but a disturbance which will affect public order comes within the scope of the Act. "

In the case of "Piyush Kantilal Mehta v. Commissioner of Police Ahmedabad City" AIR 1989 SC 491 : (1989 Cri LJ 956) this is what has been stated in respect of the distinction between 'law and order' and 'public order' (Para 14):

"........ The allegations made against the petitioner may give rise to a question of law and order but, surely, they have nothing to do with the question of public order. A person may be very fierce by nature, but so long as the public generally are not affected by his activities or conduct, the question of maintenance of public order will not arise. In order that an aictivity may be said to affect adversely the maintenantce if public order, there must be materials to show that there has been a feeling of insecurity among the general public. If any act of a person creates panic or fear in the minds of the members of the public upsetting the even tempo of life of the

community, such act must be said to have a direct bearing on the question of maintenance of public order. The commission of an offence will not necessarily come within the purview of 'public order' ".

Dealing with the facts of that case, the Supreme Court has further gone on to state (Para 18):

"......... It is true some incidents of beating by the petitioner had taken place, as alleged by the witnesses. But, such incidents, in our view, do not have any bearing on the maintenance of public order. The petitioner may be punished for the alleged offences committed by him but, surely, the acts constituting the offences cannot be said to have affected the even tempo of the life of the community."

4. In the case of State of U.P. v. Hari Shankar Tewari reported in AIR 1987 SC 998 : (1987 Cri LJ 840), the Supreme Court has observed that conceptually there is difference between law and order but what in a given situation may be a matter covered by law and order may really turn out to be one of public order. .......In the final analysis, therefore, one has to turn to the facts of each case to ascertain whether the matter relates to larger circle (law and order) or the smaller circle (public order). An act which may not at all be objected to in certain situations is capable of totally disturbing the public tranquillity. When communal tension is high, an indiscreet act of no significance is likely to disturb or dislocate the even tempo of the life of the community. An order of detention made in such a situation has to take note of the potentiality of the act objected to. No hard and fast rule can really be evolved to deal with problems of human society. Every possible situation cannot be brought under water tight classifications and a set of tests to deal with them cannot be laid down. As and when an order of detention is questioned, it is for the Court to apply these well known tests to find out whether the impugned activities upon which the order of detention is grounded go under the classification of public order or belong to the category of law and order.

5. Applying the ratio laid down in the above decisions we have no hesitation in holding that the facts arising in the present case can amount to breach only of law and order and not public order.

6. The expression public order has a very wide connotation. Public order is the basic need in any organised society. It implies the orderly state of society and community in which citizens can peacefully pursue their normal activities of life. In the words of an eminent Judge of the Supreme Court of America "the essential rights are subject to the elementary need for order without which the guarantee of those rights would be a mockery.....". Public order is synonymous with public peace, safety and tranquillity.

7. The question whether a man 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 a question of degree and the extent of the reach of the act upon the society. Public order is something more than ordinary maintenance of law and order. The two concepts have well defined contours. It is well established that stray and unorganised crimes of assaults are not matters of public order since they do not tend to affect the even flow of public life. lnfractions of law are bound in some measure to lead to disorder but every infraction of law does not necessarily result in public disorder.

8. One has to imagine three concentric circles; law and order represents the largest circle within which is the next cirde representing public order and the smallest circle represents the security of the State. Law and Order comprehends disorders of less gravity than those affecting public order just as public order comprehends disorders of less gravity than those affecting the security of State.

9. Qualitatively the acts which affect law and order are not different from the acts which affect public orders. Indeed a state of peace or orderly tranquillity which prevails as

a result of the observance or enforcement of internal laws and regulations by the Government is a feature common to the concepts of law and order and public order.

10. The distinction between the areas of law and order and public order, is one of degree and extent of the reach of the Act in question on 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 maitenance of the public order. If the contravention in its effect is confined only to a few individuals directly involved as distinguished from a wide spectrum of public it would raise a problem of law and order only. These concentric concepts of law and order and public order may have a common epicentre, but it is the length, magnitude and intensity of the terror-wave unleased by a particular eruption disorder that helps to distinguish it as an act afiecting public order from that concerning law and order.

11. The true distinction between the areas of public order and law and order lies not in the nature or quality of the act but in the degree and extent of its reach upon society. The distinction between the two concepts of law and order and public order is a fine one but this does not mean that there can be no overlapping. Acts similar in nature but committed in different contexts and circumstances might cause different reactions. In one case it might affect specific individuals only and therefore touch the problem of law and order while in another it might affect public order. The act by itself therefore is not determinative of its own gravity. In its quality, it may not differ from other 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 the potentiality of the act to disturb the even tempo of the life of the community which makes it prejudicial to the maintenance of the public order. It is always a question of degree of the harm and its effect upon of the community. Public oorder is the even tempo of the life of the community taking the country as a whole or even specific localities. It is the degree of disturbance and its effect upon the of the community in locality which determines whether the disturbance amounts only to a breach of law and order.

12. The above is the distinction between law and order and public order as deduced from various authorities of the Supreme Court. Let us now apply the ratio of the decisions to the facts of the present case. Both the detenus in the instant case are concerned with two incidents. One is an incident of kidnapping and the other is in respect of an attempt to commit murder. The incidents are separated by a period of over one year . It may be that the first incident has prompted a section of the locality to take out a morcha to a Police Station. It is also true that the second incident has taken place during a reception of a marriage ceremony. That may have distrubed the invitees at the reception who might have run away helter skelter. However, it is difficult to subscribe to the contention of the learned Public Prosecutor Smt. Ranjana Desai that this has caused a breach of public order. It may have caused disturbance to various individuals. However, the tempo of life cannot be said to have been disturbed. T'he even tempo continues to remain unaffectcted.

13. Smt. Ranjana Desai drew our attention to certain observations contained in the case of Arun Ghose v. State of West Bengal reported in AIR 1970 SC 1228 : (1970 Cri LJ 1136). In the said case the Supreme Court referred to an earlier decision of the same Court in the case of Dr. Ram Manohar Lohia v. State of Bihar reported in AIR 1966 SC 740: (1966 Cri LJ 608) and observe thus (Para 3 of AIR 1970 SC):

"......... this Court pointed out the difference between maintenance of law and order and its disturbance and the maintenance of public order and its disturbance. Public order was said to embrace more of the community than law and order. public order is the even tempo of the life of the community taking the country as a whole or even a

specified locality. Disturbance of public order is to be distinguished from acts directed against individuals which do not disturb the society to the extent of causing a general disturbance of public tranquillity. 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 law and order. Take for instance, a man stabs another. People may be shocked and even disturbed, but the life of the community keeps moving 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 of 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 way - laid and assaulted. The activity of this man in its essential quality is not different from the act of the other man but in its potentiality and in its effect effect upon the public tranquillity there is a vast diference. The act of the man who molests the girls in lonely places causes a disturbance in the even tempo of living which is the first requirement of public order. He disturbs the society and the community. His act makes all the women apprehensive of their honour and he can he said to be causing disturbance of public order and not merely commiting indiviual actions which may be taken note of by the criminal prosecution agencies. It means therefore that the question whether a man 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 a question of degree and the extent of the reach of the act upon the society. The French distinguish law and order and public order by designating the latter as order publique. The latter expression has been recognised as meaning something more than ordinary maintenance of law and order. Justice Ramaswami in Writ Petition No. 179 of 1968 (reported in 1970 Cri LJ 852) (SC) drew a line of demarcation between the serious and aggravated forms of breaches of public order which affect the community or endanger the public interest at large from minor breaches of peace which do not affect the public at large. He drew an analogy between public and private crimes. The Analogy is useful but not pushed too far. A large number of acts directed against persons or individuals may total up into a breach of public order ...... They show how 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. The question to ask is: Does it lead to disturbance of the current of life of the community so as to amount a disturbance of the public order or does it affect merely an individual leaving the tranquillity of the society undisturbed?

This question has to be faced in every case on facts. There is no formula by which one case can be distinguished from another.

Smt. Desai has pointed out that the Supreme Court in the above case has held on the facts before it that the case was covered by breach of Public order. Drawing an analogy on facts she has submitted that the present case is covered by breach of public order. In the above case Supreme Court was concerned with the following incidents which are to be found in paragraph two of its judgment. They are as fol1ows:-

"18-5-1966Teased one Rekha Rani Barua, and when her father protested confined and assaulted him.29-3-1968One Deepak Kumar Ray was wrongfully restrained and assaulted with lathis and rods.1-4-1968Attempt was made to assault Deepak Kumar Ray at the Malda Sadar Hospital where he was being treated for his injuries in the previous assault.2-9-1968Threatened one Phanindra C. Dasthat he would insult his daughter publicly.26-10-1968Embraced Uma Das d/o Phanindra C. Das and threw white powder on her face (Criminal case started).7-12-1968Obesenely tesed Smt. Sima Das, sister of Uma Das and beat her with chappals.18-12-1968Smt. Sima Das was again teased.26-1-1969Threatened the life of Phanindra C. Das."

14. The facts in our case are entirely different. They cannot be equated with facts in the aforesaid case. As already pointed out no hard and fast rule can be said to be laid down. No case can lay down a definition which case is covered by law and order and which one is covered by public order. It will depend on facts of each individual case and it will be for the Court to decide on facts arising in each individul case whether it embraces law and order or public order. The facts of the instant case, no doubt, affect individuals or group of individuals. The same cannot, however, be equated with breach of public order. The petitioners are being prosecuted for the aforesaid two offences and hence they will be dealt with in accordance with law. This, however, does not justify their detention under Section 3(2) of the National Security Act as it is not possible to hold that the activities of the detenus are in any manner prejudice to the maintenance of public order.

15. In the circumstances, the impugned orders of detention dated 10th Sept. 1993 are quashed.

The detenus are directed to be released forthwith unless they are required in some other cases.

Rule is made absolute.

Petition Allowed