K.K. SARAVANA BABU v. STATE OF TAMIL NADU & ANR

Citation: [2008] 12 S.C.R. 468

Court: Supreme Court of India

Bench: DALVEER BHANDARI, H.S. BEDI

Case summary

K.K. SARAVANA BABU v. STATE OF TAMIL NADU & ANR.pdf

Judgment text

[2008] 12 S. C. R. 468 K. K. SARAVANA BABU V. STATE OF TAMIL NADU & ANR. (Criminal Appeal No. 1332 of 2008) AUGUST 22, 2008 [DALVEER BHANDARI AND HARJIT SINGH BEDI, JJ. ] Preventive Detention - Detention of detenu relying on two criminal cases against him relating to land grabbing - Propriety of - Held: Detention order is arbitrary, illegal and unsustainable - Even if criminal cases relied on by detaining authority are assumed to be correct, no case of disturbance of public order is made out - Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Sand 0 Offenders, Slum Grabbers and Video Pirates Act, 1982 - . 3(1). Words and Phrases - 'Public order' - Meaning of in ....... the context of preventive. detention.

Appellant-detenu was detained uls 3(1) of Tamil Nadu Prevention of Dangerious Activities of Bootleggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Sand Offenders, Slum Grabbers and Video Pirates Act, 1982. The detention was ordered relying on two criminal cases relating to land grabbing. Detenu's representation seeking revocation of the ~ detention was rejected. His writ petition seeking quashing of detention order was also dismissed. Hence the present appeal. Allowing the appeal, the Court HELD: Cases affecting the public order are those Ja which have great potentiality to disturb peace and tranquillity of a particulai· locality or disturb the even NADU &ANR. )f tempo of the life of the community of that specified locality.

The detention order passed against the detenu was arbitrary, illegal and unsustainable because even assuming the allegation in both the cases relied on by the detaining authority are correct, then also no case of disturbance of public order is made out. The detenu can be dealt with :. 1 under the ordinary criminal law if. it becomes imperative. [Paras 30, 31 and 32] [482-G 483-0, 482-E, 483-C] Brij Bhushan and Anr v. The State of Delhi (1950) SCR 605; Ramesh Thappar v. The State of Madras (1950) SCR : 594; Dr R_am Manohar Lohia v. State of Bihar and Ors. 4 (1966) 1 SCR 709 - followed. Arun Ghosh v. State of West Bengal (1970) 1 SCC 98; Pushkar Mukherjee and Ors. v. The State of West Bengal, AIR 1970 SC 852; Babu/ Mitra alias Anil Mitra v. State of 0 West Bengal and Ors. (1973) 1 SCC 393; Dipak Bose alias Naripada v. State of West Bengal (1973) 4 SCC 43; Kuso Sah v. The State of Bihar and Ors. (1974) 1 sec 185 and + Ashok Kumar v. Delhi Administration and Ors.

(1982) 2 SCC 403; Commissioner of Police and Ors. v. C. Anita (Smt. ) (2004) 7 SCC 467; R. Ka/avathi v. State of Tamil Nadu (2006) 6 sec 14 - relied on. Ramesh Yadav v. District Magistrate, Etah and Ors. -1 (1985) 4 SCC 232; Binod Singh v. District Magistrate, Dhanbad, Bihar and Ors. (1986) 4 SCC 416 and TV. ,+ Sravanan alias S. A. R. Prasana Venkatachaariar Chaturvedi v. State through Secretary and Anr (2006) 2 SCC 664 referred to. Case Law Reference (1950) SCR 605 Followed Para 15 ..... (1950) SCR 594 Followed Para 16 . (1966) 1 SCR 709 Followed Para 18 (1970) 1 sec 98 Relied on Para 19 7- AIR 1970 SC 852 Relied on Para 20 (1973) 1 sec 393 Relied on Para 21 (1973) 4 sec 43 Relied on Para 22 (1974) 1 sec 185 Relied on Para 23 (1982) 2 sec 403 Relied on Para 24 . )J.

(1985) 4 sec 232 Referred to Para 26 (1986) 4 sec 416 Referred to Para 27 (2004) 1 sec 467 Relied on Para 28 ~· (2006) 6 sec 14 Relied on Para 29 (2006) 2 sec 664 Referred to Para 30 CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 1332 of 2008 From the Order dated 29. 4. 2008 of the High Court of Judicature at Madras in H. C. P. No. 1677 of 2007 -+-- Huzefa Ahmadi, S. Vallinayagam and Y. Raja Gopala Rao for the Appellant. '~ ' T. L. V. Iyer, R. Nedumaran and V. G. Pragasam for the Respondents. The Judgment of the Court was delivered by DALVEER BHANDARI, J. 1. Leave granted. --/... 2. This appeal is directed against the judgment of the High Court of Madras passed in Habeas Corpus Petition No. 1677 of 2007 on 29th April, 2008. 3.

The detenu has challenged the detention order under Section 3(1) of the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Forest Offenders, ~ Goondas, Immoral Traffic Offenders, Sand Offenders, Slum Grabbers and Video Pirates Act, 1982 (Tamil Nadu Act 14 of 1982) passed vide Order No. 360/07 dated 28. 8. 2007. _, \ , 4. The detenu is involved in a land grabbing case registered at St. Thomas Mount Central Crime Branch Cr. No. 70/2006 under sections 420, 465, 468 read with 471 and 120(8) IPC and the said case is pending trial before the court. Subsequently another case was registered against the detenu during 2007 in Central Crime Branch, Chennai City X s Crime No. 364/2007 under sections 420, 465, 466, 467, 468 read with 471 and 120(8) IPC for the offence of land grabbing and his activities are said to have been adverse to the interest of the land owners and prospective buyers.

The modus operandi of the detenu in both the cases is land grabbing in a clandestine manner. The detaining authority had considered the said aspect and came to the conclusion that in case the detenu is let out on bail he would again indulge in similar type of offences and, therefore, it is imperative to detain him. The order of detention came to be passed keeping in mind the 0 welfare of public who are owning lands as well as the prospective buyers. 5. It may be pertinent to mention that a number of bail applications of the detenu were dismissed and he was already in jail on 28. 08. 2007 when the detention order was served on him. 6. The detenu made a representation on 14. 9. 2007 to the Secretary and the Advisory Board seeking revocation of the detention order, which was rejected on 14. 10. 2007. Thereafter, the detenu filed a Habeas Corpus petition seeking quashing of the detention order. The said petition was dismissed on 29. 04. 2008.

The detenu aggrieved by the said order preferred a special leave petition before this court. In pursuance to the notice issued by this court, a counter affidavit has been filed by the respondent. 7. Mr. Huzefa Ahmadi, learned counsel appearing for the detenu submitted that the detention order passed against the detenu is illegal and unsustainable in law. The detention order is based on aforementioned two criminal cases. According to ' ' )"- '! the detenu, all allegations incorporated in both the criminal cases if taken to be true even then the detenu cannot be said to have indulged in activities prejudicial to the public order. 8. It was contended by the detenu that the grounds of. detention are based on cases pertaining to law and order problem. The distinction between 'law and order' and 'public x order' has been very clearly defined in a catena of judgments of this court.

The clear legal position which emerges from the number of judgments of this court clearly leads to the definite conclusion that if allegations are taken to be correct even then the activities of the detenu do not fall in the category of cases affecting the public order. 9. Mr. Ahmadi also submitted that the High Court has seriously ~rred in not properly appreciating the distinction between "law and order" and "public ord~r" and rejected the habeas corpus petition preferred by the detenu. 10. Mr. Ahmadi further contended that three bail applications preferred by the detenu were rejected and no +. bail application was pending when the detention order was passed, therefore, the apprehension expressed by the detaining authority that there was imminent possibility of detenu likely to be released on bail was merely ipse dixit of the detaining authority without any material on record. 11. Mr.

Ahmadi submitted that the detention order ex facie is arbitrary, illegal, mala fide and passed with an oblique motive. He also contended that the State because of wrongful detention has deprived the detenu of his fundamental rights enshrined under Articles 21 and 22 of tl=le Constitution of India. 12. Mr. T. L. V. Iyer, learned senior counsel appearing for the State of Tamil Nadu submitted that the detaining authority after arriving at a subjective satisfaction clamped the ab_ove )..... order of detention on the basis of an appraisal of the material placed by the sponsoring authority. - 13. Mr. Iyer further submitted that the detention order . ~ does not constitute an infringement of the fundamental rights guaranteed to the detenu under Articles 19, 21 and 22(5} of the Constitution of India. Mr. Iyer contended that the detenu is a slum grabber and involved in crime No. 7012006 under sections 420, 465, 468 read with 471 and 120(8) IPC and crime No.

364/2007 under sections 420, 465, 466, 467, 468 iL. read with 471 and 120(8) IPC and that, keeping in mind the ...... seriousness of the offefJC~ of land grabbing, the detaining authority was justifi~d in passing the detention order. 14. We have heard the learned counsel for the parties at length and carefully gone through the record of the case. 15. This court on several occasions examined the concepts of "law and order" and "public Order". Immediately after the Constitution came into force, a Constitution Bench of this court in Brij Bhushan & Another v. The State of Delhi (1950) SCR 605 dealt with a case pertaining to public order. The court observed that "public order" may well be paraphrased in the context as "public tranquillity". 16. Another celebrated Constitution Bench judgment of this court is in the case of Ramesh Thappar v. The State of ~ Madras (1950) SCR 594. In this ca.

se, Ramesh Thappar, a printer, publisher and editor of weekly journal in English called Cross Roads printed and published in Bombay was detained under the Madras Maintenance of Public Order Act, 1949. The detention order was chailenged directly in the Supreme ~ Court of India by filing a writ petition under Article 32 of the Constitution. The allegation was that the detenu circulated documents to disturb the public tranquillity and to create disturbance of public order and tranquillity. 17. The court observed:- "... 'Public order' is an expression of wide connotation and signifies that state of tranquillity which prevails among the members of a political society as a result of internal regulations enforced by the Government which they have 'f established ....... it must be taken that 'public safety' is used as a part of the ·wider concept of public order ..... " 18.

The distinction between "p1:1blic order" and "law and order" has been carefully defined in, a Constitution Bench judgment of this court in Dr. Ram Manohar Lohia v. State of Bihar & Others (1966) 1 SCR 709. In this judgment, )( Hidayatullah, J. by giving various illustrations clearly defined "' the "public order" and "law and order". Relevant portion of the judgment reads thus: ".... Does the expression "public order" take in ·every kind of disorder or only some? The answer to this serves to distinguish "public order" from "law and order" because the latter undoubtedly takes in all of them. Public order if disturbed, rnust lead to public disorder. Every breach of the peace does not lead to public disorder. When two drunkards quarrel and fight there is disorder but not public disorder. They can be dealt with under the powers to maintain law and order but cannot be detained on the + ground that they were disturbing public order.

Suppos~ that the two fighters were of rival communities and one of them tried to raise communal passions. The problerri is . still one of law and order but it raises the apprehension of public disorder. Other examples can be imagined. The contravention of law always. affects order but before it can be said to affect public order, it must affect the community or the public at large. A mere disturbance of law and order -+leading to disorder is thus not necessarily sufficient for action under the Defence of India Act but disturbances which subvert the public order are. A District Magistrate is entitled to take action under Rule 30(1)(b) to prevent subversion of public order but not in aid of maintenance of law and order under ordinary circumstances.

~ lt will thus appear that just as "public order" in the rulings of this Court (earlier cited) was said to comprehend disorders of less gravity than those affecting "security of ~ State", "law and order" also comprehends disorders of less gravity than those affecting "public order". One has to imagine three concentric circles. Law and order represents the largest circle within which is the next circle representing public order and the smallest circle represents security of State. It is then easy to see that an act may affect law and order but not public order just as an act may affect public order but not security of the State .... " 19. In Arun Ghosh v. State of West Bengal (1970) 1 SCC 98, Hidayatullah, J. again had an occasion to deal with the question of "public order" and "law and order". In this judgment, by giving various illustrations, very serious effort · has been made to explain the basic distinction between "public order'' and "law and order".

The relevant portion reads as under: "... 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. Distutbance 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 affect 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 I r ...... ,--- 1-- was likely to get bail an order of detention under the National Security Act should not ordinarily be passed. We are inclined to agree with counsel for the petitioner that , '> the order of detention in the circumstances is not ¥-sustainable and is contrary to the well settled principles ... indicated by this Court in a series of cases relating to preventive detention. The impugned order, therefore, has to be quashed. " 27. Mr. Ahmadi, the learned counsel further placed reliance on Binod Sin[Jh v. District Magistrate, Dhanbad, Bihar -\; & Others (1986) 4 SCC 416. In this case, the court observed as follows:- ' "7.

It is well settled in our constitutional framework that the power of directing preventive detention given to the ~ appropriate authorities must be exercised in exceptional cases as contemplated by the various provisions of the different statutes dealing with preventive detention and should be used with great deal of circumspection. There must be awareness of the facts necessitating preventive ¢ ·custody of a person for social defence. If a man is in custody and there is no imminent possibility of his being released, the power of preventive detention should not be ~ exercised. In the instant case when the actual order of detention was served upon the detenu, the detenu was in jail. There is no indication that this factor or the question that the said detenu might be released or that there was such a possibility of his release, was taken into consideration by the detaining authority properly and seriously before the service of the order.

A bald statement is merely an ipse dixit of the officer. If there were cogent ~ materials for thinking that the detenu might be released then these should have been made apparent. Eterna. 1 vigilance on the part of the authority charged with both law and order and public order is the price which the democracy in this country extracts from the public officials in order to protect the fundamental freedoms of our citizens. In the . z-affidavits on behalf of the detaining authority though there are indications that transfer of the detenu from one prison to another was considered but the need to serve the i ~ detention order while he was in custody was not properly considered by the detaining authority in the light of the relevant factors. At least the records of the case do not indicate that.

If that is the position, then however disreputable the antecedents of a person might have been, without consideration of all the aforesaid relevant factors, the detenu could not have been put into preventive custody. 'f Therefore, though the order of preventive detention when tf it was passed was not invalid and on relevant considerations, the service of the order was not on proper consideration. " 28. In Commissioner of Police & Others v. C. Anita (Smt. ) (2004) 7 SCC 467, this court again examined the issue of "public order" and "law and order" and observed thus: "7. .... The crucial issue is whether the activities of the detenu were prejudicial to public order. While the expression "law and order" is wider in scope inasmuch as contravention of law always affects order, "public order" has a narrower ambit, and public order could be affected -1 by only such contravention which affects the community or _, the public at large.

Public order is the even tempo of life of the community taking the country as a whole or even a specified locality. The distinction between the areas of "law and order'' and "publir •. order" is one of the 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 life of the community which makes it prejudicial to the ~ maintenance of the public order. If a contravention in its effect is confined only to a few individuals directly involved as distinct from a wide spectrum of the public, it could raise problem of law and order only. It is the length, magnitude and intensity of the terror wave unleashed by -) a particular eruption of disorder that helps to distinguish it as an act affecting "public order" from that concerning "law and order". The question to ask is: . ' -......

Y- "Does it lead to disturbance of the current life of the community so as to amount to 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 its facts. " ' 29. In R. Kalavathi v. State of Tamil Nadu (2006) 6 ·~ sec 14, this court while dealing with the case affecting the / public order observed that even a single act which has the " y propensity of affecting the even tempo of life ·and public tranquillity would be sufficient for detention. 30. Mr. Ahmadi, the learned counsel for the detenu placed reliance on TV Sravanan·afias S. A. R. Prasana Venkatachaariar Chaturvedi v. State through Secretary & Another (2006) ·2 SCC 664. In this case the court observed that when the detenu was already in custody, there was no imminent possibility of his being released. In that event it would not be appropriate to pass order of detention against him.

This proposition of law also seems to be well-settled, but in view of the fact that ~ the detenu succeeded in his. threshold submission that the . detention order passed against him was arbitrary, illegal and ~ ,. _ unsustainable because even assuming the allegation in both the cases relied on by the detaining authority are correct then also no case of disturbance of public order is made out. 31. We have tried to deal with the important cases dealing with the question of "law and order" and "public order" right 4-.. from the case of Ramesh Thappar (supra) to the latest case of R. Kalavathi (supra). This court has been consistent in its approach while deciding the distinction between 'law and order' and 'public order'. According to the crystallized legal position, cases affecting the public order are those which have great potentiality to disturb peace and tranquillity of a particular .. (_·locality or in the words of Hidayatullah, J.

disturb the even tempo of the life of the community of that specified locality. 32. In the instant case, in the grounds of detention, two ->f cases have been enumerated, one of which pertains to the of(ences punishable under sections 420, 465, 468 read with 471 and 120(8) IPC in Crime No. 70 of 2006. Another case pertains to Crime No. 364 of 2007 registered under sections 420, 465, 466, 467, 468 read with 471 and 120(8) IPC. The facts of these cases have been -carefully examined and even 8 assuming the allegations of these cases as true, even then by f no stretch of imagination, the offences committed by the detenu " can be called prejudicial to public order. The detenu can be dealt with under the ordinary criminal law if it becomes imperative. 33. In this view of the matter, the detention order passed against the detenu is illegal, unsustainable and liable to be quashed and we accordingly do so.

Since we are quashing the detention order on the threshold submission of the detenu, therefore, it is not necessary to examine other submissions advanced by the detenu. The detention order is accordingly quashed. The detenu be set at liberty forthwith, if not required in any other case. The appeal is accordingly allowed and ~ disposed of. -:· K. K. T. Appeal allowed. \ ~