Supreme Court of India
AJAY DIXIT, N.S.A. DETENU, THROUGH HIS NEXT FRIEND AND FATHER SHRI RAM NARAIN DIXIT (LODGED IN DISTRICT JAIL AGRA)versusSTATE OF U.P. AND OTHERS
- Citation
- 1984 INSC 180
- Decided
- 26 September 1984
- Disposal
- Case Allowed
- Bench
- E S VENKATARAMIAH
Holding
The detention order under Section 3(2) of the National Security Act, 1980 is invalid as the grounds are stale, irrelevant and do not pose a threat to public order; the order is quashed.
Summary
The Supreme Court examined a writ petition under Article 32 challenging the detention of Ajay Dixit under Section 3(2) of the National Security Act, 1980. The District Magistrate had listed six past criminal incidents as grounds, alleging that Dixit was likely to act prejudicially to public order. The Court held that the satisfaction of the detaining authority cannot be judged on the truth or sufficiency of the grounds but on their relevance to public order, and found the cited grounds stale, irrelevant, and not indicative of a threat to public order. It distinguished between "law and order" and "public order", emphasizing that only acts likely to disturb the community’s even tempo qualify. Consequently, the detention order was declared invalid and quashed, and the petitioner was released.
Issues considered
- The relevance of the grounds cited in the detention order to the maintenance of public order under Section 3(2) of the National Security Act, 1980.
- Whether the satisfaction of the detaining authority can be subject to judicial review on the basis of relevance of grounds.
- Whether procedural safeguards prescribed under the National Security Act were complied with.
- The distinction between "law and order" and "public order" for purposes of preventive detention.
Legislation cited
- Arms Act, 1959s. 25, s. 27
- Constitution of Indias. Article 22(3), s. Article 22(4), s. Article 22(5), s. Article 32
- Indian Penal Code, 1860s. 286, s. 302, s. 307, s. 342
- National Security Act, 1980s. 3(2), s. 5-A, s. SA
Subjects
preventive detentionNational Security Actpublic orderhabeas corpusArticle 32judicial reviewlaw and order vs public orderstale grounds
Judgment
• 843
A
AJAY DIXIT, N.S.A. DETENU,
THROUGH HIS NEXT FRIEND
AND FATHER SHRI RAM NARAIN DIXIT B
(LODGED IN DISTRICT JAIL AGRA)
v.
STATE OF U.P. AND OTHERS
c
September 26, 1984
(E.S. VENKATARAMIAH AND SABYASACHi MUKHARSJ, JJ.]
National Security Act, 1980, sec. 3 (2) and SA-" Law and Order situation"
and 0 Malntenance of Public Order" distingut;shed.
D
Section 3 (2) of the National Security Act 1980 (for short, the Act) empo·
wers the Central Government and the State Governments, ir satisfied with res-
pect to any person, with a view to preventing him, "inter a/la from acting in any
manner prejudicial to the maintenance of public order .., it is necessary to do so
to make an order directing such person to be detained. Section 5-A of the Act
by virtue of section 2 of the National Secourity (Second Amendment) Act provi- E
des. (i) that where a person has been detain~d under section 3 of the Act on two
or more grounds, such order of detention shall be deemed to have been made
separately on each of such grounds and that such an order shall not be deemed
to be invalid or inoperative mere1y because one or some of the grounds are
vague, non.existent, non.relevant, not connected or invalid for any reasons
whatsoever and the Government or officer making the order of detention shall
be deenled to have made the order of detention under the said section after being F
satisfied as provided in that section with reference to the remaining ground or
grounds.
Tho District Magistrate, Agra passed an order of detention of Ajay
Dixit, the detenu, under s. 3 (2) of the Act on 29th February 1984 stating that
G
he was satisfied that the detenu was likely to act in a manner prejudicial to
maintenance of pubilc order and that it was necessary to detain him with the
object of preventing him from acting prejudicially to the maintenance of public
order. The grounds of detention were (i) that on 10.4.81 the detenu alongwith
his companions surrounded Shri Kanbaiya Lal Sharma with the intention of
killing him but the latter escaped slightly ; (ii) that on 27.9.82 he fired at
the police party from his house where the policy had gone to arrest goondas
collected by him ; (iil) That on bis arrest on 27.9.1982 a country made ff
844 SUPREME COUllT REPORTS [1985) 1 S.C.R.
Tamancha and two live cartridges without licence were recovered from him ;
A (iv) That on 15.1.83 he shot dead Shri Naresh Pnliwal; (v) That on 31.10.1983,
he forcibly compelled Mrs. Sanjcev Kumar Paliwal at the point of a revolver to
take a nude snap of immoral act being committed by Umesh with Sanjeev
Kumar Gupta; and (vi) That on 26.2.1984, he attempted to murder Shri Jai
Kumar Jain. The grounds of detention also Stated the fact that criminal cases
were pending trial in the court in respect of the above c:riminal acts committed
by the detcnu. '
B
The petitioner-father of the dctenu, n1ovcd this a,urt under Article 32 of
the Constitution for a writ of habeas corpus directing the release of the detenu
from detention. He contended, inter~alia, that the grounds mentioned in the
order were illusory, insufficient and not bona fide and in any case irreJevant for
the detention of the detenu for the maintenance of public order.
Allowing the writ petition,
c
HELD : (1) The satisfaction of the detaining autboriity cannot be subjected
to objective tests and courts are not to exercise appellate p1:>wers over such autho·
rities and an order proper on its face, passed by a comp1~tent authority in good
faith, would be a complete answer to a petition for a writ of habeas corpus. But
when a challenge is made to a .detention on the grouods that the stale and
irrelevant grounds were the basis for detention, then the detenu is entitled to be
D released and to that extent the order is subject to judicial review not on the
ground of sufficiency of the grounds nor the truth of the grounds but ooJy about
the relevancy of the grounds which would come under judicial scrutiny. It is,
therefore, necessary in each case to examine the facts to determine not the
sufficiency of the grounds nor the truth of the grounds, but nature of the
grounds alleged and see whether these are relevant or not for considering whe·
ther the detention of the detenu is necessary for maintenance of public order.
F [850F ; 853A-B : 854G-HJ
(2) It is important to bear in mind the differenci: between the law and
order situation & maintenance of public order. The contravention 'of law' always
affects •order, but before it could 'be said to affect 'public order' it must affect
the community or the public at large. The question whether a man has only
committed a breach of law and order or has acted in a manner likely to cause a
disturbarice of the public order, is a question of degree: and the extent of the
E reach of the act upon society. The test is : Does it lead to a disturbance of the
even tempo and current of life of the community so as to amount to a disturbance
of the public order. or, doe~ is affect merely an individual without affecting the
tranquillity of society. It may be remembered that qualitatively, the acts which
affect 'Jaw and ordef' are not different from the acts which affect 'public order'.
Indeed a state of peace or orderly tranquillity which pre:vails as a result of the
G 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'.
Every kind of disorder or contravention of law affects that orderly tranquillity.
The distinction between the areas of 1law 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 maintenance of public order. If the contraven-
H tion in its effect is confined only to a few individuals directly involved as
AiAY D)XiT v. u.i>. STATE (S. Muicharji, J.) 84~
distinguished from a wide spectrum of the public, it would raise a problem of
Jaw and order only. These concentric concepts of 'law and order' aad 'public A
order' may have a common ·epicentre', but it is the length, 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. [851A·B ; D-E ; G-H ; 852A·D]
(3) In the instant case, apart from the fact that the first ground was old B .
and stale, it is irrelevant inasmuch as the detenu has been acquitted of the
charge before the detention order was passed. The other grounds mentioned in
the detention order no doubt are al&o unfortunate and the conduct alleged of
the detenu is ~eprehensible. Such conducts, if true·, are not of such nature which
could possibly endanger 'public order'. The grounds mentioned therein are not
of such magnitude as to amount to apprehend disturbance of public order, nor
was there any evidence that for any conduct of the detenu public order was
G
endangered, or there could be reasonable apprehension about it. In view of the
nature of the allegations mentioned in the grounds, this Court is satisfied that
tht!se are not of such a nature as to lead to any apprehension that the even
tempo of the community would be endangered. Therefore, the detention of the
detenu under the provisions of section 3 (2) of the Act was not justified.
[853C-D ; 85SA]
D
Dr. Ram Manohar Lohia v. State or Bihar & Ors [1966] 2 S.C.R, 709. Arun
Ghos~ v. State of West Bengal [1970] 3 S.C.R. 288, Ram Ranjan Chatterjee
v. State of West Bengal [1975] 4 S.C.C. !43 at 146, Jaya Mala v. Home
Secretary, Govt. of J & K: [1982] 2 S.C.C. 538, Alija11 Mian V. District
Magistrate, Dhanbad a11d Others, [1983] 4 S.C.C. p 301. at 308 and Kamlakar
Prasad Chaturvedi v. State of M.P. and An other, [1983] 4 S.C.C. 433.
followed E
..
ORIGINAL JUlUSDICTION : Writ Petition (Criminal) No. 916
of 1984.
(Under Article 32 of the Constitution of India) p
Sunil K. Jain and Diwan Balak Ram for the Petitioners.
Manoj Swarup and Dalveer Bhandari for the Respondents.
The Judgment of the Court was delivered by
G
SABYASACHI MuiuIARJI, J. Shri Ram Narain Dixit in this
petition under Article 32 of the Constitution challenges the deten-
tion of Ajay Dixit, his son in the District Jail of Agra, tinde~ the
National Security Act, 1980. The District Magistrate, Agra passed
a detention order and served on Ajay Dixit hereinafter called the
1,
detenu under section 3 of the National Security Act, hereinafter 8
[198Sj 1s.c.i.
called the Act, on six different grounds. The grouv<ls mentioned
A therein are as follows :
"!. That on 10.4.1981 at 10.30 p.m. you alongwith your
companions surrounded Shri Kanhaiya Lal Sharma resident
of Ferozepur and fired at him with the ·intention of killing
him but he escaped slightly. In this connection a case
B under S.307 of I.P.C. was lodged with the Police Station
and is pending the trial in the court agaim.t you.
2. That on dated 27.9.82 at 3.10 p . m. you collected
goondas in your house in the town of Ferozabad and when
the police party reached in order to arrest the goondas you
c fired at the police party on which a case against you under
S. 307/34 oflndian Penal Code is pending the trial in the
court.
3. That on dated 27.9.82 you were arrested by the police
in the town of Ferozabad and a country made Tamancha
D and live cartridges without licencelwere recovered from your
possession in respect of which a case: against you under
S.25/27 of Arms Act is pending the trial in the court.
4. That on 15.1.83 at 5.00 p.m. you alongwith your
brother shot dead Shri Naresh Paliwal brother of Shri
E Sanjee Kumer Paliwal resident of Fcrozabad. In this
respect a case against you under S.302 of Indian Penal
Code was registered in the Police Station and is pending
trial in the court.
5. That on 31.10.83 Shri Sanjee Kumer Paliwal lodged a
F report with the Thana Ferozabad (North) that he was carry·
ing the profession of photography. 12-13 days before a boy
took him away for the purpose of a photograph to a room
where you and your associates were present "nd you
forcibly compelled Mrs. Sanjeev Kumar Paliwal at the
point of revolver to take a nude snap '.of immoral act
G being committed by Umesh with Sanjcev Kumer Gupta.
In this respect a case against you under Section 342/286 of
Indian Penal Code was registered and the same is under
trial.
6. That on 26.2.84 at about 5.00 p.m. you alongwith your
H associates in the town of Ferozabad attempted to murder
AiAY DiXIT v. u.1'. stATE (S. Mukharjl, 1.) S47,
by sprinkling kerosene oil and by lighting it with a match ' • A
box Shri Jai Kumer Jain resident of Ferozabad in order to .. .'
recover your so-called money. in respect of which a case !;
against you under S.307 of Indian Penal Code was register-
ed and is under trial." .,
On the above grounds the District Magistrate by his order ,,
D '
dated 29.2.1984 stated that he was satisfied that the said Ajay
Dixit was likely to act in a manner prejudicial to maintenance of'
public order and that it was necessary to detain him with the object
of preventing him from acting prejudicially to the maintenance of'
public order. The said order was passed under Sub-section (2) of
Section 3 of The National Security Act, 1980., and the petitioner • 0
was detained from 29th February, 1984. On March 14th, 1984 the
· petitioner submitted his representation to the Advisory Board. Ori
23rd march, 1984, the State, Government rejected the representation
of the detenu.
/ ;··
I . , ,,
..The petitioners alleged that the procedures and, formalities D«.
provided under the Act had not been made available and applied in '
the case of the detenue. The petitioner states that the detenu·was
detained and the grounds mentioned in the order were illusory,,
insufficient and not bonafide and' in any case irrelevant. for' the.
detention of the detenu for the maintenance of public order., Sub-
s~ction (2) of Section 3 of' the Act empowers. the Central Gc)vern~·· E'
. ··~
ment and the State Governments, if satisfied with respect to any
person, with a view to preventing him "inter alia from acting in any
manner prejudicial to the maintenance of public order", it is necessary
to do so to make an order directing such person be detained. , F
, There are decisions which have dealt with limits and the s'cope
· · of this rather drastic power of preventive detention vested in ·the
Government and which is sanctioned under the provisions of Article
22(3), (4) and (5) of the Constitution. There are various procedural
safeguards like making known to the detenu within a particular G,
time the grounds of detention and giving him information that he ., .
''
can make representation against the detention within a particular;
time and further that the representation should be placed before
the Advisory Board and the opinion of the Advisory Board should
be placed before the Government concerned [and thereafter decision
taken. The petitioner made some other aver:nents. of non-com•
, . .; ! ' I
848 SUPREME coutr REPORTS [I98SJ 1 s.c.P..
pliance with 'the procedural safeguards under the Act. The main
A ground in the petition is ·that the petitioner was not informed of the
fights available to him nor of the reasons or order passed on his
representation. ·'In view of the averments made in the petition and
the affidavits filed on behalf of respondent, it is not necessary in
the facts and circumstances of this case to discuss these in detail.
Preventive detention is an exception to the normal procedure.
It is sanctioned and auth.orised for very limited purpose under Article
22(3)(b) with good deal of safeguards. The exercise of that power of
preventive detention must be with circumspection and care. We are
governed; by ,the Constitution and our Constitution embodies a
philosophy of government and a way of life. The working of this Con·
stitution .requires understanding between those who exercise power
..._,..
..
and the p~ople over whom or in respect of whom such power is exerci·.
sed. The purpose ,of all government is to promote common well-being·
and' it must subserve the common good and it is necessary therefore
to protect individual rights as far as consistent with security of the
n· society and an atmosphere where the even tempo of the community
is least endangered. These provisions should be so read as to imply
grant of power and also limit the user of the power. The observance
ofa written law about the procedural safeguards for the protection of
the"' individual is the normal and high duty of a public:official. But·
in all circumstances is not the highest. ·The law of self-preservation
E and national security often claimed a higher priority. "To lose our
country by a scrupulous adherence to written law, would be to lose
·the ·Jaw itslef, with life, liberty, property and all those who are
enjoying tliem with us, thus absurdly sacrificing the end to the
means'', Thomas Jefferson Writings (Washington ed. V. page 542·545
Sometimes the executive may have to act without normal sefeguards ·
F', '-...for ordinary detention and resort to preventive detention when the
necessity . demands it, but it !must explain its action when called
upon iri judicial review and ask for acquittance, . .
''' I ·'>' < •
' The· quesiion of difference b~tween 'law and order' and
'public order' has come up many a times in judicial decisions•. In
{
G · the case of Dr. Ram Manohar Lohia v. State of Bihar & Ors(1)., a :
Cmlstitution·Bench of this court had to consider this controversy
·-- in the context of Rule 30 (i) (b) of the Defence of India Rules,
1962. Mr. Justice Sarkar who was a party to the majority· view
f h . '" '• ' '
ff (I )[1966] I S.C.R. 709.
- Mt,Y l:>IKIT v. u.P. STATE (S. Mukharji, 1.) 849
A
obs•rved that it was not necessary to take too technical a view but
one should proceed in a matter of substance, if a man could be
deprived of his liberty by the simple process of making of an order
he could only be so deprived of it if the order is in terms of rule.
If for the purpose .of justifying the detention such compliance by
itself is enough, non-complaince must have a contrary effect. A
mere reference in the detention order to the rule is not sufficient
to show that by"law and order" what was meant was public order.
The learned judge observed that the order no doubt mentioned
another ground of detention namely prevention of acts and so far
as it did so, it was clearly within the rule. But the order has not-
withstanding this, to be held illegal, though it mentioned a ground c
on which a legal o •der of detention could have been passed,
because it could not be said that in what manner and to what
extent the valid and invalid grounds operated on the ·mind of the
detaining authority. Of course, as the present law stands if one
of the grounds is invalid the order of detention can not be set aside
merely on that ground. D
The National Security (Second Amendment) Act, 1984 was
assented to by the President on 31st August, 1984 and it provided
that it should be deemed that the Act had come into force on the
21st of June, 1984. Section SA of the Act by virtue of Section 2
of the, National Security (Second Amendment) Act, reads as E
follows :
"SA. Where a person has been detained in pursuance
of an order of detention whether made before or after
the commencement of the National Security (Second F
Amendment) Act, 1984 under section 3 which has been
made on two or more grounds, such order of detention
shall be deemed to have been made separately on each
of such grounds and accordingly :-
G
(a) Such order shall not be deemed to be invalid or
inoperative merely because one or some of the grounds
r
is or are-
(i) Vague,
(ii) non-existent,
(iii) not relevant, H
siit>REME CoutlT REPO\lTS l198SJ 1 s.c.ll.
A
(iv) not connected or not proximately connected with -
such person, or
(v) invalid for any other reasons whatsoever. and it is
not, therefore, possible to hold that the Government or
officer making such order would have been satisfied as
provided in section 3 with reference to the remaining
B
ground or grounds and made the order of detention ;
(b) the Government or officer making the order of
detention shall be deemed to have made the order of
detention under the said section after being satisfied as
c provided in that section with reference to the remaining
ground or grounds."
The Act specifically makes the prov1s1on of Section SA of
the amended portion of the Act applicable in case of an order of
detention whether passed before the commencement of the
D
National Security (Second Amendment) Act, 1984 or after it.
Therefore in this order of detention section SA would be applica-
ble, as the order was passed before the coming into force of the
National Security (Second Amendment) Act, 1984.
Justice Hidayatul!ah, as the learned Chief Justice then was
and Justice Bachawat observed in the said decision that thesatis'.
faction of the detaining authority cannot be subjected to objective
tests and courts are not to exercise appellate powers over such
authorities and an order proper on its face, passed by a compe-
tent authority in good faith, would be a complete answer;to a peti-
F tion for a writ of habeas corpus. But when from the order itself
circumstances appear which raise a doubt whether the officer
concerned had not misconceived his own powers, there is need to
cause and enquire. The enquiry then is, not with a view to inves-
tigate the sufficiency of the materials but into the officer's notions
of his power. If the order passed by him showed that he thought
G his powers were more extensive than they actually were, the order
might fail to be a good order. When the liberty of the citizen is
put within the reach of authority and the scrutiny by courts is
barred, the action most comply not only with the substantive
requirement• of law but it should be with those forms which alone
can indicate the substance. The learned judges further observed
H that the contravention 'of law' always affects 'order' but before
MAY biim v. U.P. SNATE (S. Mukharji, 1.) 8S1
it could be said to affact 'public order', it must affect the commu-
A
nity or the public at large. One has to imagine three concentric
circles, the largest representing "law and order", the next repre-
senting "public order" and the smallest representing "Security of
State". An act may affect "law and order" but not "public
order", just as an an act may affect ·'public order" but not
"Security of the State". Therefore one must be careful in using B
these expressions.
In the decision of this Court in this case of Arun Ghosh v.
State of West Bengal('), the question was whether the grounds
mentioned could be construed to be breach of public order and as
such the detention order could be validly made. There the c
appellant had molested two respectable young ladies threatened
their fathers life and assaulted two other individuals. He was
detained under section 3(2) of the Preventive Detention Act, 1950
in order to prevent him from acting prejudicially to the mainten-
ance of public order. It was held by this Court that .the question
whether a man has only committed a breach of law and order, or D
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 society. The test is : Does it lead to a disturbance of
the even tempo of the life of the community so as to amount to
a disturbance of the public order,or, does it affect merely an
individual without affecting the tranquillity of society. This court E
found in that case however reprehensible the appellant's conduct
might be, it did not add up to the situation where it may be said
that the community at large was being disturbed. Therefore, it
could not be said to amount to an apprehension or breach of
public Order, and hence, he was entitled to be released.
F
The law on this point was stated by this Court in the case of
Ram Ranjan Chatterjee v. State of West Bengal(') as follows :
"It may be remembered that qualitatively, the acts
which affect 'law and order' are not different from the acts
G
which affect 'public order'. Indeed, a state of peace or
orderly tranquillity which prevails as a result of the obser-
vance or enforcement of internal laws and regulations by
(l) [1970] 3 S.C.R. 288.
(2) [1975] 4 $.C.C. 143 at 146.
SUPREME COURT RE~ORTS [1985j i s.C.R.
the Government, is a feature common to the concepts of
A 'law and order' and 'public order'. Every kind of dis-
order or contravention of law affects that orderly tran-
quillity. The distinction between the area:; of 'law and
order' and 'public order' as pointed by this Court in
Arun Ghosh v. State of West Bengal, 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 maintenauce of public order. If the contravention
in its effect is confined only to a few individuals directly
involved as distinguished from a wide spectrum of the
public, it would raise a problem of law and order only.
c 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-wav•o unleashed by
a particular eruption of disorder that helps distinguish it
is an abt affecting 'public order' from that concerning
'law and order'."
D
Reliance was also placed upon Jaya Mala v. Home Secretary
Government of J & K(l). In that case also a criminal case had been
started on the basis of an incident. The Court felt that the
grounds of detention were such grounds upon which no valid
order can be •ubstained. It has been further observed at page 540
E
as follows: < .•
"But it is equally important to bear in mind that
every minor infraction of Jaw cannot be upgraded to the
height of an activity prejudicial to the maintenance of
public order.......... If every infraction of law having a
F penal sanction by itself is a ground for detention danger
looms larger that the normal criminal trials, 'and criminal
courts set up for administering justice will be substituted
by detention laws often described as lawless law."
See also in this connection the observations of this Court in
G Alljan Mian v. District Magistrate, Dhanbad and others('>.
Stale incidents cannot also be a valid ground for sustaining
detention. See in this connection the observations of this Court
(I) [1982) 2 S.C.C. S38.
H (2) (19831 4 s.c.c. 301 at 308.
AJAY DIXIT v. U.P. STATE (S. Mukharji, J.) 853
in Kamkalar Prasad Chaturvedi v. State of M.P. and Another('). A
When a challenge is made to detention on the grounds that the
stale and irrelevant grounds were the basis for detention then the
detenu is entitled to be released and to that extent the order is
subject to judicial review not on the ground of sufficiency of the
grounds nor the truth of the grounds but only about the relevancy of
the grounds which would come under judicial scrutiny. B
Bearing the aforesaid principles in mind, the first ground
mentioned in the order of detention was that the detenu along-with
the companions surrounded one Kanhaiya Lal Sharma and had
committed an offence under Section 307 of Indian Penal Gode on c
or about I 0th April, 1981. Apart from the fact that the ground
was old and stale, it is irrelevant inasmuch as the detenu has been
acquitted of the charge before the detention order was passed.
He was acquitted on 2nd February, 1984 whereas the detention
order was passed on 29 th February. 1984. The respondents in'
their counter do !'Ot dispute this position but state that the informa-
D
tion had not reached the detaining or the recommending authority.
This is unfortunate. The other grounds mentioacd in the detention
order no doubt are also unfortunate and the conduct alleged of
the detenu is reprehensible. Such conducts, if trne, are not of such
nature 'as could possibly endanger 'public order'. The incident
was ·alleged to have happened ten or twelve days prior to 31&t
E
October, 1983, yet the detention order was passed quite some time
thereafter in February, 1984. In certain criminal charges mentioned
-- in grounds numbers 2,3, 4 and 5, there is no difficulty in arresting
the detenu. The grounds mentioned therein are not of such
magnitude as to amount to apprehend disturbance of public order,
nor was there any evidence that for any conduct of the detenu F
public order was endangered, or there could be reasonabl~
' . apprehension about it. As emphasised by the decisions of this
Court, it is important to bear in mind the difference between law
and order situation and maintenance of public order. The act by
itself is not determinate of its gravity. In its quality it may not
differ from another but ·its potentiality may be very different: G
Therefore the question whether a man has only committed a breach
of law and order or acted in a manner likely to the · disturbance of
public order is a question of degree of the reach of the act upon
(I) [1983] 1 s.c.c. 443. H
854 SUPREME COURT REPORTS (1985] l s.C.I..
society. In this connection it may be appropriate to refer to the
A
observations in the case of Arun Ghosh v. State of West Bengal
(supra) at page 290 as follows :
''It means therefore that the question whether a man
bas only committed a breach of law and order or has acted
in a manner likely to cause a disturbance of the public
B
order is a question of degree and the extent of the reach of
the act upon the society. The French distinghish law and
order and public order by designating the latter as order
publique. The latter expression has l been •recognised as
meaning something more than ordinary maintenance of
c law and order. Justice Ramaswami in Writ Petition
No. 179 of 1968 drew a line of demarca1tion between the
serious and aggravated fllrms 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
D public and private crime. The analogy is useful but not to
be pushed too far. A large number of acts directed against
persons or individuals may total up into a breach of public
order. In Dr Ram Manohar Lohia's case examples were
given by Sarkar, and Hidayatulla , 'JJ. They show how
similar acts in different contexts affect differently law and
E
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 to a disturbance of the public order or does it
F 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."
It is, therefore, necessary in each case to examine the facts to
G determine, not the sufficiency of the grounds nor the truth of the
grounds, but nature of the grounds alleged and see whether these
are relevant or· not for considering whether the detention of the
detenu is necessary for maintenance of public order.
H In view of the nature of the allegations mentioned in the
I
AJAY DIXJT v. U.P. STATE (S. Mukharji, J.) 855
- grounds, we are of the opinion that these are not such a nature as
to lead to any apprehension that the even tempo of the community
would be endangered. Therefore the detentioa of the detenu
under the provisions of Section 3(2) of the Act was not justified.
A
There are various allegations of mala fide in this application
namely that one of the relations of Advocate-General of U.P. was B
involved. It is alleged that the Advocate-General of U.P. is the
father-in-law of a local resident with whom the family of the detenu
had land dispute due to which many attempts on the life of the
detenu and his brother had been caused to be made by the Advocate·
General. In the view we have taken it is not necessary for us to go c
into these questions. There are some submi&sions about the
procedural irregularities. Though on the whole we do not find much
substance but it is not [necessary also to detain ourselves on the
examination of these question.
D
In the aforesaid view of the matter, the detention order dated
29th February, 1984 which is Annexure I to the petition is hereby
quashed. The detenu should be set at liberty forthwith.
E
M.L.A. Petition allowed.
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