Supreme Court of India
STATE OF U.P.versusKAMAL KISHORE SAINI
- Citation
- 1987 INSC 316
- Decided
- 6 November 1987
- Disposal
- Dismissed
- Bench
- A P SEN
Holding
The order of detention is illegal and void because the detainee was denied the material required for an effective representation, violating Article 22(5) of the Constitution, and the detaining authority failed to consider essential documents before passing the order.
Summary
Kamal Kishore Saini was detained under section 3(2) of the National Security Act, 1980 on three criminal grounds. He challenged the detention before the Allahabad High Court, which quashed the order on the ground that he was not supplied with vital documents (statements under Sec. 161 CrPC, applications of co‑accused, bail applications) necessary to make an effective representation under Article 22(5) of the Constitution. The State appealed to the Supreme Court. The Court upheld the High Court’s finding that the failure to provide these materials violated the detainee’s constitutional right and rendered the detention order invalid, irrespective of whether the grounds affected public order. The Court also clarified the distinction between law‑and‑order and public‑order disturbances, holding that the second and third grounds did affect public order, but the procedural defect alone sufficed to invalidate the order. Consequently, the appeal was dismissed.
Issues considered
- The failure to supply the detainee with material necessary for an effective representation under Article 22(5) renders a National Security Act detention order invalid.
- Whether the incidents forming the grounds of detention affect public order or merely law and order, and the relevance of that distinction to the validity of the detention.
- Whether the detaining authority’s subjective satisfaction is lawful when vital documents are not placed before it.
Legislation cited
- Code of Criminal Procedures. 161
- National Security Act, 1980s. 10, s. 13, s. 3(2)
Subjects
National Security Actpreventive detentionArticle 22(5)effective representationpublic orderlaw and orderprocedural fairnessdetention order
Judgment
STATE OF U.P.
A
v.
KAMAL KISHORE SAINI
NOVEMBER 6, 1987
[A.P. SEN AND B.C. RAY, JJ.] B
National Security Act, 1980-Detention under section 3(2)
- thereof.
..
The respondent, Kamal Kishore Saini, was detained under an
1
+--order of detention under section 3(2) of the National Security Act, 1980.
He challenged the said order of detention before the High Court under C
Article 226 of the Constitution of India. The High Court quashed the
order of detention. The State appealed to this Court by special leave.
Dismissing the appeal, the Court,
D
HELD: The order of detention is illegal and bad on the ground of
non-supply of the vital documents and materials to the detenu to enable
him to make an effective representation against the grounds or deten-
tion and as such his right of making an effective representation as
contemplated under Article 22(5) of the Constitution of India has been
infringed. Also, the non-production of the relevant materials before the E
- detaining authority for his consideration before his passing the order of
detention, renders the order of detention Invalid and illegal. [867G-H;
868A-BJ
Asha Devi v. K. Shivrai, (1979] 1 SCC 222; Gurdip Singh v.
L. Union of India, AIR 1981 SC 362; Dr. Ram Manohar Lohia v. State of
f Bihar & Ors., (1966] 1 SCR 705; Arun Ghosh v. State of West Bengal, F
(1970] 3 SCR 283 Pushkar Mukharjee v. State of West Bengal, AIR
1970 SC 352; Ashok Kumar v. Delhi Administration, [1982] 2 SCC 403,
and Guiab Mehra v. State of U.P. & Ors., 4JT 1981 (3) SS9, referred to.
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 531 of 1986. G
--+- From the Judgment and Order dated 17 .4.1986 of the Allahabad
High Court in W.P. No. 6823 of 1985.
Dalveer Bhandari for the petitioner.
H
859
860 SUPREME COURT REPORTS [1988] 1 S.C.R.
Shakeel Ahmed Syed for the Respondent.
A
The Judgment of the Court was delivered by
B.C. RAY, J. This appeal by special leave is against the judg-
ment and order passed by the High Court of Judicature at Allahabad
B in writ petition Nos. 6823 of 1985 and 6522 of 1985. The facts giving
rise to this appeal are as follows:-
c
The respondent Kamal Kishore Saini was detained under Section
3(2) of National Security Act, 1980 by an order served on him on 28th
November, 1985 on three grounds which are stated hereu~er:-
(I) That on 4th June, 19.85 one Jeet Narain Awasthi, resident of_,f.
-
Indira Nagar, Police Station Ghazipur, Lucknow lodged a First Infor- '
mation Report at Police Station Ghazipur that on the night of 4/5th
June, 1985 his younger brother Vishnu Narain Awasthi at about 20
hours had left to sleep in house No. 2040 of Indira Nagar, Lucknow
D occupied by Sri R.S. Raghuvanshi since Sri Raghuvanshi had gone out
to Jaunpur, his home town and had entrusted custody of his house to
the said Vishnu Narain Awasthi. At 11.00 in the night some persons
informed the complainant that his brother had been shot by certain
persons and when the complainant reached the spot he found Vishnu
Narain Awasthi lying in a pool of blood and he had already died. It is ''r
E alleged that on the basis of the F.I.R. on 4th June, 1985 crime No. 101
of 1985 under Section 302 of the Indian Penal Code was registered at
the Ghazipur Police Station against unknown accused. The names of
the detenus, it is said figured during investigation and the charge-sheet
has been submitted in the concerned court which is pending trial.
F (2) That on 13th June, 1985 one Baldeo Prasad Awasthi, resi-
dent of Ismailganj, Police Station Ghazipur, Lucknow lodged a First ·-f
Information Report at Police Station Alambagh, Lucknow that his
son Ram Kumar and his son-in-law, Nand Kishore had gone to meet
an accused in the District Jail where the complainant also reached at
about 1.30 p.m. but they could not meet the accused. Ram Kumar and
G Nand Kishore proceeded towards home on one rickshaw while the
other rickshaw was being occupied by the complainant. When they
reached a little distance from the Jail, near the residence of the Jail
Superintendent, at about 1.45 p.m. Rajiv Hazra and Kamal Kishore ;,.-·
Saini, the two detenus and one Anandi Shukla, said to be an accomp-
lice of one Ram Gopal, came on a scooter, stopped it and chal-
H lenged Ram Kumar, N and Ki shore and the complainant and filed at
STATE OF U.P. v. K.K. SAINI [RAY, J.] 861
them. The complainant as also Ram Kumar and Nand Kishore ran A
-y helter and skelter when the accused are said to have chased Ram
Kumar for about 200 steps and fired twice or thrice as a consequence
of which Ram Kumar fell dead on the spot and Nand Kishore as also
the rickshaw-puller and the complainant sustained injuries. On this
basis crime No. 222 of 1985 under Section 302/307 of the Indian Penal
Code was registered on 13th June 1985 at about 14.30 hours at Police B
Station Lucknow in which both the petitioners and Anandi Shukla
were named. After investigation a charge-sheet has been submitted to
the court which is pending consideration.
3. That on 16th August, 1985 at about 14.10 hours Head Const-
able 129 C.P. Bairam Pandey of the Reserve Police Lines, Lucknow
lodged a First Information Report at Police Station Qaiserbagh, Luck- C
now that on the same day he was on duty along with other police men
in the Judicial Lock-up, Collectorate, Lucknow. It was alleged that the
, complainant accompanied by other policemen on duty were bringing
back accused after their production in the court of the Chief Judicial
Magistrate, Lucknow. Both the detenus (petitioners) proceeded D
towards· an accused, Vijay Pratap Singh, whereupon Vijay Pratap
Singh, in panic tried to retract and turned back when Rajiv Hazra is
said to have given a call that it was appropriate time to finish the
enemy who was before them as a result of which both the detenus
took out their pistols and Kamal Kishore Saini, the detenu, with the
intention of k\lling Vi jay Pratap Singh fired at him which resulted in E
injuries to him and since this incident thither and an atmosphere of
--
terror spread over the area. On the basis of this F.l.R., Crime No. 450
of 1985 under Section 307 /34 of the Indian Penal Code was registered
at the Qaiserbagh Police Station on 16th August, 1985 and after
investigation, the charge-sheet has been submitted which is under
consideration. F
The other detenu Ra jiv Hazra was served with a detention order
on identical grounds by the District Magistrate, Lucknow.
The said order of detention was challenged in two writ petitions
filed before the High Court of Allahabad under Article 226 of the G
Constitution of India praying for a writ of mandamus or order or
direction in the nature of writ of habeas corpus for producing the
body of the respondent along with other respondent detenus before
the Court and for quashing of the order of detention. In the said order
of detention it has also been stated that the District Magistrate after
considering the fact that since the two detenus/petitioners had filed H
862 SUPREME COURT REPORTS (1988] 1 S.C.R.
A appli~ations for bail which were pending before the Court and for
which the detenus were likely to be released on bail, passed the
impugned order of detention after being subjectively satisfied that the
petitioners on their release from jail will participate in activities pre-
judicial to the maintenance of public order. The grounds of detention
were duly served on the detenus mentioning therein that the detenus
B may make representation to the State Government against the said
order of detention and the same would be placed before the Advisory
Board before whom the detenus would be afforded opportunity of
personal hearing.
The petitioners along with other detenus contended in the writ
C petitions that as regards the ground No. 1 the detenus were not _J...
\
-
afforded a fair and reasonable opportunity of making an effective
representation before the State Government under Section 10 of the
National Security Act {Act No. 65 of 1985) inasmuch as they had not
been supplied with the relevant documents in support of the grounds
D except the first information reports and copies of extract of charge-
sheet submitted in the two cases. It has been further submitted that the
statements recorded under Section 161 of the Code of Criminal Proce-
dure which form a part of the charge-sheet and accompanied by the
same, were not supplied to the two detenus along with the grounds. It
has been further submitted that the petitioners were not named in the 'y
E F.1.R. the basis on which their complicity came to be known, is the
material found in the course of the investigation. It has been submitted
that the detenus as such could not make an effective representation in
the absence of these relevant material documents. As regards the third
ground it has also been submitted that an application was filed by three
under-trials Rajendra .Singh, Pooran Mal and Jhamman on 8th
F October, 1985 addressed to the Judicial Magistrate, Lucknow submit-
ted to the Superintendent District Jail, Lucknow for being forwarded
to the Magistrate stating that some unknown persons had fired at Vijay
Pratap Singh and Kamal Kishore Saini and other persons names had
been implicated falsely. It has also been contended therein that in the
bail applications moved on behalf of the petitioners before the Ses-
G sions Judge. Lucknow, this fact was also mentioned. This bail applica-
tion was moved much before the order of detention which was passed
on 28th November, 1985. These relevant materials were not produced
before the detaining authority for his consideration before the passing
of the order of detention. As regards the first two grounds Nos. 1 and
2, it has been contended further that they pertain to the maintenance
H of law and order and not to public order.
STAIB OF U.P. v. K.K. SAINI (RAY, J.J 863
After hearing the learned counsel for the parties the High Court
·y of Allahabad held that so far .as ground No. I was concerned the
A
respective detenus were denied a fair and reasonable opportunity to
represent against the order of detention and the detention order thus
stood vitiated. It was also held that the incidents referred to in ground
Nos. I and 2 do not affect public order inasmuch as the reach and
effect and the potentiality of the said incidents did not disturb the even B
tempo of the life of the community, as it did not create any terror and
r~ panic in the locality. These incidents are confined to particular
- 4...
)
persons. It has also been held that relevant materials such as the appli-
cation of the three under-trials as well as the statement in the bail
application of the detenus referring to the statement of the under-trials
that the detenus had been implicated falsely were not placed before
the detaining authority and as such the order of detention passed by
the detaining authority was invalid and bad in as much as there was no
c
proper subjective satisfaction of the detaining authority due to non-
consideration of the application of the co-accused and the police
report. The order of detention was therefore, quashed by the High
Court. D
Against this order the instant appeal has been filed on special
leave. The learned counsel appearing on behalf of the State, appellant
did not question before us the validity and legality of the finding of the
High Court in so far as it relates to the non-supply of the relevant and
y vital materials, that is, the statements recorded under Section 161 of E
the Code of Criminal Procedure so far as ground No. 1 of the order of
detention is concerned, to the detenus and also of the non-placement
-- of the application made by the co-accused before the Judicial Magis-
trate to the effect that the detenus were falsely implicated in the said
case as Vijay Pratap Singh was fired at by some unknown assailants
and this fact was also mentioned in the bail application made by the F
' detenus before the Court and the police report submitted thereon. The
t-- only challenge made on behalf of the appellant is to the finding of the
High Court to the effect that the incidents referred to in ground Nos. 1
& 2 created only law and order problem and it did not affect public
order. In other words, the even tempo of the life of the community has
not at all been affected by the said incident. It is relevant to mention in G
this connection that the names of the detenus were not mentioned in
the F.LR. in respect of incident in ground No. 1 and the basis of their
-....,. complicity came to be known only in the material found in the course
/ of the investigation. The detenus were supplied only with the copy of
the FJ.R and also extract of the charge-sheet and not the statements
under Section 161 of the Code of Criminal Procedure. It is undisputed H
864 SUPREME COURT REPORTS [ 1988] I S.C.R.
•A that the charge-sheet was subsequently submitted in the Court and the
respondents were furnished with the copies of the statements recorded
under Section 161 of Cr. P.C. long after 'the passing of the order of
·detention communicating the grounds of detention. Similarly, with
· ·regard to ground No. 3, the application of the co-accused as well as the
statement made in the bail application filed on behalf of the detenus
B alleging that they had been falsely implicated in the same case and the
police report thereon, were not produced before the detaining autho-
rity before passing of the detention order. The High Court, therefore,
was ju.stilled in holding that the assertion made in the return that even
if the material had been ·placed before the detaining authority, he
would. not have changed the subjective satisfaction as this has never r-"
been accepted as a correct preposition of law. It is incumbent to place
C all the vital materials before the detaining authority to enable him to
come to a subjective satisfaction as to the passing of the order of
detention as mandatorily required under the Act. This finding of the
High Court is quite in accordance with the decision of this Court in the
case of Asha Devi v. K. Shivraj, [1979] I SCC 222 and Gurdip Singh v.
D Union of India., AIR 1981 (SC)362.
I
The High Court. has found that the incidents mentioned in
ground Nos. I and 2 are confined to law and order problem and not
public order· inasmuch as these incidents concerned particular indi-
viduals and do not create any terror or panic in the locality affecting
E .. the even tempo of the life of the community. This Court in the case of
Dr. Ram Manohar.Lohia v. State of Bihar and Ors., [!966] 1 SCR 709
has observed:- .
"The contravention of law always affects order but before
it can be said to affect public order it must affect the com-
munity or the public at large. There are three concepts.....,..
. according to the learned Judge (Hidayatullah, J) i.e. "law r
and c.rder", "public order" and "security of the State". It '
has been observed that to appreciate the scope and extent
. of each of them one sh~uld imagine three concentric cir-
cles. The largest of them represented law and order, next
represented public order and the smallest represented the
security of the State. An act might affect law and order but
not public order just as an act might affect public order but
not the security of the State". . ..
'Similar observation has been made in the case of Arun Ghosh v.
· · State of West Bengal, [ 1970] 3 SCR 288 The observation is to the
H following effect:-
STATE OF U.P. v. K.K. SAINI [RAY, J.] 865
"Public order is the even tempo of the life of the commu-
nity taking the country as a whole or even a specified loca- A
lity. 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 tranquility. It is the degree of disturbance and its
effect upon the life of the community in a locality which B
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
I of town where there is communal tension. A man stabs a
member of the other community. This is an ~ct of a very
~ different sort. Its implications are deeper and it affects the
C
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 law
and order and to subvert the public order. An act by itself D
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."
In the case of Pushkar Mukherjee v. State of West Bengal, AIR
1970 (SC) 852 it has been observed by this Court:- E
- "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 demarcation between serious and F
aggravated forms of disorder which directly affect the
community or injure the public interest and the relatively
minor breaches of peace of a purely local significance
which primarily injure specific individuals and only in a
secondary sense public interest. A mere disturbance of law
and order leading to disorder is thus not necessarily suffi- G
cient for action under the Preventive Detention Act but a
disturbance which will affect public order comes within the
scope of the Act. A District Magistrate is therefore entitled
to take action under Section 3(1) of the Act to prevent
subversion of public order but not in aid of maintenance of
law and order under ordinary circumstances." H
866 SUPREME COURT REPORTS [!988] I S.C.R.
A In the case of Ashok Kumar v. Delhi Administration, [ 1982] 2 y ..
SCC 403 to which one of us was a party, this Court while dealing with
the distinction between "Public order" and "law and order" observed
that:
"The true distinction between the areas of 'Public order'
8 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 circum-
stances might cause different reactions. In one case it might I
c affect specific individuals only and therefore touch the
problem of law and order. The act by itself therefore is not
~
determinant of its own gravity. 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
D order.. "
Considering all these decisions we have held in the case of Guiab
Mehra v. State of U.f. & Ors., 4 JT 1987(3) 559 (judgment of th.is case
was pronounced on September 15, 1987) that whether an act relates to
law and order or to public order depends upon the effecl of the act on
E the life of the community or in other words the reach and effect and
potentiality of the act if so put as to disturb or dislocate the even tempo
of the life of the community, it will be an act which will affect public
order.
In the instant case, the criminal acts referred in the ground No. 1
F' are to the effect that on 4th June, 1985 at about 11 P.M. some persons
informed the complainant that his brother has been shot by some
persons and when complainant reached the spot he fot>nd his brother
Vishnu Narain Awasthi lying in the pool of blood and he had already
died. Crime case No. 109 of 1985 under Section 302 I.P.C. was re-
gistered at Ghazipur Police Station. This incident is confined to indi-
0 vidual persons and it is private crime as distinct from public crime. It
does not in any way affect the even tempo of the life of the community
nor does it affect the peace and tranquility of people of that particular
·'
locality where the crime has been committed. So far as the second
crime referred to in ground No. 2 is concerned, it is to the effect that
the complainant went to Lucknow Jail along with his son, Ram Kumar
H and son-in-law, Nand Kishore to see an accused in the District Jail.
STAIB OF U.P. v. K.K. SAINI [RAY, J.J 867
They could not meet the ~ccused. Ram Kumar and Nand Kishore A
proceeded towards home in one rickshaw while the complainant was
coming by another rickshaw. When they reached a little distance from
the Jail near the residence of the Jail Superintendent at about 1.45
p.m. the detenus Rajiv Hazra and Kamal Kishore Saini along with
another one Anandi Sukhla said to be the accomplice of one Ram
Gopal, come on a scooter, stopped it and challenge Ram Kumar and B
Nand Kishore and the complainant. They fired at them. The comp-
lainant, Ram Kumar and Nand Kishore ran helter and skelter. The
accused chased Ram Kumar and fired twice or thrice and in conse-
quence of it Ram Kumar fell dead on the spot and Nand Kishore and
the rickshaw-puller sustained injuries. On these basis crime case
No. 222 of 1985 under Section 302/307 I.P.C. was registered on 13th
June, 1985. This firing was made in a public street during the day time. C
This incident does affect public order as its reach and impact is to
disturb public tranquility and it affects the even tempo of the life of the
people in the locality where the incident is alleged to have occurred.
Therefore, the finding of the High Court with regard to this incident
that it did not disturb in any way the public order is not legal and valid. D
As regards the incident referred to in ground No. 3, that is, the
complaint regarding the firing by Kamal Kishore Saini, the detenu on
Vijay Pratap Singh; an under-trial prisoner, in the court compound
while he was being taken back from the court by the complainant and
y other policemen on duty, undoubtedly affects public order inasmuch E
as the firing of shot in the court compound created panic and terror in
the minds of persons present there and thus it affects the even tempo
of the life of the community in that place. This incident certainly
affects public order and not merely law and order inasmuch as the
reach, effect and potentiality of the act purports to disturb the even
tempo of the life of the community i.e. the people of that area. F
The impugned order of detention was clamped on 28th Novem-
ber, 1985 and the period of one year as provided in Section 13 of the
National Security Act has also expired. Moreover, we have alread_y
upheld the finding of the High Court that the order of deten!lon is
illegal and bad for non-supply of vital docu~ents to the detenus to G
enable them to make an effective representa!lon agamst the grounds
of detention and as such their right to make an effective representation
as contemplated under Article 22(5) of the Constitution of India has
been infringed rendering the impugned order as . illegal and bad.
Furthermore, the non-production of relevant ma~en~ls 1.e. the state- H
ment of the under-trial prisoners in their apphcatton m the court that
868 SUPREME COURT REPORTS [1988] I S.C.R.
A the detenus had been falsely implicated in the crime case No. 450 of
1985 under section 307/34 I.P.C. as mentioned in ground No. 3 and
also the statement to that effect in the bail petition and the police
report thereon, before the detaining authority for his consideration
before passing the order of detention, renders the order of oeiention
invalid and illegal.
B
For the reasons aforesaid we dismiss the appeal.
S.L. Appeal dismissed.
y
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