Holding

The order of detention under Section 12(2) is invalid because the petitioner does not satisfy the definition of "anti‑social element"; the petition is allowed and the detention is quashed.

Summary

Vijay Narain Singh, who had been granted bail in a criminal trial for murder and related offences, was detained under Section 12(2) of the Bihar Control of Crimes Act, 1981 on the ground that he was an "anti‑social element". The State relied on three incidents (1975, 1982 and the pending murder case) to justify detention. The Supreme Court examined the statutory definition of "anti‑social element" in Section 2(d) and the meaning of "habitually", holding that the incidents were not of a repetitive nature, were remote in time and of different categories, and therefore did not satisfy the definition. Consequently, the detention order was not within the scope of Section 12(2) and violated Article 22(5) of the Constitution. The Court quashed the order, set the petitioner at liberty and allowed the writ petition.

Issues considered

The petitioner qualifies as an "anti‑social element" under Section 2(d) of the Bihar Control of Crimes Act, 1981.
Whether the grounds of detention are remote and lack a proximate nexus, rendering the order violative of Article 22(5) of the Constitution.
Whether preventive detention can be imposed on a person who is on bail for the same charge.
The proper interpretation of the term "habitually" in the statutory definition of anti‑social element.
Whether the order of detention under Section 12(2) is valid in the facts of the case.

Legislation cited

Bihar Control of Crimes Act, 1981s. 12(2), s. 2(d)
Constitution of Indias. Article 22(5)
Indian Penal Code, 1860s. 120B, s. 144, s. 302, s. 386, s. 448, s. 511

Subjects

preventive detentionanti‑social elementhabituallyBihar Control of Crimes ActArticle 22bailjudicial reviewconstitutional law

Judgment

• 435

VIJAY NARAIN SINGH A
v.
STATE OF BIHAR & ORS
April 12, 1984
>
,- .• [O. CI!INNAPPA REDDY,, A.P. SEN AND E.S.
VENKATARAMIAI!, JJ.]
0

B

. Bihar Control of Crimes Act 1981-Section 12 read .with section 2
(d). For preventive detention under section 12 authorities mu1t be ~atisfied
that the.person to be detained is anti-social element as defined in section
2 (d).
c
• Bihar Control ofC,'imes Act, 1981-Sectlon 2 (d)- Definition of 'antl·
social element' -Interpretation of expression 'habitual/I in sub-clause (j),
(Ii) and (iv)-M_eanlng of. ·

[titerpretatlon of statutes-Rule o~-Law of pre11entive detention must
be strictly construed. D

Practice-When· ,,erson enlarged on bail by competent criminal court,
great caution should be exercised in scrutinising validity of preventive
detention order which is based on ihe 'Jery ~atne charge which is to be tried
by cr 1mlnal court.
E
· '.ff'ords and Phrases-Expression 'habitually'-Meaning ~!•

The petititiner, /\'ho Was facing a Sessions trial for Offences under
section 302 read with sections 120B, 386 and 5ll of the Indian Penal
Code, \Vas allowed to be enlarged on bail by the l-Iigh Court. But before
the retitloner was released, the District M;lgistrate passed an order on F
August 16, 1983 under section -12 (2) of the Bihar Control of Crimes. Act
0

1981 for detention of the petitioner, in ord er to prevent him from acting
· in any manner prejudicia'l to the maintenance of public order. The grounds
of deteo\ion supplied to tbe petitioner related to the incidents which took
place in 1975 and 1982 and als·o the incident which gave rise to the
above-mentioned trial. The petitioner challenged the order· of detention
bef\'re ihe High Court under Article 22() of the ContsitutiOn. The High G
Court dismissed the petition on a technical ground. Hence this petition
under Article. 32 of tho Constitution. The petitioner contended : (1) lhat
the i1npugned order ot detention was void uiider Article 22 ($) of the
Constitution as one o·r the grounds was too remote and not proxima.te in
point of time and had therefore no rational connection {or the subjective
satisfactiotl of the District Magistrate under section 12 (2) of the Act, H
ap<l (il ttiat the imp11gned order of detention was mala fide and consli·
436 SUpR~NIE COURT REPORTS [198413 S.C.\l.
.,
A toted a ftagf.ant abuse of ~ower on the part of the District Magistrate as
it was meant to subvert judicial proCess by trying to circumvent the order
passed by the High Court .enlarging .th·e petitioner on bail.

AII owing· the petition by majority,

HELD : (Per Ven~ataramiah and Chinnappa Reddy, JJ.)
B
The law of preventive detention is a. )lard law and therefore it !<.hould
be strictly construedw Care should ~e taken that the· liberty of a persqn
is not jeopardised· unless his case falls squarely within the .four corners
of the relevant law. The Ja_w of J:l'reventive d1:tention shOuld.not be used
merely ·to clip the wings of an accused who is -involved in a criminal
0

' prosecution. It is not intended for the purpose of keeping a man· under
c detention when _under ordi.Iiary criminal Jaw it may not ,be possible to
resist the is.sue of orders of baiJ, unless the· 1naterial .available is si.ich as
would satisfy the requiremelits of-the legal provisions authorising· such
detention. When a ,Person is_ enlarged on b::t.il by a competent Criminal
court, great caution sh_ould be exercised in scrutinising tlte validity of an.
order or preventive detention which is based on the very same charge •
which is to be tried by the criminal court. [459C·D)
·o
S~tion 12 of the Bihar Control of Crimes Act, 1981 makes pro·
vision for the detention of an anti· social elemei:J.t. The detaining autho-
rity should, therefore, be satisfied that ·the person against whom an order
is made under section 12" of the Act is an-.aati-social element as defined
in section 2 (d) of the Act. The two sub-clauses of section 2 (d) which are
relevant for the purposes of this case are Sub-clause {i) and sub.clause
- (iv). Unde; sub-clause (i) a person who either by himself or as a melnber
-of or leader of a. gang habitually comtrlits or attempt; to.commit or abets
the commi.ssion of Offences punishable und~r Chapter XVI dealing· with .
.'
offences affecting the human body or Chapter XVII dealing with. offences
against property, of the ladian Peria! Code is considered 'to be an anti ..
social element. Under sub-clause (iv) a person who has been habitually
passing indecent remarks to, or teasing women or girls, i's an anti-social
F element; Io b'oth these sub.clauses, the wofd 'babitually..,_s used. The
·expression 'habitually' ri'1~aos 'IeSpeatedly' or 'persistently'. It implies a
·thread of continuity stringing toiether similar repetitive acts. RepeatedJ
persJstent and similar, but not isolated, individrial and dis-similar acts a·re
necessary to justify an infereoi;;e of habit. It _connotes frequent commiS-sion
of acts or omissions of the same kind referred. to in each of the said ~ub
~Iau'Ses or an aggregate of similar acts or on1issions. Whereas under
G sub-clause· (iii) :>r sub-clause (v) of section 2 (d) ·a. sing-10 act or omission
referred to in tbe.m may be enough to treat the pCrson concerned as ai:J.
ianti-social element', in the case of sub·ciause (i), sub~clause (ii) or sub-
claUse {iv), there should be a repetition of acts ur omissions of, the· s~me
kind referred to in sub-clause_ (i), sub-clause (ii) or in sub-clause (iv) by
the person concerned to tre_at him aS an 'anti-social.element,. This appears·
to be clear from the use of the word 'habitually' separately in sub-clause
H (i), sub-clause (ii) and sub-clause (iv) of .-ection i (d) and not in sub-
clauses (iii) and (v).-of section 2 (d). I~ the acts or omissions in question
«r~ nqt qf the . s«111e ~ind or or even if ther are of the same llin.d wbeq
l· . v. N•. SINGH v. BIHAR (Sen, J.) 437
• .
they are committed with a long interval of tin1e bel\veen them th~y cannot
be treafed as habitual ones. [457B-458C] A

lo th~ present case the District Magistrate has relied on three inci ..
dents: to hold that the P.etitioner -is an anti·soclal element. They are:-
... (o) that on April 15, 19T5 the petitioner alongwith his associates had
.. gone to the shop of a cloth dealer ·of Bhagalpur Town armed with an
Unlicensed pist01 and had forcibiy demanded subscription at the point of
gun and (iif ibat on June. 11i1s, ~82 the petitioner was found te.asing B
and mhbehaving with femal~s retu~ning from a cinema ball. The third
grouad is the. crtminal case now pending against the petitioner in the
Sessions cOurt. The first incident is of 1he year 1975. It js not stated
· hciw the criminal ca·~~ filed on the bc:sis of that ch_arge ead~d. ·The i:iex't
·incident relates to the yeaf J982." The detaining authority does not state
how the criminal case filed in that connection terminated. rr they - have
both ended in favour of the petitioner finding him clearly not guiltyJ
they cannot certainly. constitute acts or omissions -habitually committed
·by the Petifioncr Moreover. the said t~o incidents are Of different
kinds altogether. Whereas the first one may fall under sub-clause (i) of
· section 2 (d) of the ActJ the second one falls under sub-clause Uv) thereof.
They are, even if true, not repetitions of acts- or Omissions of the same
kind. The third ground which is based on the pending Sessions case is
no doubt of ·the nature of acts or onihsioris referred to in sub·clause (i) of D
secttion 2 (d) but_ the interval between the first ground which falls under
this sub-cla'use and _this one is nearly sight years and cannot, therefore,
make the petitioner .a habitual offender of the type falling under srib-
clause (i) of section 2 (d). Therefore, it is not possible to hold tbat the
·petitioner can be called an tanti~social element• as defined by section 2 (d)
of the Act. The order of detention impugned in this case therefore, could
not h.. ve been.passed under section 12 (2} of the Act which authorises E.
the.detection of anti-social elements only. [458D·459D)

(Per Chinnappa Reddy J. _concurring)

I do not agree with the view of' my brother Sen J. tb'at 'those who
are respcn,ib'e for the natioral sc·curi1y or for the maintenance of public F
• order must be the- sole judges of· what' the nationa I security or public
·Order requires.' It is too perilous a proposition. Our Constitution does
vot g:ve a carta·blanche to· any organ of the State to be the sole arbit61'
in such matters. Preve.Diive detention is considered so iaea:cherous and
such en anathema to civilized rhouglit and- democratic polity that - safe.
guards against dndue exercise of the power to detain withOut trial,- have
. been built into the Constitution itself and incorporate.d as Funnamental G
Rights. 'there are two sentinels, one at either end. The Legislature is
required to make the law circumscribi ig the limits within which persons
may be preventively detained :fnd providing for the safeguards prescrfbed·
by the-Coristitution and the courts arc required to examine, when deman·
ded, whether there has been any exces'sive detention, that 'is, whether the
lin1its set by the Constitution and the legislature have been transgressed.
Preventive detention is not beyond judicial scrutiny, While adequacy or ff
sufficiency may not be a ground. of chf'llenge, relevancy and ProximHy are

•
438· SUPREME COURT REPORTS (1984) 3 S.C.R.

A tertainly grounds of ·challenge. Nor is it for the court to put itself in
the po~ition of the detaining authority and to satisfy itself that the un ·
tested facts reveal a path of crime. [440E·441B]

· I am of the view that the deCision in Kamalkar Prasad ·Chtiturvedi's
case and the host of earlier cases are not disliQguishable. This Court
B has always taken the view 1bat re·moteness in point of time niakes a
groun<1 of detention irreleyant. [441D] ·
•
Shibban Lal Saksena v. State ofUttar Pradeih ·& Ors., [19S4] SCR
418 ·and Kamlakar Prasad Chaturvedi v. State of Matbzya Pradesh & Anr.,
[1983] 4 S,CC 433 referred to •

c (Per Sen J, dissenting) ·

On the facts set out in ·the grounds "Of detention the petitioner
answers the description of an anti·socia1 element as define.a in s. 2' (d) of
'the Act. [444F]

D ~ The wrird rhabitually, connotes some degree of frequency and c~nti•
nuity .. 'Habitually' requires a contiouance and perinanericQ of sonie
tendency. something that was develOped into a propensity, that is, preseq,t
from day-to·day. A person is a hab-it'ual crimi'nal who by fo~ce of habit
or inward disposition, inherent or latent in h_im,. has grown accustomed to
Jead a 1ife of criine. It is the force of. habit inherent or latent in an
individual· with a criminal instinct, with a criminal disposition of mind,
E tµat ma.kes. him dangerous to the society ii:i general. Io simple !an_guage
.
the word. 'habitually' means 'by force uf habit'. [444G·445E]

Stroud's Judicial.Dictionary, 4th end .. vol. 2, p. 1204 and Shorter
Oxford English Dictionary; vol. !. p. 910<referred to.

F It is not neces,ary that because of the_ word 'habitual1y' in sub-cl. (i),
sub·cL (H) or sub-cl. (iv), there ~hould be a repetition of Samei class of
acts or omissions referred to in sub-c1. (i);sub-cJ •. Cii) o"r in sub~cl •. (iv)
by the person concerned before ·he can be treated to be Sn aot.i-social
element and detained bf the District Magistrate under s. 12 (2\ of the
Act.- ."It is not required that the .nature or chaiacter of the .anti~social
0

acts should be the same or similar. There may be commission or attempt
G to ·commit or abetment of diverse nature of facts Constituting offences
under Chapter XVI or Chapter XVII o(the Indian Penal Code ... What has
to be 'repetitive' are the anti~social acts. [447B-C]
•
,The operation of s. 12 (2) of the Act cannot be· confined against
habitual criminals who have a certain number of prior convictions for
H offences of the 'character' specified. The definition of 'anti-social elem1X1t'
in s. 2 {d) of the Act nowhere requires that the.re should be a number of
prior <;Qpyii;\i<>ns of. person in ·respect of, offence~ of a particular ty~e.
•
~- N. SING!{ v. B!l!AR (Sen, ·i.) 43~
It is not·correct to say that merely because there was an· acquittal A
of a person, the detaining authority c.1.nnot take the ac·t con1plained of
leading to his trial into consideration. It may be that the trial of a
dangerous ·p_erson may end in an acquittal for paucity qf evidence due to
unwillingness of witnesses to Come.forward and depose against him out
of fright. If a person with criminal teadeacies consistently or persistently
or repeated'y commits or attempts to commit or abets the commission of
Offences un_der Chapter XVI aealing with offences affecting human body or B
Chapter XVI dealing with offences against property of t4e Indian Penal
Code, there is no reason why he should not be consid_ered tO be an 'anti ..
• social element'.• [446G-H]
J
Those who are responsible for the national ~ecurity or for the main··
tenance of public order must be the sole judges ·of what the national
security or-pµblic order requires. Sufficiency of the . grounds is not for
the court but for the detaining authority for the formation of his sub-
jective satisfaction that the detention of a person is necessary with a view
to preventing him ·rrom acting in any m.anner prejudicial to the mainte-
nance of public order. The sufficiency of ·the grouods upon which the
-~' Subjective "sitisfaction of the detaining authority i;;; based, provided they
have a rational probat"i~. value and are not extraneous · to the scOpe or
pllrpose of the legish,ltive provision, cannot be challenged in the court D
accept on the ground of mctla fides. It is not "rOr the court to examine
whether the grounds upon which the detention order is- based are good or
bild nor can·it attempt to assess in what manner and to what extent each
Or the grounds ·operated on the inind of the appropriate luthority and
contributed to the creation of .the satisfacti-on. on thci basis of which the
detention order was based. [447D-4'49E)
E
Kes/w; Ta/pade v. The Kini·Emperor, [1943] FCR 88, refered to

Shibban Lal Saksena v. State of Urtar Pradesh & Ors., [1954] SCR
318 a,nd Kamlakat _Prasad Chaturvedi v. State of Madhya Pradesh & Anr.,
[1983] 4 sec 443, distinguished • • •
F
The past conduct or the antecedent history of a person can pf"operly
be taken into account in making order of detention. It is usual1y from prior
events showing tendencies or inclinations of a ""man that an inference can
be drawn whether he is likely, in the future, to act in a manner prejudicial
to the maintenance of public order. [451B]

Merely because there is pending prosecut Ion_ and thC( accuse'd is in (j
jail, that is no impediment for his Peteatio~ if the detaining authority is
satisfied that his· being enlarged on bail would be prejudicial to the main-
tenance of public order. [451D]

Fitrat Raza Khan v. State of U. P. & Ors., (1982] 2 SCC 449, Alijan
Mian v. District Magistrate, Dhtinbad & Ors.,. [1983] 3 SCC 301 and Ral·
H
suddln Babu Tamchi v. State of [}. P. & Anr., AIR [1984] SC 46,
referred· to.
,-

Mo
. .
SUPREME COUR'!' REPORTS • [l984] 3 S.C. R..

A (Per Sen & Chinnappa Reddy; JJ;)

It has· always been the view of this ·court that the .detention of
individuals without trial for any length of time, however short, is wholly
inconsistent with_ th·e basii;; .ideas·of our ..Govef.Dment and the gravity of
the evil to the community resulting from anti.social a-ctivities c,an never.
furnish an adequate reasJn for inVading the personal liberty of the citizen
B· excep~ in acc.ordance with'the procedure establish.e~ by law .... [t41CJ

ORIGINAL JURISDICTION Writ Petition (Criminal) No. 47 of 1984.

(Under article 32 of the Con1titution of India}
R.K. Garg and U.S. Parsad for the Appellant,
c
S.N. Jha for the Respondent.

The following Judgements were delivered

CHINNAPPA REDDY, J. I entirely agree with my brother
D . Venkataramiah, J. both on the. question of interpretation of the pro·
visiOns of the Bihar Control of Crimes Act, 1981 and ·on the question
of the effect of the order of grant of bail in the criminal proceeding
arising out of the incident constituting one of the grounds of deten- ·
tion. ·It is 1eally unnecessary for me to add anything to what has
been said by Venkataramish, J., but my brother Sen, J. has taken a
E ·· different view and out of respect to him, I propose to add a few Jines··
I am unable to agree with my brother Sen, J. on several.of the view
expressed by him i11 his dissent. In particular, I do not agree with
the. view that 'those, who are responsible for the national security or ·
' for the maintenance of p~blic order must be the sole judges of what
· the national security or public order. requires.' It is too perilous a
F •proposition: Our' Constitutio11 does not give a carta blanche. to any
organ ofthe State to be the sole arbiter in such matters. Preventive
detention is considered .so. treacherous and such an anathem:a to
civilized· thought and democratic p~lity that safe~uards against
undue exercise of the power to detain without trial, h~ve bee_n built
•G into the Constitution. itself and incorporated as Fundamental Rights.
There are two se~tinels, one at either end. The legislature is rquir· ·
ed to make the law circumscribing the limit.s within which persons
may be preventively detained ·and providing for the safeguards
prescribed by the Co.nstitution and the courts are rec{Uired to exa-.
mine, when demanded, whether there has been any excessive deten·
H
tion, that is, whether the limits ·set by the Constitution and the
legislature have been transgressed. Preventive detention is notbe·
1, v. N. SING!! v. Bll!AR. (Sen, J.) 4H
yond judicial scrutiny. while adequacy or sufficiency may not be a A
ground of challeug:, relevancy and proximity are certainly grounds
of chaUenge. Nor is it for the court to pnt itself in the position of
the det3ining authority and, to satisfy itself that the untested facts
reveal a path of crime .. I agree with my brother Sen, J. when he
says, "It has ·always been the view of this Court that the detention ·
of individuals without trials for any length 9f time, however, short, B
is wholly inconsistent with the basic ideas of our Goverment and
the gravity of the evil to the community resnlting from anfrsocial
! activities can never furnish an adequate reason for invading the
personal liberty of the citizen except in accordance with t4e pro-
cedure established by la'Y"· · ·
0
I am of the view that the decision in Kam!akar Pra.oad
Chaturvedi's( 1> case and the host of· earlier cases are not distinguish-
able. This Court has always taken the view that remotenessi!l point
·of time makes a ground of.detention irrelevant. In Fitrat Raza
Khanis( 2l c~se, the two incidents were not s·eparated by any great D
length of time. On the other hand, they were bound by a strong
bond of infl~mmable communal violence.

I agree
. with all thllt has been said. by my brother .
Venkataramiah, J. and concur with him nnd direct the detenu to be
set at liberty forthwith. •

•
S_EN, J. I have had the benefit of reading the opinion prepared
by my learned brother Venkataramiah, J. and it is my misfortune
that I cannot subscribe to the views expressed by my learned
brethren. I would like to give my reasons for tile dissent. P

Although the petitioner claims to be a student leader and has
taken his degree in Master of Arts in Sociology in the year 1982
and at present is a student of Law in the Bhagalpur Law College,
and asserts that at one !lme, in the year · 1980:81, he was elected as
the Pressident of the Post-Graduate Department of the Bhagalpur 0
University and also selected as a·Senator, the facts emerging from
the grounds of detention clearly show that he has taken recourse
to a life of crime. The petitioner applies for a writ -0f habeas .
corpus for quashing an order· of detention dated August 16, 1983
....
(I) [1983J 4 sec 443,
(2) [1982J 2 sec 449.
442 sUPREMa COURT RHPORTS ' [1984} 3 S.<?.R•

A passed by· the District Maghtrate, Bhagalpur on being satisfied
0

that his detention was necessary with a view to preventing him
'from acting ·in ·any manner prejudicial. to the maint01unc1 of
public ord,er'. The facts have been set out in t!ie'majority opinion
and all that is necessary is to· mention the horrendous incident
which is the direct and proximate cause of ihe impugned order of
- .B detention. •

It appears that there was a gruesome murder of two young
sons of Kashinath Bajoria, owner of Bajoria petrol pump of
Bhagalpur, on April 20, 1983. In fhe coures of imestigation by
the police ittranspired that they were kidnapped from the petrol
pump on the earlier day i.e. on April 19, 1983 and the petitioner
Vijay Narain Singh demanded a ransom of Rs. 50,000 from the
father of the victims, The demand for ransom ·having not been.
fulfilled, the two boys we-re done to death .brutally and their dead
bodies were thrown at a place near M;ount Assis School and Zila
Scho.ol and ~ere discovered the next morning. On~ the. basis of
D first information report a case was registeJ'<<d a,t Bhagalpur Kotwali
(Police Case No. 281 dated April 20, :1983) un" er ss. 364,. 302
and 201, all read withs. 34 ands. 120B of the Ind:al'IPenal Code,
1860 against the . petitioner Vijay Na;ain Singh, his brot~e.r
Dhanonjoy Singh, one Bimlesh Mishra and two U!).known 11ccl1l>ed.
The petitio.ner along with his co-accused.has. been co.mmitted to
E the Court of Sessions to stand his trial in Sessions Case No. 348
of ·1983 aud charges have been framed under s. 302 read with
s. 34/l20B, 386 and 511 of the Indian Penal Code and tjie case •
was set down for evidence on February 27, 198,4. A learned
Single Judg~ of tile Patna.High Court by his or\ier dat¢ August
9, 1983 appears to have directed that the. petitioner be, enlarged on
F bail of Rs. 10,000 with two sureties of the like, iunountto the
satfsfaction of the ChiQf Judicial Magistrate, Bhagalpur. •The
Districl Magistrate, Bhagalpur on being. satisfied that his deten-
tion was necessary witfi a view to preventing him from acting 'in
any manner prejudicial to the maintenance of public order, passed
the impugned order of detention on August 16, 1983 before the
:~ petitioner could be released on bail. Bu~.the petitioner moved a·
' '
petition in the Patna High Court for grant of a writ of ~beas
corpus while he was still in jail' challenging the.· impugned· order
of detention. When the matter came up for hearing before the
High Codrt ·on October 5, 1983, the leiirned Judges adverted to,
the counter-affidavit filed on behalf of the State that the impug.ned
order of ·detention was prepared in advance for. serv.ice on th.~
petitioner when ~e comes out .of jail on the strength of the bail
v. N. S\NGH v. BIHAR (Sen, i.)
order issued by the High Court but by mistake the three copies of
the order. imtead of being. sent to the Disirict Magistrate's office
for service were wrongly delivered at the Central Jail, Bhagalpur.
The learned Judges ,accordingly .by their order of .ewn date
dismissed the writ petition holding that they were satisfied· that
the petitioner was not in detention under the impµ~ned detention
order. They however observed that if and when the petitioner
was served a copy of the detention order and placed underaeten·
tion in prison, he could fib a fresh petition for a writ of habeas
corpus. In stead of moving the High Court, the petitioner has
filed this petition under Art. 32 of the Constitution before this
CoutJ. The order of detention is in two parts, the first of which
lays a factual basis for making the order on the ground that the c
petitioner is an anti'.social element. The .second part of the
. impugned order is styled as grounds. But it would be seen· that
the grounds mentioned therein are one and the same .viz. his
detention was· necessary with a view to preventing him 'from
acting in any manner prejudicial to the maintenance of' public
order'. ,,,. D
At the hearing, learned couhsel for the petitioner advanced no
submiss10n that the petitioner was not an 'anti-social element'
within the meaning of s: 12 (21 o the Bihar Control of
Crimes Act, 1981 but rested himself content by advancing a two-
fold submission, namely: (l) The impugned order of detention
E
passed by the District Magistraie, Bhagalpur under s. 12(2) of the
Act must be held to be void under Art. 22( 5). of the Constitution
as one of the grounds was too remote and not proxil)late in point
of time and had therefore no rattonal connection for the subjective
satisfaction of the District Magistrates. 12(2) of the Act. He relied
upon the principles laid down by this Court h Shibban Lal
Saksena v. State of Uttar Pradesh & Ors. (l} followed in serveal I•
siibsequent cases, apd particularly on the majority decision in the .
recent case of Kam/akar Prasad Chaturvedi v. State of Madhya .
.;>· Pradesh & Anr( 2 And The impugned order of detention was
'ma/a fide and constitutes a flagrant abuse of power on the part of '
• the District Magistrate as it is meant to subvert the judicial '
G
process by trying to ·circumvent the order p11ssed by the High
Court enlarging the petitioner on bail. There is, in my opinion,.
no substance in any of these contentions. but before. I deal with'
them I must touch upon the question raised in the majority .
opinion.
H
(I) {1954] S.C.R. 418
(2) [l 983] s.c.c. 443.

•
'

444 SUPREME COi.JJ\T REPORTS [1984) 3 s.c.P..

A Inasmuch as the District Magistrate has chosen to take
recourse t.o s. 12(2) of the Act which is designed to make special
provisions for con'trol and suppression of anti-social elements
with a vll!w to maintenance of ·public order, the question at once
arises : Whether the petitioner answers the description of an 'anti-
social. element' as defined ill s. 2(d) of the Act. 'Anti-social
.B :
· elemeJlt' as defined in s. 2{d) means-

"2(d) Anti-social efement" means a person who is-

(i) either by himself or as a member of or lead~r of a. gang,
habitually commits, or attempts to commit or abets the
c . the commission of offences, punishable under Chapter
XVI or Chapter XVII of th.e Indian Penal Code; or

· (ii) habitually or abets the commission· of offences under
the Suppression ·of Immoral Traffic in women & Girls
· Act, 1956; or
D
(iii) who by words· or otherwise promotes or attempts to
. promote on grounds of religiop, race, language, caste
or community or any other grounds. whatsoever ,.feelings
of enmity .or .hatred between different religions, racial
or language groups of caste~ or communities; or ·
E
(iv) has been found habitually passing indecent remarks to
-0r teasing women -0r girls; or

(v) who .has been convicted of an offence under ss 25, 26,
27, 28 or 29 of the Arms Act, 1959."
F
There is no reasonable do.ibt that on t~e facts set out in the
. grounds of detention the petitioner answers the description of an
auti·social element; but the suggestion in th.at he is not to be
·treated as one under s. 12(2) of the Act because .the definition. of
'anti·§ocial element' in S', 2(dJ of the Act is too nat·row to inolude
it. The word 'habitually' connotes some degree of frequency
G
and continuity. 'Habitually' . require§ a continuance and per-
. manence of some tendency, something that has developed into
a propensity, that is, present from day-locday; Stroud's Judicial
Dictionary, 4th edn,, vol. 2, p. 1204.

My learned brother Venkataramiah, J. is inclined to give a
restricted meaning to the word 'habitually' as· denoting 'repetitive'
v. N. SlNGI! v. BiHAR (Sen, J.) 445
and he is of the view that no order of detention under s. 12(2) A
of the Act could be made on the basis of a 'single instance', as a
single act cannot be said to be forming the habit of the person.
That is to say, the act complained of must be repeated more ihan
once and be inherent in his nature Further, he is inclined to
think that section under s. 12(2) of the Act can only b~ taken
in' respect of persons against whom there are verdicts of guilt B
after the conclusion of trials. According to him, merely on the
basis of institution of criminal cases a person cannot be leb.elled
as an anti-social element. I find considrnble difficulty ln subscri-
bing to either of his views.

'According to its ordinary meaning, the word 'habitual' as C
given irt Shorter Oxford English Dictionary, vol. I, p. 910 is :
"A. adj (1) Belonging to the habit or inward disposi-
• tion, inherent qr latent in the mental constitution;

(2) of the nature of a habit; fixed by habit; constantly
D
repeated, customary.

B. A habitual criminal, drunkard, etc."

A .person is a -habitual criminal who by force of .. habit or m-
ward disposi<ion, inherent or latent"in him, has grown ac.customed
to lead a life of crime.. It is the force of habit inherent or latent E
in an individual with a criminal instinct, with a criminal' disposi-
• tion of minJ, that makes him dangerous to the society in genera] •
In strengthen language the word 'habitually' means 'by force of
habit'. The Act appears tO' be bas~d on Prevention of Crime Act
1908 (c-59). By Prevention of Crime Act, as amende\I by the
Indictments Act, 1915, a person after three previous convi~tions, F
after attaining sixteen years of age could, with the consent of the
Director of Public Pros,cution in certain cases, be charged with
being a habitual criminal and, if the charge was established, he
could, in addition to a p1,mishment -0f p·enal serviiude, in respect
of crime for which he bas been so ·convicted, receive a further
sentence of-not less than five years or more than 10 years, called G
a sentence of preventive ·detention. Upon this question of a man'; •
leading .·persistently a dishonest or criminal life, :where there has
been a considerable lapse of time between a man's last conviction
and the. commission of the offence which forms rhe subject of the
primary indictment at the trial, n.otice ·containing particulars must
H
have been given and prqved of the facts upon which the'prose-
cution relied for saying that the offender is leading such a life,
I
SUPREME COURT REPORTS tl984] 3 s.c.ll..
A .If, on th3 oth~r han1, the tim~ between a man's discharge from
prison and the commiS'sion of the next offence is .a very swrt one,
. it may be open to the..juri to find that he is leading persistently a
.dishonest or criminal life by reason· of the mere fact that he has
again committed an offence so. soon after his discharge from a
previous oqe, provided the notice has stated this as a ground.-
B This essentially is a quc;tion of . fact. The scheme under the
English Act is entirely different wl].ere a person has to be charged
at the trfal of being a habitual criminal. Therdore, the consi-
. derations which govern the matter do not arise in case of preven·
tlve detention under s. J 2(2) of the Act .
.c I find it difllcnlt to share the view that w)lereas under sub-cl.
(iii) or sub-cl. <v) ofs. 2 (d) a sfogle act or omission referred to
ill them may be enough to treat the per~on concerned as an
'anti·social element', in the case of sub-cl. (i), sub-cl. (ii) or
su,b-cl. (iv) be1:ause of th~ word 'habitually' there should be a
repetition of same class of acts or omissions referred to in sub-cl...
(i), sub-cl. (ii) or in sub-cl. (iv) by the person concerned to treat
him as an 'anti-social element'.

1 also do not see whys. 12 (2) of the Act should be confined
in its ·operation against habitual criminals who have a. certain
number of prior convictions fot offences of the 'character' speci-
E filed. The definition of 'anti-social element in s.2 (d) of the Act
· nowh~re requires that there should be number of prior convictions
of a pefsOn in resl'ect of offences of a particular. typ~. I cannot
also share the. view that the commission of an act referred to in
one of the sub-cl. (i), sub-cl. (ii) or sub-cl. (iv) of-s 2 (d) and any
other act or omission referred to in any other of the said sub-clauses
F would not be suflic;ient to treat a person as an 'anti-s0cial ele-
ment'. Further, I do not think it is . correct to say that. merely
because there was an acquittal of such a person, the ·detaining
authority ca•mot take the. act complained of leading to his- trial
into consideration. It may be that the trial of a dangerous p•rson
may end in an acquittal for paucity of evidence due to unwilling
G
qess of witnesses to come :forward and depose against him out.
•of fright. If a person with. criminai ·tendencies consistently or
peJJistently or repeatedly commits or attempts 'to com·mit or
apets, the commission of offences punishable under Chapter XVI
dealing with offences affecting human body or Chapter. XVII
Hi dealing with offences against property of the llldian Penal Code,
there is no reason why he should· 'not be considered to be an
'1111ticsocial element' •
• ..
V.N. siNGH v. BiliAR (Sen, J.) 447 •
It is not difficult·to conceive of a person who by himself or as
a member or leader of a gang habitually commits or attempts to
commit or abets the commission of offences punishable under Chap-
ter XVI or Chapter XVII of the Indian Penal Code. It however
does not. follo·w that because of the word 'habitually' in sub-cl. (i),,
sub-cl. (ii) or sub-cl (iv), there should be a repetition of same class
of acts or omissions refen.ed to in sub-cl. (i), sub-cl. (ii). or in sub-
JJ
cl. (iv) by the person concerned before he can be treated to be an
anti-social element and detained by the District Magirtrate under
s.12(2) of the' Act. In my view, it is not required that the nature or
character of the anti-social acts should be the same or similar.
There may be commission or attempt to commit or abetment of
diverse nature of acts constituting offences under Chapter XVI of the
Indian Penal Code. What has· to be 'repetitive' are the anti-social
acts.
Those who are responsible for' the national security or for the
maintenance of public order must be the sole judges of what the
national security or public order requires. Sufficiency of grounds is
D
not for the.Court but for the detaining authority for the formation
9f his subjective satisfaction that the detention of a person under s.
12(2) of the Act is necessary with a view to preventing him from
acting, in any manner prejudiCial to the maintenance of public order.
The power of preventive detention by the District Magistrate under·
s.12(2) is necessarily subject to the limitations enjoined on the exer- E
cise of such power by Art. 22(5) of the CQnstitution. It has always
been the view of this Court that the detention of individuals without
trial for any length of ti!lle, howe".er short, is ~holly inconsistent
with the basic ideas of our Government and the gravity of the evil
to the conimnnity resulting from anti-social activities can never
furnish an adequate reason for invading the personal liberty of the. F
I citizen except in accordance with the procedure established by law.
The Court has therefore in a series of decisions forged certain·
proce(lural safeguards. in .the ·case of preventive detention of citizens.
As observed by this Court in Narendra Purshotam· Umrao v. B.B.
Gujra/(1), when the liberty of the subject is involved, whether it Is
· under the Preventive Detention Act or the Maintenance of Internal G
Security Act or· the Conservation of Foreign Exchange & Prevention
of Smuggling Activities Act or any other law providing for preven-
. tive detention.,..-

·-~. "It is the bounden duty of the court to 'satisfy itself H
tliat all t.he safeguards provided by the law have been scru1ml-
Vl [1979] 2S.C.R. 31~-
' .
448 SUPREME COURT REPORTS

A ously observed and. that the subject is not deprived of his
personal liberty otherwise than in accordance with law."

Nonetheless, the. community has a vital interest in the proper
enforcement of its laws particularly in an area where there is
B worsening law and order situation, as urifortunately. is the case in
some of the States today in dealing effectively with persons engaged
in anti-social activities seeking to create serious public disorder by
ordering their preventive detention and at the same time in assuring
that the law is not used arbitrarily to suppress the citizen of his right
to life and liberly. The impugned order of detention has"not been
c challenged on the ground that. the grounds furnished ·were not
adequate or sufficient for the satisfactfon of the detaining authority
or for making of an effective representation. The Court must
therefore be circumspect in ·striking down the impugned order of
detention where it meets with the requirements of Art.22(5) of the
D Constitution and where it is not suggested that the detaining autho-.
rity. acted ma/a fide' or that its order constituted an·abuse of power.

. Turning to the merits of the contentions raised, I am quite
satisfied that the impugned order. is not vitiated beCi\USe some of the
E grounds·were non-existent .
or irrelevant
. .
or were too remote in point
of time to furnish a rational nexus for the subjective satisfaction. of
th.e.detaining authority. The two decisions in Shibban Lal Saksena's
and Kamlakar Prasad Chaturvedi's cases are· clearly distinguishable
on facts. In Shibban f.,al Saksena's case, th~ detenu had beeh sup-
plied with two grounds for his deteniion. Subsequently, the ·
F detaining authority revoked one of the grounds communicated to
him earlier. It was contended on his behalf that in such circum- .1
. stances the detenti_on was illegal'and he was entitled to be released. ·
The contention on behalf of the State was that although one of the
grounds upon·which the original order of detention was based ·was
unsubstantial or non-existent an.d could not be made a ground of
G · detention, nonetheless the r<emaining ground was sufficient to sustain
the detention order. · The Court rejected this ·contention and held
that it was stated that the sufficiency of the grounds upon which the
subje~tive satisfaction of the detaining authority is based, provided ..
they have a rational probative value and are not extraneous so the
scope or purpose of the legislative provision cannot be challenged in
the Co11rt expept on the ~round or'mala fides, lt w~s observed;
V.N. S/NG!I v. DIHAR (Sen, J.) 449
"A court of law is not even competent to enquire into A
, the truth or otherwise of the facts which are mentioned as
ground£ of detention in the commuuication to the detenu
unders.7 of the Act, What has happened, .however, in. this
case is somewhat peculiar. The Government itself, in its
co~~unication da'ted the 13th of March, 1953, has plainly
admitted that one of the grounds upon which the original on B
or of detention was passed is unsubstantial or non-existent
and cannot be made· a ground of detention. The. question is,
whether in such circumstances the· original order made under
s.3(1) {a) of the Act can be allowed to stand. The answer, in
our opinion, can only· be in the negative."
c
The question was whether in such circumstances the original
order·made under s.3(1) (a) of the Preventive Detention Act, 1950
could be allowed to stand. The Court laid down that if one of the
twq grounds was irrelevant for the purpose of the Act or was wh..olly
illusory, this would vitiate the detention order as a wh?le.. That is, D
a principle well-s-ettled since the well-known case of Keshav Ta/pade.
v. Th~ King Emperor('), The Court reiterated the prineiple and said
that it was not for the Court to examine whether the two grounds
upon whfoh the detention order was based were good or bad ·nor
could it attempt to assess in what manner and to what extent each
of the grounds operated on the mind of the ~propriate authority E
and contributed to the"creation of the satisfaction on the basis of
which the detention order was based. It then added:

"To say that the other ground, which .still remains, is
9uite sufficient to sustain the <;>rder, would .be to substitute an F
objective· judicial test for the subjective decision of the execu-
tive authority. which is · against the legislative policy
underlying the statute. In such cases, we think, position
would be the same as if one of these two grounds was irrele-
vant for the purpose of 'the Act or was wholly illusory and
this would vitiate the detention order as a whole." . {>

Following the decision in Shibban Lal Sakesena's case, the Court
in Kamlakar Prasad Chaturvedi's case, supra, by a m~jority of 2:1.
held the detention order dated May 6, 1983 passed by the District.
Magistrate under s.3'(2) of the National Security Act, 1980 to l?e Q

\I). Jl943} FCR 88.
•
450 SUPREMll COURT REPORTS [1984) 3 S.C.R.

invalid inasmuch as some of the grounds were lfound to be too
'A
remote andnot proximate in point of tirile. ·Per contra, Desai, J. .
· following the recent ,decision of this Court in Fit,:at Raza Kht:ln v.
State of U.P. & Ors' . . held that there is no rigid or mechanical test
to be applied. In Fitrat Raza Khaa's case, the.Court held that when
;
both. the incidents there were viewed in close proximity, the
propensity of the petitioner to resort to prejudicial· activity became
manifest. · ·
-;;
In Fitrat Raza Khan's case, supra, the first incident was of
August 13, 1980 when the communal riots broke out in Moradabad
city, and the second of July 24, 1981. Although there was a lapse of a
year between the two incidents, the second incident of July 24, 1981
was just on the eve of the Id festival and the grQund alleged was
that the petitioner was trying to instigate the Muslims to communal
violence by promise of better arms, with a view to an open confron-
tation between the.two fommunitie~. It was '.observed that the two
grounds as set out in the· order of detention were nothing tiUt
·narration of fects brining out the antecedent history of the detehu
and that the past conduct or the arlteced·e.nt history of a person can
properly be taken into account in making an order of detention
and had observed :
.
"It is true that the order of detentiim is based on two
grounds which relate to two incidents, one pf August ·13, 1980,
and the other of July 24, 1981, i.e., the second incident was
. after a lapse of about a year, but both the incidents show the
propensities of the petitioner to instigate the pi embers of the
F Muslim cbmmunity. to' communal violence: The unfortunate
communal riots which took place in .Moradabad city led to
. widespread carnage and bloodshed resulting in ·the loss of
many innocent lives. The memory of the communaLriots is
'Ill too re·cent to be a thing of the past. The past conduct or
antecedent history of a porson· can appropriately be taken
into account in making"a detention order. It is u~ually from
prior events showing tendellctes or incliiiations of. a man that
an inference can be drawn whether he is li!<ely, in the future,
to act in a ·manner prejudicial to the maintenance of public
order.•••••••••••••• It cannot be said that the prejudicial
.conduct or antecedent history of the petitioner was not
VcN. SINGH v. BIHAR (Venkata~mniah, J.) 451

. proximate in point of time and had no rational connection A
\vith the cotictusion that his detention was necessary for
riiaihtenance of public order."

It is usually from prior events showin11 tendencies or inclini-
tions of a man that an inference can be drawn whether he is likely, B'·
in the future, to act in a manner prejudicial to the maintena~ce cif
public ocder.
•
Learned counsel for the petitioner also submitted thaf the
ordinary criminal process·could not be circumvented by resort' to
preventive detention. Jn somewhat similar circumstances, the .Court
recently in Alijan Mian v. District Magi.itrate, Dhdnbad & Ors('). h~ld
that merely because there was pending prosecution and the accused
were in jail, that was no impediment for the.ir detention under s.3(2)
of the National Security Act, 1980 if the detaining authority was
'satisfied.that their being enlarged on bail would be preju<licial to the
D
maintenance of public order. The same view has been reiterated by
this Court in Raisuddin · Babu Tame/Ii v. State of U.P. & Anr('!. -

For my part, I would. therefore, for the reasons stated, dismiss
the writ petition as well as the connected special leav~ petition.
E
VENKATARA:MIAH, J. This is a petition under Article 32 of the
Constitutio.n, The petitioner has questioned in this case the validity
of an .order of detention dated August 16, 1983 passed by the
District Magistrate, Bhagalpur, State of Bihar, directing the deten-
tion Of the petitioner under subcsection (2) of section 12 of the
Blhar Control of Crimes· Act, 1981 (hereinafter referred to as 'the F
t
Act') read with Notification No. H(P) 6844 dated June 20, 1983 of
the Government of Bihar vesting the powers of detention in
the
District Magistrate, Bhagalpur.

The petitioner states that he having passed him M.A. Examina-
.G
. tion was studying llrw 1n the Bhagalpur Law College in ttle year,
1983. On the basis of information received 01i April 20, 1983 about
' the u·nnatural deaths of two persons within the jurisdiction of the

.
.)....
Bhagalpur Kotwali .Police Station, the police conducted fovestigation
ancl at the conclusion of that investigation they filed a charge sheet
H
(I) (t 9331 3 sec JOI.
.(2)AIR 1984 SC 46.
.

452 SUPREME COURT REPORTS [1984] 3. S.C.R,. ' ~

in the court of the Magistrate having jurisdiction over the area in
question, who' committed him · alongwith some others to the Court ·
of Sessions for b.eing tried for offences punishable under section 302
read with section 120B, 386 and 511 of the In di.an Penal Code. The
said case is even now pending. The petitioner moved the High
Couit of Patna. for enlarging him on bail during the pend ency of ··
B. .the said Session· trial On August 8, 1983, tl)e bail petition was
heard and the High Court made an order enla(ging the petitioner . ~
on bail, the relevant part of which read thus: •.

"8.8.83. Heard learned counsel for the petitioner and
the State.

The submission of the petitioner is that he has not
• been named in the F.I.R. and the only material against
him is that when Kashi Nath Bajoria; father of the deceased· )
learnt about taking away of his sons from the petrol pump·
he weut to the house of petitioner and his brother Dhananja
Singh and enquired about his sons. On his enquiry the
petitioner, bis brothei; Bijoy and his mother de;nanded a sum
of Rs 50,000. for release of his sons. It is further submitt~d
that three persons gave their confessional. statement but even
they did not name the petitioner-
'E
Whether the petitioner was in conspiracy or had hand
:in the crime. will be examined at the trial if such occasion
arises. In the circumstances of the present case, let petitioner
be released on bail of Rs 30,000 (Rupees ten thousand with
two sureties of the like amount each) .. to the satisf~ction of
.· the Chief Judicial !.Magistrate, Bhagalpur in Bhagalpur
Kotwali P.S. Case No. 281/83 dated 20.4.83."

.Even before the petitioner could furnish bail and secure his
·,release from jail as· per the above order,' the District Magistrate .
passed-the impugned. o.rder of detention OQ, Aug)lst 16, 1983, the
.'relevant part of which reads thus : . ·

"Order No. 151dated16.8.83

8 Whereas I am satisfied that with a view to preventing
Shri Vijay Singh s/o Late Shri Jagannath Singh of Mohalla
Mundichak P.S. Kotwali. District ·Bhagalpur from acting in
,•.. -

V.N. SINGH v. BIHAR (Vtnkataramiah, J.) 453

.any manner prejudicial to the maintenance of public order,
· it is necessary to make an. order that he pe detained. .&

Now, therefore, in exercise oi:the powers conferred lty
. (Bihar A6t 7 of 19SI) sub-section 2 of section 12 of the Bihar ·
Control of Crimes Act, 1981 read with Notification H(P) 6844
<lated 20.6.83 of the Government of Bihar vesting the powers
of detention in District Magistrate, Bhagalpur, I hereby direct ••
that Shri Vijay Singh be detained.
'
He shall be detained in Special Central Jail, Bhagalpur
and classified as C and in division III.
District Magistrate 8
Bhagalpur"

The grounds of detention in support of the above order rea•
ithus :

"In pursuance of section .17 of the Dihar Control ef .D
Crimes Act, 1981 (Bihar Act 7 of 1981) Shri Vijay Singh s/&
Late Shri Jagannath Singh of fy!ohalla Mundichak, P.S.
Kotwali, District Bhagalpur is informed that he was beea
·directed to be detained in my Qrder No. 151/C dated 16.8.83.

The· following incidents conclusively show that Shri a
· 'Vi jay Singh is an "anti-social element". , ·

His criminal activities enumerated below dat~ back to
the ye11;r 1975.

(i) On 15.4.75 Vijay Singh alongwith his associates
·went-to the shop of Gopal Ram Ramchandra, cloth dealer in
Hariapatti market of Bhaga,lapur to\vn armed with unlicensed
,pistol an.d forcibly demanded subscription at the ppint of
pistol. On refusal, he created a row in the shop and indulged
• in filthy abuses, as a result of which the !lhopkeepers of the
,are.a be.came terribly panicky and feeling of uttar insecurity
prevailed in the area. A case was instituted in Kotwali p,s.
vide Case No. 25 dated 15-4-75 under section 144/448 I.P.G••
Jn this case, he was chargesheeted.

(ii) On 17./18-6-82 at night Vijay Singh was founii H
;teasing and misbehaving with females returning from Cine111a
hall at {<.halifabagh Chowk, one of the busiest thr6ughfarcs tf

.•
454 SUPREMB COURT REPORTS [1984) 3 s.c.R.
·, .,1,. ' ., . •\~ .' . , ~:- _,::. . ' '... -.. \' . ... ' '
/:A
, the to.wn.~ On. in{o<niatjgp, )he, poli_sr ,,ru~he? )o.tne ~ppt.
ViJay Singh had the avdacity to misbehave with the pol\ce
-· · p~sQ!llleLincludipg ~l!.e _J1¥, ~.p, tl;!qr~,) whq.~al?pened to
n:ach,Uiwei ~-S?~'?.<'"fa,s1 insHt,~\~<l .. in th.i• c~,nect.io~, v.~de·
· 1$;0{1Y,ali ~..S. ,~_se.. ~o:1 ?1%:.~/l\~lji J ~.-6;,8~.u/s 294/353 I.P:C..
In lh1s case, V1iay Smgh was cbargeslleeted .
• . sbri v1]~;, Sr'if~ h~"s ill'iJ d~tai&d on !ri~ roirc\~ihg;
grou11d.s : - 1
•-.: i i.,L.1- '1~'

<i Grounds:
•.
0 (J :. , .J;?l\J.9 .4.1983; the criminal activities of Vijay Singh>
mounted to its peak, when two yong sons of Sbri Kashinath
BliJtlria, nwner of,Bajqri~ ~~trsJ, •. P.9!1'I?• l'IJ1a~alJ?;Uy n,~mely,
Krishna Kumer Bajoria and Santosh Kumer BaJoria w~re .
kidnapped from their petrol pump. Vijay Singh demarid~d
~ siim of· Rs 5Q',Ol)O (Fifiy..tbousandJ .f(l)JnJ}1eir father as.
D rariso:.h. As the demand could not b~ ful;filled, th.e above- 0

n!undd two innocent )!DUllg rn.eii W,<re c\OM to d t;.ath in a
~ti,astly manner altd their •. dea4 bo>lies thi-o_wn a!vay n~ar
Mo\int Assisi School and.~Zi'a Scb.ooJ whi,ch wer~ dij9ovo;:,ed.
n.ext morning. These >iouble murders caused panic through-

• out tflh nhagalpur Town and public order was gravely disturb-
ed. Only after io.tensive deputation of police force, public
conJi>ience was rcst 0red and public order maintained. A case
~~s instituted yide l.t6twtili P.S. Case No. 281 dated 20-4-83
.under sections 364/302/201/_34/120(b} I.P.C.. Charge-sheet
ha's. been submitted in this case against . Vijay Singh and
ot!Jers. lnyestiga{ion _shows that Vi]ay Singh is. mainly
instrumentarto this heinous crime. ·

, (Copy of F.I.R., brief of· the case and copy of Memo
of evidence enclosed).
•
G Jn the circumstances, I am. sat.i~fied that if ~e is allowed to
remain at large, he will indulge i.il a·ctivities prejucl.icfal to the
~aintenance of public order. ·

. . . .For prevent'ion of such. activities, I considered" his.
H -detention necessary. Shri Vijay Singh is informed that he
nlllY ·make a representation in writing against the or>!er-under·
which he is detained. His representation, if any, liiay be addies-.
V.N. SINGH v. ilIHAR (Venkararamiah, J.) 455
tied to the Deputy Secretary, Home (Police) Department,
-Oov'ennient of B!har, r>atna, 'arid forwarded 'by the Supcr- A
intendeht of Jaifthrough special messenger with a copy.to the
undersigned. -
Sd/~S.K. Sharma
' 16f8/83
District Magistrate
B
'Bhagalpur"

Aggrievd by th, ao we orJ :.r of. deteotion .the petitioner filee
a petitfon under A•ticlc 2!,6 of the Consiiiu\ion before the High
<:ourt. On behalf of the d.talning authority it' was c'ontended that
the detention o•·der had 'been' pre.rared 'in aovance for service on
the petitioner when he came' out or tlie' jail dn ine strength of the
0
bail oi-d'e'r which h'e had obtain"ed ii\ i!ie criminal case ; that all the
-copies of order had been sent to 'the District Migisfrate's office but
,l>Y mistake of the messenger three c0 pies had been wrongly deliver-
ed ai the Centrai Jail Ohagalifur w,11ere the petitioner hairbeen kept
and that when the mistake ;~as detected by the 'Superintendent of D
the Central Jail, he did ·not serve the copy of the o'rder and had "
returned all the 'Copies. It was urged that since th~ orcter 0f detell-
0

tion had not be.en served on the petitioner, the petition was not
. maintainable. Accepting the above plea, the High Court held that
·there was no occasion to quash \he order of· detention as the
p<!titiorier had not been detained pursuant to it. Accordingly it
r~jec•ed .the prayer ·of. the petitioner. Thereupon the petitioner
:filed the above writ petition before· teis Court, He has -also !jle..t a
special leave petition being S.L.P. (Criminal) 3306 of 1983 agai11st
the .order of the Hillh Court.

Jn this Court, the respondents have not depended upon tlae .F
<technical 'plea raised by them' bef'ore fhe Hish . Cotirf b'u't have'tdell
to justify ihe order of detention 'oi) me,rits. ' · · ·
. ·~ .
I shall give a brief summary of the relevant provisions of the
Act. TM Act was passed in· 191\1. It was 'enacted, as Its Jimg'title sug-
:gests, to make special provisions for lhe control and suppression: of G
:antisocial elements with a view to maintenance of public order•
.Section 2(d) of the Act ·define.s the .expression 'Anti-Social Element'
1hns ·: · -

''.2.(d) "Anti-Social 1$le)lle1!ts" means a per.son who is
·-
ii
(i) either by himself or as a· member of or leader of
a iang,
• {
habitually commits; ciratteqipts to'c'6'nln:i1t
- · • •• "' - -.i ·,•t '' ' --' .- , "· I • '.d. .-'' .,;.1
SUPREME COURT REPORTS [1984] 3 S.C.R~

or abets the commission of offences, punishable
under Chapter XVI or ChapterXVU of the Indian.
Penal Code ; or

(ii) habitually .comints or abets the commission of
offence under the Suppression of Immeral ·Traffic
• i.n Women and Gir!s·Act, 1956 ; or:

· (iii) who by words or otherwise promotes. or attempt
to· promote on grounds of religion, race, language,
cast or· community, or· any other gr<1Unds what-
soever feeHngs of enmity or .hatred between
different religions, racial or language groups of
castes or communities ; or

(iv)· has been found habitually passing indecent remarks-
!<:> or teasing women or girls ; or
\

• (v) who has been convicted of an offence under sec-
. tions 25, 26, 27, 28 or 29 of tloe Arms Act.of
1959." (underlining by us)
. '
Section 3 to 11 of the Act deal with the provisions relating tcr
. I: extcrpment of anti-social elements. Chapter II of the Ac.t deals witb
the provisions providing for the preventive deterition of anti-social
elclllc.nts. The rele~ant part of sec'tion 12 of the A•t which is in
@ltapter JI of the Act reads :

• • •
"12. Power to make order detaining certain persons•
'Ihe State Government may-(!) If satisfied with re•pect to.
any person that with a view to pi·eventirig him from acting in
any manner prejudicial to the maintenance of public order and
there is reason to fear that the activities of anti-social element
cannot be prevented otherwise than by the immediate arrest
of such person make an order directing that such anti-sociaf
G element be detained.

· (2) If, having regard io the i:;ircumstances prevailing o;
. .
likely to prevail in any area within the local limits of the.
jurisdiction of a District Ma,gistrate, the State Government fa.
satisfied that it is necessary so to do, it may by an order in
B writing direct, that during such period- as may be specified in
(he order, such District Magistrate may also, if satisfied a~
V.N. SINGH v. B!lfAR (Venkataramiuh, J.) 451'

provided in sub-section (I) exercise the power conferred up-
on by the said sub-section ..................... (underlining by us),

It is seen from secfrm 12 of the Act that it makes provisiom
for the detention of an anti-social clement. · If a. person is not a11·
anti-social element, he cannot be detained under the Act. .The B
detaining authority should, therefore, be satisfied that the person
against whom ·an order is made under section 12 of the Act is aa
'anti·social element as defined in section 2 (d) of the Act; Sub-
clauses (ii), (iii) and (v) of section 2 (d) of the Act which are not
' quite relevant for the purposes of this case may be omitted from
consideration for the present. The two other sub-clauses whicla
need to be ·examined closely are sub-cla.uses (i) and. (iv) of sectioa
2 (d). 'Under sub-clause {i) of section 2 (d) of the Act, a·. persoa
who either by ftimself or as a member ·of or leader of a gang halli:
tua//y commits or at\empts to commit or abets the cominission of
offences punishable under Chapter XVI dealing with offenences affec-
ting tlie human body or Chapter XVII dealing with offences against
property, of the Indian Penal Code is considered to be an anit-social
element. Under sub-clause (iv) of section 2 (d) of the Act, a persoa
who has been habitually passing indecent remarks ,to, o{ teasini:
women or girls, is an anti-social element. In both thes.e sub-.clauses
the word 'habitually' is used. The expres"sion 'habitually' means
'repeatedly' or 'persistently'. lt implies a thread of continuity
._,; stringing together similar repetitive acts. Repeated, persistent and
similar, but no.\ isolated, individual and dissimilar acts are necessary
to justify an inference of habit. I( c~nnotes frequent cominissio11
of acts or omissions of the same kind. referred to in each of the said·
sub·clauses or an aggergate of similar acts or omissions. This appears
to be clear from the use bf the word 'habitually' separately in sub-
• clause (i), sub~clause (ii) and sub·cla.use (iv) of section 2 (b) and not
'· in sub-clauses (iii) and (V) of section 2 (d). If the State Legisla·
ture had intended that a commission of twp or more acts or omis-
sions referred to'in any of the sub-clauses (i) to lv) of of section 2 (d)
was sufficient to make a person an 'artti-social element', the defini-
tion would have run as 'Anti-Social Element' means 'a person who
habitually is . ·· .............. .' A's section 2 ( d) of the Act now stands,
whereas under sub'.clause (iii) or sub·clause (v) of section 2 (d) a
single act or omission referred to in them may be enough to treat
the person concerned as an .'anti-soda! element', in the case of sub- · II .
clause (i}, sub-clause (ii) or sub'clause (iv), there should be a repeti-
tion of acts or omissions of the same kind refrrred to in sub-clause
SUPREME CCURT Rll'ORTS [1984] 3 s..c.R.

A" (i), sub-clause (ii) or in sub-clause (iv) by the peyson concerned to
treat him as an 'anti-social elment'. Con1mission ofan act or· oillis-
. sion referred to in one of the sub-clauses (i). (ii) and (iv) an.'t'of
anoth·er act or omission referred to in any other of the said sub-
·· c1~uses ,~·ould nof be sufficient to treat a person as an 'anti-social
ekfuent'. A.single act or omission falling under sub-dause (i) end
8
a single act. or oniission falling under sub-clause (iv) of section 2 (d)
cannot, therefore; be characterised as a habitual act or omission
referred to in either of them. Because tbe idea of 'habit' involves
an ·element of persistence and a tendency to repeat the acts or
omissions of the same class or kin·d, if tire acts or omission in qucs-
() . tion are not of the same kind or even if they are of the same kind
. when they are committed with a long inicrval of time betw~en them
they cannot be treated as habitual ones. .

In the pre\ent case th.e District - Magistrate has relied pn
three ·incidrnts to hold that the petitioner. is an. anti-social ele~
O c: m~nt~ Tl~ey are-(iJ that en April 15, 1915 the petitioner ·along-
wifl) his associates llad ·gone }o the sl1op of a . cloth dealer of
B4,?galjiur To'!"n armed )Vi th an unJicens\!d pistol and bad ·forcibly
a
demande.d subscription at the po in( of gun. and (ij) that on June
I77i's, 198.2 the petitioner was fourid-t~asing and misbehaving wiih
feljlales r~turning from a cinema h·alf. The third ground '.is the
crfwlria,l c~se now pending agaiµst th~ potitioner. ii;i the ~eS>ions
Co~rt. The first incident is of the year I 975. It is not 'statccj how
·th~ criminal c~s~ filed on the basis of that charge ended. The next
ini;:io!"nt rel9tes to tht year 198.2. The detafoing authority does
not stat.e hoiv the cri111i~al cese filed in that. cbnnection te~mi
na(ed. ff they have b0th ended in favour· of the petitioner fin.ding'
-
~·,

- him clearly not guilty, they oonnot certainly constitute acts or
0njlssions h~bi1uajly cJmmitt~d by the petitioner. · M.Qreove; the
sai,d (WO incidents .arc of different kinds altogether. Whereas the
nrs.t one 'may fatt unQer sub-clause (i) of section 2(dJ· of the Act,
•
1he secon!i one foils iinder sub-clause (iv) thereof. They arc, .
even if true, npt repetitions of acts or omissions of tl;e s;ime !<ind.
Th.e ):listrict Magistrate does not appear to
have applied his mii1d · •
to t)le above aspects of the case. The thfrd ground. which is based
on !Ue pendipg'Sessions cµse is no doubt of 'the. nature of acts or
couiissi,ons re(erred to in sub-claµse ti) of section 2(o) but the inter-
val betw.een the' first groun'd wl;ich falls under thls sub-clause and
th~ ~ne js nearly eight years an.d Cf!nrot, therefore, make the peii- ·.
tioper
.~
·a habitual
·:. :_ ! ' -· :
offe~der
'. ' -
of the
,'t
type failing under sub'.cJause {iJ
- ''' ' • ; ' •
of
V.N. SINGH v. BIHA!l, (V~nkataramiah, J.) 459

section 2 (d). WJ1en I ~ay ~o I go i;i9,t c~rtainly minimise the gravity A
-0f ·the offence alleged to have been committed by the petitioner
-which is still to be tried by the Sessions Court. If the petition:er
is found guilty by the Court,· he ·will have· to be awarded app,ro·.
priate punishment.But the point for consideration now is whether
the filing of ·the charge sheet is sufficient to bring the petiiioner
B
t -wit~in the mischief of the Act. The Court should examine the case
without being overwhelmed by the gruesomeness of the incident
involved in the criminal trial. It is well settled that the.Jaw of
preventive detention is a hard Jaw and therefore it should be strictly·
<:onstrued. Care should be taken that tee liberty of a person is not
jeopardised uriless pis case falls ·Squarely within the four corners of a
.·the relevant Jaw. The law of preventive detention should not be used
merely to clip the wings of an accused who is involved in a criminal
prosecution. It is not- intended for the purpose of keeping a man
'under detention when under ordinary· criminal law it may not be

r possible to resist the issue of orders of bail, unless the material
available is such as would satisfy the requirements of the legal
·provisions authorising such detention. When a person is enlarged
on bail by a competent criminal court, great caution shouli! be·
·exercised in scrutinising the validi!y of an order of preventive deten·
-tion which is based o.n the v<'ry same charge which is to be tded by
D

•the criminal court. E

Having given my anxious consideration to the case; I am of
the view that it is not possible to hold that the petitioner 'can be
-called an 'anti-so9ial ekment' as defined by section 2 (d) of the Act.
"The order of detention impugned in this case, therefore, could not
have been passed under section 12 (2) of the. Act which authorises F
;tke detention of anti-social elements only.

Before leaving this case, I should state that a number 0f
decisions were ciied' before us in whi.ch it had been held that an
·Order of detention based on a criminal charge which is still .to be G
.tried may riot ·be invalid and that an order granting bail by a crinli·
nal court cannot be a bar· to the passing of an order of detention.
• But I have not found it ·necessary to deal with them h<;re as they
· -would have become relevant only if I had been satisfied that the
;petitioner was an anti-social element. Moreover the oraers of deten-
aion questioned in those cases were governed by the provisions of the H
statutes undCI which they had been issued~
• •

490. . SUPREME COURT )\);PORTS [1984) 3 s.c.R..:.
/

A t In the result, I quash the order o( detention, p~ssect:
against the petitioner. The petition is accordingly allowed. The
petitioner shall be set at liberty forthwith unless he is required to be.-
ht custody on some other ground.
B

H.S;K. Petition allowed_ 1

1
......
-