# SAMARESII CHANDRA BOSE ETC. ETC v. DISTRICT MAGISfRATE. Bt.t"RDWAN

- **Citation:** [1973] 1 S.C.R. 859
- **Court:** Supreme Court of India
- **Decided:** 1972-08-14
- **Bench:** 1. M. Shi!Lat, I. D. Dua, H. R. Khanna
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/samaresii-chandra-bose-etc-etc-v-district-magisfrate-bt-t-rdwan-5727
- **Pages:** 11

## Headnote

859
J
MainttiiiUICt of lnrtrnal Securit,v Act No. 26 of 1911--sution 3(l
IM 3(2), whtthtr delay o/22 days in considering the rtprtstntc.:ion o/ 1~
ktenwu by the Governmrnt unju.stifitd-Whethtr
vr'olt"ct
· J
•
'/ 1 1
nd
11
"
prarlllt
,1auut pot t co opponentz a
po ce party affects public ordtr- Wit tit
kttlltion order passed against dtttnu~ in jail Is ptr se m:tla fide.
t
u
. The delef!ues and some other persons belonging to CPI(M) killed a
iriver beloogmg to CPl. It was furthe.r alleged that the detenues attacked
C the police party with bombs. The detention order was issutd while the
4etcnues were still in custo~y. The detention Y.-aJ challenged, intu alia, oa
the ground that the dcten!Jon .was vagu~. that the alleged acts of violence
tlid not raise aoy problem of public; order and that the detention was mal•
{We. The detenues also challenged the validity of s. 17(a).
Dillmissiog the petition,
D
HELD : (i) The reasons aiven by the Government, for delay, namely,
Pwtani au;ressioo durin& Bangladesh war, go-41Dw movement of ~~o-o·kers.
iDcrease in the number or detention cases and spate of anti-social activities
•1 Nualites aod other political extermists, W'Crc clear and 0011viDcin1.
'There was oo inordinate delay in the eoosider~tion of repres.eot_ations. ~·
aidering the facts ot the case, the represeotallons were COOS!dered
WJih
fliiO!lable di.sp:~tch. /862E]
E
Ujagar Singh v. The Smte o f Punjab, n952l S.C.R. 155 and :-4miyo
KJUnDT Karmal.4r v. Stott of West Bengal W.P. No. 190 of 1972, rdied on.
(ii) The petitioners knew who the "poli!ical op~onents" ~re and ~
detention order upressly stated the respective par1tes 10 w~ch tbe pe
acne" and the \ictim belonged. The two grou~ds of de!CnllO"' art0
trt~:
linked
It cannot therefore be said that the pehtlonen did oOt &<:t pp r
!unity· to malte effective representation due to vaguene~ or ambtgully 0
F 'be crounds fumilihcd. !865H]
.
(ill) It is quite clear that the pet_itioners an':o a::v~;: t:C1r ~~n~rcj
111 acts prima fac/~ designed to terr?r'f peopled all this mu.st have inevioppooentt and to cow down tho poh<7 orce ~~rmal peaceful civU life of
llible e!fect of disturbin!f and p~lys~
d ~pact of the activities of the
1lle eeoeral public. The magrutut ::.n
and trooqu:Uitv of the lawG
Pe'titiooc:~ ahd hls associates on
th~~c acts of the detcnuea rslsed
abidio1 ,rderly aocictv cl.carly shows01 a
~
alfectina public order. t868
.
r of p01ict, (19701 1 S.C.R. 76l.
Shyamfal Chakraborty v. Commisslorte
reUcd oo.
Salta
C.Jl. 138 $wdltv l{utrtllr
v.
SIUhanta Goswcml, In 111 : [19691 i_S.360 and Anut GMtlt • · Stott of
H
C~tsslorur, .Calcutta. f1970l 3 ~·~· ished
"m Btnc'l/, (1970] S.C.Jl. 2811, dUUDJU
•
tude tho debi~P
rt f taw cannot prce
oec;etsity
•
(iY) The earlier discharge In a ~~cti~e satisfaction abOUt the
IDJ authority !rom coming to a su l
, I
I .
I
I
I
1
I
., ·t
I
I
I
860
SUPJ.EMB COUIT J.EPOllTS
[1973) l S.C.R
of the petitioner's detention which is preventive in c;haracter. The detention order is not reiJdered illegal or rna~ fide simply because the order was
passed when the detenues were still in jail. f868F]
(v) Challenge, to s. 17(a), introduced as an amendment by Defence
of India Act, 42 Ql[ 1971 was not pressed.
OPIGINAL JURISDICTION: Writ Petirtions Nos. 216-218
of
1912.
Under Article 32 of the Constitution of India for the enforce--
ment of fundamen1al rights.
Somnath Chatterjee, Narnarayan Gooptu, Pulakmondal and
Rathin Das, for the petitioners.
D. N. Mukherjee and G. Mukh()ty, for the respondents.

## Text

SAMARESII CHANDRA BOSE ETC. ETC.
v.
DISTRICT MAGISfRATE. Bt.t"RDWAN
August 14, 1972
[1. M. SHI!LAT, I. D. DUA AND H. R. KHANNA, JJ.]
859
J
MainttiiiUICt of lnrtrnal Securit,v Act No. 26 of 1911--sution 3(l
IM 3(2), whtthtr delay o/22 days in considering the rtprtstntc.:ion o/ 1~
ktenwu by the Governmrnt unju.stifitd-Whethtr
vr'olt"ct
· J
•
'/ 1 1
nd
11
"
prarlllt
,1auut pot t co opponentz a
po ce party affects public ordtr- Wit tit
kttlltion order passed against dtttnu~ in jail Is ptr se m:tla fide.
t
u
. The delef!ues and some other persons belonging to CPI(M) killed a
iriver beloogmg to CPl. It was furthe.r alleged that the detenues attacked
C the police party with bombs. The detention order was issutd while the
4etcnues were still in custo~y. The detention Y.-aJ challenged, intu alia, oa
the ground that the dcten!Jon .was vagu~. that the alleged acts of violence
tlid not raise aoy problem of public; order and that the detention was mal•
{We. The detenues also challenged the validity of s. 17(a).
Dillmissiog the petition,
D
HELD : (i) The reasons aiven by the Government, for delay, namely,
Pwtani au;ressioo durin& Bangladesh war, go-41Dw movement of ~~o-o·kers.
iDcrease in the number or detention cases and spate of anti-social activities
•1 Nualites aod other political extermists, W'Crc clear and 0011viDcin1.
'There was oo inordinate delay in the eoosider~tion of repres.eot_ations. ~·
aidering the facts ot the case, the represeotallons were COOS!dered
WJih
fliiO!lable di.sp:~tch. /862E]
E
Ujagar Singh v. The Smte o f Punjab, n952l S.C.R. 155 and :-4miyo
KJUnDT Karmal.4r v. Stott of West Bengal W.P. No. 190 of 1972, rdied on.
(ii) The petitioners knew who the "poli!ical op~onents" ~re and ~
detention order upressly stated the respective par1tes 10 w~ch tbe pe
acne" and the \ictim belonged. The two grou~ds of de!CnllO"' art0
trt~:
linked
It cannot therefore be said that the pehtlonen did oOt &<:t pp r
!unity· to malte effective representation due to vaguene~ or ambtgully 0
F 'be crounds fumilihcd. !865H]
.
(ill) It is quite clear that the pet_itioners an':o a::v~;: t:C1r ~~n~rcj
111 acts prima fac/~ designed to terr?r'f peopled all this mu.st have inevioppooentt and to cow down tho poh<7 orce ~~rmal peaceful civU life of
llible e!fect of disturbin!f and p~lys~
d ~pact of the activities of the
1lle eeoeral public. The magrutut ::.n
and trooqu:Uitv of the lawG
Pe'titiooc:~ ahd hls associates on
th~~c acts of the detcnuea rslsed
abidio1 ,rderly aocictv cl.carly shows01 a
~
alfectina public order. t868
.
r of p01ict, (19701 1 S.C.R. 76l.
Shyamfal Chakraborty v. Commisslorte
reUcd oo.
Salta
C.Jl. 138 $wdltv l{utrtllr
v.
SIUhanta Goswcml, In 111 : [19691 i_S.360 and Anut GMtlt • · Stott of
H
C~tsslorur, .Calcutta. f1970l 3 ~·~· ished
"m Btnc'l/, (1970] S.C.Jl. 2811, dUUDJU
•
tude tho debi~P
rt f taw cannot prce
oec;etsity
•
(iY) The earlier discharge In a ~~cti~e satisfaction abOUt the
IDJ authority !rom coming to a su l
, I
I .
I
I
I
1
I
., ·t
I
I
I
860
SUPJ.EMB COUIT J.EPOllTS
[1973) l S.C.R
of the petitioner's detention which is preventive in c;haracter. The detention order is not reiJdered illegal or rna~ fide simply because the order was
passed when the detenues were still in jail. f868F]
(v) Challenge, to s. 17(a), introduced as an amendment by Defence
of India Act, 42 Ql[ 1971 was not pressed.
OPIGINAL JURISDICTION: Writ Petirtions Nos. 216-218
of
1912.
Under Article 32 of the Constitution of India for the enforce--
ment of fundamen1al rights.
Somnath Chatterjee, Narnarayan Gooptu, Pulakmondal and
Rathin Das, for the petitioners.
D. N. Mukherjee and G. Mukh()ty, for the respondents.
The Judgment of the Court was delivered by
Dua, J.
These three writ petitions (Samaresh Chandra Bose
v. District Ma_gistrate, Burdwan & Ors. W.P. No. 216 of 1972;
Shymal Biswas v. District Magis~rate, Burdwan etc., W.P. No.
217 of 1972 ,and Dulal Chandra Das
v.
District Magistrate,
Burdwan etc., W.P. No. 218 of 1972) raise common questions of
law and fact and are, therefore, being disposed of by a common
judgment.
In fact tthe main arguments were addressed only in
Samaresh Chandra Bose v. District Magistrate (W.P. No. 216
of 1972), the arguments of this case having been adopted in the
·other two cases. We would, tlrerefore, refel to the facts in W.P.
No. 216 of 1972.
Samaresh Chandra Bose who is employed as a Supervisor of
AUoy Steel Plant, Durgapur was, according to the common .case
of both sides arrel\ted on October 13, · 1971
and was an
accused in Uurgapur P.S. case (No. 33 dated October 14, 1971)
under ss. '147/1881307, I.P.C. and under s. 6(3) of the Indian
Explosives Act.
According to the petition.'!r he was woken up
while asleep in his quarters and arrested on the morning where·
as according to the respondent he was arrested at about 8.15
p.m. from Tilak Road "B" Zone, Durgapur. It is alleged that
the petitioner, along with his associates, Shyamal IJiswas
and
Dulal Chandra Das (the two writ peti1ioners in the connected
ca<;es) and others ha~ hurled a bomb towards a police party on
patrol duty and after having done so they tried to run .away, but
thev were chased and'. pN:imatelv all three were apprehended. The
petitioner, according to the resoondent. was also wanted in connection with Durgaour P .S. case (No. 17 dated October 8, 1971),
described by the ~titioner in oara~tr:mh 8 of his writ petition to
be under ss. 148/149/326/307/326/302, I.P.C. The petitioner
was discharged in both the aforesaid criminal cases on October
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S. C. BOSE v. DIST. MA61STRATE (Dua, J.)
861
28, 1971. After his discharge the petitioner was served wtth the
detention order dated October 26, 1971 made by the District
Magistrate, Durgapur in exercise of the power conferred on him
by s. 3 (1 ) and ( 2) of the Maintenance of Internal Security Act,
26 of 1971 (hereinafter called the Act) and arrested on October
28. 1971.
On behalf of the petitioner Shri Somnath Chatterjee,
his
learned Advocate, submitted as the first ground of attack against
the order of
detention that the
petitioner's
representation to the State Government was not considered
with
due
expedition as contemplated by Art. 22 ( 5) of the Constitution.
The representation was received by the State Government on
November 23, 1971 but it was disposed of about 22 days. thereafter on December 16, 1971. According to him the explanation
for the delay furnished by the respondent is highly unsatisfactory
and this inordinate delay has, therefore, rendered the petitioner's
detention invalid.
It is not disputed that the representation received on
November 23, 1971 was considered on December 16, 1971. The
explanation ~iven ·by the State for 'the aforesaid delay in considering the petitioner's representation is contained in paragraph 10
of the counter-affidavit, wherein it is averred :
" .... that the written representation of the detenu
was duly considered by the S a•te Gtvernment expedi~
tiously and the same· was rejected af~~r due consideration. I further state that at that time due •to influx of
refugees ahd due to Pakistan aggression, most of the
officers of the Home Department were very busy with
serious problems which faced the coun1ry at ·that time
and as such the said representation of the petitioner
could not be considered earlier. Moreover I
further
state that due to ga-slow movement of workers launched
co-ordination committee of the Statt! Government Employees during the period September to November 1971
there was serious dislocation and delay in movement of
files an..d di<;posal of cases. I further state· that delay was
also caused due to abrupt increase in n1Jmber of detention ;::ases durine: that time as there was spate of antisocial activities by Naxalites and other political extremists in the State. I state that all the above factors contributed towards the delay of about 28 davs in considering the representation of the detenu petitioner." ·
This explanation in a nut-shell shows the following reasons for
the delay in considering the petitioner's representation
( 1 ) influx of refugees;
162
SUPREME COUllT REPORTS
[1973] l S.C.lt.
(2) Pakistani a~gression keepinJ.! most of the officers
of the Home Department busy with the serious
problems facing the country;
( 3) ~o-slow movement of the workers launched by
Co-ordination Committee of the State- Govern.
A
ment employees durin~ the month of September
B
to November, 1971 giving rise to serious dislocation and delay in the movement of files and
disposal of cases;
( 4) abrupt increase in the number of detention cases;
{ 5) spate of anti-social activities by Naxalites and
other polhical extremists in the State.
-
AlthouJ.'.)l according to Shri Chatterjee's submission this ex~
planation is vague and ambiguous. and does not disclose precise
material on which the delay can be held by this Court to have
been satisfactorily explained, we are unable to find any ambiguity
or _vagueness in irt.
In our opinion, the explanation contains
distinct reasons based on facts which are quite clear, definite and
rdevant and they can legitimately be taken into account for
determining whether the State Government had considered
the
petitioner's representation with reasonable despatch and expeJition
or had inordinately delayed its consideration.
The explanation
convincingly shows that there was no inordinate delay on the part
of the State Government and that the representation was duly
considered with reasonable dispatch or as expeditiously as practicable in the peculiar circumstances of the
case, thereby
fully complying with the provisions of Art. 22 ( 5) of the Con')titu·
tion.
This Court in Ujagar Singh v. The State of Punjab(l)
while construing the words "as soon as may be" in s. 7 of the
Prev,·mtive Detention Act, 4 of 1950 said that these words mean
reasonable dispatch and what is reasonable dispatch depends on
the facts of each case, it being not possible to set down an arbi·
trary time limit.
Recently in a number of decis~ons this. Court
ha<; taken a similar view. No precedent has been brought to our
notice on the authority of which we may be obliged to hold that
the reasons contained in the explanation before us do not sati~
factorily account for the delay of 22 days and that the detention
must on that account be held to have become invalid .. On the
other hand a recent decision of this Court dated Julv 31, 1972
in Amiya Kumar Karmarkar v. State of West Bengal( 2 )
delay
of 21 days in somewhat similar circumstances was held not .to
amount to inordinate delay so as to render the detention invalid.
~-· ,-----------
(1) £l9S2} S. C. R. 756.
(2) W.P. No. 190 of 1972.
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S. C. BOSE v. DIST. MAGISTRATE (Dua, ].)
8 63
Shri Chatterjee faintly contended that according to the veri·
.fication of the counter-affidavit the conteuts of para 10 are hased
on infortnaLion derived from the records and, , therefore,
this
should more appropriately have been affirmed by the District
MaJtistrate and not by lthe Deputy Secretary of the Homo
(Special) Department. This submission seems to us to be miBconceived. In the State of West Bengal a Special Section ~Jf tho
Home Department has been created for the purpose of dealing
with the law and order situation. In para 6(h) of the counter~
affidavit it ij stated that on November 23, 1971 the Home !)e..
part.ment (Special . Section) received the petitioner!s representation.
From para 8 of the counter-affidavit it appears that tho
said representation was addressed to the Assistant Secretary, Home,
(Special ) Department. It is indeed this Department which, as
suggested in para 24 of the counter-affidavit, has in its custody,
relevant records of the State Government from which the required
relevant infonnation has been derived by 'the depom~nt who is the
Deputy Secretary of the Home (Special) Department, Government of West Bengal. He has affirmed that he has gone through
the records kept in the Special Section and that he is well·acquaint~
ed with the facts and circumstances of the case. It is noteworthy
that in this case there is no chaUenge to the bona fides of the
officer (District Magistrate, Dunzapur) making •hoe order of detention : had there been such a challenge one mi!zht have as a rulo
expected the officer concerned to file an affidavit controverting
that challenge. This contention is thus also unacceptable.
Shri Chatterjee also submitted that there is no material on tho
record suggesting that the Special Section itself did not continuo
to function effectively by reason of the five grounds contained in
the explanation for the delay in the considering the petitioner's
represen' ation.
According to the learned counsel 'this Section
should not ·have taken more than just seven days for makin~
available to the State Government the requisrte material for performing i'ts constitutional duty as contemplated ~Y ~rt. 22 ( 5).
Shri Chatterjee indeed went to the lenl:!th of sug~stmg that the
explanation contained in the counter.affidavit was an after-thought.
We are whollv unable to agree with this submission. The very
fact that a Special Section of the Home Department was constdered necessary to be created in the Sta·oe of West Bengal for
dealing with inter alia the cases of detenues, convincingly <;uggests that the situation there was far from normal; besides it is
a matter of public historv of which iudicial notice c1n be -raken,
and indeed even Shri Chatterjee could not controvert it, that for
several mon1h~ nrecedin!! the Tndo-P~k war which be{!l'ln on
December 3, 1971, there was a continuous influx of refugees
(runnhw into several millions) from. wh~t was then known a!!
East Pakistan and is now free Republic of Bangia Desh and that
864
SUPREME COURT REPORTS
[1973] 1 s.c.a.
on our eastern borders the situation was anything but n01mal.
Indeed, this unprecedented influx of refugees from the very nature
of things could not but give rise to colossal problems affecting
inter alia the law and order situation and maintenance of _security
in the State of West Bengal. Between November 23 and Decem~
ber 16, 1971.. therefore, the entire Home Department in West
Bengal, including its Special Section which owed its birth to the
urgent need of dealing with the. detenus and other allied problems, can Je~timately be assumed to have been under conside1able stress and strain on account of the vexed problem posed
by the indiscriminate influx of refugees· with unknown antece·
dents from across our eastern borders. We are, therefore, wholly
unable to agree with Shri Chatterjee that there is no relevant
material fQr holding that the workin~ of the Special Section of
the Home Department was also adversely affected for the reasons
contained in the respondent's explanation.
The two grounds on the basis of which the petitioner has been
detained are :
''On 8-10-71 at about 13-45 hours you along with
your associates J?ulal Chandra Das and 30/35 others,
belonging to CPI (M) with a view to reduce your political om?Qnents to submission and passivity, being a~!Iled
with lethal weapon like daggers de. stopped D.o.; P.
Bus No. WGH 7664 forcibly between 24th and :26th
street on Sibaii Road, throwing brickbats, pulled down
tthe driver from the bus, assaulted him and stabbed
Shri Jiten Chowdhury of 8/9 Akbar Road, a dri ·,.;r of
D S.P. Bus, belonging to CPI, who was travelling in the
said bus and murdered him. Your act cr~ated a·general
sense of panic and insecurity ir. the minds of the resi~
dents of the area of Sibaii Road in A Zone Steel Township, who could not follow their normal avocations for
a few days after the incident under the influence of
terror.
2. Following a series of interparty _clashes on
8-1 0-71 curfew orders were promulgated under section
144 Cr. P.C. in D.S~P. Township between 6 p.m. and
5 a.m. with effect from 8-10-71. On 13-10-71 during
the curfew hours at about 20-15 hours you along with
your associatec; Dulal Chandra Das and others belonf!ing
to CPI(M) bein!! armed with leth!il weap?rts li~e bom~s,
knives etc., attacked lorrv no. WGD 536 m whtch poltce
party un<ter 'he leadership of H.C/1209 Anii Kumar
Samanta of B Zone O.P. was on patrol. duty. You
hurled bomb aiming the police party with a view to lill
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S. c. COSE v. DIST. MAOISTAATB (Dua, J.)
865
them near street no. 1 of Tilak Road. 1be bomb missed
'them and it exploded on the road. the police party
after the explosion chased you and your associates and
could arrest you and 2 others, while others fte4 away.
On search o:ue knife and a cycle chain was recovered
from pOssession of Samaresh Bose.
Your act was
intended to cow down the police and your political
opponents by terror for promoting the objectives of the
party to which you belong. By attempting to murder
poli~:e perioD.nel engaged in maintenance of public order
in the residential township area within curfew period)
you created a ~nse of panic and insecurity in the minds
of local people to such an extent that they were hesitan~
to pursue their normal avocations for a considerable
period after tlle incident.,,
The learned counsel faintly suggested that on December 8, 1971
the hdo-Pak war was at its height and, therefore, it ii inconceivable that the incident mentioned in gmund no. 1 could have
occurred oo that day becauoo no one would have been so reckless
as to dare to indulge in such a viol~t activity, when armed forces
must be deemed to be present in the State in large numbers for
fi~htin~ war on the .eastern border. This contention is difficult
to accept.
The fact of the occurrence having taken place must
be accepted as stated in the _g,rounds because the subjective satisfaction of the detaining authority on this point is final.
Indeed,
ilt has also been affinned in the counter-affidavit. Once. the occurrence is acce-pted, then, even on Shri Chatterjoo's own line of
reasonin~ the necessity of the order for the detention of the petitioner and his associates would appear too obvious to require any
furt.her proof. This occurrence highlights the terrorising character
of the petitioner's party.
The learned counsel then urged that both the grounds ere
va~e because the expression "political opponents" has not been
explained with precision. In our opinion, the learned counsel is
not quite correct.in his. submission. In ground no. 1 it is clearly
stated that the petitioner and his associates belongin~ to CPI(M).
'With a view to· reduce their -oolitical opponents to submission and
passivity, being armed with lethal weapons etc., -stabbed Shri Jiten
Choudhury, a driver of D.S.P. (Durgapur Steel Project) Bus
belonging to the C.P.l. (emphasis supplied). The political parties are, therefore, quite clearly and specifically referred to in
ground no. 1. It cannot be said tha.t the petitioner was kept in,
the dark or that he was unable to understand the reference to the
political opponents in this ~ound and · was, therefore. not in a
·position to make a proper, effective reprec;entation. In J!fQund
no. 2 undoubtedly there is no reference to C.P.I. such as is found
in ground no. 1. But in our opinion ground no. 2 has . to be
~Lt72Sup.CI/73
866
SUPREME COUitT ltlPORTS
[1973 J 1 S.C.R.
read and understood in the light of the reference made to the
political oppouents in ground no. 1. The two grounds have to_
be read together in this respect as they are clearly inter-linked.
Reference in ground no. 2 to a series of inter-party clashes on
October 8, makes the position further clear. Ground no. 2 states
that the petitioner's act wa! intended to cow down the police and
the political opponents by terror for promoting the objectives of
the party to which he belonged.
The petitioner's party being
clearly specified in ground no. 1 which is inter-linked with ground
no. 2, the challenge on the ground of vagueness or ambiguity in
.ground no. 2 must be held to be devoid of merit.
Shri Chatterjee 1then said that this ground does not give rise
to any problem of public order.
We are unable to .accept this
submission.
Attempting to murder police ·personnel engaged. on
patrol duty in the residential township area during curfew period
in order to overawe ~hem is, in our view, an act which would
obviously create a feeling of panic, alann and insecurity 'in the
mind~ of the local inhabitanti in general : it would also suggeit
that any one opposing the political ideology of the petitioner's
party would be similarly exposed to violence at the hands of
the petitioner and his associates, who are not afraid even of the
police force.
This clearly illustrates how direct and extensive i~;
the reach of this crime en the general public.
The faint su~gei
tion tha:t during curfew time th~ incident mentioned in gro··nd
no. 2 could not reasonably raise any problem of public order
because there w:--uld hardly be many members of the public pre-
~:~nt in the stn:.ets, ~eems to us to be misconceived. The incident
is said to have taken place at abotllt 8-15 p.m. on Octob~r 13.
1971 during curfew hours.
Tho area in question in residential
township area.
People, though not moving about in the streets,
would normally speaking be awake in their own houses and they
could not be unaware of such a serious clash between the petitioner and his associates a.rmed with bombs etc., on the one side
and the police patrol party on the other, on whom the bomb&
were hurled. This clash must have caused serious disturbance of
peace and ltratJquillitv in the Iocalitv and would inevitably had
attracted attention of its residont9. Attack with bombs and other
lethal weapqns on police· patrol party in the circumstances .::annot
but hav.e a !!rave impact on public order and on even tempo of
the life of the community.
People, thoueh keeping in-doorg in
their houses, would quite naturally ge( panic-stricken and feet
frightened ~.t'Q. move about· freely in the performance of their
normal daily activities : they are also likely to feel scared of
movinl:! out durine: curfew hours with the permission of the authoritief; concerned for doing even most urgent work. Reference was
made bv Shri Chatterjee to the decision of this Court in Re :
Sushanta Goswami(l) where the incidents relied upon by 1he
. (II [1969] 3 S.C. R. 138.
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s. p. BOSE v. DIST, MAGISTRATE (Dua, J.)
867
dctaiJlillg authori~ w~re held to reJ,ato only to the problem of law
1d order.
The mcJdents there do not seem to bear any com·
Jll . 11 with those before :JS ar.d the petitioner's·counsel also ulti·
~Y did not !eriously press the point. The decision reporfoi
•• Sudhir Kumar Saha v. Commissioner, Calcutta(l) ·deals wita
:
case of stray incidents and does not constitU'te any bi.IJdinl
pc~ent for the case in hand. Reference was further made to
B A.run Gho!h v. State .of West B:ngal(
2
) but. there again the acts
cJ the detenu were dtr~~ed agamst the faml}y of one indhid~l
and not a_gainst women m general in the locality. It was held ia
tho reported case that the detenu•s conduct however reprehen·
Jiblo did not create tho situation where it could be said that the
life of the community at large was being seriously disturbed or .
C J)Ut out of ~ear : in other words that there was a breach, or likelihood of a breach; of public order. The reported case is clearly
disinl1:llishable.
"Th.~ . acts imputed to :he petitioner in the case
in band directly raise problem of "public order.
Th~ petitioner
a.od h.ia associates belong to a political party and the two grounds
a.re founded on inter-linked incidents, which are closely related
D to inter-party clashes precedin!! the promulgatiort of the curfow
order on October 8, 1971 fo1lowin~ their political opponent Jikn
Choudhury's murder. The second incid-ent is a direct violent
cwh.with the police force during the curfew period. It is, there·
fore, not possible to sustain Shri Chatterjee's contention that these
two ~ounds do not raiso the problem of public order. These
E facts seem to rear a clo~l! resembla.ncc to those of A miya Kumar
KMM~Jkar (Supra).
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On behalf of the respondent our attenotibn was drawn to
Sh}•amal Chakraborty v. Commissioner of Police, Caicutrae>
where the Question was discussed ir~ these words :
"The Question which arose is this : do the grounds
reproduced above relate merely to maintenance of order
or do they relate to. the maintenance of public order ?
It will bo noticed that the detenu in each of these cases
acttd alon~t with associates who were armed with lailiis,
iron rods, acid bulbs, Cite. It is clearly said in ~ound
no. 1 that he committed a riot and indiscriminately used
aciu bulbs iron rods lathis etc. enda~erin~ human
lives.
Th~ ~und ~annat be said to have rdc:renc-!
merely to maintecance of ord!r because it aff~ts the
locality and everybody wbo live.<; in the locality. Similarly, in the second ground, bo along wit? his ~ociat~s
~revented the police constabt·!S from dtscb~r~mg. the1r
lawful duties and thus affected everybody hvmg m the
_ _ locality,
~~l ll97iJJYsr R:J""w.--
(2) (1970) 3 S.C.R. 288.
(3) (197Cl) 3 S.C.R. 762.
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868
SUPREME COURT REPOR.TS
[1973] 1 S.C.R.
In .suound no. 3, again the whole locality was in
danger as the detenu aild his assocjates were armed
with deadly weapons and these were in fact used for indisctiminately endan~ring human lives in the locality.
The object of the detenu seems to have been to terrorise
the locality and bring the whole machinery of l9,W and
order to a halt. We are unable to say that the Commissioner of Police cOuld not in view of these grounds
come to the conclusion that the detenu was likely to act
in a manner prejudicial to the maintenan£e of public
order in the future and it was necessary to .prevent· him
from doing 50. The fact that public order is affected by
an act which was also an offence under the Indian Penal
Code seems to us to be irrelevant."
The reasoning of this decision fully applies to the case before us.
It is quite clear that the petitioner and his associates had indulged
in· acts prima facie designed to teno~:jse people, to over~owe their
JtOlitical ~pponents, and 1o cow down the police force, and all
this must have the inevHai;Je effect of disturbing and paralysing
the nonnal, peaceful c;vic life of the general public. The magnitude of !11e impact of the activities of the peHtioner and his assoe.iates on the peace and tranquillity of the law-abiding. orderly
society clearly shows that they were directed. to brin~ a halt to
the machinery of Jaw and order.
This must necessarily raise a
problem affecting public order. On these grounds the detention
order cannot but be held to be justified. As a preventive measure
this order ri_g;htJy ensures protection of liberty of the public
wron~ully endangered by the petitioner's -terrorising activities.
The fact that the petitioner was discharged in a criminal case
for the offences for which he was arrested on October 8, ·1971
and tha't the detention order is dated October 26, 1971 when
he was still in jail custody would not render the detenJion order
either iHe_gal or mala fide. After the order of discharge the petitioner was .e;oin_g to be released soon and if the detaining authority felt satisfied on the material before it which was germane to
the object of detention, then, the petitioner's detention is n9t open
to challenge in be present proceedings.
His detention ·.is preventive : he is to be prevented from acting in future in any
manner prejudicial to the maintenance of public order.
His
earlier dischar~~ in a court of law cannot preclude the detaining
authority from coming to a· subjective satisfaction ab?ut the
necessity of the petitioner's detention on grounds which are
~ennane and relevant.
Before closing we may refer to another point sought to be
raised by Shri Chatterjee.
He has referred us to the Defence
of India Act, 42 of 1971 which came into force on December 4,
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S. C. BOS! v. DIST. MAGIJnATB (Dua, J.)
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1971. -This ~nactment pbrports to amend the Act in several res·
pects. It adds s. 17 A after s. 17 and the new section provides
"Notwith~Wldiag anytbina contained in the foregoinJZ provisions of this Act, during the period of
operatipn of the Proclamation of Emergency issued on
the 3rd day of Decembert 1971, any person (including
a foreigner) in respect of whom an order of detention
has been ·made under this Act, may be detained without obtainin~ the opinion of the Advisory Board for a
period longer than three moD'ths, but not exceeduig two
years from the date of his detention in any of the
foJiowing classes of cases or under any of the following
circumstances, namely :
(a) where such person had been detained with a
view to preventin~ him from acting in any manner prejudicial to the defence of India, relations of India with
forei~ powers or the security of India ...... "
The ·learned counsel apprehending that this amendment of the
Act may entail the peti~ioner's detention beyond a period of 12
JD.Onths as contemplated in the unamended Act, desired to challenge this amendment.
In the counter-affidavit, howe-rer, it is averred in para 6A
that the State Government,_ while affirming the petitioner's order
of detention directed on December 24, 1971 that his detention
is to continue till the expiration of 12 months from the _ da-te of
his detentiQn. The pregent detention of the pethioner is in any
event valid under the unamended Act. In view of this and of
para 6A of the counter-affidavit Shri Chat:teriee did not .press his
challenge to the validity of the afotementioned amendment.
We
are; therefore, not called upon to consider the effect of •the said
amendment on the present case. It would, however, be open to
the petitioner 1o take whatever ·suitable steps are open to him
after the expiry of 12 months from the date of his detention if
he feels ag~rieved.
No fresh arguments were addressed in the other two w .. it
petitions and it was conceded that our order in W.P. No. 216
of 1972 would also. c~ver tho other two petitions. The final reault
·is that all the three petitions fail and are dismissed.
S.B.W.
Petitions dismissed.