REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1332 OF 2008

(Arising out of SLP (Crl) No.4386 of 2008)

K.K. Saravana Babu .. Appellant (Detenu)

Versus

State of Tamil Nadu & Another .. Respondents

J U D G M E N T

Dalveer Bhandari, J.

1.Leave granted.

2.This appeal is directed against the judgment of the High

Court of Madras passed in Habeas Corpus Petition No.1677 of

2007 on 29

th

April, 2008.

3.The detenu has challenged the detention order under

Section 3(1) of the Tamil Nadu Prevention of Dangerous

Activities of Bootleggers, Drug Offenders, Forest Offenders,

Goondas, Immoral Traffic Offenders, Sand Offenders, Slum

Grabbers and Video Pirates Act, 1982 (Tamil Nadu Act 14 of

1982) passed vide Order No. 360/07 dated 28.8.2007.

4.The detenu is involved in a land grabbing case registered

at St. Thomas Mount Central Crime Branch Cr. No. 70/2006

under sections 420, 465, 468 read with 471 and 120(B) IPC

and the said case is pending trial before the court.

Subsequently another case was registered against the detenu

during 2007 in Central Crime Branch, Chennai City X Crime

No. 364/2007 under sections 420, 465, 466, 467, 468 read

with 471 and 120(B) IPC for the offence of land grabbing and

his activities are said to have been adverse to the interest of

the land owners and prospective buyers. The modus

operandi of the detenu in both the cases is land grabbing in a

clandestine manner. The detaining authority had considered

the said aspect and came to the conclusion that in case the

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detenu is let out on bail he would again indulge in similar type

of offences and, therefore, it is imperative to detain him. The

order of detention came to be passed keeping in mind the

welfare of public who are owning lands as well as the

prospective buyers.

5.It may be pertinent to mention that a number of bail

applications of the detenu were dismissed and he was already

in jail on 28.08.2007 when the detention order was served on

him.

6.The detenu made a representation on 14.9.2007 to the

Secretary and the Advisory Board seeking revocation of the

detention order, which was rejected on 14.10.2007.

Thereafter, the detenu filed a Habeas Corpus petition seeking

quashing of the detention order. The said petition was

dismissed on 29.04.2008. The detenu aggrieved by the said

order preferred a special leave petition before this court. In

pursuance to the notice issued by this court, a counter

affidavit has been filed by the respondent.

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7.Mr. Huzefa Ahmadi, learned counsel appearing for the

detenu submitted that the detention order passed against the

detenu is illegal and unsustainable in law. The detention

order is based on aforementioned two criminal cases.

According to the detenu, all allegations incorporated in both

the criminal cases if taken to be true even then the detenu

cannot be said to have indulged in activities prejudicial to the

public order.

8.It was contended by the detenu that the grounds of

detention are based on cases pertaining to law and order

problem. The distinction between ‘law and order’ and ‘public

order’ has been very clearly defined in a catena of judgments

of this court. The clear legal position which emerges from the

number of judgments of this court clearly leads to the definite

conclusion that if allegations are taken to be correct even then

the activities of the detenu do not fall in the category of cases

affecting the public order.

9.Mr. Ahmadi also submitted that the High Court has

seriously erred in not properly appreciating the distinction

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between “law and order” and “public order” and rejected the

habeas corpus petition preferred by the detenu.

10.Mr. Ahmadi further contended that three bail

applications preferred by the detenu were rejected and no bail

application was pending when the detention order was

passed, therefore, the apprehension expressed by the

detaining authority that there was imminent possibility of

detenu likely to be released on bail was merely ipse dixit of the

detaining authority without any material on record.

11.Mr. Ahmadi submitted that the detention order ex facie is

arbitrary, illegal, mala fide and passed with an oblique motive.

He also contended that the State because of wrongful

detention has deprived the detenu of his fundamental rights

enshrined under Articles 21 and 22 of the Constitution of

India.

12.Mr. T.L.V. Iyer, learned senior counsel appearing for the

State of Tamil Nadu submitted that the detaining authority

after arriving at a subjective satisfaction clamped the above

order of detention on the basis of an appraisal of the material

placed by the sponsoring authority.

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13.Mr. Iyer further submitted that the detention order does

not constitute an infringement of the fundamental rights

guaranteed to the detenu under Articles 19, 21 and 22(5) of

the Constitution of India. Mr. Iyer contended that the detenu

is a slum grabber and involved in crime No. 70/2006 under

sections 420, 465, 468 read with 471 and 120(B) IPC and

crime No. 364/2007 under sections 420, 465, 466, 467, 468

read with 471 and 120(B) IPC and that, keeping in mind the

seriousness of the offence of land grabbing, the detaining

authority was justified in passing the detention order.

14.We have heard the learned counsel for the parties at

length and carefully gone through the record of the case.

15.This court on several occasions examined the concepts of

“law and order” and “public Order”. Immediately after the

Constitution came into force, a Constitution Bench of this

court in Brij Bhushan & Another v. The State of Delhi

(1950) SCR 605 dealt with a case pertaining to public order.

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The court observed that “public order” may well be

paraphrased in the context as “public tranquillity”.

16.Another celebrated Constitution Bench judgment of this

court is in the case of Romesh Thappar v. The State of

Madras (1950) SCR 594. In this case, Romesh Thappar, a

printer, publisher and editor of weekly journal in English

called Cross Roads printed and published in Bombay was

detained under the Madras Maintenance of Public Order Act,

1949. The detention order was challenged directly in the

Supreme Court of India by filing a writ petition under Article

32 of the Constitution. The allegation was that the detenu

circulated documents to disturb the public tranquillity and to

create disturbance of public order and tranquillity.

17.The court observed:-

“… ‘Public order’ is an expression of wide

connotation and signifies that state of tranquillity

which prevails among the members of a political

society as a result of internal regulations enforced

by the Government which they have established ….

… it must be taken that ‘public safety’ is used as a

part of the wider concept of public order ….. ”

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18.The distinction between “public order” and “law and

order” has been carefully defined in a Constitution Bench

judgment of this court in Dr. Ram Manohar Lohia v. State

of Bihar & Others (1966) 1 SCR 709. In this judgment,

Hidayatullah, J. by giving various illustrations clearly defined

the “public order” and “law and order”. Relevant portion of

the judgment reads thus:

“….Does the expression "public order" take in every

kind of disorder or only some? The answer to this

serves to distinguish "public order" from "law and

order" because the latter undoubtedly takes in all of

them. Public order if disturbed, must lead to public

disorder. Every breach of the peace does not lead to

public disorder. When two drunkards quarrel and

fight there is disorder but not public disorder. They

can be dealt with under the powers to maintain law

and order but cannot be detained on the ground

that they were disturbing public order. Suppose

that the two fighters were of rival communities and

one of them tried to raise communal passions. The

problem is still one of law and order but it raises

the apprehension of public disorder. Other

examples can be imagined. The contravention of law

always affects order but before it can be said to

affect public order, it must affect the community or

the public at large. A mere disturbance of law and

order leading to disorder is thus not necessarily

sufficient for action under the Defence of India Act

but disturbances which subvert the public order

are. A District Magistrate is entitled to take action

under Rule 30(l)(b) to prevent subversion of public

order but not in aid of maintenance of law and

order under ordinary circumstances.

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It will thus appear that just as "public order"

in the rulings of this Court (earlier cited) was said to

comprehend disorders of less gravity than those

affecting "security of State", "law and order" also

comprehends disorders of less gravity than those

affecting "public order". One has to imagine three

concentric circles. Law and order represents the

largest circle within which is the next circle

representing public order and the smallest circle

represents security of State. It is then easy to see

that an act may affect law and order but not public

order just as an act may affect public order but not

security of the State….”

19.In Arun Ghosh v. State of West Bengal (1970) 1 SCC

98, Hidayatullah, J. again had an occasion to deal with the

question of “public order” and “law and order”. In this

judgment, by giving various illustrations, very serious effort

has been made to explain the basic distinction between

“public order” and “law and order”. The relevant portion

reads as under:

“…Public order was said to embrace more of the

community than law and order. Public order is the

even tempo of the life of the community taking the

country as a whole or even a specified locality.

Disturbance of public order is to be distinguished

from acts directed against individuals which do not

disturb the society to the extent of causing a

general disturbance of public tranquillity. It is the

degree of disturbance and its affect upon the life of

the community in a locality which determines

whether the disturbance amounts only to a breach

of law and order. Take for instance, a man stabs

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another. People may be shocked and even

disturbed, but the life of the community keeps

moving at an even tempo, however much one may

dislike the act. Take another case of a town where

there is communal tension. A man stabs a member

of the other community. This is an act of a very

different sort. Its implications are deeper and it

affects the even tempo of life and public order is

jeopardized because the repercussions of the act

embrace large sections of the community and incite

them to make further breaches of the law and order

and to subvert the public order. An act by itself is

not determinant of its own gravity. In its quality it

may not differ from another but in its potentiality it

may be very different. Take the case of assault on

girls. A guest at a hotel may kiss or make advances

to half a dozen chamber maids. He may annoy them

and also the management but he does not cause

disturbance of public order. He may even have a

fracas with the friends of one of the girls but even

then it would be a case of breach of law and order

only. Take another case of a man who molests

women in lonely places. As a result of his activities

girls going to colleges and schools are in constant

danger and fear. Women going for their ordinary

business are afraid of being waylaid and assaulted.

The activity of this man in its essential quality is

not different from the act of the other man but in its

potentiality and in its affect upon the public

tranquillity there is a vast difference. The act of the

man who molests the girls in lonely places causes a

disturbance in the even tempo of living which is the

first requirement of public order. He disturbs the

society and the community. His act makes all the

women apprehensive of their honour and he can be

said to be causing disturbance of public order and

not merely committing individual actions which

may be taken note of by the criminal prosecution

agencies. It means therefore that the question

whether a man has only committed a breach of law

and order or has acted in a manner likely to cause a

disturbance of the public order is a question of

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degree and the extent of the reach of the act upon

the society…”

20.The concept of ‘public order’ and ‘law and order’ has

been dealt with in the case of Pushkar Mukherjee & Others

v. The State of West Bengal, AIR 1970 SC 852. In this case,

the Court had relied on the important work of Dr. Allen on

‘Legal Duties’ and spelled out the distinction between ‘public’

and ‘private’ crimes in the realm of jurisprudence. In

considering the material elements of crime, the historic tests

which each community applies are intrinsic wrongfulness and

social expediency which are the two most important factors

which have led to the designation of certain conduct as

criminal. Dr. Allen has distinguished ‘public’ and ‘private’

crimes in the sense that some offences primarily injure

specific persons and only secondarily the public interest, while

others directly injure the public interest and affect individuals

only remotely. There is a broad distinction along these lines,

but differences naturally arise in the application of any such

test.

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21.This court in Babul Mitra alias Anil Mitra v. State of

West Bengal & Others (1973) 1 SCC 393 had an occasion to

deal with the question of “public order” and “law and order”.

The court observed that the true distinction between the areas

of “law and order” and “public Order” is one of degree and

extent of the reach of the act in question upon society. The

court pointed out that the act by itself is not determinant of its

own gravity. In its quality it may not differ but in its

potentiality it may be very different.

22.In Dipak Bose alias Naripada v. State of West

Bengal (1973) 4 SCC 43, a three-Judge Bench of this court

explained the distinction between “law and order” and “public

order” by giving illustrations. Relevant portion reads as

under:

“..Every assault in a public place like a public road

and terminating in the death of a victim is likely to

cause horror and even panic and terror in those

who are the spectators. But that does not mean

that all of such incidents do necessarily cause

disturbance or dislocation of the community life of

the localities in which they are committed. There is

nothing in the two incidents set out in the grounds

in the present case to suggest that either of them

was of that kind and gravity which would jeopardise

the maintenance of public order. No doubt bombs

were said to have been carried by those who are

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alleged to have committed the two acts stated in the

grounds. Possibly that was done to terrify the

respective victims and prevent them from offering

resistance. But it is not alleged in the grounds that

they were exploded to cause terror in the locality so

that those living there would be prevented from

following their usual avocations of life. The two

incidents alleged against the petitioner, thus,

pertained to specific individuals, and therefore,

related to and fell within the area of law and order.

In respect of such acts the drastic provisions of the

Act are not contemplated to be resorted to and the

ordinary provisions of our penal laws would be

sufficient to cope with them.”

23.In Kuso Sah v. The State of Bihar & Others (1974) 1

SCC 185, this court had also considered the issue of “public

order”. The court observed thus:

“These acts may raise problems of law and order

but we find it impossible to see their impact on

public order. The two concepts have well defined

contours, it being well established that stray and

unorganised crimes of theft and assault are not

matters of public order since they do not tend to

affect the even flow of public life. Infractions of law

are bound in some measure to lead to disorder but

every infraction of law does not necessarily result in

public disorder….”

24.This court in another important case Ashok Kumar v.

Delhi Administration & Others (1982) 2 SCC 403 clearly

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spelled out a distinction between ‘law and order’ and ‘public

order’. In this case, the court observed as under:-

“13.The true distinction between the areas of

“public order” and “law and order” lies not in the

nature or quality of the act, but in the degree and

extent of its reach upon society. The distinction

between the two concepts of “law and order” and

“public order” is a fine one but this does not mean

that there can be no overlapping. Acts similar in

nature but committed in different contexts and

circumstances might cause different reactions. In

one case it might affect specific individuals only and

therefore touch the problem of law and order, while

in another it might affect public order. The act by

itself therefore is not detrimental of its own gravity.

It is the potentiality of the act to disturb the even

tempo of the life of the community which makes it

prejudicial to the maintenance of public order….”

25.It has to be seen whether the detenu’s activity had any

impact on the local community or to put it in the words of

Hidayatullah, J., had the act of the detenu disturbed the even

tempo of the life of the community of that specified locality?

26.Mr. Ahmadi, learned counsel for the detenu submitted

that the detenu was in jail at the time when the detention

order was passed. His three bail applications were rejected.

Since there was no bail application pending, therefore, there

was no imminent possibility of his being released by the court.

The detenu’s coming out on bail was merely ipse dixit of the

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detaining authority unsupported by any material whatsoever.

There was no cogent material before the detaining authority

on the basis of which the detaining authority could be

satisfied that the detenu was likely to be released on bail. In

absence of any such material on record, the mere ipse dixit of

the detaining authority is not sufficient to sustain the order of

detention. The learned counsel for the detenu also placed

reliance on Ramesh Yadav v. District Magistrate, Etah &

Others (1985) 4 SCC 232. In this case the court observed as

under:-

“The order of detention was passed as the detaining

authority was apprehensive that in case the detenu

was released on bail he would again carry on his

criminal activities in the area. If the apprehension

of the detaining authority was true, the bail

application had to be opposed and in case bail was

granted, challenge against that order in the higher

forum had to be raised. Merely on the ground that

an accused in detention as an under-trial prisoner

was likely to get bail an order of detention under

the National Security Act should not ordinarily be

passed. We are inclined to agree with counsel for

the petitioner that the order of detention in the

circumstances is not sustainable and is contrary to

the well settled principles indicated by this Court in

a series of cases relating to preventive detention.

The impugned order, therefore, has to be quashed.”

27.Mr. Ahmadi, the learned counsel further placed reliance

on Binod Singh v. District Magistrate, Dhanbad, Bihar &

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Others (1986) 4 SCC 416. In this case, the court observed as

follows:-

“7.It is well settled in our constitutional

framework that the power of directing preventive

detention given to the appropriate authorities must

be exercised in exceptional cases as contemplated

by the various provisions of the different statutes

dealing with preventive detention and should be

used with great deal of circumspection. There must

be awareness of the facts necessitating preventive

custody of a person for social defence. If a man is in

custody and there is no imminent possibility of his

being released, the power of preventive detention

should not be exercised. In the instant case when

the actual order of detention was served upon the

detenu, the detenu was in jail. There is no

indication that this factor or the question that the

said detenu might be released or that there was

such a possibility of his release, was taken into

consideration by the detaining authority properly

and seriously before the service of the order. A bald

statement is merely an ipse dixit of the officer. If

there were cogent materials for thinking that the

detenu might be released then these should have

been made apparent. Eternal vigilance on the part

of the authority charged with both law and order

and public order is the price which the democracy

in this country extracts from the public officials in

order to protect the fundamental freedoms of our

citizens. In the affidavits on behalf of the detaining

authority though there are indications that transfer

of the detenu from one prison to another was

considered but the need to serve the detention

order while he was in custody was not properly

considered by the detaining authority in the light of

the relevant factors. At least the records of the case

do not indicate that. If that is the position, then

however disreputable the antecedents of a person

might have been, without consideration of all the

aforesaid relevant factors, the detenu could not

have been put into preventive custody. Therefore,

though the order of preventive detention when it

was passed was not invalid and on relevant

considerations, the service of the order was not on

proper consideration.”

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28.In Commissioner of Police & Others v. C. Anita (Smt.)

(2004) 7 SCC 467, this court again examined the issue of

“public order” and “law and order” and observed thus:

“7.….The crucial issue is whether the activities of

the detenu were prejudicial to public order. While

the expression “law and order” is wider in scope

inasmuch as contravention of law always affects

order, “public order” has a narrower ambit, and

public order could be affected by only such

contravention which affects the community or the

public at large. Public order is the even tempo of life

of the community taking the country as a whole or

even a specified locality. The distinction between

the areas of “law and order” and “public order” is

one of the degree and extent of the reach of the act

in question on society. It is the potentiality of the

act to disturb the even tempo of life of the

community which makes it prejudicial to the

maintenance of the public order. If a contravention

in its effect is confined only to a few individuals

directly involved as distinct from a wide spectrum of

the public, it could raise problem of law and order

only. It is the length, magnitude and intensity of the

terror wave unleashed by a particular eruption of

disorder that helps to distinguish it as an act

affecting “public order” from that concerning “law

and order”. The question to ask is:

“Does it lead to disturbance of the

current life of the community so as to

amount to a disturbance of the public

order or does it affect merely an

individual leaving the tranquillity of the

society undisturbed?”

This question has to be faced in every case on its

facts.”

29.In R. Kalavathi v. State of Tamil Nadu (2006) 6 SCC

14, this court while dealing with the case affecting the public

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order observed that even a single act which has the propensity

of affecting the even tempo of life and public tranquillity would

be sufficient for detention.

30.Mr. Ahmadi, the learned counsel for the detenu placed

reliance on T.V. Sravanan alias S.A.R. Prasana

Venkatachaariar Chaturvedi v. State through Secretary

& Another (2006) 2 SCC 664. In this case the court observed

that when the detenu was already in custody, there was no

imminent possibility of his being released. In that event it

would not be appropriate to pass order of detention against

him. This proposition of law also seems to be well-settled, but

in view of the fact that the detenu succeeded in his threshold

submission that the detention order passed against him was

arbitrary, illegal and unsustainable because even assuming

the allegation in both the cases relied on by the detaining

authority are correct then also no case of disturbance of

public order is made out.

31.We have tried to deal with the important cases dealing

with the question of “law and order” and “public order” right

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from the case of Romesh Thappar (supra) to the latest case of

R. Kalavathi (supra). This court has been consistent in its

approach while deciding the distinction between ‘law and

order’ and ‘public order’. According to the crystallized legal

position, cases affecting the public order are those which have

great potentiality to disturb peace and tranquillity of a

particular locality or in the words of Hidayatullah, J. disturb

the even tempo of the life of the community of that specified

locality.

32.In the instant case, in the grounds of detention, two

cases have been enumerated, one of which pertains to the

offences punishable under sections 420, 465, 468 read with

471 and 120(B) IPC in Crime No.70 of 2006. Another case

pertains to Crime No.364 of 2007 registered under sections

420, 465, 466, 467, 468 read with 471 and 120(B) IPC. The

facts of these cases have been carefully examined and even

assuming the allegations of these cases as true, even then by

no stretch of imagination, the offences committed by the

detenu can be called prejudicial to public order. The detenu

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can be dealt with under the ordinary criminal law if it

becomes imperative.

33.In this view of the matter, the detention order passed

against the detenu is illegal, unsustainable and liable to be

quashed and we accordingly do so. Since we are quashing the

detention order on the threshold submission of the detenu,

therefore, it is not necessary to examine other submissions

advanced by the detenu. The detention order is accordingly

quashed. The detenu be set at liberty forthwith, if not

required in any other case. The appeal is accordingly allowed

and disposed of.

…….……………………..J.

(Dalveer Bhandari)

…….……………………..J.

(Harjit Singh Bedi)

New Delhi;

August 22, 2008.

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