Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Writ No.212 of 2013 ====================================================== 1. Raushan Singh @ Raushan Kumar Singh S/O Sri Suresh Prasad Singh R/O Village - Aini, Police Station - Bakhtiyarpur, District - Saharsa .... .... Petitioner/s Versus 1. The State Of Bihar Through The Principal Secretary, Department Of Home (Police), Government Of Bihar, Patna 2. The Principal Secretary Department Of Home ( Police ), Government Of Bihar, Patna 3. The Under Secretary Department Of Home ( Police ), Government Of Bihar, Patna 4. The District Magistrate, Saharsa 5. The Superintendent Of Police, Saharsa 6. The Superintendent Of Jail Mandal Kara, Saharsa .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Satish Kumar Singh, Adv. Mr. Dinesh Maharaj, Adv. For the State : AC to AG. ====================================================== CORAM: HONOURABLE MR. JUSTICE SHYAM KISHORE SHARMA and HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI CAV ORDER (Per: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI) 8 26-06-2013 Heard learned counsel for the petitioner as well as learned Counsel for the State. 2. The order of detention dated 11.10.2012 in terms of Section 12 (2) of the Bihar Control of Crimes Act (for brevity „the Act‟) passed by the District Magistrate/Detaining Authority, Saharsa, order of approval dated 19.10.2012 in terms of Section 12 (3) of the Act and order of confirmation dated 27.11.2012 in terms of Section 21(1), 22 of the Act permitting the petitioner to remain under preventive detention from 11.10.2012 to 10.10.2013 are the 2 subject matter of instant writ of habeas corpus. 3. Taking into account the facts incorporated in a report submitted by the S.P., Saharsa, the Sponsoring Authority, and being subjectly satisfied therewith, the learned Detaining Authority passed the order impugned which has subsequently been
Facts
approved as well as confirmed after getting opinion from the Advisory Board permitting the petitioner to remain under preventive detention from 11.10.2012 to 10.10.2013. 4. While assailing the successive orders, it has been submitted on behalf of the petitioner that though the order impugned suggests consideration of criminal antecedent of the petitioner as well as, Bihara P.S. Case No. 81/2011 dated 21.08.2011 as well as Bakhtiyarpur Balwahat P.S. Case No. 18/2011 dated 30.01.2011to be the grounds propelling the Detaining Authority over subjective satisfaction, is not at all found to be legally entertainable because of the fact that there is absence of proximity in between. The consideration of aforesaid two cases as grounds for passing of detention order happens to be more than a year before of the order impugned. Apart from the fact that no untoward incident has been reported during intervening period. There is complete lacking of application of mind in explaining the intervening delay at the end of detaining authority. 3 5. It has also been argued that after going through the order impugned dated 11.10.2012 it is apparent that the Detaining Authority was not at all aware with the fact whether petitioner was under custody or not and whether the petitioner was ever trying to get himself bailed out. Absence of aforesaid two major ingredients as identified by the Hon‟ble Apex Court makes the order impugned unvouched. 6. On the other hand, learned AC to AG while opposing the prayer made on behalf of the petitioner submitted that on account of non filing of representation at the end of petitioner debars him to challenge the successive orders because of the fact that plea of the petitioner now finds ousted under the principle of estoppels. It has further been submitted that once the petitioner had opted not to challenge the order at an initial stage, then in such circumstances he happens to be excluded from challenging the order at subsequent stage. It has further been argued that subjective satisfaction of the Detaining Authority cannot be substituted with its own finding by the court, that means to say, it happens to be beyond the judicial scrutiny. As such, the orders impugned happen to be immune from judicial interference. 7. At this stage, by way of filing of supplementary affidavit an explanation has been offered on behalf of the 4 petitioner explaining the situation by furnishing relevant documents along with order impugned in different language i.e. (English) which the petitioner did not know. 8. So far sanctity of explanation is concerned, we do not see any force because of having absence of any grievances made on behalf of the petitioner at any point of time as well as asking for documents in the language of which he was conversant with. The aforesaid plea was not allowed to surface in the main petition so much so keeping absence of theme of filing of representation away from lime-light. 9. Thus, the question now remains whether non filing of representation really estopped the petitioner from challenging the successive orders. Before coming to the issue in hand, it will be useful to have a glance over the relevant provisions governing the issue. We do not want to go in pre-independence era, however, the Constitution has taken an obligation by recognizing the basic fundamental right to its citizens under part-III irrespective of caste, creed, language, religion, race, gender, by providing freedom of expression, adaptation of profession, liberty, acquisition etc side by side their fundamental rights were also found properly protected. However, the framers were apprehensive over the stubbornness of an individual over laying 5 interest of the State, society keeping public order and safety at stake and so they provided an exception on this score as is evident from Article 22 of the Constitution under same heading. However, exercise of the power at the end of executive under the banner of Article 22 has been kept under strict surveillance which the Article 22 itself lays down. Virtually, Article-22 happens to be origin of all the laws attracting preventive detention and therefore, their existence has been acknowledged whenever the act has been subject to challenge. 10. Sub Clause-5 of the Article-22 lays down the procedure whereunder the Detaining Authority was put under obligation to make all the relevant documents (the grounds) along with order served upon the detenu at an earliest to enable the detenu to file representation before the executive which also finds place under Section 17 of the Act. Neither the Constitution nor the Act puts any sort of embargo on account of non filing of representation nor any time frame has been given thereunder for filing representation. Taking into account the purpose of presence of Article 22 whereunder executive has been vested with extraordinary power, the purpose of filing of representation by the detenu has been made available in his interest bringing the relevant material to show the order being arbitrary, motivated, 6 callous, mala fide whereupon the State was under obligation to scrutinize the order impugned inconsonance with the grounds taken by the detenu under representation to decide its continuity. Another safeguard on this score also happens to be provided under the Act wherein the representation of the detenu, if any, was also to be placed before the Advisory Board. That means to say whenever there happens to be encroachment of fundamental right by way of preventive detention, unilateral obligation has been cast over the executive to provide an opportunity to detenu to raise an objection inter-departmentally over sanctity of the orders. Though its violation has seriously been viewed but after all it happens to be Executive function which no way comes in between exercising power under Article 226 of the Constitution by the High Court whereunder inherent right has been vested to protect fundamental right of the citizen in case same is found encroached by the State.
Legal Reasoning
Therefore, non filing of representation, in our view, is not going to debar the detenu from challenging the order of detention even having failed to file the representation at an earlier stage nor such event is going to put hurdle while exercising power under Article 226 of the Constitution by the High Court. 11. Now coming to the facts of the case, it is apparent that the order of detention dated 11.10.2012 passed in terms of 7 Section 12(2) of the Act totally lacs appreciation of fact in proper direction. From careful perusal of the order, it is evident that the Detaining Authority was not at all conclusive whether petitioner was under custody and whether any genuine effort was being taken at his end in getting himself bailed out. It is true that having the detenu under custody will not anyway disentitle the Detaining Authority to direct him to be kept under preventive detention in anticipation of his being released from custody and further having his presence obnoxious to the public order and safety. At this stage, the principle laid down by the Hon‟ble Apex Court in Hardhan Saha v. State of Bengal reported in 1975(3) SCC 198 is to be taken into consideration whereunder para-34 deals with the various principles guarding the procedure to be followed during course of passing of order of preventive detention. “34. … First, merely because a detenu is liable to be tried in a criminal court for the commission of a criminal offence or to be proceeded against for preventing him from committing offences dealt with in Chapter VIII of the Code of Criminal Procedure would not by itself debar the Government from taking action for his detention under the Act. Second, the fact that the police arrests a person and later on enlarges him on bail and initiates steps to prosecute him under the Code of Criminal Procedure and even lodges a first information report may be no bar against the District Magistrate issuing an order under the preventive detention. Third, where the person concerned is actually in jail custody at the time when an order of detention is passed against him and is not likely to be released for a fair length of time, it may 8 be possible to contend that there could be no satisfaction on the part of the detaining authority as to the likelihood of such a person indulging in activities which would jeopardise the security of the State or the public order. Fourth, the mere circumstance that a detention order is passed during the pendency of the prosecution will not violate [sic] the order. Fifth, the order of detention is a precautionary measure. It is based on a reasonable prognosis of the future behaviour of a person based on his past conduct in the light of the surrounding circumstances.” 12. While passing the order of preventive detention against a person being under custody since before, certain criteria have been identified and laid down by the Hon‟ble Apex Court to be followed by detaining authority in Kamrunnisa v. Union of India reported in 1991 (1) SCC 128 which has further magnified in the case of Union of India v. Paul Manikem reported in 2003(8) SCC 342. “14. … Where detention orders are passed in relation to persons who are already in jail under some other laws, the detaining authorities should apply their mind and show their awareness in this regard in the grounds of detention, the chances of release of such persons on bail. The necessity of keeping such persons in detention under the preventive detention laws has to be clearly indicated. Subsisting custody of the detenu by itself does not invalidate an order of his preventive detention, and the decision in this regard must depend on the facts of the particular case. Preventive detention being necessary to prevent the detenu from acting in any manner prejudicial to the security of the State or to the maintenance of public order or economic stability, etc. ordinarily, it is not needed when the detenu is already in custody. The detaining authority must show its awareness to the fact of subsisting custody of the detenu and take that factor into account while making the order. If the detaining authority is reasonably satisfied with cogent materials that there is likelihood of his release and in view of his antecedent activities which are proximate in point of time, he must be detained in 9 order to prevent him from indulging in such prejudicial activities, the detention order can be validly made. Where the detention order in respect of a person already in custody does not indicate that the detenu was likely to be released on bail, the order would be vitiated. … The point was gone into detail in Kamarunnissa v. Union of India. The principles were set out as follows: even in the case of a person in custody, a detention order can be validly passed: (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has a reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his release on bail, and (b) that on being released, he would in all probability indulge in prejudicial activities; and (3) if it is felt essential to detain him to prevent him from so doing. If an order is passed after recording satisfaction in that regard, the order would be valid. In the case at hand the order of detention and grounds of detention show an awareness of custody and/or a possibility of release on bail.” 13. Now coming to another aspect, certainly there happens to be lack of proximity in between the incidents which have been taken as a ground for passing of order of preventive detention which are of dated 30.01.2011 as well as 21.08.2011 while the order impugned happens to be dated 11.10.12 that means to say after expiry of one year two months of the latest reported incident. The aforesaid theme has been taken into consideration by the Hon‟ble Apex Court in the case of Saeed Zakir Hussain Malik v. State of Maharashtra & Ors reported in 2012 (8) SCC 233. 15. Now, coming to the second contention, namely, delay in passing the detention order, it is the claim of the appellant that there was a delay of 15 months in passing the order of detention. It is pointed out that though DRI came to know of the incident by recording the statement of one Vijay Mehta on 3-8-2005 and the detenu was also arrested on 21-10-2005 and all the documents had also come into existence including the documents annexed with the grounds of detention, but still the authorities passed the order of detention only on 14-11-2006 10 after an unreasonable and inordinate delay of 15 months. It is also highlighted that during this period the detenu had not come into any adverse notice of the authorities and was also not alleged to have indulged in any similar illegal activities. Considering this, it is contended that the alleged incident has become stale and it is too remote in point of time. It is further submitted that there is no nexus or proximity between the alleged incident and the detention order. Finally, it is pointed out that the alleged incident has become irrelevant due to long lapse of time. Hence, the inordinate and unreasonable delay in passing the detention order against the detenu vitiates the detention itself. These aspects have been highlighted by this Court in several decisions. 16. In Lakshman Khatik v. State of W.B.(1974)4 SCC (Cri) 289 a three-Judge Bench of this Court, while considering the detention order under the Maintenance of Internal Security Act, 1971 has concluded that prompt action in such matters should be taken as soon as the incident like those which are referred to in the grounds have taken place. In the said decision, it was pointed out that all the three grounds on which the District Magistrate purports to have reached the required satisfaction are based on incidents which took place in rapid succession in the month of August 1971. The first incident of unloading five bags of rice took place in the afternoon of 3-8- 1971. The second incident took place on 5-8-1971 also in the afternoon practically at the same place as the first incident. This time also some rice was removed from the trucks carrying rice. The third incident took place in the afternoon of 20-8-1971 also at the same place. That also related to the removal of some rice from loaded trucks. In this factual scenario, this Court concluded that the District Magistrate could not have been possibly satisfied about the need for detention on 22-3-1972 having regard to the detenu‟s conduct some seven months earlier. The following conclusion is very relevant: (Lakshman Khatik case.(1974)4 SCC (Cri) 289, SCC p. 3, para 5) “5. … Indeed mere delay in passing a detention order is not conclusive, but we have to see the type of grounds given and consider whether such grounds could really weigh with an officer some seven months later in coming to the conclusion that it was necessary to detain the petitioner to prevent him from acting in a manner prejudicial to the maintenance of essential supplies of foodgrains. It is not explained why there was such a long delay in passing the order. The District Magistrate appears almost to have passed an order of conviction and sentence for offences committed about seven months earlier. The authorities concerned must have due regard to the object with which the order is passed, and if the object was to prevent disruption of supplies of foodgrains one should think that prompt action in such matters should be taken as soon as incidents like those which are referred to in the grounds have taken place. In our opinion, the order of 11 detention is invalid.” 17. In T.A. Abdul Rahman v. State of Kerala .(1989)4 SCC 741, in similar circumstance, this Court held: (SCC pp. 748- 49, paras 10-11) “10. … the question whether the prejudicial activities of a person necessitating to pass an order of detention is proximate to the time when the order is made or the live link between the prejudicial activities and the purpose of detention is snapped depends on the facts and circumstances of each case. No hard- and-fast rule can be precisely formulated that would be applicable under all circumstances and no exhaustive guidelines can be laid down in that behalf. It follows that the test of proximity is not a rigid or mechanical test by merely counting number of months between the offending acts and the order of detention. However, when there is undue and long delay between the prejudicial activities and the passing of detention order, the court has to scrutinise whether the detaining authority has satisfactorily examined such a delay and afforded a tenable and reasonable explanation as to why such a delay has occasioned, when called upon to answer and further the court has to investigate whether the causal connection has been broken in the circumstances of each case. 11. Similarly when there is unsatisfactory and unexplained delay between the date of order of detention and the date of securing the arrest of the detenu, such a delay would throw considerable doubt on the genuineness of the subjective satisfaction of the detaining authority leading to a legitimate inference that the detaining authority was not really and genuinely satisfied as regards the necessity for detaining the detenu with a view to preventing him from acting in a prejudicial manner.” After holding so, this Court quashed the order of detention. 18. In Pradeep Nilkanth Paturkar v. S. Ramamurthi 1993 Supp (2) SCC 61 the effect of delay in passing the detention order has been considered in detail. After analysing various earlier decisions, this Court held that: (SCC p. 63, para 10) “10. … „16. … Delay ipso facto in passing an order of detention after an incident is not fatal to the detention of a person, for, in certain cases delay may be unavoidable and reasonable. [However,] what is required by law is that the delay must be satisfactorily explained by the detaining authority.‟*” 19. In Manju Ramesh Nahar v. Union of India.(1999)4 SCC 116 there was a delay of more than one year in arresting the detenu. This Court, while rejecting the vague explanation that the detenu was absconding, found that the detention order is vitiated. 20. In Adishwar Jain v. Union of India .(2006)11 SCC 339 this Court held that delay must be sufficiently explained. In 12 that case, lapse of four months between the proposal for detention and the order of detention was not explained properly, hence, this Court quashed the detention order. 21. It is clear that if the delay is sufficiently explained, the same would not be a ground for quashing an order of detention under COFEPOSA. However, delay at both stages has to be explained and the Court is required to consider the question having regard to the overall picture. In Adishwar Jain case.(2006)11 SCC 339, since a major part of delay remained unexplained, this Court quashed the detention order. 22. In Rajinder Arora v. Union of India .(2006)4 SCC 796 this Court considered the effect of passing the detention order after about ten months of the alleged illegal act. Basing reliance on the decision in T.A. Abdul Rahman .(1989)4 SCC (Cri) 741 the detention order was quashed on the ground of delay in passing the same. 14. On careful scrutiny of the order impugned it is evident that neither the Detaining Authority has considered this aspect nor there happens to be any explanation visualizing therefrom. Therefore, taking into account the delay in between the last reported incident, the sole ground, inconsonance with the order impugned, did not justify its privilege. Consequent thereupon, successive orders are set aside. Petition is allowed. 15. Petitioner is directed to be released forthwith if not wanted in any other case. (Aditya Kumar Trivedi, J) I agree Shyam Kishore Sharma, J Patna High Court The 26th of June,2013 Md.Perwez Alam/AFR (Shyam Kishore Sharma, J)