Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Writ No.1095 of 2012 ====================================================== 1. Pankaj Mandal S/O Late Shankar Mandal R/O,Vill.-Laxmipur, P.S.- Kharagpura,Dist.-Munger .... .... Petitioner/s 1. The State Of Bihar 2. District Magistrate,Munger 3. Jail Superintendent Mandal Kara, Versus .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Pankaj Kr. Sinha, Adv. Mr. Kamal Kishore Jha, Adv. For the State : Mr. Vikas Kumar, 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) 10 23-04-2013 Petitioner has challenged order dated 09.07.2012 passed by District Magistrate/Detaining Authority, Munger under Section 12(2) of the Bihar Control of Crimes Act, order dated 16.07.2012 passed by State under Section 12 (3) of the Act approving the order dated 09.07.2012, order dated 31.08.2012
Legal Reasoning
passed by the State under Section 21(1), 22 of the Act confirming the order of detention dated 09.07.2012 by filing instant petition of writ. 2. Taking into account the information furnished by the sponsoring authority i.e., Superintendent of Police, Munger the 2 learned District Magistrate, Munger had drawn up case no. 3/12- 13 and asked for an objection over the same from petitioner and then thereafter taking into account the contents thereof unsatisfactory inconsonance with the criminal antecedents of the petitioner coupled with involvement in Bariarpur P.S. Case No. 118/2011, and Kharagpur P.S. Case No. 104/2011 came to the subjective satisfaction, that on account of anti-social activities, in case petitioner is allowed to have free access to the society will endanger the public order, passed order of preventive detention on 09.07.2012 which was properly served upon the petitioner/detenu. 3. The aforesaid order also speaks, if he so desires, may represent. While having the order approved at the end of State on 16.07.2012 again an opportunity was provided to the petitioner to file representation. Subsequently thereof, the matter was placed before Advisory Board on 25.07.2012 and the Advisory Board on 23.08.2012 opined that there is substantial material available for confirmation of the preventive detention order and in light thereof, the State had confirmed the order dated 09.07.2012 vide order dated 31.08.2012. 4. During course of hearing, first and foremost argument has been advanced on behalf of petitioner that he had filed a representation on 25.07.2012 which was neither considered 3 by the State uptil now nor was it placed before the Advisory Board. 5. In sum and substance, it has been pleaded on behalf of the petitioner that severe illegality has been committed at the end of respondents by withholding the representation instead of producing the same before the Advisory Board. The aforesaid activity of the respondents is in utter violation of Section 19 of the Act. 6. It has further been argued that keeping the representation of petitioner for such a long period at the end of State without having any application of mind over the same is in contravention of mandate of Article 22 (5) of the Constitution wherein there is implied obligation cast upon the respondent to consider the representation of the detenu at an earliest. So, preventive detention of the petitioner is in contravention to the requirement of law as well as mandate of the Constitution and on account thereof, the same is fit to be set aside. 7. It has further been submitted that after going through the order impugned, it is apparent that during course of formulation of the subjective satisfaction, the Detaining Authority had followed mechanical approach. As such the order of detention appears to be illegal on that very score also. 4 8. On the other hand, learned AC to AG submitted that apprehension of petitioner with regard to Bariarpur P.S.Case No. 118/2011 on 19.05.2012 was well known to the Detaining Authority along with the steps going to be taken up by the petitioner with regard to his release from judicial custody. Moreover, it has further been submitted that no representation was ever filed by the petitioner and so placement of the same before the Advisory Board as well as its consideration at the end of respondent does not arise. Because of the fact that petitioner failed to raise his grievance against the order of detention as well as order of approval then in that event, his plea now found to be barred according to the principle of estoppels as well as waiver. As such, the petitioner is not legally competent to challenge the successive orders. 9. While placing the pleading of writ substantial question was formulated under para-3 thereof wherein sub-para IV deals with the prospect of representation. The aforesaid fact apart from para-7 and 8 have been disclosed under para-10 that he (petitioner) had made representation on 25.07.2012 before the under Secretary, Home (Police Department), Government of Bihar but his application was not considered. Copy of the aforesaid representation has been annexed as Annexure-6. Controverting the 5 same respondent no.2 had specifically narrated under para-14 that no representation on behalf of petitioner was ever filed on 25.07.2012 (Annexure-6). The respondent no.1 had also under para-6 of his counter affidavit had denied filing of representation on behalf of petitioner on 25.07.2012 (Annexure-6). Conspicuously, the petitioner kept mum and did not choose to controvert by filing supplementary affidavit. 10. Non placement of representation, if any, before the Advisory Board in terms of Section 19 of the Act is a serious procedural lacuna which could adversely affect upon validity of the preventive detention order. In likewise manner, the slackness on the part of the State in considering the representation happens to be. That means to say, being negligent at both front or either one of them appears to be sufficient to undo the order of preventive detention. That means to say that these two grounds in its conjoint approach as well as independently could demolish the successive orders. Petitioner by asserting and filing Annexure-6 took the recourse that on account of non adaptation of procedural law as well as under the act of arbitrariness the respondents failed to act promptly and further in case thereof, it could be valid and good ground to undo the successive orders put under challenge. 11. The assertion of petitioner with regard to filing 6 of representation on 25.07.2012 has vehemently challenged by respondent no.1 as well as respondent no.2 as stated above. Petitioner failed to controvert the same. That means to say by placing Annexure-6 the petitioner had tried to dupe the Court knowing full well that no representation on his behalf was ever filed on 25.07.2012, and placed the annexure 6 to impress upon the Court to accept contention of the petitioner and pass order under the garb of its non consideration as well as non placement before the Advisory Board, and by such assertion could have succeeded in getting subreption. 12. In the case of S.P. Chengalvaraya Naidu v. Jagannath as reported in AIR 1994 SC 853 in paragraph-7 it has been held:- “….. The principle of "finality of litigation" cannot be pressed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigants. The courts of law are meant for imparting justice between the parties. One who comes to the court, must come with clean hands. We are constrained to say that more often than not, process of the court is being abused. Property- grabbers, tax-evaders, bank-loan-dodgers and other unscrupulous persons from all walks of life find the court process a convenient lever to retain the, illegal- gains indefinitely. We have no hesitation to say that a person whose case is based on falsehood, has no right to approach the Court. He can be summarily thrown out at any stage of the litigation. 13. “ Fraud- avoids all judicial acts, ecclesiastical or 7 temporal” as observed by Chief Justice Edward Coke about three centuries ago have elaborately been taken into consideration in the case of A. V. Papayya Sastry and Ors. v. Government of A.P. and Ors. as reported in AIR 2007 SC 1540 and dealing with the basic principle fraud and justice never dwell together (fraus et jus nunquam cohabitant); or fraud and deceit ought to benefit none (fraus et dolus nemini patrocinari debent) and further scrutinizing the earlier judgment on this very score in para-39 it has been observed as:- “39. The above principle, however, is subject to exception of fraud. Once it is established that the order was obtained by a successful party by practising or playing fraud, it is vitiated. Such order cannot be held legal, valid or in consonance with law. It is non-existent and non est and cannot be allowed to stand. This is the fundamental principle of law and needs no further elaboration. Therefore, it has been said that a judgment, decree or order obtained by fraud has to be treated as nullity, whether by the Court of first instance or by the final Court. And it has to be treated as non est by every Court, superior or inferior. 14. Thus taking into account the aforesaid factual aspect wherein authenticity of Annexure-6 survives no more as well as taking into account conduct of the petitioner, we do not see the petitioner to be entitled to seek any relief. 15. Consequent thereupon instant petition is 8 rejected. (Aditya Kumar Trivedi, J) I agree Shyam Kishore Sharma, J Patna High Court 23rd of April 2013 Md.Perwez Alam/AFR (Shyam Kishore Sharma, J)