The Department of Home (Police) through its Principal Secretary v. Govt. of Bihar, Patna
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Writ No.1133 of 2012 ====================================================== Ajit Kumar Singh @ Jhulan Singh, Son of Dharamdeo Singh @ Nakat Singh, Resident of Village – Pahsara, P.S. – Nawakothi, District – Begusarai. .... .... Petitioner 1. The State of Bihar 2. The Department of Home (Police) through its Principal Secretary, Versus Govt. of Bihar, Patna. 3. The Principal Secretary, Department of Home (Police) Govt. of Bihar, Patna. 4. The Secretary Department of Home (Police) Govt. of Bihar, Patna. 5. The Under Secretary Department of Home (Police) Govt. of Bihar, Patna. 6. The District Magistrate, Begusarai. 7. The Superintendent of Police Begusarai. 8. The Jail Superintendent, Begusarai. .... .... Respondents ====================================================== Appearance : For the Petitioner For the Respondents ====================================================== CORAM: HONOURABLE MR. JUSTICE SHYAM KISHORE SHARMA
Legal Reasoning
: Mr. Omkar Nath, Advocate. : Mr. APP. and HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI ORAL ORDER (Per: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI) 9 04-03-2013 Heard learned Counsel for the petitioner as well as learned Counsel for the State. During course of hearing of instant writ in the nature of habeas corpus, the propriety of the initial order dated 31.3.2012 passed by the District Magistrate, Begusarai in terms of Section 12(2) of the Bihar Control of Crime Act, 1981 has been raised. With the aid of proviso prescribed under Sub-section 2 of Section 12 of the Act (referred above) it has been submitted Patna High Court CR. WJC No.1133 of 2012 (9) dt.04-03-2013 2 on behalf of the petitioner that from the order impugned it is evident that the District Magistrate was vested with the power in terms of Sub-section 2 vide Notification No. 9141 dated 19.12.2011 (Annexure-1) which was to be operative only for a period of three months and as the order impugned has been passed on 31.3.2012, overlapping the period of three months from 19.12.2011, in the aforesaid background the District Magistrate was not at all competent to pass order in terms of Section 12(2) of the Act and therefore, the order impugned suffers from nullity. It has further been submitted that from the order impugned it is also evident that there happens to be mechanical approach while forming its satisfaction over the materials placed by the S.P. To support the same, it has been submitted from the order impugned itself it is evident that on the date of passing the order the petitioner Ajit Kumar Singh @ Jhulan Singh was under judicial custody. There is no averment/disclosures that he was trying effectively to get himself enlarge on bail and non-consideration of the aforesaid mandate also makes the order illegal. At the other hand the learned Counsel for the State counter meeting with the submission raised on behalf of the petitioner submitted that the order of the District Magistrate was valid only for a period of 12 days in terms of Sub-section 3 of Patna High Court CR. WJC No.1133 of 2012 (9) dt.04-03-2013 3 Section 12 during midst thereof, it is to be approved at the ends of State Government. Once, there happens to be approval followed with confirmation, like the present case whatever illegality or irregularity persisting at the initial stage, now get rectified and in terms thereof now the petitioner is prevented from raising propriety of the order. In likewise manner it has also been submitted that incorporation of the fact that petitioner was eagerly stepping forward in getting himself bailed out is not necessary that too in the background of the fact that the petitioner has got chequered history. It has further been submitted that subjective satisfaction of the detaining authority happens to be out of judicial scrutiny. Now coming to the relevant point, Chapeter IInd of the Bihar Control of Crimes Act, 1981 deals with the exercise of power. Under Section 12 Clause-1, it is State Government who happens to be zenith with the power which subsequently being governed with the process of delegation as per Sub-section 2 of Section 12 of the Act whereunder State Government happens to be at liberty to delegate the power to the concerned District Magistrate who would exercise the power on behalf of the State Government for a limited jurisdiction and that delegation is commanded by having proviso thereunder prescribing maximum Patna High Court CR. WJC No.1133 of 2012 (9) dt.04-03-2013 4 period of three months at one stroke and its subsequent extension for another three months. For better appreciation Section 12 is incorporated below : Power to make order detaining certain persons. – (1) The State Government may, if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the maintenance of public order and there is reason to fear that the activities of anti-social elements cannot be prevented otherwise than by the immediate arrest of such person, make an order directing that such anti- social element be detained. (2) If, having regard to the circumstances prevailing or likely to prevail in any area within the local limits of the jurisdiction of a District Magistrate, the State Government is satisfied that it is necessary so to do, it may by an order in writing direct. that during such period as may be specified in the order, such District Magistrate may also, if satisfied as provided in sub-section (1) exercise the powers conferred upon by the said sub-section: Provided that the period specified in an Patna High Court CR. WJC No.1133 of 2012 (9) dt.04-03-2013 5 order made by the State Government under this sub- section shall not, in the first instance exceed three months, but the State Government may, if satisfied as aforesaid that it is necessary so to do, amend such order to extend such period from time to time by any period not exceeding three months at any one time. (3) When any order is made by District Magistrate, he shall forthwith report the fact to the State Government together with the grounds on which the order has been made and such other particulars as, in his opinion, have a bearing on the matter, and no such order shall remain in force for more than 12 days after the making thereof unless, in the meantime, it has been approved by the State Government. Provided that where under section 17 the grounds of detention are communicated by the officer making the order after five days but not later than ten days from the date of detention, this sub-section shall apply subject to the modification that, for the words “twelve days”, the words “fifteen days” shall be substituted. That means to say, the power of delegation in terms Patna High Court CR. WJC No.1133 of 2012 (9) dt.04-03-2013 6 of Section 12 (2) of the Act has to be exercised within stipulated period of three months at the first instance. From the order impugned it is evident that the learned District Magistrate was delegated with the power vide Notification No. 9141 dated 19.12.2011 which was to be exercised within the period of three months that means to say up to 18.3.2012. The order impugned is of date 31.3.2012. That means to say on the date of passing of the order impugned, there was no delegation of power/therefore the District Magistrate on 31.3.2012 was not competent enough to exercise the same on behalf of the State Government. As such the District Magistrate was not at all competent to pass order in terms of Section 12 (2) of the Act beyond the period of three months for which the delegation of power was recognizable. Hence, the order impugned happens to be bad in terms of Section 12 (2) of the Act. Consequent thereupon the same is set aside. The petition is allowed. Petitioner is directed to be released forthwith if not wanted in any other case. (Shyam Kishore Sharma, J.) KKSINHA/- (Aditya Kumar Trivedi, J.)