Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Writ No.597 of 2013 ====================================================== 1. Ram Bali Yadav, S/O Sahdeo Yadav, Resident of Village Kushumbha, Police Station Sheikhpura, District Sheikhpura. .... .... Petitioner/s Versus 1. The State of Bihar. 2. The District Magistrate, Jamui. 3. The Superintendent of Police, Jamui. 4. The Deputy Superintendent of Police, Jamui. 5. Officer In-charge, Sikandra P.S., District Jamui. 6. The Superintendent of Jail Jamui. .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Khurshid Alam, Advocate : Mr. Ram Sumiran Rai, Advocate For the Respondent/s : Mr. Prabhu Narayan Sharma, A.C. to A.G. ====================================================== CORAM: HONOURABLE MR. JUSTICE SHYAM KISHORE SHARMA And HONOURABLE MR. JUSTICE AMARESH KUMAR LAL C.A.V. ORDER (Per: HONOURABLE MR. JUSTICE AMARESH KUMAR LAL) 6 02-09-2013 The order of detention challenged before us is dated 4.02.2013 passed by the District Magistrate, Jamui under Section 12 (2) of the Bihar Control of Crimes Act, 1981 (hereinafter referred to as the ‘Act’) read with notification no.9602 dated 13.12.2012 and order dated 15.02.2013 passed by the Government of Bihar, Home (Police) Department (Annexure-2) under Section 12 (3) of the Act and the order dated 18.03.2013 (Annexure-4/1) detaining the petitioner till 03.02.2014. 2. The subjective satisfaction of the District Magistrate
Legal Reasoning
Patna High Court CR. WJC No.597 of 2013 (6) dt.02-09-2013 2 of Jamui, who directed the detention of the petitioner, is based upon following criminal cases against the petitioner : 1. Sikandra P.S. Case No.54/2012 dated 17.03.2012 for the offence punishable under Sections 144, 386, 506/34 of the Indian Penal Code. In this case, charge-sheet no.196/12 dated 30.08.2012 has been submitted against the petitioner and he is on bail in this case. 2. Sikandra P.S. Case No.109/12 dated 30.08.2012 for the offence punishable under Sections 385, 307, 506/34 of the Indian Penal Code. In this case, charge-sheet no.277/12 dated 27.11.2012 has been submitted against the petitioner and he has been granted bail. 3. Sikandra P.S. Case No.111/12 dated 04.06.2012 for the offence punishable under Sections 147, 148, 149, 323, 427, 440, 385, 387/120B of the Indian Penal Code. In this case, charge-sheet no.280/12 dated 29.11.2012 has been submitted against the petitioner for the aforesaid sections and 27 of the Arms Act. The petitioner is on bail in this case. 4. Sikandra P.S. Case No.113/12 dated 4.06.2012 for the offence punishable under Sections 385, 387, 427, 440/34 of the Indian Penal Code and Section 27 of the Arms Act. In this case, the petitioner has been remanded. The bail has been granted to the petitioner in this case. 5. Sikandra P.S. Case No.115/12 dated 05.06.2012 for the offence punishable under Sections 302, 120B/34 of the Indian Penal Code and Section 27 of the Arms Act. After investigation, charge-sheet no.274/12 dated 13.09.2012 has been submitted in this case. The petitioner has filed application for grant of bail in this case. Considering the above facts and circumstances, the District Magistrate, Jamui is satisfied that the petitioner is an ante- social element as defined in Section 2 (d) of the Act. Patna High Court CR. WJC No.597 of 2013 (6) dt.02-09-2013 3 3. A supplementary affidavit has been filed on behalf of the petitioner that apart from the aforesaid cases, the petitioner is also an accused in Halsi P.S. Case No.70/12 for the offence punishable under Sections 382 and 385 of the Indian Penal Code and he is also in jail in that case. 4. Separate counter affidavits have been filed on behalf of respondent nos. 1, 2 and 3. 5. The learned counsel for the petitioner has submitted that the detaining authority has without applying mind and without considering Section 2 (d) of the Act passed the impugned order of detention. There was no cogent material before the District Magistrate for subjective satisfaction to pass such order. The petitioner has been in custody since 25.08.2012 and there was no material before him to conclude that the petitioner was going to be released. It has also been submitted that there has been delay in the disposal of his representation. He has mentioned in paragraph 6 of the writ petition that in pursuance of the direction of the District Magistrate, Jamui, the petitioner filed his representation before the Secretary, Home (Police) Department, Govt. of Bihar through the jail authority on 7.02.2013 against the order dated 4.02.2013. In paragraph 7, it has been mentioned that the representation of the petitioner was rejected by the State Patna High Court CR. WJC No.597 of 2013 (6) dt.02-09-2013 4 Government on 15.03.2013 vide letter no. 7/CCA-10-24/2013 and on the same day, the State Government confirmed the order dated 4.02.2013 passed by the District Magistrate, Jamui under Sections 21 (1) and 22 of the Act and it was communicated to the petitioner on 21.03.2013 and the copy of the aforesaid orders have been annexed as Annexures-4 & 4/1 of the writ application. 6. It has been further submitted that the representation of the petitioner has been rejected by the Government after a long delay. This contention made in paragraph nos. 6 and 7 of the writ petition has not been denied by the respondents; rather, the counter affidavit filed on behalf of the
Legal Reasoning
respondent no.2 in paragraph 7 is that the contention of paragraph nos. 6 and 7 are admitted facts. It is true that the representation of the petitioner has been rejected by the Deputy Secretary, Home (Police) Department, Govt. of Bihar. 7. In support of his contention, he has relied upon the decisions in the case of Mister Yadav Vs. The State of Bihar and Ors. reported in 2013 (2) P.L.J.R.437 and the decision in Cr. Writ No.498/2012 (Rana Yadav Vs. The State of Bihar and
Decision
Ors.) disposed of on 23.07.2012. 8. The learned counsel for the State has submitted that the petitioner is an ante-social element and has been found Patna High Court CR. WJC No.597 of 2013 (6) dt.02-09-2013 5 involved in many cases as mentioned in the impugned order of detention and his activities are prejudicial to the public order. 9. It has been further submitted that the petitioner has concealed the facts that he filed the representation addressed to the Deputy Secretary, Home (Police) Department, Govt. of Bihar through the Superintendent of Jail, Jamui on 27.02.2013 and he has very cunningly concealed the date in Annexure-3 on page 26 of the writ application. A copy of the representation of the petitioner has been annexed as Annexure-A/1 to the counter affidavit filed on behalf of respondent no.1. It is quite clear that the petitioner has filed his representation on 27.02.2013 against the detention order dated 4.02.2013 and his signature has been attested by the jail authority on the same very day and it has been received in the department on 5.03.2013 vide letter no.373 dated 27.02.2013 of the Superintendent of Jail, Jamui. The District Magistrate was asked to furnish his comment on the petitioner’s representation, which was not received till 11.03.2013 in the Department. He has further submitted that the meeting of the Advisory Board was held on 6.03.2013 and the petitioner was also heard after giving full opportunity to represent and explain his defence to prove himself innocent. The Advisory Board after considering the matter is satisfied that there are sufficient grounds Patna High Court CR. WJC No.597 of 2013 (6) dt.02-09-2013 6 for the detention of the petitioner. Thereafter, the representation of the petitioner has been considered and rejected by the Govt. vide order dated 15.03.2013 (Annexure-4). Thus, there has been no delay in disposing of the representation of the petitioner. 10. It has been further submitted that the District Magistrate has reason to believe that the petitioner would be enlarged on bail as application for bail has been filed by him in the Court as it is apparent from the statement mentioned below Sikandra P.S. Case No.115/12. 11. It has been further submitted that the decisions in the case of Mister Yadav Vs. The State of Bihar and Ors. reported in 2013 (2) P.L.J.R.437 and the decision in Cr. Writ No.498/2012 (Rana Yadav Vs. The State of Bihar and Ors.) disposed of on 23.07.2012 are not helpful to the petitioner. 12. After hearing the learned counsel for the both the parties and on perusal of the material on record, it appears that the detention order dated 4.02.2013 passed by the District Magistrate is based on five criminal cases. In four cases, the charge-sheet has been submitted against the petitioner, it shows that the petitioner is involved in the offence punishable under Chapter XVI and XVII of the Indian Penal Code. It also appears that the petitioner has filed application for bail in Sikandra P.S. Case No.115/12 and as Patna High Court CR. WJC No.597 of 2013 (6) dt.02-09-2013 7 such, the District Magistrate, Jamui has reasoned to believe that the petitioner will be released on bail and he will indulge in criminal activities, which will be detrimental in the interest of public. 13. The counter affidavit on behalf of respondent no.1 has been filed and a copy thereof has been received by the learned counsel for the petitioner on 29.07.2013 in which the complete representation as signed by the writ petitioner has been annexed as Annexure-A/1 showing that the petitioner has filed his representation before the Superintendent of Jail on 27.02.2013 but the petitioner has made statement in paragraph 6 that the petitioner has filed representation before the Deputy Secretary, Home (Police) Department, Govt. of Bihar through the jail authority on 7.02.2013 against the order of the District Magistrate dated 4.02.2013, which is not correct; and the statement made by respondent no.2 in his counter affidavit that the statement made in paragraph nos. 6 and 7 of the writ petition (details of which has already been referred to above) are admitted, doesn’t change the merit of this case. 14. It appears that the petitioner has not made any statement denying the fact that he has not filed a petition for bail as mentioned in the item no.5 Sikandra P.S. Case No.115/12 and Patna High Court CR. WJC No.597 of 2013 (6) dt.02-09-2013 8 the reference of this case (Sikandra P.S. Case No.115/12) has been mentioned in paragraph 13 of the writ petition. 15. In the case of Mister Yadav (supra), the District Magistrate formed the opinion with regard to the fact that the petitioner was likely to be released on bail, was purely on guess work. This position is not available in the present case. 16. The question as to whether a person who is in custody can be detained under detention order has been considered by the Hon’ble Supreme Court in case of Dharmendra Suganchand Chelawat Vs. Union of India reported in (1990) 1 SCC 746 wherein, it was held as follows : “21. The decisions referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for that purpose it is necessary that the grounds of detention must show that: (i) the detaining authority was aware of the fact that the detenue is already in detention; and (ii) there were compelling reasons justifying such detention despite the fact that the detenue is already in detention. The expression “compelling reasons” in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that : (a) the detenue is likely to be released from custody in the near future, and (b) taking into account the nature of the antecedent activities of the detenue, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent Patna High Court CR. WJC No.597 of 2013 (6) dt.02-09-2013 9 him from engaging in such activities”. 17. Several decisions have been considered by the Hon’ble Supreme Court in the case of Huidrom Konungjao Singh Vs. State of Manipur and Ors. reported in (2012) 7 SCC181 wherein it was held as follows : “9. In view of the above, it can be held that there is no prohibition in law to pass the detention order in respect of a person who is already in custody in respect of criminal is case. However, challenged the detaining authority has to satisfy the Court the following facts :- the detention order if (1) The authority was fully aware of the fact that the detenue was actually in custody. (2) There was reliable material before the said authority on the basis of which it could have reasons to believe that there was real possibility of his release on bail and further on being released he would probably indulge in activities which are prejudicial to public order. (3) In view of the above, the authority felt it necessary to prevent him from indulging in such activities and therefore, detention order was necessary. these facts In case either of doesn’t exist the detention order would stand vitiated. The present case requires to be examined in the light of the aforesaid settled legal proposition”. 18. It appears from the impugned order passed by the District Magistrate that he was aware that the petitioner was already in custody and he has been granted bail in other cases and Patna High Court CR. WJC No.597 of 2013 (6) dt.02-09-2013 10 he is likely to be released on bail in Sikandra P.S. Case No.115/12. 19. In my opinion, the decisions, referred to above, in the case of Mister Yadav Vs. The State of Bihar and Ors. (Supra) and the decision of this Court in Cr. Writ No.498/2012 (Supra) are not helpful to the petitioner. 20. Considering the facts and circumstances stated above, I do not find any ground to interfere with the impugned orders passed by the District Magistrate, Jamui as well as the Govt. of Bihar, as referred to above. 21. In the result, this application is dismissed. Shyam Kishore Sharma, J : I agree. N.A.F.R./V.K. Pandey/- (Amaresh Kumar Lal, J) (Shyam Kishore Sharma, J)