Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Writ No.262 of 2013 ====================================================== Vijay Singh S/O Late Jangbhadur Singh @ Jangi Singh Resident Of Village Sarupai Tola Khapa, Police Station Vijayipur, District Gopalganj. .... .... Petitioner Versus 1. The State Of Bihar Through The Chief Secretary, Govt. Of Bihar, Patna 2. The Home Secretary, Government Of Bihar, Patna. 3. The Under Secretary, Home (Police) Department, Government Of Bihar, Patna. 4. The District Magistrate, Gopalganj (Bihar). 5. The Superintendent Of Police, Gopalganj (Bihar). 6. The Jail Superintendent, Central Jail, East Champaran At Motihari (Bihar). .... .... Respondents ====================================================== Appearance : For the Petitioner : Mr. B.P.Pandey, Senior Advocate. Mr. Rakesh Kumar & Mr. Madanjeet Kumar, Advocates. For the Respondents : Mr. Prabhu Narayan Sharma, AC to AG. ====================================================== CORAM: HONOURABLE MR. JUSTICE SHYAM KISHORE SHARMA and HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI ORAL ORDER (Per: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI) 8 13-05-2013 Petitioner has challenged order of detention in terms of Section 10(2) of the Bihar Control of Crimes Act (for brevity „Act‟) dated 09.01.2013 passed by the District Magistrate, Gopalganj, order dated 20.01.2013 passed in terms of Section 12(3) of the Act approving the order of detention dated 09.01.2013 at the end of the State Government as well as order of confirmation dated 13.02.2013 passed by the State Government in terms of Section 21 read with Section 22 of the Act. 2. Taking into account the contents of report
Facts
Patna High Court CR. WJC No.262 of 2013 (8) dt.13-05-2013 2 submitted by the sponsoring authority, that means to say, the Superintendent of Police, Gopalganj identifying the petitioner to be a dreaded criminal carrying chequered history and on account thereof, opined that the petitioner, who is presently behind the bar, if allowed to come out, will be menace for public order and safety and on account thereof should be detained which could only be possible in terms of Bihar Control of Crimes Act. Being subjectly satisfied therewith, the learned District Magistrate passed the detention order in terms of Section 12(2) on 09.01.2013 which got subsequent nod at the end of the State Government as required under statutory provisions of the Act. 3. Manifold argument has been made on behalf of the petitioner while challenging the successive orders as referred above. The first and foremost ground happens to be with regard to non-application of mind while forming subjective satisfaction and for that it has been submitted that petitioner happens to be under custody in connection with Vijaipur P.S.Case No.74 of 1994 wherein he is still continuing as he had not prayed for bail and not under Vijaipur P.S. Case No.46/11, as the counter affidavit speaks. 4. It has further been submitted that there happens to be clear cut violation of mandate of sub-clause(5) of Article 22 of the Constitution read with Section 17 of the Act whereunder the Patna High Court CR. WJC No.262 of 2013 (8) dt.13-05-2013 3 grounds of detention along with the order of detention was to be served upon the petitioner/detenu. Petitioner has already complained with the fact that xerox copy of the annexures which were furnished to him was not at all legible and same happens to be Annexure-4. The respondent no.6, in whose custody petitioner on the alleged date and time of passing of order impugned was, half heartedly accepted the same further explaining on its own that subsequent copy was made available on 30.01.2013 vide letter no.206 which was refused as the end of the petitioner, appears to be after thought just to save the skin. 5. Therefore, it has been submitted that there happens to be non-application of mind while forming subjective satisfaction over the information furnished by the Superintendent of Police, Gopalganj and that happens to be sufficient to set aside the respective orders. 6. At the other hand, the learned counsel for the State by referring relevant paragraphs of the counter affidavit has submitted that it happens to be a clerical mistake/typographical error incorporating the fact that for the present petitioner happens to be under custody in connection with Vijaipur P.S.Case No.46 of 2011. The detaining authority was very much conscious with regard to having the petitioner under custody in connection with Patna High Court CR. WJC No.262 of 2013 (8) dt.13-05-2013 4 Vijaipur P.S.Case No.74 of 1994. The detaining authority was also conscious with regard to criminal activity as well as the chequered history of the petitioner on account of which it could be safely inferred that allowing him to be outside the prison will be a terror for the society as well as will be disastrous for the public safety and order. The conduct of the petitioner apparently justifies the apprehension of the detaining authority and on account thereof, by way of preventive measure he had ordered so. Therefore, the order of detention followed with approval as well as confirmation happens to be in accordance with law and did not require any sort of interference. 7. After taking into account the rival contention as well as rival pleading, it is crystal clear that on the day of passing of order in terms of Section 12(2) of the Act dated 09.01.2013 petitioner was under custody. Whether a person languishing behind bar could be detained furthermore by way of preventive detention was taken into account by the Hon‟ble Apex Court and was decided by the Constitutional Bench holding that the same happens to be permissible. That means to say, the preventive detention against a custodial accused is permissible but with certain safeguards which the Hon‟ble Apex Court had itself laid down in a decision (2012) 7 SCC 181 in the case of Huidrom Patna High Court CR. WJC No.262 of 2013 (8) dt.13-05-2013 5 Konungjao Singh v. State of Manipur & Ors,. The aforesaid issue has been taken into note after dealing with all the earlier decision delivered by the Hon‟ble Apex Court which could be traced from para-6,7,8, 9 and 12 which are as follows:- 6. Whether a person who is in jail can be detained under detention law has been the subject- matter of consideration before this Court time and again. In Dharmendra Suganchand Chelawat v. Union of India(1990)1 SCC 746, this Court while considering the same issue has reconsidered its earlier judgments on the point in Rameshwar Shaw v. District Magistrate, Burdwan( AIR 1964 SC 334,) Masood Alam v. Union of India,(1973)1 SCC 551 Dulal Roy v. District Magistrate, Burdwan,(1975)1 SCC 837 Alijan Mian v. District Magistrate, Dhanbad (1983)4 SCC 301, Ramesh Yadav v. District Magistrate, Etah(1985)4 SCC 232, Suraj Pal Sahu v. State of Maharashtra (1986)4 SCC 378, Binod Singh v. District Magistrate, Dhanbad(1986)4 SCC 416 and Shashi Aggarwal v. State of U.P. (1988)1 SCC 436 and came the following conclusion: (Chelawat case3, SCC p. 754, para 21) to “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 detenu is already in detention; and (ii) there were compelling reasons justifying such detention despite the fact that the detenu 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 detenu is likely to be released from custody in the near future, and (b) taking into account the nature of the antecedent activities of the detenu, 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 Patna High Court CR. WJC No.262 of 2013 (8) dt.13-05-2013 6 prevent him from engaging in such activities.” 7. In Amritlal v. Union Govt. (2001)1 SCC 341 a similar issue arose as the detaining authority recorded its satisfaction for detention under the Act, in view of the fact that the person, who was already in jail, was going to move a bail application. In the grounds of detention it had been mentioned that there was “likelihood of the detenu moving an application for bail” and hence detention was necessary. This Court held that there must be cogent materials before the authority passing the detention order that there was likelihood of his release on bail. (See also N. Meera Rani v. Govt. of T.N. (1989)4 SCC 418, Kamarunnissa v. Union of India(1991)1 SCC 128 and Union of India v. Paul Manickam(2003)8 SCC 342.) 8. This Court while deciding the case in A. Geetha v. State of T.N. (2006)7 SCC 603 relied upon its earlier judgments in Rajesh Gulati v. Govt. of NCT of Delhi(2002)7 SCC 129, Ibrahim Nazeer v. State of T.N. (2006)6 SCC 64 and Senthamilselvi v. State of T.N. (2006)5 SCC 676 and held: (A. Geetha case(2006)7, SCC p. 606, para 10) “10. … that the detaining authority should be aware that the detenu is already in custody and is likely to be released on bail. The conclusion that the detenu may be released on bail cannot be ipse dixit of the detaining authority.” Its subjective satisfaction based on materials, normally, should not to be interfered with. 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 case. However, if the detention order is challenged the detaining authority has to satisfy the Court the following facts: (1) The authority was fully aware of the fact that the detenu 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. Patna High Court CR. WJC No.262 of 2013 (8) dt.13-05-2013 7 (3) In view of the above, the authority felt it necessary to prevent him from indulging in such therefore, detention order was activities and necessary. In case either of these facts does not exist the detention order would stand vitiated. The present case requires to be examined in the light of the aforesaid settled legal proposition. 12. In Rekha v. State of T.N. (2011)5 SCC 244 this Court while dealing with the issue held: (SCC pp. 250-51 & 254-55, paras 7, 10 & 27) “7. A perusal of the above statement in Para 4 of the grounds of detention shows that no details have been given about the alleged similar cases in which bail was allegedly granted by the court concerned. Neither the date of the alleged bail orders has been mentioned therein, nor the bail application number, nor whether the bail orders were passed in respect of the co-accused on the same case, nor whether the bail orders were passed in respect of other co-accused in cases on the same footing as the case of the accused. … * * * 10. In our opinion, if details are given by the respondent authority about the alleged bail orders in similar cases mentioning the date of the orders, the bail application number, whether the bail order was passed in respect of the co-accused in the same case, and whether the case of the co-accused was on the same footing as the case of the petitioner, then, of course, it could be argued that there is likelihood of the accused being released on bail, because it is the normal practice of most courts that if a co-accused has been granted bail and his case is on the same footing as that of the petitioner, then the petitioner is ordinarily granted bail. … A mere ipse dixit statement in the grounds of detention cannot sustain the detention order and has to be ignored. * * * 27. In our opinion, there is a real possibility of Patna High Court CR. WJC No.262 of 2013 (8) dt.13-05-2013 8 that logically release of a person on bail who is already in custody *provided he has moved a bail application which is pending*. It follows if no bail application is pending, then there is no likelihood of the person in custody being released on bail, and hence the detention order will be illegal. However, there can be an exception to this rule, that is, where a co-accused whose case stands on the same footing had been granted bail. In such cases, the detaining authority can reasonably conclude that there is likelihood of the detenu being released on bail even though no bail application of his is pending, since most courts normally grant bail on this ground.” (emphasis added) Thus, it is evident from the aforesaid judgment that it is not the similar case i.e. involving similar offence. It should be that the co-accused in the same offence is enlarged on bail and on the basis of which the detenu could be enlarged on bail. 8. After going through the aforesaid judicial pronouncement, it is crystal clear that while passing order of preventive detention against detenu while he happens to be under custody, the detaining authority not only has to incorporate that he happens to be under custody rather it is also expected at his end to incorporate in the order that he happens to be actively involved in getting himself bailed out. Certainly, the order impugned lacks the same. 9. The another infirmity is with regard to absence of proximity of the crime which has been taken into account as a ground for passing the order of preventive detention. The order Patna High Court CR. WJC No.262 of 2013 (8) dt.13-05-2013 9 impugned happens to be dated 09.01.2013 and the last case so referred by the learned detaining authority happens to be Vijaipur P.S.Case No.46 of 2011 dated 27.06.2011, one of the cases, totally pendency of twenty cases against the petitioner. That means to say the last case happens to be near about one and half year earlier than passing of the order impugned. The aforesaid issue has been taken into account by the Hon‟ble Apex Court in the case of Saeed Zakir Hussain Malik Vrs. State of Maharashtra in (2012) 8 SCC page 233 and the relevant paragraphs are15, 16, 17, 18, 19 and 26 which are quoted herein below:- inordinate delay of 15 months. It “ 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 after an unreasonable and 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 state 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 Patna High Court CR. WJC No.262 of 2013 (8) dt.13-05-2013 10
Legal Reasoning
highlighted by this Court in several decisions. 16) In Lakshman Khatik vs. The State of West Bengal, (1974) 4 SCC 1, 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 August 3, 1971. The second incident took place on August 5, 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 August 20, 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 March 22, 1972 having regard to the detenu‟s conduct some seven months earlier. The following conclusion is very relevant. “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 7 months later in coming to the conclusion that it was necessary to detain the petitioner to prevent him from acting the in a manner prejudicial 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 7 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 to Patna High Court CR. WJC No.262 of 2013 (8) dt.13-05-2013 11 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 detention is invalid.” 17) In T.A. Abdul Rahman vs. State of Kerala in similar SCC 741, and Others, (1989) circumstance, this Court held: 4 “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 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.” the genuineness of After holding so, this Court quashed the order of detention. 18) In Pradeep Nilkanth Paturkar vs. S. Patna High Court CR. WJC No.262 of 2013 (8) dt.13-05-2013 12 Ramamurthi and Others, 1993 Supp (2) SCC 61, the effect of delay in passing the detention order has been considered in detail. After analyzing various earlier decisions, this Court held that delay ipso facto in passing an order of detention after an incident is not fatal to the detention of a person, 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 vs. Union of India and Others, (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 vs. Union of India and Another, (2006) 11 SCC 339, this Court held that delay must be sufficiently explained. In that case, lapse of four months between 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, since a major part of delay remained unexplained, this Court quashed the detention order. 22) In Rajinder Arora v. Union of India 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 the detention order was quashed on the ground of delay in passing the same.” 10. That means to say, in case, there happens to be Patna High Court CR. WJC No.262 of 2013 (8) dt.13-05-2013 13 delay in passing the order of detention, then the aforesaid intervening period has to be properly examined. In case, having fault at the part of the detaining authority on this score, the same would be taken as a ground to quash the order of the detention. 11. Thus, the order impugned on the above two scores happen to be bad. Consequent thereupon, the same is set aside. Petitioner is directed to be released forthwith, if not wanted in any other case. (Shyam Kishore Sharma, J) B.Kr./- (Aditya Kumar Trivedi, J)