Krishna Mochi v. The State Of Bihar

State Government confirmed the order on 27.12.2012 in accordance with Section 21(1), 22 of the Act allowing the preventive detention of petitioner from 30.11.2012 to 29.11.2013. It has been submitted on behalf of petitioner that the successive orders are not at all in accordance with mandate of the law because of the fact that petitioner being under custody was well known to the detaining authority and in the aforesaid background, it was incumbent upon the detaining authority to consider whether any bail petition was filed, pending before any competent court otherwise incorporating the fact that petitioner happens to be engaged in getting himself bailed out appears to be mere speculation without any foundation. When there was no occasion for the petitioner to be bailed out and got himself released in near further, then in that event, there happens to be no justification in passing the order of preventive detention as it will not serve any purpose. Therefore, the order speaks non-application of mind and on account thereof, is fit to be set aside. At the other hand, the learned State Counsel refuting the -3- submission raised on behalf of petitioner submitted that petitioner has got no leg to stand by as he failed to file representation against the order of detention at any earlier occasion. Once the petitioner had chosen to keep silence over challenging the order of detention, then, in that circumstance, the petitioner is precluded from challenging successive orders because of the fact that the order of approval as well as confirmation is nothing but the procedures laid down under the Act to concur with the ultimate finding of the Detaining Authority which never been subject to challenge at the end of petitioner. Admittedly, from the averments of the petition there happens to be absence of disclosure at the end of petitioner with regard to filing of representation before the competent authority. At the other hand, from the counter affidavit filed on behalf of respondent no.1 and 2, it is evident that there happens to be specific disclosure with regard to non-filing of representation. Petitioner had never controverted the same. That means to say, petitioner failed to file representation in terms of Section 17 of the Act. In order to appreciate the purpose for providing an opportunity for filing representation is to be considered in terms of Part-III of the Constitution whereunder fundamental rights have been embodied. Fundamental right could be identified as a constitutional privilege flown in favour of citizen to have free access in terms of preamble, the soul of constitution. However, when an individual’s independence became odious to the society, impairing the public order -4- and safety then in that circumstance the fundamental rights so guaranteed under Part-III of the Constitution is bound to straggle but in accordance with the provisions mandated under Article 22 of the Constitution. That has been provided to have an opportunity to shield the subject from arbitrariness of the Executive. However the subjective satisfaction of the detaining authority has been kept beyond judicial scrutiny. Whenever there happens to be preventive detention, by such activity the executive freezes the fundamental right of the detenu and on account thereof, every possible legal precautionary measures have been provided to safeguard the interest of subject and having opportunity of representation is one of the criteria to challenge the unethical approach of the executive in terms of subject apart from other procedures whereunder executive action finds sub-jugation. Moreover, as per article 32 as well as 226 the Supreme Court as well as High Court has been identified as custodian of fundamental right. Therefore, filing / non-filing of representation, a privilege made available to the subject is not going to encroach upon the inherent power of the Supreme Court as well as High Court nor it could be found pre- ambulatory. Both are found at two different ladder having distinct mode of appreciation and execution. In case a representation is filed, then in that event different mode of procedure has been prescribed, but ultimately there happens to be final verdict at the end of the Supreme Court or the High Court if so approached. For better appreciation, -5- Article 226 is incorporated below:-

226. Power of High Courts to issue certain writs. – (1) Notwithstanding anything article 32, every High Court shall have powers, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including [writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Para-III and for any other purpose]. (2) The power conferred by clause (1) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories. (3) Where any party against whom an interim order, whether by way of injunction or stay or in any other manner, is made on, or in any proceedings relating to, a petition under clause (1), without – (a) furnishing to such party copies of such petition and all documents n support of the plea for such interim order; and (b) giving such party an opportunity of being heard, makes an application to the High Court for the vacation of such order and furnishes a copy of such application to the party in whose favour such order has been made or the counsel of such party, the High Court shall dispose of the application within a period of two weeks from the date on which it is received or from the date on which the copy of such application is so furnished, whichever is later, or where the High Court is closed on the last day of that period, before the expiry of the next day afterwards on which the High Court is open; and if the application is not so disposed of, the interim order shall, on the expiry of that period, or, as the case may be, the expiry of the said next day, stand vacated.] [(4)] The power conferred on a High Court by this article shall not be in derogation of the power conferred on the Supreme Court by clause (2) of article 32. Therefore, non-filing of representation is not going to put -6- any sort of hurdle while exercising the power under Article 226 of the Constitution and the matter is accordingly answered so. Now coming to the matter in hand, it is apparent from the order of detention dated 30.11.2012 that petitioner happens to be under custody in connection with Paliganj P.S. Case No.113 of 2012. That means to say status of the petitioner being under custody was well known to the Detaining Authority at the time of passing of the order impugned. It is also evident from the order impugned dated 30.11.2012 that Detaining Authority has also come to know that the steps are being taken by the petitioner for getting himself enlarged on bail. By way of supplementary affidavit petitioner had himself disclosed under para-2 with regard to his involvement in eleven cases out of which he happens to be on bail in connection with Paliganj P.S. Case No.6 of 2012, Sigori P.S. Case No. 26 /2011, Jehanabad P.S. Case No.25/2011, Bhagwanganj P.S. Case No.59/2010, Bhagwanganj P.S. Case No. 55/2011, Bhagwanganj P.S. Case No.8/2011, Bhagwanganj P.S. Case No. 18/2012, while enlisting Paliganj P.S. Case No.113 of 2012, Naubatpur P.S. Case No.52/2012, Bhagwanganj P.S. Case No.69/2011, Bhagwanganj P.S. Case No.21/2012, it has been mentioned that petitioner has not been enlarged on bail as yet. There has been non- disclosure on behalf of petitioner regarding pendency of any bail petition before any competent court. From para-8 of the counter affidavit filed on behalf of respondent no.3 annexed with the details of cases, it is evident that petitioner does not happens to be bailed out in -7- connection with Paliganj P.S. Case No.6 of 2012, Paliganj P.S. Case No.113 of 2012, Naubatpur P.S. Case No.52/2012, Sigori P.S. Case No. 26 /2011, Bhagwanganj P.S. Case No.59/2010, Bhagwanganj P.S. Case No.8/2011, Bhagwanganj P.S. Case No. 55/2011, Bhagwanganj P.S. Case No.69/2011 nor it has been disclosed that any bail petition is pending on his behalf, although in some of the case (Naubatpur P.S. Case No.52/2012, Sigori P.S. Case No. 26 /2011, Bhagwanganj P.S. Case No. 55/2011, Bhagwanganj P.S. Case No.69/2011) co-accused having similar allegation are already enjoying privilege of bail. The scope of preventive detention was taking into consideration by a Constitutional Bench of the Hon’ble Apex Court in Haradhan Saha v. State of W.B., (1975) 3 SCC 198 and while affirming the exceptional power to be exercised by the Executive directing preventive detention, even in case of detenu being under custody, laid down following principles:- “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 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 -8- future behaviour of a person based on his past conduct in the light of the surrounding circumstances.” The aforesaid view has also been taken into consideration and explained in Kamarunnissa vs. Union of India, reported in (1991) 1 SCC 128, and the said view was reiterated in Union of India v. Paul Manickam 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 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.” Taking into account the principles laid down by the -9- Hon’ble Apex Court as referred above, the order impugned became unsustainable in the eye of law because of the fact that at one occasion the detaining authority simply shown his apprehension that petitioner is trying to get himself bailed out but the said fact is found fully controverted from para-8 with an annexure of the counter affidavit filed on his behalf. Though the petitioner failed to divulge the actual affair but that was not required at his end to explain rather it happens to be the Detaining Authority who should be aware and while passing the order of preventive detention against the petitioner who admittedly was behind bar, his efforts should have been exposed to the surface that he was trying, taking proper recourse for granting bail. Mere speculation, as the order speaks failed to satisfy the necessary ingredients so formulated by the Hon’ble Apex Court while adjudicating upon the matter as referred above. As such, the successive orders are set aside. Petition is allowed. Petitioner is directed to be released forthwith if not wanted in any other case. (Shyam Kishore Sharma, J.) I agree Patna High Court Dated, the 26th day of June, 2013 Prakash Narayan (Aditya Kumar Trivedi, J.) (Shyam Kishore Sharma, J.)