Pawan Singh v. The State Of Bihar

2. Petitioner has challenged order dated 21.08.2012 passed by District Magistrate, Lakhisarai whereby and whereunder he has been kept under preventive detention in terms of Section 12(2) of the Crimes Control Act (henceforth used as „the Act‟) as well as order dated 28.08.2012 passed by State Government approving the same in terms of Section 12(3) of the Act and order dated 04.10.2012 passed by the State Government confirming the Patna High Court CR. WJC No.1196 of 2012 (5) dt.06-02-2013 2 order in terms of Section 21 read with Section 22 of the Act.

3. As per report submitted by the Superintendent of Police, Lakhisarai divulging the criminal antecedents of the petitioner as well as having further been an accused of Barahiya P.S. Case No. 24 of 2011 as well as Barahiya P.S. Case No. 34 of 2011, the District Magistrate, Lakhisarai being satisfied thereupon and further holding that the petitioner who, for the present, is under judicial custody will pose a threat to the public order, in case, he is out on bail and accordingly, ordered against the petitioner to be confined under preventive detention which ultimately found confirmed at the level of the State Government.

4. As per direction of this Court, petitioner had filed supplementary affidavit, from perusal of which it transpires that save and except Barahiya P.S. Case No. 28/2001, he is availing of the privilege of bail in all other cases. That means to say, his judicial custody is still continuing in connection with Barahiya P.S. Case No. 28/2001. In the aforesaid background when the Court inquired with regard to genuineness of the plea over challenging the successive order as rendered above, learned counsel for the petitioner submits that continuance of preventive detention will jeopardize his interest in case an effort is being made for moving prayer for bail in connection with Barahiya P.S. Patna High Court CR. WJC No.1196 of 2012 (5) dt.06-02-2013 3 Case No. 28/2001 and further he apprehends that the aforesaid preventive order will stand in the way. Accordingly, the instant petition be heard on its merit.

5. It has been submitted on behalf of the petitioner that the order of the preventive detention passed by the learned District Magistrate itself shows non application of mind during course of satisfying itself with regard to the facts and circumstances of the case while ordering for preventive detention of the petitioner. It has further been submitted that no other material than the report of the Superintendent of Police, was before the District Magistrate, Lakhisarai. It has further been submitted that there is no requirement of report of Superintendent of Police at the time of consideration of justification for passing of preventive detention nor that could be the sole ground. The satisfaction of the District Magistrate, Lakhisarai should be based upon independent sources which could justify the same. Apart from this, it has further been submitted that the order impugned is evasive to the extent that status of petitioner has not been taken into consideration that too with regard to the steps taken up by the petitioner for getting himself released on bail. It has further been submitted that petitioner had already incorporated the fact that much before passing of the order impugned that means to say, in the month of Patna High Court CR. WJC No.1196 of 2012 (5) dt.06-02-2013 4 March, 2012 prayer for bail made on his behalf before this Court stood rejected and since thereafter no petition for bail on behalf of petitioner was filed or pending before any court. After expiry of five months when the order impugned has been passed, it has been incorporated that petitioner is taking sincere effort to get himself enlarged on bail and the same is inconsistent with the fact as well as also suggest that the process of satisfaction followed up by the District Magistrate was not at all in an impartial manner.

6. On the other hand, learned AC to AG raised preliminary objection and submitted that when the petitioner had already taken a step for obtaining bail, rejection or having been allowed has no consequence because of the fact that steps have already been taken on behalf of the petitioner to get himself enlarged on bail and that happens to be the reason behind incorporation of the fact in the order impugned that petitioner was eagerly proceeding with to get himself enlarged on bail.

7. After considering the rival contention the following facts is found to be admitted:- A prayer for bail was made on behalf of the petitioner with regard to all the criminal cases wherein he was remanded and save and except Barahiya P.S. Case No. 28/2001, He stood enlarged on bail by different courts on Patna High Court CR. WJC No.1196 of 2012 (5) dt.06-02-2013 5 different occasions.

8. It has not been controverted on behalf of the State that after rejection of bail petition at the level of this Court in the month of March 2012, there was any bail petition filed on behalf of the petitioner/pending with regard to Barahiya P.S. Case No. 28/2001. There is also no controversy that the order impugned happens to be passed after a gap of five months of the last prayer for bail having been refused. The matter in hand has been taken into consideration by the Hon‟ble Apex Court in the case of Rekha v. State of T.N as reported in (2011) 5 SCC 244 wherein this aspect has elaborately been dealt with after taking into account series of previous decisions rendered by the Hon‟ble Apex Court itself and the relevant paragraphs are quoted herein below:-

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 the 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 respondent authority should have given details bail. However, granted Patna High Court CR. WJC No.1196 of 2012 (5) dt.06-02-2013 6 about the alleged bail order in similar cases, which has not been done in the present case. A mere ipse dixit statement in the grounds of detention cannot sustain the detention order and has to be ignored.

11. In our opinion, the detention order in question only contains ipse dixit regarding the alleged imminent possibility of the accused coming out on bail and there was no reliable material to this effect. Hence, the detention order in question cannot be sustained.

9. Now coming to the case, in hand, without specifying anything, the Detaining Authority had incorporated “he is trying hard to get bail” and this aspect is not going to satisfy the requirement as envisaged in the judgment as referred above.

10. Consequent thereupon, the order impugned is bad in law and is accordingly, set aside. Petition is allowed.

11. Petitioner is directed to be released forthwith if not wanted in any other case. (Shyam Kishore Sharma, J) (Aditya Kumar Trivedi, J) perwez