High High Court
Case Details
IN THE HIGH HIGH COURT OF ORISSA AT CUTTAC TTACK WPCRL No.17 of 2024 Nilu Baral ..... Petitioner -versus- State of Odisha disha and others ..... Opposite Parties Advocates app appeared in this case: ioner For petitioner : Mr. Debi Prasad Dhal, Sen Mr. B.S Dasparida, Advoc Advocate Senior Advocate For opposite pa site parties : Mr. A. K. Nanda, AGA Mr. P.K. Parhi, Deputy So Mr. D.R. Bhokta, CGC uty Solicitor General CORAM: THE HON'BL N'BLE MR. JUSTICE ARINDAM SINH SINHA AND THE HON HOO HON'BLE MR. JUSTICE M.S. SAHOO J U D G M E N T ---------------------- Dates of hear ------------------------------------------------------------------ f hearing : 25th April, 2024, 1st , 15th and 2 ------------------------------- and 20th May, 2024 judgment: 20th May, 2024. ------------------------------------------------------------------ Date of judgm ---------------------- ARINDAM SI AM SINHA, J. ------------------------------- 1. Petitione titioner is detenue. He has challenged o ged order dated 8th November, 20 , 2023 issued by the District Magistrate istrate in exercise of power under s nder sub-section (2) in section 3 of Nationa ational Security Act, WPCRL no.17 of 2024 Page 1 of 18 1980. Directio irection thereby was for detention of petition etitioner until further orders. Also sa lso said in the order was, petitioner is in jai s in jail custody since 30th July, 2023 , 2023. The ingredient invoked for exercis xercise of the power was for preven preventing petitioner from acting in any man y manner prejudicial to maintenance enance of public order. 2. Mr. Dh . Dhal, leaned senior advocate appears pears on behalf of petitioner, Mr. r, Mr. Nanda, learned advocate, Additiona ditional Government Advocate, for e, for State and Mr. Parhi, learned adv d advocate, Deputy Solicitor Gene General, for Ministry of Home (UoI). 3. The writ e writ petition has been heard on few occasi occasions and finally today. Facts e acts emerging are, as aforesaid, petitioner ioner was taken into custody on 30 on 30th July, 2023. We ascertained from from Mr. Dhal, his client had had d had his last application for bail rejected jected by order dated 30th November ember, 2023. We are aware that the deten detention order was passed prior th rior thereto on 8th November, 2023 and me nd mentioned therein were, records a cords and material facts submitted by the Su the Superintendent of Police (SP). In . In that view of things we perused said r said rejection of bail order dated 30 ted 30th November, 2023. It was made b ade by the Sessions Judge. WPCRL no.17 of 2024 Page 2 of 18 4. The bail bail order says it dealt with third subsequ bsequent application for bail by one one other and petitioner. Report considere nsidered by the Judge was of the Ins Inspector-in-Charge (IIC) in P.S. Case n Case no.139 of 2023 for offences pu ces punishable under sections 307/427/34 34 of Indian Penal Code, 1860 rea 60 read with sections 3 and 4 of Explosive S osive Substances Act, 1908. Also con lso considered by the Judge were material in rial in the case record to show he ha had 15 criminal cases pending in his na his name. Petitioner was involved olved in exploding bombs in broad dayligh aylight, inter alia, to create panic in anic in minds of the informant and his fami s family members, to deter him from m from deposing against accused persons rsons in the case on murder of his of his son. Prima facie, petitioner was main s main perpetrator of the crime. Twi Twice earlier bail applications had been been rejected by the Court and the d there was reasonable apprehension that n that the applicants may commit si mit similar offence and tamper with prosecu rosecution witnesses in case of their f their release on bail. The application stood stood rejected. 5. From af om aforesaid rejection order two things are gs are revealed. One is omission by ion by State to have informed the Court th urt that a preventive detention order n order stood issued on 8th November, 2023 a 2023 and second, the Court consider nsidered petitioner to be prima facie invol involved in serious offences and and, in case of their release on bail, he he was likely to WPCRL no.17 of 2024 Page 3 of 18 tamper with with prosecution evidence in context of xt of deterring the informant from t from deposing against accused persons rsons in the murder case. The Cour e Court had no hesitation to reject the applica application. On query
Legal Reasoning
made Mr. Dha r. Dhal submits, till date his client has not the thereafter applied for bail. 6. Several veral judgments have been relied upon upon on behalf of petitioner and r and State. They stand recorded in order orders made by us earlier. We rep We reproduce below paragraph-1 from our our order dated 1st May, 2024 and and paragraphs-1 to 4 from our order d rder dated 15th May, 2024. Order d rder dated 1st May, 2024 “1. Mr. Mr. Dhal, learned senior advocate appea ppears on behalf of petiti etitioner. He submits, in addition to his his submissions recorded rded earlier he adds without prejudic extensio nsion order is bad. He relies on judgment judice, even the ent 16th August, 2023 of of the Supreme Court in Criminal Appea ppeal no.2304 of 2023 (P 3 (Pesala Nookaraju v. Government ent of Andhra Pradesh desh and others) available at 2023 SCC SCC OnLine SC 1003, pa 3, paragraphs-42 to 44 of the print.” Order d rder dated 15th May, 2024 “1. Th The writ petition is for final hearing ring. Mr. Dhal, learned ned senior advocate appears on behalf alf of petitioner WPCRL no.17 of 2024 Page 4 of 18 and sub submits, there are four points for co tly, on 28th December, 2023 State co Firstly, r consideration. confirmed the detentio ntion of period three months or until fu il further orders. This wa was after the Advisory Board had e d expressed its opinion. ion. The Board and the State acted as emp empowered and in accor ccordance with provision in sub-section ( on (1) of section 12 in N in National Security Act, 1980. The Sta State thereafter cannot e not extend the period. He relies on views ews expressed by two Divi Division Benches of the Allahabad High C gh Court, relying on judg judgments of the Supreme Court, mentio entioned therein. The view views were expressed in Sunil Chachuda huda v. State of U.P. ava available at 2024 SCC OnLine All 216 d 7th February, 2024 in Habeas Corpus W dated 7 216 and by order pus Writ Petition no.657 657 of 2023 (Mohd. Asim @ Pappu ppu Smart and another ther v. Union of India and 7 others). 2. Second point is, the Superintendent Se ent reported on existing ting criminal cases instituted and pending ding against his client. A nt. Alleged offences in none of them bear ear out threat to mainten ntenance of public order or his clien client’s acts as prejudic udicial to maintenance of supplies a s and services essentia ntial to the community. Neither the detenti tention order nor the exte extension says so or gives particulars of s of such threat. The char charge leveled bearing maximum punishm ishment in all the cases pe s pending is under section 307 coupled wi d with section 34 in India ndian Penal Code, 1860. It is a charge o ge of attempt to murder der with common intention, a removed ved from public WPCRL no.17 of 2024 Page 5 of 18 order an er and maintenance of services. He relies lies on judgment of the S he Supreme Court in Ameena Begum um v. State of Telanga angana, reported in (2023) 9 SCC 587, , in which we find refe reference to an earlier decision of said C id Court in Ram Manoha nohar Lohia v. State of Bihar available ble at 1965 SCC Online S ine SC 9. He also relies on view taken by by a coordinate Bench i ch in Nari v. Union, reported in 2015 ( 15 (I) OLR 13, paragra agraph-19. 3. Third point is, petitioner was and is c Th ody since 30th July, 2023. In the circumst custody was no i no ingredient for issuance of the detention is continuing in umstances, there ntion order on 8th Novemb ember, 2023. The supplementary point is, i t is, in event facts and circ circumstances considered were those client ha nt having been taken into custody on 30 se prior to his 0th July, 2023, delay vi y vitiates the order, being one which ich invades his client’s nt’s personal liberty. He also relies on arti article 22 (4)(a) in the C he Constitution of India to submit, view iew taken by the Benches ches of the Allahabad High Court are are correct. It should b uld be accepted and followed by this Benc Bench. He relies on view iew taken by another coordinate Bench in h in Anu v. State reported rted in (2004) 29 OCR 435, paragraphs 5 hs 5 and 6. 4. M Mr. Nanda, learned advocate, te, Additional Governm ernment Advocate appears on behalf o lf of State and submits, mits, the Supreme Court by Yogendra Mu Murari v. State of U.P. .P., reported in (1988) 4 SCC 559, para paragraph 8 had settled t led the position on a preventive detention tion order being WPCRL no.17 of 2024 Page 6 of 18 made w e while the person was already in custo ustody. He then prays fo ys for adjournment to deal with rest of the the points made and auth ” authorities cited on behalf of petitioner.” 7. Today M day Mr. Dhal relies on judgment of the Sup he Supreme Court in Hetchin Haok Haokip v. State of Manipur, reported in ted in (2018) 9 SCC 562, paragraph agraphs-16 to 18. He submits, in that case at case in respect of preventive det ve detention under said Act, the District istrict Magistrate on having exercis cised power, reported to the State Govern overnment on the 5th day. In this c this case report was made on the 8th day. Impugned detention orde n order was made on 8th November, 2023 a 023 and reported on 15th November ember, 2023, admitted in paragraph-4 of cou of counter dated 19th April, 2024 fil filed by opposite party no.1 (State fun te functionary). Sub- section (4) in 4) in section 3 mandates report being made made fourthwith by the officer, to cer, to the State Government. He submits bmits, this delay is covered by H Hetchin Haokip (supra) and impugne pugned order be set aside on that g that ground alone. 8. He then then relies on judgment of a Constitution titution Bench of the Supreme Cou Court in Rameshwar Shaw v. Distric istrict Magistrate, Burdwan, rep reported in AIR 1964 SC 334. State also te also relies on this judgment. Mr. Mr. Dhal reiterates, mandate of sub-articl article (4) in article 22 of the Con e Constitution stands violated. He further urther reiterates, the WPCRL no.17 of 2024 Page 7 of 18 Allahabad Hig d High Court in Sunil Chachuda (supra) upra) and Md. Asim @ Papu Smar Smart (supra), have interpreted Pesala Noo la Nookaraju (supra) to take view t view that once order under section 12(1) is 2(1) is passed by the State Governm overnment prescribing a period of detenti detention, said order cannot be rev e reviewed or extended by the State Gov e Government. Such detention will n will be over after expiry of the period pr iod prescribed in the confirmatory order passed under section 12(1) of (1) of the Act. Said order cannot b nnot be reviewed or extended any further. H her. However a fresh order may be p y be passed under section 3(2). He submits, bmits, in this case on expiry of thre f three months, extension orders dated 3rd rd February, 2024 and 7th May, 20 ay, 2024 were also passed. Without prejudic rejudice to his earlier submissions, h ions, his contention is that upon expiry of iry of three months from impugned pugned order, said extension orders are ex-fa facie bad. 9. On care n careful reading of Pesala Nookaraj karaju (supra) we respectfully di lly disagree with view taken by the Allahab llahabad High Court in Sunil Chach Chachuda (supra) and Md. Asim @ Papu S apu Smart (supra). Article 22(4) b 2(4) bars legislation of any law providing viding for preventive detention autho thorizing detention of a person for a lon a longer period than three months u nths unless an Advisory Board, as prescribe scribed, has reported before expirati xpiration of said period, its opinion on suffi n sufficient cause for WPCRL no.17 of 2024 Page 8 of 18 such detention tention. On compliance, the detention can n cannot be beyond maximum peri m period prescribed by any law. It follows, t lows, the Act of 1980 was legislated islated pursuant to the constitutional provis provision, as is still there in the sta the statute book. 10. Section ction 3 provides for preventive detention. W ion. We refer to sub- section (3) firs ) first. Section 3(3) provides for delegatio legation of power by the State Gove Government in respect of it exercising pow power under sub- section (2). It m 2). It mandates, by the proviso, for the deleg e delegation to not be beyond three m three months. Impugned detention order c rder clearly refers to the delegation gation as by Home Department order no. 119 no. 1191/C dated 26th October, 2023 , 2023. The Magistrate was duly empower powered. The office exercised pow d power under sub-section (2) in section 3 tion 3, as delegated. Sub-section (2 (2) contemplates exercise of the power power on satisfaction in respect of f either prevention of a person from from acting in any manner prejud prejudicial to security of the State or from r from acting in any manner prejud prejudicial to maintenance of public order o rder or acting in any manner prejud prejudicial to maintenance of supplies plies and services. Impugned ord d order invoked the second contingency gency, of petitioner acting in mann manner prejudicial to maintenance of pub of public order. Sub- section (4) pro 4) provides for the limited period of 12 or 1 12 or 15 days for the WPCRL no.17 of 2024 Page 9 of 18 order to subsis subsist, within which time the delegate mu te must report to the State Governm overnment. Having said so it is not neces necessary for us to discuss provisi rovision in sub-section (1) in respect of a pe of a person, including a foreigner, act acting prejudicial to defence of the count country. 11. In this this case, upon impugned order made ade the Magistrate reported, albe , albeit on the 8th day. The State Gove Government caused reference to th to the Advisory Board. There is no dis no dispute petitioner made represen presentation to the Advisory Board and d and it opined on sufficiency. cy. Pursuant to the opinion expresse pressed, the State Government ap ent approved the order on 28th December, mber, 2023 and duly reported to the to the Central Government. Mr. Parhi confi i confirms report was duly made. In In these facts, it is not necessary for us t or us to deal with the cases cited o ited on behalf of petitioner except Ram Rameshwar Shaw (supra) and Yo Yogendra Murari (supra) cited on behal behalf of State. 12. We drew e drew attention of Mr. Nanda to paragraph agraphs-12 and 13 in Rameshwar Shaw (supra). In that case, the dete e detenue had been arrested on 25 on 25th January, 1963 and the order of deten f detention was made on 15th Februa February, 1963, less than a month after his ter his arrest. In this case the deten detenue was taken into custody on 30th July, 2023 and order of deten detention made on 8th November, 2023, 2023, when he was WPCRL no.17 of 2024 Page 10 of 18 continuing and ng and still continues in custody. At this sta this stage Mr. Nanda points out, he ut, he is relying on paragraph-9. To conti continue, it will be sufficient for u t for us to reproduce a passage from paragrap aragraph-13. “13. ... . ... ... ... It is obvious that before an a an authority can legitima timately come to the conclusion that the the detention of the pers person is necessary to prevent him from from acting in a prejudic udicial manner, the authority has to be sat e satisfied that if the pers person is not detained, he would act in a t in a prejudicial manner ner and that inevitably postulates freedo eedom of action to the s he said person at the relevant time. If . If a person is already ady in jail custody, how can it rationally b lly be postulated that if h t if he is not detained, he would act in a in a prejudicial manner? er? At the point of time when an order o er of detention is going to g to be served on a person, it must be pa e patent that the said per person would act prejudicially if he is is not detained and that that is a consideration which would be be absent when the auth authority is dealing with a person already ady in detention. The sati satisfaction that it is necessary to detain tain a person for the pur purpose of preventing him from a m acting in a prejudic judicial manner is thus the basis of the or e order under s. 3(1)(a), )(a), and this basis is clearly absent in the n the case of the petitione cape tioner. Therefore, we see no escape from the conclusi clusion that the detention of the petiti etitioner in the circumst umstances of this case, is not justified by s. 3(1)(a) and is outside i ide its purview. The District Magistrate, B te, Burdwan who ordered ered the detention of the detenue acted cted outside his WPCRL no.17 of 2024 Page 11 of 18 powers ers conferred on him by s. 3(1)(a) when he n he held that it was nec necessary to detain the petitioner in orde order to prevent him from from acting in a prejudicial manner.” (emphasis supplied) (emp Here we must must point out, the decision was made rega de regarding working of section 3(1 on 3(1) in Preventive Detention Act, 195 t, 1950, which was precursor of se section 3(2) in the Act of 1980. 13. Further rther clarity on section 3(2) is necessary. T sary. The sub-section empowers the the Central Government or the State G tate Government to direct detention tention. In case of the Government exercisin ercising the power, it cannot at first t first instance be for more than 3 months as ths as opinion of the Advisory Boar y Board is necessary by the constitutional tional mandate. Sub- section (3) ena 3) enables the State Government to delegate legate its power as in sub-section (2 ion (2). The delegation cannot exceed thr ed three months but successive dele delegations can be made. When the Distr e District Magistrate, as delegate, is is exercising power of the State Gove Government to pass order of deten detention, the office must forthwith repo report to the State Government. ent. In this case, the Magistrate repo e reported on 15th November, 20 er, 2023. The State Government by its or its order dated 28th December, 202 er, 2023, upon taking into consideration, int , inter alia, opinion of the Adviso dvisory Board and in exercise of power powers conferred by WPCRL no.17 of 2024 Page 12 of 18 section 12(1) r 12(1) read with section 3(3) and 13, confir confirmed impugned order to conti continue for three months from 8th Novembe vember, 2023. Report of the approva pproval was duly made to the Central Gov al Government. Sub- section (1) of s 1) of section 12 is reproduced below. “12. Act . Action upon the report of the Advisory B ry Board.- (1) In any case case where the Advisory Board has report ported that there is, in its its opinion, sufficient cause for the de e detention of a person, on, the appropriate Government may ay confirm the detentio ntion order and continue the detention o on of the person concern cerned for such period as it thinks fit.” Section 13 pro 13 provides for maximum period of confirme nfirmed detention, to be for twelve welve months from date of the detention. ention. Thus we see impugned dete d detention order was passed under sectio section 3(2) by the delegate, in inv in invoking the law made in keeping with th with the bar in article 22 of the Cons e Constitution. Further provision in the articl rticle on extension of the time per e period of detention was also complied wi ied with. An order of detention can b n can be made under section 3(2) by the Sta he State Government or its delegate legate. On it being made, prior to three mo ee months therefrom the Advisory B isory Board is to opine on sufficient cause. cause. If it does, the State Governm vernment then can approve and, if necess cessary extend the period to maxi o maximum of twelve months from date of ate of the detention. WPCRL no.17 of 2024 Page 13 of 18 There is no sc no scope or provision for review, though though revocation is possible. Exte Extension(s) can be made. Hence, nce, our respectful disagreement w ment with the Allahabad view. 14. In Ram Rameshwar (supra) the Supreme Court Court declared that where the Go Government passes order of preventive entive detention, the satisfaction is s ion is subjective. There is very little scope of ope of interference in judicial review review. This has been the contention of State f State, urged by Mr. Nanda with re ith reference to, inter alia, paragraph 9 in h 9 in the judgment. However, the s r, the same judgment of the Constitution Be on Bench also talked about basis of sis of the subjective satisfaction. The em powerment is to prevent a perso a person doing the wrong contemplated. The d. The person already being in custod custody, stands prevented thereby. As such s such, consideration of the situation tuation by paragraphs-12 and 13 in the judg e judgment, to result in verdict of t ct of the Supreme Court that basis for the r the satisfaction, to issue an order o order of preventive detention after almost a m ost a month since the person was in as in custody, made it an order liable to b le to be and was set aside as not j not justified. In this case, the detenue w enue was already in custody since 3 since 30th July, 2023. Excluding the few day days in November, there were thre re three clear months prior to issuance of im e of impugned order, when the det e detenue was and continued to be in be in custody. The WPCRL no.17 of 2024 Page 14 of 18 assessment of ent of State through its SP that the detenue etenue was likely to obtain bail wa ail was clearly far removed from the orde order subsequently made by the C the Court in rejecting third consecutive appl e application for bail made by one one other and petitioner. We have alread already noticed, the Judge was prim as prima-facie satisfied that petitioner was m was main perpetrator, who had cause caused bomb explosion to deter informant rmant from deposing against accuse accused persons in the case of murder of er of his son. Clear finding also w also was that petitioner was likely to tam to tamper with the evidence, if se set at large. In considering the rejection ection order, as came after impugned pugned order, State followed it up by confir confirmation on 28th December, 202 er, 2023 and thereafter two successive exte ve extensions, on 3rd February, 2024 , 2024 and 7th May, 2024. 15. Our ap appreciation regarding issuance, con , confirmation and extensions of i of impugned order is that same was done s done in accordance with the proced procedure. Our respectful disagreement with with the Allahabad view is in follo n following declaration of law made by the y the Supreme Court in Pesala Noo a Nookaraju (supra) by, inter alia, parap parapraph-45 (SCC OnLine print print). However, we have not been been shown any distinguishing ishing fact nor feature for us to accept accept basis of the subjective satis e satisfaction, regarding necessity of issuanc issuance of impugned WPCRL no.17 of 2024 Page 15 of 18 order against ainst petitioner, who already was in custo custody since more than three mo ee months prior to its issuance. Assessm sessment of the SP regarding likel g likelihood petitioner being released on b on bail was clearly wrong, it bein it being an assessment apart from subjecti ubjective satisfaction regarding peti g petitioner’s potential to act in manner anner prejudicial to maintenance of ance of public order. Petitioner’s own omissi omission to thereafter apply for bail r bail is demonstration that even he, in the in the case, did not expect to be en be enlarged from custody. 16. In Yoge Yogendra Murari (supra) the Supreme Cou e Court did not take any further or or other view regarding order of detenti etention made vis-à- vis the detenue etenue being in custody. Mr. Nanda relied o elied on paragraph-8, reproduced bel ed below. “8. It has t has been contended on behalf of the petiti etitioner that the detention tion order was passed with a view to frust frustrate the bail allowed t ed to the petitioner in the criminal case. R se. Reliance was placed on d on the observations in Maledath Bhara arathan Malyali v. The Co e Commissioner of Police, AlR 1950 Bom Bombay 202. A perusal o al of the detention order in the case befo before us and of the affida ffidavit of the District Magistrate, makes i kes it abundantly clear that that he did not act for defeating the bail o ail order. He was of the vie e view that having regard to the entire ci re circumstances aring appearing from the records placed befor efore him, the petitioner oner when let out on bail, was likely to c to create public WPCRL no.17 of 2024 Page 16 of 18 order pr problem. The District Magistrate ca e came to this conclusio lusion on the consideration of relevan evant materials. Copies o es of the documents were served on th n the petitioner along wit g with the grounds. The scope for passing ssing an order of detention tion against an accused immediately tely after he is allowed b ed bail or at a point of time when he is he is likely to be enlarged ged on bail has been considered by th y this Court in several d al decisions. (Alijan Mian v. District trict Magistrate, Dhanbad bad, [1983] 4 SCC 301: Poonam La Lata v. M.L. Wadhawa hawan [1987] 4 SCC 48, and several othe other cases) and we do no o not consider it necessary to again discu iscuss the point. It is tru true that in such cases great caution ution should be exercised ised inn scrutinizing the validity of the ord e order, which is based on on the very same charge which is to b to be tried by a criminal nal court, and according we have given iven our anxious considera deration to the entire circumstances of the f the case but do not find a nd any fault with the impugned order.” (emphasis supplied) (emp It was not a c ot a contention that detained the Bench. F nch. Facts appearing from the judgm judgment are that there were three inciden cidents, in which the detenue had in had indiscriminately fired from his pistol. istol. Criminal cases were registere gistered against him with respect to each each of the three incidents. Bu s. But it appeared, evidence against inst him was not forthcoming a ing although several persons supported t rted the prosecution version of the of the 3rd incident by their statements made made under section WPCRL no.17 of 2024 Page 17 of 18 161 in Code o ode of Criminal Procedure, 1973. In those those circumstances, the District Ma rict Magistrate concluded that the detenue w nue was likely to be enlarged on ba on bail by the criminal Court. We have a have already said no distinguishing ishing fact nor feature was brought to our not our notice for State to contend to be c to be covered by the judgment. 17. We set e set aside impugned order and con d consequently the confirmation a tion and extensions thereof. Mr. Nanda subm a submits, impugned order being se ing set aside should not have any ramif ramification on the criminal cases cases pending against petitioner. State State need have no apprehension i sion in that regard. 18. The writ
Decision
of. e writ petition is allowed and disposed of. Prasant/Radha Prasant Signature Not Verified Digitally Signed Signed by: PRASANT KUMAR SAHOO Reason: Authentication Location: Orissa High Court Date: 21-May-2024 13:51:12 WPCRL no.17 of 2024 indam Sinha ) ( Arindam Judge Jud . Sahoo ) ( M.S. S Judge Jud Page 18 of 18