Madhya Pradesh High Court
Khurshid vs The State Of Madhya Pradesh Thr on 29 June, 2016
Author: Alok Aradhe
Bench: Alok Aradhe
1 W.P.No.3793/2016
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
DIVISION BENCH:
HON. SHRI JUSTICE ALOK ARADHE &
HON. SHRI JUSTICE ANAND PATHAK
WRIT PETITION NO. 3793 /2016
Khurshid
Versus
State of M.P. & Ors.
--------------------------------------------------------------------------------------
Shri S.K.Shrivastava, learned counsel for the petitioner.
Shri Praveen Newaskar, learned Government Advocate for the
respondents/State.
----------------------------------------------------------------------------------------
ORDER
(29/6/2016) Per Alok Aradhe, J.
In this petition under Article 226 of the Constitution of India, the petitioner has assailed the validity of the order dated 28/4/2016 passed by District Magistrate, Vidisha by which the petitioner, who is an under trial prisoner, has been detained invoking provisions of Section 3 (2) and 3 (3) of the National Security Act, 1980 (for short "the Act of 1980") and has been ordered to be kept in Central Jail, Bhopal. In order to appreciate the petitioner's grievance, few facts need mention, which are stated infra.
2. A case for the offence under Section 429, 379 of IPC as well as under Section 4/9 of M.P. Govadh Pratished Adhiniyam, 2004 was registered against the petitioner by Police Station Sironj vide crime No. 129/2016. The petitioner was arrested in connection with the aforesaid offence on 24/4/2016 and was produced before the Judicial Magistrate and was sent on judicial remand. On 25/4/2016 , the Station House Officer, Police 2 W.P.No.3793/2016 Station, Sironj, sent a letter to the Superintendent of Police for initiating proceedings under the provisions of Act of 1980 against the petitioner. Thereafter, on 26/4/2016, the Superintendent of Police, Vidisha informed the District Magistrate, Vidisha about the activities of the petitioner and a proposal was sent that the petitioner be detained under the provisions of Act of 1980. The District Magistrate on 28/4/2016, passed an order in purported exercise of powers under Sections 3 (2) and 3 (3) of the Act of 1980. In the aforesaid factual background, the petitioner has approached this Court.
3. Learned counsel for the petitioner submitted that the order of detention is vitiated in law inasmuch as no period of detention in order of detention is mentioned. It is further submitted that at the time when the order of detention was passed, the petitioner was already in judicial custody since 24/4/2016 and admittedly had not applied for grant of bail, therefore, there was no likelihood of the petitioner to come out of the jail and to disturb the public order. However, the detaining authority has failed to take into account the aforesaid aspect of the matter while passing the order of detention which vitiates the order of detention. It is also urged that the order of detention has been passed in violation of Section 3 (3) and 3 (4) of the Act of 1980 inasmuch as the approval of the State Government has not been accorded in respect of order of detention. Lastly, it is urged that the return filed on behalf of the respondents is not supported by an affidavit of the District Magistrate which is mandatory in law. On the other hand, learned Government Advocate has supported the order of detention and has submitted that the order of detention as per the averments made in the return has been passed for a period of one year.
4. We have considered the rival submissions made at the Bar and have perused the record. Before proceedings further, it is considered apposite to take note of the provisions of Section 3 (3) 3 W.P.No.3793/2016 and 3 (4) of the Act of 1980 which are reproduced below for the facility of reference:-
"3. Power to make orders detaining certain persons.
(1) xxx xxx xxx
(2) xxx xxx xxx
(3) If, having regard to the circumstances prevailing or likely to prevail in any area within the local limits of the jurisdiction of a District Magistrate or a Commissioner of Police, the State Government is satisfied that it is necessary so to do, it may, by order in writing, direct, that during such period as may be specified in the order, such District Magistrate or Commissioner of Police may also, if satisfied as provided in sub-section (2), exercise the powers conferred by the said sub-section:
Provided that the period specified in an order made by the State Government under the sub-section shall not, in the first instance,exceed three months, but the State Government may, if satisfied as aforesaid that it is necessary so to do, amend such order to extend such period from time to time by any period not exceeding three months at any one time.
(4) When any order is made under this section by an officer mentioned in sub-section (3), he shall forthwith report the fact to the State Government to which he is subordinate together with the grounds on which the order has been made and such other particulars as, in his opinion, have a bearing on the matter, and no such order shall remain in force for more than twelve days after the making thereof, unless, in the meantime, it has been approved, by the State Government:
Provided that where under section 8 the grounds of detention are communicated by the officer making the order after five days but not later than ten days from the date of detention, this sub-section shall apply subject to the modification, that, for the words "twelve days", the words "fifteen days" shall be substituted."
5. The Supreme Court in the case of Commissioner of Police and Anr. Vs. Gurbux Anandram Bhiryani, 1988 (supp) SCC 568 has held that the period of detention has to be mentioned in the order of detention and the order of detention cannot be passed for an indefinite period. A Division bench of this 4 W.P.No.3793/2016 Court in the case of Bhaiya alias Bhaiyalal alias Arvind Vs. State of M.P., 2013 (2) JLJ 300 after careful scrutiny of provisions of Section 3 of the Act of 1980 has held that order of detention is required to be passed for a specific period. Similar view has been taken by another Division Bench of this Court in the case of Pradeep Vs. State of M.P. & Ors., 2016 (1) JLJ 252. Admittedly, in the instant case, in the order of detention the period of detention has not been specified, therefore, the order of detention is vitiated in view of aforesaid enunciation of law.
6. Admittedly, at the time when the order of detention was passed, petitioner was in judicial custody. The Supreme Court in the case of Rekha Vs. State of Tamilnadu through Secretary to Government and Anr., (2011) 5 SCC 244 while taking note of the decision in the case of Union of India Vs. Paul Manickam, (2003) 8 SCC 342 has held that the detaining authority in a case of a detenu, who is already in jail, has to form an opinion that in case the detenu files an application for bail, there is likelihood of detenu's being released on bail and taking into account his antecedents, he must be detained in order to prevent him to indulge in prejudicial activities which are detrimental to public order. Similar view has been taken by the Supreme Court in the case of Huidrom Konungjo Singh Vs . State of Manipur & Or., AIR 2012 SC 2002. In the instant case, admittedly, the petitioner has not filed any application for bail and in the order of detention, there is no whisper that there is likelihood of petitioner being released on bail. Thus, the order of detention is vitiated in law on this count also.
7. We find force in the submissions made by learned counsel for the petitioner that the return filed by the respondents was required to be supported by the affidavit of District Magistrate. A Division Bench of this Court in the case of Usman Vs. State of M.P. & Ors, ILR (2012) MP 1594 has held that the detention of a person without trial is a serious matter and the order of detention 5 W.P.No.3793/2016 must be justified by the detaining authority and in answer to rule issued in a Habeas Corpus petition, the counter affidavit filed by the State should be sworn by District Magistrate, who passed the detention order. Admittedly, in the instant case, the District Magistrate who passed the order of detention has not filed his affidavit, but the same has been sworn in by Sub Divisional Magistrate, Sironj. Thus, the order of detention is vitiated in law on this count also.
8. In view of the preceding analysis, the impugned order cannot be sustained in eye of law. Accordingly, it is quashed. In the result petition is allowed.
(Alok Aradhe) (Anand Pathak)
Judge Judge
jps/-