Patna High Court - Orders
Binod Paswan @ Navin Ji vs The State Of Bihar & Ors on 22 July, 2014
Author: Anjana Mishra
Bench: Anjana Mishra
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Writ Jurisdiction Case No.385 of 2014
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BINOD PASWAN @ NAVIN JI, SON OF MUKHRAJ PASWAN,
RESIDENT OF VILLAGE GOL GARIBA, POLICE STATION
KUTUMBA, DISTRICT AURANGABAD
.... .... PETITIONER
VERSUS
1. THE STATE OF BIHAR
2. THE UNDER SECRETARY, HOME (POLICE) DEPARTMENT,
GOVERNMENT OF BIHAR
3. THE DISTRICT MAGISTRATE, AURANGABAD
4. THE SUPERINTENDENT OF POLICE, AURANGABAD
5. THE JAIL SUPERINTENDENT, DISTRICT JAIL, AURANGABAD
.... .... RESPONDENTS
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Appearance :
For the Petitioner/s : Mr. B. P. Singh, Advocate
For the Respondent/s : Mr. Prabhu Narayan Sharma, AC to AG
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CORAM: HONOURABLE MR. JUSTICE I. A. ANSARI
and
HONOURABLE JUSTICE SMT. ANJANA MISHRA
CAV ORDER
(Per: HONOURABLE MR. JUSTICE I. A. ANSARI)
7 22-06-2014 By his letter, dated 03.01.2014, the
Superintendent of Police, Aurangabad, addressed to
respondent No. 3, namely, District Magistrate, Aurangabad, sought for detention of the present petitioner under the provisions of sub-section (2) of Section 12 of Bihar Control of Crimes Act, 1981. Following the letter so received, respondent No. 3, namely, District Magistrate, Aurangabad, made, on 03.01.2014, an order, in exercise of powers under Section 12 (2) of Bihar Control of Crimes Act, 1981, placing the petitioner under preventive detention, for a period of one year, i.e., until 02.01.2015. Patna High Court Cr. WJC No.385 of 2014 (7) dt.22-07-2014 2/14
2. With the order of detention so made as mentioned above, the petitioner was also served with a copy of the grounds of detention, contained in memo No. 6, dated 03.01.2014, issued by respondent No. 3, namely, District Magistrate, Aurangabad. The said order of detention was approved by the Advisory Board on 18.02.2014 and, following approval of the Advisory Board, the State Government, by order, dated 28.02.2014, confirmed the said order of preventive detention, dated 03.01.2014.
3. The grounds of detention, which were furnished to the petitioner, mentions altogether ten cases, namely, (i) Simra Police Station Case No. 16 of 2004, dated 27.04.2004, registered under Sections 147/148/149/323/324/341/342/307/302/332/353/427/436 /435/452/379/380 of the Indian Penal Code, Sections 3/4/5 of the Explosive Substances Act and Section 17 of the Criminal Law (Amendment) Act, (ii) Nabinagar Police Station Case No. 71 of 2004, dated 24.06.2004, registered under Section 302/34 of the Indian Penal Code and Section 17 of the Criminal Law (Amendment) Act, (iii) Amba Police Station Case No. 36 of 2006 , dated 12.11.2006, registered under Sections 147/148/149/307/353/ of the Indian Penal Code, Sections 3/4/ of the Explosive Substances Act and Section 17 of the Criminal Law (Amendment) Act, (iv) Patna High Court Cr. WJC No.385 of 2014 (7) dt.22-07-2014 3/14 Kutumba Police Station Case No. 21 of 2008, dated 02.04.2008, registered under Sections 147/148/149/ 323/342/435/379/506 of the Indian Penal Code and Section 17 of the Criminal Law (Amendment) Act, (v) Tandwa Police Station Case No. 17 of 2010, dated 03.05.2010, registered under Sections 147/148/149/ 341/323/307/353/379/302 of the Indian Penal Code, Section 27 of the Arms Act, and Section 17 of the Criminal Law (Amendment) Act, (vi) Kutumba Police Station Case No. 69 of 2010, dated 03.07.2010, registered under Sections 364/302/379/34 of the Indian Penal Code, and Section 27 of the Arms Act, (vii) Kutumba Police Station Case No. 94 of 2010, dated 10.10.2010, registered under Sections 147/148/149/323/307/302/504/506 of the Indian Penal Code, Section 17 of the Criminal Law (Amendment) Act and Section 27 of the Arms Act, (viii) Tandwa Police Station Case No. 35 of 2010, dated 15.11.2010, registered under Sections 147/148/149/427/431/435 of the Indian Penal Code, Sections 3/4/5 of the Explosive Substances Act and Section 17 of the Criminal Law (Amendment) Act, (ix) Nabinagar Police Station Case No. 190 of 2010, dated 25.11.2010, registered under Sections 147/148/149/447/ 323/307/435/427 of the Indian Penal Code, and Section 17 of the Criminal Law (Amendment) Act, and (x) Town Police Patna High Court Cr. WJC No.385 of 2014 (7) dt.22-07-2014 4/14 Station Case No. 230 of 2011, dated 12.07.2011, registered under Sections 25 (1-B) A/26/35 of the Arms Act and Section 17 of the Criminal Law (Amendment) Act.
4. Aggrieved by his detention, the petitioner has made this application, under Articles 226 and 227 of the Constitution of India, seeking to get set aside and quashed not only the order of preventive detention, dated 03.01.2014, but also the order of approval, dated 18.02.2014, passed by the Advisory Board, Government of Bihar, and the order, dated 28.02.2014, passed by the State Government in exercise of power under Section 21 (1) read with Section 22 of Bihar Control of Crimes Act, 1981, confirming the order of detention, dated 03.01.2014, aforementioned and directing that the petitioner shall remain in detention till 02.01.2015.
5. We have heard Mr. B. P. Singh, learned Counsel for the petitioner, and Mr. Prabhu Narayan Sharma, learned Assistant Counsel to the Advocate General, appearing on behalf of the State.
6. While considering the legality and validity of the impugned order of detention, it needs to be noted, as already indicated above, that in terms of the grounds of detention, which have been furnished to the petitioner, the petitioner is shown to be an accused in ten cases, namely, Patna High Court Cr. WJC No.385 of 2014 (7) dt.22-07-2014 5/14
(i) Simra Police Station Case No. 16 of 2004, (ii) Nabinagar Police Station Case No. 71 of 2004, (iii) Amba Police Station Case No. 36 of 2006, (iv) Kutumba Police Station Case No. 21 of 2008, (v) Tandwa Police Station Case No. 17 of 2010, (vi) Kutumba Police Station Case No. 69 of 2010, (vii) Kutumba Police Station Case No. 94 of 2010, (viii) Tandwa Police Station Case No. 35 of 2010,
(ix) Nabinagar Police Station Case No. 190 of 2010, and
(x) Town Police Station Case No. 230 of 2011.
7. In all the cases aforementioned, charge-sheets have been submitted against the petitioner. In the impugned order, dated 03.01.2014, it is mentioned that the petitioner, in Nabinagar Police Station Case No. 190 of 2010, has already been acquitted and except Town Police Station Case No. 230 of 2011, the petitioner has already been granted bail. It is also mentioned, in the impugned order, dated 03.01.2014, that the petitioner is likely to be released on bail, in Town Police Station Case No. 230 of 2011, in one or two days.
8. While considering the present writ petition, what needs to be borne in mind is that personal liberty of a person is sacrosanct and State cannot take away or abridge a person's liberty without following the procedure prescribed by law; or else, the State would be treated to Patna High Court Cr. WJC No.385 of 2014 (7) dt.22-07-2014 6/14 have violated such a person's fundamental rights guaranteed under Articles 21 and 22 of the Constitution of India.
9. The question, which confronts us, is: whether in the facts and attending circumstances of the present case, the order of preventive detention, dated 03.01.2014, is a legally valid order of detention and if this order, dated 03.01.2014, is not found to be, in the attending facts and circumstances of the present case, in consonance with law, it would naturally follow that the rejection of the petitioner's representation by the Advisory Board, by order dated 18.02.2014, was wholly illegal and the order, dated 28.02.2014, passed by the State Government confirming the order of preventive detention of the petitioner, too, are not in accordance with law and must be interfered with.
10. In the light of the question posed above, what is imperative to note is that an order of preventive detention cannot be made against a person, who is in custody, as an accused, in connection with a case unless there is reasonable apprehension that he is likely to be enlarged on bail or otherwise, for, a person, who is already in custody, cannot be further detained by way of preventive detention.
11. The law, on the above aspect, is very clear Patna High Court Cr. WJC No.385 of 2014 (7) dt.22-07-2014 7/14 and we may, in this regard, refer to the case of Huidrom Konungjao Singh v. State of Manipur, reported in (2012) 7 SCC 181, too, wherein the Supreme Court has pointed out that there is no prohibition in law in passing an order of preventive detention against a person, who is already in custody in connection with a criminal case. However, if the order of detention is challenged, the detaining authority, according to the decision in Huidrom Konungjao Singh (supra), has to satisfy the Court on the following aspects:
(1) The authority was fully aware of the fact that the detenu was actually in custody; (2) There was reliable material placed before the detaining authority, on the basis of which it could have reasons to believe that there was real possibility of the detenu's release, on bail and further on being released he would probably indulge in activities, which are prejudicial to public order; and (3) In view of the above, the authority felt it necessary to prevent him from indulging in such activities and therefore, detention order was necessary.Patna High Court Cr. WJC No.385 of 2014 (7) dt.22-07-2014
8/14
12. Referring to the cases, which have been mentioned in the grounds of detention, it is contended and reiterated before us that the cases, which have been referred to in the order of detention, were 'stale in nature' and were not sufficiently proximate in time to the making of the impugned order of detention.
13. Resisting the writ petition, it has been submitted, on behalf of the respondents, that the impugned order of detention, approval and also confirmation thereof by the State Government are on valid grounds, the State has genuine concern of maintenance of public order and that in the facts and circumstance of the present case, placing the petitioner in preventive detention was wholly imperative.
14. While considering the rival submissions, it needs to be pointed out that the grounds of detention, in the present case, admittedly, refer to the cases of the years, between 2004 and 2011. These cases could not have been, admittedly, considered appropriate for detaining the petitioner inasmuch as distance of time rendered these cases stale cases and could not have, therefore, been made the grounds for the petitioner's detention.
15. Coupled with the above, though the cases Patna High Court Cr. WJC No.385 of 2014 (7) dt.22-07-2014 9/14 are of the period between 2004 and 2011, the fact remains that the last of these cases was lodged as far back as on 12.07.2011; whereas the order of detention has been made by respondent No. 3, namely, District Magistrate, Aurangabad, on 03.01.2014, i.e., after lapse of about two- and-a-half years.
16. In other words, the cases, which have been referred to, and relied upon, by the District Magistrate, Aurangabad, are of the years between 2004 and 2011. How these cases could become relevant, in the year 2014, for the purpose of passing an order of preventive detention, has not been explained or mentioned in the impugned order of preventive detention nor is there any explanation discernible, in this regard, from the materials on record.
17. Since no offence is alleged to have been committed by the petitioner between 12.07.2011 (i.e., the date on which the last case against the petitioner was lodged) and 03.01.2014 (i.e., the date on which the impugned order of detention was made), it was for the detaining authority to show as to how the alleged commission of offences by the petitioner would have any bearing in the year 2014 if the petitioner was released on bail. In the absence of any reasons having been assigned, Patna High Court Cr. WJC No.385 of 2014 (7) dt.22-07-2014 10/14 in this regard, by the State, one cannot help, but hold, and we do hold, that there was no proximity of time between the alleged commission of the offences by the petitioner, on one hand, and the impugned order of detention, on the other hand.
18. In order to show a live link between the cases, which have been referred to in the impugned order of detention, on the one hand, and the order of detention, on the other, the detaining authority has mentioned that since the petitioner was involved in the naxallite activities in the past, there is every likelihood of his being involved, on his release on bail, in the destructive activities in the area, where the work of establishing two large electricity projects is going on, the fact remains that neither any reason has been assigned to support the apprehension, so expressed by the detaining authority nor has any material been referred to in order to show that upon his release the detenue (i.e., the petitioner) is likely to involve himself in the destructive/naxallite activities. Hence, the grounds, so assigned, rightly contends learned Counsel for the petitioner, is nothing, but a mere allegation, which is not supported by any reason or any materials on record. Viewed from this angle too, the impugned order of detention cannot be sustained inasmuch as there is not Patna High Court Cr. WJC No.385 of 2014 (7) dt.22-07-2014 11/14 even a particle of material available on record to show that the petitioner would rejoin the naxallite group and thereby disturb the public tranquility or public order.
19. In Shiv Prasad Bhatnagar v. State of M.P., reported in (1981) 2 SCC 456, the order of preventive detention was challenged on several grounds, the primary challenge being, however, on the ground that the grounds of detention suffer from the vice of either vagueness or staleness. Addressing the primary submission so made, the Supreme Court pointed out, in Shiv Prasad Bhatnagar (supra), that the first ground, embodied in the grounds of detention, mentioned that the detenu, along with his friends, in the second week of November, 1980, had indulged in filthy abuse of Muslims, threatened their lives and performed 'mar pit' and details of the incidents were given to substantiate the ground and that as many as six incidents were mentioned and in every one of them, it was mentioned that the detenu, along with his associates, had indulged in this or that violent action, but no mention was made of the name of even a single associate. The argument was that the reference to 'associates' without naming even one rendered the ground vague and, therefore, vitiated it. Similarly, it was said that the second ground also referred to the detenu and his associates without naming even a Patna High Court Cr. WJC No.385 of 2014 (7) dt.22-07-2014 12/14 single associate and for that reason, the second ground also was vague. The further submission was that the incidents enumerated, in second ground were of the years 1974, 1975, 1977 and 1978 and could, by no means, be said to be proximate enough to sustain an order of preventive detention. The second ground was to the effect that the detenu and his associates had terrorized the common man in the Vidisha area by their various criminal acts, which caused disturbance to public peace and public safety. Several incidents were narrated to substantiate this ground. The first incident was of the year 1974, the second incident was of the year 1975, the next three incidents were of the year 1977 and the rest of the incidents barring the last one were of the year 1978. A perusal of the incidents enumerated to substantiate the second ground showed, according to the Supreme Court, that the order of detention suffered from the vice of staleness. The Supreme Court also pointed out, in Shiv Prasad Bhatnagar (supra), that the incidents appear to bear a striking resemblance to the grounds of detention, which were considered in Sushanta Goswami (1969) 1 SCC 272, particularly, in the cases of Debendra Nath Das, Abdul Waheb, Anil Das, Dilip Kumar Chakraborty and Ashoka Kumar Mukherjee and that 'it is, now, well settled that Patna High Court Cr. WJC No.385 of 2014 (7) dt.22-07-2014 13/14 grounds of detention must be pertinent and not irrelevant, proximate and not stale, precise and not vague. Irrelevance, staleness and vagueness are such vices that any single one of them is sufficient to vitiate a ground of detention. The relevant observations, appearing in Shiv Prasad Bhatnagar (supra), read as under:
"It is now well settled that grounds of detention must be pertinent and not irrelevant, proximate and not stale, precise and not vague. Irrelevance, staleness and vagueness are vices any single one of which is sufficient to vitiate a ground of detention."
(Emphasis is supplied)
20. Because of what has been discussed and pointed out above, we find that the impugned order of detention suffers from serious infirmities of law and cannot, therefore, be sustained. Consequently, the impugned order of detention followed by the impugned order of approval and impugned order of confirmation must fail.
21. In the result and for the reasons discussed above, this writ petition succeeds. The impugned order of detention, dated 03.01.2014, the impugned order of approval by the Advisory Board, dated 18.02.2014, and the impugned order of confirmation, dated 28.02.2014, Patna High Court Cr. WJC No.385 of 2014 (7) dt.22-07-2014 14/14 are hereby set aside and quashed.
22. With the above observations and directions, this writ petition shall stand allowed.
23. No order as to costs.
(I. A. Ansari, J.) Anjana Mishra, J.: I agree (Anjana Mishra, J.) Prabhakar Anand/-
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