Patna High Court
Bhim Singh vs State Of Bihar And Ors. on 18 March, 1985
Equivalent citations: 1985(33)BLJR671
JUDGMENT S.S. Sandhawalia, C.J.
1. Whether the proviso to Sub-section (2) of Section 12 of the Bihar Control of Crimes Act, 1981 places a limit of three months on the period of detention which can be ordered by the District Magistrate, or is merely a limitation on the period for which the delegation of the power of detention by the State Government can at one time be made to the District Magistrate ? Whether the provisions of Section 3 pertaining to externment are equally attracted by way of analogy to the cases of detention under Section 12 of the Act ? There are the two significant questions necessitating this reference to the Division Bench in this criminal Writ petition directed against the detention of the petitioner.
2. The facts lie in as narrow compass. The petitioner is a 3rd year student of the Bihar College of Engineering. He was taken in custody whilst he was on dharana in the college premises and was served with the grounds of detention and the detention order passed by the District Magistrate of Patna on the 21st of September, 1984 in jail. The matter having been expeditiously placed before, the State Government, the dentention was approved by it on the 27th of September, 1984 which was duly served on the 29th of September, 1984 (vide annexures 3). The petitioner sought to make grievance about the grounds of detentions enumerated in the order (annexure 2) and submitted his representation against his detention on the 16th of October, 1984 which was duly considered by the authorities and rejected on the 13th of November, 1984. On his own showing, the petitioner was produced before the Advisory Board on the 6th of November, 1984 and a grievance is made that the decision of the said Board has not been served upon him. It is, however, common ground that the Advisory Board in its opinion approved the petitioner's detention and thereafter in exercise of the powers under Sections 21 and 22 of the Bihar Control of Crimes Act, 1981 (hereinafter to be referred to as the 'Act'") the State Government has confirmed the earlier detention order dated 18th of September, 1984 directing the petitioner's detention till the 18th of September, 1985 (vide annexure 7) which was served upon the petitioner.
3. In the counter affidavit filed on behalf of respondent No. 1 detailed averments have been made with regard to the expeditious processing of the case against the petitioner after complying with the formalities of law, culminating in the order of the Chief Minister dated the 18th of November, 1984 rejecting the representation of the petitioner and the order of detention (annexure 7) directing his detention till the 18th of September, 1985. The allegations of the petitioner that his representation was not placed before the Advisory Board and the matter was not duly considered by the authorities are stoutly controverted. A virtually identieal stand, has been take on behalf of respondent No. 2 in the affidavit filed on his behalf.
4. Mr. S.B.N. Singh, the leaded counsel for the petitioner had at first flush contended that the original order of detention by the District Magistrate, Patna, was prima facie vitiated because of its alleged violation of Sub-section (2) of Section 12 of the Act with particular reference to the proviso thereto. The submission sought to be made was that these provisions place absolute limit of three months on the period of detention which can be ordered by the District Magistrate. Herein, however, the detention having been made for a period beyond the same was consequently bad ipso facto.
5. The contentions aforesaid, though it might bring some credit to the ingenuity of the learned Counsel, seems to be obviously fallacious both on the larger principle and precedent. However, as the matter has been raised and seriously pressed, it is apt to read the relevant provisions of Section 12 around which the controversy obviously revolves:
12. (1) The State Government may if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the maintenance of public order and there is reason to fear that the activities of anti-social elements cannot be prevented otherwise than by the immediate arrest of such person make an order directing that such anti-social element be detained.
(2) 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, the State Government is satisfied that it is necessary so to do, it may by an order in writing direct, that during such period as may be specified in the order, such District Magistrate may also, if satisfied as "as provided in Sub-section (1) exercise the power conferred upon by the said sub-Section.
Provided that the period specified n an order made by the State Government under this 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. (3)....
6. After a plain reading of the aforesaid provision, it seems manifest that the scheme of that Section is that the power of detention is primarily vested in the State Government by Sub-section (1) thereof. However, the statute authorises the delegation of this power of detention by the State Government to the District Magistrate if the condition prescribed in Sub-section (2) stand satisfied. These obviously are some peculiar circumstances prevailing or likely, to prevail in the particular district which satisfy the State Government that it is necessary to delegate its power of detention to the concerned District Magistrate. It is thus plain that the plenary power of detention being vested in the State Government, the conferring of the same by delegation on the District Magistrate is an exception to the rule. By the proviso to Sub-section (2), the Legislature has chosen to put a fetter on the period for which such power can be delegated by the State Government. The intention behind the statute seems to be that a situation may arise where the peculiar conditions in the district warrant or require that the power should be exercised by the authority on the spot and, therefore, the same may be delegated to the District Magistrate, subject, of course, to subsequent approval by the State Government. However, safeguard against this necessity is sought to be provided that such delegation may not be done in routine for prolonged periods, since it obviously affects the valuable right of the personal liberty of the citizen under the Constitution. Consequently it has been expressly laid down in the proviso that the period of delegation of such power shall not, in the period of delegation of such power shall not, in the first instance, exceed three months. It is thereafter for the Government to apply its mind again and if it becomes necessary to do so, the original order may be extended, but is again fettered to a period not exceeding three months at any one time. The plain rational is that there cannot be any blanket and continuous delegation of the weapon of detention primarily vested by the legislature in the State Government to the District Magistrate. This should be done only in the peculiar exigency of the situation in the district and if the same continues there may be an extension or renewal of the original delegation for three months at one time and not more. I am, therefore, inclined to read this provision as not even remotely a fetter on the period of detention to be ordered by the District Magistrate but merely a limitation on the period for which at one time the State Government can delegate such power to the District Magistrate. It has in essence, no relevance whatsoever to the life of the order or the time of the detention period,.
7. The view I am inclined to take is further buttressed when close attention is paid to the succeeding provisions of Sub-section (3) of Section 12. This provides that when an order of detention is made by the Magistrate he must forthwith report the fact to the State Government with the relevant particulars and his opinion, 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 4he State Government. This in a way provides a further safeguard to the delegation of the power of detention to the District Magistrate. The order of detention made by the latter is in the nature of a provisional order subject to confirmation within twelve days by the State Government, failing which it loses its. force. In essence, any detention beyond twelve days (or beyond fifteen days if the conditions of the proviso to Sub-section (3) are satisfied) is only with the approval and authority of the State Government. Consequently, the contention on behalf of the petitioner that the order of the District Magistrate itself has a limitations of three months only seems wholly untenable when viewed against the statutory provision and its background.
8. What appears to be plain on principle and the language of the statute seems to me to be equally borne out by precedent. In Deonath Gope v. The State of Bihar and OrS.C. W. J. Case No. 32 of 1982. the Full Bench had, in no uncertain terms, rejected the identical contention which is sought to be raised on behalf of the writ petitioner. The first submission of the learned Counsel for the petitioner, therefore, must fail.
9. Repelled on his primal ground, the learned Counsel for the petitioner then made an ancillary submission resting on Section 3 which appears to me as equally tenuous. Ingenuously basing himself on the use of the word 'etc'. In the marginal note of Section 3 of the Act pertaining to externment of antisocial elements, Mr. Singh contended that the procedural provisions 'of the said Section were equally attracted to the case of detention. Counsel submitted that though the heading of the Section plainly deals with externment yet use of the word 'etc' would include within its sweep the other aspect of the detention of anti-social elements as well with which Section 12 later on deals.
10. To appreciate the submission aforesaid it becomes necessary to read the provisions of Section 3 in extenso.
Externment of Anti-Social Element-(1) Where it appears to the District Magistrate that ;-
(a) Any person is an Anti-Social Element, and
(b)(i) that his movements or acts in the district or any part thereof are causing or are calculated to cause alarm, danger or harm to persons or property, or
(ii) that there are reasonable grounds for believing that he is engaged or about to engage in the district or any part thereof, in the commission of any offence punishable under Chapter XVI or chapter XVII of the Indian Penal Code, or under the Suppression of Immoral Traffic in Women and Girls Act, 1956, or abetment of any such offence the District Magistrate shall by notice in writing inform him of the general nature of the material allegation against him in respect of Clauses (a) and (b) and shall give him a reasonable opportunity of tendering an explanation regarding them, (2) The persons against whom an order under this Section is proposed to be made shall have the right to consult and be defended by a counsel of his choice and shall be given a reasonable opportunity of examining himself, if he so desires, and also of examining any other witnesses that he may wish to produce in support of his explanation, unless for reason to be recorded in writing the District Magistrate is of opinion that the request is made for the purpose of vexation or delay, (3) The District Magistrate on being satisfied that the conditions specified in a Clauses (a) and (b) of Sub-section (1) exist, may by order in writing-(a) direct him to remove himself outside the district or part thereof as the ease may be, by such route, if any and within such time as may be specified in the order and to resist from entering the district or the specified part thereof, until the expiry of such period, not exceeding six months as may be specified in the order.
(b) (i) require such person to notify h-'s movements or to report himself or to do both, in such manner, at such time and to such authority or person as may be specified in the order:
(ii) Prohibit or restrict possession or use by him of any such article as may be specified in the "order":
(iii) direct him otherwise to conduct himself in such manner as may be specified in the order, until the expiry of such period, not exceeding six months as may be specified in the order.
11. In the light of the aforesaid provision, the content of the learned Counsel for the petitioner has only to be noticed and rejected. A plain look at the purpose and object of the externment one hand and detention under the Act on the other can leave no manner of doubt that both the scope and procedure are entirely different. No ground for creating any confusion on this score is made out on the language of the statute itself as I would presently show. On larger principle itself, it would seem that the procedural provisions of a previous notice or a show cause notice to a person who has to be immediately detained would be counter-productive and would frustrate the very object of immediate detention, which is the purpose of the exceptional provision of preventive detention. In this context, reference may equally be made to Article 22 of the Constitution which pertains to the same subject of preventive detention. This Article also does not directly envisage any prior notice or show cause notice to be served on the likely detainee. The Bihar Control of Crimes Act has inevitably to conform to the constitutional fetters on the power of preventive detention. Looking at both the relevant provisions of the Constitution and the Act, it seems to follow that the preventive detention envisages a quick custody of the detenu and thereafter the service of grounds of such detention upon him and the right of representation again the same to the Government and the subsequent approval thereof by the Advisory Board, By the very nature of things, in my view, preventive detention cannot envisage a show cause notice to the detainee at the pre-arrest atage.
12. Reverting back to Section 3, it would appear that its provisions pertain not merely to the actual order of externment but equally to a number of ancillary matters and conditions which may be attached thereto. Reference, in this connection may particularly be made to Sub-section (3) and Clauses (a) and(b) thereof including Sub-clauses (1) to (iii) of the latter. Thereby the District Magistrate may direct the externee to remove himself outside the district by specified route, if any, and within such time as may be specified and further to desist from entering the district or any part thereof. Equally the District Magistrate may require the externee to notify his movements or to report himself at such time and to such authority as may be specified in the order. He may further be prohibited or restricted from possessing or use by him of any article and further directed to conduct himself in such manner as may be specified in the order. When reference is made to the provisions, it is plain that when the Section in its heading mention 'etc' in the context of externment of the anti-social elements, it inevitably refers to the aforesaid ancillary or conditional order with regard to the basic order of externment. To put it technically, the word 'etc' in the heading of Section 3 has to be read as ejusdem generis to the externment orders. Even by the most liberal, construction, the procedure provided for externment cannot be stretched and extended to the altogether different field of detention. It must, therefore, be held that Section 3 has no relevance whatsoever to the issues of detention, etc. under Section 12 and other provisions connected with detention.
13. To conclude on the two primal questions posed at the outset, it must first be held that the proviso to Sub-section (2) of Section 12 of the Act is only a limitation on the period for which the delegation of power of detention by the State Government can at one time be made to the District Magistrate and has no reference or relevance to the period of detention which can be ordered by the Magistrate, and, secondly, that the provisions of Section 3 pertaining to externment have no relevance whatsoever to the altogether different field of detention under Section 12 and other ancillary provisions connected therewith.
14. Lastly, more as a force of habit than on any basis of fact, learned Counsel attempted to contend that the grounds of detention furnished to the petitioner were vague. A bare reference to annexure 2 straightaway belies the stand. Indeed, this annexure specifies in great detail the chequered criminal career of the petitioner after making a reference to specific dates, the cases registered, the charges levelled and other criminal and anti-social activities. In fact, the grounds furnished far from being vague are overtly specific giving with meticulous details the relevant information on which the order of detention was sought to be rested.
15. Since all the three submissions projected on behalf of the writ petitioner fail, the writ petition is consequently dismissed and the order of detention is upheld.