Patna High Court - Orders
Srikant Roy vs The State Of Bihar & Ors on 16 May, 2014
Author: Samarendra Pratap Singh
Bench: Samarendra Pratap Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Writ Jurisdiction Case No.271 of 2014
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1. Srikant Roy S/O Late Madan Mohan Roy @ Modan Roy @ Modi Roy
Resident Of Village Shiv Nagar Barari, P.S. Jurawanpur, District
Vaishali.
.... .... Petitioner
Versus
1. The State of Bihar.
2. The Secretary, Department of Home (Police), Government of Bihar,
Patna.
3. Additional Secretary, Department of Home (Police), Government of
Bihar, Patna.
4. Under Secretary, Department of Home (Police), Government of Bihar,
Patna.
5. District Magistrate, Vaishali At Hajipur.
6. Superintendent of Hajipur Sadar Jail, Hajipur.
.... .... Respondents
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Appearance :
For the Petitioner/s : Mr. Ajay Kumar Thakur, Advocate
For the Respondent/s : Mr. Prabhu Narain Sharma, AC to AG
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CORAM: HONOURABLE MR. JUSTICE I. A. ANSARI
and
HONOURABLE MR. JUSTICE SAMARENDRA PRATAP
SINGH
CAV ORDER
(Per: HONOURABLE MR. JUSTICE I. A. ANSARI)
7 16-05-2014We have heard Mr. Ajay Kumar Thakur, learned Counsel for the petitioner, and Mr. Prabhu Narain Sharma, learned Assistant Counsel to the Advocate General.
2. The petitioner, who was once elected as Mukhiya of Jurawanpur Barari Gram Panchayat, came to be arrested, on 09.01.2014, in connection with Jurawanpur Police Station Case No. 01 of 2014, under Sections 307/302/34 of the Indian Penal Code read with Section 27 of the Arms Act, 1959, on the allegation that Anil Yadav, S.H.O., Jurawanpur Police Station and two villagers, Patna High Court Cr. WJC No.271 of 2014 (7) dt.16-05-2014 2 namely, Sudhir Singh and Nepali Singh, were shot by fire- arms by the petitioner along with some others and, as a result of the shooting, the S.H.O., Anil Yadav, and the villager, Sudhir Singh, later on, succumbed to their injuries.
3. While the petitioner was in custody in connection with the said case, he was served, on 09.01.2014, with an order, issued by respondent No. 5, namely, District Magistrate, Vaishali, at Hajipur, contained in memo No. 12, dated 09.01.2014, putting him, in exercise of power under Section 12 (2) of Bihar Control of Crimes Act, 1981, under preventive detention. The ground of detention was also served on the petitioner by memo No. 13, dated 09.01.2014, issued under the signature of the respondent No. 5, namely, District Magistrate, Vaishali, at Hajipur. By order, dated 17.01.2014, the State Government, has approved the petitioner's detention by taking recourse to its powers under Section 12 (3) of the Bihar Control of Crimes Act, 1981. Though the petitioner filed a representation, on 21.01.2014, against his detention, his representation has been rejected on 03.02.2014. Thereafter, by order, dated 03.03.2014, his detention has been confirmed till 08.01.2015 by the State Government in exercise of its power under Section 21 of Bihar Control of Crimes Act, 1981.
Patna High Court Cr. WJC No.271 of 2014 (7) dt.16-05-2014 3
4. Aggrieved by the order of detention, dated 09.01.2014, aforementioned, the petitioner, with the help of this writ petition made under Article 226 of the Constitution of India, has put to challenge his detention.
5. Appearing on behalf of the petitioner, Mr. Ajay Kumar Thakur, learned Counsel, has submitted that it is sub-Section (1) of Section 12 of Bihar Control of Crimes Act, 1981, which empowers the State Government to take a person in preventive detention and sub-Section (2) of Section 12 of Bihar Control of Crimes Act, 1981, enables the State Government to vest the power of preventive detention in the District Magistrate of any area in order to enable the District Magistrate exercise the power of ordering preventive detention of a person within the local limits of his jurisdiction.
6. Referring to the provisions of sub-Section (1) of Section 12 of Bihar Control of Crimes Act, 1981, Mr. Ajay Kumar Thakur, learned Counsel, points out that unless a person falls within the definition of anti-social element, as given in Clause (d) of Section 2 of Bihar Control of Crimes Act, 1981, he cannot, by virtue of powers vested in the Government under sub-Section (1) of Section 12 or by virtue of the powers vested in a District Magistrate under sub-Section (2) of Section 12 of the Bihar Control of Crimes Patna High Court Cr. WJC No.271 of 2014 (7) dt.16-05-2014 4 Act, 1981, be placed under preventive detention, inasmuch as sub-Section (1) of Section 12 of the Bihar Control of Crimes Act, 1981, makes it clear that in order to enable detention of a person, there must be materials to satisfy the Government or, as the case may be, the District Magistrate concerned that the person, sought to be arrested, is an anti-social element and that there are reasons to fear that the activities of such an anti-social element cannot be prevented otherwise than by immediate arrest of such a person and that with a view to preventing him from acting in any manner prejudicial to the maintenance of public order. If, therefore, according to Mr. Thakur, a person does not fall within the definition of anti- social element, as contained in Section 2 (d) of Bihar Control of Crimes Act, 1981, his detention would be wholly without jurisdiction and cannot be sustained.
7. In the case at hand, points out Mr. Thakur, apart from Jurawanpur Police Station Case No. 01 of 2014, which can be treated as a current case against the petitioner and which forms the primary ground for detention of the present petitioner, the petitioner was also charge-sheeted in Jurawanpur Police Station Case No. 29 of 2007 aforementioned, which is a case under Sections 25(1- B) (a)/26/35 of the Arms Act, 1959.
Patna High Court Cr. WJC No.271 of 2014 (7) dt.16-05-2014 5
8. It is the submission of Mr. Thakur, learned Counsel, that in the third case, namely, Jurawanpur Police Station Case No. 4 of 2002, it has been shown that final form has been submitted under Section 504 of the Indian Penal Code.
9. It is important to note, with regard to the above, points out Mr. Thakur, that in the ground of detention, Jurawanpur Police Station Case No. 04 of 2002 is shown to have been registered under Sections 147/148/149/307/ 427/447/384 of the Indian Penal Code and Section 27 of the Arms Act, 1959, but the final form, according to grounds of detention, has been given under Section 323 of the Indian Penal Code; whereas final form has been submitted under Section 504 of the Indian Penal Code.
10. Mentioning of Section 323 of the Indian Penal Code in the ground of detention, according to Mr. Thakur, learned counsel, is not only incorrect, but false and misleading inasmuch as Section 323 of the Indian Penal Code has been deliberately mentioned, in the grounds of detention, so as to make the case fall within sub-Clause (i) of Clause (d) of Section 2 of Bihar Control of Crimes Act, 1981, which speaks of offences covered by Chapter XVI or Chapter XVII of the Indian Penal Code; whereas, the final Patna High Court Cr. WJC No.271 of 2014 (7) dt.16-05-2014 6 form has been submitted, in Jurawanpur Police Station Case No. 04 of 2002, under Section 504 of the Indian Penal Code and Section 504 of the Indian Penal Code, fall under Chapter XXII of the Indian Penal Code.
11. Elaborating his above submissions, Mr. Thakur, learned counsel, reiterates that in place of Section 504 of the Indian Penal Code, wherein final form has been given, the ground of detention purposely mentions Section 323 of the Indian Penal Code so that the offence appears to fall under Chapter XVI or XVII of the Indian Penal Code. This apart, further points out, Mr. Thakur, learned counsel, that the detaining authority has made the impugned order of detention on non-existent facts inasmuch as it has taken into account Jurawanpur Police Station Case No. 04 of 2002, wherein final form is claimed to have been submitted under Section 323 of the Indian Penal Code; whereas the final form has been submitted under Section 504 of the Indian Penal Code and a person, committing an offence under Section 504 of the Indian Penal Code, cannot be said to have committed any of the offences enumerated in Section 3 of Bihar Control of Crimes Act, 1981, and would not, therefore, be described as an anti-social element.
12. It is thus, abundantly clear, submits, Mr. Thakur, that the impugned order of detention, the approval Patna High Court Cr. WJC No.271 of 2014 (7) dt.16-05-2014 7 and confirmation thereof are all based on non-existent facts inasmuch as Section 504 of the Indian Penal Code falls outside the definition of anti-social element.
13. Yet another reason, according to Mr. Thakur, learned Counsel, why the petitioner cannot be covered by the definition of anti-social element as embodied in Section 2(d) of Bihar Control of Crimes Act, 1981, is that the petitioner is shown to have been chargesheeted in Jurawanpur Police Station Case No. 29 of 2007, under Sections 25(1-B) (a)/26/35 of the Arms Act, 1959, though filing of mere charge sheet under any penal provisions of the Arms Act, 1959, would not bring a person within the purview of anti-social element as defined in Section 2(d) of the Bihar Control of Crimes Act, 1981 inasmuch as a person, in order to be covered by sub-Clause
(v) of Clause (d) of Section 2 of Bihar Control of Crimes Act, 1981, must be a person, who has been convicted of an offence under Sections 25, 26, 27, 28 or 29 of the Arms Act, 1959; whereas the present petitioner has not yet been convicted under any penal provisions of the Arms Act, 1959, and his case would not, therefore, fall under sub- Clause (v) of Clause (d) of Section 2 of Bihar Control of Crimes Act, 1981, either.
14. The petitioner does not, therefore, according Patna High Court Cr. WJC No.271 of 2014 (7) dt.16-05-2014 8 to Mr. Thakur, falls within the definition of anti-social element and, hence, no order of preventive detention could have been made against him; more so, when there is only one recent case pending against him and the other cases are of the years 2002 and 2007.
15. Controverting the submissions made on behalf of the petitioner, Mr. P. N. Sharma, learned Government Counsel, submits that Section 12 of Bihar Control of Crimes Act, 1981, makes it possible to take a person into preventive detention if the detaining authority is satisfied that detention of the person is necessary with a view to prevent him from acting in any manner prejudicial to maintenance of public order even if such a person does not fall within the definition of anti-social element as given by Section 2(d) of Bihar Control of Crimes Act, 1981.
16. What, thus, the learned Counsel, appearing on behalf of the respondents, contends is that even if a person does not fall within the definition of anti-social element, he can still be detained if the detaining authority is satisfied that detention of such a person is necessary in order to prevent him from acting in any manner prejudicial to maintenance of public order.
17. In the case at hand, according to Mr. Sharma, learned Counsel appearing for the respondents, Patna High Court Cr. WJC No.271 of 2014 (7) dt.16-05-2014 9 the petitioner's activities are certainly prejudicial to the maintenance of public order and, hence, he has been justifiably and rightfully taken into preventive detention.
18. Repelling the submissions made on behalf of the respondents, Mr. Thakur, learned Counsel, insists that in the case at hand, the impugned detention order and the grounds of detention appended thereto do not make out that petitioner falls within the definition of anti-social element and if he is not an anti-social element, he cannot be detained inasmuch as detention of a person, under Bihar Control of Crimes Act, 1981, is impermissible merely on the ground that his acts are prejudicial to the maintenance of public order unless he is an anti-social element.
19. The rival submissions made before us brings us to determine what an anti-social element, within the meaning of Section 2 (d) of the Bihar Control of Crimes Act, 1981, is?
20. Section 2(d) of Bihar Control of Crimes Act, 1981, is reproduced hereinbelow:
"2. (d) "Anti-Social element" means a person, who-
(i) either by himself or as a member of or leader of a gang, habitually commits or attempts to commit or abets the commission of offences punishable under Chapter XVI or Chapter XVII of Patna High Court Cr. WJC No.271 of 2014 (7) dt.16-05-2014 10 the Indian Penal Code; or
(ii) habitually commits or abets the commission of offences under the Suppression of Immoral Traffic in Women and Girls Act, 1956:
(iii) who by words or otherwise promotes or attempts to promote, on grounds of religion, race, language, caste or community or other grounds whatsoever, feelings of enmity or hatred between different religions, racial or language groups or castes or communities; or
(iv) has been found habitually passing indecent remarks to, or teasing women or girls; or
(v) who was been convicted of an offence under sections 25, 26, 27, 28 or 29 of the Arms Act of 1959."
21. From a careful reading of Section 2 of Bihar Control of Crimes Act, 1981, it becomes abundantly clear that a person, in order to fall within the ambit of the definition of anti-social element, must be such a person, who (i) either by himself or as a member of or leader of a gang habitually commits or attempts to commit or abets the commission of offences punishable under Chapter XVI or Chapter XVII of the Indian Penal Code; or (ii) habitually commits or abets the commission of offences under the Suppression of Immoral Traffic in Women and Girls Act, Patna High Court Cr. WJC No.271 of 2014 (7) dt.16-05-2014 11 1956: (iii) who, by words or otherwise, promotes or attempts to promote, on grounds of religion, race, language, caste or community or other grounds whatsoever, feelings of enmity or hatred between different religions, racial or language groups or castes or communities; or (iv) has been found habitually passing indecent remarks to, or teasing, women or girls; or (v) who was been convicted of an offence under Sections 25, 26, 27, 28 or 29 of the Arms Act, 1959.
22. From a bare reading of the definition of anti- social element, as contained in Section 2(d) of the Bihar Control of Crimes Act, 1981, it becomes clear that a person, in order to be described, as an anti-social element under Section 3(d)(v) of Bihar Control of Crimes Act, 1981, has to be such a person, who has been convicted of an offence under Sections 25, 26, 27, 28 or 29 of the Arms Act, 1959.
23. In the light of the definition of anti-social element, as given by Section 2(d)(v) of Bihar Control of Crimes Act, 1981, it becomes transparent that merely because a person is an accused in a case involving commission of offence under Sections 25, 26, 27, 28 or 29 of the Arms Act, 1959, he cannot be regarded as an anti- social element until the time he is convicted of any of the Patna High Court Cr. WJC No.271 of 2014 (7) dt.16-05-2014 12 said penal provisions.
24. In the present case, the petitioner is, admittedly, a person, who has been charge sheeted in Jurawanpur Police Station Case No. 04 of 2002 and Jurawanpur Police Station Case No. 29 of 2007 under Sections 25(1-B)(a), 26/35 of the Arms Act, 1959 and since he has not yet been convicted of any offence under the Arms Act, 1959, it logically follows that there was complete non-application of mind to the facts of the present case by the detaining authority as well as the approving and confirming authority inasmuch as none of these authorities realized that 'conviction' and not submission of charge sheet is necessary for the purpose of applying Section 2(d)(v) of Bihar Control of Crimes Act, 1981, so as to describe a person an anti-social element.
25. Similarly, in Jurawanpur Police Station Case No. 04 of 2002, the final form has been submitted not under Section 323 of the Indian Penal Code but under Section 504 of the Indian Penal Code, which does not fall under any of the offences, which have been referred to by Section 2(d) of Bihar Control of Crimes Act, 1981.
26. Necessarily, therefore, one has to hold that by referring to Jurawanpur Police Station Case No. 04 of 2002, and making reliance thereon, while making the order Patna High Court Cr. WJC No.271 of 2014 (7) dt.16-05-2014 13 of detention, the authorities concerned applied its mind to non-existent facts. Had any of the authorities concerned applied its mind, he could have noticed that even Jurawanpur Police Station Case No. 04 of 2002 did not involve an offence under Section 323 of the Indian Penal Code and did not, therefore, attract Section 2(d)(i) of Bihar Control of Crimes Act, 1981 or any other clauses embodied in Section 2(d) at all.
27. Coupled with the above, while one case, namely, Jurawanpur Police Station Case No. 04 of 2002 was of the year 2002, the other one, namely, Jurawanpur Police Station Case No. 29 of 2007, was of the year 2007.
28. Coupled with the above, consideration of the two cases, namely, Jurawanpur Police Station Case No. 04 of 2002 and Jurawanpur Police Station Case No. 29 of 2007, aforementioned, has to be held, for the reasons pointed out above, without jurisdiction inasmuch as none of these two cases could have become foundation for describing the petitioner as an anti-social element.
29. Turning to Jurawanpur Police Station Case No. 01 of 2014, which has been registered under Sections 307 and 302 read with Section 34 of the Indian Penal Code and Section 27 of the Arms Act, 1959, it may be noted that in these two cases, the assailants were unknown. There is Patna High Court Cr. WJC No.271 of 2014 (7) dt.16-05-2014 14 nothing to show that the present petitioner was involved, more particularly, because he has not been furnished, admittedly, copies of the materials, which have become foundation for taking him into preventive detention.
30. Be that as it may, the detaining authority has mentioned, in the impugned order of detention, that the incident has sent shockwaves throughout the area, the people are aghast and public order is under threat. This solitary case, even if taken on its face value, would not make the petitioner fall within the definition of anti-social element.
31. In order to get rid of the situation and sustain the impugned order of detention, it has been submitted, with great passion, by Mr. P. N. Sharma, learned counsel, appearing for the State-respondents, that even if a person does not fall within the purview of the definition of anti-social element, he may, in exercise of power under Section 12 of Bihar Control of Crimes Act, 1981, be taken into preventive detention if he is found to have been acting in any manner prejudicial to the maintenance of public order.
32. On the above aspect of the case, it is contended by Mr. P. N. Sharma, learned counsel, that even one case if sends shockwaves and creates terror would Patna High Court Cr. WJC No.271 of 2014 (7) dt.16-05-2014 15 constitute an act, which is prejudicial to maintenance of public order. With the proposition of law so advanced, there can be no disagreement in the sense that it is trite that if a case creates panic and terror, such a case is sufficient to give rise to an inference that the act is one, which is prejudicial to maintenance of public order.
33. The question, however, is : Whether the fact that an act, which is prejudicial to maintenance of public order, is sufficient to detain a person by taking recourse to Section 12 of Bihar Control of Crimes Act, 1981?
34. The question, posed above, brings us to Section 12 of Bihar Control of Crimes Act, 1981. Sub- Section (1) and sub-Section (2) of Section 12 of Bihar Control of Crimes Act, 1981, being of great relevance in the present case, is reproduced below:
"12. Power to make order detaining certain persons.-
(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 can not be prevented otherwise than by the immediate arrest of such person, make an order directing that such anti-social element be detained.Patna High Court Cr. WJC No.271 of 2014 (7) dt.16-05-2014 16
(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 provided in sub-section (1) exercise the powers conferred upon by the said sub-
section:
Provided that the period specified in 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) xx xx xx"
35. A microscopic reading of the provisions, embodied in sub-Section (1) of Section 12 of Bihar Control of Crimes Act, 1981, makes it transparent that merely because a person acts in a manner prejudicial to maintenance of public order, he cannot be placed under preventive detention unless there is reason to fear that the activities of the anti-social element (which he is), cannot be prevented otherwise than by his immediate arrest.Patna High Court Cr. WJC No.271 of 2014 (7) dt.16-05-2014 17
36. Situated thus, one can have no escape from the conclusion that the primary condition for attracting sub-
Section (1) of Section 12 of Bihar Control of Crimes Act, 1981, is that the person, sought to be detained, is an anti- social element within the meaning of Section 2(d) of Bihar Control of Crimes Act, 1981 and if such person's act is prejudicial to the maintenance of public order and there is fear that his activities cannot be prevented otherwise than by his immediate arrest, Section 12 of Bihar Control of Crimes Act, 1981, can be resorted to.
37. In other words, in order to be taken into preventive detention, one must be an anti-social element and the detaining authority must be satisfied that his act is prejudicial to maintenance of public order and there must be reason to fear that such anti-social element's activities cannot be prevented otherwise than by his immediate arrest. In absence of these conditions precedent, the power, under Section 12(1) of Bihar Control of Crimes Act, 1981, cannot be invoked and one cannot be taken into preventive detention.
38. In short, from a careful reading of what sub- Sections (1) and (2) of Section 12 of Bihar Control of Crimes Act, 1981, lays down, it becomes transparent that an order of detention can be made by the State Patna High Court Cr. WJC No.271 of 2014 (7) dt.16-05-2014 18 Government or, in a given case, by the District Magistrate concerned if the State Government, or the District Magistrate, as the case may be, is satisfied with respect to a person that he is an anti-social element and that he cannot be prevented otherwise than his immediate arrest from acting in a manner prejudicial to the maintenance of public order.
39. In the backdrop of the law, which we have indicated above, let us, now, revert to the facts of the present case.
40. The order of detention, dated 09.01.2014, contained in memo No. 12, dated 09.01.2014, and the grounds of his detention, contained in memo No. 13, dated 09.01.2014, are reproduced below:
"OFFICE OF THE DISTRICT MAGISTRATE, VAISHALI ORDER Memo No.- 12 /Court, Hajipur, Dated- 09.01.14 Whereas I am satisfied that with a view to preventing Srikant Rai S/o Modan Rai @ Modi Rai of village-Shiv Nagar Barari, P.S.-Jurawanpur, District- Vaishali who is an anti social element, it is necessary to make an order that he be detained.
As reported by the Patna High Court Cr. WJC No.271 of 2014 (7) dt.16-05-2014 19 Superintendent of Police, Vaishali, Srikant Rai is currently at large. He is the main accused in Jurawanpur P.S. Case No. 1/14 u/s 307, 302, 34 IPC & 27 Arms Act in which the SHO of Jurawanpur P.S. Anil Yadav and two villagers Sudhir Singh and Nepali Singh were mercilessly shot with an intention to kill out of which SHO Anil Kumar and Sudhir Singh later succumbed to their injuries. This incident has sent shock waves through the entire diara area of Raghopur and the people at large are shocked and aghast at this incident and public order is under threat. He is currently at large and keeping in view the back ground and criminality of the subject and his previous antisocial acts which have disturbed public order, I am satisfied that if he is allowed to remain at large he will indulge in activities prejudicial to the maintenance of public order.
Now, therefore, in exercise of the powers conferred by subsection (2) of section 12 of the Control of Crimes Act 1981, I hereby, direct the said Srikant Rai be detained.
He shall be placed in detention in District Jail.
District Magistrate, Vaishali "OFFICE OF THE DISTRICT MAGISTRATE, Patna High Court Cr. WJC No.271 of 2014 (7) dt.16-05-2014 20 VAISHALI ORDER Memo No.- 13 /Court, Hajipur, Dated-09.01.14 Perused the report submitted by the Superintendent of Police, Vaishali vide Memo No.- 20 dated 08.01.2014. I am satisfied that in pursuance of Section 12(2) of Bihar Control of Crimes Act, 1981, Srikant Rai S/o-Modan Rai @ Modi Rai, resident of village-Shiv Nagar Barari, P.S.- Jurawanpur, District-Vaishali is informed that he has been ordered to be detained by my order vide Memo No. 12 dated 09.01.2014.
Ground of Detention
Jurawanpur P.S. case no. 01/14 dt.
02.01.14, u/s 307, 302, 34 IPC and 27
Arms Act which has been instituted on the statement of ASI Md. Kasim Khan according to which Srikant Rai S/o Modan Rai, Ram aslok Rai s/o Baujan Rai, Kamleshwari rai s/o Mahender Rai all of village Barari and Nawal Rai, s/o Ramji Rai of village Kala diyar, PS Bakhthiyarpur, Dist Patna and 20-25 unknown assailants attacked with intention to kill the SHO Jurawanpur PS Anil Kumar and villagers Sudhir Singh and Nepali Singh and they shot the above mentioned people, out of which the SHO Anil Kumar and Sudhir Singh later succumbed to injuries.Patna High Court Cr. WJC No.271 of 2014 (7) dt.16-05-2014 21
Apart from the aforesaid case, Srikant Rai has the following criminal history which amply indicate his antisocial behavior and habitual offender status.
(i) He is chargesheeted accused in Jurawanpur P.S. case no. 29/07 dt.
09.04.07 u/s 25(1-B)(a) 26/35 arms act.
(ii) In Jurawanpur P.S. case no.
04/02, dt.- 01.02.02 U/s
147/148/149/307/427/447/384
I.P.C. and 27 arms act, U/s 323 IPC
final form has been submitted
against him.
From perusal of the aforesaid cases it is clear that accused Srikant Rai is veteran criminal & habitual offender and his area of crime is the major part of Raghopur block of Vaishali District. The dreaded criminal Srikant Rai has become a terror for the people of the area since last several years and out of fear people do not dare to depose against him.
The recent incident (ground of detention) has further reinforced his terror image and he is currently widely infamous for being a cop killer. His mere presence is being perceived as a threat to public order. He is currently at large and this incident has sent a shock wave through the diara area and people are terrorized. The gravity of Patna High Court Cr. WJC No.271 of 2014 (7) dt.16-05-2014 22 the offence is also very serious as a police officer in discharge of official duty while upholding the law has been shot to death in cold blood and this has further split the fabric of peace and public order in the area. Also a villager Sudhir Singh has been killed over perceived disputes by the said person which indicate that he is capable of taking extreme action over petty disputes also. If unchecked, he can indulge in further crimes which will affect public order.
As reported by the Superintendent of Police, Vaishali the subject is currently at large. He is the main accused in Jurawanpur P.S. Case No. 1/14 u/s 307, 302, 34 IPC & 27 Arms Act in which the SHO of Jurawanpur P.S. Anil yadav and villager Sudhir Singh and Nepali Singh were mercilessly shot and out of this, two persons namely SHO Anil Kumar and Sudhir Singh later succumbed to their injuries. This incident has sent shock waves through the entire diara area of Raghopur and the people at large are shocked and aghast at this incident and public order is under threat. He is currently at large. I am satisfied that if he is allowed to remain at large he will indulge in activities, prejudicial to the maintenance of the public order.
Patna High Court Cr. WJC No.271 of 2014 (7) dt.16-05-2014 23For prevention of such activities I consider it necessary to detain him under Section 12(2) of the Bihar Control of Crimes Act 1981.
Srikant Rai is hereby informed that he may make a representation in writing against the said order under which he has been detained. His representation if any may be addressed to the Dy. Secretary, Home (Police) Department, Govt. of Bihar, Patna and forwarded through the Superintendent of Jail as soon as possible.
District Magistrate, Vaishali"
41. From the grounds of detention, it is clear that according to the detaining authority, the petitioner is the main accused in Jurawanpur Police Station Case No. 01 of 2014 under Sections 307/302/34 of the Indian Penal Code and Section 27 of the Arms Act, 1959, wherein Anil Yadav, SHO, Jurawanpur Police Station, and 2 (two) villagers, namely, Sudhir Singh and Nepali Singh, were mercilessly shot with intention to kill and, on being so fired at, SHO, Anil Yadav, and one of the villagers, namely, Sudhir Singh, succumbed to the bullet injuries; whereas Nepali Singh has survived. This incident, according to the respondent No. 5, namely, District Magistrate, Vaishali, at Patna High Court Cr. WJC No.271 of 2014 (7) dt.16-05-2014 24 Hajipur, has, sent shockwaves to the entire diara area of Raghopur and the incident has put the public order under threat and hence, if the petitioner is allowed to roam freely, he would indulge in activities prejudicial to the maintenance of public order.
42. Coupled with the above, the ground of detention shows that apart from Jurawanpur Police Station Case No. 01 of 2014, wherein unknown assailants had shot, SHO, Anil Yadav, Sudhir Singh and Nepali Singh and, in consequence whereof, SHO, Anil Yadav, and Sudhir Singh had died, there were two cases, which showed, according to the detaining authority, criminal history of the petitioner, amply indicating that the petitioner is an anti-social element and habitual offender inasmuch as the petitioner stands chargesheeted in (i) Jurawanpur Police Station Case No. 29 of 2007, dated 09.04.2007, under Section 25 (1-B)
(a)/26/35 of the Arms Act, 1959 and (ii) Jurawanpur Police Station Case No. 04 of 2002, dated 01.02.2002, under Sections 147/148/149/307/427/447/384 of the Indian Penal Code and Section 27 of the Arms Act, 1959.
43. The detaining authority, having depicted the grounds of the cases aforementioned, has observed that it is clear from the above mentioned cases that the petitioner is a veteran criminal and a habitual offender and his area of Patna High Court Cr. WJC No.271 of 2014 (7) dt.16-05-2014 25 crime is the major part of Raghopur block of Vaishali district, the petitioner has become a terror for the people of the area for last several years and, out of fear, people do not dare to depose against him and the recent incident has re-enforced such image and he is currently widely infamous as a cop-killer. This incident of shooting the SHO has sent shockwaves throughout the diara area and people are terrorized. The Detaining Authority was, therefore, satisfied that if the petitioner was allowed to remain at large, he will indulge in activities prejudicial to the maintenance of public order.
44. Situated thus, it becomes crystal clear that for the purpose of formation of opinion that the petitioner is required to be detained, the detaining authority has acted on non-existent fact inasmuch as no final form under Section 323 of the Indian Penal Code has been submitted against the petitioner in Jurawanpur Police Station Case No. 04 of 2002; rather, the final form is under Section 504 of the Indian Penal Code, which falls outside the purview of Chapter XVI and XVII of the Indian Penal Code.
45. Similarly, the mere fact that charge-sheet has been submitted, in Jurawanpur Police Station Case No. 29 of 2007, against the petitioner, would not bring the petitioner within the definition of anti-social element Patna High Court Cr. WJC No.271 of 2014 (7) dt.16-05-2014 26 inasmuch as a person, in order to fall within the definition of anti-social element, must be shown to have been convicted under Sections 25, 26, 27, 28 or 29 of the Arms Act, 1959; whereas in Jurawanpur Police Station Case No. 29 of 2007, he has merely been charge-sheeted under Section 25(1-B)a/26/35 of the Arms Act, 1959.
46. Thus, what emerges from the above discussion is that both the cases aforementioned, namely, Jurawanpur Police Station Case No. 29 of 2007 and Jurawanpur Police Station Case No. 04 of 2002 ought not to have been considered, while arriving at the satisfaction as to whether the petitioner is or was an anti-social element or not.
47. What logically follows from the above discussion is that when Jurawanpur Police Station Case No. 29 of 2007 and Jurawanpur Police Station Case No. 04 of 2002 have formed the grounds of satisfaction, though these grounds ought to be treated as non-existent, the foundation of making the impugned order of detention gets vigorously shaken; more so, when it has been noticed that Jurawanpur Police Station Case No. 29 of 2007 is seven years old and the other case is 12 years old.
48. Coupled with the above, merely because of the fact that Jurawanpur Police Station Case No. 01 of 2014 Patna High Court Cr. WJC No.271 of 2014 (7) dt.16-05-2014 27 implicates the petitioner, a solitary case could not have become the basis of the petitioner's detention inasmuch as a person, in order to be detained, has to be an anti-social element and in order to be an anti-social element, he must habitually commit or attempt to commit or abet the commission of any of the offences mentioned in sub-Clause
(i) of Clause (d) of Section 2 of Bihar Control of Crimes Act, 1981, which relates to offences under Chapter XVI and XVII of the Indian Penal Code, which includes Section 307 and Section 302 of the Indian Penal Code. A singular case registered, under Sections 307 and 302 of the Indian Penal Code read with Section 27 of the Arms Act, 1959, against a person cannot make him fall within the meaning of anti- social element in the light of definition of anti-social element as given in Section 2(d)(i) of Bihar Control of Crimes Act, 1981, and without being an anti-social element, he cannot be detained by taking recourse to Section 12 of Bihar Control of Crimes Act, 1981.
49. Because of the reasons, which we have pointed out above, it is clear that the impugned order of detention does not withstand the test of law and the same must, therefore, be set aside.
50. In the result and for the foregoing reasons, the impugned order, dated 09.01.2014, is hereby set aside Patna High Court Cr. WJC No.271 of 2014 (7) dt.16-05-2014 28 and quashed.
51. Let the petitioner be set at liberty, forthwith, unless he is required to be detained in connection with any case.
(I. A. Ansari, J.)
S.P. Singh, J.: I agree.
Pawan/ NAFR (Samarendra Pratap Singh, J.)