Patna High Court - Orders
Md. Irshad Ujjama vs The State Of Bihar & Ors on 20 July, 2012
Author: Shyam Kishore Sharma
Bench: Shyam Kishore Sharma, Amaresh Kumar Lal
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Writ No.545 of 2012
======================================================
Md. Irshad Ujjama Son of Md. Shamshad Ujjama, Resident of village-
Lakhminiya, P.S.- Ballia, District- Begusarai.............. .... Petitioner
Versus
1. The State Of Bihar
2. The Under Secretary, Home (Police) Department, Govt. of Bihar
3. The District Magistrate, Begusarai
4. The Superintendent of Police, Begusarai
.... .... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. Bhanu Pratap Singh, Advocate
For the Respondent/s : Mr. Vikas Kumar, A.C. to A. G.
======================================================
CORAM: HONOURABLE MR. JUSTICE SHYAM KISHORE SHARMA
AND
HONOURABLE MR. JUSTICE AMARESH KUMAR LAL
ORAL ORDER
(Per: HONOURABLE MR. JUSTICE SHYAM KISHORE SHARMA)
4 20-07-2012The writ petitioner Md. Irshad Ujjama has prayed for setting aside the order No. 2283 dated 29.10.2011 and order no. 2284 dated 29.10.2011 passed by the District Magistrate, Begusarai by which the petitioner has been detained under Section 12 of the Bihar Control of Crimes Act and also for setting aside the order no. 7CCA 120/2011 H (P) 8079 dated 8.11.2011 passed by the respondent no. 2 passed by the Under Secretary Home (Police) Department, Govt. of Bihar under section 12 (3) of the Bihar Control of Crimes Act by which the orders dated 29.10.2011 passed by the District Magistrate, Begusarai have been approved and the order No. 7/CCA 120/2011 H (P) - 8655 dated 29.11.2011 passed by the respondent no. 2 Under Secretary Home (Police) Department, Govt. of Bihar under section 21 (1) read with Patna High Court CR. WJC No.545 of 2012 (4) dt.20-07-2012 2 Section 22 of the Biahr Control of Crimes Act 1981 by which the orders dated 29.10.2011 passed by the District Magsitrate, Begusarai have been confirmed detaining the petitioner till 18.10.2012.
2. The background leading to this writ application is that the respondent no. 4 the Superintendent of Police, Begusarai vide his letter no. 6149 dated 8.10.2011 addressed to the District Magistrate, Begusarai prayed for taking action against the petitioner for his detention under section 12 (2) of the Bihar Control Crimes Act, 1981 (hereinafter referred to as the Act) for maintaining the public order, as the petitioner was actively participating in criminal activities causing terror to the public. The petitioner was lodged in judicial custody in Begusarai District Jail and was trying to obtain bail in criminal cases. The letter mentioned that the petitioner was accused in six criminal cases. On the basis of recommendation of the Superintendent of Police, Begusarai on 22.10.2011, the District Magistrate, Begusarai asked the petitioner to file show cause on 27.11.2011, as to why he should not be detained under Section 12 (2) of the Act. The petitioner filed show cause before the District Magistrate denying that he was terror and also stated that he had been framed on account of enmity. The District Magistrate directed the detention Patna High Court CR. WJC No.545 of 2012 (4) dt.20-07-2012 3 of the petitioner after his opinion about petitioner as antisocial element and habitual offender and it was noted that the detention of the petitioner was must in public interest. Copy of the order was supplied to the petitioner. Later on by the order dated 8.11.2011 bearing no. 7CCA-120/2011 H (P) -8079 the respondent no. 2 under section 12 (3) of the Act approved the detention order dated 29.10.2011 passed by the District Magistrate, Begusarai and the petitioner was directed to be detained till 28.10.2012.
3. Learned counsel for the petitioner submits that the criminal cases against him have been lodged at the behest of Md. Ijhar, who is an influential and muscle man of the locality, as he has caused murder for which Ballia P.S. Case No. 65 of 2001 was instituted against him and there was possibility of breaking out communal riot. In the year 2011 mother of the petitioner, namely, Fashma Khatoon contested the election of Mukhiya in which wife of Md. Ijhar was also a contestant, as Md. Ijhar could not perceive a person contesting against his wife, so he had grudge. The petitioner was on bail except in Ballia P.S. Case No. 134 of 2011 under section 384 and 120 B of the Indian Penal Code, Sahebpur Kamal P.S. Case No. 59 of 2011 under Section 394 of the Indian Penal Code and Ballia P.S. Case No. 62 of 2011 under Sections 302/34 Indian Penal Code. Further submission is Patna High Court CR. WJC No.545 of 2012 (4) dt.20-07-2012 4 that though chargesheet has been submitted against the petitioner in criminal cases but the case diary clearly exhibited that there was no evidence showing complicity of the petitioner. Regarding Ballia P.S. Case No. 58 of 2011 the petitioner has stated that he is neither the person who took the vehicle of the informant nor it has been recovered from his possession. In connection with Ballia P.S. Case No. 62 of 2011 it has been submitted that it was registered against unknown. Similarly Sahebpur Kamal P.S. Case No. 59 of 2011 was registered against unknown. In Ballia P.S. Case No. 81 of 2011 the Police Officer Assistant Sub-Inspector Md. Irshad Alam was the informant and the case was lodged for the recovery of Pulsar motorcycle which was said to be recovered from the petitioner. In Ballia P.S. Case No. 134 of 2011, the informant has filed a petition before the learned Chief Judicial Magistrate, Begusarai that the petitioner has not demanded extortion and that case was compromised. In connection with Ballia P.S. Case No. 78 of 2011, it has been submitted that no firearm was recovered from his possession. The petitioner, in fact was the victim in connection with Purnia P.S. Case No. 426 of 2009 and Patna (Digha) P.S. Case No. 44 of 2010. It has further been submitted that pendency of criminal cases should not be a ground for passing order under section 12 (2) of the Act. The detaining authority has Patna High Court CR. WJC No.545 of 2012 (4) dt.20-07-2012 5 not applied his mind and the order has been passed in mechanical manner.
4. Separate counter affidavits have been filed on behalf of the respondents. One counter affidavit has been filed on behalf of the respondent nos. 1 and 2 and another counter affidavit has been filed on behalf of respondent no. 4. Respondent no. 3 has also filed his counter affidavit.
5. Respondent nos. 1 and 2, namely the State of Bihar and the Under Secretary Home (Police) Department in their counter affidavit have mentioned that the detention order along with ground of detention was served upon the petitioner through the Superintendent of District Jail, Begusarai on 29.10.2011. The petitioner being the antisocial element and habitual offender was consistent in his criminal record and if he would have been released on bail then there was all possibility that he might have indulged himself in disturbance of public order. The detention order was approved by the State Government under section 22 (3) of the Act within the statutory period of 12 days from the date of detention and after approval, the matter was referred to the Advisory Board under section 19 of the Act. The petitioner has filed a representation against the detention order on 2.12.2011 which was received on 5.12.2011. The District Magistrate was Patna High Court CR. WJC No.545 of 2012 (4) dt.20-07-2012 6 asked to furnish his comment on the representation and the file was received on 22.12.2011 though the letter was issued on 20.12.2011. In the meanwhile the Advisory Board on 15.11.2011 heard the petitioner where he was given full opportunity to place his defence. Opinion of the Advisory Board was received in the Department on 16.11.2011 and the Board opined that there is sufficient ground for detention. The opinion of the Advisory Board and comment of the District Magistrate were properly examined and thereafter it was approved by the Chief (Home) Minister on 2.1.2012 and the representation of the petitioner was rejected on 2.1.2012 and the petitioner was communicated on 4.1.2012.
6. The superintendent of Police, Begusarai in his counter affidavit has stated that the petitioner was renowned criminal and he was detained in three cases under sections 384, 394 and 302/34 of the Indian Penal Code. The cases against the petitioner were found to be true by the Police and chargesheets were submitted. Six cases were lodged against the petitioner in the Begusarai district and these were found to be true after investigation but cases were reported against the petitioner from other district also. The cases against the petitioner are Ballia P.S. Case No. 58 of 2011 under sections 406, 420, 120B/34 of the Patna High Court CR. WJC No.545 of 2012 (4) dt.20-07-2012 7 Indian Penal Code, Ballia P.S. Case No. 62 of 2011 under sections 302/34 of the Indian Penal Code and 27 of the Arms Act, Sahebpur Kamal P.S. Case No. 59 of 2011 under sections 395 and 412 of the Indian Penal Code, Ballia P.S. Case No. 80 of 2011 under sections 414, 420 of the Indian Penal Code, Ballia P.S. Case No. 134 of 2011 under sections 384 and 120 B of the Indian Penal Code, Ballia P.S. Case No. 78 of 2011 under sections 25 (1-B)A, 26, 35 of the Arms Act, Ballia P.S. Diary Entry No. 249 of 2011, Purnia Sadar P.S. Case No. 426 of 2009 under sections 302 IPC and section 27 of the Arms Act, Patna Digha P.S. Case No. 44 of 2010 under sections 302, 120B/34 of the Indian Penal Code
7. The District Magistrate, Begusarai in his counter affidavit mentions that the no illegality or impropriety was committed in passing the order and only on after being satisfied took steps so that the petitioner is detained, otherwise without detention there was no possibility that his criminal activities could have been curtailed.
8. The plain reading of the facts available on the record is that the petitioner was served the copy of detention order on 20.11.2011 but he did not represent and kept mum.
9. Bihar Control of Crimes Act prescribes mode of preventive detention. The preventive detention has certain Patna High Court CR. WJC No.545 of 2012 (4) dt.20-07-2012 8 features. It is detention by the Executive without trial or enquiry by court and it is preventive as distinct from punitive. The object is not to punish a man for having done something but to intercept him before he does it and to prevent him from doing it. The power of preventive detention has to be exercised in emergency. Undoubtedly preventive detention causes some suffering and inconvenience but such suffering is required and essential for securing the public safety. The society at large is entitled to have its right to live in peace. Similarly a person is also entitled to see that he lives in a society where rule of law prevails. Preventive detention is an exception to the rule where there is mode of trial and investigation etc. Preventive detention has been given constitutional status by incorporating Article 22 in Chapter III. Article 21 provides that no person shall be deprived of his life or personal liberty except according to procedure established by law. In the case reported in AIR 1950 SC Page 27 (A. K. Gopalan Vs. State of Madras) the Court observed as follows:- "The outstanding fact to be borne in mind in this connection is that preventive detention has been given a constitutional status. This sinister looking feature, so strangely out of place in a democratic constitution, which invests personal liberty with the sacrosanctity of a Fundamental Right, and so incompatible with the promises of Patna High Court CR. WJC No.545 of 2012 (4) dt.20-07-2012 9 its Preamble, is doubtless designed to prevent an abuse of freedom by anti-social and subversive elements which might imperil the national welfare of the infant Republic".
10. The Bihar Control of Crimes Act has come into existence in the year 1981. Provision of Section 12 of the Act reproduced below:-
"12. Power to make order detaining certain person.- (1) „The State Government may, if satisfied with respect to any person that with a view 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 elements 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 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-sectin 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.Patna High Court CR. WJC No.545 of 2012 (4) dt.20-07-2012 10
(3) When any order is made by District Magistrate, he shall forthwith report, the fact to the State Government together with the grounds on which the order has been made and such other particulars As prayed for by the learned counsel for the petitioner, put up this case after one week. in his opinion, have a bearing on the matter, and no such order shall remain in force for more than 12 days after the making thereof unless, in the meantime, it has been approved the State Government:
Provided that where under section 17 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."
11. It appears from the facts on the record that the District Magistrate has passed the order of detention after evaluation of the materials placed before him and thereafter, he has reached to the conclusion that it was expedient in the interest of public order that the petitioner should be detained. The satisfaction of the detaining authority is subjective satisfaction. Subjective satisfaction of the detaining authority was considered in the judgment reported in AIR 1974 SC 20 (Imam Shaik Vs. State of West Bengal) in which it was observed that " Moreover it was entirely for the detaining authority to make a prognosis of Patna High Court CR. WJC No.545 of 2012 (4) dt.20-07-2012 11 the petitioner‟s future behaviour on the basis of his past activities. This Court cannot test the subjective satisfaction of the authority as to the propensity of petitioner to act in a manner prejudicial to supplies and services essential to the community, by objective standard‟.
12. In the case of Khagen Sarkar Vs. State of West Bengal reported in 1971 Criminal Law Journal 1456, the Supreme Court observed that "the satisfaction on the basis of which section 3 enables the State Government or the District Magistrate, as the case may be to pass an order of detention is the satisfaction of the Government or the District Magistrate and not the satisfaction of this Court. The Act being one for preventive detention, this Court would not sit in appeal against the impugned order, and therefore, would not go into the question of sufficiency or otherwise of the materials for arriving at the satisfaction by the relevant authority under section 3."
13. The order of detention can be quashed, if this Court comes to an opinion that the detaining authority has not applied its mind and has acted beyond the record. In the present case, the detaining authority has considered every aspects of the matter and has come to the definite finding. The subjective satisfaction of the District Magistrate is based upon the reasonings Patna High Court CR. WJC No.545 of 2012 (4) dt.20-07-2012 12 given by him. The Court cannot apply its own satisfaction and replace the satisfaction of the detaining authority. The ground of detention and procedure adopted are fully described which cannot be said to be illegal or perverse.
14. In the result, it can be said that there is no illegality or impropriety in the detention order. This writ application is held to be without merit. Accordingly, it is dismissed.
(Shyam Kishore Sharma, J.)
avin/- (Amaresh Kumar Lal, J.)