Patna High Court - Orders
Amresh Thakur vs The State Of Bihar Through The Chief ... on 26 August, 2014
Author: Anjana Mishra
Bench: Anjana Mishra
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Writ Jurisdiction Case No.620 of 2014
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1. Amresh Thakur Son of Subansh Thakur Resident of Village - Nonnfara,
P.S.- Piar, District -Muzaffarpur
.... .... Petitioner/s
Versus
1. The State of Bihar Through The Chief Secretary, Govt. of Bihar, Patna
2. the District Magistrate, Muzaffarpur
.... .... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Rudal 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)
4 26-08-2014By his letter, dated 03.04.2014, Senior Superintendent of Police, Muzaffarpur, addressed to respondent No. 2, namely, District Magistrate, Muzaffarpur, 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. 2, namely, District Magistrate, Muzaffarpur, made, on 09.04.2014, 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 08.04.2015.
2. With the order of detention so made as mentioned above, the petitioner was also served with a Patna High Court Cr. WJC No.620 of 2014 (4) dt.26-08-2014 2/16 copy of the grounds of detention, contained in Memo No. 973, dated 09.04.2014, issued by respondent No. 2, namely, District Magistrate, Muzaffarpur. The said order of detention was approved by the Advisory Board on 14.05.2014 and, following approval of the Advisory Board, the State Government, by order, dated 26.05.2014, confirmed the said order of preventive detention, dated 09.04.2014.
3. The grounds of detention, which were furnished to the petitioner, mention two cases, namely, (i) Gaighat Police Station Case No. 78 of 2013, dated 03.04.2013, registered under Section 395/397/412 of the Indian Penal Code; and (ii) Bochahan Police Station Case No. 70 of 2013, dated 09.03.2013, registered under Section 395 of the Indian Penal Code.
4. Aggrieved by his detention, the petitioner has made this application, under Article 226 of the Constitution of India, seeking to get set aside and quashed not only the order of preventive detention, dated 09.04.2014, but also the order of approval, dated 14.05.2014, passed by the Advisory Board, Government of Bihar, and the order, dated 26.05.2014, passed by the State Government in exercise of power under Section 21 (1) read with Section 22 of Bihar Control of Crimes Act, Patna High Court Cr. WJC No.620 of 2014 (4) dt.26-08-2014 3/16 1981, confirming the order of detention, dated 09.04.2014, aforementioned and directing that the petitioner shall remain in detention till 08.04.2015.
5. We have heard Mr. Rudal 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 two cases, namely,
(i) Gaighat Police Station Case No. 78 of 2013; and (ii) Bochahan Police Station Case No. 70 of 2013.
7. In both the cases aforementioned, charge sheets have been submitted against the petitioner. The petitioner is on bail in connection with the case mentioned at serial no. 1, whereas he was in custody in connection with Bochahan Police Station Case No. 70 of 2013. In the impugned order, it is neither mentioned that the petitioner was trying for bail, nor there any material available with respondent No. 2, namely, District Magistrate, Muzaffarpur, which could go to show, even remotely, that the petitioner was likely to be released on bail.
Patna High Court Cr. WJC No.620 of 2014 (4) dt.26-08-20144/16
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 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 09.04.2014, is a legally valid order of detention and if this order, dated 09.04.2014, 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 26.05.2014, was wholly illegal and the order, dated 26.05.2014, 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 Patna High Court Cr. WJC No.620 of 2014 (4) dt.26-08-2014 5/16 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. In the case at hand, there is no material on record indicating, even remotely, that the petitioner has applied for bail or is preparing to get his release on bail or is likely to be released on bail.
12. Succinctly put the Supreme Court, in Rekha v. State of Tamilnadu through Secretary to Government and Another, reported in (2011) 5 SCC 244 : (2011) 3 BBCJ 289, that in T.V. Sravanan @ S. A. R. Prasana Venkatachaariar Chaturvedi v. State through Secretary and Another, reported in (2006) 2 SCC 664; A. Shanthi (Smt.) v. Govt. of T.N. and Others, reported in (2006) 9 SCC 711; Rajesh Gulati v. Government of NCT of Delhi, reported in (2002) 7 SCC 129, it has been held that if no bail application was pending and the detenu was already, in fact, in jail in connection with a criminal case, the detention order, under the preventive detention law, would be illegal and that the decisions aforementioned appear to have followed the Constitution Bench decision in Haradhan Saha v. State of West Bengal, reported in (1975) 3 SCC 198, wherein it Patna High Court Cr. WJC No.620 of 2014 (4) dt.26-08-2014 6/16 was observed as under:
"Where the concerned person is actually in jail custody at the time when an order of detention is passed against him and is not likely to be released for a fair length of time, it may be possible to contend that there could be no satisfaction on the part of the detaining authority as to the likelihood of such a person indulging in activities which would jeopardize the security of the State or public order."
(Emphasis is supplied)
13. Taking note of its decision in A. Geetha v. State of T.N., reported in (2006) 7 SCC 603 and Ibrahim Nazeer v. State of T.N., [(2006) 6 SCC 64], the Supreme Court held that the decisions in A. Geetha (supra) and Ibrahim Nazeer (supra) have laid down that even if no bail application of the petitioner is pending, but if in similar cases, bail has been granted, then, this is a good ground for the subjective satisfaction of the detaining authority to pass the detention order. Having so held in Rekha (supra), the Supreme Court observed and conclude as under:
"12. In our opinion, if details are given by Patna High Court Cr. WJC No.620 of 2014 (4) dt.26-08-2014 7/16 the Respondent authority about the alleged bail orders in similar cases mentioning the date of the orders, the bail application number, whether the bail order was passed in respect of co-accused in the same case, and whether the case of the co-accused was on the same footing as the case of the Petitioner, then, of course, it could be argued that there is likelihood of the accused being released on bail, because it is the normal practice of most courts that if a co-accused has been granted bail and his case is on the same footing as that of the Petitioner, then the Petitioner is ordinarily granted bail. However, the Respondent authority should have given details about the alleged bail order in similar cases, which has not been done in the present case. A mere ipse dixit statement in the grounds of detention cannot sustain the detention order and has to be ignored.
13. In our opinion, the detention order in question only contains ipse dixit regarding Patna High Court Cr. WJC No.620 of 2014 (4) dt.26-08-2014 8/16 the alleged imminent possibility of the accused coming out on bail and there was no reliable material to this effect. Hence, the detention order in question cannot be sustained."
(Emphasis is added)
14. 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.
15. 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.
16. 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 year 2013. These cases could not have been, admittedly, Patna High Court Cr. WJC No.620 of 2014 (4) dt.26-08-2014 9/16 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.
17. Coupled with the above, though both the cases are of the year 2013, the fact remains that the last of these cases was lodged as far back as on 03.04.2013; whereas the order of detention has been made by respondent No. 2, namely, District Magistrate, Muzaffarpur, on 09.04.2014, i.e., after lapse of one year.
18. Since no offence is alleged to have been committed by the petitioner between 03.04.2013 (i.e., the date on which the last case against the petitioner was lodged) and 09.04.2014 (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 presently if the petitioner was released on bail. In the absence of any reasons having been assigned, 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.
Patna High Court Cr. WJC No.620 of 2014 (4) dt.26-08-201410/16
19. The law, on the above aspect, is very clear 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 Patna High Court Cr. WJC No.620 of 2014 (4) dt.26-08-2014 11/16 order was necessary.
20. In Huidrom Konungjao Singh (supra), the Supreme Court has further pointed out that in case, either of the facts, indicated above, does not exist, the detention order would stand vitiated. The relevant observations, made in Huidrom Konungjao Singh (supra), read as under:
9. In view of the above, it can be held that there is no prohibition in law to pass the detention order in respect of a person who is already in custody in respect of criminal case. However, if the detention order is challenged the detaining authority has to satisfy the Court the following facts:
(1) The authority was fully aware of the fact that the detenu was actually in custody.
(2) There was reliable material before the said authority on the basis of which it could have reasons to believe that there was real possibility of his release on bail and further on being released he would probably indulge in activities which are prejudicial to public order.
(3) In view of the above, the authority felt it necessary to prevent him from indulging in such activities and therefore, detention order was Patna High Court Cr. WJC No.620 of 2014 (4) dt.26-08-2014 12/16 necessary.
In case either of these facts does not exist the detention order would stand vitiated. The present case requires to be examined in the light of the aforesaid settled legal proposition.
(Emphasis is supplied)
21. It is trite that when a person is already in custody on allegation of having committed an offence, he cannot be taken into preventive detention unless there is genuine apprehension that he is likely to be released on bail. In order to, however, reach such a conclusion or draw such an inference, there must be material available, before the detaining authority, indicating that the detenu is likely to be released.
22. In the case at hand, as we have already noted above, there is not even a particle of material on record showing that the petitioner has had been trying to come out of jail on bail.
23. 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 Patna High Court Cr. WJC No.620 of 2014 (4) dt.26-08-2014 13/16 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 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 Patna High Court Cr. WJC No.620 of 2014 (4) dt.26-08-2014 14/16 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 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 Patna High Court Cr. WJC No.620 of 2014 (4) dt.26-08-2014 15/16 single one of which is sufficient to vitiate a ground of detention."
(Emphasis is supplied)
24. Since no offence is alleged to have been committed by the petitioner between 03.04.2013 (i.e., the date on which the last case against the petitioner was lodged) and 09.04.2014 (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 presently if the petitioner was released on bail. In the absence of any reasons having been assigned, in this regard, by the State, one cannot help, but hold, and we do hold and reiterate, 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.
25. 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.
26. In the result and for the reasons discussed Patna High Court Cr. WJC No.620 of 2014 (4) dt.26-08-2014 16/16 above, this writ petition succeeds. The impugned order of detention, dated 09.04.2014, the impugned order of approval, dated 14.05.2014, and the impugned order of conformation, dated 26.05.2014, are hereby set aside and quashed.
27. With the above observations and directions, this writ petition shall stand allowed.
28. No order as to costs.
(I. A. Ansari, J.)
Anjana Mishra, J.:I agree
(Anjana Mishra, J.)
Prabhakar Anand/NAFR
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