Jharkhand High Court
Dulal Nishad vs State Of Jharkhand And Ors. on 5 March, 2002
Equivalent citations: 2002CRILJ2845, 2002 CRI. L. J. 2845, 2002 AIR - JHAR. H. C. R. 630, (2002) 2 JCR 12 (JHA), (2005) 1 JLJR 456
Author: Vikramaditya Prasad
Bench: Vikramaditya Prasad
ORDER Vikramaditya Prasad, J.
1. In this writ application filed under Article 226 and 227 of the Constitution, the petitioner has prayed for quashing the order of detention passed under Section 12(2) of the Bihar Control of Crimes Act, 1981 (hereinafter referred to as the Act) against the petitioner, vide Annexure-1 and also the confirmation order of his detention passed by the State Government, vide Annexure-4.
2. .The petitioner was in custody in connection with Manjhari P.S. Case No. 2/ 2001 under Section 386/387/34, IPC when the impugned order passed by the respondent No. 3-District Magistrate. West Singhbhum, was served on him on 7.5.2001 and the Government confirmed the order of his detention, vide Annexure-2, on 24.3.2001. The petitioner thereafter filed his representation, vide Annexure-3 and that representation was placed before the Advisory Board. On 20.6.2001, vide Annexure-4 the order dated 14.3.2001, Annexure-1, was confirmed by the State Government of Jharkhand and the petitioner was ordered to be detained till 6.5.2002.
3. The case of the petitioner is that the impugned order is malqfide because the detaining authority has merely mentioned in the impugned order that the order has been passed only with a view to preventing the petitioner from acting in a manner prejudicial to the maintenance of public order and the petitioner has been said to be an anti-social element in that order. According to the petitioner, that order has been mechanically passed with the intent to deprive the petitioner of his liberty. The contention of the petitioner is that when the detaining authority was passing the order, it was not even aware that the petitioner was, at that time, already in jail custody and the detaining authority passed the order of his "immediate arrest" which indicates that there was non-application of mind. The petitioner's further case is that in Muffasil P.S. Case No. 11/99 under Section 302/34, IPC and 27 of the Arms Act, he was acquitted of the charge, but the case under the Arms Act is still pending against him in which he has been granted bail. With regard to Manjhari P.S. Case No. 6/2001 under Section 386/387/34. IPC, his case is that he is in jail as the case and his bail application is pending. His further contention is that as he was acquitted in the case aforesaid (Muffasil P.S. Case No. 11/99), this could not have been the ground for detention and for this ground of detention, the entire detention order is vitiated. The contention of the petitioner is that the petitioner is not a habitual offender and therefore, he does not come within the mischief of Section 2(d) of the Act. With regard to the earlier cases in the context of his criminal history i.e. P.S. Case No. 17/1998 under Section 379/307 etc. IPC. Sadar P.S. Case No. 114/1993 under Section 394/411, IPC, the case of the petitioner is that the first case it is pending and the petitioner is on bail and in second case, it is also pending and the petitioner is on bail.
4. The further ground made out for the success of this writ petition by the petitioner is that the detention of the petitioner is illegal under Section 17 of the Act as the detention order was not served within five days or even within 10 days upon the petitioner. Another point that has been raised is that the crimes that have been alleged against him are covered by the law and order and not affected the public order. With regard to the Case No. 16/2001, it has further been alleged that the police had found the case to be false.
5. The District Magistrate, West Singhbhum, has appeared and filed his counter-affidavit. It has been averred by him that the petitioner along with his brother habitually committed offences under Chapter-X and XII, IPC and he derived his satisfaction for his immediate arrest and detention which has been confirmed by the State Government and the order passed by him is in accordance with law and the order of detention can be passed as per the settled law even against a person who is in custody and the detaining authority is of the opinion that it will be in the public interest to detain such a person to maintain public order. He has received information from the S.P.. West Singhbhum, that the petitioner along with the brother created an atmosphere of terror in the district of West Singhbhum and were collecting Rangdari from the Government employees and on receiving such information from the S.P. (Annexure-A), he was satisfied and has passed the order of detention, which was also confirmed by the Advisory Board and which was communicated to the petitioner, vide Annexure-4. It was further stated that in Muffasil P.S. Case No, 11/1999 (S.T. No. 175/1999), the petitioner was acquitted by the 1st. Addl. Sessions Judge, Chaibasa, on 24.1.2001 for lack of evidence as the witnesses turned hostile out of fear of the petitioner and this aspect was considered by the respondent No. 3 while passing the impugned order. It is further stated that so far Manjhari P.S. Case No. 3/1999 and Manjhari P.S. Case No. 6/2001 were concerned, they were quite serious and went to prove that the petitioner was frequently indulging in such activities which were likely to disturb public order. It is further contended that the petitioner has rightly been termed within the definition of the anti-social elements as he has habitually committed offences under Chapters of the Indian Penal Code and as prescribed under Section 2(d) of the Act and if he is enlarged, then he will cause disturbance to the public order. It has been further submitted in reply to the averments made in paragraph 26 of the writ application, that the petitioner was communicated the grounds of detention within the time prescribed and the same has been approved by the State Government as required under Section 12(3) of the Act. Lastly prayer has been made that the writ application be dismissed.
5. The question to be determined in the writ application are (i) whether the petitioner fell within the definition of the anti-social element as defined under Section 2(d) of the Act; (ii) whether there has been non-compliance of the Section 12(2) of the Act in serving the copy of the detention order on the petitioner and consequently there has been no proper communication of the detention order; (iii) whether because of the fact that in the impugned order. Annexure-1, as the respondent No. 3 directed for immediate arrest of the petitioner when he was in jail amounts to non-application of mind by the detaining authority and can this be a ground for allowing this writ application and (iv) whether there was some proximity between the impugned order and the crimes alleged against the petitioner and so the detention order was in the interest of the public order.
6. Re. Whether the petitioner fell within the definition of the antisocial element as defined under Section 2(d) of the Act.
The word, 'habitual offender' has not been defined in Section 2(d) of the Act, rather the words, 'habitually commits' or 'attempts to commit' or 'abets' have been used. The word, 'habitually' has not been defined in this Act, so some light can be taken from Section 110, Cr PC. Section 110(d) Cr PC includes in itself the offences committed under Chapter XII, IPC by the person concerned. The word 'habitually' means any sign of depravation as evidenced by the frequent repetition and commission of offences. They mean repetition or tendency in doing act and not an inclination by nature. Commission of similar acts in the past and the readiness to commit them again is a sign of habit. Habit implies tendency resulting very frequent repetition of the same and similar facts. The habit is to be proved by an aggregate of acts. One or two cases may not be sufficient to declare anyone habitual offender, but a number of similar incidence becomes evidence of habit and character. The total number of cases that have been furnished against this petitioner are three pending and two earlier cases and that have become the ground for detaining authority to derive its satisfaction for passing the detention order. The first case which is pending is Muffasil P.S. Case No. 11/1999. It was a case of killing/murdering a Junior Engineer and the petitioner's name appeared as accused in the case, which was under Section 302/120B, IPC as also 27 of the Arms Act and the charge-sheet has been submitted. The second case being Manjhari P.S. Case No. 3/1999 is again under Section 25/26 and 35 of the Arms Act when the petitioner was arrested with loaded pistol and charge-sheet has been filed against him. The third case being Manjhari P.S. Case No. 6/2001 is under Section 386/387. IPC in which the petitioner is alleged to have tried to extort money from some businessmen, particularly one Kandu Ram with the help of his brother Ram Lal Ishak. It is found that all these crimes almost committed within a period of two years were against the properties and person of the men. The first two of the offences aforesaid were committed in the year 1999 and the last one in the year 2001. Now coming to the previous history it is found that in Manjhari P.S. Case No. 17/1998, the petitioner was named as accused in the case under Section 307/379. IPC when the associates of the petitioner had threatened Block Supply Officer to kill him if he lodged a case against him and in that case, the charge-sheet was submitted. Another case was of the year 1993 i.e. Sadar P.S. case No. 114/1993 under Section 394. IPC in which the petitioner was charge-sheeted. Though in Muffasil P.S. Case No. 11/1999, the petitioner has been acquitted, but in that case the witnesses turned hostile and as per the counter-affidavit of the detaining authority, the witnesses were threatened to become hostile before the Court by the petitioner. The question is whether the aforesaid cases show that the petitioner is in the habit or he habitually commits the offencesS though the crime-graph is only 4 or 3 crimes but definitely it appears that the petitioner has committed almost same type of offences. He killed the Junior Engineer, he threatened the Block Supply Officer and he tried to extort money. So in the face of acquittal in one case and his remaining on bail on another case does not mean that the petitioner's offence is periodic in nature, rather the tendencies show that he has formed a habit of committing such offences. Thus, the contention of the petitioner that he does not fall within the definition of anti-social element, in my opinion, cannot be sustained and this ground taken by the petitioner fails. It is found that the petitioner is a habitual offender, falls within the definition of Section 2fd) of the Act.
Re. Whether there has been non-compliance of the Section 12(2) of the Act in serving the copy of the detention order on the petitioner and consequently there has been no proper communication of the detention order.
7. Section 17 of the Act provides that when a person is detained in pursuance of the detention order, the authority making the order shall, as soon as may be, but ordinarily not later than five days and in exceptional circumstances and for the reasons to be recorded in writing not later than ten days from the date of the detention, communicate to him the grounds on which the order has been made and shall afford him earliest opportunity of making representation against the order to the State Government.
8. Section 12(3) of the Act provides that even a District Magistrate passes an order, he shall report forthwith the fact to the State Government together with the grounds on which the order has been made and such other particulars as, in his opinion, have a bearing on the matter. In this case, it appears that the impugned order at Annexure-1 was passed on 14.3.01 but it was served upon the petitioner on 7.5.2001, which is apparent from the endorsement of the petitioner on Annexure-1. The endorsement of the petitioner on Annexure-1 shows that he has also received the copy of the order along with the Annexures i.e. Annexure A/1. The order of the State Government confirming the aforesaid order of the District Magistrate Annexure-1. was passed on 24.3.2001 but its copy was received by the petitioner on 10.5.2001, which is apparent from the endorsement on Annexure-2 and this has also been certified by the Jailer. The petitioner in his representation, vide paragraph 4 of Annexure-3 has pleaded that the order was not communicated in time. The last order by which the State Government decided to detain him till 6.5.2002 was received by the petitioner on 23.6.2001. This order of the State Government was passed on 23.6.2001. The District Magistrate in his counter-affidavit, while replying the contention raised in paragraph 26 of the writ application has simply stated that the petitioner was communicated the grounds of detention within time prescribed by the law and the same has been approved by the State Government within 12 days from the date of passing of the order. It has not been challenged by the District Magistrate that the endorsement at the bottom of the Annexure-1 is false. If it is not such a case, then it appears that though the detention order was passed by the District Magistrate on 14.3.2001 but it was communicated along with the Annexures to the petitioner on 7.5.2001 i.e. after more than 60 days. The law provides that this can be communicated beyond five days to the period of 12 days, but even for that reason it to be recorded in writing, but no such reason has been recorded in writing and therefore, this is a clear case of communication of the impugned order at Annexure-1 to the petitioner after the period prescribed under Section 12 of the Act. No doubt, it is also gathered from the fact that the representation at Annexure-3 was filed by the petitioner on 23.5.2001. The order of the State Government confirming the order of the District Magistrate at Annexure-1 on 24,3.2001 was also communicated to the petitioner on 10.5.2001 and this inordinate delay in communicating is beyond the period prescribed by law, but no reason for that has been recorded in writing. No doubt, the final order whereby the State Government decided to detain him till 6.5.2002 was communicated to him within three days of the passing of the order, but it has not been explained as to why the earlier two orders were communicated so late. On this contention of the petitioner, the counter-affidavit filed by the respondent No. 3 is evasive and most unsatisfactory.
When the law prescribes that the detention order must be communicated within a particular period, the intention of the law is that whenever a liberty of a person is curtailed he is entitled to know also the grounds, so that he may file proper representation forthwith for recalling of that order. If any delay is there which is not explained by the detaining authority then it creates a situation for a presumption that purposely that was not communicated so that the detenue is not able to file his representation and thus indirectly his liberty be curtailed by creating such a situation. Even though the final order of the State Government has been communicated timely, but those previous dereliction in communicating the orders vitiates the detention for its being communicated beyond the time. This point is answered against the State and the detaining authority and is determined in favour of the petitioner. In this connection, reliance has been placed on the decision rendered in 1991(1) PLJR 289.
9. Re. Whether because of the fact that in the impugned order, Annexure-1, as the respondent No. 3 directed for immediate arrest of the petitioner when he was in jail amounts to non-application of mind by the detaining authority and can this be a ground for allowing the writ application.
While passing the impugned order the said authority-District Magistrate, was under impression that the detenue was outside the jail. Therefore, he passed an order for his immediate arrest. It was denied that at that relevant time, the authority was not even aware of the whereabouts that the detenue was already in jail in connection with some other case. This position has not been controverted in the counter-affidavit filed by the respondent and therefore, it appears that the respondent No. 3, while passing the order was not even aware that there was a likelihood of the petitioner's coming out of the jail in near future. The question is whether this amounts to non-application of mind or it is simply an inadvertence on the part of the detaining authority. The copy of the detention order was sent to the Superintendent of Police for service on the petitioner. The other copy was sent to the jail for being kept as was to be after service on the detenue. The remarkable fact that the copy of the order was sent to the Police Superintendent makes it clear that the detaining authority was sure that the petitioner was out of jail. Had the detaining authority been aware test the detenue was already in jail, then in that case copy should have been directly sent to the Jail Superintendent for being served on the petitioner. Thus, it cannot be said that the words, 'immediate arrest' used in the detention order was recorded inadvertently, rather it was recorded under the impression, that the petitioner was outside the jail. The petitioner has relied on a decision reported in 1991 (1) PLJR 289 and in this context argued that this is an instance of non-application of mind on the part of the detaining authority and therefore, it cannot be sustained. This point is also answered in favour of the petitioner and against the State.
10. The grounds stated in Annexure-A/l do not constitute any statement with regard to the petitioner being on bail in any of the case. Whereas there is positive assertion of the petitioner that he was on bail in the Case No. 17/1998 and Sadar P.S. Case No. 14/1993. It has also been argued that in any view of the matter all these facts either in the detention order or in the grounds of detention are signs of non-application of mind. In this context reliance has been placed on the decision reported in 1994(2) PLJR 82. Both the facts taken together indicate that while passing the impugned order, the detaining authority was not fully aware of every fact relating to this petitioner, and without knowing every fact, which could be relevant for the purposes of detention, if the order is passed, then it can be said that had the detaining authority considered the other relevant facts, it may have arrived at another conclusion, of course, not certainly a same conclusion because even after application of mind and after knowing full fact, a decision could have been same but it may have been otherwise also, but a man of common prudence before drawing some conclusion if has the capacity to know all the facts even slightly relevant and if it is not done, then it is definitely of a case of non-application of mind. This point is determined in favour of the petitioner and against the State.
11. Re. Whether there was some proximity between the impugned order and the crimes alleged against the petitioner and so the detention order was in the interest of the public order.
The case in which murder of a Junior Engineer was committed is of the year 1999 and another case is of the year 1999 when he was arrested with a loaded pistol and this was the case of the year 2001 when he along with his associates demanded Rangdari from the businessmen. The earlier rase in the year 1998 was intimating the Public Supply Officer with death. The impugned order was passed on 14.3.2001. So proximity does not mean that some crime should have committed on day or day before passing of the impugned order. Proximity, in my opinion means aproximity between the crimes that are committed. If a number of crimes are committed in quick succession, then it can be said that crimes were committed in proximity to each other and if subsequent therefore, taking step of all the situations, the impugned order is passed then it cannot be said that there was no proximity between the crime committed and the impugned order. So far the public order is concerned, it is clear that when the Government Officials were not safe, the Junior Engineer was killed and the Block Supply Officer was threatened, the businessmen were terrorised, the public servant is maintaining public order and is a part of machinery, which maintains the public order. Besides, the law and order, if the public servants themselves are being threatened, definitely this is an attack on the system which is responsible for maintaining the public order. Notwithstanding that, these Government Officers were not directly involved with the law and order duty but definitely it sends a message to the people that if the public servants are not safe then can the ordinary people be safe. This is sufficient to make the public at large panicky because these crimes had not been committed because of certain political consideration and personal vendetta. Thus, these offences definitely come within the arena of disturbing public order. This point is decided in favour of the State and against the petitioner.
12. In the last, whether in the event of any of the grounds fails general order of detention can be sustained.
The Act was enacted in the year 1994 and was promulgated on 14.3.1994. Section 12-A was inserted as insurgent, which reads as follows :
"12-A. Grounds of detention severable.--(1) Where a person has been detained in pursuance of an order of detention whether made before or after the commencement of the Bihar Control of Crimes Act, 1981 under Section 12 which has been made on two or more grounds such order of detention shall be deemed to have been made separate on each of such grounds and accordingly-
(a) such order shall not be deemed to be invalid or inoperative merely because one or some of the grounds is or are;
(i) vague,
(ii) non-existent,
(iii) non-relevant,
(iv) not connected or not proximately connected with such person or
(v) invalid for any other reason whatsoever, and it is not therefore, possible to hold that the Government or officer making such order would have been satisfied as provided in Section 12 with reference to the remaining ground or grounds and made the order of detention.
(b) The Government or officer making the order of detention shall be deemed to have made the order of detention under the said section after being satisfied as provided in that section with reference to the remaining ground or grounds."
13. Even in the aforesaid teeth of insertion of Section 12-A, the detention is vitiated because of two grounds (i) non- application of mind and of the inordinately delayed communication, of the detention order without any reasonable ground recorded therefor and (ii) in violation of Section 12 of the Act itself. By insertion of the Section 12-A the mandatory direction contained in Section 12 has not been done away with by the State Government, this writ application is allowed and the impugned orders as contained in Annexures-1 and 4 are quashed. The petitioner is directed to be released forthwith, if not wanted in any other case(s).
14. This application is allowed.