Patna High Court
Jagarnath Mahto vs State Of Bihar And Ors. on 2 February, 1996
Equivalent citations: 1996(2)BLJR892
Author: Surinder Sarup
Bench: Surinder Sarup
JUDGMENT R.N. Sahay, J.
1. In this application for a writ of hebeas corpus the detenu petitioner who is detained in Chas Jail vide detention order dated 20.8.1995 passed by the District Magistrate, Bokaro purporting to be under Section 12(2) of the Bihar Control of Crimes Act, 1981 (hereinafter it shall be referred to as 'the Act), has challenged the validity of detention mainly on three grounds.
2. The Ist ground is that he does not come within the definition of "anti social element" as defined in Section 2(i)(c) of the Act. The second ground of challenge is there has been inordinate delay of 43 days in disposing of his representation which by itself renders detention illegal. The third ground is the detention order has been passed mala fide to prevent him from carrying on his trade union activities.
3. The petitioner is the Secretary of Bermo Block of Jharkhand Mukti Morcha (Mardi), a registered political party by the Election Commission of India. He is also a active member of Trade Union 'Jharkhand Colliery Shramik Union' a registered Trade Union under the Trade Union Act. The field of the activity of the petitioner is within the Bermo Block of Bokaro district where Bhandaridah Refractoriness Ltd., a Government of India Undertaking, Chandrapura Thermal Power Station of Damodar Valley Corporation and the Collieries of Dhori, Kargali, Kathara areas of Central Coal-fields Ltd. a Government of India undertaking are situated. The petitioner contends that he raises voice of labourers, displaced persons and the oppressed class of people living peacefully and following the Rules and Regulations of the Trade Union and agitates matters as prescribed by law. He always highlighted the corruption of officials of Bharat Refractories Ltd. at Bhandaridah, Damodar Valley Corporation etc.
4. The petitioner lodged a case with Chandrapura P.S. being Chandrapura P.S. Case No. 043/95 under Sections 120-B/379/206/409 of the Indian Penal Code against Shri J.P. Sultania Additional General Manager, Bihar Refractories Ltd. at Bhandaridah, Shri S.K. Chakravorty, Deputy Manager (Raw materials) and others. This case was instituted on 17.6.1995. The petitioner was arrested on 21.8.1995 at 9.30 a.m. following the impugned detention order by chandrapura police from his party office. The petitioner alleges that after serving detention order, dated 21.8.1995 he was kept in police custody for more than 24 hours. He was sent to jail custody after 50 hours in police custody. The petitioner has further alleged that he was assaulted by the police while in custody. He was sent to Chas Jail on 23.8.1995 at 11.30 a.m.
5. The petition was served the grounds of detention (Annexure-3) on 24.8.1995. The aforesaid order reproduced below:
(1) On 22.2.1994 at about 10.50 a.m. the subject went to the office of the Shri Prabhat Kumar Singh, Executive Engineer (C) C.T.P.S. Chandrapura and started shouting at the top of his voice near his office. Hearing the noise, Shri Singh peeped from the widow of his chamber and found Shri Jagarnath Mahto yelling at the top of his choice. All of a sudden the subject along with his one associate entered forcibly in the chamber of Shri Prabhat Kumar Singh and started abusing attaching and manhandling him very badly. This act of the detenu in broad day light, where large number of the staff and other workers were present created great panic and alarm in and around the area in general and family members of Shri P.K. Singh, Executive Engineer (C) in particular. The office staff and others present in the office started running helter and shelter for the safety of their lives. This adversely affected public, order. Chandrapura P.S. Case No,. 17/94 dated 22.2.1994 under Sections 323, 353, 448, 504, I.P.C has been registered in this connection and charge sheet No. 12/94 has already been submitted against the subject. (Copy of F.I.R. of Chandrapura P.S. Case No. 17/94 enclosed).
(2) On 3.3.1994 at about 5.15 p.m. the subject along with his associates forcibly restrained and caught hold of Shri T.P. Singh an office of Bharat Refractories Ltd. near water treatment plant, when he and other officers and staff were returning home after completion of their duties. He was mercilessly assaulted with lathis and they tried to kidnap him with an intention to kill. This incident in early evening hours created great panic and alarm in and around the area in general and family members of Shri T.F.S. Singh in particular. The staff and workers B.R.L. who were returning from their duty started running helter and skelter for the safely of their lives. An utter confusion prevailed in the area and thus affected the public order adversely. This refers to Chandrapura P.S. Case No. 21 dated 3.3.1994 under Sections 34, 323 and 341 of the Indian Penal Code. Charge-sheet No. 13/94 has already been submitted in this case against the subject. (Copy of F.I.R. of Chandrapura P.S. Case No. 21/94 enclosed).
(3) On 28-104993 at about 11 a.m. the subject along with his associates forcibly entered in the plant of Bharat Refractories Ltd. Bhandaridah and beat up Shri T.P. Singh Rajbhasha Adhikari of the Plant in front of A.D.M. Building his incident of beating in broad day light created great panic and alarm in the factory as well as in the nearby area, The workers and staff working in the factory started running helter and skelter for the safety of their lives. This affected public peace and order adversely. This refers to Chandrapura P.S. Case No. 55/95 dated 13.7.1995 under Sections 147, 323/448/427/584 and 385, I.P.C. charge-sheet is likely in this case against the subject. (Copy of F.I.R. of Chandrapura P.S. Case No. 55/95 enclosed).
(4) On 19.8.1994 at about 11 a.m. the subject along with his supporters forcibly caught hold of Shree Artand Kumar Sinha and Achyut Kumar GET (Trainee). They were repeatedly abused and ultimately forced to pack their luggage and resign from the Job under the threat of being beated. The subject also kept them detained and abused them repeatedly till they delivered their resignation letters in central dispatch of the factory and left Bhandaridah for Chandrapura railway station to catch Hatia Patna train for Bokaro. This incident created great panic and alarm in factory and shock the entire work force. Nobody dared to come to the rescue of Anand Kumar Sinha and Achyut Kumar for fear of their lives. This adversely affected public order. This refer to Chandrapura P.S. Case No. 59/95 dated 13.7.1995 under Sections 34, 341, 384, 385, 386, 387, IPC charge-sheet No. 40/95 has already been submitted in this case against the subject. (Copy of F.I.R. of Chandrapura P.S. Case Np. 52/95 enclosed).
(5) On 22.7.1995 at about 10 a.m. as one of the one of supporters of the subject, namely, Ganesh Mahto forcibly entered in the DAV School, Bhandaridah, beat up Shri S.K. Roy attendant of the School and forced the Principal to take admission of 3 persons of his choice ignoring merit consideration. This incident of beating in broad day light created great panic and alarm in and around school area in general and parent of the student in particular. The complicity of the subject in this case has been fully established in course of investigation and sufficient evidence is available to show that the entire incident took place at the instance of the subject. This refers to Chandrapura P.S. Case No. 61/95 dated 22.7.1995 under Sections 147, 323, 341, 506 and 120-B, 384, I.P.C. charge-sheet in likely in this case against the subject. (Copy of F.I.R. of Chandrapura P.S. Case No. 61/94 dated 22.7.1995 enclosed).
From above mentioned facts I am satisfied that Shri Jagarnath Mahato is an anti social element and habitually commits offences punishable under Chapter XVI of the I.P.C I am also satisfied from the above grounds that if Shri Jagarnath Mahto is allowed to remain at large he will indulge in the activities prejudicial to the maintenance of Public Order. He is a terror in the area. Public Order cannot be maintained otherwise than his immediate detention for prevention of such activities I consider his immediate detention necessary.
Shri Jagarnath Mahto is hereby informed that he may make a representation in writing against the order under which he has been detained. His representation if any may be addressed to the Additional Secretary. Home (Police) Superintendent of Jail as soon as possible.
6. The petitioner submits that the order of detention is invalid for the son that the grounds for detention to not come within the purview of Section 2 the Act.
7. There is an authoritative pronouncement of the Supreme Court on the scope and ambit of Section 2(i)(c) of the Act in Vijay Narain Singh v. State of Bihar was considered. In this case Hon'ble Supreme Court after examining the definition of 'anti-social element' as defined in the Act held follows in para 31 of the report:
31. It is seen from Section 12 of the Act that it makes provision for the detention of an anti social element. If a person is not an anti-social element, he cannot be detained under the Act. The detaining authority should, therefore, be satisfied that the person against whom an order is made under Section 12 of the Act is an anti-social element as defined in Section 2(d) of the Act Sub-clause (ii)(iii) and (v) of Section 2(d) of the Act which are not quite relevant for the purposes of this case may be omitted from consideration for the present. The two other Sub-clauses which need to be examined closely are Sub-clauses (i) and (iv) of Section 2(d). Under Sub-clause (i) of Section 2(d) of the Act, a person who 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 dealing with offences affecting the human body or Chapter XVII dealing with offences against property, of the Indian Penal Code is considered to be an anti-social element. Under Sub-clause (iv) of Section 2(d) of the Act a person who has been habitually passing indecent remarks to, or teasing women or girls, is an anti social element. In both these Sub-clauses, the word habitually is used. The expression habitually means repeatedly or persistently. It implies a thread of continuity stringing together similar repetitive acts. Repeated persistent and similar, but not isolated, individual and dis-similar acts are necessary to justify an inference of habit. It conotes frequent commission of acts or omission of the same kind referred to in each of the said sub-clauses or an aggregate of similar acts or omissions. This appears to be clear from the use of the word 'habitually' separately in Sub-clause (i), Sub-clause (ii) and Sub-clause (iv) of Section 2(d) and not in Sub-clauses (iii) and (v) of Section 2(d). If the State Legislature had intended that a commission of two or more acts or omissions referred to in any of the Sub-clauses (i) to (v) of Section 2(d) was sufficient to make a person an anti social element the definition would have run as anti-social element means a person who habitually is...." As Section 2(d) of the Act now stands, whereas under Sub-clause (iii) or Sub-clause (v) of Section 2(d) a single act or omission referred to in them may be enough to treat the person concerned as an 'anti-social element in the case of Sub-clause (i) Sub-clause (ii) or Sub-clause (iv), there should be a petition of acts or omission of the same kind referred to in Sub-clause (i), Sub-clause (ii) or in Sub-clause (iv) by the person concerned to treat him as an 'anti-social element' Commission of an act or omission referred to in one of the Sub-clauses (i), (ii) and (iv) and of another act would not be sufficient to treat a person as an 'anti social element'. A single Act or omission falling under Sub-clause (i) and a single act or omission falling under Sub-clause (iv) of Section 2(d) cannot, therefore, be characterised as a habitual act or omission referred to in either of them. Because the idea of 'habit' involves an element of persistence and a tendency to repeat the acts or omissions of the same kind or even if they are of the same kind when they are committed with a long interval of time between them they cannot be treated as habitual ones.
8. In para 32 of the report the Hon'ble Supreme Court considered whether the ground on which the detenu in that case was detained was legal and sufficient for detention, it would be appropriate to quote the said para below to appreciate the precise point decided by the Hon'ble Supreme Court:
32. In the present case the District Magistrate has relied on three incidents to hold that the petitioner is in anti social element. The are (i) that on April 15, 1975 the petitioner along with his associates had gone to the shop of a cloth dealer of Bhagalpur Town armed with an unlicensed pistol and had forcibly demanded subscription at the point of a gun, and (ii) that on June 17/18, 1982 the petitioner was found teasing and misbehaving with females returning from a cinema hall, The third ground is the criminal case now pending against the petitioner in the Sessions Court. The first incident is of the year 1975. It is not stated how the criminal case filed on the basis of that charge ended. The next incident relates to the year 1982. The detaining authority does not state how the criminal case filed in that connection terminated. If they have both ended in favour of the petitioner finding him clearly not guilty, they cannot certainly constitute acts or omissions habitually committed by the petitioner. Moreover the said two incidents are of different kinds altogether. Whereas the first one may fall under Sub-clause (i) of Section 2(d) of the Act, the second one falls under Sub-clause (iv) thereof. They are, even if true, not repetitions of acts of omissions of the same kind. The District Magistrate does not appear to have applied his mind to the above aspects of the case. The. third ground which is based on the pending Sessions case is no doubt of the nature of acts or omissions referred to in Sub-clause (i) of Section 2(d) but the interval between the first ground which falls under this Sub-clause and this one is nearly eight years and cannot, therefore, make the petitioner a habitual of fender of the type falling under Sub-clause (i) of Section 2(d). When I say so, I do not certainly minimise the gravity of the offence alleged to have been committed by the petitioner which is still to be tried by the Sessions Court. If the petitioner is found guilty by the Court, will have to be awarded appropriate punishment. But the point for consideration now is whether the filing of the charge-sheet is sufficient to bring the petitioner within the mischief of the Act. The Court should examine the case without being overwhelmed by the gruesomeness of the incident involved in the criminal trial. It is well settled that the law of preventive detention is a hard law and therefore it should be strictly construed. Care should be taken that the liberty of a person is not jeopardized unless his case falls squarely within the four corners of the relevant law. The law of preventive detention should not be used merely to clip the wings of an accused who is involved in a criminal prosecution. It is not intended for the purpose of keeping a man under detention when under ordinary criminal law it may not be possible to resist the issue of orders of bail, unless the materials available is such as would satisfy the requirements, of the legal provisions authorising such detention. When a person is enlarged on bail by a competent criminal court great caution should be exercised in scrutinizing the validity of an order of preventive detention which is based on the very same charge which is to be tried by the criminal court.
9. As show cause has been filed on behalf of respondent No. 2 which has been affirmed by the Deputy Collector, Land Reforms Chas and it is contended that the order of detention as contained in Annexure-2 was passed on valid grounds as contained in Annexure-3. The detention order having been proved by the State Government, the petitioner is not entitled to any relief. In para 28 of the show cause the deponent has stated as follows:
28. With regard to the statements made in paras 24, 25 and 26 of the writ applications it is humbly submitted that the matter was referred to the Advisory Board constituted under the Act and the matter was fixed on 21.9.1995 for hearing. The detenu and the detaining authority personally appeared before the Advisory Board on the date fixed. The decision of the Advisory Board is awaited.
10. Show cause has also been filed on behalf of respondent Nos. 1 and 5. In this show cause the delay in disposal of the representation has been explained. The representation filed by the petitioner was received in the Home (Police) Department on 8.9.1995. Comments of the detaining authority was received on 26.9.1995. It is further stated that after hearing the detenu's case by the Advisory Board on 21.9.1995, opinion of the Advisory Board was received on 22.9.1995 in the Department. The main file was submitted to the Government for order on the opinion given by the Board on 22.9.1995. The file was returned with the approval of the Government on 4.10.1995. It is stated that the office was closed on the even of Durga Pooja vacation. After vacation, confirmation order dated 12.10.1995 was issued. The Minister-in-charge Home Department (Chief Minister) was on foreign tour form 5.10.1995 to 22.10.1995, hence the Minister-in-charge delegated his power under Section 21 of the Rules of Executive Business to the Chief Secretary of Bihar to act under the provisions of Bihar Control of Crimes Act, 1981 on 4.10.1995 so it is clear that Chief Minister had delegated his powers on 4.10.1995 itself. So the Chief Minister being on foreign tour could not be a ground for not disposing of the representation. It is, however, stated that due to legal difficulties, detention order was issued on 7.10.1995 on the advise of the Law Department and the Advocate General, Bihar\the representation was rejected on 19.10.1995. It has not been disclosed as to what leval difficulties prevented disposal of the representation promptly.
11. It now well settled that if there is unexplained delay in disposal of the representation filed by the detenue the detention order will be rendered illegal.
12. In Khairul Haque v. State of West Bengal unreported decision of the Supreme Court referred in Jai Narain Shukul v. State of West Bengal , the Supreme Court held that Article 22(5) of the Constitution imposes on Government a duel obligation and on the detenue a corresponding duel right namely, (1) to have his representation independently considered by the Government and (2) to have the representation, on the facts and circumstances of the case considered by the Advisory Board and Article 22(5) requires the Government to afford the detenue earliest opportunity to make representation. This is implied that such representation. When made, must be considered and disposed of as expeditiously as possible, for, otherwise, an obligation to furnish earliest opportunity to make a representation looses both its purpose and meaning. Unexplained delay in considering the detenu's application renders the order of detention invalid. See .
13. This strict view was taken as the preventive detention in serious invasion on personal liberty. It was held in Nagendra Nath v. State of West Bengal and S.C. Base v. District Magistrate Burdwan that the question of delay is question of fact; if the delay is satisfactorily explained, the order of detention will be upheld.
14. In the instant case the impugned detention is founded on the allegations of five criminal cases pending against the petitioner in which cases he has been bailed out. The first case is of 28.10.1993 under Sections 147, 323, 384, 385, 427 and 448 of the Indian Penal Code. The second case was instituted on 22.2.1994 under Sections 448/323/353 and 504 of the Indian Penal Code. The third case was instituted on 3.3.1994 under Sections 341/324/34 of the Indian Penal Code. The 4th case was instituted on 19.8.1994 under Sections 34/341/384/385/386/ of the Indian Penal Code. The last case was instituted on 22.7.1995 under Sections 147/323/341/506 of the Indian Penal Code. As stated the petitioner had also instituted a case recently against the officials of Bharat Refractories Ltd.
15. According to the petitioner the grounds for detention are based on the allegations made in the F.I.R. of the five cases referred to above. It has been stated in paragraphs 27, 28 and 29 of the writ application that the second respondent has purposely distorted the facts of the F.I.R. of the case relating to ground No. 1. It is submitted that the detenu authority had introduced new allegation which is not in the F.I.R. Learned Senior counsel for the petitioner submits that none of the grounds can be said to adversely affect any public order. The allegations are entirely isolated and personal and has no effect on the society at large or nothing, to do with the interference of public order in general. The Ground No. 2 relates to Chandpura P.S. Case No. 21/94 which is more than a year old and it has been submitted that the detention cannot be passed on state allegation. Learned Counsel submitted that in Ground No.2 also the facts of the F.I.R. have been distorted. There is no mention in the F.I.R. that the staffs and workers of the Bharat Refractories Ltd. who were returning from duty started running away helter and skelter. The Ground No.3 relates to incident of 28.10.1993. The F.I.R. was lodged after 20 days from the date of alleged incident. So imagination that the action of the petitioner could adversely affect the public order. The 5th ground also cannot be said to affect public order. All the cases of the petitioner are simple in nature and cannot be said to affect public order. Applying the test laid down by Supreme Court in Vijay Narain's case (supra) the petitioner who is admittedly an active trader worker of Union cannot be brought within the definition of habitual offender as defined in the Act.
16. I am of the opinion that the detention of the petitioner under Crime Control Order, in the facts and circumstances of the case, in flagrant abuse of power of detention.
17. It is apparent from the show cause that disposal of the representation was delayed awaiting opinion of the Advisory Board. It is well settled law that the representation has to be disposed of irrespective of the opinion of the Advisory Board. There has been inordinate delay in disposing of the representation filed by the petitioner. The delay has not been explained at all. On this ground alone the detention order is liable to be quashed.
18. In the result the application for habeas corpus is allowed. The detention of the petitioner is quashed. The Jail Superintendent, Chas Jail where the petitioner is detained is directed to forthwith release the petitioner, if he is not wanted in any other case.
19. Let the operative portion of the order be communicated at once. Joint Registrar is directed to communicate oprative portion of the order to the Sessions Judge, Bokarb within three days from today who in turn shall communicate the Jail Superintendent, Chas.
20. Let a copy of the order be supplied to the learned Counsel of the petitioner.
Surinder Sarup, J.
I agree.