Patna High Court
Mister Yadav vs The State Of Bihar Through Hom on 19 December, 2012
Author: Mihir Kumar Jha
Bench: Mihir Kumar Jha, Aditya Kumar Trivedi
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Writ No.1030 of 2012
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Mister Yadav S/O Sri Naresh Yadav Resident Of Village- Badi Govindpur, P.S.-
Dharhara, District- Munger.
.... .... Petitioner/s
Versus
1. The State of Bihar Through Home Secretary Government of Bihar, Patna.
2. The Under Secretary Home, Government of Bihar Patna.
3. The District Magistrate Munger.
.... .... Respondents
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Appearance :
For the Petitioner : Mr. Khurshid Alam, Adv.
For the Respondents : Mr. P. N. Shahi, AAG-14
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CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA
and
HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
CAV JUDGMENT
(Per: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA)
Date: 19-12-2012
In this writ application, the petitioner has prayed for the
following relief:-
"1 That this writ application is being filed for issuance
of a writ in the nature of Habeas corpus directing the
respondent to release the petitioner from illegal
custody and such order may be passed after quashing
of the impugned order of detention passed under
section 12(2), 21(i) and 22 of the Bihar control of
Crime Act (here in after referred as Act) contained in
memo no. 409 dated 27.3.2012, memo no. 3687 dated
2.5.2012respectively passed by the detune authority and also direct to pay compensation for illegal detention."
2. The facts in brief giving rise to this writ application lie in a narrow compass. The petitioner, while he was in judicial Patna High Court CR. WJC No.1030 of 2012 dt.19-12-2012 2 custody in connection with Dharhara P.S. Case No. 113 of 2011 lodged under Section 25(1-B), 26 & 27 of the Arms Act, he was served with a notice issued under the pen and signature of District Magistrate, Munger contained in memo no. 207 dated 15.2.2012 along with a recommendation of the Superintendent of Police, Munger directing him to file his show-cause reply on or before 27.2.2012 as to why an order under Section 12(2) of the Bihar Control of Crimes Act for his detention should not be passed. The petitioner claims that he had filed his show-cause reply on 25.2.2012, whereafter, the impugned order of detention of the petitioner came to be passed on 27.3.2012 wherein having given the details of continued criminal activities born out his being accused in five cases, namely, Dharhara P.S. Case No. 111 of 2004, Dharhara P.S. Case No. 46 of 2004, Dharhara P.S. Case No. 1 of 2005, Dharhara P.S. Case No. 58 of 2005 and Dharhara P.S. Case No. 41 of 2007 by way of his criminal antecedent, the impugned order of detention was passed on the ground of his being a menace in maintenance of public order by citing illustration of his being also made accused in recent four criminal cases namely Dharhara P.S. Case No. 113 of 2011 dated 14.10.2011, Dharhara P.S. Case No. 36 of 2011 and Dharhara P.S. Case No. 72 of 2010 and Dharhara P.S. Case No. 86 of 2010 dated 14.7.2010.
3. After the said order of detention dated 27.3.2012 was passed by the District Magistrate, Munger, the same was approved by Patna High Court CR. WJC No.1030 of 2012 dt.19-12-2012 3 the State Government in terms of Section 12(3) of the Act by an order dated 4.4.2012, The case of the petitioner was thereafter placed before the Advisory Board on 18.4.2012 and when the Advisory Board had also its meeting held on 24.4.2012 after hearing the petitioner had recorded its opinion approving the detention of the petitioner whereafter the State Government had confirmed the order of detention of the petitioner by passing the impugned order dated 2.5.2012 directing him to remain in detention till 26.3.2012 i.e. till completion of a period of one year from 27.3.2012 to 26.3.2013.
4. Mr. Khurshid Alam, learned counsel for the petitioner has submitted that the impugned order of detention is bad both on fact and in law and in this regard, he has stated that on 27.3.2012, he was already continuing in judicial custody in connection with Dharhara P.S. Case No. 46 of 2004 in which he came to be acquitted on 6.6.2012. He has further submitted that as on 27.3.2012, the petitioner was also continuing in judicial custody in connection with Dharhara P.S. Case No. 72 of 2010 in which also he was acquitted by a judgment of the trial court dated 29.3.2012. In the same vein, he has also submitted that the petitioner was also continuing in judicial custody in connection with Dharhara P.S. Case no. 86/2010 wherein also he had been acquitted by a judgment dated 27.4.2012. Proceeding further, he has also demonstrated on the basis of the averments made in the supplementary affidavit filed by the petitioner in compliance of Patna High Court CR. WJC No.1030 of 2012 dt.19-12-2012 4 the order of this Court that as on the date of order of detention passed by the District Magistrate, Munger on 27.3.2012, he was also continuing in judicial custody in connection with Jamalpur P.S. Case No. 37 of 2011 in which he was actually granted bail on 13.4.2012. Similarly, he has also submitted that the petitioner was in judicial custody as on 27.3.2012 also in connection with Dharhara P.S. Case No. 113 of 2012 in which he was granted bail only on 25.7.2012.
5. By citing all these aforesaid five cases in which the petitioner was already continuing in judicial custody Mr. Khurshid has projected that the satisfaction recorded by the District Magistrate, Munger in the impugned order relevant portion whereof reads as follows:-
^^iqfyl v/kh{kd ds izfrosnu ls ;g fofnr gksrk gS fd foi{kh ,d vknru ,oa lfdz; vijk/kdehZ gS tks gR;k] gR;k dk iz;kl] jaxnkjh vkfn lfgr xaHkhj izd`fr ds vU; dbZ dk.Mksa esa vkjksfir ,oa uketn vfHk;qDr gSA blds }kjk MdSrh dh ?kVukvksa dks Hkh vatke fn;k tk pqdk gSA tks dkQh fnuksa ls Qjkj FkkA fQjkjh vof/k esa vketu vius vkidks vlqjf{kr eglwl djus yxs Fks rFkk yksxkas dk Hk;eqDr gksdj viuk dk;Z lEikfnr djuk Hkh dfBu gks x;k Fkk foi{kh dk uke lqudj gh yksxksa esa vkrad dh ygj mRiUu gks tkrh gSA orZeku esa ;g tsy esa gSA ¼tsy esa jgrs gq, vu;kU; ek/;eksa ls vketuksa esa Hk; dk ekgkSy iSnk fd;k tk jgk gS O;olk;h oxZ ls jaxnkjh vkfn dh ekax dh tk jgh gS½ bl vijk/kh dk tsy ls ckgj jguk tufgr ,oa yksdfgr ds n`f"Vdks.k ls csgn [krjukd gS fuEukafd n`"Vkarksa ls mijksDr rF;ksa dh lEiqf"V gksrh gS&&&** (underlining for emphasis) would only go to show the mechanical application of mind of the District Magistrate, Munger, the detaining authority. Patna High Court CR. WJC No.1030 of 2012 dt.19-12-2012 5
6. Commenting further on such detention order, he has submitted that the underlined portion of the detention order as quoted above is based on no material, inasmuch as, there is nothing on record which could show that as on 27.3.2012, when the petitioner was in judicial custody and languishing in jail, he had created a reign of terror in the mind of the people at large and was demanding ransom from the people of business community. According to Mr. Khurshid Alam, learned counsel for the petitioner, this highly loaded statement in the detention order was passed by the District Magistrate, Munger to create wholly incorrect impression, which alone would vitiate the impugned order of detention. Mr. Khurshid Alam in this regard has also submitted that the expression used by the District Magistrate, Munger in the impugned order by way of his conclusive personal satisfaction is also wholly perfunctory, inasmuch as, he has not even taken into account that the petitioner was already continuing in jail custody in five of the 11 cases cited both by way of criminal antecedent and the ground of detention.
7. Mr. P.N. Shahi, learned AAG-14, while defending the impugned order of detention, has submitted that the petitioner as noted above is a veteran criminal which is well supported from unbroken chain of criminal cases lodged against him and it was in this background that the District Magistrate, Munger was satisfied that his being released on bail from the jail custody could have posed a Patna High Court CR. WJC No.1030 of 2012 dt.19-12-2012 6 serious threat to the public order. He has further submitted that such satisfaction of the District Magistrate cannot be reviewed on merit by this Court in exercise of power under Article 226 of the Constitution of India. In this regard he has also referred to the averments made in the counter affidavit showing the petitioner to be a growing threat to public order.
8. In the considered opinion of this Court, the impugned order of detention of the petitioner is bad on two counts. Firstly, there is no material before this Court that while the petitioner was languishing in jail as on 27.3.2012, he had done anything by way of terrorizing the people and business class in particular. As a matter of fact, Mr. Shahi, in presence of the District Magistrate, Munger in course of hearing of this writ application, was asked to produce any material which could have substantiated the aforesaid underlined portion of the impugned order but both he and the District Magistrate, Munger had failed to produce anything to support the aforesaid aspect. The District Magistrate, Munger in fact had stated that his such recording of satisfaction was based on a recommendation made by the Superintendent of Police, Munger. When this Court wanted to know from Mr. Shahi as to whether the Superintendent of Police, Munger had produced any such material as with regard to the petitioner terrorizing the people and business community while remaining inside the jail, he had fairly conceded that the report of the Patna High Court CR. WJC No.1030 of 2012 dt.19-12-2012 7 Superintendent of Police, Munger was based on the report of the Sub- Divisional police officer, Munger. However no such report of S.P., Munger or even S.D.P.O. Munger was produced before this Court.
9. It thus becomes clear that whatever was recorded by the District Magistrate, Munger in the impugned order as with regard to the petitioner being detained in custody was based on no cogent authentic and valid material which in turn would vitiate the impugned order of detention. It is well settled that satisfaction of detaining authority has to be based on authentic materials in asmuch as right to liberty of a citizen cannot be curtailed by detaining under Prevention Detention law on mere ipsi dixit of the detaining authority. For recording such a satisfaction that the petitioner while remaining inside the jail custody was creating a reign of terror and was intimidating the business community of Munger town as also demanding ransom, there had to be some report either of the affected persons or even by way of informatory petition filed by the police. Nothing of this sort is on record and, therefore, this Court must hold that such satisfaction of the District Magistrate, Munger on the petitioner while remaining in judicial custody as on 27.3.2012 was creating a reign of terror by demanding ransom from the business community of the town was based on his mere ipsi dixit of the District Magistrate, Munger and his subordinate officials. That by alone would vitiate the impugned order of detention.
Patna High Court CR. WJC No.1030 of 2012 dt.19-12-2012 8
10. The order of detention is also had because D.M., Munger has given no reason in the impugned order as to how and on what basis he had formed his opinion that the petitioner was likely to be released on bail while it is well settled that a person in jail can be detained under preventive detention law but, in such case, there has to be a conscious application of mind disclosing specific materials on the basis of which the detaining authority comes to hold an opinion that detenue is likely to be released either by way of grant of bail or being acquitted. As noted above, the petitioner as on 27.3.2012 was continuing in judicial custody in connection with five of such cases in which he had not even filed his bail application. From the admitted facts its is clearly established that the trial of the petitioner itself was under way in connection with Dharhara P.S. Case no. 46 of 2004 and he had not even filed a bail application as on 27.3.2012. In fact the trial in such case was at an advance stage, inasmuch as, he got finally acquitted of his charge on 6.6.2012. Similarly, no bail application was pending in respect of Dharhara P.S. Case No. 72 of 2010, wherein, he was acquitted of the charge by a judgment dated 29.3.2012. Here also, the District Magistrate, Munger had failed to ascertain the actual position of this case. There is similar position even as with regard to Dharhara P.S. case no. 86 of 2010 wherein the petitioner had not filed the bail application as on 27.3.2012 and was acquitted of his charge by the trial court in the judgment dated 27.4.2012. Again in the two Patna High Court CR. WJC No.1030 of 2012 dt.19-12-2012 9 other cases, namely, Jamalpur P.S. Case No. 37 of 2011 and Dharhara P.S. Case No. 113 of 2011, the petitioner's bail application was not pending as on 27.3.2012, inasmuch as, in those cases, he was granted bail on 13.4.2012 and 25.7.2012 respectively, much after of passing the impugned order of detention.
11. Thus, it becomes clear that the satisfaction of the District Magistrate, Munger as with regard to the petitioner likely to be released from jail was based on his pure guesswork inasmuch as he did not make any effort to ascertain the actual position in the aforesaid five cases in connection with which the petitioner was already in judicial custody. Recently, this Court had to deal with the similar detention order of a person continuing in jail custody in Criminal Writ No. 880 of 2012 (Ravi Jha Vs. State of Bihar & Ors.) disposed on 17.10.2012 wherein it was held as follows:-
"14. There is no difficulty in accepting the submission of the learned counsel for the State that a person in jail custody can be subjected to a detention under the Act. However, in such cases there has to be a clear application of mind and the resultant satisfaction has to be expressed in the order that the detaining authority has reason to believe on the basis of reliable and cogent material that there is a possibility of his being released on bail and after being so released on bail he would be in all probability indulging in prejudicial activities affecting the public order which cannot be prevented save and except without passing the order of detention.
15. Law in this regard has already been settled by the Constitution Bench of the Apex Court in the case of Rameshwar Shaw vs. District Magistrate, Burdwan, reported Patna High Court CR. WJC No.1030 of 2012 dt.19-12-2012 10 in AIR 1964 SC 334, wherein it was held as follows:
"[12] As an abstract proposition of law, there may not be any doubt that Section 3(1)(a) does not preclude the authority from passing an order of detention against a person whilst he is in detention or in jail; but the relevant facts in connection with the making of the order may differ and that may make a difference in the application of the principle that a detention order can be passed against a person in jail. ... Therefore, we are satisfied that the question as to whether an order of detention can be passed against a person who is in detention or in jail, will always have to be determined in the circumstances of each case."
16. The same view was reiterated and also explained by the Supreme Court in the case of Binod Singh vs. District Magistrate, Dhanbad, reported in (1986)4 SCC 416, wherein it was held as follows:
"7. It is well settled in our constitutional framework that the power of directing preventive detention given to the appropriate authorities must be exercised in exceptional cases as contemplated by the various provisions of the different statutes dealing with preventive detention and should be used with great deal of circumspection. There must be awareness of the facts necessitating preventive custody of a person for social defence. If a man is in custody and there is no imminent possibility of his being released, the power of preventive detention should not be exercised. In the instant case when the actual order of detention was served upon the detenu, the detenu was in jail. There is no indication that this factor or the question that the said detenu might be released or that there was such a possibility of his release, was taken into consideration by the detaining authority properly and seriously before the service of the order. A bald statement is merely an ipse dixit of the officer. If there were cogent materials for thinking that the detenu might be released then these should have been made apparent. Eternal vigilance on the part of the authority charged with both law and order and public order is the price which the democracy in this country extracts from the public officials in order to protect the fundamental freedom of our citizens."
(underlining for emphasis) Patna High Court CR. WJC No.1030 of 2012 dt.19-12-2012 11
17. The question whether a person who is in jail custody can be detained under detention law was also gone into by the Apex Court in an elaborate manner in the case of Dharmendra Suganchand Chelawat v. Union of India, reported in (1990)1 SCC 746, wherein it was held as follows:
"21. The decisions referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for that purpose it is necessary that the grounds of detention must show that (i) the detaining authority was aware of the fact that the detenu is already in detention; and (ii) there were compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression „compelling reasons‟ in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future, and
(b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities."
(underlining for emphasis).
18. The Supreme Court again in the case of Kamarunnissa vs. Union of India, reported in (1991)1 SCC 128, while dealing with this very aspect of a person who is in jail had laid down a law in a more elaborate manner wherein it was held as follows:
"13. From the catena of decisions referred to above it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody;
(2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in prejudicial activity; and Patna High Court CR. WJC No.1030 of 2012 dt.19-12-2012 12 (3) if it is felt essential to detain him to prevent him from so doing.
If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition to question it before a higher court."
(underlining for emphasis)
19. In the case of Amritlal v. Union Govt., reported in (2001)1 SCC 341, a similar issue had arisen before the Apex Court as the detaining authority in that case had recorded its satisfaction for detention under the National Security Act in view of the fact that the person who was already in jail was going to move a bail application. In the ground of detention it has been also mentioned that there was "likelihood of the detenu moving an application for bail" and hence the detention was necessary. The Apex Court however setting such an order of detention had held that there must be cogent materials before the authority passing the detention order that there was likelihood of his release on bail.
20. The aforesaid view in fact remains still a good law as they have been followed without any exception by the Apex Court also in the long line of cases including Rajesh Gulati vs. Govt. of NCT of Delhi & anor., reported in (2002)7 SCC 129, K. Varadharaj vs. State of T.N., reported in (2002)6 SCC 735, Amritlal vs. Union Govt., reported in (2001)1 SCC 341, T.V.Sravanan @ S.A.R.Prasana Venkatachaariar Chaturvei vs. State through Secretary and anor., reported in (2006)2 SCC 664.
21. The Apex Court in the case of A. Geetha v.
State of T.N., reported in (2006)7 SCC 603, relying on its earlier judgments had also held as follows:
"10. .... that the detaining authority should be aware that the detenu is already in custody and is likely to be released on bail. The conclusion that the detenu may be released on bail cannot be ipse dixit of the detaining authority."
22. In the case of Rekha vs State of Tamil Patna High Court CR. WJC No.1030 of 2012 dt.19-12-2012 13 Nadu, reported in 2011 (3) B.B.C.J 289 (S.C) it was held as follows :-
"if no bail application was pending and the detenu was already in fact in jail in a criminal case the detention order under the Preventive Detention Law is illegal".
23. The Apex Court in fact in the aforesaid case of Rekha (supra) had also clarified that there has to be also a full detail about the possibility of bail being granted and in this regard it was held as follows:
"11. In our opinion, if details are given by the respondent authority about the alleged bail orders in similar cases mentioning the date of 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 orders in similar cases, which has not been done in the present case. A mere ipse dixit statement in the ground of detention cannot sustain the detention order and has to be ignored."
24. All these judgments were recently again scanned by the Apex Court in the case of Huidrom Konungjao Singh vs. State of Manipur & ors., reported in (2012)7 SCC 181, and while reiterating the same view it was held as follows:
"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 fac 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 Patna High Court CR. WJC No.1030 of 2012 dt.19-12-2012 14 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 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."
25. In the light of the aforementioned settled position in law when we look to the facts of this case as has already been discussed above, we are satisfied that mere mention of the fact by the District Magistrate in his order that "the petitioner is in jail custody and trying for bail" would be mere ipse dixit of the detaining authority......."
12. Thus, in the light of the law settled by the Apex Court and this Court in a long line of cases there will be no difficulty in holding that the present impugned order of detention is a classic example of non-application of mind as well as perfunctory exercise of power by the District Magistrate, Munger, who somehow has developed a knack of using the power of detention under the Act as a cloak for detaining the persons under the Act on the basis of recommendation of the Superintendent of Police, Munger without applying his own independent mind.
13. This Court will have no sympathy with the present District Magistrate, Munger when a plea has been taken by him in the open court that his such detention order was passed in view of the recommendation made to him by the Superintendent of Police, Munger. The power of order of detention under the Act has been Patna High Court CR. WJC No.1030 of 2012 dt.19-12-2012 15 vested to the District Magistrate and therefore from whatever source he gets the materials or information, he has to first verify it and make sure of those things before making up his mind while satisfying himself in course of passing the order of detention. In the present case, the District Magistrate, Munger had relied on the recommendation of the Superintendent of Police, Munger and when S.P., Munger has been probed, he has thrown the burden on the S.D.P.O., Munger. No wonder, the S.D.P.O. if and when asked about the material as with regard to the petitioner creating a reign of terror by way of demanding ransom from the business community of the town, may refer to some information given to him by the concerned officer-in-charge and what would happen it such officer-in-charge on being asked may refer to some report of the Chowkidar and ultimately the Chawkidar may come out on a plea that he had heard rumor as with regard to the petitioner demanding some ransom from someone even when he was in jail. This theory of supposition cannot be allowed at least in the matter of detention curtailing the right to liberty of a citizen.
14. The repeated reference made by Mr. Shahi learned AAG to the chequred track record of the petitioner of his being accused in eleven cases will also have no meaning in the eye of law, inasmuch as, in many of them, as noted above, he has already been acquitted of the charge. The respondents, having not denied the Patna High Court CR. WJC No.1030 of 2012 dt.19-12-2012 16 specific averment made by the petitioner in the supplementary affidavit as with regard to present stage of the eleven criminal cases and his being acquitted in many of them or being granted bail in rest of them, cannot be detained unless specific materials are disclosed in the order of detention as to how and in which manner, he was likely to be released from the judicial custody necessiting his detention under the Act and become a threat to public order. That having been not done, this Court must record that yet again the District Magistrate, Munger has passed another perfunctory order of detention, alike his earlier order contained in his memo no. 408 dated 27.3.2012 detaining one Katiman Yadav which has also been quashed by this Court in the judgment dated 5.9.2012 in Cr.W.J.C. No. 818 of 2012 .
15. It was infact in this backdrop that this Court in the order dated 18.10.2012 had directed the present District Magistrate, Munger to disclose the total number of detention orders passed by him in his tenure but curiously enough he had affronted this Court while defying its order by filing an evasive and infact contemptuous affidavit on 5.11.2012. He however had subsequently retraced his steps by chewing his words only when he was asked to appear in person to explain his conduct as has been noted by us in detail in our order dated 6.12.2012, which is quoted here-in-below:-
"Pursuant to the earlier order of this Court dated 27.11.2012, Mr. Kuldip Narayan, District Magistrate, Munger, has appeared in person and has also filed his affidavit Patna High Court CR. WJC No.1030 of 2012 dt.19-12-2012 17 expressing unconditional apology for the statement made in paragraph no.26 of the counter affidavit filed by him. He has also prayed that such statement in paragraph no.26 of the counter affidavit be permitted to be withdrawn and expunged.
In order to understand the audacity committed by the District Magistrate, Munger in paragraph no.26 of the counter affidavit, it has to be noted that this Court, having found that a large number of criminal writ petitions seeking relief of issuance of writ in the nature of habeas corpus from Munger district were being filed and as such, detention order were being passed mechanically, it had directed the District Magistrate, Munger to file his personal affidavit stating as to how many detention orders have been passed by him in person after his being posted as a District Magistrate, Munger and he was also directed to disclose the total number of such detention orders passed by each of his predecessors in the last five years.
The District Magistrate, Munger in compliance of the aforesaid order had filed his counter affidavit, wherein, apart from other things in paragraph no.26, he had stated as follows:-
"26. That the merit of this case is nothing to do with number of detention orders passed by the present answering respondent or any of the previous District Magistrate. It should be considered because there is no law or rule defining number of maximum or minimum detention order a particular can pass."
As would be apparent here was a defiant District Magistrate who chose not only to evade the direct question being put to him but, also questioned the authority of this Court. In such circumstances, this Court, by order dated 5.11.2012, had granted him further time as prayed by him in person while appearing on 5.11.2012 to comply the order of this Court dated 18.10.2012.
Pursuant thereto, when he had filed supplementary counter affidavit, he had disclosed that in a span of 21 months, Patna High Court CR. WJC No.1030 of 2012 dt.19-12-2012 18 he had passed 22 detention orders under Bihar Control of Crime Act whereas four of his predecessors in a span of 35 months had passed only five detention orders. Though in paragraph no.5 of his supplementary counter affidavit, he had expressed apology for the inconvenience caused to this Court on account of delay in providing the required information but, he did not say a word about his statement made in paragraph no.26 of the counter affidavit as quoted above. That would only show the approach of the present District Magistrate, Munger towards this Court.
Today, he has, however, filed his yet second supplementary counter affidavit wherein in paragraph no.5, he has stated as follows:-
"5. That with regard to statements made in paragraph 26 of the counter affidavit filed earlier it is respectfully submitted that the same may kindly be treated to be withdrawn.
It may respectfully be submitted that
respondent no.3 has already filed a
supplementary counter affidavit on
26.11.2012 bringing on record the number of detention orders passed by him as also by his predecessors in office during the last 5 years in compliance of directions contained in order dated 18.10.2012."
In paragraph no.6, he has gone to add as follows:-
"6. That respondent no.3 once again submits his unconditional apologies and seeks forgiveness for causing inconvenience to this Hon'ble Court and respectfully submits that it was never his intention to in any manner confront this Hon'ble Court."
In view of the above, this Court accepts his unconditional apology though reluctantly with a warning that in future, he would not only remain careful but would also desist from making unsavory comments towards any court of Patna High Court CR. WJC No.1030 of 2012 dt.19-12-2012 19 law. As prayed by him, his statement made in paragraph no.26 of the counter affidavit, quoted above, is allowed to be withdrawn and the same is hereby expunged from the records of this case.
As with regard to the statement made in paragraph no.11, it has been submitted by Mr. P.N. Shahi, AAG-14 that whatever was expressed therein by the D.M., Munger was by way of submission in respect of law as settled by the courts and did not incorporate his personal view.
This Court, however, is not in a position to accept the said submission for a simple reason that the mark of punctuation has got a definite role to play in any expression. There are certain sentences in paragraph no.11 which may carry the impression of communicating the law as laid down in the judgment of the Apex Court or this Court but, then, after those sentences when a full stop has been given by the deponent D.M., Munger, it does only covey his personal view. This Court, however, considering that the District Magistrate, being the deponent of the counter affidavit, has himself expressed that averments made in paragraph no.11 does not incorporate his personal view specially when the same counter affidavit in paragraph no.28 records as follows:-
"28. That I have gone through the contents of this counter affidavit and fully understand the same. The statements made herein are based on informations derived from the relevant records of the case which I believe to be correct."
It would thus be clear that paragraph no.26 of the counter affidavit or for that purpose paragraph no.11 of the counter affidavit is not by way of submission so as to allow the benefit of doubt to be given to the District Magistrate, Munger. This Court, however, in view of his subsequent repentant attitude and his unconditional apology offered in his second supplementary counter affidavit would accept his submissions for the time being but, would again warn him that he must remain vigilant and very careful in future while filing his Patna High Court CR. WJC No.1030 of 2012 dt.19-12-2012 20 counter affidavit in any court of law.........".
16. From the aforesaid conduct of the present District Magistrate, Munger it is well established that he has scant regard for rule of law. While this Court must not discourage the detaining authority including the present District Magistrate, Munger in passing any number of detention order, if situation so demands, they will always have to keep in mind that personal liberty of any citizen of this country guaranteed by way Fundamental Right under Part- III of the Constitution of India can be curtailed only within the specified parameter as provided under Article 22 of the Constitution which is in fact by way of an exception to the right to liberty of citizen ensured under Article 21 of the Constitution of India. We would not like to say anything more for the present in this regard but would definitely fail in our duty if we in the light of our aforesaid observations and findings do not record our strong displeasure against Mr. Kuldip Narain, the present District Magistrate, Munger.
17. Thus having given our anxious consideration to the materials on record as discussed above we have no difficulty in holding that the impugned orders of the detention of the petitioner being bad both on fact and in law cannot be sustained by us.
18. In the result, this writ application is allowed and the impugned order of detention of the petitioner dated 27.3.2012 as Patna High Court CR. WJC No.1030 of 2012 dt.19-12-2012 21 contained in Annexure-3 and its confirmation by the State Government in the order dated 2.5.2012 as contained in Annexure-5 are hereby quashed. The petitioner must be set at liberty forthwith if he is not wanted in connection with any other case.
19. Let a copy of this order be sent to the Chief Secretary Government of Bihar for doing needful by issuing necessary guidelines to all the District Magistrate of the State of Bihar for taking necessary precaution in passing the order of detention under Bihar Control of Crimes Act against a person already continuing in jail custody.
(Mihir Kumar Jha, J) (Aditya Kumar Trivedi, J) Rishi/-