Madhya Pradesh High Court
Rafique Ahmed vs Home Department on 10 August, 2022
Author: Vivek Rusia
Bench: Vivek Rusia, Amar Nath Kesharwani
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
&
HON'BLE SHRI JUSTICE AMAR NATH (KESHARWANI)
ON THE 10th OF AUGUST, 2022
WRIT PETITION No. 15583 of 2022
Between:-
RAFIQUE AHMED S/O JABBAR AHMED, AGED
ABOUT 50 YEARS, OCCUPATION: JOB
RAMKUND NARSINGHGARH TEHSIL
NARSINGHGARH (MADHYA PRADESH)
.....PETITIONER
(MS. MEHUL SHUKLA, LEARNED COUNSEL FOR THE
PETITIONER)
AND
1. HOME DEPARTMENT THROUGH SECRETARY
VALLABH BHAWAN BHOPAL (MADHYA
PRADESH)
2. DISTRICT MAGISTRATE DISTRICT - RAJGARH
(MADHYA PRADESH)
3. SUPERINTENDENT OF POLICE DISTRICT -
RAJGARH (MADHYA PRADESH)
4. THE STATION HOUSE OFFICER P.S.KURAWAR,
DISTT.RAJGARH (MADHYA PRADESH)
.....RESPONDENTS
(SHRI BHASKAR AGRAWAL, LEARNED GOVT. ADVOCATE FOR
RESPONDENTS/STATE.)
This petition coming on for orders this day, JUSTICE VIVEK RUSIA
passed the following:
ORDER
The petitioner has filed the present petition being aggrieved by order of detention dated 26.5.2022 passed by respondent No.2, District Magistrate, 2 District Rajgarh under the provisions of National Security Act (NSA) for a period of three months i.e. up to 4.7.2022.
At the relevant point of time, the petitioner was driver of a teacher of Govt. Middle School. One Radhika Meena made a complaint to the police that she and other students of the school were subjected to sexual assault by the present petitioner. Accordingly, Police Station Kurawar (Kotra), District Rajgarh has registered the FIR against the petitioner u/s. 450, 375-C, 376, 354, 354(a) and 509 of the IPC and u/s. 9 and 10 of the Protection of Children from Sexual Offences (POCSO) Act and arrested the petitioner on 27.3.2022. After completing the investigation, charge-sheet has been filed. Now, learned Addl.
Sessions has framed the charge u/s. 8 (on 5 counts) of the POCSO Act.
On the basis of the aforesaid sole incident, the District Magistrate has initiated the detention proceedings against the petitioner under the provisions of NSA and sent the matter for approval to the Secretary, Home Department. Vide order dated 7.4.2022 the State Government has approved the order of detention of the petitioner u/s. sub-section (3) of Section 4 of the NSA. The Secretary has also sent an intimation to the Government of India vide letter dated 7.4.2022. Thereafter, District Magistrate has passed order of detention dated 26.5.2022. The petitioner has filed the present petition assailing the aforesaid action of the State Government on the ground that he has unnecessarily been subjected to detention only on the basis of sole criminal case against him.
The respondents have filed the return. Along with the return, copy of FIR, show-cause notice, detention order, information to Govt. of India and copy of order dated 24.6.2022 have also been filed. By order dated 24.6.2022, the period of detention has been extended for further 3 months i.e. up to 4.10.2022. Nothing has been said in the return as to whether the initial order of 3 detention passed for a period of 3 months has been approved by the Advisory Board and thereafter the State Govt. has passed the sanction order u/s. 12 of the NSA or not? Learned Govt. Advocate appearing for the respondents/State fairly admits that there is nothing on record to show that the case of the petitioner was put up before the Advisory Board and the Board has given any approval to the said order dated 26.5.2022. Learned Govt. Advocate also submits that there is no order u/s. 12 of the NSA passed by the Govt. of M.P. As per provisions of NSA, the first order of detention is liable to be placed before the Advisory Board and after its approval, the Government passes an order u/s. 12 of the NSA confirming the period of detention. In the present case, without there being any approval of the initial order of detention by the Board, the State Government has straightway extended the period of detention for further 3 months without referring about Section 12 of the NSA in it. Therefore, the procedure prescribed under the NSA has not been followed after passing the order of detention dated 26.5.2022 by the District Magistrate. The initial period of detention of 3 months has already been expired, therefore, order dated 24.6.2022 is unsustainable and is liable to be quashed.
By order dated 24.6.2022 the respondents have extended the period of detention for further 3 months by observing that there is no change in the situation therefore, the detenue is not liable to be released. The aforesaid order has been passed by the Secretary sitting at Bhopal. There is no material in the entire return to show as to whether any proposal was sent by the local administration about the current law and order situation. Unless any request is sent about law and order situation and request for extension of detention period, the authority sitting at Bhopal cannot assume the situation and pass an 4 order of extention of detention period. Therefore, on this ground also, order dated 24.6.2022 is liable to be quashed.
In view of the foregoing discussion this petition is allowed and order dated 26.5.2022 as well as order dated 24.6.2022 are liable to be and are hereby quashed.
(VIVEK RUSIA) (AMAR NATH (KESHARWANI))
JUDGE JUDGE
Alok
Digitally signed by ALOK GARGAV
Date: 2022.08.16 12:07:17 +05'30'