Patna High Court - Orders
Munga Gope vs The State Of Bihar & Ors on 27 June, 2014
Author: Anjana Mishra
Bench: Anjana Mishra
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL WRIT JURISDICTION CASE NO.458 OF 2014
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1. Munga Gope Son of Late Bhullu Gope Resident of Village -
Rashalpur, P.S. - Fatuha, District - Patna
.... .... Petitioner/s
Versus
1. The State of Bihar
2. The Principal Secretary, Department of Home (Police),
Government of Bihar, Patna
3. Under Secretary, Department of Home (Police),
Government of Bihar, Patna
4. Deputy Secretary, Department of Home (Police),
Government of Bihar, Patna
5. District Magistrate, Patna
6. Superintendent of Adarsh Kara, Beur, Patna
.... .... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Ajay Kumar Thakur, 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)
5 27-06-2014By his letter, dated 18.01.2014, the Senior Superintendent of Police, Patna, addressed to respondent No. 5, namely, District Magistrate, Patna, 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. 5, namely, District Magistrate, Patna, made, on Patna High Court Cr. WJC No.458 of 2014 (5) dt.27-06-2014 2 24.01.2014, 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 23.01.2015.
2. With the order of detention so made as mentioned above, the petitioner was also served with a copy of the grounds of detention, contained in memo No. 320, dated 24.01.2014, issued by respondent No. 5, namely, District Magistrate, Patna. The said order of detention was approved by the Advisory Board on 06.03.2014 and, following approval of the Advisory Board, the State Government, by order, dated 12.03.2014, confirmed the said order of preventive detention, dated 24.01.2014.
3. The grounds of detention, which were furnished to the petitioner, mentions only two cases, namely, (i) Fatuha Police Station Case No. 242 of 2012, dated 14.09.2012, registered under Section 395 of the Indian Penal Code, and (ii) Fatuha Police Station Case No. 101 of 2012, dated 03.05.2012, registered under Section 392 of the Indian Penal Code.
4. Aggrieved by his detention, the petitioner has made this application, under Articles 226 and 227 of the Constitution of India, seeking to get set aside and Patna High Court Cr. WJC No.458 of 2014 (5) dt.27-06-2014 3 quashed not only the order of preventive detention, dated 24.01.2014, but also the order of approval, dated 06.03.2014, passed by the Advisory Board, Government of Bihar, and the order, dated 12.03.2014, passed by the State Government in exercise of power under Section 21 (1) read with Section 22 of Bihar Control of Crimes Act, 1981, confirming the order of detention, dated 24.01.2014, aforementioned and directing that the petitioner shall remain in detention till 23.01.2015.
5. We have heard Mr. Ajay Kumar Thakur, 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) Fatuha Police Station Case No. 242 of 2012 and (ii) Fatuha Police Station Case No. 101 of 2012.
7. In both the cases aforementioned, charge- sheets have been submitted against the petitioner. The petitioner is in custody and there is no indication in the impugned order, dated 24.01.2014, passed by respondent Patna High Court Cr. WJC No.458 of 2014 (5) dt.27-06-2014 4 No. 5, namely, District Magistrate, Patna, that the petitioner is likely to be released on bail.
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 24.01.2014, is a legally valid order of detention and if this order, dated 24.01.2014, 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 06.03.2014, was wholly illegal and the order, dated 12.03.2014, 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, Patna High Court Cr. WJC No.458 of 2014 (5) dt.27-06-2014 5 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 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 neither assertion nor any 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, Patna High Court Cr. WJC No.458 of 2014 (5) dt.27-06-2014 6 under the preventive detention law, would be illegal and that the decisions afore-cited appear to have followed the Constitution Bench decision in Haradhan Saha v. State of West Bengal, reported in (1975) 3 SCC 198, wherein it 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 Patna High Court Cr. WJC No.458 of 2014 (5) dt.27-06-2014 7 concluded as under:
"12. In our opinion, if details are given by 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 the alleged imminent possibility of the accused coming out on bail and there was no reliable Patna High Court Cr. WJC No.458 of 2014 (5) dt.27-06-2014 8 material to this effect. Hence, the detention order in question cannot be sustained."
(Emphasis is added)
14. 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 Patna High Court Cr. WJC No.458 of 2014 (5) dt.27-06-2014 9 (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.
15. 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.
16. 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.
17. 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 2012. These cases could not have been, admittedly, considered appropriate for detaining the petitioner inasmuch as distance of time rendered these cases stale Patna High Court Cr. WJC No.458 of 2014 (5) dt.27-06-2014 10 cases and could not have, therefore, been made the grounds for the petitioner's detention.
18. Coupled with the above, though the cases are of the year 2012, the fact remains that the last of these cases was lodged as far back as on 14.09.2012; whereas the order of detention has been made by respondent No. 5, namely, District Magistrate, Patna, on 24.01.2014, i.e., after lapse of about one-and-a-half years.
19. In other words, the cases, which have been referred to, and relied upon, by the District Magistrate, Patna, are of the year 2012. How the cases of the year 2012 could become relevant, in the year 2014, for the purpose of passing an order of preventive detention, has not been explained or mentioned in the impugned order of preventive detention nor is there any explanation discernible, in this regard, from the materials on record.
20. Since no offence is alleged to have been committed by the petitioner between 14.09.2012 (i.e., the date on which the last case against the petitioner was lodged) and 24.01.2014 (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 Patna High Court Cr. WJC No.458 of 2014 (5) dt.27-06-2014 11 commission of offences by the petitioner, in the year 2012, would have any bearing in the year 2014 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.
21. 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 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, Patna High Court Cr. WJC No.458 of 2014 (5) dt.27-06-2014 12 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 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 Patna High Court Cr. WJC No.458 of 2014 (5) dt.27-06-2014 13 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 single one of which is sufficient to vitiate a ground of detention."
(Emphasis is supplied)
22. Further-more, it has been correctly submitted, on behalf of the petitioner, that the petitioner was not furnished with any of the documents, which had become the basis for formation of the opinion of the detaining authority that the petitioner's detention was Patna High Court Cr. WJC No.458 of 2014 (5) dt.27-06-2014 14 warranted. We are, indeed, surprised to note that no material was available before the detaining authority in order to enable him to draw the inference that the petitioner was likely to be released on bail.
23. Though it has been agitated before us that the cases, which have been referred to, in the grounds of detention, would not lead to disturbance of public order, but are merely cases involving law and order, we do not enter into the correctness of this submission, when we are satisfied, for the reasons which we have assigned above, that the present order of detention is not sustainable in law and, in consequence thereof, the order, approving the petitioner's preventive detention and also the order confirming petitioner's detention must fail.
24. 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.
25. In the result and for the reasons discussed above, this writ petition succeeds. The impugned order of detention, dated 24.01.2014, the impugned order of Patna High Court Cr. WJC No.458 of 2014 (5) dt.27-06-2014 15 approval by the Advisory Board, dated 06.03.2014, and the impugned order of confirmation, dated 12.03.2014, are hereby set aside and quashed.
26. With the above observations and directions, this writ petition shall stand allowed.
27. No order as to costs.
(I. A. Ansari, J.) Anjana Mishra, J.: I agree.
(Anjana Mishra, J.)
Prabhakar Anand/
AFR
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