Rajasthan High Court - Jaipur
Omprakash @ Omi @ O. P. Son Of Shri ... vs The State Of Rajasthan on 1 December, 2022
Bench: Manindra Mohan Shrivastava, Vinod Kumar Bharwani
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Habeas Corpus Petition No. 217/2022
Omprakash @ Omi @ O. P. Son Of Shri Bhanaram, Aged About
26 Years, Resident Of Dhani Samota Ki Tan Shivpura, Police
Station Shrimadhopur, District Sikar (Raj.)
(At Present Detenue In Central Jail, Jaipur) Through His Brother
Manish Son Of Shri Bhanaram, Resident Of Dhani Samota Ki, Tan
Shivpura, Police Station Shrimadhour, District Sikar (Raj.).
----Petitioner
Versus
1. The State Of Rajasthan, Through The Secretary,
Department Of Home, Government Of Rajasthan,
Secretariat, Jaipur.
2. District Magistrate, Sikar, District Sikar (Raj.).
3. Superintendent Of Police, Sikar, District Sikar (Raj.).
----Respondents
For Petitioner(s) : Mr. Ripu Daman Singh Naruka For Respondent(s) : Mr. Rajendra Yadav, GA-cum-AAG HON'BLE MR. JUSTICE MANINDRA MOHAN SHRIVASTAVA HON'BLE MR. JUSTICE VINOD KUMAR BHARWANI Order 01/12/2022 Heard.
This petition is directed against preventive detention orders passed against the petitioner by the District Magistrate on 07.03.2022, approved by the State on 15.03.2022 and also confirmed by the Advisory Board under the provisions of the Rajasthan Prevention of Anti Social Activities Act of 2006.
The records of the case unfold that vide memo dated 05.03.2022, the Superintendent of Police, District Sikar forwarded to the District Magistrate Sikar information for initiating (Downloaded on 25/12/2022 at 03:50:47 PM) (2 of 9) [HC-217/2022] proceedings for preventive detention of the petitioner under Section 3 of the Act of 2006 which contained information relating to registration as many as nineteen criminal cases against the petitioner.
Vide order dated 07.03.2022 Collector & District Magistrate Sikar in exercise a power conferred under Section 3(2) of the Act of 2006 passed an order of preventive detention of the petitioner by declaring the petitioner to be a dangerous person as defined under Section 2(c) of the Act of 2006 and recording a satisfaction that with a view to prevent the petitioner from acting in a manner prejudicial to the maintenance of public order, it has become necessary to detain him. The Superintendent of Police was directed to serve a copy of order of the detention to the petitioner and also to the near relatives. It was also directed that the order of detention be forwarded to the State Government for approval within three days.
Vide order dated 15.03.2022, the State Government, in exercise of powers conferred under Section 3(3) of the Act of 2006 approved the order of detention passed by the District Magistrate.
The law requires the State Government to refer the matter to the Advisory Board and the case was referred by the Government to the Advisory Board constituted under the law. The records shows that the Advisory Board held sitting through Video Conference and the order of the detention was confirmed by the Advisory Board. Finally, this writ petition came to be filed by the petitioner.
Learned counsel for the petitioner laid attack to order of detention passed by the Collector & District Magistrate, approved by the State Government and confirmed by the Advisory Board, (Downloaded on 25/12/2022 at 03:50:47 PM) (3 of 9) [HC-217/2022] firstly, on the ground that statutory mandate of Section 9 of the Act of 2006 has been seriously violated in as much as no earliest opportunity of making representation against the order to the State Government was accorded to the petitioner. He would submit that the detaining authority was obliged under the law to afford earliest opportunity of making representation against the order of detention, so that the State Government could apply its mind before approving the order of detention. It is next submitted that though the petitioner was not afforded the opportunity, the brother of the petitioner had sent a representation to the Home Department of the State Government on 15.03.2022. But despite that, the State Government approved the order of detention and the order of detention nowhere mentions regarding the representation made by the brother of the petitioner much less affording of an opportunity of making a representation by the petitioner. Therefore, it is argued that there has been violation of mandatory provisions contained in Section 9 of the Act of 2006 and only on this ground, the order of the detention is liable to be set aside.
Learned counsel for the petitioner raised further contention with regard to correctness of the order of detention by submitting that in most of the cases, the FIRs were lodged against unknown persons and at a later stage of investigation, the petitioner was involved in the criminal cases which smacks of malafide action against the petitioner. It is also argued that in all FIRs, which have been lodged in the year 2020-2021, there has been long delay which also indicated that there is a calculated attempt to involve the petitioner in stale matters. Referring to various orders, which have been placed on records, granting bail, it has been submitted (Downloaded on 25/12/2022 at 03:50:47 PM) (4 of 9) [HC-217/2022] that invariably in all the cases, the petitioner was granted bail and in one of the case, he has been acquitted on the basis of compounding. Learned counsel for the petitioner would further argue that unless conviction results in individual criminal case, the power under Section 3 of the Act of 2006 could not be invoked.
Learned counsel for the petitioner further argued that without their being any application for cancellation of bail granted on the ground of misuse of liberty, the extreme action of preventive detention under the detention laws has been resorted to. Therefore, the order suffers from illegality.
He has relied upon the judgments of the Supreme Court of India in the cases of Mallada K Sri Ram Vs. The State of Telangana & Ors. Criminal Appeal No.561 of 2022 (Arising out of SLP(Crl) No.1788 of 2022) decided on 04.04.2022, Pushkar Mukherjee & Ors. Vs. The State of West Bengal, 1969 SCC (1) 10 and Rushikesh Tanaji Bhoite Vs. State of Maharashtra 2012 (2) SCC 72, judgment of the High Court of Jammu & Kashmir and Ladakh at Srinagar in the case of Sajad Ahmad Bhatt Vs. UT of J & K and Anr., WP (Crl) No.127/2022 decided on 07.11.2022, judgment of Gujarat High Court at Ahmedabad in the cases of Mazhar S/O Farookbhan Ansari Vs State of Gujarat R/Special Civil Application No.20835 of 2022 decided on 20.10.2022 and Vishal S/O Pravinbhai Jogel Vs. State of Gujarat R/Special Civil Application No.10600 of 2022 decided on 29.08.2022.
On the other hand, learned counsel appearing for the State would argue that the order of detention has been passed strictly in accordance with law. He submit that on the basis of the factual report with regard to registration of large number of criminal cases against the petitioner submitted by the Superintendent of (Downloaded on 25/12/2022 at 03:50:47 PM) (5 of 9) [HC-217/2022] Police before the District Magistrate, proceedings under Section 3 of the Act of 2006 were initiated. The Collector & District Magistrate took into consideration, number of criminal cases, the proximity and frequency of repetitive criminal antecedents which not only related to minor offences but also serious cases. Upon due application of mind the Collector & District Magistrate recorded satisfaction that it has become necessary to pass an order of preventive detention, so as to prevent the petitioner from acting in any manner prejudicial to the maintenance of public order. He would submit that the material placed on record satisfies the legal requirement of petitioner being habitual of committing or attempting to commit or abet commission of offences enumerated in clause (c) of Section 2 of the Act of 2006. Next submission of learned counsel for the State is that even if the brother of the petitioner submitted a representation, it has to be presumed that the State Government while approving the order passed by the District Magistrate, had looked into the representation and therefore, alleged violation of the mandate of Section 9 of the Act of 2006 does not prejudice the petitioner. It is lastly submitted that the entire case of the petitioner was examined by the Advisory Board and the Advisory Board after examination of all the material including affording of an opportunity of hearing to the detenue, confirmed the order of detention. Therefore, there is no ground made out to interfere with the order of detention.
We have heard learned counsel for the parties, perused the records, the proceedings of the Advisory board.
Though, number of grounds have been urged by the learned counsel for the petitioner, one of the ground to assail the order of the detention is that there is violation of mandate of Section 9 of (Downloaded on 25/12/2022 at 03:50:47 PM) (6 of 9) [HC-217/2022] the Act of 2006. In order to appreciate the submission, we considere it appropriate to reproduce the provisions contained in Section 9 of the Act of 2006 which reads as below:
"Grounds of order of detention to be disclosed to detenue.-
(1) When a person is detained in pursuance of a detention order the authority making the order shall, as soon as may be, but not later than three days from the date of detention, communicate to him the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order to the State Government.
(2) Nothing in sub-section (1) shall require the authority to disclose facts which it considers to be against the public interest to disclose."
The bare perusal of the provisions show that when a person is detained in pursuance of the detention order, the authority making the order shall, as soon as may be, but not a later than three days from the date of detention, communicate to the detenue the grounds on which the order has been made. But that is not the only requirement of Section 9. The provision further clearly states that the authority shall afford detenue, earliest opportunity of making representation against the order to the State Government. This provision on its rational, fair and logical interpretation would mean that the authority passing the order of the detention is obliged under the law to clearly inform in writing to the detenue that he has right to prefer a representation at the earliest occasion, to the State Government. This is so because the order passed by the District Magistrate, unless approved by the State Government, will come to an end after twelve days. This is (Downloaded on 25/12/2022 at 03:50:47 PM) (7 of 9) [HC-217/2022] clear from provisions contained in Section 3(3) of the Act of 2006 which reads as below:-.
"When any order is made under this section by an authorized officer he shall forthwith report 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, and no such order shall remain in force for more than twelve days after the making thereof, unless, in the meantime, it has been approved by the State Government."
Conjoint reading of provisions contained in Section 3(3) of the Act of 2006 and Section 9 of the Act of 2006 makes it clear that in order that the detention order continues beyond period of twelve days, it is required to be approved by the State Government. The Act of approval by the State Government is not an empty formality. The representation, if any made by the detenue, would be required to be taken into consideration by the State Government. Therefore, the mandate of Section 9 of the Act of 2006 that the authority passing the order of detention shall afford the detenue the earliest opportunity of making a representation against the detention order to the State Government is mandatory and not a directory provisions.
We are of the view that this opportunity of making a representation at the earliest by the detenue has not been afforded.
Merely because one of the relatives of the detenue has preferred a representation to the State Government on 15.03.2021, cannot be treated as compliance of the mandate of Section 9 of the Act of 2006 because the right to prefer representation as conferred under Section 9 of the Act of 2006 is (Downloaded on 25/12/2022 at 03:50:47 PM) (8 of 9) [HC-217/2022] personal to the detenue. For this, it is absolutely mandatory that the authority passing the order detention must inform the detenue that he has right to prefer a representation. Moreover, the use of the word "earliest opportunity of making a representation" further signifies the legislative intent that the detenue has to be afforded the opportunity of making the representation as soon as the order of detention is passed.
The respondent, in their reply, have nowhere stated that after passing the order of the detention, the competent authority complied with the mandate of law by affording the detenue earliest opportunity of making a representation to the State Government. This, in our opinion, vitiates the proceedings.
The order of the State Government passed on 15.03.2022, shows that it has approved the detention passed by the District Magistrate on 07.03.2022 and there is no whisper with regard to representation, if any, placed before it. Thus, serious prejudice has been caused to the petitioner on account of non-compliance of the mandatory provisions contained in Section 9 of the Act of 2006. The petitioner was deprived of making a representation to the State Government and without such opportunity having been granted, the State Government approved the order of the detention and thus, it has resulted in continuance of detention beyond twelve days and rendered it illegal and unconstitutional.
The Constitutional mandate and as enshrined in Article 21 of Constitution of India has been violated in this case as the petitioner's liberty has been taken away without the authority of the law. Subsequent confirmation of the order would not legalise the initial order of detention nor would make the detention after twelve days as legal and valid.
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(9 of 9) [HC-217/2022] In view of above consideration, it is not necessary for us to examine other issues which have been raised. We are of the view that the denial of opportunity of making a representation to the detenue has vitiated the detention beyond twelve days.
In the result, petition is allowed. Order of detention is set aside and the petitioner shall be released forthwith. (VINOD KUMAR BHARWANI),J (MANINDRA MOHAN SHRIVASTAVA),J Keshav/108 (Downloaded on 25/12/2022 at 03:50:47 PM) Powered by TCPDF (www.tcpdf.org)