Rajasthan High Court - Jaipur
Rajesh Sharma vs State Of Raj And Ors on 31 March, 2017
Author: Mohammad Rafiq
Bench: Mohammad Rafiq
HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR
D. B. Habeas Corpus Writ Petition No. 235 / 2016
Rajesh Sharma @ Raju Pandit
Through
Rakesh Sharma S/o Shri Krishan Mohan Sharma, Aged about 32
years, by Caste Brahimin, R/o above Shop No. 8, 9, Nandpuri,
Hawa Sadak, P.S. Sodala, Jaipur Metropolitan (South), Jaipur.
(As his brother and his next friend)
----Petitioner/Detenue
Versus
1. State of Rajasthan through Chief Secretary, Govt. Secretariat,
Near Statue Circle, Jaipur.
2. The Shasan Sanyukt Sachiv, Grih (Aapada Prabhandhan)
Vibhag
3. Principal Secretary, Law Department, Govt. of Rajasthan, Govt.
Secretariat, Near Statue Circle, Jaipur.
4. The ACS (Home), State of Rajasthan, Govt. Secretariat, Near
Statue Circle, Jaipur.
5. Commissioner of Police, Near GPO Circle, Jaipur Metropolitan,
Jaipur.
----Respondents
_____________________________________________________
For Petitioner(s) : Dr. Mithlesh Kumar.
For Respondent(s) : Mr. B.N. Sandu, Additional Advocate General.
_____________________________________________________
HON'BLE MR. JUSTICE MOHAMMAD RAFIQ
HON'BLE MR. JUSTICE DINESH CHANDRA SOMANI
REPORTABLE
Order
31/03/2017
(PER HON'BLE MR. MOHAMMAD RAFIQ,J.)
This habeas corpus petition has been filed by Rajesh
Sharma @ Raju Pandit through his brother and next friend Rakesh
Sharma, challenging initial order of detention of the petitioner
dated 28.09.2016 passed by Executive Magistrate cum Police
(2 of 29)
[HC-235/2016]
Commissioner, Jaipur Metropolitan, Jaipur under Section 3(2) of
the Rajasthan Prevention of Anti-Social Activities Act, 2006(for
short 'the PASA Act') and order dated 06.10.2016 passed by the
Joint Secretary to the Government, Home(Disaster Management)
Department, Jaipur under Section 3(3) of the PASA Act, whereby
aforesaid order of preventive detention of the petitioner was
approved by the State Government. During pendency of the
habeas corpus petition, order of preventive detention of the
petitioner was confirmed by the State Government vide order
dated 15.11.2016 under Section 13(1) of the PASA Act on
recommendation of Advisory Board for a period of one year from
28.09.2016 to 27.09.2017. The petitioner has by filing application
raised certain additional grounds to challenge the same, which
have been taken on record.
Dr. Mithlesh Kumar, learned counsel for the petitioner
argued that the Executive Magistrate cum Commissioner of Police, Jaipur has mechanically passed the order of detention of the petitioner under Section 3(2) of the PASA Act merely because 28 criminal cases were registered against the petitioner during the past 14 years, last one of which was registered on 04.02.2014. The order is non-speaking because the authorities have failed to apply their mind to the material on record inasmuch as they failed to consider facts and law in their true perspective. Mere fact that the petitioner has got 28 criminal cases registered against him could not be a reason to presume that the petitioner has become menace to the society or that he is acting in a manner, which is prejudicial to maintenance of public order. Most of the offences (3 of 29) [HC-235/2016] alleged to have been committed by the petitioner are of petty nature, being under Sections 147, 224, 225, 255B, 186, 120B, 327, 341, 323, 307, 382, 384, 307, 504, 399, 402, 379, 452, 392, 458, 504, 506 IPC. Only few cases were such, which are of graver offences. For example, there was one case under Section 307 IPC registered in 2002 in which the petitioner has been acquitted vide judgment dated 02.12.2003. In another case under Section 307 IPC registered against the petitioner in 2003, the petitioner was acquitted vide judgment dated 29.04.2005. There was another case registered against the petitioner under Section 307 IPC in which the petitioner was also acquitted vide judgment dated 09.09.2008. In another case under Section 307 IPC, the petitioner has been acquitted vide judgment dated 22.04.2013. Only two cases under Section 307 IPC registered in 2010 and 2014 are pending trial. Last case registered against the petitioner was for offence under Section 332 and 353 IPC in 2015. Apart from above referred to 28 criminal cases, out of other five criminal proceedings initiated against the petitioner, one was of Section 9 of the Rajasthan Gunda Control Act and four were under Section 110, 107, 116(3), 151 Cr.P.C., in three of which, proceedings were dropped. Learned counsel, therefore, argued that activities of the petitioner in totality could not be in any manner said to be prejudicial to the maintenance of public order or such where he could be described as a dangerous person. All three cases merely attracts the law and order situation of the society and do not in any manner affect the public order. Conduct of the petitioner did not have any adverse impact on the tempo of the society, so as to (4 of 29) [HC-235/2016] effect the public order. Besides, there is no live connection between the activities of the petitioner and its impact on the society. Learned counsel in support of his argument relied upon the judgment of the Supreme Court in K.K. Saravana Babu Vs. State of Tamil Nadu & Another, (2008) 9 SCC 89.
Learned counsel argued that the petitioner filed present habeas corpus petition before this Court on 24.10.2016 and till that date, the detenu was not presented before the Advisory Board as required by Section 11 of the PASA Act, i.e. within three weeks from the date of detention of a person. The respondents failed to place the case of the detenu/petitioner before the Advisory Board as mandated by Section 11 of the Act of 2006 within a period of three weeks. The petitioner through his brother filed present habeas corpus petition on 24.10.2016 and he handed over his entire file containing all the documents to his counsel for preparation of his petition. He was thus not having relevant documents in his possession when he appeared before the Advisory Board and therefore, he could not make effective representation. As to the meaning of 'representation' learned counsel for the petitioner referred to P. Ramanatha Aiyar's Advanced Law Lexicon, 5th Edition, Halsbury, 3rd Editition, Vol. 26 page 186 to argue that a representation is a statement made by a representor to a representee and relating by way of affirmation, denial, description or otherwise to a matter of fact. The statement may be oral or in writing or arise by implication from words or conduct. It is clear from Annexure-R/9 that the petitioner has not been provided effective opportunity of presenting his (5 of 29) [HC-235/2016] representation to the Advisory Board as contemplated under Section 11 of the Rajasthan PASA Act within three weeks.
Learned counsel for the petitioner argued that competent authority has not applied its mind to the judgments and referred to only FIRs, charge sheets, criminal cases registered against the petitioner, details of disposal of cases by the courts to arrive at the conclusion that acquittal of the petitioner was recorded not on merits but on other reasons such as compromise and witnesses turning hostile. Satisfaction could have been recorded only after examining copies of the judgments of the courts in the criminal cases against the petitioner and applying its mind to said decisions. It is clear from the grounds of detention that copies of the judgments of the cases mentioned in grounds enumerated at S.No. 1, 2, 3, 7, 10, 14 and 17 of the chart were not placed before the detaining authority or government authority, which passed order of preventive detention.
Learned counsel for the petitioner argued that the petitioner was produced before the Advisory Board by Commissioner of Police with Deputy Commissioner of Police(South), Jaipur and other police officers. Presence of such senior government officials in the proceedings of the Advisory Board is violative of Article 14 of the Constitution of India. It has prejudiced the defence of the petitioner, who did not have the facility to be represented through legally trained persons. Learned counsel for the petitioner, in support of his argument, has relied upon the judgment of the Supreme Court in A.K. Roy Vs. Union of India & Others, (1982) 1 SCC 271 and Rekha Vs. State of (6 of 29) [HC-235/2016] Tamil Nadu through Secretary to Government & Others, (2011) 5 SCC 244.
Dr. Mithlesh Kumar, learned counsel argued that Commissioner of Police is not competent to pass order of preventive detention because Section 18 of the PASA Act does not include the Commissioner of Police within the purview of "any officer subordinate to it" referred to therein. It is argued that Rajasthan PASA Act was replicated from the Guajarat Prevention of Anti-Social Activities Act, 1985(for short 'the Gujarat PASA Act') where definition of "authorized officer" under Section 2(a) included both District Magistrate or a Commissioner of Police, authorised under sub-section (2) of Section 3 to exercise the powers conferred under sub-section (1) of that Section. In the Rajasthan PASA Act, corresponding provision contained under Section 2(a) provides that "authorised Officer" means a District Magistrate authorised under sub-section (2) of section 3 to exercise the powers conferred under sub-section (1) of that section. Commissioner of Police has not therefore been purposely included within the purview of authorised officer.
Referring to Notification dated 04.01.2011 of the Government issued under Section 20(5) Cr.P.C. read with Section 15 of the Rajasthan Police Act, 2007, empowering Commissioner of Police to exercise in relation to a metropolitan area the powers so far exercisable by the District Magistrate and other Executive Magistrates, as amended from time to time, learned counsel argued that inclusion of Rajasthan PASA Act within the purview of the said notification suffers from legal incompetence because the (7 of 29) [HC-235/2016] main Act received assent of the Hon'ble President on 25.02.2008 and was published in Rajasthan Gazette dated 05.03.2008, but the aforesaid notification has not been sent to President for his assent under Article 254(2) of the Constitution of India. Learned counsel referred to settled principle of law-sublato fundamento cadit opus which means that if the foundation is being moved, the superstructure itself falls and particularly in this issue the order which has been passed by Commissioner of Police is void ab initio. When the initial notification dated 04.01.2011 through which the power has been given to the Commissioner of Police to impose Rajasthan PASA Act goes, all the notifications issued subsequently by the Government of Rajasthan also nullifies. A conjoint reading of the provisions of Article 246(2), 254(2) and 255(C) of the Constitution of India leads to irresistible conclusion that the laws passed by the legislature under Schedule VII list III, Entry no. 3 of the Constitutions of India without seeking assent of the President of India is void ab initio.
Dr. Mithlesh Kumar, learned counsel for the petitioner argued that State Government was incompetent in issuing notification dated 04.01.2011 under Section 20(5) of the Code of Criminal Procedure read with Section 15(4) of the Rajasthan Police Act, 2007 empowering the Commissioner of Police to exercise powers so far as exercisable by the District Magistrate and other Executive Magistrates. Powers of the District Magistrate have been straight away conferred upon the Commissioner of Police, without first appointing him as Executive Magistrate with reference to sub-section (1) of Section 20 Cr.P.C. and then appointing him (8 of 29) [HC-235/2016] as Additional District Magistrate with reference to sub-section (2) of Section 20 Cr.P.C. It is only thereupon that the powers of District Magistrate as per sub-section (5) of Section 20 Cr.P.C. could have been conferred upon the Commissioner of Police. Learned counsel, in support of his arguments relied upon the judgment of Bombay High Court in Suresh Sham Singh & Others Vs. Shri A.N. Roy, Commissioner of Police and Others, 2005 (2) Bom. C.R.(Cri.) 513 and argued that therein State of Maharashtra vide notice dated 01.10.1999 issued under sub-section (5) read with sub-sections (1) and (2) of Section 20 of the Code of Criminal Procedure, conferred on the Commissioner of Police, Brihan Mumbai, the powers of the District Magistrate within the metropolitan area of Brihan Mumbai, for the purposes of Section 18 and 20 of the Immoral Traffic (Prevention) Act, 1956. The Bombay High Court held that Section 20 Cr.P.C. does not empower the Government to confer powers of District Magistrate upon the Police Commissioner either in any metropolitan area or otherwise. On the contrary, sub-section (1) of Section 20 Cr.P.C. specifically restricts the appointment of a District Magistrate from amongst the Executive Magistrates. Sub-section (2) of Section 20 Cr.P.C. relates to the appointment of an Additional District Magistrate and that too from amongst any one of the Executive Magistrates and sub-section (5) of Section 20 Cr.P.C. merely speaks of conferment of powers of an Executive Magistrate. Initial order of eviction passed by the Police Commissioner therein under Section 18 of the aforesaid Act was quashed by the Bombay High Court with the finding that such order passed by the Police (9 of 29) [HC-235/2016] Commissioner was void ab initio. The Supreme Court in A.N. Roy, Commissioner of Police & Another Vs. Suresh Sham Singh, (2006) 5 SCC 745 substantially affirmed aforesaid judgment of the Bombay High Court, except to the extent of findings no. 5 and 6 to the effect that the State Government's power to appoint any person as an Executive Magistrate in terms of the provisions of law under sub-section (1) of Section 20 of the Code does not include the power to appoint the Commissioner of Police as an Executive Magistrate and the Commissioner of Police can only be conferred with the powers of the Executive Magistrate in terms of sub-section (5) of Section 20 of the Code, but is not entitled to be appointed even as an Executive Magistrate under sub-section (1) of Section 20 of the Code.
Learned counsel for the petitioner also relied upon the judgment of the Supreme Court in Raisuddin Alias Babu Tamchi Vs. State of Uttar Pradesh & Another, (1983) 4 SCC 537; judgments of this Court in Rupnarayan @ Rupa Meena through Smt. Suman Meena Vs. The State of Rajasthan & Others, 2015 (2) WLC (Raj.) 81; Imran @ Katya Vs. State of Rajasthan & Others(D.B. Civil Habeas Corpus Petition No. 58/2015 decided on 06.04.2015); Vishram Gurjar Vs. the The State of Rajasthan(D.B. Habeas Corpus Petition No. 243/2016 decided on 13.12.2016); Ramprakash @ Ramakant @ Ravi Kant Vs. The State of Rajasthan & Others (D.B. Habeas Corpus Petition No. 247/2016 decided on 17.01.2017).
(10 of 29) [HC-235/2016] Mr. B.N. Sandu, learned Additional Advocate General appearing on behalf of the respondent-State opposed the petition and argued that initial order of preventive detention of the petitioner was issued on 28.09.2016 which is legal, valid and according to the provisions of law. Information was given to petitioner's brother Rakesh Sharma on the same day. Copy of order dated 28.09.2016 was also endorsed to Superintendent, Central Jail, Jaipur, the petitioner and Deputy Commissioner of Police(South) Jaipur. The Government in its Department of Home Gr. IX passed order of approval of preventive detention of the petitioner on 06.10.2016. The petitioner was informed about the meeting of Advisory Board vide letter dated 24.10.2016, which was to take place on 02.11.2016. Learned Additional Advocate General submitted that there are sufficient grounds to proceed against the petitioner as per Section 3 of the Rajasthan PASA Act. It is argued that there are 28 criminal cases registered against the petitioner and he has involved himself in various criminal activities continuously since 02.03.2000, lastly on 09.12.2015. Nature of criminal cases registered against the petitioner and his continuous involvement in criminal activities bring the petitioner within definition of "dangerous person" as defined under Section 2(c) of the Rajasthan PASA Act.
Although the petitioner was acquitted in some criminal cases, but the reason of acquittal was either the witnesses did not support the case of the prosecution due to fear of the petitioner and turned hostile or even compromised the matter. The petitioner was convicted for offences under Sections 147 and 323 vide judgment (11 of 29) [HC-235/2016] dated 27.02.2002, but he was extended benefit of Section 3 of the Probation of Offenders Act. Thereafter, the petitioner was convicted under Section 19/54 of the Excise Act vide judgment dated 31.03.2004; under Section 4/25 of the Arms Act vide judgment dated 02.05.2008 and sentenced to simple imprisonment of two months. Besides, 16 criminal cases are still pending against the petitioner, which also includes offence under Section 307 IPC. Five proceedings under Section 3 of the Rajasthan Gunda Control Act, Section 110, 151, 107 and 116(3) Cr.P.C. were initiated against the petitioner. In most of the criminal cases, no one could muster courage to come forward and depose against the petitioner, which speaks volumes of the fear psychosis the petitioner has generated in the society.
Learned Additional Advocate General further submitted that Commissionerate system was not introduced in the State of Rajasthan when Rajasthan PASA Act came into force in 2006, which was introduced in the year 2009. In the State of Gujarat, however, Commissioneate system was already in existence when Gujarat PASA Act came into force. Therefore, Commissioner of Police was included into the definition of authorised officer in the relevant Act. But this deficiency would not in any manner diminish competence of the Commissioner of Police because the Government has issued notification in exercise of the powers conferred under Section 20(5) Cr.P.C. read with Section 15(4) of the Rajasthan Police Act, 2007 empowering the Commissioner of Police to exercise in relation to a metropolitan area the powers so (12 of 29) [HC-235/2016] far exercisable by the District Magistrate and other Executive Magistrates under the Rajasthan PASA Act.
Learned Additional Advocate General relied upon the judgment of the Supreme Court in Raisuddin Alias Babu Tamchi(supra) wherein the Supreme Court while interpreting words 'placed before' in the context of Section 10 and 11 of the National Security Act, 1980 held that if the grounds of detention with other material has been forwarded to the Advisory Board within the requisite time of three weeks, that would be sufficient compliance of the aforesaid provision. Learned Additional Advocate General referred to affidavit of Mr. Nem Singh, Assistant Commissioner of Police Sodala, Jaipur South and argued that the Government wrote letter dated 17.10.2016 to the Advisory Board within three weeks of passing of order of detention as per provisions of Section 11 of the Rajasthan PASA Act. Said letter was received by the Advisory Board on 17.10.2016 itself. The Advisory Board proposed to convene to its meeting on 02.11.2016, which was informed to Joint Secretary to Government of Rajasthan Home Gr. IX Department, Secretariat, Jaipur vide letter No. 397 dated 18.10.2016 and it was received in the diary dated 19.10.2016. Report of the Advisory Board was received on 02.11.2016 i.e.within 34 days, which was well within 50 days as prescribed by Section 15 of the Rajasthan PASA Act.
Mr. B.N. Sandu, learned Additional Advocate General argued that notification dated 04.01.2011 is perfectly just and valid. There is no impediment in law in conferring powers of District Magistrate upon Commissioner of Police. Judgment of (13 of 29) [HC-235/2016] Bombay High Court in Suresh Sham Singh and Others(supra) has been reversed by the Supreme Court in A.N. Roy(supra). Learned Additional Advocate General argued that the Supreme Court saved that order impugned therein by directing maintenance of status quo ante till the Commissioner of Police is appointed by the State Government as Executive Magistrate and then further appointed as District Magistrate so as to exercise powers under Sections 18 and 20 of the Immoral Traffic (Prevention) Act, 1956. Learned Additional Advocate General therefore alternatively submitted that if any such lacuna is found in the notification dated 04.01.2011, this Court may grant minimum one month's time to rectify the same, as was done by the Supreme Court in A.N. Roy, Commissioner of Police & Another(supra).
We have given our anxious consideration to rival submissions and perused the material on record as also original record produced by the respondents for consideration before the Court.
This Court does not propose to examine the matter on various other grounds urged by learned counsel for the parties, but proceeds to examine the validity of impugned orders only on two grounds, firstly that the grounds on which the order of preventive detention of the petitioner was passed were not placed before the Advisory Board within three weeks from the date of detention of the petitioner and secondly that the power of District Magistrate under sub-section (5) of Section 20 Cr.P.C. could not have been straight away conferred upon the Commissioner of Police.
(14 of 29) [HC-235/2016] Perusal of the record reveals that order of preventive detention of the petitioner was passed on 28.09.2016 and approval order of preventive detention was passed by the Government on 06.10.2016. Grounds of detention with other record were forwarded to the Advisory Board vide letter dated 17.10.2016, which was received by the Private Secretary to the Chairman of the Advisory Board on 17.10.2016 itself, who vide letter dated 18.10.2016 addressed to Joint Secretary to Government of Rajsthan, Home(Gr.IX) Deptt. Government Secretariat, Jaipur conveyed that meeting of the Advisory Board was scheduled to take place on 02.11.2016 at 4.30 P.M. It is, therefore, that the said Joint Secretary vide letter dated 19.10.2016 addressed to Commissioner of Police, Deputy Commissioner of Police(South) and Superintendent, Central Jail, Jaipur intimated about date and time of the meeting with copy to Director General of Prisons, Rajasthan. Report of the Advisory Board dated 02.11.2016 was forwarded to the Government vide letter dated 08.11.2016 in which the Advisory Board recommended for confirmation of the preventive detention of the petitioner.
Section 11 of the PASA Act reads as under:
"11. Reference to Advisory Board.-In every case where a detention order has been made under this Act the State Government shall, within three weeks from the date of detention of a person under the order, place before the Advisory Board constituted by it under Section 10 the grounds on which the order has been made and the representation, if any, made by the "detenue"
and where the order has been made by an authorized officer, also the report made by such officer under sub-section (3) of section 3."
(15 of 29) [HC-235/2016] What would be the meaning of connotation, "place before" has been deliberated upon and decided by the Supreme Court in Raisuddin alias Babu Tamchi(supra). Therein also, analogous provision contained in Section 10 of the National Security Act, 1980, which cast a duty on the appropriate Government to place before the Advisory Board within three weeks from the date of detention, the relevant papers pertaining to the detention was interpreted. Similar argument was made before the Supreme Court that there has been violation of provisions of Section 10 of the National Security Act, 1980 because the Advisory Board has not considered the case of the petitioner therein within three weeks from the date of detention. Repelling that argument, the Supreme Court in para 5 of the judgment held as under:
"5.
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx Under the section, a duty is cast on the appropriate Government to "place before" the Advisory Board constituted under Section 9 within three weeks from the date of detention, the grounds on which the order of detention has been made and the representation, if any, made by the person affected by the order. The petitioner's counsel wanted us to interpret the words "place before the Advisory Board" as meaning "get considered by the Advisory Board". We are wholly unable to accede to this argument. Under the terms of the section, the duty cast on the appropriate Government is to forward to the Advisory Board constituted under Section 9 within three weeks from the date of detention, the papers pertaining to the detention of the detenu consisting of the grounds on which the order has been made, the representation, if any, made by the person affected by the order, etc. It is to be remembered that the Advisory Board is not an entity subordinate to the Government. It is a wholly independent body consisting of persons (16 of 29) [HC-235/2016] who are or have been or are qualified to be appointed as Judges of a High Court. It is entirely for the Advisory Board to regulate its Schedule of holding meetings and conducting its business in accordance with the procedure laid down Under Section 11 of the Act which has specified a time limit of seven weeks from the date of detention for the submission of the Board's report to the appropriate Government. It is, therefore, wholly wrong to interpret the words "place before" as meaning anything more than forward to or submit before the Advisory Board the relevant papers relating to the detention of the detenu. In the present case, the Advisory Board has disposed of the Petitioner's case well within the period of seven weeks specified in sub-section (1) of Section 11 of the Act. This contention of the petitioner is also, therefore, devoid of substance."
As per the provisions of Section 12(1) of the PASA Act, the Advisory Board has to give its report to the State Government within 50 days from the date of detention of the detenue. In the present case, the petitioner was detained on 28.09.2016 and the Advisory Board sent its report to State Government on 02.11.2016, i.e. well within 50 days. Section 11 and 12 of the PASA Act were thus fully complied with. Argument of the petitioner in this respect is, therefore, rejected.
Coming now to the second contention that powers of District Magistrate could not have been straight away conferred upon the Commissioner of Police, unless he was first appointed as Executive Magistrate and then conferred with powers of Additional District Magistrate. Powers of District Magistrate were required to be conferred on the Commissioner of Police because it is he, who has been made Authorised Officer in the PASA Act. Authorised officer has been defined under Section 2(a) of PASA Act to mean a District Magistrate authorised under sub-section (2) of section 3 to exercise the powers conferred under sub-section (1) of that (17 of 29) [HC-235/2016] section. Sub-section (2) of Section 3 of PASA Act inter alia provides that if, having regard to the circumstances prevailing or likely to prevail in any area within the local limits of the jurisdiction of a District Magistrate, the State Government is satisfied that it is necessary so to do, it may, by order in writing, direct that the District Magistrate, may also, if satisfied as provided in sub-section (1), exercise the powers conferred by the said sub-section.
In the present case, notification dated 04.01.2011 was issued by the State Government empowering the Commissioner of Police powers to exercise powers in relation to a metropolitan area so far exercisable by the District Magistrate and other Executive Magistrates under 25 different enactments including Rajasthan PASA Act mentioned at Serial No. 24 therein. Said notification has been issued under sub-section (5) of Section 20 Cr.P.C. read with sub-section (4) of Section 15 of the Rajasthan Police Act, 2007. Section 15 of the Rajasthan Police Act inter alia provides that the State Government shall appoint a Commissioner of Police in a Metropolitan area, who shall be an officer not below the rank of Inspector General of Police. Sub-section (4) of Section 15 of the Rajasthan Police Act provides that the Commissioner of Police appointed under sub-section (1) shall exercise such powers, perform such functions and discharge such duties and shall have such responsibility and authority as may be determined by the State Government by a general or special order. Section 15(4) of the Rajasthan Police Act is, therefore, a general provision, which does not improve the case of the respondents in so far as (18 of 29) [HC-235/2016] conferment of powers of District Magistrate upon the Commissioner of Police, is concerned. Then comes sub-section (5) of Section 20 Cr.P.C. which has been invoked by the State Government for conferment of such powers on Commissioner of Police. Section 20 Cr.P.C. details out the scheme in respect of Executive Magistrate, which is reproduced hereunder:
"20. Executive Magistrate.-(1) In every district and in every metropolitan area, the State Government may appoint as many persons as it thinks fit to be Executive Magistrates and shall appoint one of them to be the District Magistrate. (2) The State Government may appoint any Executive Magistrate to be an Additional District Magistrate, and such Magistrate shall have [such] of the powers of a District Magistrate under this Code or under any other law for the time being in force, [as may be directed by the State Government].
(3) Whenever, in consequence of the office of a District Magistrate becoming vacant, any officer succeeds temporarily to the executive administration of the district, such officer shall, pending the orders of the State Government, exercise all the powers and perform all the duties respectively conferred and imposed by this Code on the District Magistrate.
(4) The State Government may place an Executive Magistrate in charge of a sub-division and may relieve him of the charge as occasion requires; and the Magistrate so placed in charge of a sub-division shall be called the Sub-
Divisional Magistrate.
[(4-A) The State Government may, by general or special order and subject to such control and directions as it may deem fit to impose, delegate its powers under sub-section (4) to the District Magistrate.] (5) Nothing in this section shall preclude the State Government from conferring, under any law for the time being in force, on a Commissioner of Police, all or any of the powers of an Executive Magistrate in relation to a metropolitan area."
As would be clear from reading of the aforestated provision, Section 20 Cr.P.C. provides a complete scheme with reference to appointment of Executive Magistrate. Sub-section (1) (19 of 29) [HC-235/2016] of Section 20 Cr.P.C. provides that in every district and in every metropolitan area, the State Government may appoint as many persons as it thinks fit, to be Executive Magistrates and shall appoint one of them, to be the District Magistrate. It is evidently clear that for an officer to be appointed as District Magistrate, he has to be first appointed as Executive Magistrate and in every district and metropolitan area, there may be multiple numbers of Executive Magistrates and only one of them could be appointed as District Magistrate. Sub-section (2) of Section 20 Cr.P.C. provides that the State Government may appoint any Executive Magistrate to be an Additional District Magistrate, and such Magistrate shall have powers of a District Magistrate under this Code or under any other law for the time being in force as may be directed by the State Government. True it is that sub-section (5) of Section 20 Cr.P.C. actually provides that nothing in this section shall preclude the State Government from conferring, under any law for the time being in force, on a Commissioner of Police, all or any of the powers of an Executive Magistrate in relation to a metropolitan area. But the question arises whether State Government was justified in straight away conferring powers of District Magistrate upon the Commissioner of Police, empowering him to exercise such powers in relation to metropolitan area of Jaipur for the purpose of powers exercisable by District Magistrate and other Executives Magistrates. Examination of the scheme of Section 20 of the Cr.P.C. makes it clear that powers of District Magistrate can not be directly conferred upon Commissioner of Police unless and until he has not been first appointed as an Executive Magistrate (20 of 29) [HC-235/2016] and then as Additional District Magistrate by the State Government.
Similar question arose for consideration before Bombay High Court in Suresh Sham Singh & Others(supra) wherein notification dated 01.10.1999 was issued by the State of Maharashtra conferring upon the Commissioner of Police, Brihan Mumbai powers of District Magistrate within the metropolitan area for the purpose of Section 18 and 20 of the Immoral Traffic (Prevention) Act, 1956. Such notification was issued in exercise of powers conferred by sub-section (5) read with sub-sections (1) and (2) of Section 20 Cr.P.C. The object of conferment of aforesaid power upon the Police Commissioner was to check the alarming rise in the incidences of trafficking of minor girls and women to the cities, luring of young girls to the cities who ended up in brothels, backlog of cases piling up and resultant alarming increase in AIDS and other venereal diseases in cities. The Commissioner of Police, pursuant to aforesaid notification, constituted the task force, which conducted an effective raid and ordered eviction or closure of the brothels as preventive steps to curb the menace, which has achieved desired results. Proposed notice under Section 18(1) of the Immoral Traffic (Prevention) Act, 1956 was issued to the respondents, who submitted reply thereto. It was thereafter that the Police Commissioner passed order of eviction dated 28.06.2004, which was challenged before the Bombay High Court. The Bombay High Court vide judgment dated 06.05.2005 set aside said order passed by the Commissioner of Police and held that notification dated 01.10.1999 pursuant to (21 of 29) [HC-235/2016] which order of eviction was passed was void ab initio and bad in law. The aforesaid notification does not empower the Commissioner of Police, Brihan Mumbai to assume the jurisdiction of the District Magistrate for the purposes of Sections 18 and 20 of the Immoral Traffic (Prevention) Act, 1956. The Bombay High Court in para 11 and 17 of the judgment observed as under:
"11. Very fact that in case of Commissioner of Police and that too restricted in the metropolitan area, a specific provision has been made in sub- section (5) in spite of a general provision being there in sub-section (1) empowering the State Government to appoint any person as an Executive Magistrate, that itself discloses the intention of the legislature to classify the Commissioner of Police to be different from the person who can be appointed as an Executive Magistrate in exercise of the powers under sub-section (1). Otherwise, there was absolutely no need of incorporating a specific provision under sub-section (5) in relation to Commissioner of Police. Otherwise, even in the absence of sub-section (5) a Commissioner of Police could have been appointed as an Executive Magistrate. The legislature in its wisdom, however, has excluded the office of the Commissioner of Police under sub-section (1) while reserving the power to the State Government to confer the powers of an Executive Magistrate upon the Commissioner of Police in relation to a metropolitan area. In other words, it discloses that in case of the office of the Commissioner of Police only all or any of the powers of an Executive Magistrate can be conferred upon him and that too in relation to a metropolitan area but the Commissioner of Police cannot be appointed as an Executive Magistrate. The appointment of a person in an office is different from the conferment of powers attached to an office upon the person. In fact the decision sought to be relied on by the learned A.P.P., rather than assisting the contention on the part of the respondents, justifies the view that we are taking in the matter.
17. Plain reading of the said Notification discloses that undoubtedly the Government was seeking to exercise the powers under sub-section (5) read with sub-section (1) and (2) of Section 20 of the Code to confer upon the Commissioner of Police the powers of the District Magistrate within the (22 of 29) [HC-235/2016] metropolitan area of Brihan Mumbai for the purpose of Section 18 of the said Act. However, as already seen above, the provisions of law comprised under Section 20 of the Code nowhere speak of the Government being empowered to confer the powers of the District Magistrate upon the Police Commissioner either in any metropolitan area or otherwise. On the contrary, sub-section (1) specifically restricts the appointment of District Magistrate from amongst the Executive Magistrates. The sub-section (2) relates to the appointment of an Additional District Magistrate and that too any one of the Executive Magistrates and the sub-section (5) merely speaks of conferment of powers of an Executive Magistrate. The Notification nowhere discloses either conferment of the powers of the Executive Magistrate or even the appointment of the Police Commissioner as the Executive Magistrate. As already stated, there cannot be appointment of District Magistrate unless the person is primarily an Executive Magistrate. It is settled law that when the statute defines the limits of the power that can be conferred upon a specific officer, the conferment of power has to be within the parameters prescribed under the statute."
The Bombay High Court, after discussing the law on the subject, in para 25 of the judgment recorded the following findings:
"(i) The District Magistrate or the Additional District Magistrate can be appointed out of the Executive Magistrate so appointed under Section 20(1) of the Code.
(ii) The Additional District Magistrate can exercise the powers of the District Magistrate to the extent directed by the State Government.
(iii) Unless a person is appointed as an Executive Magistrate, he can neither be appointed as a District Magistrate nor an Additional District Magistrate.
(iv) In relation to a metropolitan area the powers of an Executive Magistrate can be conferred upon the Commissioner of Police.
(v) The State Government's power to appoint any person as an Executive Magistrate in terms of the provisions of law under sub-section (1) of Section 20 of the Code does not include the power to (23 of 29) [HC-235/2016] appoint the Commissioner of Police as an Executive Magistrate.
(vi) As far as the Commissioner of Police is concerned, he can only be conferred with the powers of the Executive Magistrate in terms of sub- section (5) of Section 20 of the Code but is not entitled to be appointed even as an Executive Magistrate under sub-section (1) of Section 20 of the Code.
(vii) The District Magistrate, Additional District Magistrate and the Executive Magistrate are three different offices."
The matter was taken to the Supreme Court where the argument of the State of Maharashtra was that since the State Government has issued notification in exercise of powers of sub- section (5) read with sub-sections (1) and (2) of Section 20 Cr.P.C., requisite requirement should be deemed complied with. The Supreme Court upturned the findings of Point no. (v) and (vi) but at the same time, it did not interfere with what was held by the Bombay High Court in Point No. (i) to (v). The Supreme Court therefore approved the judgment of the Bombay High Court holding that the District Magistrate or the Additional District Magistrate can be appointed out of the Executive Magistrate so appointed under Section 20(1) of the Code. The Additional District Magistrate can exercise the powers of the District Magistrate to the extent directed by the State Government. Unless a person is appointed as an Executive Magistrate, he can neither be appointed as a District Magistrate nor an Additional District Magistrate. In relation to a metropolitan area, the powers of an Executive Magistrate can be conferred upon the Commissioner of Police. The Supreme Court in Para 21 and 22 of the judgment held as under:
(24 of 29) [HC-235/2016] "21. We have already noticed the provisions of sub-section (1) and (2) of Section 20 of the Code.
Sub-section (1) deals with the power of the State Government to appoint Executive Magistrates as many persons as it thinks fit in every district and in every metropolitan area. Sub-section (2) of Section 20 deals with the power of the State Government to appoint any Executive Magistrate to be an Additional District Magistrate and such Magistrate shall have the powers of a District Magistrate under the Code or under any other law for the time being in force as may be directed by the State Government. We agree with the view of the High Court that unless a person is appointed as an Executive Magistrate he cannot be appointed as either an Additional District Magistrate or the District Magistrate. To this extent, the High Court's view is correct. But the views of the High Court contained in sub clause (v) and (vi) of the findings, in our view, are not correct.
22. Under sub-section (1) of Section 20 the Government has got the power to appoint as many persons as it thinks fit to be Executive Magistrates in every district and in every metropolitan area and shall appoint one of them to be the District Magistrate. The words, "as many persons"
employed in sub-section (1) are adequately elastic to include the Commissioner of Police. In other words, the State Government is not precluded from appointing the Commissioner of Police in metropolitan area as an Executive Magistrate. We have already noted that Brihan Bombay is a metropolitan area. Once the Commissioner of Police is appointed as an Executive Magistrate in Brihan Bombay, he can be appointed as an Additional District Magistrate, who shall have the powers of the District Magistrate for the purposes of Sections 18 and 20 of the Act. In our opinion, this would be the correct reading of the statute. This view of ours is further clarified by sub-section (5) of Section 20 when it is stated that nothing in this section shall preclude the State Government from conferring under any law for the time being in force, on Commissioner of Police, all or any of the powers of an Executive Magistrate in relation to a metropolitan area."
In view of the aforesaid analysis, it must be held that in the present case, conferment of powers of District Magistrate exercisable under Section 3(2) of the PASA Act is not in conformity (25 of 29) [HC-235/2016] of provisions of Section 20 of the Code of Criminal Procedure. Scheme of Section 20 Cr.P.C. would show that sub-section (1) stipulates that in every district and in every metropolitan area, the State Government may appoint as many persons as it thinks fit to be Executive Magistrates and shall appoint one of them to be the District Magistrate. Clearly therefore, there could be many Executive Magistrates in a district but only one of them could be appointed as District Magistrate. Conversely, appointment of District Magistrate has to be preceded by his appointment as Executive Magistrate. In other words, appointment of a person as District Magistrate shall follow only if he is appointed as Executive Magistrate. Sub-section (2) of Section 20 Cr.P.C. provides that the State Government may appoint any Executive Magistrate to be an Additional District Magistrate, and such Magistrate shall have such of the powers of a District Magistrate under this Code or under any other law for the time being in force, as may be directed by the State Government. Sub-section (4) of Section 20 Cr.P.C. provides that the State Government may place an Executive Magistrate in charge of a sub-division and may relieve him of the charge as occasion requires; and the Magistrate so placed in charge of a sub-division shall be called the Sub-Divisional Magistrate. Sub-section 4-A of Section 20 Cr.P.C., which has been inserted by Act No. 25 of 2005 w.e.f. 23.06.2006 provides that the State Government may, by general or special order and subject to such control and directions as it may deem fit to impose, delegate its powers under sub-section (4) to the District Magistrate. However, sub-section (5) of Section 20 Cr.P.C. provides that (26 of 29) [HC-235/2016] nothing in this section shall preclude the State Government from conferring, under any law for the time being in force, on a Commissioner of Police, all or any of the powers of an Executive Magistrate in relation to a metropolitan area. Scheme of Section 20 Cr.P.C. makes it evident that for appointment of a person as District Magistrate or Additional District Magistrate, he has to be necessarily first appointed as Executive Magistrate. Section 3(2) of the PASA Act provides that if, having regard to the circumstances prevailing or likely to prevail in any area within the local limits of the jurisdiction of a District Magistrate, the State Government is satisfied that it is necessary so to do, it may, by order in writing, direct that the District Magistrate, may also, if satisfied as provided in sub-section (1), exercise the powers conferred by the said sub-section. In the present case, however, the State Government while issuing notification dated 04.01.2011 has not satisfied the requirement of appointing Commissioner of Police as Executive Magistrate and then appointing him as Additional District Magistrate and in the third stage, conferring upon him powers of District Magistrate. It has rather straight away empowered the Commissioner of Police to exercise in relation to a metropolitan area the powers so far exercisable by the District Magistrate and other Executive Magistrates, which is illegal and cannot be said to be in conformity with law.
Alternative argument of learned Additional Advocate General that order of preventive detention of the petitioner may be saved as has been done by the Supreme Court in A.N. Roy, Commissioner of Police and Another(supra) enabling the (27 of 29) [HC-235/2016] State Government therein to rectify such mistake, cannot be countenanced for the simple reason that what was in question in that case before the Supreme Court or the Bombay High Court was order of eviction of occupiers from premises which were being run as brothels, under Section 18 of the Immoral Traffic (Prevention) Act, 1956 and therefore, the Supreme Court in the peculiar facts and circumstances of that case, directed maintenance of status quo ante till the Commissioner of Police was appointed by the State Government in above terms. In the present case, we are concerned with the order of preventive detention. Law thereabout is well settled that a single vicious ground is sufficient to vitiate an order of detention. The question of personal liberty of a person is sacrosanct and State authorities cannot be permitted to take it away without following the procedure prescribed by law, otherwise, it would be violative of the fundamental rights guaranteed under Articles 21 and 22 of the Constitution.
Individual liberty is a cherished right which is one of the most valuable fundamental rights guaranteed by our Constitution to the citizens of the country. In the scheme of Constitution, utmost importance has been given to life and personal liberty of the individual. Article 21 of the Constitution provides that no person shall be deprived of his life and personal liberty except according to procedure established. In the matter of preventive detention, there is deprivation of liberty, therefore, safeguards provided by Article 22 of the Constitution of the India have to be scrupulously adhered to. The Constitution Bench of the (28 of 29) [HC-235/2016] Supreme Court in Haradhan Saha Vs. The State of West Bengal & Others, (1975) 3 SCC 198 held that procedural reasonableness, which is invoked, cannot have any abstract standard or general pattern of reasonableness. The nature of the right infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, all provide the basis for considering the reasonableness of a particular provision. The procedure embodied in the Act has to be judged in the context of the urgency and the magnitude of the problem, the underlying purpose of the restrictions and the prevailing conditions.
The Supreme Court in Union of India Vs. Paul Manickam & Another, (2003) 8 SCC 342 held that the history of liberty has largely been the history of observance of procedural safeguards. The procedural sinews strengthening the substance of the right to move the Court against executive invasion of personal liberty and the due dispatch of judicial business touching violations of this great right is of great importance. Personal liberty protected under Article 21 is so sacrosanct and so high in the scale of constitutional values that it is the obligation of the detaining authority to show that the impugned detention meticulously accords with the procedure established by law. However, the constitutional philosophy of personal liberty is an idealistic view, the curtailment of liberty for reasons of States' security, public order, disruption of national economic discipline etc. being envisaged as a necessary evil to be administered under (29 of 29) [HC-235/2016] strict constitutional restrictions. In a case of preventive detention no offence is proved, nor any charge is formulated and the justification of such detention is suspicion or reasonability and there is no criminal conviction which can only be warranted by legal evidence. Preventive justice requires an action to be taken to prevent apprehended objectionable activities. But at the same time, when a person's greatest of human freedoms, i.e., personal liberty is deprived, the laws of preventive detention are required to be strictly construed, and a meticulous compliance with the procedural safeguards, howsoever technical, has to be mandatorily made.
In view of above discussion, present habeas corpus petition deserves to succeed and is accordingly allowed. Orders dated 06.10.2016, 28.09.2016 and 15.11.2016 passed by the respondents are quashed and set aside and the respondents are directed to set the petitioner free from detention forthwith. (DINESH CHANDRA SOMANI)J. (MOHAMMAD RAFIQ)J. Manoj