Patna High Court
Sunil Khatik @ Sunil Prasad @ Sunil ... vs The State Of Bihar And Ors. on 24 March, 1999
Equivalent citations: 1999(2)BLJR954
Author: B.P. Singh
Bench: B.P. Singh, D.P.S. Choudhary
JUDGMENT B.P. Singh, J.
1. The petitioner has challenged the order dated 25.11.1998 passed by the District Magistrate, Darbhanga, detaining the petitioner in custody under the Bihar Control of Crimes Act, 1981. He has also impugned the order issued under the signature of the Deputy Secretary, Department of Home (Police) Government of Bihar, dated 6.12.1998 purporting to be an order under Section 12(3) of the Bihar Control of Crimes Act, 1981, whereby the State Government have been pleased to approve the detention order issued on 25.11.1998 by the District Magistrate, Darbhanga against the petitioner.
2. The petitioner states that while the petitioner was in custody in Lnmu P.S. Case No. 112 of 1998 the impugned order of detention was passed by the District Magistrate on 25.11.1998 detaining the petitioner under Sub-section (1) of Section 12 of the Bihar Control of Crimes Act, 1981. The petitioner avers that from a base perusal of the said order it would be evident that the detaining authority was not even aware of the fact that the petitioner was already detained in connection with a criminal case.
3 On 16.11.1998 the grounds of detention were served upon the petitioner consisting of five pages in Hindi and five pages in English which contain the grounds of detention in which reference was made. 12 criminal cases against the petitioner which provided the material on the basis of which the District Magistrate was satisfied that it was necessary to detain the petitioner under the aforesaid Act. The case of the petitioner is that these cases would show that they are simple cases relating to law and order and have no bearing on public order. They, therefore, could not be taken into consideration for the purpose of passing an order under Section 12 of the Act. His further grievance is that accompanying documents were never supplied to the petitioner and, therefore, the petitioner with great difficulty had to prepare his representation from memory. However, he filed his representation before the Superintendent of Jail, Darbhanga on 3.12.1998, and the said Superintendent of Jail transmitted his representation to the District Magistrate on 5.12.98 vide Memo No. 117.
4. In his representation, the petitioner has stated that out of 12 cases referred to in the order of detention, he stood acquitted inasmany as four cases, namely, Lnmu P.S. Case No. 7/93, Lnmu P.S. Case No. 138/93, Lnmu P.S. Case No. 131/95 and Lnmu P.S. Case No. 163/95 by orders dated 31.8.95, 4.9.95, 24.8.96 and 13.11.98 respectively. In spite of the fact that the petitioner had been acquitted in those four criminal cases, that was also made a ground for detention of the petitioner under the aforesaid Act. It is, therefore, submitted on behalf of the petitioner that since some of the grounds are non-existent, the satisfaction reached by the detaining authority on the basis of such non-existent grounds is vitiated in law.
5. The petitioner stated that the order of detention was confirmed by the State Government under Section 12(3) of the Act, but the said order of confirmation was served on the petitioner on 12.12.98 though the same purports to have been signed by the Deputy Secretary on 6.12.1998. The petitioner has submitted that it was incumbent upon the detaining authority to serve the order passed under Section 12(3) of the Act upon the detenu within twelve days of the service of the order under Section 12(2) of the Act. In the instant case, the order under Section 12(3) of the Act was served upon the detenu more than twelve days of the service of the order passed under Section 12(2) of the Act, and therefore, the order of detention was liable to be quashed on this ground as well.
6.The petitioner filed a supplementary petition bringing on record the order passed by the Government of Bihar under Section 21(1) read with Section 22 of the Bihar Control of Crimes Act, 1981 confirming the detention order dated 25.11.1998 and directing that the petitioner shall remain in detention till 24.11.1999. The said order dated 25.1.1999 is annexed as Annexure-6. The petitioner states that the order (Annexure-6) was communicated to the petitioner through letter No. 938 dated 27th January, 1999 (Annexure 6-B).
7. A counter-affidavit has been filed affirmed by respondent No. 4, the District Magistrate, Darbhanga. It is not disputed that the order of detention was passed on 25.11.1998 and was served upon the petitioner on 27.11.1998.
8. It is further stated that the representation of the petitioner dated 3.12.1998 was sent by the Superintendent, Divisional Jail, Darbhanga to the office of the District Magistrate vide his Memo No. 117 dated 5.12.1998, which was received in the office of the District Magistrate, Darbhanga on 7.12.1998. Since the District Magistrate, Darbhanga was out of the headquarters on leave, after his return he requested for the opinion of the Superintendent of Police, Darbhanga vide his letter No. 356 dated 15.12.1998. On receipt of the opinion of the Superintendent of Police, Darbhanga on 19.12.1998 the District Magistrate, Darbhanga, sent his opinion along with the representation of the petitioner vide letter No. 2371/C dated 20.12.1998, which was received in the Home (Police) Department on 22.12.1998. The representation of the petitioner was put up before the Advisory Board on the date fixed i.e., on 7.1.1999. The Advisory Board considered the representation of the petitioner and thereafter returned the same on 11.1.1999. On that date, the Assistant in the concerned Department gave his noting and put up the matter before the Head Clerk of the Department who gave his noting on 12.1.1999. The file was then put up before the Deputy Secretary who gave his noting on 13.1.99. Thereafter, the file was put up before the Secretary of the Department on 15.1.1999. The Secretary of the Department put up the file before the Hon'ble Chief Minister who approved the same on 20.1.1999 and returned the file on 21.1.1999. Since 22nd January, 1999 was a holiday, the file was received on 23rd January, 1999, 24.1.1999 being a Sunday, the draft copy of the letter was signed on 25.1.1999, and the letter was issued on 27.1.1999.
9. The District Magistrate has justified his order, since it was found by him that the petitioner's activities were prejudicial to the maintenance of public order and, therefore, on the basis of the material put up before him, he had passed the order of detention. There were reasons to fear that anti-social activities of the petitioner could not be prevented otherwise than getting him detained. In paragraph No. 15 of the counter-affidavit it has been stated that the petitioner was inside jail in P.S. Case No. 112/98. Apprehension was there that the petitioner may be enlarged on bail any moment. Since this respondent-District Magistrate was convinced that it was necessary to detain the petitioner with a view to maintenance of public order, the detention order was passed against the petitioner. As it happened, the petitioner was ordered to be enlarged on bail in University P.S. Case No. 112/98 on 24.11.1998. The deponent has further asserted that he was aware of the fact that the petitioner was already in jail in a substantive case, and that fact had been mentioned in the grounds communicated to the petitioner. This is also apparent from the fact that the Superintendent of Police, Darbhanga, as directed to get the order served on the petitioner in jail. The detaining authority was, therefore, aware of the fact that the petitioner was in jail, but since he was likely to be released on bail and on his release he was likely to indulge in activities prejudicial to the maintenance of public order, it became necessary to pass order of detention.
10. Counsel for the petitioner has urged before us three main submissions. He submitted firstly that the order of detention does not disclose that the detaining authority was conscious of the fact that the petitioner was already detained in jail custody, and it was still necessary to pass an order of detention.
Secondly, it was submitted that there was considerable delay in the disposal of the representation filed by the petitioner and the explanation offered his highly unsatisfactory.
Lastly, it was submitted that out of twelve cases mentioned in the grounds of detention, in as many as four cases the petitioner had already been acquitted. The satisfaction of the detaining authority is, therefore, vitiated, since he took into account the pendency of four cases which already good disposed of and in all of them the petitioner stood acquitted.
11. So far as the first ground of challenge is concerned, it is now well-settled that the detaining authority must be conscious of the fact while issuing the order of detention that the detenu is already in jail, but was likely to be released, and if released, he was likely to act in a manner prejudicial to the maintenance of public order. The satisfaction of the detaining authority must appear from the record i.e. either from the detention order itself or the counter-affidavit filed in Court. Reliance has been placed on the decisions .
12. In the instant case, it is no doubt that the order of detention nowhere mentions that the petitioner was already in custody, but from the grounds of detention it appears that the detaining authority on the basis of the report submitted by the police was aware of the fact that the petitioner was then in custody and, therefore, the people of Darbhanga had a sigh of relief. However, upon the petitioner coming out of jail, the people of the city will be terrorized and public order will be disturbed. It was therefore, necessary to detain the petitioner with a view to maintenance of public order and with a view to control crimes and maintain law and order. The endorsement on the grounds of detention itself states that the same may be got served through the Superintendent of Divisional Jail, Darbhanga on the person detained. In his counter-affidavit as well the District Magistrate has categorical averred that he was aware of the fact that the petitioner was in custody, but since he was likely to be released on bail and was likely to indulge in activities prejudicial to the maintenance of public order after his release, he was satisfied that it was necessary to detain him under the Act. In fact, in the only case in which the petitioner was in custody, namely, in Lnmu P.S. Case No. 112 of 1998, he was directed to be released on bail on 24.11.1998. The Judicial Magistrate, 1st Class, Darbhanga by his order dated 26.11.1998 ordered release of the petitioner on bail in the aforesaid case pursuant to the order passed by the High Court on 24.11.1998.
13. The material on record, therefore, establishes that the detaining authority was aware of the fact that the petitioner was already detained in custody, and that he was likely to be released on bail, and upon his release was likely to indulge in activities prejudicial to the maintenance of the public order. The detaining authority was satisfied that the with a view to preventing him from acting in such manner, it was necessary to pass an order of detention. I, therefore, find no substance in the first submission urged in support of the writ petition.
14. The second ground of attack, namely, that there was considerable delay in the disposal of the representation has force and must succeed. It is admitted in the counter-affidavit filed on behalf of the detaining authority that the petitioner submitted his representation on 3.12.1998 and the same was forwarded by the Superintendent, Divisional Jail to the office of the District Magistrate, Darbhanga on 5.12.98, which was received in the office of the District Magistrate, Darbhanga on 7.12.1998. Thereafter, it is stated that since the District Magistrate, Darbhanga was out of the headquarters on leave, therefore on return he requested for opinion of the Superintendent of Police, Darbhanga vide his letter No. 2356 dated 15.12.1998. The averment in paragraph No. 7 of the counter-affidavit is not clear as to when the District Magistrate returned to the headquarters after availing of leave. All that is stated is that on return he requested for opinion of the Superintendent of Police, Darbhanga on 15.12.1998. The delay of eight days, in my opinion has not been satisfactorily explained. If the District Magistrate was on leave, the matter could have been dealt with by the person who was performing the duties of the District Magistrate during that period. Moreover, the counter-affidavit does not specify the period during which the District Magistrate was on leave. All that is stated is that the District Magistrate on return requested for the opinion of the Superintendent of Police, Darbhangavide his letter dated 15.12.1998, and the said opinion of the Superintendent of Police, Darbhanga, was received on 19.12.1998. There is no good explanation for keeping the matter pending between 7.12.98 and 15.12.98. What is worse is that though the District Magistrate, Darbhanga sent the representation along with his opinion to the Department of Home. Whom it was received on 22.12.98, no immediate action was taken and the representation was put up before the Advisory Board on the date fixed i.e. on 7.1.1999. This delay of sixteen days, in my opinion, has not been satisfactorily explained. The representation made by the detenu in exercise of his constitutional right has to be considered by the State Government independently. Apart from the procedural safeguards, which are provided in the law authorizing preventive detention, the detenu has always his constitutional right to make a representation against the order of detention which has to be disposed of forthwith. It was not necessary for the Government to obtain the opinion of the Advisory Board on the representation of the detenu. No illegality was committed by sending the representation to the Advisory Board, but there appears to be no justification for the Government to Keep waiting till such time as the matter was disposed of by the Advisory Board. It is worth remembering that the representation of the detenu was received by the Government along with the comments of the District Magistrate on 22.12.98. The Advisory Board was to meet next on 7th January, 1999 i.e., sixteen days later. It was not necessary for the Government to obtain the opinion of the Advisory Board on the representation made by the detenu in exercise of his constitutional right guaranteed under Article 21 of the Constitution of India. The Government was, therefore, not justified in waiting for the opinion of the Advisory Board on the representation of the petitioner for as many as sixteen days.
15. Counsel for the petitioner submitted that even after the file was returned by Advisort Board on 11.1.1999, the file moved from desk to desk, from Clerk to Head-clerk, from Deputy Secretary to Secretary and then to the Chief Minister in a routine manner, and the file which was returned from the Advisory Board on 11.1.1999 came back from the Chief Minister with her approval only on 21.1.1999. While it is true that in cases of preventive detention, the routine office procedures must be shortened, there appears to be no delay in the disposal of the file after it was received from the Advisory Board. However, the delay between 7.12.1998 and 15.12.1998 and thereafter between 22.12.1999 and 7.1.1999 has not been satisfactorily explained. The delay in the disposal of the representation vitiates the further detention of the detenu. In view of the failure of the respondents to satisfactorily explain the delay that was caused between 7.12.1998 and 15.12.1998 and thereafter between 22.12.1998 and 7.1.1999, the order of detention has to be quashed. It is, therefore, not necessary to consider the third submission urged on behalf of the petitioner.
16. In the result, this writ petition is allowed, and the impugned order of detention dated 25th November, 1998 (Annexure-1) as also all subsequent orders passed pursuant thereto are quashed, he petitioner shall be set at liberty unless he is required to be detained in custody in any other matter.