Jharkhand High Court
Rajendra Mahto @ Kargil vs State Of Jharkhand & Ors on 28 June, 2011
Equivalent citations: 2011 (4) AIR JHAR R 615
Author: Prakash Tatia
Bench: P.P.Bhatt, Prakash Tatia
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(Cr.) No.91 of 2011
Rajendra Mahto @ Kargil ...... Petitioner
Versus
The State of Jharkhand and others ...... Respondents
CORAM : HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MR.JUSTICE P.P.BHATT
....
For the Petitioner : M/s Jitendra S.Singh & A.K.Pandey,Adv.
For the Respondents : Mr.R.Mukhopadhyay, S.C.II
REPORTABLE Dated 28th June, 2011
Prakash Tatia,Act. C.J. Heard learned counsel for the petitioner and also
learned counsel for the State.
2. The petitioner has initially challenged the order dated 30th
July,2010(Annexure-1), a detention order passed against the writ
petitioner (wrongly)under Section 12(3) of the Bihar Control of Crimes
Act,1981, as adopted by the State of Jharkhand, as well as the order of
confirmation passed by the State Government dated 3rd August, 2010
(Annexure-2), confirming the said order dated 30th July, 2010 and then
challenged the another order dated 7th August, 2010 by filing Interlocutory
Application in this petition, by which another order of detention for same
petitioner was passed under Section 12(2) of the Crimes Control Act, 1981
dated 3rd August, 2010 was confirmed. However, according to the
petitioner, he was not aware of the order dated 3rd August, 2010 passed by
the District Magistrate for petitioner's detention under Section 12(2) of the
Act of 1981. According to the learned counsel for the petitioner, the
petitioner came to know about another order of petitioner's detention dated
3.8.2010only when the counter affidavit has been filed that the earlier order dated 30th July,2010 passed by the same District Magistrate was withdrawn vide order dated 3rd August, 2010.
3. Learned counsel for the petitioner submitted that the order dated 2. 30th July,2010 is absolutely illegal and has been passed without application of mind by taking into consideration the absolutely irrelevant facts and by ignoring the relevant facts, which is apparent from the order dated 30th July,2010 itself. Learned counsel for the petitioner drew our attention to the order and pointed out that the authority proceeded under assumption that the petitioner was accused in the cases of robbery, dacoity, theft and extortion and robbery, dacoity, theft and extortion were his main profession. The authority was also of the view that the petitioner has created terror to the passengers of public and private vehicles day to day with arms and many times people in that area have been badly attacked; whereas no single case has been registered against the petitioner for committing of robbery, dacoity, theft or extortion, which is clear from the list of the cases given in the same order , which have been registered in various sections of IPC, which also have been mentioned in the order. It is also submitted that not only that, that the order dated 30th July,2010 was passed under wrong provisions of law i.e. 12(3) of the Crime Control Act,1981 but it proceeded on absolutely wrong facts vitiating the order. The State Government also without application of mind, even confirmed the order dated 30th July,2010 vide order dated 3rd August, 2010 (Annexure-2). The State Government also , though passed the order on 3rd August, 2010 , then that order was withdrawn by the another order dated 7th August, 2010 and before that on the same day on which the State Government passed the order dated 3rd August, 2010 , another order was passed by the District Magistrate, copy of which is Annexure-A by which only it has been conveyed that because of the inadvertent mistake in place of Section 12(2) of the Act of 1991 , Section 12(3) of the Act of 1981 has been typed, therefore, the order dated 30th July, 2010 may be read as amended by inserting 12(2) in place of 12(3). At one place, a correction has been made in the order dated 30th July,2010 by order dated 3rd August, 3. 2010 by the District Magistrate himself and on the same day another order of detention was passed by the same District Magistrate, copy of which has been placed by the respondents as Annexure-B. Inspite of making correction in the earlier dated 30th July,2010, as referred above, altogether new grounds have been mentioned in Annexure-B, the another order dated 3rd August, 2010 for detention of the petitioner. In this Annexure-B, subsequently passed order dated 3rd August, 2010, the District Magistrate has described the petitioner as dreaded sub-zonal Commander of the banned LWE Organization JPC and proceeded under assumption that the petitioner was terrorizing the area and the people for levy and has been responsible for multiple murders in the area in striving to establish an illegal power hegemony and to challenge the law of the land. After giving these reasons, again the description of the same cases, which have been mentioned in the earlier order dated 30th July,2010, have been given. In none of the case of murder, petitioner is involved is apparent from the order dated 3rd August, 2010. Annexure-B itself which was passed on the pretext to correct the wrong section mentioned in earlier order, passed by non application of mind by the authority of the level of the District Magistrate and the petitioner himself has been branded the accused of multiple murder and not as mastermind or conspirator. Such subsequent order dated 3rd August, 2010 also got its confirmation by the State government vide order dated 7th August, 2010 and, therefore, according to the learned counsel for the petitioner, the orders passed by these authority are passed without application of mind and after considering absolutely irrelevant facts, therefore deserve to be set aside and the petitioner's detention may be declared illegal.
4. However, it is admitted case that the petitioner has not been granted bail in three of the cases mentioned in the impugned orders passed under Section 12(3) or under Section 12(2) of the Crimes Control Act, 1981 4. and, therefore, even if the detention order is set aside , the petitioner cannot be released.
5. The learned counsel for the State has submitted that inadvertently a wrong provisions of law has been mentioned in the order dated 30th July,2010 and that was corrected by passing the order subsequently on 3rd August,2010, copy of which has been placed on record. However, on 3rd August, 2010, an another detention order was passed, copy of which has been placed on record as Annexure-B, and the State Government cancelled the earlier order of detention passed by the District Magistrate vide Annexure-C and then confirmed the subsequently passed detention order passed on 3rd August, 2010 vide order dated 7th August, 2010, Annexure- D. The said orders were considered by the Advisory Committee and thereafter, the detention order to detain the petitioner for one year has been passed under the provisions of Section 21(1) and 22 of the Bihar Control of Crimes Act, 1981 , as adopted in the State of Jharkhand. Learned counsel for the State also drew our attention to the detailed report given by the Superintendent of Police and sent to the District Magistrate, wherein all the activities of the petitioner has been referred, which were considered for passing the order of detention of the petitioner.
6. We have considered the submission of the learned counsel for the petitioner and the learned counsel for the State and perused the above orders refereed above and petitioner's case history given in the report of the Superintendent of Police. We have no hesitation in holding that the order dated 30th July,2010, the order 3rd August, 2010, confirming the order dated 30th July, 2010, the amendment order dated 3rd August, 2010 (Annexure-A) and the second order of detention passed by the same District Magistrate dated 3rd August, 2010 and it's confirmation orders have been passed in a very carelessly, without application of mind and in hopelessly casual manner, inspite of the fact that there were 5. sufficient materials before the District Magistrate, Latehar in passing an appropriate reasoned order under Section 12(2) of the Act of 1981. Liberty of a person is highest valuable right of any citizen under the Constitution of India and the authority cannot play with the liberty of citizen of India, even if he is a criminal, in the manner in which it has been done. Such casual careless approach of the authorities violate provisions of the Constitution of India and the laws of human rights resulting into not only of illegal detention of the detenue but creates danger of life of the innocent public of the Country and may frustrate the total aim and object of Article 22 of the Constitution of India, which is not only a provision for protection of liberty of citizen of India against the arrest and detention but is a provisions, providing for passing orders for detention of a person and authorizing the State to detain any person who is anti social and threat to public order but order for detention can be passed after being satisfied with the ground for detention and by passing order by following the procedure prescribed by Constitution and law framed thereunder, by the State, strictly. Passing of wrong order without mentioning the true and correct facts which justifies the detention of person and mentioning of wrong fact certainly may mislead the Court and criminals, anti-social elements and cause threat to life of public and citizen of India and criminal anti-social elements may be released from detention when terror activities have acquired altogether a new dimension.
7. Article 22 has been enacted and inserted in the Constitution of India by 44th amendment and with sanction of Constitution, the Bihar Control of Crimes Act, 1981 has been enacted in the year 1981 and it has been provided under sub-section(1) of Section 12 that the State Government may, if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the maintenance of public order and there is reason to fear that the activities of anti-social elements 6. cannot be prevented otherwise than by the immediate arrest of such person, make an order directing that such anti-social elements be detained. A complete procedure has been given in the Act of 1981 so as to protect the right of an innocent citizen also, if is sought to be detained and by giving time schedule for taking a decision at an appropriate level, firstly by the District Magistrate then by the State Government in the light of the representation which may be submitted by the detenue under Section 17 of the Act of 1981 then for passing appropriate orders and then consideration of such cases by the Advisory Committee to be constituted under sub- Clause(4) of Article 22 of the Constitution of India consisting of the person of level of Judges of High Court and then to pass order by the State Government of detention of such person referred in sub-section(1) of Section 12 of the Act of 1981 and maximum period of detention is one year as provided in the Act of 1981.
8. If we look into the reasons given in the first order dated 30th July,2010 by the District Magistrate, Latehar , which is a brief order running in less than one page, it appears that absolutely contradictory facts have been mentioned by the said District Magistrate. The District Magistrate in the order dated 30th July,2010 branded the petitioner as person involved in the road robbery, dacoity, theft and extortion whereas the cases registered against the petitioner are under Sections 147, 148, 149,353,307, 385, 435 of the Indian Penal Code and 17 C.L.A. Act with 25(1-b)(A),26,27 of the Arms Act and no case of dacoity, theft and robbery has been registered against the petitioner. This order was passed also under the wrong provisions of law but that mistake may be a minor mistake, which can be ignored. Such order was confirmed by the State Government on 3rd August, 2010 (Annexure-2). The District Magistrate then passed another order dated 3rd August, 2010 (Annexure-A) in purported effort to correct the mistake in describing the section of the Act 7. in the order dated 30th July, 2010. It is very strange that by one order passed on 3rd August, 2010, the District Magistrate proceeded to correct the order dated 30th July,2010 and on the same day i.e. on 3rd August, 2010 proceeded to pass another order of detention of the petitioner with altogether different grounds and in this subsequently passed order dated 3rd August, 2010 for detention of the petitioner, he omitted those grounds like involvement of the petitioner in road robbery, dacoity, theft , extortion and put new grounds like "dreaded sub-zonal commander of the banned LWE organization JPC who has been terrorizing the area and the people for levy and has been responsible for multiple murders in the area in striving to establish an illegal power hegemony and to challenge the law of the land". These facts were already in the report submitted by the Superintendent of Police, however, without stating that petitioner himself had committed any murder but he is member of a gang involved in committing murders. Then in the order dated 3rd August, 2010 he gave reference of only of those cases which were already mentioned in the order dated 30th July,2010. Admittedly there is no case registered against the petitioner involving him in any single murder whereas he has been branded 'responsible for multiple murder'. In the two orders, absolutely irrelevant facts have been mentioned and correct and true facts have not been given , inspite of the fact that those true facts have been supplied to the District Magistrate in writing by the Superintendent of Police with request to initiate the proceeding under the Act of 1981.
9. Learned counsel for the State drew our attention to Section-12A of the Bihar Control of Crimes Act, 1981. Section 12A of the Act of 1981 is a provisions to legalise certain order passed under the Act of 1981 and, therefore, we would like to quote it :
12-A. Grounds of detention severable.- (1) Where a person has been detained in pursuance of an order of detention whether made before or after the commencement of the Bihar Control of 8. Crimes Act, 1981 under section 12 which has been made on two or more grounds, such order of detention shall be deemed to have been made separately on each of such grounds and accordingly-
(a) Such order shall not be deemed to be invalid or inoperative merely because one or some of the grounds is or are :
(i)vague
(ii)non-existent
(iii)non-relevant
(iv)not connected or not proximately connected with such person or
(v)invalid for any other reason whatsoever,and it is not therefore possible to hold that the Government or officer making such order would have been satisfied as provided in section 12 with reference to the remaining ground or grounds and made the order of detention.
(b) The Government or officer making the order of detention shall be deemed to have made the order of detention under the said section after being satisfied as provided in that section with reference to the remaining ground or grounds".
With the help of the above provision Section 12A, validity of which has not been challenged, it has been argued by the learned counsel for the State, that if there several grounds are given in the order for detention of a person then each of the ground is a separate ground and order required to be treated to be order passed separately on each of the grounds and, therefore, in view of clause (a) of sub-section(1) of Section 12A of the Act of 1981 , if order is vague, based on non existent ground, based on non relevant ground, based on a ground not connected or not proximately connected with such person or a ground which is invalid for any other reason whatsoever, even then the order of detention can be maintained and cannot be set aside.
10. We are not called upon to examine the validity of Section 12A of the Act of 1981, still we are of the considered opinion that not only the irrelevant facts have been taken into consideration by the same authority in very casual manner but he tried to cover up his blunder by passing another order on 3rd August, 2010 in pretext to correct the illegal order dated 30th July,2010 and made correction only in section in the order dated 9. 30th July, 2010. If that correction was necessary and could have validated the order dated 30th July,2010 then what was the necessity for passing the another order for detention of petitioner on the same date on which he made correction in earlier order of detention dated 30th July,2010. It appears that the District Magistrate himself was sure that, that correction cannot validate the order dated 30.7.2010, therefore, he passed the fresh order of detention on 3rd August, 2010 itself. Not only this, but the grave is the situation in the present case due to non application of mind again by the same District Magistrate. We are constrained to observe that such grave allegations as disclosed by the Superintendent of Police have not been taken note of by the District Magistrate or has not recorded the reasons correctly in the impugned order even while passing two different orders, one on 30th July, 2010 and other on 3rd August, 2010 and if we ignore those allegations then certainly the purpose to enact the Act of 1981 will frustrate which will be against the public interest and against the statutory provisions of Section 12(1) and (2) of the Act of 1981.
11. We would like to quote the report given by the Superintendent of Police to the District Magistrate, which reads as follows : -
Kkikad 382@10 ] vuqeaMy iqfyl inkf/kdkjh ] dk dk;kZy; cjokMhg fn0 26@5@10 lsok esa ] mik;qDr lg ftyk n.Mkf/kdkjh ] ykrsgkjA }kjk %& iqfyl v/kh{kd ] ykrsgkjA fo'k; %& ts0 ih0 lh0 mxzoknh laxBu ds lctksuy dekaMj jktsUnz egrks mQZ dkjfxy firk dsnkj egrks lk0 psVwvkx Fkkuk ckywekFk ftyk ykrsgkj ds fo:) vijk/k fu;a=.k vf/kfu;e lh0 lh0 ,0 ds rgr~ fu:) djus gsrq izLrkoA &&&&&xx&&&& egk'k;] mijksDr fo'k; ds lanHkZ esa lknj lwfpr djuk gS 10 fd jktsUnz egrks mQZ dkjfxy firk dsnkj egrks lk0 psVwvkx Fkkuk ckywekFk ftyk ykrsgkj ,d dq[;kr ts0 ih0 lh0 mxzoknh laxBu ds lctksuy dekaMj gSa tks cjokMhg Fkkuk {ks= ,oa lhekorhZ ftyk iykew esa Hkh ;s dq[;kr ts0 ih0 lh0 mxzoknh ds lctksuy dekaMj dkQh lfØ; jgk gSA budk eq[; is'kk cjokMhg Fkkuk {ks= ,oa iykew ftyk ds lnj Fkkuk ,oa ysLyhxat Fkkus {ks=ksa esa O;olk;h] Bhdsnkj ,oa laHkzkar O;fDr] vke turkvksa ls laxBu ds uke ij Hk; ,oa ncko esa jaxnkjh olwyuk (ysoh ysuk) ,oa {ks+=ksa esa yksxksa esa Hk; mRiUu dj ikVhZ dks lfØ; cukuk gSA bl mxzoknh ds vkrafdr dkjZokbZ ls vke turk esa Hk; ,oa vlqj{kk dh Hkkouk cuh gqbZ gSA bl dq[;kr mxzoknh ds fo:) dksbZ O;fDr dkaM djus ds ckn Hkh cksyus dks rS;kj ugha gksrk gS] ;fn dkaM Hkh ntZ fd;k tkrk gS rks dksbZ Hkh xokg ekuuh; U;k;ky; esa xokgh nsus ;k igpku djus dks rS;kj ugha gksrk gSA ;fn dksbZ xokgh nsus dks rS;kj Hkh gksrk gS rks buds }kjk mldh gR;k djus dh /kedh fn;k tkrk gS rFkk laxBuksa ds }kjk gR;k Hkh dj fn;k tkrk gSA buds Mj ls vke turk] Bhdsnkj] O;olk;h ,oa laHkzkar O;fDr;ksa esa dkQh Hk; O;kIr gS tks orZeku ykrsgkj dkjk esa laflfer gSA buds tsy esa jgus ls vke tu ekuo Hk; eqDr gSA bls tekur ij eqDr gksdj iqu% mxzoknh xfrfof/k ,oa fØ;kdyki esa iqu% lfØ; gksus dh izcy laHkkouk gSA ftlls yksd 'kkafr Hkax gksus ,oa dkuwu O;oLFkk dk la/kkj.k djus esa Hkh dfBukbZ gksxhA ,slh fLFkfr esa bu ij Hkkjrh; n.M fo/kku ds varxZr dkcw ikuk ;k vadq'k yxkuk laHko ugha gSA bl mxzoknh ds fo:) cjokMhg Fkkuk ,oa iykew ftyk varxZr ntZ dkaMksa dk lkjka'k fuEuor~ gS %& 1- cjokMhg Fkkuk dkaM la0& 51@09 fn0 31-5-09 /kkjk 147@148@149@353@307@ Hkk0 n0 fo0 ] 27 vk0 ,DV ] 17 lh0 ,y0 ,0 ,DV ] 10@13 fo0 fo0 fØ0 dyki fuok0 vf/k0 (;g dkaM ?kVuk LFky xzke dspdh ds ikl dks;y unh ls (oknh) iq0 v0 fu0 fl;k'kj.k izlkn] rRdkyhu Fkk0 iz0 cjokMhg dks lwpuk feyh fd xzke dspdh ds ikl dks;y unh ds fdukjs 11 ih0 lh0 mxzoknh laxBu ds lctksuy dekaMj dkjfxy th vius nLrs ds lkFk dksbZ cM+h ?kVuk dk vatke nsus dk ;kstuk cuk jgs gSaA mDr lwpuk dk lR;kiu ,oa dkjZokbZ gsrq] ojh; ink0 dks lwfpr djrs gq, vuq0 iqfyl ink0 ds usr`Ro esa vU; l'kL= cy dks ysrs gq, xzke dspdh dks;y unh ds ikl igqaps rks ns[ks fd dqN O;fDr lafnX/k voLFkk esa cSBdj ;kstuk cuk jgs gSa tks iqfyl ikVhZ dks ns[kdj (vLi'V) fd iqfyl vk xbZ vkSj tku ekjus] ljdkjh dk;ksZ esa ck/kk Mkyus (vLi'V) ikVhZ dks y{; djrs gq, (vLi'V) djus yxsA ftl ij vuq0 iqfyl ink0 cjokMhg us fpYykrs gq, cksyus yxs fd geyksx iqfyl okys gSa Qk;fjax can djks vkReleiZ.k djks ysfdu Qk;fjax can ugha gqvkA rn~ijkar vkRej{kkFkZ funsZ'kkuqlkj iqfyl ikVhZ }kjk Hkh xksyh Qk;j fd;s tkus yxkA nksuksa rjQ ls djhc 10&15 feuV rd eqBHksM+ tkjh jgkA iqfyl ikVhZ ds c<+rs nckc dks ns[kdj mxzoknh Qk;j djrs gq, Hkkxus yxs] ftls ihNk dj vuq0 iqfyl ink0 ,oa iqfyl eqds'k dqekj flag ,d mxzoknh dks [knsM+dj idM+ fy;sA idM+k;s mxzoknh ls uke irk iwNus ij viuk uke jktsUnz egrks mQZ dkjfxy is0 dsnkj egrks lk0 pVqvkx Fkkuk ckywekFk ftyk ykrsgkj crk;k ftldk cnu ds rkyk'kh djus ij ,d yksMsM fiLVy] ftlds pSEcj esa pkj ftUnk xksyh] eksckbZy] fle] 3580@ :Ik;s uxn ] bR;kfn tIrh lwph ds vuqlkj tIr fd;k x;k gSA fxj0 mxzoknh us iwNrkN ds nkSjku crk;k gS fd ;s ts0 ih0 lh0 ds lctksuy dekaMj gSa] ftldk dk;Z{ks= cjokMhg ,oa vkl ikl ds ,fj;k gSA bUgksaus viuh lafyIrrk dks Lohdkj djrs gq, vU; lg;ksfx;ksa dk uke Øe'k% vfHkeU;q th] fnus'k mQZ /khjt th] 'kkafr th] ,oa 'kkafr th dk HkkbZ rFkk euku valkjh lk0 iks[kjh dyk dk uke crk;k gSA 'ks'k ts0 ih0 lh0 mxzoknh laxBu ds lnL; x.k eqBHksM+ ds nkSjku taxy] >kM+h dk ykHk ysdj Hkkxus esa lQy jgkA vuqla/kku ,oa Ik;Zo{k.kksijkar bl dkaM esa izk0 vfHk0 jktsUnz egrks mQZ dkjfxy th ts0 ih0 lh0 lc tksuy ds fo:) vkjksi&i= la0& 77@09 fn0 15-09-09 /kkjk & 147@148@149@353@307@ Hkk0 n0 fo0 ] 27 12 vk0 ,DV ] 17 lh0 ,y0 ,0 ,0 ,oa 10@13 fo0 fo0 fØ0 dyki vf/k0 ds varxZr lefiZr fd;k x;k gSA 2- cjokMhg Fkkuk dkaM la0& 52@09 fn0 31-5-09 /kkjk& 25 (1 ch) , 27 vkElZ ,DV) ;g dkaM ?kVuk LFky xzke dspdh ds ikl dks;yh unh ds fdukjs ls oknh iq0 v0 fu0 fl;k'kj.k izlkn] rRdk0 Fkk0 iz0 cjokMhg ftyk ykrsgkj ds Lofyf[kr izfrosnu ds vk/kkj ij izk0 vfHk;qDr jktsUnz egrks mQZ dkjfxy th firk dsnkj egrks lk0 pVqvkx Fkkuk ckywekFk ftyk ykrsgkj ds fo:) voS/k vkXus;kL= ds lkFk ?kVuk ds fnu jaxs gkFk eqBHksM+ ds nkSjku idMs+ tkus ds vkjksi esa izfrosfnr fd;k x;k gSA vuqla/kku ,oa Ik;Zo{k.kksijkar dkaM izkFkfedsh dh ewy /kkjkvksa ds varxZr lR; ik;k x;k gSA vkjksi&i= dk i;kZIr lk{; ds vk/kkj ij izk0 vfHk0 jktsUnz egrks mQZ dkjfxy th ds fo:) vkjksi&i= la0 52@09 fn0 29-07-09 /kkjk & 25(1&ch),@26 (!!) vk0 ,0 ds varxZr lefiZr fd;k x;k gSA 3- (iykew) lnj Fkkuk dkaM la0&431@08 fn0 08-11-08 /kkjk 147@148@149@427 Hkk0 n0 fo0 ,oa 17 lh0 ,y0 ,0 ,DV esa ?kVuk LFky xzke jtokMhg pkSd (ikadh jksM) ls oknh ch0 ,y0 VwMw iq0 v0 fu0 lnj Fkkuk ftyk iykew ds fyf[kr izfrosnu ds vk/kkj ij vafdr gSA ftlesa mUgksaus izkFkfedh ds ukekafdr vfHk0 1- jfo flag mQZ ijek.kq th lk0 xkbZUnk Fkkuk eukrw 2- uhye flag lk0 gjlaxjk 3- cq)w flag 4- eukst flag 5- fnus'k flag is0 Lo0 lkxj flag lHkh lk0 xksfj;k nkej Fkk0 ysLyhxat 6- /kkSuh lk0 jkaph 7- jkgqy egrks lk0 cM+dhckM+ 8- jes'k flag mQZ dkjfxy 9- eaVw ds fo:) uktk;t etek cukdj okgu dk 'kh'kk rksM+dj {kfrxzLr djus dk vkjksi yxk;k x;kA vuqla/kku ,oa i;Zos{k.k ls dkaM vfHk;qDrksa ds fo:) lR; ik;k x;k gS rFkk vuqla/kkuksijkar izk0 vfHk0 jes'k flag mQZ dkjfxy mQZ jktsUnz egrks firk dsnkj egrks lk0 pVwvkao Fkkuk ckywekFk ,oa vU; ds fo:) vkjksi&i= la0&96@09 fn0 17-08-09 /kkjk 147@148@149@427 Hkk0 n0 fo0 17 lh0 ,y0 ,0 ,DV ds varxZr vkjksi lefiZr fd;k x;k gSA 13 4- iykew (lnj) Fkkuk dkaM la0& 430@08 fn0 08-11-08 /kkjk & 147@148@149@427@435 Hkk0 n0 fo0 ] 17 lh0 ,y0 ,0 ,DV ] ?kVuk LFky (vLi'V) ds ikl ls ( oknh ) iq0 v0 fu0 ckcwyky VwMw lnj Fkkuk ftyk iykew ds fyf[kr izfrosnu ds vk/kkj ij vafdr fd;k x;k gSA ftlesa mUgksaus izkFkfedh ds uketn vfHk;qDrksa 1- jfo flag mQZ ijek.kq th 2- uhye flag 3- cqf= flag 4- eukst flag 5- fnus'k flag 6- /kkSuh 7- jkgqy egrks 8- jes'k flag mQZ jktsUnz egrks mQZ dkjfxy 9- eaVw flag vU; N% vKkr mxzokfn;ksa ds fo:) uktk;t etek cuk dj gjos gfFk;kj ls yS'k gksdj okgu esa vkx yxkdj {kfrxzLr djus dk vkjksi yxk;k x;k gSA vuqla/kku ,oa Ik;Zos{k.kksijkar dkaM vfHk;qDrksa ds fo:) lR; ik;k x;k gS rFkk Ik;kZIr lk{; ds vk/kkj ij izk0 vfHk0 jes'k flag mQZ jes'k egrks mQZ dkjfxy th firk dsnkj egrks lk0 pVqvkx Fkkuk ckywekFk ,oa vU; ij vkjksi i= la0&95@09 fn0 17-08-09 /kkjk&147@148@149 @427@435 Hkk0 n0 fo0 17 lh0 ,y0 ,0 ,DV ds varxZr lefiZr fd;k x;k gSA 5- ysLyhxat Fkkuk dkaM la0&04@09 fn0 12-02-09 /kkjk&147@148@149@307@353@Hkk0 n0 fo0 ,oa 25 1 ch ,@26@27@35 vk0 ,0 3@4 fo0 ink0 vf/k0] 17 lh0 ,y0 ,0 ,DV (?kVuk LFky ysLyhxat Fkkuk varxZr xzk0 cSjkV ls oknh iq0 v0 fu0 vkuUn fd'kksj izlkn] ysLyhxat Fkkuk ftyk iykew ds Lo fyf[kr c;ku ds vk/kkj ij izk0 vfHk0 1- jes'k flag mQZ dkjfxy mQZ jes'k egrks ,oa vU; & 13 uketn vfHk;qDrksa ds fo:) ,der jk; gksdj] uktk;t etek cukdj] ljdkjh dk;Z esa ck/kk Mkyus ,oa ljdkjh gfFk;kj ds ywVus ds uh;r ls iqfyl ikVhZ ij tku ysok geyk djuk Fkk nks ts0 ih0 lh0 mxzoknh laxBu dks gfFk;kj fo0 ink0 lkFk jaxs gkFk idMs+ tkus ds vkjksi esa ntZ fd;k x;k gSA vuqla/kku ,oa Ik;Zos{k.kksijkar izkFkfedh ds lHkh uketn vfHk;qDrksa ij dkaM lR; ik;k x;k gS rFkk izk0 vfHk0 jes'k th mQZ jktsUnz egrks mQZ dkjfxy th is0 dsnkj egrks lk0 pVwvkx Fkkuk ckywekFk ds fo:) vkjksi 14 i= la0&66@09 fn0 26-08-09 /kkjk&147@148@ 149@307@353@ Hkk0 n0 fo0 (25&1&ch) ,@26@ 27@35 vk0 ,0 ] fo0 ink0 3@4 vf/k0 ,oa 17 lh0 ,y0 ,0 ,DV ds varxZr lefiZr fd;k x;k gSA 6- ysLyhxat Fkkuk dkaM la0&25@09 fn0 27-05-09 /kkjk&147@148@149@385@435 Hkk0 n0 fo0 ,oa 27 vk0 ,DV] 17 lh0 ,y0 ,0 ,DV ?kVuk LFky xzke cjgk ls oknh (vLi'V) 'kaekZ firk Lo0 'kadj yky 'kaekZ xzke cqyUn 'kagj Fkkuk cqyUn 'kakgj ftyk cqyUn 'kagj ] gk0 iks0 "ksoj dUVªD'ku (eSaustj) dEiuh ikadh jksM ds fyf[kr izfrosnu ds vk/kkj ij izk0 vfHk0 dkjfxy th ts0 ih0 lh0 lctksuy dekaMj 2- vfHkeU;q th 3- fnus'k flag 4- 'kakgtkn [kka 5- jkgqy ,oa vU; vKkr ,d ds fo:) ikssdysu e'kkhu] ,d xszMj ,oa ,d ts0 lh0 ch0 e'khu esa vkx yxkdj {kfrxzLr igqapkus ds vkjksi esa izfrosfnr fd;k x;k gSA vuqla/kku ,oa Ik;Zos{k.kksijkar dkaM lR; ik;k x;k rFkk izk0 vfHk0 ts0 ih0 lh0 mxzoknh laxBu ds lctksuy dekaMj jktsUnz egrks mQZ dkjfxy firk dsnkj egrks lk0 pVqvkx Fkkuk ckywekFk ftyk ykrsgkj ds fo:) vkjksi&i= la0 91@09 fn0 31-12-09 /kkjk&147@148@149@385@435 Hkk0 n0 fo0 ] 27 vk0 ,DV 17 lh0 ,y0 ,0 ,DV ds varxZr lefiZr fd;k x;k gSA KkrO; gS fd ts0 ih0 lh0 mxzoknh laxBu ds dq[;kr lc tksuy dekaMj jktsUnz egrks mQZ dkjfxy th orZeku esa ykrsgkj dkjk esa laflfer gSA ftlds fo:) mijksDr mfYyf[kr dkaMksa esa vkjksi&i= lefiZr fd;k tk pqdk gSA bl dq[;kr ts0 ih0 lh0 mxzoknh laxBu ds lctksuy }kjk U;kf;d fgjklr esa Hkh jg dj vke turkvksa] Bhdsnkjksa ] O;olk;h oxksZ dks Hkh ysoh ds :Ik;s dh ekax dh tk jgh gS vkSj muds lnL;ksa }kjk ysoh mxkgh ds fy;s yksxksa ij ncko cuk;k tk jgk gS vkSj ;g Hkh /kedh fn;k tk jgk gS fd dkjfxy th dks NwV tkus nks rqe yksxksa dks lcd fl[kkrs gSaA bl izdkj dh lugk cjokMhg Fkkuk esa fofHkUu frfFk;ksa dks ntZ 15 fd;k x;k gS tks Øe'k% fnukad 08-05-10 dks l0 u0 197] 09-03-10 dks l0 u0 234] 11-05-10 dks l0 u0 281 ,oa 17-05-10 dks l0 u0 435 ntZ gSA bl izdkj bl dq[;kr ts0 ih0 lh0 mxzoknh ds lc tksuy dekaMj jktsUnz egrks mQZ dkjfxy th tu ekuo esa vlkekftd rRo ds :Ik esa fØ;k'kkhy gS ] ftuds vkrad ,oa Hk; ls vke tu thou vLr O;Lr gS rFkk tu ekuo esa dkQh Hk; O;kIr gS] ftlls yksd O;oLFkk (ifCyd vkWMj) Hkax gksus dh izcy laHkkouk gSA ftls tsy ls ckgj vkus ij yksd O;oLFkk ij Hkh dqizHkko iMs+xkA bl dq[;kr mxzoknh lc tksuy dekaMj ,oa muds lnL;ksa ls (vLi'V) O;olk;h] nqdkunkj] Bhdsnkj yksx vius dkjksckj dks can djus ij foo'k gks x;s gSa tks izR;{k :Ik ls dq[;kr mxzoknh lctksuy ,oa muds lnL;ksa ds fo:) dqN cksyus ,oa crkus ls Hkh drjk jgs gSaA ,slh fLFkfr esa dq[;kr ts0 ih0 lh0 mxzoknh laxBu ds lctksuy dekaMj jktsUnz egrks mQZ dkjfxy ds fo:) Hkkjrh; n.M lafgrk ds rgr~ vadw'k yxkuk laHko tku ugha iM+rk gSA mijksDr ifjis{; esa vke tu ekuo esa O;kIr vlqj{kk dh Hkkouk dks nwj djus ,oa yksd O;oLFkk LFkkfir djus gsrq bu ij vadw'k ikus ds fy;s vijk/k fu;a=.k vf/kfu;e (lh0 lh0 ,0) ds rgr~ fu:) djuk vko';d tku izrhr gksrk gSA vr% Jheku ls vuqjks/k gS fd ts0 ih0 lh0 mxzoknh laxBu ds dq[;kr lctksuy dekaMj jktsUnz egrks mQZ dkjfxy firk dsnkj egrks lk0 pVqvkx Fkkuk ckywekFk ftyk ykrsgkj tks orZeku esa ykrsgkj U;kf;d fgjklr esa laflfer gS ds fo:) vijk/k fu;a=.k vf/kfu;e (lh0 lh0 ,0) dh /kkjk&12 (3) ds rgr~ fufgr izko/kkuksa ds varxZr fu:) djus dh vuq'kalk dh tkrh gSA vf'ouh dqekj flUgk] vuqeaMy iqfyl inkf/kdkjh] cjokMhg 25.5.10 vuq0 %& mijksDr of.kZr dkaMks ls lacaf/kr vfHkys[kksa dh 25@05@10 Nk;kizfr ikWap izfr esa 2- cjokMhg Fkkuk esa cjokMhg ntZ lUgk dh Nk;kizfr lkFk layXu gS 16.
12. A bare perusal of the above report reveals that the District Magistrate ignored the facts that there are allegation against the petitioner of being a sub-zonal commander of a terrorist organization and he was involved in the encounter against the police and also was arrested by the police with loaded pistol etc. and he was not involved in one case but in total six cases, which include the offence punishable under sections, we have already referred. These facts clearly indicate that the petitioner's detention was necessary to maintain public order and he is anti-social element. We are unable to think that how and why these important facts have not been mentioned in the earlier order and not mentioned correctly in subsequently passed order and therefore, there may be doubt that the relevant facts have not been mentioned just to help the petitioner so that he may get the order of detention set aside from Court. We are constrained to observe that the District Magistrate, who is responsible for maintaining the law and order as well as the public order in the district failed to appreciate that after passing to long time from enacting the Act of 1981 not only the terrorist activities have changed but also have reached to entire new dimension of causing lose to the lives of masses and not of one or two persons, and because of such casual approach the hardened criminals can be set free by the order of the Courts for want of reasons in the order , which may not be supplied by any subsequent order, pleading or by way of giving reasons in the affidavit. However, in the present case, since there were materials already before the authority and due to the carelessness of the authority those reasons have not been mentioned in the impugned order even when there was justification for passing of the order of detention, we are not inclined to set aside the order of detention on the ground of carelessness of the officer, who passed the order because that will frustrate the object of the Act of 1981 and the soul of Article 22 also. 17.
We are of the considered opinion that negligence of the officer in such matters may not necessarily vitiate the order of detention when the authority committed blunder in writing the order only. We direct that a copy of this order be sent to the Chief Secretary, Government of Jharkhand as well as to the Principal Home Secretary, Government of Jharkhand , who may look into the matter and circulate the copy of the order to the District Magistrates so that they may pass orders of detention under the Act of 1981 by application of mind and to take care that such orders may be passed only when they are needed and the guilty persons may not be spared and at the same time innocent persons, may they be accused, may not be harassed by passing orders in casual manner.
13. The writ petition of the petitioner is, therefore, dismissed.
( Prakash Tatia, A.C.J. ) ( P. P. Bhatt, J ) G.Jha/