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1983 DIGILAW 295 (PAT)

Mohan Singh v. State of Bihar

1983-10-11

A.P.SINHA, L.M.SHARMA

body1983
JUDGMENT Anand Prasad Sinha, J. By this application, petitioner Mohan Singh challenges the validity of his detention in consequence of the order of the District Magistrate, Khagaria under Sub-section (2) of Section 12 of the Bihar Control of Crimes Act (hereinafter to be referred to as 'the Act'), on his being satisfied that it was necessary to detain the petitioner for preventing him from acting in any manner prejudicial to the maintenance of the public order. The order of detention is based on the grounds indicating involvement of the petitioner in serious illegal acts and also giving rise to several criminal cases. Accordingly, the District Magistrate by order No. 66 dated 7-1-1983 (Annexure-1) directed the petitioner under sub-section (2) of section 12 of the Act to be detained in Bhaglpur Central Jail. The grounds for detention, as contained in order No. 67 dated 7-1-1983 (Annexure-2), had also been served with a direction that if he so desired, be may file a written petition against the order of detention by 19-1-1983. Consequently, it appears that the Petitioner was detained in Jail with effect from 8-1-1983. The detention order along with the grounds had been sent to the Home (Police) department, Government of Bihar, for information and for approval. 2. By order dated 25.1.1983 (Annexure-3) the State Government had approved the detention order aforesaid against the petitioner. Further, it appears that by order dated 24.2 83 (Annexure-4), the Home (Police) department, Government of Bihar had issued an order after the detention of the petitioner had been held valid by the Advisory Board confirming the detention of the petitioner till 6.1.1984 as contemplated under section 21(1) read with section 22 of the Act. 3. Learned counsel for the petitioner has raised several points. It has been urged that the detention of the petitioner is not valid as the approval has not been accorded by the State Government within the specified time as laid down under section 12(3) of the Act. This provision envisages that the approval has to be accorded within a period of 12 days after passing of the orders of detention by the District Magistrate. Along with this plea, the other submission is that the order of confirmation of the detention order has not been passed by the State Government as the order is under the signature of the Under Secretary to the Government. 4. Along with this plea, the other submission is that the order of confirmation of the detention order has not been passed by the State Government as the order is under the signature of the Under Secretary to the Government. 4. Absolutely, there is no merit in these contentions. The order of detention and also the grounds mentioned, as stated above, are dated 7.1.1983. It will appear that the petitioner bas been detained in consequent thereof with effect from 8.1.1983. As stated above, the District Magistrate had simultaneously referred the matter to the Home (Police) department, Government of Bihar, for approval and confirmation of the State Government. The counter affidavit filed on behalf of the State Government states that the District Magistrate, Khagaria, by letter dated 7.1.1983 had reported about the fact regarding the detention of the petitioner to the State Government together with the grounds on the basis of which the order had been made and other connected necessary papers. That letter was received in the Home (Police) department on 12.1.1983. The under Secretary Home (Police) department, had dealt with the matter on 13.1.1983 and had put up the necessary papers before the Home Commissioner, Government of Bihar, Patna for the approval of the Chief Minister. It was approved by the Chief Minister On 17.11983. Thereafter, the file was returned back to the Concerned department Home (Police) on 22.1.1983, the draft was prepared and the necessary orders have been issued being order No. 63.9 dated 25.1.1983 (Annexure-3) and was forwarded to the Superintendent, Central Jail, (or service on the petitioner. 5. Therefore, from the facts stated above, it will appear that the approval had been accorded by the State Government within the specified period as contemplated under subsection (3) of section 12 of the Act. 6. As stated above, from the counter affidavit of the State Government, it has been fully established that the Chief Minister had approved the order of detention. Order No. 639 dated 25.1.1983 (Annexure-3) will indicate that the order has been issued in the name of the Governor under the signature of the Under Secretary to the Government. The Supreme Court in the case of State of Gujrat Va. Order No. 639 dated 25.1.1983 (Annexure-3) will indicate that the order has been issued in the name of the Governor under the signature of the Under Secretary to the Government. The Supreme Court in the case of State of Gujrat Va. Ismail Juma and others has held as follows :- "Where the order of detention has been taken in the name of the Governor of Gujrat and validly authenticated by the Deputy Secretary concerned, the order tent amounts to an order by the State Government of Gujrat. It, therefore, cannot be said that the order of detention was not by the competent authority." 7. The contention raised on behalf of the petitioner that the grounds mentioned for detention are vague and the impugned order of detention is malafide could not be substantiated by and cogent and reliable material whatsoever. From the facts indicated either in the different Annexures filed On behalf of the petitioner relating to institution of several cases against the petitioner or land also the statements made in the counter affidavit by the State, the element of malafide completely vanishes. The cumulative effect of the different Annexures relating to different cases against the petitioner, is that there was absolutely no element of motivated order or any existence of vindictiveness; rather the involvement of the petitioner in several cases give an impression of, prima facie, an element of just and legal ground to indicate that the petitioner is of a type. who can be said to be repeatedly indulging in such acts giving rise to a situation which may be said to be prejudicial to that maintenance of public order The grounds mentioned have been carefully looked into and scrutinized and, in my opinion, instead of being termed as vague they are quite specific and relevant. 8. The next contention raised is that the petitioner could not have been detained by the impugned order as the grounds mentioned are stale and, as a matter of fact, in a few of the criminal cases, indicated in the grounds, either the petitioner has been acquitted or the statement of facts have not traveled beyond the realm of suspicion. 9. I find no merit in this contention too. In order to fully appreciate the objections raised on behalf of the petitioner and for proper adjudication of the matter, it will be relevant to mention here the grounds for detention of the petitioner. 9. I find no merit in this contention too. In order to fully appreciate the objections raised on behalf of the petitioner and for proper adjudication of the matter, it will be relevant to mention here the grounds for detention of the petitioner. They are as follows :- “1. GOGRI THANA KAND SANKHYA 74(1)82 DHARA 25 (A) 26(A) ARMS ACT-IS KAND MEN AAPKE PAAS SE EK PISTOL TATHA GOLI BARAMAD KIYA GAYA AUR INKE VIRUDH AAROP PATRA DAKHIL KIYA JA CHUKA HAI. 2. GOGRI THANA KAND SANKHYA-69 DINANK 12.5.82 DHARA 364 BHA. DAND. VI.-IS KAAND MEIN AAP EK NAAMZAD ABHIYUKT HAIN AUR AAPNE EK BEYAKTI KA APNE SAHKARMIYON KE SAHYOG SE HATYA KAR DI. IS MEIN AAPKE VIRUDH AAROP PATRA DAKHIL KIYA JA CHUKA HAI. 3. GOORI THANA KAND SANKHYA 57 DINANK 27.4.82 DHARA 147/337/424 BHA. DA. VI.-IS KAAND MEIN AAPNE HOMB GUARD AARAKSHI SHRI DEONANDAN SINGH KE SAATH MAARPIT KIYA TATHA EK DUKAN KO CHHATIGRAST KIYA. IS MOKADMA MEIN AAPKB VIRUDH AAROP PATRA DIYA GAYA HAI. 4. GOGRI THANA KAND SANKHYA 51 DINANK 17.4.1982 DHARA 144/34, 341 BHA. DA. VI./27 ARMS ACT-IS KAND MEIN AAPNE SAH KARMIYON KE SAATH NAJAYAZ MAJMA BANAKAR KIRTNANDAN PODDAR KE GHAR PAR GAYE AUR GOLI CHALAYE IS KAND MEIN AAPKE VIRUDH AAROP PATRA DAKHIL KIYA JA CHUKA HAI. 5. GOGRI THANA SANHA NO. 128 DINANK 6.12.82-IS KAND MEIN AAPKE VIRUDH GAALI GALOJ KARNE AUR DARANE DHAMKANE KA AAROP HAI. 6. MAHESHKHUNT O. P. SANHA No. 295 DINANK 19.11.82-IS KAND MEIN AAPKE VIRUDH NAJAYAZ RUP SE DUSRE KE GHAR MEIN GHUSKAR MAARPIT KARNE EVAM BEIZZAT KARNE KA AAROP HAI. 7. KHAGARIA RAIL THANA KAND SANKHYA 78 DINANK 13.10.81 DHARA 392/411 BHA. DA. VI-IS KAND MEIN AAP PAR SANDEH KIYA JA RAHA HAI. ANUSANDHAN JAARI HAI. 8. KHAGARIA RAIL THANA KAND SANKHYA 10 DINANK 29.9.74 DHARA 399/411 BHA. DA. VI.-IS KAND MEIN AAPKE VIRUDH AAROP PATRA DIYA GAYA HAI. 9. KHAGARIA RAIL THANA KAND SANKHYA 2 DINANK 3.11.68 DHARA 379/411 BHA. DA. VI.-IS KAND MEIN BHI AAPKE VIRUDH AAROP PATRA DIYA JA CHUKA HAI. 10. GOGRI THANA KAND SANKHYA 3 DINANK 7.4.67 DHARA 457/380 BHA. DA. VI.-IS KAND MEIN AAPKE VIRUDH AAROP PATRA DIYA JA CHUKA HAI. 11. KHAGARIA RAIL THANA GHAIR PARATHMIKI PANJI SANKHYA 11/71 DHARA 108 DA. PRA. KHAGARIA RAIL THANA KAND SANKHYA 2 DINANK 3.11.68 DHARA 379/411 BHA. DA. VI.-IS KAND MEIN BHI AAPKE VIRUDH AAROP PATRA DIYA JA CHUKA HAI. 10. GOGRI THANA KAND SANKHYA 3 DINANK 7.4.67 DHARA 457/380 BHA. DA. VI.-IS KAND MEIN AAPKE VIRUDH AAROP PATRA DIYA JA CHUKA HAI. 11. KHAGARIA RAIL THANA GHAIR PARATHMIKI PANJI SANKHYA 11/71 DHARA 108 DA. PRA. SAN.-IS KAND MEIN AAPKE VIRUDH KARRAWAI KI GAYI HAI.” In addition to these grounds, there is also mention that on 22.2.1982 on account of dispute regarding fishery right, the petitioner had fired at One Kamleshwari Paswan. On 18.12.1982 the petitioner had assaulted a coal dealer Asharfi Sah. On account of acute sense of fear created by the petitioner, the victims had not even reported the matter to the police. Further, it has been alleged that the petitioner after release from jail has created a Sense of terror and fear amongst the public at large and so none is coming forward to say any thing against the petitioner regarding his illegal conduct and thus this has an adverse impact upon the public order. 10. From the grounds mentioned above, it will appear that the conduct of the petitioner giving rise to criminal offences and cases indicated in item Nos. 1 to 6 relate to the period within or about one year from the date of the impugned order of detention. However, the conduct giving rise to criminal cases indicated in item Nos. 7 to 11 are the history of past criminal activities of the petitioner. Whether the petitioner had been merely a suspect or he has been acquitted in any case, that will have no impact upon the impugned order for rendering it either infirm or bad in law. It is because the acquittal or clement of suspicion do not completely wipe away the involvement of any such person sought to be detained under the Act. It is because the acquittal or clement of suspicion do not completely wipe away the involvement of any such person sought to be detained under the Act. The element of suspicion might not have materalised or crystalised in bringing out a charge ultimately and similarly a prosecution might have failed for various other reasons, but if the conduct of the detenu has been such that it has created broad based panic both in the heart and mind of public at large and also striking a sense of acute insecurity, fear and perpetual threat in the locality, just shaking the normal way of life, such suspicion and acquittal will not be an impediment for detention of the petitioner. 11. From the grounds stated above, I have no hesitation in saying that a continuous and uninterrupted conduct of the petitioner can be said to be instrumental in completely disturbing the normal way of life of peace loving citizens by the exceedingly excessive criminal acts of the petitioner. 12. Item Nos. 1 to 6 mentioned in the grounds, resulting into the ultimate order of detention, are relevant and quite appropriate for passing the impugned order of detention. The facts mentioned completely establish that the petitioner has been responsible for "disturbing public order". A decision of the Supreme Court in the case of Dhena Hembram Vs. The District Magistrate, West Dinajpur and another fully justifies such detention. 13. Item Nos. 7 to 11 mentioned in the grounds cannot be said to be state and thus rendering the impugned order of detention illegal. The facts contained in item Nos. 7 to 11 relate to events which have been observed to occur and the irresistible conclusion will be that these facts, coupled with the recent misconducts of the petitioner, stated above, will give rise to an occasion for "maintenance of public order" which has occurred or may occur as a matter of cause and effect. From the facts set forth above, the propositions of law always deal with what "ought to occur". By considering the past history of conduct, the order relating to the detention of the petitioner is passed on at its effective and essential function. From the facts set forth above, the propositions of law always deal with what "ought to occur". By considering the past history of conduct, the order relating to the detention of the petitioner is passed on at its effective and essential function. The effective and essential function of the ultimate order of detention is by no means confined to dealing with wrong doing occurred at the point of time, but it revolves around for its validity to the past conducts and thus consideration of the past conduct will be in full justification of the final impugned order. In the case of Fitrat Raza Khan Vs. State of Uttar Pradesh and others it has been held that "the past conduct or antecedent history of a person can appropriately be taken into account in making a detention order. It is usually from prior events showing tendencies or inclinations of a man that an inference can be drawn where he is likely, in future, to act in a manner prejudicial to the maintenance of public order.” In the case of Haradhan Saha Vs. The State of West Bengal and others also this aspect has been considered and has been laid down as follows :- “In preventive detention, the past act is merely the material for inference about the future course of probable conduct on the part of the detenu........” 14. Therefore, some of the incidents mentioned in item Nos. 7 to 11 will not render the impugned order of detention illegal, in the facts and circumstances of this case. 15. In the result, I do not find any merit in this application which fails and is dismissed. Lalit Mohan Sharma, J. I agree. Application dismissed.