Mosstt. Rajkali Devi v. State Of Bihar — 1987 DIGILAW 112 (PAT)

Judgment B.N.AGRAWAL, J. 1. This application is for issuance of a writ of habeas corpus. The District Magistrate, Dhanbad in exercise of the powers under S. 3(2) of the National Security Act 1980 (hereinafter referred to as the Act) on 2-1-1986 passed an order of detention against the petitioners son Binod Kumar Singh on the following ground :- "On 24-12-85, between 10 and 10.30 a.m. the subject along with Ramashish Bangali, Gulam, Rambriksha armed with rifle, gun etc. came in Car No. BHG 9372 on Katras goal Dump and started indiscriminate firing to kill Birendra Pratap Singh, a rival of his clandestine business of coal to establish his criminal superiority in full view of the shop-keepers, customers and passers by of the area. Birendra Pratap Singh and his associates who were there also returned firing in same manner. As a result of this firing one innocent namely Brahamdeo Mishra was killed. The exchange of indiscriminate firing in the main market area of Katras created great panic and alarm in the area. The normal tempo of life was completely disturbed. The people started running helter and skelter for their lives. Shopkeepers put down their shutters. Doors and windows were closed. The vehicular traffic came to halt. This refers to Katras P. S. Case No. 331/85 dt. 24-12-1985 u/s. 149/307/326 IPC/27 Arms Act. Besides the aforesaid ground the following cases are also referred hereunder as background to show the criminality of the subject......" 2 The order of detention was confirmed by the State of Bihar. The detenu challenged his detention by filing a writ of habeas corpus before this Court which was dismissed. Thereafter he moved the Supreme Court by filing a special leave petition against the order of dismissal of his writ application by this Court and after grant of special leave to appeal, an appeal was preferred by the detenu. He also filed a writ application under Art. 32 of the Constitution of India before the Supreme Court challenging the said order of detention. The writ application and the appeal both were decided by the Supreme Court on 26-9-1986 with the following observations and the order of detention was set aside :- ".....If a man is in custody and there is no imminent possibility of his being released, the power of preventive detention should not be exercised. The writ application and the appeal both were decided by the Supreme Court on 26-9-1986 with the following observations and the order of detention was set aside :- ".....If a man is in custody and there is no imminent possibility of his being released, the power of preventive detention should not be exercised. In the instant case when the actual order of detention was served upon the detenu, the detenu was in jail. There is no indication that this factor or the question that the said detenu might be released or that there was such a possibility of his release, was taken into consideration by the detaining authority properly and seriously before the service of the order..... The order of detention, therefore, is set aside. The writ petition and the appeal are allowed to the extent indicated above. This, however, will not affect detenus detention under the criminal cases. If, however, the detenu is released on bail in the aforesaid criminal cases, the matter of service of the detention order under the Act on the aforesaid materials may be reconsidered by the appropriate authority in accordance with the law. There is no statement in the petition that the detenu is on bail. There will therefore, be no orders for release of the detenu". 3. Thereafter when the detenu was still in custody in connection with substantive criminal cases and was going to be released on bail in those cases, he was served in jail with a fresh order of detention passed by the District Magistrate on 12-10-1986 in exercise of the powers under S. 3(2) of the Act on the very same ground quoted below on which he was detained under earlier detention order:- "On 24-12-1985, between 10 and 10.30a.m. the subject along with Ramashish Bangali, Gulam, Rambriksha armed with rifle, gun etc. came in car No. BGH 9372 on Katras Coal Dump and started indiscriminate firing to kill Birendra Pratap Singh and his associates who were there also returned the firing in same manner. As a result of this firing one innocent namely Brahamdeo Mishra was killed. The exchage of indiscriminate firing in the main market area of Katras created great panic and alarm in the area. The normal tempo of life was completely disturbed. The people started running helter and skelter for their lives. Shopkeepers put down their shutters. Doors and windows were closed. The exchage of indiscriminate firing in the main market area of Katras created great panic and alarm in the area. The normal tempo of life was completely disturbed. The people started running helter and skelter for their lives. Shopkeepers put down their shutters. Doors and windows were closed. The vehicular traffic(s) came to halt. This refers to Katras P. S. Case No. 331/85 dt. 24-12-1985 u/s. 149/307/326 IPC/27 Arms Act. Besides the aforesaid ground the following cases are also referred hereunder as background to show the criminality of the subject....." 4. The said order of detention was confirmed by the State Government by order dt. 6-12-1986 and it was directed that the detenu shall remain in detention till 12th Oct., 1987. The detenu challenged the said detention order dt. 12-10-1986 by filing a petition under Art.32 of the Constitution before the Supreme Court which was numbered as Writ Petition (Criminal) No. 665 of 1986 but by order dt. 7-1-1987 the writ application was dismissed. Thereafter the present writ application was filed before this court. 5. The only point urged on behalf of the petitioner in support of the writ application is that the detenion of the petitioners son from 9th January, 1987 and onwards is unwarranted as under proviso to S.14(2) of the Act if on the same ground successive detention orders are passed, a person cannot be detained for a total period in excess of 12 months. According to the learned counsel under the previous detention order the petitioners son had remained under detention for a period of about 8 months 24 days, i.e., between the date of passing the order of detention which was passed on 2-1-1986 and the date of judgment of the Supreme Court, i.e., 26-9-1986. The second detention order was passed on 12-10-1986 under which the petitioners son could have been detained only for the remaining period of 3 months 6 days which period expired on 18-1-1987. 6. Learned Government Pleader No. 1 appearing on behalf of the State contended R 224 that the second order of detention was confirmed by the Supreme Court by dismissal of the writ application filed by the petitioners son as such this writ application is liable to be dismissed on this ground alone. 6. Learned Government Pleader No. 1 appearing on behalf of the State contended R 224 that the second order of detention was confirmed by the Supreme Court by dismissal of the writ application filed by the petitioners son as such this writ application is liable to be dismissed on this ground alone. He further contended that the petitioners case is not covered by proviso to S. 14(2) of the Act as the first order of detention was quashed by the Supreme Court and the proviso applies only if the first order of detention is either revoked or expires. 7. According to S. 14(2) of the Act as it stood in the original Act after the expiry or revocation of the first order of detention, the second order of detention could not have been passed on the same ground. In the year 1984 by the National Security (Second Amendment) Act 1984 (Act 60 of 1984) which came into force on 21st June, 1984, S.14(2) of the original Act was substituted by the following :- "(2) The expiry or revocation of a detention order shall not bar the making of another detention order under S.3 against the same person : Provided that in a case where no fresh facts have taken after the expiry or revocation of the earlier detention order made against such person, the maximum period for which such person may be detained in pursuance of the subsequent detention order shall, in no case, extend beyond the expiry of a period of twelve months from the date of detention under the earlier detention order". 8. The aforesaid amended provision shows that a fresh order of detention after the expiry or revocation of the earlier order of detention on the same facts is now permissible in law. The proviso to S.14(2) shows that if after expiry or revocation of the earlier detention order the second detention order is passed on the same ground, in that event the total period of detention under both the detention orders will not exceed the total period of 12 months. Now the question arises in this case whether the quashing of the first order of detention by the Supreme Court amounts either to its revocation or expiry. I find that no order of revocation has been passed in the case in hand by the State Government. Now the question arises in this case whether the quashing of the first order of detention by the Supreme Court amounts either to its revocation or expiry. I find that no order of revocation has been passed in the case in hand by the State Government. There is neither any action nor inaction on the part of the State Government or the authorities from which it can be inferred that the previous order of detention would be deemed to have been revoked. Therefore, in my view, there was no revocation of the earlier order of detention within the meaning of proviso to S.14(2) of the Act. 9. The next question which arises for consideration is as to whether the quashing of the earlier order of detention by the Supreme Court would amount to its expiry within the meaning of proviso to S. 14(2) of the Act. A bare reading of the proviso shows that the same is by way of protection to a citizen so that on the same ground a person may not be detained for a total period of more that 12 months by passing successive orders of detention. It has been laid down by the Supreme Court in Rameshwar Shaw V/s. District Magistrate, Burdwan, AIR 1964 SC 334 : (1964 (1) Cri LJ 257) that if any safeguard has been provided under a Detention Act for the protection of a citizen the same must be liberally interpreted. Their Lordships laid down as follows :- "It is hardly necessary to emphasise that since the Act authorises the preventive detention of citizens without a trial, the material provisions of the Act must be strictly construed and safeguards which the Act has deliberately provided for the protection of citizens must be liberally interpreted". 10. If it is interpreted that the quashing of the earlier order of detention by the Supreme Court does not tantamount to its expiry, in my view the intention of the legislature in introducing the proviso would be frustrated. This view of mine finds support from the observation of the Supreme Court-in Chotta Hembram V/s. State of West Bengal, AIR 1974 SC 432 : (1974 Cri LJ 449). In that case their Lordships were dealing with a case of detention under Maintenance of Internal Security Act. This view of mine finds support from the observation of the Supreme Court-in Chotta Hembram V/s. State of West Bengal, AIR 1974 SC 432 : (1974 Cri LJ 449). In that case their Lordships were dealing with a case of detention under Maintenance of Internal Security Act. Under S. 13 of the said Act a person could not have been detained for a period of more than 12 months. Under S. 14(2) of the said Act fresh order of detention on the same facts after its expiry or revocation was not permissible. In that case the State Government revoked the earlier order of detention and released and detenu after the Supreme Court had quashed the order of detention of similarly situated detenu and thereafter on the same ground a fresh order of detention was passed which was challenged before their Lordships and the order of detention was quashed on two grounds firstly because on the same ground the second detention order was not permissible in law. The second ground which weighed with their Lordships was that if on the same facts the second order of detention is allowed to be maintained, the period of detention under the two orders may exceed the maximum period of 12 months which was not permissible under the scheme of that Act. The relevant portion of the Supreme Court judgment may be usefully quoted hereunder :- "Sec.13 of the Act provides that the maximum period for which any person may be detained in pursuance of any detention order, which has been confirmed under S. 12, shall be 12 months from the date of the detention. It is, therefore, plain that maximum period for which a person can be detained on account of specified acts should not exceed 12 months. If for the same acts repeated orders of detention can be made, the effect would be that for the same acts a detenu would be liable to be detained for a period of more than 12 months. The making of a subsequent order of detention in respect of the same acts, for which an earlier order of detention was made, would run counter to the entire scheme of the Act. It would also set at naught the restriction which is imposed by S. 13 of the Act relating to the maximum period for which a person can be detained in pursuance of a detention order". It would also set at naught the restriction which is imposed by S. 13 of the Act relating to the maximum period for which a person can be detained in pursuance of a detention order". In Pradip Kumar Das V/s. State of West Bengal, AIR 1974 SC 2151 : (1974 Cri LJ 1476) their Lordships while considering the meaning of expression "expiry" used under S. 14(2) of the Maintenance of Internal Security Act held as follows :- "The word "expire" means to come to an end or to put an end to, or to terminate or to " become void, or to become extinct". From the aforesaid observations of the Supreme Court it can be safely said that the previous order of detention came to an end and became extinct from the date the Supreme Court delivered its judgment on 26-9-1986 quashing the said order of detention. 11 In Hanuman Sahai Chaudhary V/s. State of Rajasthan, 1975 Cri LJ 973 a Division Bench of the Rajasthan High Court was considering a case under S.14(2) of the Maintenance of Internal Security Act. In that case the previous order of detention was quashed by the High Court and thereafter on the same facts fresh order of detention was passed which was challenged on the ground that the earlier order of detention expired as the same was quashed by the High Court, as such, the fresh order of detention on the same facts was not maintainable. Their Lordships accepted the contention and quashed the second order of detention. In view of the observations of the Supreme Court in the decisions referred to above I am in respectful agreement with the view expressed by the Rajasthan High Court and on the same analogy in my view quashing of the earlier order of detention by the Supreme Court would mean expiry of the earlier detention order within the meaning of proviso to S. 14(2) of the Act. Thus the bar of 12 months total period of detention under the two detention orders as mentioned in the proviso would clearly apply in the case in hand. 12. Now the question arises as to when the total period of 12 months detention in both the detention orders had expired. It appears that the detenu was detained under the first detention order from 2-1-1986 till the same was quashed by the Supreme Court on 26-9-1986. 12. Now the question arises as to when the total period of 12 months detention in both the detention orders had expired. It appears that the detenu was detained under the first detention order from 2-1-1986 till the same was quashed by the Supreme Court on 26-9-1986. Therefore, under the previous detention order he remained under detention for a period of 8 months 24 days. Thereafter from 27-9-1986 to 11-10-1986 he did not remain in custody by virtue of any detention order but remained as such as he was required in substantive criminal cases. When the second detention order was passed the detenu is under detention therein since 12-10-1986. The remaining 3 months 6 days period of detention out of the total period of 12 months expired on 18-1-1987. Thus the 12 months total period of detention under the two detention orders having expired on 18-1-1987 the detention of the petitioners son thereafter is wholly unwarranted. It was contended on behalf of the State that the petitioners son could have taken this point before the Supreme Court when he challenged the second order of detention. Learned counsel has placed before the Court the copy of the writ petition filed before the Supreme Court challenging the second order of detention and submitted that, this point was not taken in that petition, therefore, he is precluded from taking this point before this Court in the present writ application. In my view this point was not available to the petitioner on 7-1-1987 when the Supreme Court had dismissed the writ application. The petitioner could challenge the detention order on the ground of infraction of proviso to S.14(2) of the Act only on 19-1-1987 as the period of 12 months detention had expired on 18-1-1987. After 18-1-1987 two remedies were available to the petitioner for challenging the order of detention on this ground - one was to move the Supreme Court for issuance of a writ of habeas corpus under Art. 32 of the Constitution and the other was to move this Court for issuance of a writ of habeas corpus and the petitioner has chosen the latter course which is quite permissible in law. 13. 13. In the result, the writ application is allowed, the order of detention dated 12-10-1986 contained in Annexure 1 is hereby quashed and it is directed that the petitipners son Binod Kumar Singh alias Binod Singh be set at liberty forthwith, if not required in any substantive criminal case. UDAY SINHA, J. 14 I agree.