Research › Browse › Judgment

Patna High Court · body

1988 DIGILAW 200 (PAT)

Bindeshwari Yadav v. State of Bihar

1988-05-04

P.S.MISHRA

body1988
JUDGMENT P. S. Mishra, J.-The petitioner has invoked the jurisdiction of this Court under Article 226 of the Constitution of India for a writ in the nature of habeas corpus and a mandamus to release the petitioner' from detention presently held at Saharsa under the order of the District Magistrate, Saharsa in exercise of the power under section 18 of the Bihar Control of Crimes Act, 1981. 2. Stating that the activities of the petitioners were prejudicial to the maintenance of, public order and that the activities of the petitioner could not be prevented otherwise than by immediate arrest, on 16.7.87 the District Magistrate, Saharsa issued order to detain the petitioner. The petitioner, however, could not be taken in custody pursuant to the said detention order, but the District Magistrate reported the fact to the State Government together with the grounds on which the order had been made, as required under sub-section (3) of section 12 of the Act and the State Government on 27.7.87 accorded approval to the petitioner's detention. 3. The petitioner, however, was taken in custody under the said order on 6.4.88 and remanded to jail custody. On 10.4.88 the grounds of detention were served upon him. He has since been under detention. 4. This case is one, in which on a closure examination of the order of detention made under section 12 (1) of the Act by the District Magistrate appears to have lost its purpose and the approval accorded by the State Government remained just a formality instead of a thing done on a consideration that the order should remain in force for more than 12 days after the making thereof. Section 12 of the Act states that the State Government may order directing that such an antisocial element be detained whose activities are prejudicial to the maintenance of the public order and e is reason to fear that his -activities cannot be prevented otherwise than by the immediate arrest of such person. This power of the State Government has been delegated to the District Magistrate, who also can make on order of detention subject to the condition that he shall forthwith report the fact to the State Government together with the grounds on which the order has been made and such other particulars as in his opinion, have bearing on the matter. This power of the State Government has been delegated to the District Magistrate, who also can make on order of detention subject to the condition that he shall forthwith report the fact to the State Government together with the grounds on which the order has been made and such other particulars as in his opinion, have bearing on the matter. If this is not done within twelve days of the making of the order by the District Magistrate and the approval of the State Government is not obtained in the mean time, the order of detention cannot operate beyond a period for more than twelve days. 5. A course has been indicated in section 16 of the Act, in the case of a person in respect of whom detention order has been made and who has absconded or is concealing himself so that the order cannot be executed. It provides, inter alia that the Government or the District Magistrate may make a report in writing of such fact to the Chief Judicial Magistrate or a Judicial Magistrate of the first class having jurisdiction in the place where the said person ordinarily resided and by order notified in the official gazette direct the said person to appear before such officer at such place and within such period as may be specified in the order. In the instant case, no action under section 16 of the Act has been taken. 6. Section 12 of the Act empowers arrest of that person whose activities in some manner appear prejudicial to the maintenance of public order when there is reason to fear that the activities of that person cannot be prevented otherwise than by immediate arrest only for the purpose of ensuring that the person concerned is prevented from acting ill any manner prejudicial to the maintenance of public order. It is the imminency of the danger of public order being disturbed that the Act empowers the State Government and the District Magistrate, as the case may be, to make the order of detention. It is the imminency of the danger of public order being disturbed that the Act empowers the State Government and the District Magistrate, as the case may be, to make the order of detention. The proviso to sub-section (3) of section 12 of the Act has envisaged communication of the grounds of detention after five days but not later than ten days from the date of detention and provided for the words "twelve days" the words "fifteen days" in the said sub-section for obtaining approval by the State Government of the order of detention made by the District Magistrate. It, inter alia has, thus, incorporated a scheme to prevent anti-social activities likely to disturb public order, by arrest of such person. 7. Grounds of detention as to the activities of the petitioner are in one sense related to maintenance of law and order, but taken together may be prejudicial to the maintenance of public order. I need not, however, go into this aspect of the case, for in my view the very fact that the order for detention made on 16.7.87 was brought into effect only on 5.4.88 is enough for holding that the petitioner was not detained for the reason that his immediate arrest was necessary to prevent his activities which were prejudicial to the maintenance of public order. After making the order of detention and sending report to the State Government together with the grounds, the District Magistrate did nothing as envisaged in section 16 of the Act and after approving the order of detention the State Government forgot the case of the petitioner which, in case the petitioner's immediate arrest was necessary, would have prompted it to take recourse to sections 16 of the Act. The period of about nine months elapsing from the date of the order of detention and the arrest of the petitioner was enough to conclude a proceeding in accordance with section 3 of the Act and to make an order as envisaged therein. 8. A detention order which was kept in abeyance for period of about nine months cannot have any justification as there could be many circumstances and facts intervening which could substantially alter the position and reasons to fear that the petitioner's anti-social activities could not be prevented otherwise than by immediate arrest may not exist. 9. 8. A detention order which was kept in abeyance for period of about nine months cannot have any justification as there could be many circumstances and facts intervening which could substantially alter the position and reasons to fear that the petitioner's anti-social activities could not be prevented otherwise than by immediate arrest may not exist. 9. To detain a person on subjective satisfaction as envisaged in section 12 of the Act without diligence may be found stricken by malice in law. If immediate arrest was necessary, the respondents had to make a report in writing to the Chief Judicial Magistrate or Judicial Magistrate of the first class having territorial jurisdiction and to notify that such person should appear before such officer. If nothing, as indicated therein, is done, there is no other conclusion possible but to hold that there was no cause to immediately arrest the petitioner. 10. Since I have come to the conclusion that the petitioner's detention is mala fide in law for the reasons stated above I do not consider it necessary to go into the question whether the grounds served upon the petitioner provide material to hold that the activities of the petitioner were prejudicial to the maintenance of public order or not. 11. For the reasons stated above, this application is allowed. The respondents arc directed to release the petitioner from custody forthwith. Let a writ in the nature of Habeas/Mandamus accordingly issue.