Research › Browse › Judgment

Patna High Court · body

1990 DIGILAW 306 (PAT)

S. Ali Imam v. State Of Bihar

1990-09-12

G.C.BHARUKA, S.C.MOOKHERJI

body1990
Judgment G.C.Bharuka, J. 1. The present writ application has been filed by the petitioner for issuance of a writ of habeas corpus to declare the order of detention of the petitioner passed under Sec. 12(2) of the Bihar Control of Crimes Act, 1981 (hereinafter to be referred to as the Act), as illegal and for the release of the petitioner from the custody. 2. Pursuant to the order of detention dated 11.12.1989 (Annexure-1) passed by the respondent, District Magistrate, Derbhanga under Sec. 12(2) of the Act, the petitioner was arrested on 3.2.1990. On that very day he was served with the grounds of detention which have been filed an Annexure1/1 to the writ application. The detention was approved by the Government on 12.12.1989. The Advisory Board also approved the validity of the detention. The petitioner had filed a representation before the Government on 20.2.1990 which has also been rejected on 30.3.1990. Counter Affidavits have been filed on behalf of the District Magistrate, the detaining authority, as well as, the State Government. 3. It appears from the records of the case that before filing the present writ application, the petitioner had filed two more writ applications, namely, Cr.W.J.C. No. 39 of 1990 and Cr.W.J.C. No. 61 of 1990, Cr.W.J.C. No. 39 of 1990 was permitted to be writhdrawn since the petitioner wanted to take recourse under Sec. 24 of the Act and the second writ application stood dismissed for default. On this premise a preliminary objection has been raised on behalf of the State that the present writ application is not maintainable as it is barred by the principles of res judicata. The objection of the State is not sustainable. Admittedly, this Court had not on any earlier occasion considered the validity of the impugned detention order on merit. Neither the withdrawal of a habeas corpus petition nor its dismissal for default can tantamount to res judicata constructive or otherwise so as to bar the entertainment of the present writ application. 4. In the case of Lal Bhai Jogi Bhai Patel V/s. Union of India and Ors. reported in -- . Neither the withdrawal of a habeas corpus petition nor its dismissal for default can tantamount to res judicata constructive or otherwise so as to bar the entertainment of the present writ application. 4. In the case of Lal Bhai Jogi Bhai Patel V/s. Union of India and Ors. reported in -- . it has been held that the application of the doctrine of constructive res judicata is confined to civil actions and civil proceedings, This principle of public policy is entirely inapplicable to illegal detention and does not bar subsequent petition for a writ of habeas corpus on fresh grounds which were not taken or decided in the earlier petition for the same relief. 5. In the case of Sarguja Transport Service V/s. The State Transport Appellate Tribunal and Ors. -- , it has been held that withdrawal of the petition under Article 226 without permission to institute fresh petition on the same cause of action is not permissible, but this principle cannot be extended to writ petitions involving personal liberty in which the petitioner prays for issuance of a writ in the nature of habeas corpus or seeks to enforce the fundamental right guaranteed under Article 21 of the Constitution. 6. Since the validity of the grounds taken by the petitioner in the present writ application in order to challenge the legality of his continued detention had not been adjudicated by this Court in the earlier writ applications therefore, in my opinion, the present writ application is quite maintainable. Accordingly, the preliminary objection raised on behalf of the respondents is overruled. 7. Mr. R.C. Sharma, learned Counsel appearing for the petitioner has challenged the order of detention on various grounds. He submits that the grounds given for his detention are non est, irrelevant and extraneous and the impugned action is persuaded by mala fides. To substantiate his argument, he has raised the following pleas- (i) All the three criminal cases referred to under the heading previous criminal history two are of the year 1981 and one is of the year 1982, and as such are stale and irrelevant for arriving at any decision necessitating detention of the detenu under the provisions of the Act. To substantiate his argument, he has raised the following pleas- (i) All the three criminal cases referred to under the heading previous criminal history two are of the year 1981 and one is of the year 1982, and as such are stale and irrelevant for arriving at any decision necessitating detention of the detenu under the provisions of the Act. (ii) The petitioner has already been discharged in Bahera P.S. Case No. 148 of 1981 which has been mentioned as one of the instances of the criminal antecedent of the detenu, but in the description of history this fact has not been taken into account by the detaining authority which shows sheer non-application of mind and also non-consideration of material facts. A certified copy of the judgment delivered by the trial court has been filed. (iii) Ground No. 2 refers to institution of Bahera P.S. Case No. 139, dated 15.8.1989 but institution of this case is irrelevant for the purpose of detaining the petitioner since he is not an accused in the said case . (iv) The detenu had filed his representation to the Government on 20.2.1990 and the same has been rejected after a considerable delay on 30.3.1990 without any explanation on behalf of the respondents in this regard and, therefore, the detention becomes invalid in law. 8. Mr. Lala Kailash Bihari, the learned Counsel for the State could not controvert any of the basic facts asserted on behalf of the petitioner in order to assail the detention, as enumerated above, but he submits that only because of one or two grounds being irrelevant, non-est or stale, the detention cannot be nullified since some of the grounds are still germane and existent for supporting the validity of the detention under challenge. 9. Mr. Lala Kailash Bihari appearing on behalf of the respondents also submits that a distinction should be drawn between the criminal history set out in the order of detention and the grounds of detection disclosed therein, and even if the instances given by way of history are stale, or irrelevant and are found to be of consequence because of non-consideration of certain material aspects that by itself should not be held to be fatal to the order of detention. 10. I have given my anxious consideration to the rival contentions raised in the case. 10. I have given my anxious consideration to the rival contentions raised in the case. Even if the instances set out under the heading previous criminal history are not to be given the same weightage as the instance given under the head grounds, still it cannot be denied that the very fact of taking in account the criminal antecedents based on certain informations pertaining the institution of some criminal cases has a direct bearing on the mental process of arriving at a decision, may be subjective, or objective and if it is found that the instances cited as history are either non-est irrelevant or some material facts pertaining to those instances have not been taken into account, then in my opinion the detention cannot be sustained. In the present case, it could not be controverted by the respondents that the petitioner had been discharged in Bahera P.S. Case No. 148 of 1981 which has been cited as one the instances of his criminal antecedent, but the grounds of detention of the detenu shows that this fact had not been brought to the notice of the detaining authority. 11. Similarly, one of the grounds set out in Annexure 1/1 is that the case being Bahera P.S. Case No. 139 dated 15.8.1989 had been instituted under various sections of the Indian Penal Code and the Arms Act. The grounds do not spell out as to how it was relevant for the purpose of detaining the petitioner under the provisions of the Act. It has been stated by the petitioner in paragraph No. 14 of the writ application that he is not an accused in this case. This factual ascertion has not been denied by the respondents in their counter-affidavits. A certified copy of the F.I.R. was also produced in the Court which forms part of the record. This also shows that the petitioner is not an accused in this case. The learned Counsel for the State could not justify the relevancy of this ground, and, as such it has to be held that this ground is wholly irrelevant so as to sustain the detention of the petitioner. 12. It has been further submitted that order of detention is also bad because the petitioner had filed his representation to the Government on 20.2.1990, but the same has been rejected on 30.3.1990, i.e. after mero than a month. 12. It has been further submitted that order of detention is also bad because the petitioner had filed his representation to the Government on 20.2.1990, but the same has been rejected on 30.3.1990, i.e. after mero than a month. The counter-affidavits filed by the respondents, have maintained a reliance with regard to the reasons for the delay. During the course of argument, the respondents have not made any effort to explain the delay caused in the disposal of the representation. It has been repeatedly held by the Supreme Court that the representation of the detenu should be dealt with greatest expedition, and if there is any delay in disposal of die representation, the respondents concerned are required to explain each days delay reasonably, and in case the delay is not explained reasonably, then the detention has to be declared void and illegal on this count alone. To substantiate my stand. I may refer to the cases of Ravitra Narain liana V/s. Union of India and Ors. -- Usuf Abbas V/s. The Union of India and Ors. -- and Piyare Singh V/s. The State of Punjab -- . This principle has also been applied by the Full Bench of this Court in respect of a detention under the present Act in the case of Raj Kumar Gupta V/s. The State of Bihar and Ors. reported in 1990 (1) BLJ 314 . 13. It is also well-settled that even if one of the grounds of detention is found to be vague, non-est or irrelevant, the detention stands vitiated in law. It has been held by the Full Bench of this Court in the above referred case of Raj Kumar Gupta that like National Security Act and other preventive laws where special provisions have been made to the effect that the grounds arc severable, there is no such provision under the present Act. So even if one of the grounds is found to be vague, non est or irrelevant, it will be demeed that the subjective satisfaction arrived at by the detaining authority, was not based on the grounds which can be held to be valid. In the statute like the present Act, it has to be presumed that it is the cumulative effect of all the grounds which impells the detaining authority to pass an order of detention. 14. In the statute like the present Act, it has to be presumed that it is the cumulative effect of all the grounds which impells the detaining authority to pass an order of detention. 14. For the reasons stated above, it is held that the order of detention passed by the District Magistrate, Darbhanga on 11.12.1989 under Sec. 12(2) of the Act, which is Annexure-1 to the present writ application is illegal and without jurisdiction and, as such, is being quashed. It is hereby directed that the detenu Section Ali Imam be set at liberty forthwith, if not wanted in any other case. Under the facts and circumstances of the case, there will be no order as to cost. The writ application is accordingly allowed. S.C. Mookherji, J. I agree.