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1992 DIGILAW 177 (PAT)

Raj Kumar Mahto @ Langra v. State of Bihar

1992-05-12

S.C.MOOKHERJI

body1992
JUDGMENT S. C. MOOKHERJI, J. The petitioner Raj Kumar Mahto alias Langara has questioned the legality and validity of the order of detention made on 22.7.1989 by respondent no. 2, the District Magistrate, Muzaffarpur, under Sub-section (2) of Section 12 of the Bihar Control of Crimes Act, 1981 (for short the Act) read with notification no. 6012 dated 19.6.1989, Government of Bihar, Home department, whereby, he has been directed to remain under detention in Muzaffarpur Central Jail with a view to preventing him from acting not in a manner prejudical to the maintenance of the public order in the district of Muzaffarpur and accordingly, the petitioner seeks a writ of Hebeas-Corpus. 2. Pursuant to the order of detention, the petitioner was served with the grounds of detention. There are four criminal cases besides some sanha entries referred to in the grounds of detention as forming the basis for arriving at the subjective satisfaction on the part of the District Magistrate as contained in annexure 2 to this application. It is stated, inter alia, in the detention order, that the cases referred to therein and other incidents, disturbed the public peace in as much as an atmosphere of terror has been created in the area. It is further alleged that the people Were so afraid of the petitioner that they thought advisable to keep quiet and did not report these incidents to the police station and as such, it has become difficult to control the crimes in which the petitioner is involved through ordinary process and accordingly, the detaining authority was satisfied that if the petitioner is allowed to remain at large, he would involve himself in activities prejudicial to the maintenance of the public order. The District Magistrate reported the facts of making the order of detention to the State Government and the said order was confirmed (annexure 4). 3. The order of detention has been justified in the counter-affidavit filed on behalf of respondent no. The District Magistrate reported the facts of making the order of detention to the State Government and the said order was confirmed (annexure 4). 3. The order of detention has been justified in the counter-affidavit filed on behalf of respondent no. 2, the District Magistrate, Muzaffarpur, and it is stated that on the basis of the materials available with the district administration, the order of detention was passed as the petitioner is a veteran criminal, engaged in creating terror amongst the law abiding and peace loving citizens of the locality and that the detaining authority was satisfied that if the petitioner was left at large he would be a menace to the locality, terror to the law abiding citizens of the locality and would Act, in the manner prejudicial to the peace and maintenance of public order in the locality. It is further stated that the detaining authority after applying its mind and being fully satisfied passed the order of detention. 4. Three grounds have been raised on behalf of the petitioner viz (a) that the detaining authorities were not made aware at the time the detention order was made that the detenu (petitioner) had moved application for bail in the cases referred to in the detention order and he was enlarged on bail which indicates a total absence of application of mind on the part of the detaing authorities while passing the order, (b) the representation of the detenu having not been disposed of within a reasonable period after long dely, the order is fit to be set aside on this score also, and (c) the quorum of Advisory Board was not in accordance with Section 18 (1) of the Act, as the case was not considered by all the three members and as such, the order of detention is also illegal. 4. In support of the first point the decisions of the Supreme Court reported in A. I. R. 1987 S. C. 137 (Anant Sakharam Raut Vs. State of Maharashtra and ano.) and A. I. R. 1988 S. C. 934 (Vijay Kumar vs. Union of India and ors have been relied upon. It has been further contended that there is no mention in the order about the fact that in the cases in which the petitioner was involved he has been released on bail by the courts. State of Maharashtra and ano.) and A. I. R. 1988 S. C. 934 (Vijay Kumar vs. Union of India and ors have been relied upon. It has been further contended that there is no mention in the order about the fact that in the cases in which the petitioner was involved he has been released on bail by the courts. In this connection paragraph 12 of the application may be quoted which is as follows:- "There is no mention in the order about the fact that the petitioner was released on bail in all the four cases and he is an under Trial prisoner as well as this fact has not been stated in the ground of detention when prior to the detention order the petitioner was already on bail and there has been violation of procedural requirement at different stages as such detention of the petitioner is illegal." This averment has not been controverted in the counter affidavit filed on behalf of respondent no. 2 As a matter of fact, in the entire order of detention there is no mention of the fact that the detaining authority aware of the fact that the detenu petitioner had moved application for bail and that he was enlarged on bail. 5. So far the second point is concerned it may be pointed out that according to the petitioner he filed representation on 30.7.1989 and his representation was disposed of about three and a half months after on 18.11.1989. It is submitted that there is explanation of this undue delay. The petitioner has accordingly relied upon a decision of the Supreme Court reported in A.I.R. 1982 S.C. 1548 (Devi Lal Mahto Vs. State of Bihar and anr). Though that case was under National security Act, but the principle laid down therein is applicable to this case which is also on the pattern of National Security Act, No explanation has been offered to explain this undue delay. It has only been stated in paragraph 13 of the counter affidavit that the delay was caused due to the fact that the State Government was collecting detailed information. It is obligatory on the State Government to dispose of the representation within a reasonable time. It has only been stated in paragraph 13 of the counter affidavit that the delay was caused due to the fact that the State Government was collecting detailed information. It is obligatory on the State Government to dispose of the representation within a reasonable time. As a matter of fact, the delay of more than three months has not been properly explained and as such this inordinate delay in dealing with the representation would vitiated the order as has been held by the Supreme Court in the decision referred to above. 6. So far as third point is concerned, it is not in controversy that the quorum of the Advisory Board was not complete. In other words all the three members were not present and therefore, in absence of all the three members the requirement of Sections 18, 19 and 20 of the Bihar Control of Crimes Act, have not been complied with. On this ground also the detention order is vitiated. In this connection, reference may be made to a Full Bench decision of this Court reported in 1990 P.L.J.R. 69 (Raj Kumar Gupta Vs. The State of Bihar & ors.) 7. For the reasons stated above, the order of detention passed against the petitioner is fit to be quashed and accordingly, the same is quashed with a direction to release the petitioner forthwith, if not wanted in any other case. 8. This application is accordingly allowed. Application allowed.