Dewanand Jha v. State Of Bihar — 1997 DIGILAW 786 (PAT)

Judgment B.P.Singh and Dharmpal Sinha JJ. 1. In this habeas corpus petition the petitioner has prayed for quashing of the order of detention dated 2.5.1997, whereby the District Magistrate, Araria, on being satisfied that it was necessary so to do, with a view to preventing the petitioner from acting in any manner prejudicial to the maintenance of the public order, passed the order of detention under Section 12 of the Bihar Control of Crimes Act, 1981 (hereinafter to be referred to as the Act). He has also impugned the order dated 2.8.1997 passed by the State Government confirming the order of detention under Section 21 of the Act. 2. It appears that the petitioner was in jail custody in connection with offences said to have been committed be him, but the detaining authority was conscious of the fact that he was likely to be released on bail and, therefore, it was necessary to pass the order of detention with a view to preventing him from acting in any manner prejudicial to the maintenance of the public order. It is not in dispute that the order of detention was served on the petitioner on the same day in jail and the grounds of detention were served upon him on 6.5.1997. The order of detention was approved by the State Government under Section 12 (3) of the Act on 13.5.1997. The petitioner also represented to the State Government against the order of detention on 28.5.1997, which was rejected by the Government on 23.6.1997. The matter was placed before the Advisory Board under the Act and the Advisory Board also submitted a report finding that there was, in its opinion, sufficient ground for detention of the petitioner. Pursuant thereto, the order, confirming the order of detention, was passed on 2.8.1997 in exercise of power under Section 21 (1) read with Section 22 of the Act. By the aforesaid order, which is Annexure-10 to the writ petition, the State Government confirmed the detention order dated 2.5.1997, made by the District Magistrate, Araria, and further directed that the petitioner shall remain in detention till 1st of May, 1998. 3. This Court issued notice to the respondents on 27.8.1997 and the rule was made returnable within two weeks. A counter affidavit was filed on behalf of the District Magistrate, Araria, affirmed by an Executive Magistrate. 3. This Court issued notice to the respondents on 27.8.1997 and the rule was made returnable within two weeks. A counter affidavit was filed on behalf of the District Magistrate, Araria, affirmed by an Executive Magistrate. This Court refused to act on the basis of the counter affidavit affirmed by the Executive Magistrate and directed the detaining authority itself to affirm the counter affidavit. The District Magistrate, Araria, thereafter, filed a counter affidavit justifying the order of detention. 4. Though many grounds have been urged in the writ petition, counsel for the petitioner has urged before us only one submission, namely, that the order of detention remained in force for only three months and since no order extending the period of detention was passed within the period of three months as required by the Constitution of India, the order passed on 2nd of August, 1997 (Annexure-10) extending the period of detention till 1st of May, 1998, was bad in law rendering the detention illegal after 1st of August, 1997. Reliance has been placed upon a decision of the Supreme Court reported in 1972 (1) SCC 456 , Shri Ujjal Mandal V/s. The State of West Bengal, and it has been urged that following the principles laid down in the aforesaid decision, this court may hold that the detention of the petitioner after the 1st of August, 1997, is illegal. 5. It is not disputed before us that the order of detention was served on the petitioner while he was in jail on 2.5.1997. This is also evident from the endorsement made by the petitioner on the order of detention, which forms part of An-nexure-A. It is also not disputed that the State Government passed order confirming the detention order on 2.8.1997 in exercise of power vested in it under Section 21 (1) read with Section 22 of the Act. The short submission urged before us is that the order of detention remained in force for three months, that is, from 2nd May, 1997 to 1st of August, 1997. Since the State Government failed to pass an order of confirmation within this period of three months, the detention of the petitioner after expiry of three months period became illegal and the same would not be given legal sanction by passing an order of confirmation and extending the term of detention after the expiry of three months. Since the State Government failed to pass an order of confirmation within this period of three months, the detention of the petitioner after expiry of three months period became illegal and the same would not be given legal sanction by passing an order of confirmation and extending the term of detention after the expiry of three months. It was, therefore, submitted that the order of confirmation could not have been passed after 1st of August, 1997, the date of which the petitioner completed three months of detention. 6. Counsel for the petitioner relied upon the constitutional provisions as enshrined in Clause (4) of Article 22, which reads as follows : "Art. 22 (4). No law providing for preventive detentive shall authorise the detention of person for a longer period than three months unless (a) an Advisory Board consisting of persons who are, or have been, or are qualified to be appointed as Judges of a High Court has reported before the expiration of the said period of three months that there is in its opinion sufficient cause for such detention : Provided that nothing in this sub-clause shall authorise the detention of any person beyond the maximum period prescribed by any law made by Parliament under sub-clause (b) of Clause (7); or provisions of any law made by Parliament under sub-clauses (a) and (b) of Clause (7)." Sections 21 and 22 of the Bihar Control of Crimes Act provide as follows : "21. Action upon the report of the Advisory Board. (1) In any case where the Advisory Board has reported that there is, in its opinion sufficient cause for the detention of a person, the Government may confirm the detention order and continue the detention of the person concerned for such period as it thinks fit. (2) In any case where the Advisory Board has reported that there is, in its opinion, no sufficient cause for the detention of a person, the Government shall revoke the detention order and cause the person concerned to be released forthwith. 22. (2) In any case where the Advisory Board has reported that there is, in its opinion, no sufficient cause for the detention of a person, the Government shall revoke the detention order and cause the person concerned to be released forthwith. 22. Maximum period of detention.The maximum period for which any person may be detained in pursuance of any detention order which has been confirmed under Section 21 shall be twelve months from the date of detention : Provided that nothing contained in this section shall affect the power of the Government to revoke or modify the detention order at any earlier time." 7. A similar question arose for consideration before the Supreme Court in the case of Shri Ujjal Mandal (supra). In that case the detention order was made on May 11, 1971 and the same was confirmed by the State Government on August 17, 1971. The point before the Supreme Court was that since the detention order was confirmed by the State Government only on August 17, 1971, it was beyond three months from the date of detention, namely, May 11,1971, therefore, the detention of the petitioner after the expiry of three months from the date of detention was illegal. After considering the provisions of Article 22 (4) of the Constitution of India and scheme of the Act under which the petitioner was detained, the Court upheld the contention. We may only notice that the Act in question in that case was the West Bengal (Prevention of Violent Activities) Act, 1970, and its relevant provisions and the relevant provisions of the Bihar Control of Crimes Act are in pari materia. After considering the scheme of the Act and the constitutional provision the Court observed as follows : "7. Section 11 of the Preventive Detention Act, 1950, where the phraseology employed is the same as in Section 12, came up for consideration in Dattatreya Moreshwar Pangakar v. State of Bombay, before this Court and this is what Mukherjee, J., said : "In my opinion, the words for such period as it thinks fit pre-suppose and imply that after receipt of the report of the Advisory Board the detaining authority has to make up its mind as to whether the original order of detention should be confirmed and if so, for what further period the detention is to continue. Obviously, that is the proper stage for making an order or decision of this description as the investigation with regard to a particular detenue such as is contemplated by the Preventive Detention Act is then at an end and the appropriate Government is in full possession of all the materials regarding him." 8. Article 22 (4) of the Constitution has specified the maximum limit of initial detention, and detention for a longer period than three months can only be made on the basis of the report of the Board. The Act authorises a possible detention of more than three months. It is because the appropriate Government wants to detain a person for more than three months that the matter is referred to the Board and it is only when the Board makes its report that the appropriate Government can fix the period of detention under sub-section (1) of Section 12. So, when the Government receives the report of the Board stating that there is sufficient cause for detention of a person, if the Government wants to detain him for a period beyond three months, it has to pass an order or make a decision under Section 12 (1) to confirm the order of detention. The confirmation of the detention order without anything more would result in an automatic continuation of the detention, even if there is no separate decision to continue the detention for any specific period as held by this Court in Dattatreya Moreshwar Pangarkar v. State of Bombay, (supra). When Section 12 (1) of the Act speaks of "and continue the detention of the person concerned for such period as it thinks fit", it can only mean continuance of detention from the point of time at which detention would become illegal if the order of detention is not confirmed, namely, the expiry of three months from the date of detention. It would not be necessary to confirm the order of detention even after the receipt of the report of the Board by the Government, if the Government only wants to continue the detention for the period of three months from the date of detention as the initial order of detention would authorise the continuance of detention for that period without any confirmation. Confirmation is necessary only to continue the detention after the expiry of three months. Confirmation is necessary only to continue the detention after the expiry of three months. If that be so, it stands to reason to hold that the order of detention must be confirmed before the expiry of the three months. 9. To put the matter in a nut-shell: the State Government has power under the Act to detain a person without trial beyond a period of three months but limited to a period of one year. That power the State Government may exercise on the receipt of the opinion of the Board that there is sufficient cause for the detention. When the State Government receives that opinion, it has still the option to exercise the power and to continue the detention beyond the period of three months or not. confirmation is the exercise of the power to continue the detention after the expiry of three months. Unless that power is exercised within the period of three months from the date of detention, the detention after the expiry of that period would be without the authority of the Law." 10. To us, it appears that the aforesaid judgment of the Supreme Court squarely covers the case of the petitioner. No decision of the Supreme Court taking a contrary view has been brought to our notice. It must, therefore, be held, following the aforesaid decision of the Supreme Court, that since confirmation is the exercise of the power to continue the detention after the expiry of three months, unless the power is exercised within the period or three months from the date of detention, the detention after the expiry of that period would be without the authority of the law. This position in law follows from the provision of Article 22 (4) of the Constitution, since the Bihar Control of Crimes Act does not prescribe any period within which an order of confirmation has to be passed by the State Government. 11. The learned Additional Advocate General No. III made a valiant attempt to defend the detention of the petitioner. It was submitted by him that the file may disclose that the decision to confirm the detention of the petitioner may have been recorded in the files on an earlier date, and the formal order of confirmation was passed on 2nd of August, 1997. It was submitted by him that the file may disclose that the decision to confirm the detention of the petitioner may have been recorded in the files on an earlier date, and the formal order of confirmation was passed on 2nd of August, 1997. Apart from the fact that there is no factual foundation for the submission, it is immaterial as to when the Government took a decision in the file to confirm the order of detention. The order of confirmation of detention would take effect only when it is issued, and the order confirming the detention bears the date 2nd of August, 1997. We must, therefore, conclude that the order of confirmation was passed on 2nd of August, 1997 and it will not be permissible for this Court to substitute any other date for the date which appears on the face of the order. 12. It was then contended that even if it be held that the order of confirmation was to be passed within three months from the date of detention, that was complied with inasmuch as the order was passed on 2nd of August, 1997. Counsel sought to support this reasoning by referring to the provisions of the Limitation Act providing for exclusion of the date of the issuance of the order for the purpose of computing limitation. We cannot accept this submission urged by the learned Additional Advocate General because the period of three months has been fixed by the Constitution of India and there is no provision in the Constitution of India for exclusion of the date on which the order of detention is passed. Moreover, even if we accept the submission urged by the learned Additional Advocate General the last date for pass ing the order of confirmation would stil be 1st of August, 1997. We cannot also lose sight of the fact that the Government itself was a ware of the fact that the period of three months detention expired on 1st of August, 1997. This is obvious from the fact that the order of confirmation itself, while extending the period of detention, prescribed that the petitioner would be detained till 1st of May, 1998. This is sufficient because the maximum period of detention prescribed under Section 22 of the Act is one year. This is obvious from the fact that the order of confirmation itself, while extending the period of detention, prescribed that the petitioner would be detained till 1st of May, 1998. This is sufficient because the maximum period of detention prescribed under Section 22 of the Act is one year. Therefore, the Government while extending the period of detention, was conscious of the fact that the period of one year would expire on 1.5.1998 and therefore prescribed that he would be kept in detention till 1st of May, 1998. Even if the provisions of General Clauses Act are to be made applicable, as was suggested by the learned Additional Advocate General, that would not support the argument urged on behalf of the respondents becauses if month is taken to mean the Calendar month, three months would expire on 31st of July, 1997. From whatever angle considered, we have no doubt that the period of three months expired on 1st of August, 1997, and the order of confirmation could have been passed by the State Government on or before 1st of August, 1997, but not later. Since the order of confirmation was passed on 2nd of August, 1997, the detention of the petitioner became illegal after the expiry of three months on 1.8.1997 and, therefore, the detention was without the authority of the law thereafter. It could not thereafter be extended or continued by the State Government by exercise of power under Section 21 or 22 of the Act. 13. In these circumstances, we allow this writ petition and quash the order of confirmation issued by the State Government on 2.8.1997 (Annexure-10) and direct that the petitioner be released forthwith, unless his detention in custody is required by any other order passed in accordance with law in any other proceeding. 14. This order may be communicated to the detaining authority forthwith by fax at the petitioners expense.