Ramdhir Singh v. State Of Bihar — 1999 DIGILAW 358 (PAT)

Judgment G.S.Chaube, J. 1. Common question of law and fact having been involved in the above-noted three writ applications (Cr. WJC Nos. 232/98R, 233/98R and 237/98R), they have been heard together and are being disposed of by the common order. 2. On 11-8-98, three identical but separate orders of detention purporting to have been made by the District Magistrate of Dhanbad under Section 3 of the National Security Act, 1980 (the Act) were served on the petitioners on the ground that on 15.7.98 they had jointly killed one Binod Singh and his driver Monu Ansari by using AK-47 rifiles and their such act was prejudicial to maintenance of public order. Those orders were later on approved by the State Government on 22.8.98 and confirmed on 20.10.98 after receiving the Report of the Advisory Board constituted under Section 9 of the Act. The order made by the District Magistrate is Annexure 1 to all the writ applications; whereas the orders dated 22.8.98 and 20.10.98 are Annexures 4 and 5 respectively in all the writ applications. The petitioners have been detained for a period of one year with effect from 13.8.1998 ending on 12.8.1999. 3. Annexure 2 contains the grounds of detention. In case of Ramdhir Singh, it had been stated that he is a hardened criminal involved in a number of criminal cases including murder, kidnapping, extortion and possession and use of fire arms and explosive substance. In particular, it was stated that on 15.7.98 at about 8.45 a.m. when Binod Singh and his driver Monu Ansari were going to Katras coal dump on an Ambassador car, this petitioner and petitioner Rajiv Ranjan Singh joined by one unknown person indiscriminately opened fire on them killing them at the spot and thereafter, they fled away. It was also stated that due to the said incident, peace and tranquillity of whole of the Katras area was disturbed and public order was affected for a few hours at the place of the shooting, that is, Bhagat Singh Chawk in Katras town. In the grounds were listed 8 other criminal cases in which the said petitioner was involved and charge-sheet, etc. 4. In the grounds were listed 8 other criminal cases in which the said petitioner was involved and charge-sheet, etc. 4. Similar grounds were stated respecting petitioners Bacha Singh and Rajiv Ranjan Singh as well except that petitioner Bacha Singh was stated to be involved and charge-sheeted in 11 criminal cases instituted till 1994; whereas petitioner Rajiv Ranjan Singh was shown to have been charge-sheeted in two criminal cases of murders; one registered in 1994 and another in 1996. 5. It may be mentioned that the orders of detention of the three petitioners were passed and served on them while they were in judicial custody at Dhanbad District Jail in connection with the incident of murder dated 15.7.98 giving rise to Katras P.S. case No. 232/98. 6. In these proceedings, the petitioners have challenged the sustain- ability of the order dated 20.10.98 of the State Government (Respondent No. 1) as contained in Annexure-5 confirming the orders of detention as contained in Annexures-1 and 4. The petitioners have stated that as a matter of fact, at the time of the incident of 15.7.98 in course of which Binod Singh and his driver were murdered, they were not present even in the district of Dhanbad. The case of petitioners Ramdhir Singh and Rajiv Ranjan Singh is that at the relevant time, they were at their native place in the district of Balia in Uttar Pradesh. They have further alleged that they have been implicated in the case and sought to be detained by invoking the provisions of the Act due to political vendetta. They have also stated that even though they made representation against the order of their detention to the appropriate authorities, the same has not been disposed of by them. Besides, it has been contended on behalf of the petitioners that even if what has been stated respecting the incident of 15.7.98 is accepted to be true, that incident did not affect public order because at best it can be said to be a question of law and order. Therefore, for that incident they could not have been detained pursuant to the provisions of Section 3 of the Act. 7. Two separate counter-affidavits have been filed in each proceedings; one by and on behalf of R. No. 4, the District Magistrate-cum-Deputy Commissioner of Dhanbad; and another by R. No. 5, the Superintendent of Police of Dhanbad. Therefore, for that incident they could not have been detained pursuant to the provisions of Section 3 of the Act. 7. Two separate counter-affidavits have been filed in each proceedings; one by and on behalf of R. No. 4, the District Magistrate-cum-Deputy Commissioner of Dhanbad; and another by R. No. 5, the Superintendent of Police of Dhanbad. The contents of both the counter-affidavits are also identical and therein the order of detention has been sought to be justified on the grounds stated in Annexure 2 to the writ applications. 8. At the time of hearing, Mr. M. M. Banerjee learned Counsel for petitioners in all the three cases has canvassed that the orders of detention passed against the petitioners by the District Magistrate-cum-Deputy Commissioner of Dhanbad and subsequently approved and confirmed by the State Government as per Annexures 4 and 5 are bad on the following grounds : first, that there is nothing to indicate in the order of detention dated 11.8.98 (Annexure 1) that R.No. 4 was authorised under sub section (3) of Section 3 of the Act to pass the order of detention; secondly, that the provisions of sub-section (5) of Section 3 of the Act were not complied with; thirdly, that at the time of furnishing grounds of detention, the detaining authority, namely, R. No. 4 had not disclosed therein that petitioners were entitled to make representation to him or even to the State Government; fourthly, that even though a representation had been filed by them before the State Government, the same has not been disposed of as yet; and lastly, that the act complained of did not amount to problem of public order. At best only the question of law and order was involved. 9. Sub-section (2) of Section 3 of the Act provides that the Central Government or the State Government may, if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the security of the State or from acting in any manner prejudicial to the maintenance of the public order, or from acting in any manner prejudicial to the maintenance of supplies and services essential to the community, it is necessary so to do, make order directing that such person be detained. Sub-section (3) thereof lays down that if, having regard to the circumstances prevailing or likely to prevail in any area within the local limits of the jurisdiction of a District Magistrate or a Commissioner of Police, the State Government is satisfied that it is necessary so to do, it may, by order in writing, direct that during such period as may be specified in the order, such District Magistrate or Commissioner of Police may also, if satisfied as provided in sub-section (2) exercise the powers conferred by the said sub-section. It is in accordance with this provision that impugned orders of detention as contained in Annexure 1 to the writ applications were issued by R. No. 4. However, there is no mention in the said orders that he had been duly authorised by the State Government in this behalf. Mr. Banerjee submitted that on the record, not even in the counter-affidavit R. Nos. 4 and 5 there is anything to indicate that R. No. 4 had been duly authorised by the State Government for making the impugned orders in accordance with the provisions of sub-section (3) of Section 3 of the Act. 10. However, Mr. A. Prakash learned Counsel appearing for the respondents submitted that since in none of the writ applications the competence or authority of R. No. 4 in making the detention orders as contained in Annexure-1 have been called in question, it was not necessary either to state in the counter affidavits that the said respondent had been duly authorised by the State Government nor was it incumbent on the part of the respondents to produce in this court the order of authorisation issued by the State Government I find substance in the contention of the learned Counsel for the respondents. Since no where in the writ applications, the petitioners have sought to challenge the competence of R. No. 4 in making the order of detention dated 11.8.98, the respondents were not obliged to produce before this Court any document to substantiate the fact the R. No. 4 had been duly authorised by the State Government in accordance with the provision of sub-section (3) of Section 3 of the Act. 11. Mr. 11. Mr. Banerjee has further contended that in view of the provision of sub-section (5) of Section 3 of the Act, the State Government was under obligation to report to the Central Government about the detention of the petitioners together with grounds on which the order of detention has been made within seven days after approval by the State Government on 22.8.98. However, according to him, there is no mention anywhere in the counter-affidavit that the State Government had reported the matter to the Central Government together with grounds of detention and other particulars. There again, the learned Counsel for the respondents has submitted that in none of the writ applications, it has been averred that the State Government had failed to report the order of detention together with grounds thereof to the Central Government within a period of seven days after approval thereof. Since no such averment has been made, the respondents were in no way obliged to state in the counter-affidavit, or even to produce documents in order to show, that such report had, in fact, been submitted to the Central Government Therefore, in my opinion, this ground for challenging the orders of detention of the petitioners also goes. 12. Mr. Banerjee has also submitted that in view of the provision of Clause (5) of Article 22 of the Constitution and decisions of the Apex Court, it was obligatory on the part of R. No. 4 to inform the detenu that he was entitled to make a representation to him as well as to the State Government against the order of the detention and this not having been done, the orders of detention have vitiated. Section 8(1) of the Act provides that when a person is detained in pursuance of a detention order, the authority making the order shall, as soon as may be, but ordinarily not later than five days and in exceptional circumstances and for reasons to be recorded in writing, not later than ten days from the date of detention, communicate to him the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order to the appropriate Government. 13. 13. In the case of Kamlesh Kumar Ishwardas Patel V/s. Union of India and others, (1995) 4 SCC 51 , it has been held by a five-Judge Bench of the Apex Court that Article 22(5) imposes a dual obligation on the authority making the order of preventive detention (i) to communicate to the person detained as soon as may be the grounds on which the order of detention has been made; and (ii) to afford the person detained the earliest opportunity of making a representation against the order of detneiton. Article 22(5) thus proceeds on the basis that the person detained has a right a make a representation against the order of detention and the aforementioned two obligations are imposed on the authority making the order of detention with a view to ensure that right of the person detained to make a representation is a real right and he is able to take steps for redress of a wrong which he, thinks has been committed. Article 22(5) does not, however, indicate the authority to whom the representation is to be made, Since the object and purpose of the representation that is to be made by the person detained is in enable him to obtain relief at the earliest opportunity, the said representation has to be made to the authority which can grant such relief, i.e., the authority which can revoke the order of detention and set him at liberty. The authority that has made the order of detention can also revoke it. This right is inherent in the power to make the order. It is recognised by Section 21 of the General Clauses Act, 1897 though it does not flow from it. It can, therefore, be said that Article 22(5) postulates that the person detained has a right to make representation against the order of detention to the authority making the order. In addition, such a representation can be made to any other authority which is empowered by law to revoke the order of detention. It can, therefore, be said that Article 22(5) postulates that the person detained has a right to make representation against the order of detention to the authority making the order. In addition, such a representation can be made to any other authority which is empowered by law to revoke the order of detention. The Apex Court has further held in para 14 the report at page 59 that "Article 22(5) must, therefore, be construed to mean that the person detained has a right to make a representation against the order of detention which can be made not only to the Advisory Board but also to the detaining authority, i.e., the authority that has made the order of detention or the order for continuance of such detention, which is competent to give immediate relief by revoking the said order as well as to any other authority which is competent under law to revoke the order for detention and thereby give relief to the person detained. The right to make a representation carries within it a corresponding obligation on the authority making the order of detention to inform the person detained of his right to make a representation against the order of detention to the authorities who are required to consider such a representation. 14. Obviously, the grounds of detention supplied to the detenu must necessarily indicate that the detenu has a right to make a representation against the order of detention to the authority making the order as well as to the State Government in accordance with the provision of Section 8 of the Act. Nowhere in Annexure 2 which contains the grounds of detention there is any mention that the detenu might make representation to respondent No. 4 himself or thereafter to the State Government as postulated under Section 8 of the Act. Therefore, this omission on the part of the detaining authority, namely, R. No. 4 to inform the detenu that he might make representation to him or even to the State Government against the order of detention, is certainly a grave one and vitiates the order of detention. 15. Therefore, this omission on the part of the detaining authority, namely, R. No. 4 to inform the detenu that he might make representation to him or even to the State Government against the order of detention, is certainly a grave one and vitiates the order of detention. 15. It has been contended on behalf of the petitioners that even though they filed representation to the appropriate authority against the orders of their detention, so far the same has not been disposed of by the State Government Annexure 3 to the writ applications are the representations filed by the petitioners. They are addressed to the Addl. Secretary, Home (Special) Deptt., Government of Bihar. The representations purport to have been received in the office of the Addl. Secretary aforesaid on 1-9-98. It has been submitted by Mr. Banerjee that so far those representations have not been disposed of by the State Government The contention is that once a representation had been made by the petitioners in the State Government, it was duty bound to dispose of the same independently of the fact whether or not that representation was placed before the Advisory Board for consideration as required under Sections 10 and 11 of the Act. In reply to the contention of the petitioners in the writ applications, R. Nos. 4 and 5 have stated only this much in their counter-affidavits that the representation filed by the petitioners was placed before the Advisory Board which considered the same and on the recommendation of the Board, the State Government confirmed the order of detention as per Annexure 5. 16. In the case of Jayanarayan Sukul V/s. State of West Bengal, 1970(1) SCC 219 , a Constitution Bench of the Apex Court has laid down the broad principles respecting representation by a detenu against the order of his detention and held that the appropriate authority is bound to consider the representation of the detenu as early as possible; that the consideration of the representation of the detenu by the appropriate authority is entirely independent of any action by the Advisory Board including the consideration of the representation of the detenu by the Advisory Board; that there should not be any delay in the matter of consideration and that the appropriate Government is to exercise its opinion and judgment on the representation before sending him case along with the detenus representation to the Advisory Board. 17. 17. In the case of Smt. Gracy V/s. State of Kerala and another, (1991) 2 SCC 1 , it was also held by the Apex Court that the nature of duty imposed on the detaining authority under Article 22(5) in the context of the extraordinary power of preventive detention is sufficient to indicate that strict compliance is necessary to justify interference with personal liberty. It is more so since the liberty involved is of a person in detention and not of a free agent. The obligation of the Government to consider the representation is different from, independent of and in addition to the obligation of the Board to consider it at the time of hearing the reference before giving its opinion to the Government. 18. Therefore, it is manifest that once the petitioners had made representation to the State Government against the order of their detention, the State Government was duty bound to consider their representation and make appropriate order before placing the same before the Advisory Board for consideration. This not having been done by the State Government the detention of the petitioners have become illegal and on this ground alone, the impugned order of detention as contained in Annexure 5 is liable to be set aside. 19. Mr. Banerjee has also contended that in the grounds of detention it has been stated that the incident of murder on 15-7-98 had taken place due to gang rivalry. Therefore, according to him, such incident cannot be taken as prejudcial to public order. At best it can be a question of law and order. According to him, if a member of one group kills another, the public at large is in no way affected. However, in the present case, one finds that the incident of murder had taken place in broad day light at a public place. It is also stated that due to the said incident a chaotic situation had arisen at and around the place of occurrence and that there was a sort of commotion in the market area as much so that shop-keepers started downing their shutters and fleeing away. If rival groups resort to such incidents at a public place, it no more remains a question of law and order only. It certainly affects the public order. If rival groups resort to such incidents at a public place, it no more remains a question of law and order only. It certainly affects the public order. As has been held by the Apex Court in the case of Mustakmiya Jabbarmiya Shaikh V/s. M. M. Mehta and others, (1995) 3 SCC 237 that it is the degree of disturbance and its impact upon the even tempo of life of the society or the people of a locality which determines whether the disturbance caused by such activity amounts only to a breach of law and order or its amounts to breach of public order. If the activity falls within the category of disturbance of public order then it becomes essential to treat such a criminal and deal with him differently than an ordinary criminal under the law as his activities would fall beyond the frontiers of law and order disturbing the even tempo of life of the community of the specified locality. 20. In the case of Yogendra Singh V/s. State of Bihar, 1985 PLJR 883 , a Division Bench of this Court has held that when such disturbance has been created which has affected the community, as a whole, that has given rise to a problem of public order and when any conduct of a person is simply confined to an act giving rise to an offence not of wider and broad application in that case a question of law and order is involved. As indicated, in the present case, the allegation is that due to group rivalry, the petitioners had resorted to killing of two persons in broad-day light at a crowded public place resorting to indiscriminate firing by using A.K. 47 rifles. Consequently, the public tranquillity in the area was disturbed. Therefore, such act cannot be treated as. a breach of law and order. Certainly, it affected public order in the area and was prejudicial to the public order in the locality. 21. Consequently, the public tranquillity in the area was disturbed. Therefore, such act cannot be treated as. a breach of law and order. Certainly, it affected public order in the area and was prejudicial to the public order in the locality. 21. However, for reasons recorded in Paragraphs 13 to 18 (both inclusive) of this order, I find and hold that the orders of detention of all the three petitioners, as contained in Annexure 5 are vitiated in view of the fact that the detaining authority (R. No. 4) has failed to communicate or inform the petitioners detenus that they had a right to make a representation to himself as well as to the State Government against the order of their detention, as well as for non-consideration by the State Government of the representation of the petitioners as contained in Annexure-3 to their writ application and hence the liable to be quashed. Hence, all the three applications are hereby allowed and the orders of detention as contained in Annexure 5 to all the writ applications are hereby quashed. The detention of petitioners becoming illegal, they are directed to be released forthwith if not required in any other matter.