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2003 DIGILAW 1210 (PAT)

Chand Miyan v. State Of Bihar

2003-11-24

B.N.P.SINGH, S.N.JHA

body2003
Judgment S.N.Jha and B.N.P.Singh JJ. 1. The petitioner has been detained in preventive custody under Section 12 (2) of the Bihar Control of Crimes Act, 1981 (in short the Act) by the District Magistrate, Bhojpur at Arrah under his order dated 16.4.2003. the detention was approved by the State Government in terms of Section 12(3) of the Act, vide order dated 26.4.2003 and later confirmed in terms of Section 21 (1) read with Section 22 of the Act vide order dated 11.6.2003. Copies of the said orders are Annexures 1, 3 and 4 to this writ petition. The petitioner seeks quashing of the said orders and his release. 2. According to the petitioner, he was taken into custody in connection with a substantive case on 3.8.2002 and since then is in jail. While in jail, the detention order along with the grounds of detention was served. The petitioner did not file any representation because the name of the authority before which the representation could be filed, was not disclosed. The detention was confirmed after obtaining opinion of the Advisory Board. 3. Shri Ram Suresh Roy, learned counsel for the petitioner, firstly, submitted that the petitioner could not file representation as he was kept in dark about the authority to which such representation could be filed. Counsel urged that the right of making representation in a case of preventive detention is a valuable right guaranteed to a detenu not only under relevant Act but also under constitution of India and where a person is prevented from making representation, the detention is fit to be quashed on this ground alone. 4. The above submission is based on incomplete reading, if we may say so, of the order of the government issued in terms of Section 12 (3) of the Act, dated 26.4.2003. The memo portion of the said order clearly states that if the detenu desires to file any representation against the detention he may file the same to the Government in the Home (Police) Department. The memo portion of the said order clearly states that if the detenu desires to file any representation against the detention he may file the same to the Government in the Home (Police) Department. The memo also directs the Jail Superintendent to send such representation to the Government at once through special messenger with a copy thereof to the District Magistrate in asmuch the approval order mentioned the authority i.e. the State Government before which the petitioner could file representation, we find no substance in the submission that the petitioner was prevented from filing representation on account of so-called omission to state the name of the authority. 5. Counsel then submitted that the power of detention under Section 12(1) of the Act, lies with the State Government under Section 12 (2) of the Act, the District Magistrate merely exercises the delegated power. The delegation at the first instance is for a period not exceeding three months extendable from time to time for any period not exceeding three months at any one time. Counsel submitted that the detention order does not state that the District Magistrate, Bhojpur at Arrah on the date of making the detention order was competent to do under delegated power nor the averments to this effect in the writ petition have been denied in the counter affidavit and therefore, it should be presumed that there was no such delegation existing in the order. The impugned order therefore must be quashed as being without jurisdiction. 6. The submission appears to be attractive at the first instance but on analysis does not have any substance. Firstly, as pointed out by the State counsel, the State Government has delegated its power under Section 12 (1) of the Act, to all District Magistrates of the State, secondly, if this was wanting, the fact that the order of the District Magistrate was approved by the State Government removed the lacuna, if any, in the detention order. The detention order of District Magistrate apparently merged in the order of the State Government. The detention order of District Magistrate apparently merged in the order of the State Government. It is to be kept in mind that the order of District Magistrate remains in force for a period not exceeding 12 days unless in the meantime it is approved by the State Government, thus where the order is approved by the government it will be deemed to be an order of the State Government and, therefore, the defect, if any, in the original order would stand cured. The second contention of the counsel is also accordingly rejected. 7. Counsel then submitted that the petitioner was in jail for three years when the detention order was passed and, therefore, there could be no apprehension that his conduct would be prejudicial to the maintenance of public order so as to attract the mischief of Section 12 (2) of the Act. Further, accordingly to the counsel, the facts as set out in the grounds of detention can at best make out a case breach of law and order and not public order and, therefore, on this ground also the detention is likely to be set aside. 8. It is true that the petitioner was in jail for about three years when the detention order was issued. However, for committing acts prejudicial to maintenance of public order it is not necessary that the person concerned should necessarily be out of jail, where the detaining authority is satisfied that the person is likely to be released on bail and thereafter indulge in acts prejudicial to maintenance of public order. Such satisfaction cannot be subjected to judicial review under Article 226 of the Constitution. As far as public order vis-a-vis law and order is concerned, there is a thin distinction between the two. As held by Courts, where the act is likely to disturb the even tempo of life, it does not remain in the realm of law and order as public order at large is prejudicially affected. As pointed out by the learned state counsel, in one of the incidents forming grounds of detention the petitioner committed murder of a trader in broad day light on 30.3.2000 and thereafter gave a call for bandh in curse of which the miscreants in slogan shouting with the help of his associates. As pointed out by the learned state counsel, in one of the incidents forming grounds of detention the petitioner committed murder of a trader in broad day light on 30.3.2000 and thereafter gave a call for bandh in curse of which the miscreants in slogan shouting with the help of his associates. It the person himself gives call for bandh and indulges in coercive action even though he is responsible for crime, we do not. think any further proof is required for showing whether the act, remained in the realm of law and order or was likely to prejudicially affect public order at large. In any case, this is a question of subjective satisfaction of the detaining authority behind which this Court cannot go while making judicial review of his action. 9. From perusal of the grounds of detention it would appeal that as may as 16 cases have been lodged against the petitioner in 14 out of which charge-sheets have been submitted. Out of 16 cases 12 cases are of year 2000 alone. The order states that committing dacoity, loot and abduction is the routine work of the petitioner. He is possessed of sophisticated automatic fire-arms and he has created such a terror that the people are afraid of filing cases against him. Not only the public but even uniform personnels shy away from. him. He utilised the vehicle taking prisoners from jail to Court for accomplishing his extortion demands. 10. Counsel submitted that though the ground of detention refers to 16 cases, the petitioner was supplied papers relating to only two of them. According to counsel, law is settled that the detenu should be provided with all relevant, papers relating to different cases forming ground of detention and as the petitioner was not supplied the papers relating to the remaining 14 cases, there has been non-observance of the safeguards and the petitioner denied right to file representation. In this regard reliance was placed on Ichhu Devi Choraria V/s. Union of India and others, AIR 1980 SC 1983 , and Shalini Soni V/s. Union of India, AIR 1981 SC 431 . 11. In this regard reliance was placed on Ichhu Devi Choraria V/s. Union of India and others, AIR 1980 SC 1983 , and Shalini Soni V/s. Union of India, AIR 1981 SC 431 . 11. While dealing with this branch of submission it may recalled that according to the petitioner he did not file representation on account of omission to mention the name of the authority before whom such a representation could be filed, which is not borne out by Annexure-3, as seen above. Had the petitioner filed representation and taken the plea that in absence of papers relating to other 14 cases he could not file effective representation he could possibly take that plea. But it is not necessary to go into that aspect, for, as submitted by the State Counsel, those 14 cases constitute the antecedents Of the petitioner. Only two cases constitute ground of detention, papers relating to which were furnished to him. 12. It is usual to State the antecedents of a detenu constituting background in which the detention order is passed. Though detention may be on account of other cases. Normally in the grounds of detention, antecedents are stated first followed by the particulars of the cases constituting the grounds. In the instant case the cases forming grounds have been stated first followed by the particulars of the cases constituting the antecedents or background. The ground part refers to only two cases, namely, Arrah Town PS Case No. 77/2000 and Arrah Town PS Case No. 118/2000, the papers relating to them admittedly were given to the petitioner. The cases constituting antecedents are different and thus papers relating to those cases were not supplied. The petitioner thus cannot claim of breach of procedure so as to make the detention illegal. 13. The contention of the counsel having thus been rejected, this writ petition must fail and the same is accordingly dismissed.