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2006 DIGILAW 127 (PAT)

Satyendra Sinha v. State Of Bihar

2006-02-02

J.N.BHATT, R.N.PRASAD

body2006
Judgment 1. By this "habeas corpus" petition, by invocation of the provisions of Art. 226 of the Constitution of India, the petitioner detenu has questioned legality and ; validity of the detention order contained in memo No. 466, recorded on 29-4-2005 (Annexure-1), by the District Magistrate, Patna, invoking his powers under Sub-sec. (2) of sec. 12 of the Bihar Control of Crimes Act, 1981 (in short "the Act of 1981") and the final order (Annexure-5 series), recorded on 6-6-2005, by the State of Bihar, under the powers conferred by sec. 21(1) read with sec. 22 of the Act of 1981, whereby, the petitioner has been directed to remain in detention till 29 4-2006. 2. Mr. Vindhykeshari Kumar, learned Sr. Advocate, appearing for the petitioner, and Mr. Shashi Bhushan, for the State have offered their submissions. In course of submissions, they have taken us through the factual profile and the impugned orders. We have also considered the relevant provisions of the Act of 1981 for the purpose of appreciation of the merits of the petition and challenge against the impugned order. 3. The first contention, which has been raised on behalf of the petitioner detenu, has been that the detaining authority has not applied its mind to the factual aspect before passing the impugned order of detention under Section 12(2) of the Act, 1981 on 29-4-2005. In that regard, reliance has been placed on three criminal cases, by the detaining authority and it is further observed by the concerned authority that the detenu has been in the prison. The alleged activities in relation to the conduct and the incidents, resulting into three criminal cases and referred in the detention order clearly go to show that there was non-application of mind by the detaining authority, as the order of detention runs diametrically counter to the real facts as the detenu, was enlarged and admitted to bail in all the three cases referred in the detention order. This aspect could not be denied by the learned Counsel appearing for the State. 4. In order to appreciate the merits of the sole contention, let there be factual profile in a tabular form hereinbelow : Case No. Arrested Date of release On on bail. 1. Phulwari P. S. Case No. 265/03 14-8-2004 11-9-2004. 2. Phulwari P. S. Remanded in 4-9-2004 Case No. 236/03 this case also. 3. 4. In order to appreciate the merits of the sole contention, let there be factual profile in a tabular form hereinbelow : Case No. Arrested Date of release On on bail. 1. Phulwari P. S. Case No. 265/03 14-8-2004 11-9-2004. 2. Phulwari P. S. Remanded in 4-9-2004 Case No. 236/03 this case also. 3. Gandhi Maidan P.S. Remanded in Case No. 166/04 this case also. 11-1-2005. 5. Undoubtedly, the detention order has a serious effect on the liberty and freedom of a citizen. It is the settled proposition of law that an authority passing a detention order is obliged and bound to address itself to all the relevant facts and circumstances and the materials taken into consideration, seriously; so that the detention order, which results into deprivation of rights and liberty and restrictions on the movement of an individual, can be justified. The aim and design of the provisions of sec. 12 of the Act, 1981, which empowers the State Government for passing the detention order has been to see that order of preventive detention has to be passed upon consideration of relevant materials and full application of mind to the factual facts, since detention order results into serious civil and evil consequences. Before a person is visited with such consequences and is subjected to deprivation of the liberty and movements, the authority must consider, seriously, and apply its mind to all the material facts and vital issues and information. 6. The aforesaid factual profile highlighted in the tabular form above, evidently, disclose non-application of mind on the part of the detaining authority while passing the detention order. Despite the order of enlargement of the petitioner on bail in all the three criminal cases, which were forming the basis of the detention order, these facts were unknown to the detaining authority. Such non-application of mind, undoubtedly, shall result into vitiating the detention order. Satisfaction of the detaining authority, as contemplated under the provisions of the Act of 1981, on certain instances and incidents relating to the filing of the criminal cases is binding, but in this case the vital fact was unknown to the detaining authority that the detenu had been granted bail in all the three cases relied upon by the detaining authority. If the detaining authority is oblivious and unaware of such vital fact, it shall entail vitiation of the detention order purely and simply because of non-application of mind. This proposition of law is extensively explored and very well propounded by various judicial pronouncements. As early as in 1987, the Hon ble Apex Court in the case of Anant Sakharam Raut V/s. State of Maharashtra - has highlighted this aspect and held that non-application of mind to the vital fact of enlargement of the detenu on bail in criminal cases, which were under consideration, must result into quashment of the detention order. 7. We are, therefore, of the clear opinion that the impugned orders are required to be quashed and set aside, while allowing this writ petition, only on the aforesaid ground which goes to the root of the matter. Other grounds, therefore, need not be divulged or examined at this stage. Consequently, this petition shall stand allowed and the impugned order shall stand quashed with a direction to release the detenu forthwith, if not required in any other case.