Research › Search › Judgment

Patna High Court · body

2012 DIGILAW 1005 (PAT)

Rana Yadav v. State of Bihar

2012-07-23

AMARESH KUMAR LAL, SHYAM KISHORE SHARMA

body2012
ORDER The petitioner has prayed for issuance of a writ in the nature of Certiorari for quashing the order dated 29.3.2012 contained in memo no. 415 passed by the District Magistrate, Munger under section 12 (2) of the Bihar Control of Crimes Act (hereinafter referred to as the Act) and further for quashing the order as contained in Memo No. 7/CCA-10-21/2012 HP 3187 dated 9.4.2012 issued under the signature of the Under Secretary, Department of Home under section 12 (2) of the Act by which the order dated 29.3.2012 was confirmed. Further prayer is for issuance of a writ in the nature of Habeas Corpus declaring the detention of the petitioner under the Act as illegal and also for directing the petitioner to be released forthwith. 2. The brief facts of the case is that on 12.10.2011 the Officer In-charge of Dharhara Police Station called the petitioner and detained him till 14.10.2011 and thereafter at 3.00 PM he was sent to jail in connection with Dharhara P.S. Case No. 113 of 2011 under sections 25(1-B)A, 26 and 35 of the Arms Act. The villagers made representation before the Chief Minister and D.I. G. of Police. He complained from jail to the learned Chief Judicial Magistrate while the petitioner was being detained in jail custody. He received notice contained in memo no. 2112 dated 15.2.2012 from the District Magistrate, Munger by which the petitioner was asked to file show cause as to why he could not be detained under section 12 (2) of the Act, as per the recommendation of the Superintendent of Police as contained in his letter bearing memo no. 4831 dated 11.11.2011. The petitioner filed his show cause through the Superintendent of Jail on 1.3.2012. The District Magistrate, Munger passed the order under section 12 (2) of the Act mentioning two grounds of detention. The first was Dharhara P.S. Case No. 113 of 2011 dated 14.10.2011 registered under the Arms Act and second is Dharhara P.S. Case No. 86 of 2010 registered under sections 307/34 of the Indian Penal Code and section 27 of the Arms Act. The grievance of the petitioner is that the Department of Home (Police) in routine matter and without application of mind passed the impugned order as contained in memo No. 3187 dated 9.4.2012 and approved the detention order of the petitioner. The impugned order mentions 12 cases. The grievance of the petitioner is that the Department of Home (Police) in routine matter and without application of mind passed the impugned order as contained in memo No. 3187 dated 9.4.2012 and approved the detention order of the petitioner. The impugned order mentions 12 cases. It has been submitted that mentioning of 12 cases is entirely biased as in Dharhara P.S. Case No. 20 of 2004, 32 of 2004, Jamalpur P.S. Case No. 122 of 2011, Dharhara P.S. Case No. 26 of 2007 and 65 of 2007 the petitioner has already been acquitted. The petitioner was produced before the Advisory Board on 24.4.2012 after expiry of 3 months and so mandatory provision under section 19 of the Act was not followed. It has been submitted that due to non-application of mind and also due to non-fulfillment of the statutory provisions, the preventive detention of the petitioner is illegal. 3. The State of Bihar has filed two separate counter affidavits. One is on behalf of respondent nos. 1 and 2, namely, the State of Bihar and through the Home Secretary, Govt. of Bihar and Under Secretary, Govt. of Bihar. Separate affidavit has been filed on behalf of the District Magistrate. Their contention is that the order has been passed after due application of mind. The District Magistrate, Munger has passed the order under section 12 (2) of the Act. The detention of the petitioner was essential for maintenance of public order as the petitioner is an anti social element and habitual offender committing crimes of serious nature. The detention order dated 29.3.2012 has been approved by the State Government under section 12 (3) of the Act within statutory period of 12 days from the date of detention. The petitioner filed a representation on 13.4.2012 which was received by the Department on 17.4.2012 on which action has immediately been taken and a comment with regard to the representation of the petitioner was called for from the District Magistrate, Munger. Despite the repeated reminders on 26.4.2012 and 2.5.2012 the comment was not received. The department approved the detention order and referred the matter to the Advisory Board under section 19 of the Act. Representation of the petitioner was placed before the Advisory Board on 24.4.2012. The petitioner was given proper opportunity. The Board opined existence of sufficient grounds for detention. The order was passed under section 22 of the Act. The department approved the detention order and referred the matter to the Advisory Board under section 19 of the Act. Representation of the petitioner was placed before the Advisory Board on 24.4.2012. The petitioner was given proper opportunity. The Board opined existence of sufficient grounds for detention. The order was passed under section 22 of the Act. Authorities have acted promptly and there was no delay on their part. 4. Learned counsel for the petitioner has submitted that the facts on the record clearly go to show that the detaining authority has not addressed himself to the relevant facts, circumstances and materials and without application of mind has detained the petitioner. It has also been submitted that there is a long gap between the representation and its disposal which has caused grave prejudice to the petitioner. 5. One thing which has come on record is a notice dated 15.2.2012 (Annexure-2) issued to the petitioner. Learned counsel for the petitioner submits that notice is not required to be issued to a person who is sought to be detained under section 12 (2) of the Act. A notice is required to be sent when the detaining authority feels that externment of a person is desired. Learned counsel for the State has submitted that notice may be just a slip of pen and it could not mean that the State authorities is oblivious of the right of the accused. 6. The notice was not required to be issued, when the petitioner was sought to be detained. Therefore, it appears that issuance of notice was of no use and it was written on account of non-application of mind. Regarding another fact which is on the record is that the petitioner had right under section 12 of the Act to be informed of his right to challenge the order under detention. The order under detention is annexed here as Annexure-4. 7. The order mentions that the accused may represent. Though the detaining authority was satisfied that the detenue has right to represent but has not been explained as to where the representation has to be filed which was required to be mentioned in the notice. Therefore, this definitely has caused prejudice to the petitioner’s interest. 8. The representation of the petitioner which has been filed on 1.4.2012 was officially rejected on 15.5.2012 and it was communicated to the petitioner on 30.5.2012. Therefore, this definitely has caused prejudice to the petitioner’s interest. 8. The representation of the petitioner which has been filed on 1.4.2012 was officially rejected on 15.5.2012 and it was communicated to the petitioner on 30.5.2012. Definitely that was the long period and the circumstances explained by the respondent were not satisfactory. 9. One fact which has been alleged by the petitioner is that the representation of the petitioner was not put before the Advisory Board. The petitioner has right to represent and that right is absolute right and it cannot be infringed under section 19 of the Act. The Advisory Board has to be apprised with all the circumstances which has come. The Advisory Board has to be made aware about the representation, if any, filed by the petitioner. That is the mandatory requirement of the law. The documents which have been made available to the Advisory Board have been brought on the record through Annexure-C which mentions that the following documents were being made available:- (i) A true copy of detention order No. 415 dated 29.3.2012 under section 12 (2) of the Act, (ii) A copy of order no. 415 dated 29.3.2012 of the District Magistrate, Munger containing the ground of detention along with documents communicated to the deteneue dated 30.3.2012., (iii) A copy of Govt. order No. 3187 dated 9.4.2012 containing the approval of the State Govt. under section 12 (3 ) of the Act. 10. Though in counter affidavit it has been averred that entire documents were produced before the Advisory Board but the documentary evidence of the respondent is that representation filed by the petitioner was not put up before the Advisory Board. 11. The detaining authority has mentioned about two cases. It has been submitted by the learned counsel for the petitioner that in one case the petitioner was already acquitted, meaning that on the date of passing order under section 12 (2) of the Act he was not an accused in a case under section 307 of the Indian Penal Code. It has further been submitted that in view of this fact, it is apparent that the detaining authority has not applied his mind properly and his reliance with regard to two cases was unjustified and illegal. It has further been submitted that in view of this fact, it is apparent that the detaining authority has not applied his mind properly and his reliance with regard to two cases was unjustified and illegal. Regarding another case which has been registered under the provisions of the Arms Act, it has been submitted that the petitioner was made accused in a case under sections 25(1-B)A, 26/35 of the Arms Act but only for lodging of case under the Arms Act, a person cannot be branded as anti social element. Attention has been drawn towards the definition of anti social element as defined in section 2 (d) of the Act which reads as follows:– “Anti-Social element” means a person who- (i) either by himself or as a member of or leader of a gang, habitually commits or attempts to commit or abets the commission of offences punishable under Chapter XVI of Chapter XVII of the Indian Penal Code; or (ii) habitually commits or abets the commission of offences under the Suppression of Immoral Traffic in Women and Girls Act, 1956: (iii) who by words or otherwise promotes or attempts to promotes, on grounds of religion, race, language, caste or community or other grounds whatsoever, feelings of enmity or hatred between different religions, racial or language groups or castes or communities; or (iv) has been found habitually passing indecent remarks to, or teasing women or girls; or (v) who has been convicted of an offence under sections 25, 26, 27, 28 or 29 of the Arms Act of 1959.” 12. It has been submitted that the petitioner has not been convicted in any case under any of the provisions mentioned in Sub clause 5 of section 2 (d) of the Act. If he has not been convicted, then he cannot be branded as anti social element. The petitioner does not come in any of the category as mentioned in Section 2 (d) of the Act and the detaining authority has exceeded its jurisdiction in detaining the petitioner only because of he has been made accused under the provisions of the Arms Act. 13. The authority passing any detention order was obliged to address itself to all the relevant facts and circumstances and materials taken into consideration seriously, so that the detention order, which results into deprivation of rights and liberty and restriction on the movement of an individual can be justified. 13. The authority passing any detention order was obliged to address itself to all the relevant facts and circumstances and materials taken into consideration seriously, so that the detention order, which results into deprivation of rights and liberty and restriction on the movement of an individual can be justified. Aim of section 12 of the Act is that order of detention has to be passed upon consideration of relevant materials and full application of mind to the factual aspects. The detention results into serious civil and evil consequences. If the detaining authority relies upon the facts which are not proved or not established then it can be said that it has applied its mind erroneously. 14. The circumstances brought on the record are indicative of the fact that there was abnormal delay in consideration of the representation of the petitioner, his representation was not placed before the Advisory Board and the reliance was placed upon a case in which he was already acquitted. The aforesaid narrations go to show that there was no application of mind. 15. In the result, the orders of detention of the petitioner are set aside and this writ application is allowed. He is directed to be released forthwith if not required to be detained in any other case.