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2012 DIGILAW 46 (JHR)

Kunal Kishor Singh alias Sonu Singh v. The State of Jharkhand

2012-01-09

D.N.UPADHYAY, R.K.MERATHIA

body2012
Judgment By Court: Heard the parties at length. 2.This writ petition has been filed for setting aside the detention orders (Annexures 22, 28 and 29) dated 5.7.2011, 15.7.2011 and 12.8.2011 detaining the petitioner under Jharkhand Control of Crimes Act, 2002 ('the Act' for short). 3.Mr. R. K. Singh, learned counsel appearing for the petitioner referred to the short notes and submitted as follows: The apprehension of the detaining authority that on his release the petitioner will create an atmosphere of insecurity, instability and wide spread disturbance among the public at large is not justified, and it is not based on relevant considerations and that it excludes the following relevant considerations:- (i)the service background of the petitioner. (ii)that the petitioner has been granted bail by judicial authority in all the cases which has been made the basis of detention. (iii)that on almost all dates of alleged occurrence in all 2010 cases, petitioner was on military duty and not available for commission of the alleged offences. (iv)that he is not named in any criminal case except one offence inside jail in 2011. (v)that in case no. 218 of 2011, he is not yet remanded although the police prayed for his remand on 4.7.2011. (vi)that he has been acquitted in a criminal case. 4.He therefore submitted that the impugned detention orders have been passed without application of mind, and therefore, they should be quashed. He further submitted that the Sanha dated 26.4.2010 could not be made a ground as the same was lodged by the Officer-in-Charge on vague and general apprehension and without any complaint in that regard. He also submitted that if the petitioner is released, he will join his duty in the armed force unit, where he will be under strict control, surveillance, discipline and supervision of his commanders. Mr. Singh relied on the Division Bench judgment reported in 2006 (3) PLJR 359 Satyendra Sinha Vs. The State of Bihar, (1985) 4 SCC (Cr.) 514 Ramesh Yadav Vs. District Magistrate in support of his contention. He also relied on the judgment reported in (2010) 9 SCC 618 Pebam Ningol Mikoi Devi Vs. State of Manipur & Others on the scope of judicial review in such matters. 5.On the other hand, Mr. The State of Bihar, (1985) 4 SCC (Cr.) 514 Ramesh Yadav Vs. District Magistrate in support of his contention. He also relied on the judgment reported in (2010) 9 SCC 618 Pebam Ningol Mikoi Devi Vs. State of Manipur & Others on the scope of judicial review in such matters. 5.On the other hand, Mr. Rajiv Ranjan, learned Additional Advocate General submitted that the action under Section 12 of the Act is based on the satisfaction of the concerned authorities and it is not related with the merits of the criminal cases, and whether the detenu has been acquitted or has been granted bail is also not relevant for the purpose of the action under the Act. He further submitted that the concerned authorities have no enmity with the petitioner. He supported the impugned action. He relied on the judgment reported in (2006) 6 SCC 64 Ibrahim Nazeer Vs. State of T.N., (2002) 6 SCC 735 K. Varadharaj Vs. State of T.N., (2004) 7 SCC 467 Commissioner of Police Vs. C. Anita and Collector & District Magistrate, W.G. District Elura, A.P. & Anr. Vs. Sangala Kondamma reported in (2005) 3 SCC 666 . 6.In our opinion, the service background of the petitioner, grant of bail in all the cases and acquittal in one of them and not remanding him in one of them are not relevant for the purpose of taking action under the Act. Similarly, the merits of the criminal cases, is irrelevant for the purpose of the action under the Act. 7.The case of Satyendra Sinha (supra), is of no help to the petitioner. The judgment of Anant Sakharam Raut Vs. Leena Anant Raut reported in AIR 1987 SC 137 , was relied in Satyendra Sinha (supra). But, after the judgment of Anant Sakharam Raut (supra) Section 12-A of the Act was inserted in 1994 (in the preceding Bihar Control of Crimes Act, 1981) which inter-alia provides that the order of detention shall not be deemed to be invalid or inoperative merely because one or some of the grounds are (i) vague, (ii) non-existent, (iii) non-relevant, (iv) not connected or not proximately connected with such person or (v) invalid for any other reason whatsoever. This aspect of the matter was not placed and considered in the case of Satyendra Singh (supra). This aspect of the matter was not placed and considered in the case of Satyendra Singh (supra). Moreover, in the later judgment the Hon'ble Supreme Court in the case of Ibrahim Nazeer (supra) inter-alia held as follows: “7.It has to be noted that whether prayer for bail would be accepted depends on the circumstances of each case and no hard and fast rule can be applied. The only requirement is that the detaining authority should be aware that the detenu is already in custody and is likely to be released on bail. The conclusion that the detenu may be released on bail cannot be an ipse dixit of the detaining authority. On the basis of materials before it, the detaining authority came to the conclusion that there is likelihood of the detenu being released on bail. That is his subjective satisfaction based on materials. Normally, such satisfaction is not to be interfered with. On the facts of the case, the detaining authority has indicated as to why he was of the opinion that there is likelihood of the detenu being released on bail. It has been clearly stated that in similar cases, orders granting bail are passed by various courts.” In the case of K. Varadharaj (supra) it was held that placing of application for bail and the order made thereon are not always mandatory and such requirement would depend upon the facts of each case. The facts and circumstances in the case of Pebam Ningol Mikoi Devi (supra) relied on behalf of the petitioner, were altogether different. Even in that case, the Hon'ble Supreme Court observed as follows: “21.To decide the correctness or otherwise of the detention order, two issues of importance arise before this Court. The first is regarding the documents and material on which reliance was placed by the detaining authority in passing the detention order. Secondly, with those materials, the detaining authority was justified in arriving at a finding that the detenu should be detained under the National Security Act without any trial. In matters of this nature, this Court normally will not go into the correctness of the decision as such but will only look into decision-making process. Judicial review, it may be noted, is not an appeal from a decision but review of the manner in which the decision was made. In matters of this nature, this Court normally will not go into the correctness of the decision as such but will only look into decision-making process. Judicial review, it may be noted, is not an appeal from a decision but review of the manner in which the decision was made. The purpose of review is to ensure that the individual receives a fair treatment.” “26.What emerges from these rulings is that, there must be a reasonable basis for the detention order, and there must be material to support the same. The Court is entitled to scrutinise the material relied upon by the authority in coming to its conclusion, and accordingly determine if there is an objective basis for the subjective satisfaction. The subjective satisfaction must be twofold. The detaining authority must be satisfied that the person to be detained is likely to act in any manner prejudicial to the security of the State or from acting in any manner prejudicial to the maintenance of the public order and the authority must be further satisfied that it is necessary to detain the said person in order to prevent from so acting.” In the case of Commissioner of Police (supra) it was inter-alia held as follows: “15.The court cannot substitute its own opinions for that of the detaining authority when the grounds of detention are precise, pertinent, proximate and relevant. That is the case here. There is no vagueness or staleness. The incidents have been highlighted in the grounds of detention coupled with the definite indication as to the impact thereof which have been precisely stated in paragraph 3 of the grounds of detention quoted above. The two incidents referred to show as to in what manner the detenu was demanding money from whosoever was purchasing land and giving threats to kill if the demands were not met. The two incidents referred to show as to in what manner the detenu was demanding money from whosoever was purchasing land and giving threats to kill if the demands were not met. The incidents clearly substantiate the subjective satisfaction arrived at by the detaining authority as to how the acts of the detenu were prejudicial to the maintenance of public order.......” In the case of Collector & District Magistrate, W.G. (supra), it was inter-alia held that: “.......if the facts placed before the detaining authority are proximateto each other and the last of the facts mentioned is proximate to the order of detention then the early incidents cannot be treated as stale and detention order cannot be set aside.” 8.In the present case, the action under the Act has been taken by the concerned authorities on the basis of several cases alleging involvement of the petitioner – two cases of the year 2006, four cases of the year 2010, and two cases of the year 2011. Apart from the said cases, the concerned authorities have also relied on the Station Diary dated 26.4.2010. Even if for the sake of argument, the said Station Diary entry is kept aside, it cannot be said that there were no ground for the detaining authorities for their satisfaction for taking action against the petitioner under the Act. It is well settled that such satisfaction is subjecteive satisfaction. The Court is required to see whether the detenu has been given a fair treatment. We do not find any fault in the procedure adopted by the authorities. There is no reason to interfere with the decision taken by them to detain the petitioner. After considering the case from different angles, in our opinion, no grounds are made out for interference with the impugned orders. Accordingly, this writ petition is dismissed.