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2013 DIGILAW 347 (PAT)

Rohit Jha v. State of Bihar

2013-03-13

ADITYA KUMAR TRIVEDI, SHYAM KISHORE SHARMA

body2013
ORDER (Per: HONOURABLE MR. JUSTICE SHYAM KISHORE SHARMA) 1. Heard learned counsel for the petitioner as well as learned AC to AG. 2. Petitioner has prayed for quashing of successive orders dated 19.06.2012 passed by the Detaining Authority (District Magistrate), Saharsa, order dated 29.06.2012 passed by the State Government approving the same in terms of Section 12(3) of the Bihar Control of Crimes Act, 1981 ( in short “the Act” for further reference) and order dated 31.07.2012 passed by the State Government in terms of Section 21 read with Section 22 of the Act confirming the order dated 19.06.2012 through the instant writ of Habeas Corpus. 3. As per report submitted by the Superintendent of Police, Saharsa detailing the criminal antecedent of the petitioner and further disclosing that having presence of petitioner may cause unrest as well as will adversely affect the public order, the learned District Magistrate-cum-Detaining Authority, Saharsa vide order dated 19.06.2012 ordered for preventive detention of the petitioner in terms of Section 12(2) of the Act considering the criminal antecedents of the petitioner as well as shown certain cases i.e. Nauhatta P.S. Case No. 72/2011, Nauhatta P.S. Case No. 06/2012, Saharsa Sadar P.S. Case No. 112/2012 and Saharsa Sadar P.S. Case No. 66/2012 for basing his subjective satisfaction justifying passing of the order impugned which in usual phenomena got approved at the end of the State Government on 29.06.2012. Thereafter, the matter was referred to the Advisory Board which also acknowledged the same on 19.07.2012 and basing thereupon confirmation was made on 31.07.2012 at the end of the State Government. 4. It has been contended on behalf of the petitioner that there is basic infirmity in the order impugned. To justify such point, it has been urged that the District Magistrate, Saharsa was not at all aware with the fact whether petitioner was under custody or not and if so, whether any effort was being made on his behalf for getting himself released on bail. The aforesaid lacuna is sufficient to undo the order impugned because of the fact that the same is sufficient to show that subjective satisfaction of the learned Detaining Authority was in a mechanical manner. 5. The aforesaid lacuna is sufficient to undo the order impugned because of the fact that the same is sufficient to show that subjective satisfaction of the learned Detaining Authority was in a mechanical manner. 5. On the other hand, learned AC to AG refuting the submissions made on behalf of petitioner submitted that from the order impugned, it is evident that the learned Detaining Authority was well versed with the every step and that is itself evident from the fact that the learned Detaining Authority has specifically mentioned as to in how many cases investigation was concluded, charge-sheet was submitted and further the number of cases wherein petitioner stood as an accused. So, there is neither any illegality nor irregularity or infirmity in the order impugned. Whether the custodial accused is subject to preventive detention or not, now there is no controversy after having the verdict of the Constitution Bench of Hon’ble Apex Court in the case of Rameshwar Shaw vs. District Magistrate, Burdwan, reported in AIR 1964 SC 334 . The aforesaid decision was again taken into consideration by the Hon’ble Apex Court along with other decision in the case of Dharmendra Suganchand Chelawat v. Union of India, reported in (1990)1 SCC 746 , wherein it was held as follows: “The decisions referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for that purpose it is necessary that the grounds of detention must show that (i) the detaining authority was aware of the fact that the detenu is already in detention, and (ii) there were compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression “compelling reasons” in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future, and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities.” 6. In a decision in the case of Huidrom Konungjao Singh vs. State of Manipur & ors reported in AIR 2012 SC 2002 after discussing in detail the relevant decisions on this very score in para-9 it has been concluded as follows:- “9. In view of the above, it can be held that there is no prohibition in law to pass the detention order in respect of a person who is already in custody in respect of criminal case. However, if the detention order is challenged the detaining authority has to satisfy the Court the following facts: (1) The authority was fully aware of the fact that the detenu was actually in custody. (2) There was reliable material before the said authority on the basis of which it could have reasons to believe that there was real possibility of his release on bail and further on being released he would probably indulge in activities which are prejudicial to public order. (3) In view of the above, the authority felt it necessary to prevent him from indulging in such activities and therefore, detention order was necessary. In case either of these facts does not exist the detention order would stand vitiated. The present case requires to be examined in the light of the aforesaid settled legal proposition.” 7. Now adverting to the order impugned, it is evident that neither the Detaining Authority has incorporated the fact that petitioner is under custody nor is there disclosure that petitioner was taking sincere effort in getting himself released on bail. That means to say, the requirement as prescribed by Hon’ble Apex Court referred above is found to be totally absent. 8. Consequent thereupon, the successive orders mentioned above are set aside. Petition is allowed. 9. Petitioner is directed to be released forthwith if not wanted in any another case.