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2013 DIGILAW 440 (PAT)

Rajesh Singh @ Kaila Singh v. State of Bihar

2013-04-02

ADITYA KUMAR TRIVEDI, SHYAM KISHORE SHARMA

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ORAL ORDER (Per: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI) Heard learned counsel for the petitioner as well as learned AC to AG for the State. 2. Petitioner has challenged order dated 25.05.2012 passed by District Magistrate, Begusarai in accordance with Section 12(2) of the Bihar Control of Crimes Act, 1981 (in short ‘the Act’ for all future references) along with order dated 04.06.2012, the date of approval of order dated 25.05.2012 by the State Government in terms of 12 (3) of the Act as well as order dated 29.06.2012, the date of confirmation of order dated 25.05.2012 in terms of Section 21 read with Section 22 of the Act invoking the writ jurisdiction. 3. As reported by the Superintendent of Police, Begusarai categorically stating that presence of petitioner in and around will jeopardize the public order on account of his chequered history as well as recent involvement in four cases, the learned District Magistrate/Detaining Authority being subjectly satisfied passed the order dated 25.05.2012 detaining the petitioner who on the relevant date was undergoing judicial custody. 4. It has been submitted on behalf of the petitioner that subjective satisfaction of learned District Magistrate though happens to be out of judicial purview but the process thereof is within its ambit and on account thereof the order impugned should be scrutinized to arrive at just conclusion that the process adopted by the Detaining Authority is in accordance with law as well as satisfy the ingredients of natural justice. 5. On the other hand, learned AC to AG submitted that taking into account the chequered history and further active involvement of the petitioner continuously led to the ultimate conclusion that if he is allowed to remain outside, he will pose threat to public order. As such, the order of detention dated 25.05.2012 followed with its approval and confirmation are justified as well as in accordance with law. 6. Perused the order impugned. Petitioner has been shown to be involved in 13 cases by way of his criminal antecedent while the basis for passing of detention order is based upon his involvement in connection with four cases which are Barauni Refinery P.S. Case 293/2010 dated 08.09.2010, Mufassil P.S. Case No. 378/2010 dated 04.10.2010, Mufassil P.S. Case No. 330/2010 dated 20.08.2010 and Barauni Refinery P.S. Case 45/2011 dated 26.02.2011. The aforesaid cases as is evident from the order impugned was registered against unknown and during course of investigation culprits were apprehended on whose extra judicial confessional statement name of petitioner figured. It has also been suggested therein that petitioner had also made inculpatory extra judicial confessional statement. From the order impugned, now it is crystal clear that the last case which is the basis of detention is Brauni Refinery P.S. Case No.45/2011 dated 26.02.2011. The order impugned is dated 25.05.2012 that means to say after a gap of one year and three months and during intervening period petitioner as is evident is not found to be involved in any other case. 7. The only crucial point for adjudicating upon the issue relates to whether such a long gap is found to be justifiable in confirming the order impugned. The matter in hand had already been decided by the Hon’ble Apex Court in the case of Saeed Zakir Hussain Malik v. State of Maharashtra reported in AIR 2012 SC 3235 . The fact of the aforesaid case is that the petitioner of that very case was detained after a delay of 14 and a ½ months after the alleged occurrence. While negating the plea it has been held that there should be proximity in between the occurrence so alleged, the basis for detention inconsonance with the order of detention. The relevant paragraphs i.e., 15, 16, 17, 18, 19 and 26 are quoted hereinbelow for better appreciation. 15) In Lakshman Khatik vs. The State of West Bengal, (1974) 4 SCC 1 , a three-Judge Bench of this Court, while considering the detention order under the Maintenance of Internal Security Act, 1971 has concluded that prompt action in such matters should be taken as soon as the incident like those which are referred to in the grounds have taken place. In the said decision, it was pointed out that all the three grounds on which the District Magistrate purports to have reached the required satisfaction are based on incidents which took place in rapid succession in the month of August, 1971. The first incident of unloading five bags of rice took place in the afternoon of August 3, 1971. The second incident took place on August 5, 1971 also in the afternoon practically at the same place as the first incident. The first incident of unloading five bags of rice took place in the afternoon of August 3, 1971. The second incident took place on August 5, 1971 also in the afternoon practically at the same place as the first incident. This time also some rice was removed from the trucks carrying rice. The third incident took place in the afternoon of August 20, 1971 also at the same place. That also related to the removal of some rice from loaded trucks. In this factual scenario, this Court concluded that the District Magistrate could not have been possibly satisfied about the need for detention on March 22, 1972 having regard to the detenu’s conduct some seven months earlier. The following conclusion is very relevant. “5…..Indeed mere delay in passing a detention order is not conclusive, but we have to see the type of grounds given and consider whether such grounds could really weigh with an officer some 7 months later in coming to the conclusion that it was necessary to detain the petitioner to prevent him from acting in a manner prejudicial to the maintenance of essential supplies of foodgrains. It is not explained why there was such a long delay in passing the order. The District Magistrate appears almost to have passed an order of conviction and sentence for offences committed about 7 months earlier. The authorities concerned must have due regard to the object with which the order is passed, and if the object was to prevent disruption of supplies of foodgrains one should think that prompt action in such matters should be taken as soon as incidents like those which are referred to in the grounds have taken place. In our opinion, the order of detention is invalid.” 16) In T.V. Abdul Rahman vs. State of Kerala and Others, (1989) 4 SCC 741 , in similar circumstance, this Court held: “10…...The question whether the prejudicial activities of a person necessitating to pass an order of detention is proximate to the time when the order is made or the live-link between the prejudicial activities and the purpose of detention is snapped depends on the facts and circumstances of each case. No hard and fast rule can be precisely formulated that would be applicable under all circumstances and no exhaustive guidelines can be laid down in that behalf. No hard and fast rule can be precisely formulated that would be applicable under all circumstances and no exhaustive guidelines can be laid down in that behalf. It follows that the test of proximity is not a rigid or mechanical test by merely counting number of months between the offending acts and the order of detention. However, when there is undue and long delay between the prejudicial activities and the passing of detention order, the court has to scrutinise whether the detaining authority has satisfactorily examined such a delay and afforded a tenable and reasonable explanation as to why such a delay has occasioned, when called upon to answer and further the court has to investigate whether the causal connection has been broken in the circumstances of each case. 11. Similarly when there is unsatisfactory and unexplained delay between the date of order of detention and the date of securing the arrest of the detenu, such a delay would throw considerable doubt on the genuineness of the subjective satisfaction of the detaining authority leading to a legitimate inference that the detaining authority was not really and genuinely satisfied as regards the necessity for detaining the detenu with a view to preventing him from acting in a prejudicial manner.” After holding so, this Court quashed the order of detention. 17) In Pradeep Nilkanth Paturkar vs. S. Ramamurthi and Others, 1993 Supp (2) SCC 61, the effect of delay in passing the detention order has been considered in detail. After analyzing various earlier decisions, this Court held that delay ipso facto in passing an order of detention after an incident is not fatal to the detention of a person, in certain cases delay may be unavoidable and reasonable. However, what is required by law is that the delay must be satisfactorily explained by the Detaining Authority. 18) In Manju Ramesh Nahar vs. Union of India and Others, (1999) 4 SCC 116 , there was a delay of more than one year in arresting the detenu. This Court, while rejecting the vague explanation that the detenu was absconding, found that the detention order is vitiated. 19) In Adishwar Jain vs. Union of India and Another, (2006) 11 SCC 339 , this Court held that delay must be sufficiently explained. This Court, while rejecting the vague explanation that the detenu was absconding, found that the detention order is vitiated. 19) In Adishwar Jain vs. Union of India and Another, (2006) 11 SCC 339 , this Court held that delay must be sufficiently explained. In that case, lapse of four months between proposal for detention and order of detention was not explained properly, hence, this Court quashed the detention order. 26) As regards the second contention, as rightly pointed out by learned counsel for the appellant, the delay in passing the detention order, namely, after 15 months vitiates the detention itself. The question whether the prejudicial activities of a person necessitating to pass an order of detention is proximate to the time when the order is made or the live-link between the prejudicial activities and the purpose of detention is snapped depends on the facts and circumstances of each case. Though there is no hard and fast rule and no exhaustive guidelines can be laid down in that behalf, however, when there is undue and long delay between the prejudicial activities and the passing of detention order, it is incumbent on the part of the court to scrutinize whether the Detaining Authority has satisfactorily examined such a delay and afforded a reasonable and acceptable explanation as to why such a delay has occasioned. 8. In the aforesaid facts and circumstances of the case, there appears to be no impediment in between to set aside the successive order dated 25.05.2012, the date of detention, dated 4.6.2012, date of approval and 29.06.2012 date of confirmation. 9. Hence, petition is allowed. Petitioner is directed to be released forthwith if not wanted in any other case.