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2013 DIGILAW 721 (PAT)

Mantu Manjhi @ Teni Manjhi v. State of Bihar

2013-07-01

AMARESH KUMAR LAL, SHYAM KISHORE SHARMA

body2013
ORDER This application has been filed for quashing the order of detention of the petitioner contained in Memo No.43 dated 21.01.2013 passed by the learned District Magistrate, Jehanabad (Annexure-4) purported to have been passed under Section 12 (2) of the Bihar Crimes Control Act, 1981 (hereinafter referred to as the Act) and further for quashing the letter no.1263 dated 19.02.2013 rejecting the representation of the petitioner by the Govt. of Bihar as contained in Annexure-6. 2. The case of the petitioner is that he belongs to the category of scheduled caste, most deprived section of the society. In view of the letter dated 26.09.2012 (Annexure-1) of officer-in-charge, Makhdumpur police station, letter no.2900 dated 10.12.2012 of Sub-divisional police officer (Annexure-2) and the letter no.1241 dated 12.12.12 (Annexure-3) of the Superintendent of Police, Jehanabad, addressed to the District Magistrate, Jehanabad (respondent no.3), the District Magistrate, Jehanabad has passed the order in B.C.C.A. Case No.01/2013 dated 21.01.2013 (Annexure-4) for the detention of the petitioner under the Act. 3. The petitioner submitted his representation dated 03.02.2013 to the Govt. of Bihar through the Jail Superintendent as contained in Annexure-5 which has been rejected by the Govt. of Bihar, Department of Home (Police) vide Memo No.7/C.C.A.-10-15/2013-1263 dated 19.02.2013 (Annexure-6). 4. The learned counsel for the petitioner has submitted that there are seven cases against the petitioner for the offences punishable under the Indian Penal Code and the Arms Act. A list of which has been given in paragraph 3 of the supplementary affidavit. He has further submitted that the District Magistrate has not considered the case of the petitioner in right perspective. It has been mentioned in the concluding part of the order dated 21.01.2013 (Annexure-4) that the petitioner has also participated in the offence of murder and dacoity but the petitioner is not involved in such offences, which is apparent from the cases mentioned against the petitioner vide Annexure-4 itself. He has further submitted that except the offence under Sections 399, 402 as mentioned in Makhdumpur P.S. Case No.290/10, all the offences are triable by the learned Judicial Magistrate. The petitioner has not been convicted in any offence under the Arms Act. The petitioner has been in custody since 26.04.2012. There is no sufficient material against the petitioner to justify the detention of the petitioner under the aforesaid Act. The petitioner has not been convicted in any offence under the Arms Act. The petitioner has been in custody since 26.04.2012. There is no sufficient material against the petitioner to justify the detention of the petitioner under the aforesaid Act. In support of his contention, he has relied upon a decision in the case of Vijay Kumar Pandey @ Vijay Yadav Vs. State of Bihar and Ors. reported in 2007 (1) PLJR 717 . He has further submitted that the representation of the petitioner dated 3.02.2013 (Annexure-5) has been rejected vide letter no.1263 dated 19.02.2013 contained in Annexure-6 after fifteen days and there has been no explanation for the delay. 5. Counter affidavit has been filed on behalf of respondent nos. 1, 2 and 3. It has been submitted on behalf of respondents that the detention order passed by the respondent no.3 has been approved by the Government under Section 12 (3) of the Act within the statutory period of 12 days from the date of order of detention vide Memo No. 7/CCA-10-15/2013 H.P./604/Patna dated 28.01.2013 (Annexure-A to the counter affidavit).The matter was referred to the Advisory Board under Section 19 of the said Act vide letter no.643 dated 29.01.2013. The petitioner submitted representation against the detention order no.43 dated 21.01.2013 which was received in the department on 4.02.2013 vide letter no.137 dated 03.02.2013 of the Superintendent of District Jail, Jehanabad (Annexure-4). The respondent no.3 was asked to furnish his comment on the petitioner’s representation vide letter no.775 dated 04.02.2013 and reminder was also issued vide letter no.907 dated 08.02.2013. The comment from the District Magistrate, Jehanabad was not received in the department till 11.02.2013. He has further submitted that the meeting of the Advisory Board was held on 6.03.2013 and after giving full opportunity to the petitioner to represent and explain his case, the Advisory Board has opined that sufficient grounds exist for detention of petitioner under the said Act (Annexure-C to the counter affidavit). The representation of the petitioner has been thoroughly examined by the State Government and it has been rejected vide memo no.1263 dated 19.02.2013 (Annexure-6 to the writ application). After considering the opinion of the Advisory Board, the Govt. The representation of the petitioner has been thoroughly examined by the State Government and it has been rejected vide memo no.1263 dated 19.02.2013 (Annexure-6 to the writ application). After considering the opinion of the Advisory Board, the Govt. of Bihar has passed the order no.7CCA-10-15/2013 H (P)-2126 dated 18.03.2013 (Annexure-D) in exercise of powers conferred under Section 21 (I) read with Section 22 of the Bihar Control of Crimes Act, 1981 and it has been directed that the petitioner will remain in detention till 20.01.2014. 6. After hearing the learned counsel for both the parties and on perusal of the material on the record, it appears that the order of detention contained in Memo No.43 dated 21.01.2013 (Annexure-4) has been passed by the learned District Magistrate, Jehanabad, respondent no.3 on the basis of criminal cases as mentioned therein. It appears that it has been mentioned in this order that the petitioner is also involved in the offence of murder and dacoity but it appears that the petitioner has not been involved in such cases mentioned in this order. It appears that the order contained in Annexure-4 has been passed without properly considering the material against the petitioner. It also appears from the impugned order that none of the cases mentioned has ground for preventive detention are of nature which should be said to have been caused disturbance to public order. The recent case has been lodged against the petitioner is Makhdumpur (Tehta OP) P.S. Case No.84/12 for the offence punishable under Sections 414 of the I.P.C. and Section 25 (1-B) a and 26 of the Arms Act. It could only show law and order problem but not a problem of public order. 7. It further appears that the representation of the petitioner dated 03.02.2013 as contained in Annexure-5 has been received in the Department on 4.02.2013. The District Magistrate, Jehanabad was asked to furnish his comment on the petitioner’s representation vide Home (Police) Department letter no.775 dated 04.02.2013. Reminder was also issued vide letter no.907 dated 08.02.2013. The comment from the District Magistrate was not received in the department till 11.02.2013 and without waiting for the comment, the representation of the petitioner has been rejected by the Govt. vide letter no.7/CCA-10-15/2013-1263 dated 19.02.2013 as contained in Annexure-6 to the writ application. 8. Reminder was also issued vide letter no.907 dated 08.02.2013. The comment from the District Magistrate was not received in the department till 11.02.2013 and without waiting for the comment, the representation of the petitioner has been rejected by the Govt. vide letter no.7/CCA-10-15/2013-1263 dated 19.02.2013 as contained in Annexure-6 to the writ application. 8. Thus, the representation of the petitioner has been disposed of after delay of about 16 days without any reason and valid explanation. Such a delay, when it remains unexplained by any acceptable material amounts to violation of mandate of Article 22 of the Constitution of India, which requires the representation to be disposed of as soon as may be. Such mandate in clause 5 of Article 22 of the Constitution of India stands breached. In this case, in view of the law already settled by the Hon’ble Supreme Court in case of Rajamal Vs. State of Tamilnadu and Anr. reported in AIR 1999 Supreme Court 684 and that judgment has been followed by this Court in several cases including the case of Brijnath Singh Vs. State of Bihar and Ors. reported in 2007 Suppl.P.L.J.R.1058. 9. In view of the aforesaid finding that without sufficient material for the detention of the petitioner and in view of the finding that the representation of the petitioner was disposed of after unexplained delay of about 16 days, this application has to be allowed. It is accordingly allowed. The impugned order of detention contained in Memo No.43 dated 21.01.2013 (Annexure-4 of the writ application) and order no.7/CCA-10-15/2013 H (P)-2126 dated 18.03.2013 of the State Government (Annexure-D of the supplementary affidavit) are quashed. 10. In the facts of the case, there will be no order as to costs.