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2014 DIGILAW 1154 (MP)

Ajay Singh @ Deepu v. State of M. P.

2014-09-16

S.K.GANGELE, S.K.PALO

body2014
ORDER Palo, J. -- 1. This writ petition under Article 226 of the Constitution of India has been filed by the detenu- Ajay Singh @ Deepu, seeking quashment of the order of detention dated 12th December, 2013 (Annexure P-1) passed by the District Magistrate, Bhind and the subsequent order of Government of Madhya Pradesh, Home Department, Bhopal dated 25th January, 2014 (Annexure P-2). Both the orders were issued under the National Security Act, 1980 (for brevity it is referred as “the Act of 1980''). 2. The Superintendent of Police, Bhind filed a report before the District Magistrate, Bhind on 27.11.2013, stating that due to the criminal activities of the petitioner, the persons are not willing to come forward to record their evidence in criminal cases against the petitioner. Due to the activities of the petitioner, the peace of the area was in danger. The Superintendent of Police has mentioned the details of seven criminal cases registered against the petitioner, which are as follows :- SL. No. Crime Nos. Offence under sections Police Station 1. 94/2010 307, 342, 34, 302 of IPC, Gormi section 3(ii) of SC and ST Act. 2. 52/2012 25/27 of Arms Act Deepar, District Datia 3. 14/2013 327, 336, 294, 506, 429, 34 Gormi of IPC 4. 16/2013 336, 294, 506, 34 of IPC Gormi 5. 310/2013 327, 323, 294, 506 of IPC Gormi 6. 31/2013 110 of CrPC Gormi 7. 3/2013 National Security Act Gormi 3. The District Magistrate, as per the memorandum of the Superintendent of Police, Bhind, recorded the statements of the witnesses, namely, Station House Officers- Sunil Khemriya and Damodar Gupta, Police Station Gormi, District Bhind. The learned District Magistrate, Bhind mentioned the grounds for detaining the petitioner under the provisions of Act of 1980. The grounds are based, on the basis of registration of criminal cases against the petitioner. The matter was referred to the Advisory Board and the Board also recommended the detention of the petitioner under the Act of 1980 and consequently, the State Government vide order dated 25th January, 2014 (Annexure P-2) affirmed the detention order of the petitioner (Annexure P-1) passed by the District Magistrate, Bhind. 4. Learned counsel for the petitioner contended that the order of detention of the petitioner is illegal because the grounds for detaining the petitioner which have been taken, are baseless and without proper application of mind. 4. Learned counsel for the petitioner contended that the order of detention of the petitioner is illegal because the grounds for detaining the petitioner which have been taken, are baseless and without proper application of mind. (i) On the basis of false and bogus report, Crime No.94/2010 was registered against the petitioner for the offences under sections 307, 342, 34, 302 of IPC and section 3(ii) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. The petitioner was granted bail vide order dated 21.5.2012 passed by this Court in MCrC No.1452/2012. Copy of the order has been filed as Annexure P-3. (ii) Crime No.52/2012 was registered against the petitioner for the offence under section 25/27 of the Arms Act. The petitioner was enlarged on bail by the trial Court itself. Copy of the FIR has been filed as Annexure P-4. (iii) Crime No.14/2013 was registered against the petitioner for the offences under sections 327, 336, 294, 506, 429, 34 of IPC. This Court in MCrC No.1918/2013 vide order dated 18.3.2013 has already quashed the FIR as well as criminal proceedings with regard to Crime No.14/2013. Copy of the order has been filed as Annexure P-5. (iv) Crime No.16/2013 was registered against the petitioner for the offences under sections 336, 294, 506, 34 of IPC. This Court in MCrC No.1919/2013 vide order dated 18.3.2013 has already quashed the FIR as well as criminal proceedings with regard to Crime No.16/2013. Copy of the order has been filed as Annexure P-6. (v) So far as Crime No.310/2013 (wrongly mentioned as Crime No.307/2013) is concerned, offences were registered against the petitioner under sections 327, 294, 506, 323 of IPC. The matter is under trial and the petitioner has been granted bail by the trial Court vide order dated 21.2.2014, copy of which has been filed as Annexure P-7. (vi) Crime No.31/2013 was registered against the petitioner for the offence under section 110 of CrPC at Police Station Gormi. (vii) Crime No.03/2013 is the present case, which has been registered against the petitioner under the Act of 1980. In the above circumstances, the petitioner claimed to be innocent and peace loving and law-abiding citizen. It is submitted that the grounds where under the order of detention is made, therefore, were baseless. In three criminal cases, the petitioner has been acquitted and remaining cases are pending before the Court for final adjudication. In the above circumstances, the petitioner claimed to be innocent and peace loving and law-abiding citizen. It is submitted that the grounds where under the order of detention is made, therefore, were baseless. In three criminal cases, the petitioner has been acquitted and remaining cases are pending before the Court for final adjudication. The order of detention has been passed without affording any opportunity of hearing to the petitioner as the petitioner was in custody he could not participate in the proceeding. Therefore, it is liable to be quashed. 5. Besides this, it is contended by learned counsel for the petitioner that the petitioner was under detention when this proceeding was drawn and the petitioner was not afforded any opportunity to explain himself. The petitioner was already in jail since 27.11.2013. Copy of the order (Annexure P-8) in this regard, has been filed. 6. Learned counsel for the State opposed the petition and contended that the impugned order is correct and calls for no interference. 7. A Division Bench of this High Court in Chhenu @ Yunus v. State of MP and another, reported in 2011(1) MPWN 50 = 2011(1) MPHT 208 has held that :- “Detenu was already in jail when he was served with the detention order. If authority is satisfied that detention of such person would be necessary after he is released from jail, then authority can pass detention order a few days before the person is likely to be released. But, in the present case, detaining authority was not aware that detenu was already in jail. Hence, detention order was passed without application of mind. It was invalid. Detention order is quashed.” 8. In a similar-situated case of Md. Vakil Vs. State of MP and others, reported in 2014 (2) MPLJ 613, a Division Bench of this High Court has held that :- “Detention order- Legality of detenu already in jail. Detaining authority not disclosing fact that it was aware that detenu was already in jail. Order of detention and also its confirmation liable to be quashed.” 9. Similarly, a Division Bench of this High Court in the case of Sanjay Yadav and another v. State of Madhya Pradesh and another, reported in 2011 (1) MPHT 332 , has held that :- “Petitioner was in jail. No material was found that the petitioner was indulging in illegal activity from inside the jail. Similarly, a Division Bench of this High Court in the case of Sanjay Yadav and another v. State of Madhya Pradesh and another, reported in 2011 (1) MPHT 332 , has held that :- “Petitioner was in jail. No material was found that the petitioner was indulging in illegal activity from inside the jail. Criminal cases were made basis for order of detention. Out of 28 cases, the petitioner was acquitted in 28 cases. Hence, the order of detention is held to be unsustainable.” 10. We are fully in agreement with the view expressed by this High Court in the earlier cases that it is the settled position in law that detention of a person without a trial is a very serious encroachment on his personal freedom and at all stage, all questions in relating to the detention are required to be carefully and solemnly considered. Since the preventive detention is a serious inroad into the freedom of individuals, therefore, reasons, purposes and the manner of such detention is subject to closest scrutiny and examination. Hon'ble the Supreme Court has reiterated this view in the case of Yumman Ongbi Lembi Leima v. State of Manipur and others, reported in (2012)1 SCC (Cri) 701. 11. In section 3(5) of the Act of 1980, it has been provided that when any order is made or approved by the State Government under this section, the State Government shall within seven days from the date of order, report the fact to the Central Government together with the grounds on which the order has been made and such other particulars as in the opinion of the State Government, have a bearing on the necessity for the order. 12. In the present case, after the detention order has been passed by the District Magistrate, no such report of the fact was sent to the Central Government together with the grounds on which the order has been made and such other particulars as in the opinion of the State Government, have a bearing on the necessity for the order. That being so, there seems to be non-compliance of the provisions of section 3(5) of the Act of 1980. 13. That being so, there seems to be non-compliance of the provisions of section 3(5) of the Act of 1980. 13. We profitably refer the case of Islamuddin @ Chhotiya v. State of MP and others reported in (2011) 2 SCC (Cri) 596, in which Hon'ble the Supreme Court has held that :- “Non-compliance of provisions by the detaining authority and procedural illegalities. Approval of detention reported by the State Government to Central Government beyond the prescribed period of 7 days. Grounds of detention and necessary particulars not reported to Central Government. It violates provisions of section 3(5) of National Security Act, which are mandatory. Detention order and its confirmation set aside.” 14. Besides all these, a plain reading of the order Annexure P-1, dated 12th December, 2013 passed by the District Magistrate, Bhind and the order Annexure P-2, dated 25th January, 2014, passed by State Government, it is clear that the detention order has been passed for a period of complete year, whereas the period of detention for a period of twelve months at one stroke; is in violation of the spirit of proviso to section 3(3) of the Act and is also contrary to the law laid down by Hon'ble the Supreme Court in the case of Cherukuri Mani w/o Narendra Chowdari v. Chief Secretary, Government of Andhra Pradesh and others reported in 2014 Criminal Law Journal 2748. Hon'ble the Supreme Court while interpreting the provisions contained in section 3(2) and its proviso of the AP Act has held as under :- “A reading of the provisions of section 3 of the Act makes it clear that the State Government, District Magistrate or Commissioner of Police are the authorities, conferred with the power to pass orders of detention. The only difference is that the order of detention passed by the Government would remain in force for a period of three months in the first instance, whereas similar orders passed by the District Magistrate or the Commissioner of Police shall remain in force for an initial period of 12 days. The continuance of detention beyond 12 days would depend upon the approval to be accorded by the Government in this regard. Sub-section (3) makes this aspect very clear. Section 13 of the Act mandates that the maximum period of detention under the Act is 12 months. The continuance of detention beyond 12 days would depend upon the approval to be accorded by the Government in this regard. Sub-section (3) makes this aspect very clear. Section 13 of the Act mandates that the maximum period of detention under the Act is 12 months. Proviso to sub-section (2) of section 3 is very clear in its purport, as to the operation of the order of detention from time to time. An order of detention would in the first instance be in force for a period of three months. The Government alone is conferred with the power to extend the period, beyond three months. Such extension, however, cannot be for a period, not exceeding three months, at a time. Thus, when the provisions of section 3 of the Act clearly mandated the authorities to pass an order of detention at one time for a period not exceeding three months only, the Government order in the present case, directing detention of the husband of the appellant for a period of twelve months at a stretch is clear violation of the prescribed manner and contrary to the provisions of law. The Government cannot direct or extend the period of detention up to the maximum period of twelve months in one stroke, ignoring the cautious legislative intention that even the order of extension of detention must not exceed three months at any one time. Once should not ignore the underlying principles while passing orders of detention or extending the detention period from time to time.” 15. Keeping in view the law laid down by Hon'ble the Supreme Court in the case of Cherukuri Mani (supra) and the discussions made above, we hold that the impugned order of detention Annexure P-1 dated 12th December, 2013, which is for a period of twelve months at one instance, is liable to be quashed. We, therefore, quash the impugned orders Annexure P-1 dated 12th December, 2013 and Annexure P-2, dated 25th January, 2014, allowing this petition under Article 226 of the Constitution of India. The petitioner be set at liberty at once, if not required, in any other case. 16. Copy of this order be sent by the Registry of this Court for further transmission to the Secretary, Department of Home, Bhopal, MP for necessary action.