Santosh Kumar v. State of Bihar Through Principal Secretary, Home (police) Department, Bihar, Patna
2014-11-27
AMARESH KUMAR LAL, DHARNIDHAR JHA
body2014
DigiLaw.ai
Order Dharnidhar Jha, J. Heard. This petition has been filed by the petitioner Santosh Kumar seeking the relief of issuing writs in the nature of habeas corpus as also certiorari by quashing the order of detention passed initially by the District Magistrate, Sitamarhi on 11.03.2014 contained in Annexure-4 which was approved by the Government of Bihar by its order dated 20.03.2014 (Annexure-5). It appears that the State Government passed final order under Section 22 of the Bihar Control of Crimes Act, 1981 (in short “the Act”) directing that the petitioner be detained for twelve months that, from 11.03.2014 to 10.03.2015 which order is contained in Annexure-“F” to the counter affidavit filed by the respondent no.3, the District Magistrate, Sitamarhi. Two cases were placed before the District Magistrate, Sitamarhi by the Deputy Superintendent of Police, Pupri, Sitamarhi in his report, which was forwarded by the Superintendent of Police, Sitamarhi by Annexure-2, as the grounds for detaining the petitioner. The first case was Bajpatti P.S. Case No.145 of 2013 under Section 392 IPC in which none was named as an accused and the second case was Parihar P.S. Case No.143 of 2013 in which the petitioner was named in the FIR, which was under Sections 395,412 and 414 IPC. Thus, what appears was that there was only one case in which the petitioner was said to be named in the FIR. The distance of time between two cases as appears from the report was not very big, it was indeed very short. But what has been found by us is that the State Government had passed the order for detaining the petitioner for a period of twelve months, in one stroke of pen which in our opinion is not supportable by law. Section 12 of the Act is the source of power which is derived by the State Government for detaining a person, as may appear from Sub-section 12(1) of the Act.
Section 12 of the Act is the source of power which is derived by the State Government for detaining a person, as may appear from Sub-section 12(1) of the Act. The power to detain a person which is basically vested in the State Government, may also be delegated to the District Magistrates of the Districts who may also pass orders but that order of the District Magistrate is subject to being approved by the State Government within 5 to 12 days of passing the same, when the grounds for detention along with the order as also other documents such as the representation of the detenue have to be forwarded to the State Government for seeking approval of the order. As may appear from the proviso appended to Sub-section (2) of Section 12 of the Act, the State Government has to specify the period for which the person has been detained and it has never to be in excess of the period of three months in the first instance which has to be extended, if the State Government is satisfied that it was necessary to do so, from time to time. The extended period of detention again cannot exceeding three months at any time. The very language of the proviso makes it mandatory for the State Government not to exceed the detention period of three months at any time. Thus the proviso fixes the initial and extended period of detention at three months on each occasion. The other part of the proviso which empowers the State Government to extend the period of detention also requires that it must be specified that the extension was necessary. When the statute required the State Government to specify about the necessity of extending the detention, then in our opinion, it was required to assign reasons in that behalf. We may point out that the reasons could be assigned only when there are factual basis for raising the inference regarding the necessity for extending the period of detention. We are also of the opinion that at every time when the State Government was to consider the necessity of extending the period of detention, it was to review the facts earlier available with new facts which may be collected so as to enforcing its reasons on the necessity of extending the earlier period of detention.
We are also of the opinion that at every time when the State Government was to consider the necessity of extending the period of detention, it was to review the facts earlier available with new facts which may be collected so as to enforcing its reasons on the necessity of extending the earlier period of detention. In no case, the extended period could exceed the statutory period of three months. There might be multiple extensions as appears provided by the law, but each instalment has to be for a period of three months and thus, in respect of the total period of twelve months for which the State Government could detain a person as per Section 22 of the Act, there could be at least four extensions and not beyond that. We often find that the State Government is mindlessly using the provision of Section 22 of the Act as the source of its power for passing detention order in one instalment for the total period of twelve months. In our opinion, such detention order is completely in contravention of the provision of Section 12 of the Act. Only yesterday, i.e., on 26th November, 2014 we were considering this issue of passing the detention order for twelve months in one instalment in Cr.W.J.C.No.1056 of 2014 Sanjeev Kumar @ Pappu Sipahi @ Sanjeev Kumar Singh v. State of Bihar and others and after referring to the Supreme Court decision in 2014(3) PLJR 280 (SC), we had held that passing of the detention order for a composite period of 12 months in one instalment was completely in infraction of the provisions of Bihar Control of Crimes Act and that jurisdiction never lies with the State Government. We find that almost in every cases the State Government is passing the order by misreading the provisions of Section 22 of the Act as if the provision empowered it for passing the detention order for twelve months in one instalment. We are saddened to find that the State officials are unintelligently reading the provisions to derive power which is never available to the State Government. The orders of detention has always to be passed both by the State Government and the District Magistrate on delegation of power under Section 12(2) of the Act only in consonance of the provisions of Section 12 of the Act and never in conflict with it.
The orders of detention has always to be passed both by the State Government and the District Magistrate on delegation of power under Section 12(2) of the Act only in consonance of the provisions of Section 12 of the Act and never in conflict with it. They cannot pass any detention order against the basic provision which is contained in Section 12 of the Act and if they exceed the provision, then what we feel is that it is unleashing terror upon the citizens who are yet to face the trial. In our opinion, facts of the case which are cited and taken as a ground are yet to be decided on the parameters of trial of criminal cases and still the man put behind the bars for twelve months in one go. The liberty of a person is his most valuable asset guaranteed as a human right by the Constitution of India. If any person in India and the legal entity like, the State Government interferes with it, it may fall foal in the views of this Court. After having gone through the papers which are the detention orders passed initially by the District Magistrate and approved by the State Government and finally passed by the State Government as contained in Annexure-“F” to the counter affidavit filed by the District Magistrate, Sitamarhi we find them quite in confliction with the provision of Section 12 of the Act and, as such, requires immediate interference by this Court. In the result, the writ petition is allowed. The orders of detention passed by the District Magistrate contained in Annexure-4 which was approved by the order contained in Annexure-5 and finally the detention order passed by the State Government contained in Annexure-F to the counter affidavit of the Respondent No.3 are hereby quashed. Let the petitioner Santosh Kumar be set at liberty if he is not required in any other case.