Awadhesh Mandal v. State of Bihar through the Principal Secretary, Department of Home (Police) Government of Bihar, Patna
2014-03-25
AHSANUDDIN AMANULLAH, V.N.SINHA
body2014
DigiLaw.ai
ORDER 1. Heard learned counsel for the petitioner and learned AAG-VI for the State. 2. Petitioner is a detenu under the provisions of Bihar Control of Crimes Act, 1981 (hereinafter referred to as the Act). He has filed this writ petition assailing the detention order passed by the District Magistrate, Purnea under sub-section (2) of Section 12 of the Act, bearing Memo No. 4038 dated 31.08.2013, Annexure-1 to the writ petition. He has also challenged the grounds of detention, bearing Memo No. 4039 dated 31.08.2013 wherefrom it appears that the Detaining Authority taking into account the criminal history of the petitioner of 28 cases lodged against him, has passed the impugned detention order also annexed with Annexure-1. Aforesaid detention order, grounds of detention were approved by the State Government under sub-section (3) of Section 12 of the Act vide Order No. 6687 dated 06.09.2013, Annexure-2 to the writ petition. Even before approval of the detention of the petitioner, petitioner was transferred from Purnea jail to Central Jail, Gaya by the order of the Inspector General (Prison), Bihar, Patna dated 02.09.2013, Annexure-F to the counter affidavit filed on behalf of Respondent no. 2. Besides, the aforesaid detention order as also the approval order, Petitioner has also challenged confirmation order dated 01.10.2013, Annexure-3 in terms whereof detention of the petitioner has been confirmed for a period of one year i.e. until 30.08.2014. 3. The challenge made in the writ petition is on the following grounds:- (i) Impugned detention order against the petitioner has been passed at the instance of his wife Bima Bharti, M.L.A. of the ruling party who got false case registered against petitioner being Bhawanipur (Akabarpur) P.S. Case No. 97 of 2012 dated 01.06.2012 and Akabarpur S.D. entry no. 677 dated 28.12.2012 referred to in the grounds. (ii) Grounds of detention referred to as many as 28 cases, but 4 out of 28 cases are not related to the petitioner and he has been acquitted in 12 out of 24 cases referable to him, the Detaining Authority as also the Approving Authority having not applied their mind to the aforesaid aspect, the order suffers from non-application of mind and is fit to be set aside on that ground. (iii) The documents relating to the aforesaid criminal cases, which have been taken as grounds of detention of the petitioner, have not been furnished to the petitioner.
(iii) The documents relating to the aforesaid criminal cases, which have been taken as grounds of detention of the petitioner, have not been furnished to the petitioner. (iv) Petitioner having been transferred from Purnea jail to Gaya Central Jail was not given opportunity to represent against the detention, approval, confirmation order and thereby his rights under sub-clause (5) of Article 22 of the Constitution of India was infracted. 4. In support of the aforesaid submissions, learned counsel for the petitioner has placed reliance on the judgment of the Supreme Court in the case of Abdul Aziz vs. Delhi Administration and others, AIR 1981 Supreme Court 1389 and Kailash Pandey vs. State of U.P. and others, AIR 1983 Supreme Court 317 and submitted that the copies of documents on the basis of which grounds of detention have been formulated is required to be furnished to the detenu. 5. Learned counsel for the petitioner next relied on the judgment of the Supreme Court in the case of Pebam Ningol Mikoi Devi vs. State of Manipur and others, (2010) 9 Supreme Court Cases 618 for the proposition that even one non-existent, misconceived or irrelevant ground or reason is enough to invalidate the detention order. He further placed reliance on the Division Bench judgment of this Court in the case of Bandar Yadav @ Bandarwa Yadav @ Dharmendra Yadav vs. State of Bihar & other, 2011 (3) PLJR 69 and submitted that perusal of the grounds would indicate that cases lodged against the petitioner in the year 1997 have also been relied upon in the grounds to detain the petitioner, which has no reasonable proximity and the impugned detention order is fit to be set aside on that ground alone. 6. Counsel for the State has opposed the submission placing reliance on Section 12-A of the Act and submitted that any ground which has no proximity or relevance to the case of the petitioner is required to be separated from the grounds which has relevance and proximity. In this connection, he placed reliance on the Division Bench judgment of this Court in the case of Abhay Choudhary vs. State of Bihar & other, 2000 (3) PLJR 1 . 7. Before proceeding to consider the submission of the parties, it is necessary to refer to Section 12-A of the Act.
In this connection, he placed reliance on the Division Bench judgment of this Court in the case of Abhay Choudhary vs. State of Bihar & other, 2000 (3) PLJR 1 . 7. Before proceeding to consider the submission of the parties, it is necessary to refer to Section 12-A of the Act. For ready reference, the said provision is quoted herein-below: "12-A. Grounds of detention severable – (1) Where a person has been detained in pursuance of an order of detention whether made before or after the commencement of the Bihar Control of Crimes Act, 1981 under section 12 which has been made on two or more grounds, such order of detention shall be deemed to have been made separately on each of such grounds and accordingly – (a) Such order shall not be deemed to be invalid or inoperative merely because one or some of the grounds is or are – (i) Vague. (ii) Non-existent. (iii) Non-relevant. (iv) Not connected or not proximately connected with such person. (v) Invalid for any other reason whatsoever. It is not therefore possible to hold that the Government or officer making such order would have been satisfied as provided in section 12 with reference to the remaining ground or grounds and made the order of detention. (b) The Government or officer making the order of detention shall be deemed to have made the order of detention under the said section after being satisfied as provided in that section with reference to the remaining ground or grounds." From bare reading of the aforequoted provision, it would appear that if any of the grounds of detention is found vague, non-existent, non-relevant, not connected or not proximately connected with the detenu or invalid for any other reason whatsoever, the said ground is required to be severed from the remaining ground or grounds. 8. In the instant case, perusal of grounds of detention dated 31.08.2013 indicates that the entire criminal history of the petitioner has been taken into account mentioning 28 cases in the grounds.
8. In the instant case, perusal of grounds of detention dated 31.08.2013 indicates that the entire criminal history of the petitioner has been taken into account mentioning 28 cases in the grounds. Out of the 28 cases, 4 cases are not connected with the petitioner, in other 12 cases, he has been acquitted, as such, in the grounds petitioner has not been shown charged in those 12 cases but in other 12 cases he has been shown charged as such the other 12 cases in which petitioner is shown charged are still referable to the petitioner which by any standard cannot be said to be not connected with the petitioner or not proximately connected with him. 9. In the circumstances, placing reliance on Section 12-A of the Act, we have no option, but to uphold the impugned detention order. The cases of the Supreme Court relied upon by the counsel for the petitioner have no relevance to the facts of the present case as the detention order impugned before the Supreme Court were issued under the National Security Act in which no provision as the one under Section 12-A of the Act is available. So far the case of Bandar Yadav @ Bandarwa Yadav @ Dharmendra Yadav (supra) is concerned, in the said case this Court has not taken into account Section 12-A of the Act, as such, said decision is not a binding precedent for the issue involved in the present case. 10. Reliance placed by the counsel for the petitioner on the judgment of the Supreme Court in the case of Abdul Aziz and Kailash Pandey (supra) in support of ground no. (iii) that documents relating to the criminal cases referred to in the grounds of detention have not been furnished to the petitioner is misconceived. Petitioner being FIR named accused in the 24 cases referable to him and mentioned in the grounds of detention was informed about the number and date of institution of the criminal cases lodged against him and such information being sufficient, copies of the FIR were not required to be annexed with the grounds.
Petitioner being FIR named accused in the 24 cases referable to him and mentioned in the grounds of detention was informed about the number and date of institution of the criminal cases lodged against him and such information being sufficient, copies of the FIR were not required to be annexed with the grounds. In the reported case of Abdul Aziz and Kailash Pandey (supra), Supreme Court was considering the validity of a detention order which was passed on the basis of the confessional statement of an accused, copy whereof was not served on the detenu which was the basis of his detention order and appreciating non-supply of the confessional statement, Supreme Court quashed the detention order. In the case in hand, petitioner himself is FIR named accused, number and date of institution whereof have been furnished to the petitioner with the allegation set out against him in the fardbeyan and with reference to the allegation it has been explained in the grounds as to why he is a threat to the public order. In the circumstances, it cannot be said that he has not been furnished with the inputs to submit his representation against the detention order and the grounds on the basis of which the detention order has been issued against him. 11. In support of ground no. (iv), petitioner initially relied upon the submission made in paragraph 10 of the writ petition that he was not given pen and pencil to submit his representation. Later he gave up the said submission and relied upon the submission made in paragraph 4 of affidavit dated 04.03.2014 that he was not allowed to avail the services of his next friend as he is unable to read and write and thus could not submit the representation. The two averments made on behalf of the petitioner being contrary to each other, it is difficult to rely on them in support of ground no. (iv) which is, accordingly, rejected for the reason of contradiction in the pleading. 12. In the result, we do not find any merit in the writ petition, which is, accordingly, dismissed.