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2015 DIGILAW 1031 (JHR)

Akhilesh Singh v. State of Jharkhand

2015-09-01

RAVI NATH VERMA

body2015
Order : Invoking the extra ordinary jurisdiction of this Court under Article 226 of the Constitution of India, the petitioner has prayed to quash the order dated 20.04.2015 passed by the respondent no.4-the Deputy Commissioner, East Singhbhum, whereby a direction has been given to detain the petitioner for one year under Section 12(1) read with Section 12(2) of Jharkhand Control of Crimes Act, 2002 (hereinafter referred to as “the Act”) and further pays for quashing of the subsequent order dated 30.04.2015 passed by the respondent no.3-the Deputy Secretary, Department of Home, Govt. of Jharkhand, Ranchi by which the order of detention dated 20.04.2015 passed against the petitioner, has been approved. 2. The relevant facts, which are necessary for the proper adjudication of the issue involved in this criminal writ application, are that the respondent no.4 issued a preventive detention order of one year on 20.04.2015 under the Act (Annexure-1) disclosing pendency of several cases against this petitioner and there is every apprehension that whenever he will be released from jail custody, there will be a law and order problem in the concerned district and in fact he is a terror in East Singhbhum specially in Jamshedpur. 3. Learned senior counsel Mr. Anil Kumar Sinha appearing for the petitioner seriously contended that the above order issued by respondent no. 4 being contrary to the mandates given in proviso to Section 12(2) of the Act is illegal and not sustainable in the eye of law. The action of respondent authorities is also violative of Articles 14 and 21 of the Constitution of India. It was also submitted that in view of the provision as contained in Section 12(2) of the said Act, the petitioner cannot be detained for more than three months in one stretch and the order to detain the petitioner for the period of twelve months is clear violation of prescribed manner and settled law. In support of his contention, learned senior counsel relying upon on a recent judgment of Hon’ble Supreme Court rendered in the case Cherukuri Mani Vs. Chief Secretary, Government of Andhra Pradesh & Ors.; 2014 Cr.L.J. 2748 and also on an unreported judgment of Division Bench of this Court dated 31.01.2011 passed in W.P.(Cr.) (HB)No. 460 of 2010 (Mashuk Manish @ Monu Vs. State of Jharkhand & Ors.) and a judgment dated 24.07.2015 passed by this Court in W.P.(Cr.) no. Chief Secretary, Government of Andhra Pradesh & Ors.; 2014 Cr.L.J. 2748 and also on an unreported judgment of Division Bench of this Court dated 31.01.2011 passed in W.P.(Cr.) (HB)No. 460 of 2010 (Mashuk Manish @ Monu Vs. State of Jharkhand & Ors.) and a judgment dated 24.07.2015 passed by this Court in W.P.(Cr.) no. 33 of 2015 submitted that though in the case Cherukuri Mani (supra), the order was passed under Section 3(2) of the Andhra Pradesh Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986 (hereinafter referred to as “the A.P.Act”, 1986), but the said provision is exactly similar to the provisions of Section 12(2) of the Jharkhand Control of Crimes Act. In that case, the Hon’ble Supreme Court considering the case of the husband of the appellant, who was having a criminal antecedent and was directed under Section 3(2) of the A.P.Act, 1986 to be detained for 12 months, held that the impugned Government order directing detention for the maximum period of twelve months straightway cannot be sustained in law and further held that restriction of initial period of detention to three months is nothing but implementation of mandate contained in Clause 4 (a) of Article 22 of the Constitution of India. It was also submitted that though there is a long list of criminal antecedent of the present petitioner but in almost every case, the petitioner has either been acquitted or has been released on bail and that the last release order of the petitioner reached at Ghagidih Jail, Jamshedpur on 20.04.2015 at about 1:30 P.M., whereafter the order of detention passed by the respondent no.4 was handed over to the Jail Superintendent- respondent no.6 at about 3.00 a.m. on 21.04.2015 and he was detained in jail custody, which is absolutely illegal and contrary to the law and mandates given by the Hon’ble Supreme Court in the above case. Hence, the petitioner deserves to be released forthwith. 4. Mr. Rajiv Ranjan Mishra, learned G.P.-II after taking the Court through the provision as contained in Section 12 of the Act seriously contended that the State Government under sub-section (1) of Section 12 of the Act has every power to detain a person and the said power can also be invoked by the respondent no. 4. Mr. Rajiv Ranjan Mishra, learned G.P.-II after taking the Court through the provision as contained in Section 12 of the Act seriously contended that the State Government under sub-section (1) of Section 12 of the Act has every power to detain a person and the said power can also be invoked by the respondent no. 4- the District Magistrate under sub-section (2) of Section 12 of the Act as the language of sub-sections (1) and (2) are if read conjointly, the power of the State Government clearly speaks that it is a delegation of the power by the State Government to a District Magistrate, which District Magistrate can also exercise. In support of his contention, learned G.P.II relied on a case Jwalakant Mishra Vs. State of Bihar & Ors. ; 1989 PLJR 153 and prayed to the Court to refer paragraphs 12 and 13 of the said judgment. It was also submitted that in the instant case, the order of detention passed by the respondent no. 4 was subsequently approved by the Advisory Board and also by the State Government. 5. In view of the submissions of counsels, the solitary question, which has come up for consideration by this Court is “whether the respondent no.4 or the State Government has the power to pass a detention order to detain a person at a stretch for a period of 12 months under the provisions of the Act.” The Hon’ble Supreme Court while considering the same and similar provision under Section 3 of the A.P. Act, 1986 in the case Cherukuri Mani (supra) has held in paragraphs 14 to 16 of the said judgment as follows:- “14. The requirement to pass order of detention from time to time in the manner referred to above, has got its own significance. It must be remembered that restriction of initial period of detention to three months, is nothing but implementation of the mandate contained in Clause (4) (a) of Article 22 of the Constitution of India. The requirement to pass order of detention from time to time in the manner referred to above, has got its own significance. It must be remembered that restriction of initial period of detention to three months, is nothing but implementation of the mandate contained in Clause (4) (a) of Article 22 of the Constitution of India. It reads as under: Clause 4 : No laws providing for preventive detention shall authorize the detention of a person for a longer period than three months unless- (a) an Advisory Board consisting of persons who are or have been, or are qualified to be appointed as, Judges of a High Court has reported before the expiration of the said period of three months that there is in its opinion sufficient cause for such detention: Provided that nothing in this sub-clause shall authorize the detention of any person beyond the maximum period prescribed by any law made by Parliament under Sub-clause (b) of Clause (7); or (b) such person is detained in accordance with the provisions of any law made by Parliament under sub-clauses (a) and (b) of Clause (7). 15. Where the law prescribes a thing to be done in a particular manner following a particular procedure, it shall be done in the same manner following the provisions of law, without deviating from the prescribed procedure. 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. One should not ignore the underlying principles while passing orders of detention or extending the detention period from time to time. 16. Normally, a person who is detained under the provisions of the Act is without facing trial which in other words amounts to curtailment of his liberties and denial of civil rights. One should not ignore the underlying principles while passing orders of detention or extending the detention period from time to time. 16. Normally, a person who is detained under the provisions of the Act is without facing trial which in other words amounts to curtailment of his liberties and denial of civil rights. In such cases, whether continuous detention of such person is necessary or not, is to be assessed and reviewed from time to time. Taking into consideration these factors, the Legislature has specifically provided the mechanism “Advisory Board” to review the detention of a person. Passing a detention order for a period of twelve months at a stretch, without proper review, is deterrent to the rights of the detenu. Hence, the impugned Government Order directing detention for the maximum period of twelve months straight away cannot be sustained in law.” 6. In order to maintain law and order, public tranquility and also to curb the activities of anti-social elements, every State has enacted its respective Crime Control Act and enforcing the provisions of the Act as and when required but there is obligation on the State to enact the provisions within its four corners keeping in mind the rights of a person guaranteed under the Constitution of India. In the case Jwalakant Mishra (supra) as relied upon by the State counsel, the Hon’ble Court has held that the proviso to Section 12(2) of the Act is superimposition on the main provision contained in Section 12 (2) of the Act, which lays down that the State Government may authorize a District Magistrate to exercise power under Section 12(1) and when the District Magistrate has been so authorized, he should also have the jurisdiction to pass the order for detention in terms of Section 12(2) of the Act. The view taken in the said case cannot be said to be a good law in view of the mandates given by the Hon’ble Supreme Court in the case Cherukuri Mani (supra). 7. In view of the ratio decided in the case Cherukuri Mani (supra) , the order dated 20.04.2015 directing the detention of the petitioner for a period of one year in the first instance by the respondent no.4- the District Magistrate, East Singhbhum being contrary to the statutory provision, cannot be sustained. It is, accordingly, quashed. The subsequent order dated 30.04.2015 passed by respondent no.3 is also, thus, quashed. 8. It is, accordingly, quashed. The subsequent order dated 30.04.2015 passed by respondent no.3 is also, thus, quashed. 8. This Writ Petition (Cr.) is, hereby, allowed. 9. The petitioner, who is in jail custody, is directed to be released forthwith.