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2018 DIGILAW 2202 (RAJ)

Dipak v. State

2018-11-16

SANDEEP MEHTA

body2018
JUDGMENT : SANDEEP MEHTA, J. 1. Heard learned counsel for the petitioner and learned counsel for the respondents. Perused the material available on record. 2. Facts in brief are that an order of detention dated 27.03.2012 was passed by the District Magistrate, Bikaner under the provisions of the Rajasthan Prevention of Antisocial Activities Act, 2006 (hereinafter referred to as the Act of 2006 for short). However, before the order could be executed, the petitioner challenged the same by filing a writ petition being S.B. Civil Writ Petition No. 3981/2012 wherein, initially, an interim stay order was passed by this Court which was extended from time to time. Relying upon the Division Bench Judgment in the case of Sabina Khan vs. State of Rajasthan being D.B. Habeas Corpus (Writ) Petition No. 9919/2012 whereby, notifications issued by the State Government authorizing the District Magistrates to exercise powers under the Act of 2006 were struck down, the writ petition filed by the petitioner was allowed vide order dated 6.2.2013 and the order of detention was struck down un-executed without the petitioner ever being actually detained. 3. A fresh complaint came to be filed by the Dy. Superintendent of Police, Bikaner against the petitioner under the provisions of Act of 2006 to the District Collector, Bikaner recommending a fresh detention order whereupon, the petitioner has approached this Court by way of this writ petition seeking to preempt and terminate in anticipation, the detention order if any proposed to be passed against him and to restrain the respondents from detaining him under the provisions of the Act of 2006. 4. The respondents have filed a detailed reply to the writ petition wherein, the prayer made therein is opposed on the ground that no detention order is in existence against the petitioner as on date and thus, the writ petition itself is premature, misconceived and not maintainable. Mere recommendations of the sponsoring authority cannot be challenged because if at all any action is proposed in future, it is to be assumed that the District Magistrate would apply mind objectively to the entirety of facts and circumstances as available on record before issuing a fresh detention order against the petitioner, if any. A list of 31 criminal cases registered against the petitioner between December 1988 to March 2013 is annexed with the reply. 5. A list of 31 criminal cases registered against the petitioner between December 1988 to March 2013 is annexed with the reply. 5. Shri S.K. Verma learned counsel representing the petitioner relied upon the judgment rendered by Hon'ble Supreme Court in the case of Anant Singh @ Anant Kumar Singh vs. State of Bihar and Others passed in Criminal Appeal No. 533/2017 decided on 12.4.2017 and urged that as the earlier order of detention issued against the petitioner was quashed by this Court, a fresh detention on the very same grounds is not maintainable. He thus implored the Court to exercise its extraordinary writ jurisdiction and issued mandate to the respondents restraining them from passing a fresh detention order against the petitioner under the provisions of the Act of 2006. 6. Per contra, Ms. Sweta Bora associate to Shri Anil Bissa, AGC representing the respondents vehemently and fervently opposed the arguments advanced by Shri Verma and contended that the writ petition itself is premature and should be dismissed on this sole ground. She urged that as on date, no order of detention is actually in existence against the petitioner and thus, the writ petition itself is liable to be rejected as it founded on mere apprehensions. She submitted that it would be premature for this Court to assume that the District Magistrate would not apply mind to the entirety of facts as available on record before acting the recommendations of sponsoring authority. She craved dismissal of the writ petition on these grounds. 7. I have given my thoughtful consideration to the arguments advanced at the Bar and perused the material available on record. 8. The entire foundation of the arguments advanced by Shri Verma are based on the aspersion that as the earlier detention order issued against the petitioner was quashed by this Court, a fresh detention order cannot be passed on the very same grounds. 9. However, while elaborating upon this issue, this Court has to remain conscious of the fact that the petitioner was never actually detained in the earlier round. It is an admitted position as emerging from record that previously as well, the petitioner rushed to the Court before the order of detention could be executed and the order was never actually served upon him. It is an admitted position as emerging from record that previously as well, the petitioner rushed to the Court before the order of detention could be executed and the order was never actually served upon him. This Court went on to quash the order of detention on the ground that the notification empowering the District Magistrate was not compliant with the requirement of law. The Judgment in the case of Anant Singh @ Anant Kumar Singh (supra) on which reliance was placed heavily by Shri Verma to buttress his contentions was passed while dealing with the provisions of the Bihar Control of Crimes Act, 1981. In the said statute, the provision which was considered as prohibiting a fresh order of detention was Section 23 of the Act which for the sake of ready reference is reproduced herein-below for the sake of ready reference:- "23. Revocation of detention orders - (1) Without prejudice to the provision of section 21 of the General Clauses Act, 1897 (10 of 1897), a detention order may, at any time, be revoked or modified:- (1) Notwithstanding that the order has been made by an officer mentioned in sub-section of Section 12, or by the State Government to which that officer is subordinate. (2) The revocation or expiry of a detention order shall not bar the making of a fresh detention order under Section 12 against the same person in any case where fresh facts have arisen after the date of revocation or expiry on which the State Government or an officer mentioned in sub-section (2) of Section 12, as the case may be, is satisfied that such an order should be made." 10. A bare reading of the above provision clearly indicates that under the Bihar Act, a fresh order of detention in cases where the previous order is revoked can only be passed where fresh facts have arisen after the date of revocation on which, the State Government or the authorized officer concerned is satisfied that such an order should be made. However, the corresponding provision in the Rajasthan Act of 2006 is materially different from that of the Bihar Act which was interpreted and applied by Hon'ble Supreme Court in the case of Anant Singh @ Anant Kumar Singh (supra). 11. However, the corresponding provision in the Rajasthan Act of 2006 is materially different from that of the Bihar Act which was interpreted and applied by Hon'ble Supreme Court in the case of Anant Singh @ Anant Kumar Singh (supra). 11. Section 15 of the Act of 2006 which deals with revocation of detention orders and the power to pass a fresh detention order on the same grounds reads as below: "15. Revocation of detention orders - (1) Without prejudice to the provisions of section 23 of the Rajasthan General Clauses Act, 1955 (Act No. 8 of 1955) a detention order may, at any time for reasons to be recorded in writing, be revoked or modified by the State Government, notwithstanding that the order has been made by an authorized officer. (2) The expiry or revocation of a detention order (hereinafter in this sub-section referred to as the "earlier detention order") shall not bar the making of another detention order (hereinafter in this subsection referred to as "the subsequent detention order") under section 3 against the same person. Provided that in a case where no fresh facts have arisen after the expiry or revocation of the earlier detention order made against such person, the maximum period for which such person may be detained in pursuance of the subsequent detention order shall in no case, extend beyond the expiry of a period of twelve months from the date of detention under the earlier detention order." 12. The above provision thus clearly permits issuance of a fresh detention order on the same grounds as the earlier one with the only restriction being that the total period of the detention under the first and the subsequent detention order shall not exceed 12 months. The direct import of this provision is that the governing factor in cases of fresh detention order on same grounds would be the period of detention supported by the detenue concerned which in any event, should not exceed a total of 12 months. There is no embargo in the Rajasthan Act as it existed in the Bihar Act on the jurisdiction of the competent authority to pass a fresh order of detention on the same grounds. Significantly enough, in the case at hand, the petitioner did not suffer a single day of detention under the previous order passed by the State Government because the order was not allowed to be executed. Significantly enough, in the case at hand, the petitioner did not suffer a single day of detention under the previous order passed by the State Government because the order was not allowed to be executed. Thus, the ratio of the Hon'ble Supreme Court's decision in the case of Anant Singh @ Anant Kumar Singh (supra) would in no manner come to the aid of the petitioner for assailing the fresh detention order and that too in anticipation. Since the District Magistrate is yet to apply mind on the report of the sponsoring authority as to whether or not a fresh detention order should be passed or not against the petitioner, this Court refrains from commenting on the sufficiency or otherwise of the grounds of detention which exercise is otherwise also not warranted while exercising powers of judicial review available to the court. The issue is left open to be decided by the District Magistrate at the appropriate stage if so required. 13. An upshot of the above discussion, I find no merit in the writ petition, which is hereby rejected. 14. Stay application is also rejected.