Bholi Sharma vs State of Bihar and Others

I.A. Ansari, J.�By his letter, dated 31-12-2013, the Superintendent of Police, Arwal, addressed to respondent No. 2, namely, District Magistrate, Arwal, sought for detention of the present petitioner under the provisions of sub-section (2) of Section 12 of Bihar Control of Crimes Act, 1981. Following the letter so received, respondent No. 2, namely, District Magistrate, Arwal, made, on 29-1-2014, an order, in exercise of powers under Section 12(2) of Bihar Control of Crimes Act, 1981, placing the petitioner under preventive detention, for a period of one year, i.e. until 28-1-2015. With the order of detention so made as mentioned above, the petitioner was also served with a copy of the grounds of detention, contained in memo No. 31, dated 29-1-2014, issued by respondent No. 2, namely, District Magistrate, Arwal. The said order of detention was approved by the Advisory Board on 5-2-2014 and, following approved of the Advisory Board, the State Government, by order, dated 19-3-2014, confirmed the said order of preventive detention, dated 29-1-2014.

The grounds of detention, which were furnished to the petitioner, mentions only two cases, namely, (i) Karpi Police Station Case No. 164 of 2013, dated 14-10-2014, registered under Sections 304/120B/34 of the Indian Penal Code and, later on, Sections 302/201 of the Indian Penal Code and Section 3(h) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act were added thereto, and (ii) Karpi Police Station Case No. 167 of 2013, dated 19-10-2013, registered under Sections 379/34 of the Indian Penal Code.

Aggrieved by his detention, the petitioner has made this application, under Articles 226 and 227 of the Constitution of India, seeking to get set aside and quashed not only the order of preventive detention, dated 29-1-2014, but also the order of approval, dated 5-2-2014, passed by the Advisory Board, Government of Bihar, and the order, dated 19-3-2014, passed by the State Government in exercise of power under Section 21(1) read with Section 22 of Bihar Control of Crimes Act, 1981, confirming the order of detention, dated 29-1-2014, aforementioned and directing that the petitioner shall remain in detention till 28-1-2015.

We have heard Mr. Birendra Kumar Sinha, learned Senior Counsel, for the petitioner, and Mr. Vikas Kumar, learned Counsel for the State.

While considering the legality and validity of the impugned order of detention, it needs to be noted that in terms of the grounds of detention, which have been furnished to the petitioner, the petitioner is shown to be an accused in two cases, namely, (i) Karpil Police Station Case No. 164 of 2013 and (ii) Karpi Police Station Case No. 167 of 2013.

In both the cases aforementioned, charge-sheets have been submitted against the petitioner. Since the trials of the said two cases have commenced, the petitioner has been in custody and there is no assertion, on behalf of the respondents, that the petitioner is likely to be released on bail.

While considering the present writ petition, what needs to be borne in mind is that personal liberty of a person is sacrosanct and State cannot take away or abridge a person''s liberty without following the procedure prescribed by law; or else, the State would be treated to have violated such a person''s fundamental rights guaranteed under Articles 21 and 22 of the Constitution of India.

The question, which confronts us, is: whether in the facts and attending circumstances of the present case, the order of preventive detention, dated 29-1-2014, is a legally valid order of detention and if this order, dated 29-1-2014, is not found to be, in the attending facts and circumstances of the present case, in consonance with law, it would naturally follow that the rejection of the petitioner''s representation by the Advisory Board was wholly illegal and the order, dated 19-3-2014, passed by the State Government confirming the order of preventive detention of the petitioner, too, are not in accordance with law and must be interfered with.

In the light of the question posed above, what is imperative to note is that an order of preventive detention cannot be made against a person, who is in custody, as an accused, in connection with a case, unless there is reasonable apprehension that he is likely to be enlarged on bail or otherwise, for, a person, who is already in custody, cannot be further detained by way of preventive detention.

In the case at hand, there is neither assertion nor any material on record indicating, even remotely, that the petitioner has applied for bail or is preparing to get his release on bail or is likely to be released on bail.

Succinctly put the Supreme Court, in Rekha Vs. State of T. Nadu tr. Sec. to Govt. and Another, that in T.V. Saravanan @ S.A.R. Prasana Venkatachaariar Chaturvedi Vs. State through Secretary and Another, ; A. Shanthi (Smt.) v. Govt. of T.N. and others, reported in (2006) 9 SCC 711 ; Rajesh Gulati Vs. Govt. of N.C.T. of Delhi and Another, , it has been held that if no bail application was pending and the detenu was already, in fact, in jail in connection with a criminal case, the detention order, under the preventive detention law, would be illegal and that the decisions afforested appear to have followed the Constitution Bench decision in Haradhan Saha Vs. The State of West Bengal and Others, wherein it was observed as under:

"Where the concerned person is actually in jail custody at the time when an order of detention is passed against him and is not likely to be released for a fair length of time. it may be possible to contend that there could be no satisfaction on the part of the detaining authority as to the likelihood of such a person indulging in activities which would jeopardize the security of the State or public order."

(Emphasis is supplied)

Taking note of its decision in A. Geetha Vs. State of Tamil Nadu and Another, and Ibrahim Nazeer Vs. State of Tamil Nadu and Another, the Supreme Court held that the decisions, in A. Geetha (supra) and Ibrahim Nazeer Vs. State of Tamil Nadu and Another, , have laid down that even if no bail application of the petitioner is pending, but if in similar cases, bail has been granted, then, this is a good ground for the subjective satisfaction of the detaining authority to pass the detention order. Having so held in Rekha ( AIR 2012 SC (Cri) 225) (supra), the Supreme Court observed and concluded as under:

"12. In our opinion, if details are given by the Respondent authority about the alleged bail orders in similar cases mentioning the date of the orders, the bail application number, whether the bail order was passed in respect of co-accused in the same case, and whether the case of the co-accused was on the same footing as the case of the petitioner, then, of course, it could be argued that there is likelihood of the accused being released on bail, because it is the normal practice of most Courts that if a co-accused has been granted bail and his case is on the same footing as that of the petitioner, then the petitioner is ordinarily granted bail. However, the respondent authority should have given details about the alleged bail order in similar cases, which has not been done in the present case. A mere ipse dixit statement in the grounds of detention cannot sustain the detention order and has to be ignored.

In our opinion, the detention order in question only contains ipse dixit regarding the alleged imminent possibility of the accused coming out on bail and there was no reliable material to this effect. Hence, the detention order in question cannot be sustained."

(Emphasis is added)

The law, on the above aspect, is very clear and we may, in this regard, refer to the case of Huidrom Konungjao Singh Vs. State of Manipur and Others, too, wherein the Supreme Court has pointed out that there is no prohibition in law in passing an order of preventive detention against a person, who is already in custody in connection with a criminal case. However, if the order of detention is challenged, the detaining authority, according to the decision in Huidrom Kunungjao Singh ( AIR 2012 2 SC 2002) (supra) has to satisfy the Court on the following aspects:

(1) The authority was fully aware of the fact that the detenu was actually in custody;

(2) There was reliable material placed before the detaining authority, on the basis of which it could have reasons to believe that there was real possibility, of the detenu''s release, on bail and further on being released he would probably indulge in activities, which are prejudicial to public order; and

(3) In view of the above, the authority felt it necessary to prevent him from indulging in such activities and therefore, detention order was necessary.

In Huidrom Konungjao Singh Vs. State of Manipur and Others, , the Supreme Court has further pointed out that in case, either of the facts indicated above, does not exist, the detention order would stand vitiated. The relevant observations, made in Huidrom Kunungjao Singh (supra), read as under:

In view of the, above, it can be held that there is no prohibition in law to pass the detention order in respect of a person who is already in custody in respect of criminal case. However, if the detention order is challenged the detaining authority has to satisfy the Court the following facts:

(1) The authority was fully aware of the fact that the detenu was actually in custody.

(2) There was reliable material before the said authority on the basis of which it could have reasons to believe that there was real possibility of his release on bail and further on being released he would probably indulge in activities which are prejudicial to public order.

(3) In view of the above, the authority felt it necessary to prevent him from indulging in such activities and therefore, detention order was necessary.

In case either of these facts does not exist the detention order would stand vitiated. The present case requires to be examined in the light of the aforesaid settled legal proposition.

(Emphasis is supplied)

We cannot ignore the contention of learned counsel for the petitioner that the impugned order of detention does not mention that the petitioner, who is in jail custody, ''is trying for bail'' or is likely to be released on bail or is likely to be otherwise set at liberty.

While considering the above aspect of the case, it needs to be noted that in the case of Amritlal and Others Vs. Union Govt. Through Secy. Ministry of Finance and Others, a similar issue arose in the sense that in the grounds of detention, it had been mentioned that there was "likelihood of the detenu moving an application for bail" and, hence, detention was necessary. The Supreme Court held, in Amritlal and Others Vs. Union Govt. Through Secy. Ministry of Finance and Others, , that there must be cogent material, available before the detaining authority, to show that it was likely that the detenu would be released on bail and it is, then, only that an order of preventive detention could be made against a person, who is already in custody in connection with a criminal case. (See also N. Meera Rani Vs. Government of Tamil Nadu and Another, ; Kamarunnissa and Others Vs. Union of India and another, and Union of India (UOI) Vs. Paul Manickam and Another, .

The Supreme Court, in A. Geetha Vs. State of Tamil Nadu and Another, has, while referring to its earlier decisions, in Rajesh Gulati Vs. Govt. of N.C.T. of Delhi and Another, , Ibrahim Nazeer Vs. State of Tamil Nadu and Another, and Senthamilselvi Vs. State of Tamil Nadu and Another, held as under:

"........that the detaining authority should be aware that the detenu is already in custody and is likely to be released on bail. This conclusion that the detenu may be released on bail cannot be ipse dixit of the detaining authority."

(Emphasis is added)

In the present case, neither in the impugned order of detention nor in the grounds of detention, any particular material has been referred to in order to show that the petitioner had been trying to come out of jail on bail. There being, in this regard, not even a shred of materials available on record and no material having been referred to, in this regard, in the order of detention or having been furnished with the grounds of detention to the petitioner, one has no option but to agree, and we do agree, with the submission made, on behalf of the petitioner, that there is no such material, which would have warranted, in the light of the provisions of Bihar Control of Crimes Act, 1981, detention of the petitioner by invoking District Magistrate''s power under Section 12(2) of Bihar Control of Crimes Act, 1981.

It is trite when a person is already in custody on allegation of having committed an offence, he cannot be taken into preventive detention unless there is genuine apprehension that he is likely to be released on bail. In order to, however, reach such a conclusion or draw such an inference, there must be material available, before the detaining authority, indicating that the detenu is likely to be released.

In the case at hand, as we have already noted above, there is no even a particle of material on record showing that the petitioner has had been trying to come out of jail on bail.

In the circumstances mentioned above, there is no foundation for apprehension that the petitioner''s liberty would endanger public order. Thus, the foundation, for arriving at the subjective satisfaction that the petitioner''s liberty will cause threat to public order, is non-existent. Extended logically, it means that respondent No. 2, namely, District Magistrate, Arwal, could not have passed the impugned order in exercise of his power under Section 12(2) of Bihar Control of Crimes Act, 1981, directing detention of the petitioner, when there was no material to show that the petitioner was likely to be released on bail or otherwise likely, to be set at liberty.

Because of what has been discussed and pointed out above, the impugned order of detention cannot be sustained and if the order of detention fails, the rejection by the Advisory Board of the petitioner''s representation and the subsequent order of confirmation, dated 19-3-2014, of the State Government can also not survive.

In the result and for the reasons discussed above, this writ petition succeed. The impugned order of detention, dated 29-1-2014, the impugned order, dated 5-2-2014, passed by the Advisory Board, and the impugned order of confirmation, dated 19-3-2015, passed by the State Government, are hereby set aside and quashed.

With the above observations and directions, this writ petition shall stand allowed.

No order as to costs.

Anjana Mishra, J.

I agree.