Mahendra Singh vs The State of Bihar and Others

A proceeding under the Bihar Control of Crimes Act, 1981, hereinafter referred to as "the Act 1981" was initiated against the petitioner. An order u/s 12(2) of the Act 1981 was passed on 23.3.2005 by the District Magistrate, respondent No. 4, Annexure-1, stating that movement of the petitioner is prejudicial to the maintenance of public order and, as such, he be detained in District Jail, Sasaram. The State Government approved the detention vide order dated 1.4.2005, Annexure-2. The petitioner filed representation against his detention, according to the petitioner on 6.4.2005. The said representation was rejected on 5.5.2005, Annexure-4. Thereafter, the final order of detention was passed u/s 22(1) read with Section 22 of the Act 1981 and the petitioner was directed to be detained till 24.3.2006, Annexure-5. The petitioner has challenged the order of detention in this writ petition mainly on the ground that there was unexplained delay in disposal of the representation. A counter affidavit has been filed on behalf of respondent Nos. 1 to 3 explaining the delay in disposal of the representation. The submission of the counsel for the petitioner is that the delay in disposal of the representation has not been explained as required under the law stating that the representation was filed on 6.4.2005 which was rejected on 5.5.2005. He also relied on a decision in the case of Rajammal Vs. State of Tamil Nadu and Another, .

On consideration, this much is obvious that the representation was filed by the petitioner, as stated by the respondents on 10.4.2005, and the representation was rejected on 5.5.2005 i.e. about 25 days time was taken in disposal of the representation. It is well established rule of law that by order of detention the fundamental right of the citizen is taken away. In such a case, the respondents are required to act in accordance with law. Any deviation would entail the order of detention null and void. In the case of Rajammal (supra) the Apex Court has considered the delay of five days on the ground that the Minister Incharge was not available. The Apex Court considered the explanation and held that it is an unexplained delay and the order of detention was set aside. In the instant case it has been stated in the counter affidavit that the petitioner filed representation against the order of detention on 10.4.2005, which was received in the department on 13.4.2005. The District Magistrate was asked to furnish his comments on the petitioner''s representation vide letter dated 13.4.2005. The comment was received on 25.4.2005 and the representation was rejected on 5.5.2005. It is obvious from the explanation as given in the counter affidavit that for seeking the comment 12 days time was taken, which has not been explained in the counter affidavit. Similarly, after receipt of the comment the respondents took ten days time for rejecting the representation, which has not been explained by the respondents. Obviously, the delay, as required under the law, has not been explained and, as such, the order of detention cannot be held to be legal. Accordingly, this writ petition is allowed, and the order of detention, Annexures 1 and 5 are hereby quashed.