Sita Ram Mahatha vs The State of Bihar and Others

S.N. Jha, J.—This application under Articles 226 and 227 of the Constitution of India has been filed for issuance of a writ in the nature of habeas corpus for the release of the Petitioner who has been detained u/s 3(2) of the National Security Act, 1980 (in short "NSA").

The Petitioner was detained pursuant to an order of detention dated 22nd July, 1988 issued by the District Magistrate, Dhanbad, Respondent No. 2. A copy of the said order of detention has been appended to the petition as Annexure-1.

Alongwith the order of detention the Petitioner was served with the grounds of detention on 1st August, 1988 on which date he surrendered himself before the Superintendent of Police, Dhanbad. The Petitioner has been detained on two grounds, which are enumerated herein below:

Ground No. 1:�On 13th May, 1988, one Jaipati Thakur son of Mathon Thakur of village Manpur, P.S.- Chandankiary, wanted to board a bus bearing No. BHG 9169 at around 9.30 A.M. near village-Manpur, P.S.-Chandankiary. Rasoraj Mahatha, Ramu Mahatha and Rasu Mahatha, all of village-Fatudih, who were also standing there, prevented Jaipati Thakur from getting into the bus. He was assaulted following which he fell down and the bus started moving. The bus was commanded to stop by the miscreants, and the subject, alongwith his associates, got down from it. They started brutally assaulting Jaipati Thakur. On seeing this, one Hari Thakur, son of Late Kapur Thakur, who was sitting in a nearby shop, tried to intervene. The subject and his associates started assaulting him. They pressed a lathi into the chest of Hari Thakur. Following this, Hari Thakur sustained grievous injuries and cried for life. The passengers, including women and children in the bus also started crying. Nearby shopkeepers closed their shops. Injured Hari Thakur was carried to a village doctor, where he was declared dead. The incident was the consequence of complaint and opposition by Jaipati Thakur against the subject. The subject is a notorious "Dada" and "Rangdar" of the locality. This incident created panic in the area and public order was disturbed. This refers to Chandankiary P.S. Case No. 39/88 dated 13.5.1988 u/s 302/34 I.P.C..

Grounds No. 2:�On 23rd April, 1988, the subject tried to extort money from one Bishwadeb Mukherjee, son of Laxmikant Mukherjee, village-Ghoramara, P.S. Chandankary, while the latter was driving a bus bearing No. BHG 9169 from Jharia to Baramasia under Chandankiary police station when he stopped the bus near village Lagla, the subject demanded, ''rangdari tax'' from him. On his refusal, he was brutally assaulted in full view of passengers. He was forced to get down from the bus and was taken to a nearby ration shop where he was again beaten, and ultimately he was made to pay Rs. 100/- as ''rangdari tax''. Hundreds of people assembled there, but due to tenor created by the Subject, nobody came to the rescue of the victim. After making payment of the ''rangdari tax'' and releasing himself, the driver escaped with the bus, leaving the passengers stranded. The people assembled there did not dare to enter into the bus. Thus normal routine of the people in the area was disrupted and public order got disturbed. This refers to Chandankiary P.S. Case No. 33/88, dated 23.4.88 u/s 87 I.P.C.

A copy of the ground has been annexed as Annexure-2 to the application.

The proposal for the detention of the Petitioner under NSA was sent by the District Magistrate Dhanbad on 22.7.1988 for approval of the State Government. The State Government vide order No. 2316 dated 30.7.1988 approved, the detention order dated 22.7.1988 passed against the Petitioner within 12 days as provided u/s 3(4) of the N.S.A.A report u/s 3(5) was also sent to the Government of India on 4.8.1988 within the stipulated time. The matter was referred to the Advisory Board on 18.8.1988 and the report of the Advisory Board was received in the department on 19.9.1988. On the basis of the report of the Advisory Board the State Government examined the case of the Petitioner and confirmed the detention order u/s 12 (1) read with Section 13 of the N.S.A. by order No. 2886/C dated 27.1988 and ordered the Petitioner to be detained till 1.8.1989. A copy of the said order has been annexed as Annexure-3 to the application.

Mr. Braj Kishore Prasad, earned Counsel appearing on behalf of the Petitioner, has challenged the order of detention by a writ of habeas corpus before this Court on the ground, inter alia, that there is complete non-application of mind by the detaining authority in coming to his subjective satisfaction, that is to say, that the detaining authority was not made aware of the fact at the time of making detention order that the detenu has already been granted bail in those two criminal cases which are the basis of the impugned detention, which itself amounts to non-application of mind. The other ground of attack was that the grounds of detention are absolutely vague and the cases which are mentioned in the ground are not related to the public order.

Before proceeding to consider the case on merits it is relevant to quote the provision of Section 3(2) of the N.S.A., which reads as follows:

The Central Government or the State Government may, if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the security of the Same or from acting in any manner prejudicial to the maintenance of public order or from acting in any manner prejudicial to the maintenance of supplies and services essential to the community it is necessary so to do, make an order directing that such person be detained.

On a plain reading of Section 3 of the N.S.A., it become clear that the Central Government or the State Government or the District Magistrate authorised by the State Government in writing may puss an order of detention against a person on being satisfied that with a view to preventing him from acting in any manner prejudicial to the maintenance of public order, it is necessary to make an order directing that such person be detained.

In the instant case the order of detention has been made by Respondent No. 2, the District Magistrate, on the basis of two criminal cases in respect of two incidents already mentioned above.

Mr. Prasad strenuously argued that in both the aforesaid criminal cases the Petitioner was released on bail by the Sessions Judge, Dhanbad. In Chandankiyari P.S. Case No. 39 dated 15.5.1988 the Petitioner was merely a member of the mob. He was neither the main assailant nor he had played leading part in the crime. In so far as other incident relating to extortion of money from the informant is concerned that incident is directed only against an individual and in no way it can be said to affect the public at large. According to the earned Counsel none of the grounds mentioned in Annexure-2 make out a case in which if the Petitioner is allowed to remain at large, his activities would be prejudicial to the maintenance of public order.

Besides this, it was vehemently argued on behalf of the Petitioner that neither the detaining authority was made aware of the fact that the Petitioner has already been enlarged on bail nor any relevant papers relating to the same were made available to him. Therefore, or this around done the detention order be quashed and the Petitioner be released forthwith. In support of his contention he has relied upon a decision in the case of Anant Sakharam Raut Vs. State of Maharashtra and Another,

Two counter affidavits have been filed on behalf of the Respondents, one on behalf of Respondent No. 1 i.e. the Stale of Bihar and the other on behalf of Respondent No. 2, the District Magistrate, Dhanbad.

It was argued on behalf of the State that it was not correct to bay that the detaining authority was not made aware of these facts. The earned Counsel appearing on behalf of the State has drawn my attention to the counter affidavit filed on behalf of Respondent No. 2, where it has been slated that the detaining authority was aware and conscious of the fact that if the Petitioner was allowed to remain at large it would be prejudicial to the maintenance of public order and secondly the grant of bail in no way restricts the hand of the detaining authority from using the provisions of NSA.

Mr. Prasad submitted that he has never argued that the grant of bail in any way restricts the hands of the detaining authority from using the provisions of NSA, if he is otherwise satisfied, but his whole argument was that the detaining authority was not made aware of this fact at the time of passing the order that the detenu had already been released on bail in those two criminal, cases, which are made the basis for his preventive detention. The non-awareness of the detaining authority of the fact that the detenu has already been released on bed by the Sessions Judge amounts to non-application of mind.

It has been categorically stated in paragraph 10 of the counter affidavit filed on behalf of Respondent No. 2 in reply to the statements made in paragraph 11 of the writ application that "the detaining authority was aware and conscious of the fact that if the Petitioner was allowed to remain at large it would be prejudicial, to the maintenance of. public order".

It cannot be derived from such statemerit that the detaining authority was aware of the fact that the Petitioner has been released on bail in the aforesaid two criminal cases, which were the main ground for detaining him under NSA. Mr. Prasad has fairly conceded that grant of bail in way restricts the hands of the detaining authority from using the provisions of NSA, but according to him the detaining authority should be conscious of the fact that the subject is already on bail and if he would be allowed to remain at large it would be prejudicial to the maintenance of public order. Therefore, it is necessary to put him behind the bar to prevent him from acting in any manner prejudicial to the maintenance of public order. I find force in his contention.

It was contended on behalf of the State that so far the subjective satisfaction of the detaining authority as regards the factual existence of the condition on which the order of detention can be made is concerned, the Court cannot be invoked to consider the propriety or sufficiency of the grounds on which the satisfaction of the detaining authority is based nor can a court on a review of the ground substitute its own opinion. The State counsel may be light, but the question is as to whether the detaining authority while coming to the subjective satisfaction was aware of the facts that in those two cases, which are the basis of the impugned detention order, the detenu was already on bail.

On the point of vagueness, it was contended on behalf of the Petitioner that the grounds supplied for are vague because they do not disclose that who were those nearby shop keepers, who closed their shops, who was the village doctor to whom the injured was taken, who were the other associates who commanded the bus to stop, who, were, the persons who started brutally assaulting the said Jaipati Thakur etc. It was also contended that the cases which are mentioned in the grounds are not related to the maintenance of public order but it was merely a law and order problem.

I may indicate here that an act whether it amounts to a breach of law and order or a breach of public order absolutely depends on its extent and reach to the society. If the Act is restricted to a particular individual or a group of individuals it breaches the law and order problem, but if the effect, reach and potentiality of the Act is so deep as to affect the community at large then it becomes a breach of the public order. It was contended by the earned Counsel for the Petitioner that in the instant cast the alleged incidents cannot be said to be related to public order because it is a dispute between two individuals.

I do not think it necessary to go into all the grounds urged before me by the Petitioner''s counsel in support of his prayer to quash the order of detention. The one contention strongly pressed before me by Mr. Prasad is that the detaining authority was not made aware of the fact at the time of making detention order that the detenu has already been released on bail in those two cases which are the basis of detention and the detention order is liable to be quashed on that ground alone I have gone through the detention order carefully and minutely. There is absolutely no mention in the order about the fact that he was an under trial prisoner and he was arrested in connection with those two cases and ha has been released on bail. This indicates total absence of application of mind on part of the detaining authority while passing the impugned order of detention and on this ground alone the writ application can be disposed of.

In my view it is true that grant of bail in no way fetters the hands of the detaining authority from invoking the provisions of NSA, but one does not know how the detaining authority would have acted if he was made aware of the above details. I have already mentioned above that there is absolutely no mention in the order about the fact that the Petitioner is an under trial prisoner and he was released on bail in those two cases. If the Petitioner is found disturbing the law and order or misusing the privilege of bail granted to him, the authority would have been at liberty to move the appropriate court to get his bail order cancelled but it is not possible to know the mind of the detaining authority how he would have acted if he was made aware of the fact that the detenu was already on bail.

After considering all the facts and circumstances of this case, I am of the view that there was clear non-application of mind on the part of the detaining authority about the fact that the Petitioner was granted bail when the order of detention was passed and on this ground itself the Petitioner it entitled to succeed. The same view has becn taken by the Hon''ble Supreme Court in the case of Anant Sakharam Raut {supra).

Reference may also be made to the recent decision of the Hon''ble Supreme Court in the case of Ayya alias Ayub Vs. State of U.P. and Another, , where it has been held that "There would be vitiation of the detention on grounds of non-application of mind of a piece of evidence, which was relevant though not binding, had not been considered at all. If a piece of evidence which might reasonably have affected the decision whether or not to pass an order of detention is excluded from consideration, there would be a failure of application of mind which, in turn, vitiates the detention. The detaining-authority might very well have come to the same conclusion after considering this material, but in the facts of the case the omission to consider the material assumes materiality."

In the result for the foregoing reasons this writ application is allowed, the order of detention impugned in the petition is quashed and the Petitioner is directed to be set at liberty forthwith unless he is held in custody pursuant to any other order under any lawful authority. There will be no order as to costs.