Cr. Writ No. 518 of 2012. Case: Nirala Yadav @ Raja Ram Yadav @ Dipak @ Ajai Yadav @ Prabesh Yadav @ Azad Vs The State of Bihar and Ors.. High Court of Patna (India)

Case NumberCr. Writ No. 518 of 2012
CounselFor Appellant: Onkar Nath and K.K. Thakur, Advs. and For Respondents: S.D. Sanjay, Akash Chaturvedi, Atal Bihari Pandey and R.R. Tiwari
JudgesMihir Kumar Jha and Aditya Kumar Trivedi, JJ.
IssueBihar Control of Crimes Act, 1981 - Sections 12, 12(1), 12(2), 12(3), 17, 18, 19, 21, 8, 8(c); Constitution of India - Articles 14, 21, 22
Judgement DateSeptember 06, 2012
CourtHigh Court of Patna (India)

Judgment:

Mihir Kr. Jha, J.

1. Heard counsel for the parties. In this writ application the petitioner has assailed the order of his detention dated 10.11.2011 (Annexure-2) passed by the District Magistrate (D.M.), Rohtas at Sasaram in exercise of his power under Section 12 of the Bihar Control of Crimes Act (hereinafter referred to as 'the Act') as also the confirmatory order dated 4.1.2002 (Annexure-6) passed under Section 21 of the Act by the State Government whereby and whereunder his detention is to continue till a period of twelve months i.e. upto 9.11.2012.

2. The facts of this case lie in a very narrow compass. An order of detention was passed against the petitioner by the D.M., Rohtas on 10.11.2011, as contained in Annexure-2, which was based on a proposal submitted by the Superintendent of Police (S.P.), Rohtas in his letter dated 16.10.2011. The said detention order alongwith the grounds for his detention of the petitioner having been served on him in the Central Jail, Sasaram on 10.11.2011 he had filed his representation to the State Government on 14.11.2011 with a copy thereof to the D.M., Rohtas and the S.P., Rohtas. The State Government having received the representation of the petitioner on 17.11.2011 had sent the same for comments of the D.M., Rohtas on the same day, whereafter the comments were sent by the D.M., Rohtas on 26.11.2011 and the representation of the petitioner was rejected by an order dated 3.12.2011. The matter relating to detention of the petitioner was also placed before the Advisory Board, which had concurred with the order of detention of the petitioner and the State Government had accordingly issued the order confirming such detention of the petitioner for a period of one year (upto 9.11.2012) by its order dated 4.1.2012.

3. It is to be also noted that the petitioner had moved earlier this Court against the same impugned orders of detention dated 10.11.2011 and its confirmatory order dated 4.1.2012 in Cr.W.J.C. No. 14 of 2012 which was dismissed by an order dated 7.2.2012 (Annexure-1) on the ground that as the petitioner was in judicial custody in connection with Rohtas P.S. Case No. 163 of 2010 pursuant to an order of judicial remand, no writ of habeas corpus could be issued by quashing the impugned orders of his preventive detention. The Division Bench, however, had given liberty to challenge the same orders of his detention again as and when he was released from the judicial custody.

4. It is the case of the petitioner that subsequently he was granted bail in Rohtas P.S. Case No. 163 of 2010 by this Court by an order dated 5.4.2012 in Cr. Misc. No. 14383/2012 (Annexure-7), whereafter the present application has been filed for quashing of the same detention order dated 10.11.2011 (Annexure-2) passed by the D.M., Rohtas as also the consequential order of confirmation dated 4.1.2012 (Annexure-6) passed by the State Government whereby and whereunder the petitioner has been directed to remain in detention till 9.11.2012. The same Division Bench which had earlier dismissed the writ application of the petitioner on 7.2.2012, in view of subsequent development of grant of bail to the petitioner by this Court on 5.4.2012 and the liberty given in the order dated 7.2.2012 had entertained this writ application filed on 10.5.2012 and by an order dated 11.5.2012 had also directed the respondents to file their counter affidavits whereafter three counter affidavits, the first one by the State Government, the second one by the D.M., Rohtas and the last one by S.P., Rohtas have been filed.

5. Mr. Onkar Nath, learned counsel for the petitioner, while assailing the impugned order of detention has raised in fact only one ground, namely, that there was inordinate and unexplained delay in disposal of the representation filed by the petitioner after service of the order of detention on him. In this regard he has submitted that when the order of detention was passed and served on the petitioner on 10.11.2011 and grounds for detention also were served on him on 10.11.2011 itself, the State Government had taken a period of 21 days in rejecting the representation of the petitioner. Learned counsel for the petitioner has further submitted that in view of the three counter affidavits filed by the respondents it becomes clear that even when the representation was filed by the petitioner on 14.11.2011 to the State Government and the State Government had asked the D.M., Rohtas to submit comments on the representation of the petitioner by an order dated 17.11.2011 but the D.M., Rohtas had consumed a period of nine days in only submitting his comments on 26.11.2011 and thereafter also a period of one more week was consumed by the State Government in disposing of the representation of the petitioner on 3.12.2011 which would amount to unexplained delay in disposal of the representation and thus would also vitiate the order of the detention. In this regard he has placed reliance on the Constitution Bench judgment of the Apex Court in the case of K.M. Abdulla Kunhi and B.L. Abdul Khader vs. Union of India & Ors., reported in (1991) 1 SCC 476 and also on a recent judgment of the Apex Court in the case of Ummu Sabeena vs. The State of Kerala & Ors., reported in (2011) 10 SCC 781.

6. Per contra, Mr. S.D. Sanjay, AAG-12, appearing on behalf of the State, has submitted that there was no such inordinate delay in disposal of the representation of the petitioner which would vitiate the impugned order of detention. In this regard he, on the basis of three affidavits filed on behalf of the respondents, has submitted that the representation filed by the petitioner on 14.11.2011 was forwarded by the Superintendent, Sasaram Jail which had reached the State Government in the Home Department on 16.11.2011, whereafter the Deputy Secretary to the State Government in the Home Department vide his letter dated 17.11.2011 had sought comment on the representation of the petitioner from the D.M., Rohtas and the said letter of the Home Department was received by the D.M., Rohtas on 18.11.2011. He has further submitted that the D.M., Rohtas in fact having received an advance copy of the representation of the petitioner from jail had already acted on such representation filed by the petitioner addressed to the State Government by seeking a report from the S.P., Rohtas vide his letter dated 17.11.2011 directing him to submit his comments with the relevant information relating to involvement of the petitioner in different criminal cases with reference to the investigation report/case diaries.

7. According to the learned AAG-12 the D.M., Rohtas thereafter also did not leave the matter unattended, inasmuch as he on receipt of the letter of Home Department dated 18.11.2011 had again sent a fax message to S.P., Rohtas on 18.11.2011 for submitting the desired report which was followed by his telephonic reminders to S.P., Rohtas as also his written reminders dated 23.11.2011 and 24.11.2011 because the D.M., Rohtas in the meantime had also received two reminders from the State Government for sending his comments on the representation of the petitioner. He has also submitted that when on 25.11.2011 a detailed report from the S.P., Rohtas was received in the office of the D.M., Rohtas and on the next day i.e. 26.11.2011 the D.M., Rohtas had sent his comments to the State Government which was received in the Home Department on 28.11.2011, whereafter the representation of the petitioner had been examined at different level in the Home (Special) Department of the State Government in between 28.11.2011 to 1.12.2011. According to him the Home Secretary had placed the whole matter before the Chief Minister on 1.12.2011 and the representation of the petitioner was rejected and thus disposed of by the Chief Minister on 2.12.2011 and the consequential communication thereafter was made to the petitioner on 3.12.2011. On the basis of these facts he has submitted that there is no inordinate much less unexplained delay in disposal of the representation of the petitioner which would vitiate the order of detention of the petitioner. Mr. Sanjay in this regard has also placed reliance on the same Constitution Bench judgment of the Apex Court in the case of K.M. Abdulla Kunhi (supra) and additionally he has also referred to a recent judgment of the Apex Court in the case of D.M. Nagaraja vs. Govt. of Karnataka & Ors., reported in (2011) 10 SCC 215.

8. In order to appreciate the issue relating to inordinate delay in disposal of the representation of a detenu under Preventive Detention Laws, the first and foremost consideration is to be given to the mandate under Article 22, sub-clause (5) of the Constitution of India which reads as follows:--

22(5) When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order.

9. The mandate flowing from Article 22 of the Constitution of India, which is part of fundamental right guaranteed to every citizen, has a sanguine object and in necessarily referable to Articles 14 and 21 of the Constitution of India which guarantees equality before law and equal protection of law as also protection of life and personal liberty. The two rights guaranteed under Articles 14 and 21 of the Constitution of India being affirmative rights, Article 22 thereof only provides one the mode of protection of such right and therefore, if the mandate under the Constitution is itself very clear that a person detained under any law of preventive detention has to be communicated and furnished the grounds of his detention as soon as after his detention with an earliest opportunity of making a representation against the order of detention, it goes without saying that...

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