Cr. Writ No. 1002 of 2013. Case: Sikandar Khan Vs The State of Bihar. High Court of Patna (India)

Case NumberCr. Writ No. 1002 of 2013
CounselFor Appellant: Mr. Rajesh Kumar Sinha-1, Adv. and For Respondents: Mr. Prabhu Narayan Sharma, Adv.
JudgesV.N. Sinha and Ahsanuddin Amanullah, JJ.
IssueBihar Control of Crimes Act, 1981 - Sections 12, 17, 23, 23(1); Bombay General Clauses Act, 1904 - Section 21; Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 - Sections 3, 3(1); Constitution of India - Articles 21, 22, 22(5); General Clauses Act 1897 - Section 21; Jammu and Kashmir Prevention of Illicit ...
Judgement DateFebruary 12, 2014
CourtHigh Court of Patna (India)

Order:

V.N. Sinha, J.

  1. Heard learned counsel for the petitioner and the State. By filing this writ petition, petitioner has assailed the order bearing Memo No. 445 dated 4.5.2013, Annexure-1 passed by the District Magistrate, Jamui under sub-section (2) of Section 12 of the Bihar Control of Crimes Act (Bihar Act 7 of 1981) (hereinafter referred to as the Act) in terms whereof, petitioner has been detained as according to the District Magistrate, he is an antisocial element and can be prevented from committing antisocial activity by passing order detaining him. In support of the order, the District Magistrate has also served the grounds on the petitioner, which is also dated 4.5.2013. Aforesaid detention order has been approved by the State Government under order dated 13.5.2013, which is also impugned in the writ petition as Annexure-2. Having approved the detention order, case of the petitioner was referred by the Govt. to the Advisory Board which also approved the detention of the petitioner and thereafter Govt. issued order dated 28.5.2013 indicating period of his detention until 3.5.2014. Said order has also been impugned in the writ petition as Annexure-3.

  2. The challenge to the aforesaid three orders is primarily based on the ground that initial detention order dated 4.5.2013, Annexure-1 did not inform the petitioner of his right to represent against the order of detention, as is required under sub-clause (5) of Article 22 of the Constitution of India, which enjoins a duty on the detaining authority to inform the detenu of his right to make representation at the earliest opportunity against the order of detention. In support of the aforesaid contention, learned counsel for the petitioner has relied on the Division Bench judgment of this Court in the case of Binod Yadav v. The State of Bihar & Ors., 2007 (Supp.) PLJR 936.

  3. The other submission which the learned counsel for the petitioner has raised in support of the writ petition is that representation of the petitioner dated 15.5.2013, Annexure-6 addressed to the Secretary, Home Department of the Government of Bihar has not been considered by the Govt. so far and failure to consider the representation vitiates his detention. In support of the plea that failure of the State Government to consider his representation has vitiated the detention, learned counsel relied on the Division Bench judgment of this Court in the case of Babloo Tiwari @ Govind Tiwari v. The State of Bihar & Ors. Reported in 2009 (3) PLJR 77 dated 31.3.2009, Annexure-7.

  4. The third ground taken in support of the writ petition is that perusal of grounds of detention dated 4.5.2013, Annexure-1 is not indicative of petitioner being any threat to public order in the society, rather the detention order has been passed with reference to few criminal cases in which he has been falsely implicated at the instance of the police and those cases does not constitute any threat by the petitioner to public order in the society.

  5. In this matter, three counter affidavits have been filed, one on behalf of Respondent Nos. 1 to 3, the State of Bihar and officers of the Home Department, the other on behalf of Respondent No. 4, the District Magistrate, Jamui and the third on behalf of Respondent No. 5, the Superintendent of Police, Jamui.

  6. In the counter affidavit filed on behalf of the State of Bihar and the officers of the Home Department different dates have been indicated on which the detention order was received in the Department as also approved by the State Government and then opinion of the Advisory Board was taken on 17.5.2013 whereafter confirmation order dated 28.5.2013, Annexure-3 was issued. In paragraph 8 of the counter affidavit of Respondent Nos. 1 to 3, it has been specifically stated that no representation of the petitioner against the detention order bearing Memo No. 445 dated 4.5.2013, Annexure-1 has been received in the Department.

  7. Counsel for the petitioner submitted that as the petitioner was not informed of his right to make representation under the detention order dated 4.5.2013, petitioner did not make any representation against that order until he was informed of his right to make representation under order dated 13.5.2013. After receipt of information under order dated 13.5.2013, he actually submitted the representation dated 15.5.2013, Annexure-6 addressed to the Home Secretary, Bihar.

  8. Perusal of the copy of representation dated 15.5.2013, Annexure-6 does not indicate the mode through which the said representation has been sent to the Home Secretary. It also does not appear from the representation that the same has been directly sent to the Home Secretary or through the Jail Superintendent. Counsel for the petitioner, however, invited our attention to paragraph 8 of the writ petition wherefrom it appears that the representation dated 15.5.2013 was sent through the Jail Superintendent, Jamui. Respondent Nos. 1 to 3 in paragraph 8 of their affidavit, have stated that no representation of the petitioner against the detention order No. 445 dated 4.5.2013 has been received in the Department. The District Magistrate, Jamui, Respondent No. 4, however, has stated in paragraph 10 of his affidavit in reply to the statement made by the petitioner in paragraph 8 of the writ petition that the statement made in paragraph 8 of the writ petition is admitted. Paragraph 8 of the writ petition is quoted hereinbelow:--

  9. That however the petitioner given his representation on 15.5.2013 to the Govt. through the Jail Superintendent, Mandal Kara, Jamui but nothing consideration has been done either it was rejected or it has not been forwarded which is crystal clear from the final order/confirmation.

    A true copy of representation dt. 15.5.13 is annexed as Annexure-6 to this Petition.

  10. Now, we come to the contents of the approval order dated 13.5.2013, Annexure-2 wherefrom it would appear that having approved the detention of the petitioner, the State Government observed in the approval order that copy of the approval order in triplicate forwarded to the Superintendent, District Jail, Jamui for immediate service on detenu, Sikandar Khan, one copy to be given to the detenu, second copy to be kept in jail office and the third copy bearing the signature or thumb impression of the detenu in token of receipt should be sent to the Govt. immediately. It further reads that the detenu, if desires to file any representation against the detention order, he may file to Govt. in Home (Police) Department through the Superintendent, District Jail, Jamui. The Superintendent, District Jail, Jamui is hereby directed to send such representation to the Govt. at once through the special messenger. Superintendent of Jail is requested to send a copy of such representation to the concerned District Magistrate at once.

  11. From the contents of paragraph 8 of the writ petition, it appears that petitioner submitted representation dated 15.5.2013, Annexure-6 after...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT