Allowed

Khikhar Singh @ Arun Kumar Singh v. The State Of Bihar and Ors.

Patna HC23 Jun 2014CR. WJC/301/2014

Case brief

AI extract

What is this about?

The Patna High Court allowed a writ petition challenging a preventive detention order under the Bihar Control of Crimes Act, 1981. The court quashed the detention and approval orders, holding they were invalid due to lack of proximate material to show a real possibility of the detenu's release on bail; the state's claim was mere ipse dixit.

What did the court decide?

The impugned order of detention dated 20.01.2014, the order of approval dated 24.01.2014, and the order of confirmation dated 12.03.2014 were set aside and quashed.

Khikhar Singh @ Arun Kumar Singh Vs The State Of Bihar and Ors. — Bail and Remand | Patna HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT PATNA

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Criminal Writ Jurisdiction Case No.301 of 2014

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====================================================== 1. Khikhar Singh @ Arun Kumar Singh Son Of Late Nakat Singh Resident Of Village- Khutaha Chetan Tola, P.S.Barahia, District- Lakhisarai .... .... Petitioner Versus 1. The State Of Bihar 2. Secretary Department Of Home (Police), Government Of Bihar, Patna 3. Under Secretary Department Of Home (Police), Government Of Bihar, Patna 4. District Magistrate Lakhisarai 5. Superintendent Lakhisarai Jail, Lakhisarai .... .... Respondents ====================================================== Appearance : For the Petitioner : Mr. Ajay Kumar Thakur, Advocate Mr. Rabindra Kumar, Advocate For the Respondents : Mr. Prabhu Narayan Sharma, AC to Advocate General ======================================================

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CORAM: HONOURABLE MR. JUSTICE I. A. ANSARI and

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HONOURABLE MR. JUSTICE ASHUTOSH KUMAR CAV ORDER (Per: HONOURABLE MR. JUSTICE I. A. ANSARI)

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6 23-06-2014 The material facts and various stages, which have given rise to the present writ petition, may, in brief, be set out as under:

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(i) While the petitioner had been in judicial custody, at the Divisional Jail, Lakhisarai, since September, 2013, in a substantive police case, namely, Lakhisarai P.S. Case No.568 of 2009, dated 10.11.2009, under Section

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364/34 I.P.C., he was served with an order, contained in memo No. 40, dated 20.01.2014, issued by respondent No. 4, namely, District Magistrate, Lakhisarai, directing, in exercise of the power under sub-section (2) of Section 12 of Bihar Control of Crimes Act, 1981, petitioner‟s detention for a period of one year, i.e., until 19.01.2015, the order of the preventive detention having been passed on the ground that the petitioner had been trying to obtain bail and if he happened to come out on bail, his release would, on account of series of cases involving the petitioner, adversely affect public order and that with a view to preventing him from acting in any manner prejudicial to maintenance of public order, it was necessary to make an order of his immediate detention.

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(ii) With the order of detention so made as mentioned above, the petitioner was also served with a copy of the grounds, contained in memo No. 39, dated 20.01.2014, issued by respondent No. 4, namely, District Magistrate, Lakhisarai. The said order of detention was approved by the State Government by its memo No. 585, dated 24.01.2014. Though the petitioner made a representation, in writing, on 29.01.2014, against the said order of his detention, the State Government, on 10.02.2014, rejected the petitioner‟s representation. This

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was followed by an order, dated 12.03.2014, issued by the State Government, affirming the order, dated 20.01.2014, whereby the petitioner‟s detention was directed.

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2. With the help of this writ petition, made under Articles 226 and 227 of the Constitution of India, the petitioner has put to challenge, inter alia , (i) the order, contained in memo No. 40, dated 20.01.2014, issued by respondent No. 4, namely, District Magistrate, Lakhisarai, directing, under Section 12(2) of the Bihar Control of Crimes Act, 1981, that the petitioner be kept detained till 19.01.2015, (ii) the order, contained in memo No. 585, dated 24.01.2014, issued by the Under Secretary, Department of Home (Police), Government of Bihar, Patna, whereby the State Government has, in exercise of its power under Section 12 (3) of Bihar Control of Crimes Act, 1981, approved the order of detention, dated 20.01.2014, aforementioned, and (iii) the order, dated 12.03.2014, issued by the State Government, affirming the order, dated 20.01.2014, aforementioned, directing the petitioner‟s detention.

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3. We have heard Mr. Ajay Kumar Thakur, learned Counsel for the petitioner, and Mr. Prabhu Narayan Sharma, learned Assistant Counsel to Advocate General for the State.

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4. 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.

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5. Since preventive detention is curtailment of a person‟s liberty and cannot be resorted to except under extraordinary and compelling circumstances, a preventive detention has to be wholly in consonance with the procedure prescribed by law. No wonder, therefore, that the law, which provides for curtailment of a person‟s liberty by way of preventive detention, requires that all the procedural safeguards provided by the law for taking a person into preventive detention are scrupulously followed if the order of detention has to withstand the test of constitutionality. In short, thus, adherence to the procedural safeguards prescribed by law is wholly imperative.

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6. Succinctly put the Supreme Court, in Rekha v. State of Tamilnadu through Secretary to Government and Another, reported in (2011) 5 SCC

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244 : (2011) 3 BBCJ 289 , that in T.V. Sravanan @ S. A. R. Prasana Venkatachaariar Chaturvedi v. State through Secretary and Another, reported in (2006) 2 SCC 664 ; A. Shanthi (Smt.) v. Govt. of T.N. and Others, reported in (2006) 9 SCC 711 ; Rajesh Gulati v. Government of NCT of Delhi, reported in (2002) 7 SCC 129, 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 afore-cited appear to have followed the Constitution Bench decision in Haradhan Saha v. State of West Bengal, reported in (1975) 3 SCC 198 , wherein it was observed as under:

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“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.”

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(Emphasis is supplied) 7 . Taking note of its decision in A. Geetha v.

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State of T.N., reported in (2006) 7 SCC 603 and Ibrahim Nazeer v. State of T.N., [(2006) 6 SCC 64] , the Supreme Court held that the decisions, in A. Geetha (supra) and Ibrahim Nazeer (supra), 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 (supra), the Supreme Court observed and concluded as under:

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“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 coaccused 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

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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.

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13. 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.”

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(Emphasis is added)

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8 . It has been agitated before us, on behalf of the petitioner, that though in the past, the petitioner had been made accused in some cases, all the cases ended in acquittal of the petitioner and, thereafter, the petitioner was, all of a sudden, made accused in a number of cases in the year 2011, though he was neither named in the First Information Report nor did his name surface during investigation and, in the cases so brought against him with ulterior motive, he has been in jail since September, 2013, and the copy of the grounds of detention, served on the petitioner, shows that the detaining authority had taken into account 8 (eight) cases pending against the petitioner, which, according to the detaining authority, reflected that

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the petitioner‟s detention was warranted, the last of the said series of 8 (eight) cases having been lodged on 11.06.2011 and that the grounds of detention further refer to cases, wherein the petitioner was alleged to have been involved, but these cases were of the year 1989 to 1995, one case is of the year 2003 and another case of the year 2009, the last of the case having been lodged, as already indicated hereinbefore, on 11.06.2011, and these cases were, therefore, not proximate in time requiring preventive detention of the petitioner .

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9. Referring to the cases, which have been mentioned in the grounds of detention, it is contended and reiterated before us that the cases, which have been referred to in the order of detention, were „ stale in nature’ and were not sufficiently proximate in time to the making of the impugned order of detention.

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10. Resisting the writ petition, it has been submitted, on behalf of the respondents, that the impugned order of detention, approval and also confirmation thereof by the State Government are on valid grounds, the State has genuine concern of maintenance of public order and that in the facts and circumstance of the present case, placing the petitioner in preventive detention was wholly imperative.

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11. While considering the rival submissions, it needs to be pointed out that the grounds of detention, in the present case, admittedly, refer to the cases of the year 1989 to 1995 as well as of the year 2003 and 2009. These cases could not have been, admittedly, considered appropriate for detaining the petitioner inasmuch as distance of time rendered these cases stale cases and could not have, therefore, been made the grounds for the petitioner‟s detention.

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12. Coupled with the above, though the bulk of cases is of the year 2011, the fact remains that the last of these cases was lodged as far back as on 11.06.2011; whereas the order of detention has been made by respondent No. 4, namely, District Magistrate, Lakhisarai, on 20.01.2014, i.e., after lapse of two-and-a-half years.

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13. Since no offence is alleged to have been committed by the petitioner between 11.06.2011 (i.e., the date on which the last case against the petitioner was lodged) and 20.01.2014 (i.e., the date on which the impugned order of detention was made), it was for the detaining authority to show as to how the alleged commission of offences by the petitioner, in the year 2011, would have any bearing in the year 2014 if the petitioner was released on bail. In the absence of any reasons having

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been assigned, in this regard, by the State, one cannot help, but hold, and we do hold, that there was no proximity of time between the alleged commission of the offences by the petitioner, on one hand, and the impugned order of detention, on the other hand.

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14. The law on the above aspect is very clear and we may, in this regard, refer to the case of Huidrom

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Konungjao Singh v. State of Mainpur, reported in (2012) 7 SCC 181, 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 Konungjao Singh (supra), has to satisfy the Court on the following aspects:

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

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( 2 ) There was reliable material placed before

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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

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activities, which are prejudicial to public order; and

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( 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.

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15. In Huidrom Konungjao Singh (supra),

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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 Konungjao Singh (supra), read as under:

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9. 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:

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

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(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

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activities which are prejudicial to public order.

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(3) In view of the above, the authority felt it necessary to prevent him from

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indulging in such activities and therefore, detention order was necessary.

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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.

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(Emphasis is supplied)

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16. We cannot ignore the contention of Mr. Ajay Kumar Thakur, learned Counsel for the petitioner, that the impugned order of detention mentions that the petitioner, who is in jail custody, ` is trying for bail ‟, but no material, in this regard, was considered by the detaining authority and, hence, in the absence of any such material, the contention of the detaining authority that the petitioner had been trying for bail was nothing, but mere ipse dixit of the detaining authority and this, by itself, vitiates the impugned order of detention.

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17. While considering the above aspect of the case, it needs to be noted that in the case of Amritlal v. Union Government, [(2001) 1 SCC 341 ], a similar issue arose in the sense that in the grounds of detention, it had been mentioned that there was “ likelihood of the

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detenu moving an application for bail ” and, hence, detention was necessary. The Supreme Court held, in Amritlal (supra), 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 v. Govt. of T.N., (1989) 4 SCC 418) , Kamarunnissa v. Union of India, (1991) 1 SCC 128) and Union of India v. Paul Manickam, (2003) 8 SCC 342 ).

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18. The Supreme Court, in A. Geetha v. State of T.N., [(2006) 7 SCC 603 ], has, while referring to its earlier decisions, in Rajesh Gulati (supra) , Ibrahim Nazeer (supra) and Senthamilselvi v. State of T.N., [(2006) 5 SCC 676], held as under:

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

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(Emphasis is added)

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19 . 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 the detaining authority‟s observation made to the effect that the petitioner ` is trying for bail’ is a mere ipse dixit of the detaining authority concerned and not based on the materials on record.

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20. It is trite that 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.

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21. In the case at hand, as we have already noted above, there is not even a particle of material on

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record showing that the petitioner has had been trying to come out of jail on bail.

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22. In the circumstances indicated above, we find considerable force in the submission made, on behalf of the petitioner, that the statement, made by the detaining authority in the impugned order of detention that “ the petitioner is trying for bail ”, is nothing but ipse dixit of the detaining authority concerned and this, by itself, renders the impugned order an order not sustainable in the eyes of law.

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23. In Shiv Prasad Bhatnagar v. State of M.P., reported in (1981) 2 SCC 456 , the order of preventive detention was challenged on several grounds, the primary challenge being, however, on the ground that the grounds of detention suffer from the vice of either vagueness or staleness . Addressing the primary submission so made, the Supreme Court pointed out, in Shiv Prasad Bhatnagar (supra), that the first ground, embodied in the grounds of detention, mentioned that the detenu, along with his friends, in the second week of November, 1980, had indulged in filthy abuse of Muslims, threatened their lives and performed „ mar pit ‟ and details of the incidents were given to substantiate the ground and that as many as six incidents were mentioned and in every

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one of them, it was mentioned that the detenu, along with his associates, had indulged in this or that violent action, but no mention was made of the name of even a single associate. The argument was that the reference to „associates‟ without naming even one rendered the ground vague and, therefore, vitiated it. Similarly, it was said that the second ground also referred to the detenu and his associates without naming even a single associate and for that reason, the second ground also was vague. The further submission was that the incidents enumerated, in second ground were of the years 1974, 1975, 1977 and 1978 and could, by no means, be said to be proximate enough to sustain an order of preventive detention . The second ground was to the effect that the detenu and his associates had terrorized the common man in the Vidisha area by their various criminal acts, which caused disturbance to public peace and public safety. Several incidents were narrated to substantiate this ground. The first incident was of the year 1974, the second incident was of the year 1975, the next three incidents were of the year 1977 and the rest of the incidents barring the last one were of the year 1978. A perusal of the incidents enumerated to substantiate the second ground showed, according to the Supreme Court, that the order of

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detention suffered from the vice of staleness. The Supreme Court also pointed out, in Shiv Prasad Bhatnagar (supra), that the incidents appear to bear a striking resemblance to the grounds of detention, which were considered in Sushanta Goswami (1969) 1 SCC 272 , p articularly, in the cases of Debendra Nath Das, Abdul Waheb, Anil Das, Dilip Kumar Chakraborty and Ashoka Kumar Mukherjee and that „ it is, now, well settled that grounds of detention must be pertinent and not irrelevant, proximate and not stale, precise and not vague. Irrelevance, staleness and vagueness are such vices that any single one of them is sufficient to vitiate a ground of detention . The relevant observations, appearing in Shiv

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Prasad Bhatnagar (supra), read as under:

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“ It is now well settled that grounds of detention must be pertinent and not irrelevant, proximate and not stale, precise and not vague. Irrelevance, staleness and vagueness are vices any single one of which is sufficient to vitiate a ground of detention.”

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(Emphasis is supplied) 24. Further-more, it has been correctly

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submitted, on behalf of the petitioner, that the petitioner was not furnished with any of the documents, which had become the basis for formation of the opinion of the

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detaining authority that the petitioner‟s detention was warranted. We are, indeed, surprised to note that no material was available before the detaining authority in order to enable him to draw the inference that the petitioner was likely to be released on bail.

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25. Though it has been agitated before us that the cases, which have been referred to, in the grounds of detention, would not lead to disturbance of public order, but are merely cases involving law and order, we do not enter into the correctness of this submission, when we are satisfied, for the reasons which we have assigned above, that the present order of detention is not sustainable in law and, in consequence thereof, the order, approving the petitioner‟s preventive detention and also the order confirming petitioner‟s detention must fail.

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26. Because of what has been discussed and pointed out above, we find that the impugned order of detention suffers from serious infirmities of law and cannot, therefore, be sustained. Consequently, the impugned order of detention followed by the impugned order of approval and impugned order of confirmation must fail.

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27. In the result and for the reasons discussed above, this writ petition succeeds. The impugned order of

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detention, dated 20.01.2014, the impugned order of approval, dated 24.01.2014, and the impugned order of conformation, dated 12.03.2014, are hereby set aside and quashed.

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28. With the above observations and directions,

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this writ petition shall stand allowed.

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29. No order as to costs.

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(I. A. Ansari, J.)

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Ashutosh Kumar, J.:I agree

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(Ashutosh Kumar, J.)