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IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (Cr.) (H.B.)No. 122 of 2011
Rajendra Singh ... ...... ... ... Petitioner
Versus
1.The State of Jharkhand
2.The Secretary, Department of Home, State of Jharkhand
3.The District Magistrate, Dhanbad.... ..... Respondents
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CORAM: HON'BLE THE CHIEF JUSTICE
HON'BLE MR JUSTICE P.P. BHATT
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For the Petitioner : Mr. R.S. Mazumdar, Sr. Adv.
For the State : S.C. II
Reportable ------ Dated 19th September, 2011
The petitioner was served with a notice dated 27th
November, 2010, under Section 3 of the Jharkhand Control of
Crimes Act, 2002 (wrongly mentioned in the notice as Bihar
Control of Crimes Act, 1981), a copy of which has been placed
on record as Annexure-1. The petitioner's contention is that he
submitted representation against the said notice; however,
proceeding under Section 3 of the Act of 1981 was dropped
vide order dated 25th March, 2011 after observing that since
an order under Section 12 (2) of the Act of 2002 for detention
of the petitioner has been passed, the proceeding under
Section 3 of the Act of 2002 has become infructuous. On 25th
March, 2011 a separate order of detention was passed under
Section 12 (2) of the Act of 2002, a copy of which has been
placed on record as Annexure 4 and grounds for passing such
a order are given separately in memo no. 454/c dated 25th
March, 2011. The petitioner's further contention is that
immediately after service of detention order, he submitted a
representation against the order of detention to the State
Government through the Jail Authorities as it is permissible
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and a right given to every detenue under Section 17 (1) of the
Act of 2002. The State Authority was under obligation to
decide the representation of the writ petitioner forthwith and
if, not forthwith, then without any delay. This right of
representation of the petitioner is not only by virtue of Section
17 (1) of the Act of 2002, but as has been conferred by Clause
5 of the Article 22 of the Constitution of India.
2. By not deciding the petitioner's representation, the State
Government has violated the Constitutional provision and
played with the liberty of the writ petitioner as if, the
petitioner's representation would have been considered in
time, the State Government may have dropped the
proceedings initiated under Section 12 (2) of the Act of 2002.
Not only this, the petitioner when challenged the order of
detention, the State Government passed the confirmation
order on 31st March, 2011 and that too, without rejecting the
petitioner's said representation. The petitioner's
representation even thereafter was not considered and
decided by the State Government and the petitioner,
therefore, preferred the writ petition before this Court on
20.05.2011
challenging the petitioner’s detention. In the writ
petition, counter was filed by the State on 26.6.2011 and then,
before filing the counter affidavit, the petitioner’s
representation was not considered and decided by the State
Government, though it would not have made the illegal
detention of the petitioner a legal detention. The State
Government, after two months of filing of the counter in futile
effort to cover up the illegality, on 6th August, 2011, rejected
the petitioner’s representation vide, order placed on record
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as Annexure ‘X’, submitted along with the supplementary
affidavit dated 17th August, 2011. The representation of the
petitioner has been rejected after taking into consideration the
opinion of the Advisory Board also but without considering any
of the submissions of the writ petitioner.
3. Learned counsel for the petitioner vehemently submitted
that consideration of the representation of a detenue is
mandatory and non-deciding of the representation of the
detenue renders the detention proceeding invalid. Learned
counsel for the petitioner relied upon the judgment of the
Hon’ble Supreme Court delivered in the case of Mohinuddin
alias Moin Master Vs. District Magistrate, Beed and others
reported in (1987) 4 SCC 58, wherein it has been held that
failure on the part of the State Government to consider the
representation made by the detenue renders the detention of
the detenue invalid and continuation of detention, in such
situation, is constitutionally impermissible.
4. Learned counsel for the petitioner also submitted that
detaining authority even did not apply mind to the facts of the
case. The detaining authority considered five criminal cases
registered against the petitioner, out of which in two of the
cases, the petitioner was already acquitted and in two of the
cases anticipatory bail was already granted and in one of the
cases, the petitioner’s appeal for grant of bail was pending
and, therefore, the grounds mentioned in the order of the
detaining authority dated 25th March, 2011, cannot justify the
detention of the writ petitioner.
5. Learned counsel for the State supporting the orders
impugned, submitted that there is no period of limitation
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prescribed in Section 17 (1) of Act of 2002 for deciding the
representation of the detenue and the petitioner’s case for
detention has been conformed by the State Government and
also by the Advisory Board and, therefore, now the detention
order cannot be set aside when the petitioner’s representation
has been rejected by the State Government vide order dated
6th August, 2011.
6. We considered the submissions of learned counsel for
the parties and perused the facts of the case.
7. Undisputedly, the right to represent against the
detention is given by the specific provision made in the
Constitution under Clause 5 of the Article 22 of the
Constitution of India and it is in relation to the highest right of
any person i.e., for liberty. The Section 17 (1) of the Act of
2002 may not have provided for considering and deciding the
representation by the State Government in any particular
period, but from reading of the entire Act of 2002, it is clear
that for every action, very short period has been given to the
authorities in the matter of taking decision like, confirmation
of the detention order by the State Government and for
placing of the matter before the Advisory Board and obtaining
decision of the Advisory Board. In that fact situation and in
consonance with the scheme of the Act of 2002, it cannot be
held that merely because there is no period of limitation in
Section 17 (1) of the Act of 2002, the State Government can
pass order on the representation of the detenue at any time
and beyond the time by which the matter can be referred to
the Advisory Board and the Advisory Board may pass order.
Therefore, the order on the representation of the detenue can
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be passed without any delay by the State Government and if it
is delayed, as delayed in this case, by almost more than four
months, then such orders are liable to be set aside. Hence,
the detention order in this case is set aside.
8. At this juncture, we may observe here that in this Court
most of the writ petitions are filed with the ground that in the
grounds given by the detaining authority, only the fact of the
criminal cases are incorporated by the detaining authority
without mentioning any fact that in the cases considered by
the detaining authority, whether the accused has been
acquitted or found guilty or in those cases any bail has been
granted or rejected by the Courts etc. Because of this reason,
only it is normally argued that the detaining authority has not
applied its mind to the facts of the case and has taken into
account only the facts which are against the person against
whom order of detention has been passed. The scope for
consideration and powers as well as requirement under
Section 12 (2) of the Act is entirely different than the
proceedings and requirements in any criminal cases.
Therefore, the detaining authority, after examining the facts
of the case and even the fact of acquittal of the accused in a
case and grant of bail, independently after taking into account
all facts, may decide whether detention of the person
concerned is necessary to prevent him from acting in any
manner prejudicial to the maintenance of public order and
there is reason to fear that the activities of anti-social element
cannot be prevented otherwise than by the immediate arrest
of such person. Object of the Act of 2002 or power given by
Article 22 of the Constitution of India, the State is not only to
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take action against the convicts and prevented from taking
action in case the accused has been acquitted or released on
bail in one or even all criminal cases. The detaining authority,
the Advisory Board and the State should satisfy itself from the
facts that the action under the Act against the person is
necessary. It is also understood clearly that the matter under
the Crime Control Acts are in relation to individual’s liberty,
which is the highest right of any person as protected by the
Constitution of India as well as it is a matter of life of not only
any individual but it may be matter of life of death of large
number of persons, therefore, every case should be taken in
passing order under such Acts.
9. Therefore, the copy of this order will be sent to the
Home Secretary, Jharkhand, who may circulate this order to
all authorities who have power under Section 12 (2) of the Act
of 2002 so that no person be detained wrongly under the
provisions of the Act of 2002 and no unwanted person be
released because of technical mistake committed by the
detaining authority.
10. The order of detention of the petitioner dated 25th
March, 2011 and confirmation order of the State Government
dated 31st March, 2011 are set aside. The petitioner is
directed to be released forthwith, if not needed in other case.
(Prakash Tatia, C J)
(P.P. Bhatt, J)
Dey/-Alankar/-