Binod Singh Vs. District Magistrate
Dhanbad Bihar & Ors [1986] INSC 203 (26 September 1986)
MUKHARJI, SABYASACHI (J) MUKHARJI, SABYASACHI
(J) PATHAK, R.S.
CITATION: 1986 AIR 2090 1986 SCR (3) 906 1986
SCC (4) 416 JT 1986 561 1986 SCALE (2)531
CITATOR INFO:
RF 1987 SC2098 (7,8) F 1988 SC 596 (11) R
1989 SC2027 (20) R 1989 SC2265 (19) R 1989 SC2274 (10) R 1990 SC 516 (9) RF
1990 SC1196 (14) RF 1990 SC1202 (5) D 1990 SC1597 (11) RF 1991 SC1640 (12)
ACT:
National Security Act, s. 3(2)- Detention
order passed- Detenu already in custody in respect of criminal charge before
actual service of detention order-Detention order held invalid.
HEADNOTE:
The respondent passed an order of detention
in respect of the appellant under s. 3(2) of the National Security Act 1980, on
the ground that the appellant's activities were prejudicial to the maintenance
of public order. Several criminal cases were pending against the appellant when
the aforesaid order was passed. The appellant had already surrendered in
respect of a criminal charge against him before the order was served. He filed
a writ petition in the High Court challenging the detention order, but it was
dismissed without any speaking order.
Aggrieved by the order of the High Court, the
appellant filed the present criminal appeal by special leave as also a writ
petition challenging the aforesaid order of detention on the ground that the
order of preventive detention could only be justified against a person in
detention if the detaining authority was satisfied that his release from
detention was imminent and the order of detention was necessary for putting him
back in jail. The service of order of detention on the appellant/ petitioner
while he was in jail was futile and useless since such an order had no
application under s. 3(2) of the Act.
Allowing the writ petition and the appeal in
part, ^
HELD: 1. The continued detention of the
detenu under the Act is not justified. The order of detention therefore is set
aside. However, this will not affect detenu's detention under the criminal
cases. If however, the detenu is released on bail in the criminal cases already
pending against him, the matter of service of the detention order under the Act
may be reconsidered by the appropriate authority in accordance with law. [912
E-F] 906
2. In our constitutional framework, the power
of directing preventive detention given to the appropriate authorities must be
exercised in exceptional cases as contemplated by the various provisions of the
different statutes dealing with preventive detention and should be used with
great deal of circumspection. There must be awareness of the facts necessitating
preventive custody of a person for social defence. If a man is in custody and
there is no imminent possibility of his being released, the power of preventive
detention should not be exercised. [911 F-G] In the instant case, when the
actual order of detention was served upon the detenu the detenu was in jail.
There is no indication that this factor or the question that the said detenu
might be released or that there was such a possibility of his release was taken
into consideration by the detaining authority properly and seriously before the
service of the order. If there were cogent materials for thinking that the
detenu might be released, then these should have been made apparent. In the
affidavits on behalf of the detaining authority though there are indications
that transfer of detenu from one prison to another was considered but the need
to serve the detention order while he was in custody was not properly
considered by the detaining authority in the light of relevant factors. If that
is the position then however disreputable the antecedents of a person might
have been, without consideration of all the aforesaid relevant factors, the
detenu could not have been put into preventive custody. Therefore, though the
order of preventive detention when it was passed was not invalid, and on
relevant considerations the service of the order was not on proper
consideration. The order of detention is, therefore set aside. [911 G-H; 912
A-D] Rameshwar Shaw v. District Magistrate, Burdwan & Anr., [1964] 4 SCR 921
and Ramesh Yadav v. District Magistrate Etc. and others, [1985] 4 SCC 232,
relied upon.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No.
317 of 1986 From the Judgment and order dated
27.2.1986 of the Patna High Court in C.W.J.C. No. 33 of 1986.
With W.P. (Criminal)No. 316 of 1986.
R.K. Garg and Miss Rani Jethmalani for the
Appellant/ Petitioner.
D. Goburdhan for the Respondents.
907 The Judgment of the Court was delivered
by SABYASACHI MUKHARJI, J. Criminal Appeal No. 317 of 1986 arises out of the
judgment and order of the High Court of Patna and the Writ Petition No. 316 is
in respect of the same detenu. Both these challenge the order of detention
dated 2nd January, 1986 passed by the respondent no.1. The District Magistrate
Dhanbad in respect of the petitioner under section 3(2) of the National
Security Act, 1980, hereinafter called the 'Act' on the ground that the
petitioner's activities were prejudicial to the maintenance of public order.
Several criminal cases had been filed against the petitioner between 3rd
January, 1983 to 18th February, 1985. On or about 2nd January, 1985 the order
of detention was passed on an incident relating to the exchange of fire between
two rival groups. The order states the grounds as follows:
1. On 24.12.1985, between 10 and 10.30. A.M.
the subject alongwith Ramashish Bangali, Gulam, Rambriksha armed with Rifle,
gun etc. came in Car No. BHG-9372 on Katras Coal Dump and started
indiscriminate firing to kill Birendra Pratap Singh a rival of his calendestine
business of coal to establish his criminal superiority in full view of the
shopkeepers customers and passers by of the area. Birendra Pratap Singh and his
associates who were there also returned the firing in same manner. As a result
of this firing one innocent namely Brahamdeo Mishra was killed. The exchange of
indiscriminate firing in the main market area of Katras created great panic and
alarm in the area. The normal tempo of life was completely disturbed. The
people started running helter and skelter for their lives. Shopkeepers put down
their shutters. Doors and windows were closed. The vehicular traffic came to
halt. This refers to Katras P.S. Case No. 331/85 dated 24.12.85 u/s 149/307/32
IPC/27 Arms Act.
Besides the aforesaid ground the following
cases are also referred hereunder as background to show the criminality of the
subject.
1. KATRAS P.S. CASE No. 5/83 dated 3.1.83 u/s
147, 341/353/307 I.P.C.
In this case subject and his associates tried
to set free 908 the trucks and driver from the police custody by force and when
he failed in his attempt he threatened the police officer and CISF Personnel to
do away with their lives, C.S.No. 5/83 has already been submitted in this case.
2. Katras P.S. Case No. 303/83 u/s
147/148/452/323 IPC.
In this case subject and his associates went
to the tailoring shop of Saukat Ansari and asked him to keep his cloths ready
by 9.10.83 and on his refusal, he assaulted him in presence of customers and
others C.S.No. 196/83 has already been submitted in this case.
3. Jogta P.S. Case No. 22/84 dated 11.3.84
u/s 147/148, 307/326/353/333/324/325 I.P.C./27 Arms Act.
In this case subject and his associates
opened fire on police party who went to apprehend Raghunath Singh absconder
under NSA. As a result of this indiscriminate firing by him and his associates
one Police officer namely Shri R.K.
Verma, received serious head injury and is
still incapable to work. Charge sheet No. 25/84 has already been submitted in
this case.
4. Jogta P.S. Case No. 9/85 dated 18.2.85 u/s
369, 307/323/ 324/ 176/34 I.P.C./27 Arms Act.
In this case Sisir Rajan Das, who was coming
in a religious procession on the eve of Shivratri and was dancing in the role
of Shiva was compelled by his associates to dance before the marriage party of
subject's sister. Sri Sisir Rajan Das, however, acceded to their request and
started dancing. When he was dancing some of the members opened fire on him as
a result of which he fell down. The subject and his associates however put his
body in his car and fled away. Neither Shri Das nor his body could be traced
out till date.
909 Charge sheet No. 20/85 has already been
submitted in this case. (Emphasis supplied)
5. Jogta P.S. Case No. 68/85 dated 1.12.85
u/s 341/34 IPC.
In this case subject threatened Sri Krishana
Ballav Sahay, General Secretary, Colliery Shramik Sangh, Sijua, to do away with
his life if he takes out any procession or oppose him.
It is the case of the detenu that the order
of detention was made on one incident relating to exchange of fire between two
rival groups. A criminal case had been registered in relation to the said
incident pursuant to which the petitioner was already in custody. The order of
detention though dated 2nd January, 1986 was served on or about 11th January,
1986. It is the case of the appellant/petitioner that the detenu was not served
with all the documents referred to and/or relied on. The detenu was served with
order of approval of the said order of detention by the Government of Bihar.
The petitioner/appellant made representation on 22nd January, 1986 and the
petitioner/ appellant was informed that the said representation was rejected.
Thereafter the petitioner's appellant's matter was referred to the Advisory
Board. The petitioner/appellant states that he desired that he should be heard
in person by the Advisory Board. The petitioner/appellant submits that he was
produced before the Advisory Board but he was not given any hearing. By letter
dated 22nd February, 1986 the petitioner/appellant was informed that the
Advisory Board had confirmed the order of detention. The petitioner/ appellant
thereafter filed a writ petition in the High Court of Patna which was dismissed
without any speaking order.
The grounds of challenge are all stated in
the writ petition as well as special leave petition. The petitioner/ appellant
was in detention when the petitioner/appellant was served with the order of
detention. There were criminal cases against the petitioner. There was a murder
case in respect of Crime No. 331 of 1985. In the said case investigation was in
progress and the defence of the petitioner in the murder case was that he was
falsely implicated and was not at all concerned with the murder.
When the order was passed, the petitioner had
not surrendered but when the order was served, the petitioner had already
surrendered in respect of the criminal charge against him. At the relevant time
the petitioner was undertrial in the said criminal case.
910 It is the contention of the petitioner/appellant
that the order of preventive detention could only be justified against a person
in detention if the detaining authority was satisfied that his release from
detention was imminent and the order of detention was necessary for putting him
back in jail. The service of order of detention on the petitioner while he was
in jail was futile and useless since such an order had no application under
section 3(2) of the Act.
In the affidavit of the District Magistrate,
the detaining authority, it has been stated that the activities of the
petitioner's brother and the petitioner have disturbed the normal tempo of life
in Katras and Jogta Police Stations in Dhanbad area. The series of offences
against the detenu and the manner of their perpetuation, which have been noted
before, indicate a calculated move to create panic and fear in the mind of the
people. It further appears from the affidavit f f the District Magistrate filed
before the High Court of Patna that the petitioner was absconding from the very
day of the issuance of the detention order. There is a statement in the order
as follows-D "Subject is already in jail. He is likely to be enlarged on
bail. Hence detention order served in jail." According to the District
Magistrate when police pressure to apprehend him became heavy, the detenu opted
to surrender before the Sub-Divisional Judicial Magistrate on 10th January,
1986 in substantive case to frustrate the service of the detention order. It
has been further stated that the service of the detention order had been
properly made. Grounds were all indicated. All the documents which formed the
basis of detention were supplied to the detenu.
His representation, was duly considered and
rejected. The grounds stated that there was - indiscriminate firing on 24th
December, 1985 on Katras Coal Dump and the petitioner started indiscriminate
firing to kill Birendra Pratap Singh a rival of his calendestine business of
coal to establish the criminal superiority in full view of the shopkeepers,
customers and passers by of the area. The acts alleged created a terror and not
only law and order problem but problem of public order. In those circumstances
it appears that the grounds for forming the satisfaction for the need for the
detention were there, and there was rational nexus between the object of the
order as contemplated by the Act and the materials on record. The principles
applicable in these types of preventive detention cases have been discussed in
the decisions of Suraj Pal Sahu v. State of Maharasthra & Ors., W.P. (crl)
No. 2 96/86 with SLP (crl) No. 1265/86 dt. 25.9.86 and Raj Kumar Singh v. The
State of Bihar & Ors. Crl A. 353/86 with W.P. (crl) 27/86 dt.
26.9.86. Judged on the basis of 911 the said
principles there is no ground for interference with the order of detention as
passed. It, however, appears that after the order of detention was passed and
before the actual service of the order of detention, the petitioner was taken
into custody. From the affidavit of the District Magistrate it does not appear
that either the prospect of immediate release of the detenu or other factors
which can justify the detention of a person in detention were properly
considered in the light of the principles noted in the aforesaid decision and
especially in the decisions, in Rameshwar Shaw v. District Magistrate, Burdwan
& Anr., [1964] 4 SCR 921 and Ramesh Yadav v. District Magistrate Etah and
others, [1985] 4 SCC 232 though there was a statement to the effect that the
petitioner was in jail and was likely to be enlarged on bail. But on what
consideration that opinion was expressed is not indicated especially in view of
the fact that the detenu was detained in a murder charge in the background of
the facts mentioned before. His application for bail could have been opposed on
cogent materials before the Court of Justice.
In this case there were grounds for the
passing of the detention order but after that the detenu has surrendered for
whatever reasons, therefore the order of detention though justified when it was
passed but at the time of the service of the order there was no proper
consideration of the fact that the detenu was in custody of that there was any
real danger of his release. Nor does it appear that before the service there
was consideration of this aspect properly. In the facts and circumstances of
this case, therefore, the continued detention of the detenu under the Act is
not justified.
It is well settled in our Constitutional
framework that the power of directing preventive detention given to the
appropriate authorities must be exercised in exceptional cases as contemplated
by the various provisions of the different statutes dealing with preventive
detention and should be used with great deal of circumspection. There must be
awareness of the facts necessitating preventive custody of a person for social
defence. If a man is in custody and there is no imminent possibility of his
being released, the power of preventive detention should not be exercised. In
the instant case when the actual order of detention was served upon the detenu,
the detenu was in jail. There is no indication that this factor or the question
that the said detenu might be released or that there was such a possibility of
his release, was taken into consideration by the detaining authority properly
and seriously before the service of the order. A bald statement is merely an
ipso dixit 912 of the officer. If there were cogent materials for thinking that
the detenu might be released then these should have been made apparent. Eternal
vigilance on the part of the authority charged with both law and order and
public order is the price which the democracy in this country extracts from the
public officials in order to protect the fundamental freedoms of our citizens.
In the affidavits on behalf of the detaining authority though there are
indications that transfer of the detenu from one prison to another was
considered but the need to serve the detention order while he was in custody
was not properly considered by the detaining authority in the light of the
relevant factors. At least the records of the case do not indicate that. If
that is the position, then however disreputable the antecedents of a person
might have been without consideration of all the aforesaid relevant factors,
the detenu could not have been put into preventive custody.
Therefore, though the order of preventive
detention when it was passed was not invalid and on relevant considerations,
the service of the order was not on proper consideration.
It may be mentioned that in the petition it
is nowhere stated that the detenu has since been released or that the prospect
of his imminent release was properly and with seriousness considered by the
detaining authority.
The order of detention, therefore, is set
aside. The writ petition and the appeal are allowed to the extent indicated
above. This, how ever, will not affect detenu's detention under the criminal
cases. If, however, the detenu is released on bail in the aforesaid criminal
cases, the matter of service of the detention order under the Act on the
aforesaid materials may be reconsidered by the appropriate authority in
accordance with the law. There is no statement in the petition that the detenu
is on bail.
There will, therefore, be no orders for
release of the detenu.
M.L.A. Petition and Appeal allowed.
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