Case Facts:
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Writ No.348 of 2012 ====================================================== Ashok Yadav S/O Rajendra Yadav R/O Village - Chhechhani, P.S. Bithan, District - Samastipur .... .... Petitioner Versus 1. The State Of Bihar Through Home Secretary, Government Of Bihar, Patna 2. The Under Secretary Home Government Of Bihar, Patna 3. The District Magistrate Samastipur .... .... Respondents ====================================================== Appearance : For the Petitioner : Mr. Md. Khurshid Alam, Advocate. Mr. Arun Kumar Bhagat, Advocate. For the Respondents : Mr. Prabhu Narayan Sharma, SC to A.G ====================================================== CORAM: HONOURABLE MR. JUSTICE NAVANITI PRASAD SINGH and HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH ORAL ORDER (Per: HONOURABLE MR. JUSTICE NAVANITI PRASAD SINGH) 4 25-04-2012 The petitioner has filed this writ application challenging his preventive detention under the Bihar Control of Crime Act, 1981. Upon adjournment being granted State has filed a counter affidavit. We have heard the learned counsel for the petitioner and the learned counsel for the State at length. Though several grounds have been taken to challenge the legality of the preventive detention, in our view, it is not necessary to discuss in detail all of them. The order of detention and the ground are contained in Annexure-2(a) to the writ petition. It has been passed by the District Magistrate, Samastipur. In the order, the grounds given are firstly, Petitioner is an accused in Patna High Court CR. WJC No.348 of 2012 (4) dt.25-04-2012 2 / 5 2 Bithan P.S.Case No.68 of 2010 dated 11.08.2010 instituted under [STATUTE] and Section 27 of the Arms Act. It is alleged that the petitioner upon release from imprisonment in another case committed the aforesaid offence, whereby he is alleged to have killed a person in the middle of the road in day time and set his motorcycle on fire. He is now in custody in relation to the said case and it is apprehended if he is released he will again commit similar grave offence. The second ground is that he is an accused in Rosera P.S.Case No.4 of 2012 dated 05.01.2012 instituted under [STATUTE] . In this connection, it is stated that on 05.01.2012 while the petitioner was in detention in Rosera Jail he obstructed the Superintendent of the Sub-Jail from making search and seizures within the jail premises for which the said case was instituted. After the grounds of detention his history is given and allegedly he has been made an accused in about 21 cases. On behalf of the petitioner, it is submitted that the two grounds, as mentioned in order of detention, are wholly misconceived. It is firstly submitted that so far as the first case is concerned, i.e., Bithan P.S.Case No.68 of 2010 which is the first ground of detention as well, he was acquitted on 19.01.2012. The order of acquittal is Annexure-6 to the writ petition and is not denied by the State. So far as the second case is concerned, it is submitted that whatever happened was within the jail premises Patna High Court CR. WJC No.348 of 2012 (4) dt.25-04-2012 3 / 5 3 when petitioner was in custody. It could not be a problem of public order though at best it could be a law and order problem. Along with this, it is submitted that if we refer to what is stated in this detention order by the learned Collector, Samastipur, it would be evident that neither the Jail Superintendent nor the Superintendent of Police nor the Collector were ready to accept the order of acquittal. They chose to deliberately ignore the same. The order of detention is thus malafide in law. In this connection, our attention is drawn to the letter of the Superintendent, Sub-Jail, Rosera dated 14.02.2012, as mentioned in the order of detention, wherein the Collector notes that the Superintendent has informed that the petitioner is in custody in the said Bithan case since 10.01.2011. The point to be noted herein is that on 14.02.2012, he was no more accused in the said case. He had been acquitted. Then, it is pointed out that the Superintendent of Police, Samastipur in his letter dated 02.02.2012 informs the Collector that the petitioner is making all efforts to be released on bail and if he is so released on bail he will create problem. The point to be noted herein is, on that day the petitioner having been acquitted in the substantive case, was in custody only because of the case instituted by the Superintendent of Sub-Jail and even in that case by now (after detention order was passed) he has been granted bail by the Sessions Court itself. The Collector, thus, deduces that in view of the two cases aforementioned it is Patna High Court CR. WJC No.348 of 2012 (4) dt.25-04-2012 4 / 5 4 necessary to pass an order of preventive detention. In our view, it is a clearly malafide exercise of power. The first case which is the substantive case against the petitioner did not exist as he had been acquitted much before the detention order was passed. None of the parties chose to accept the said fact though it could not have escaped their attention. It cannot be accepted that the Jail Superintendent was unaware of the acquittal because no sooner a person is acquitted is to be released. The petitioner was not released because the Jail Superintendent had filed a case against him to ensure that he is detained further. Even in that case, he has now been granted bail. This itself renders the detention order bad. It is total non-application of mind and ignoring the relevant facts. We may also note that the learned counsel for the petitioner has pointed out that out of the 21 cases, which have been listed as against the petitioner in the past, as part of history, the petitioner has been acquitted in about 13 cases. In two cases, he is not an accused but still they are listed against him and in all other cases he is on bail. So much for the draconian exercise of drastic po

Applicable IPC Section: 302

Statute Text:
Section 302 of the Indian Penal Code. Murder. Whoever commits murder shall be punished with death, or imprisonment for life, and shall also be liable to fine.