IN THE HIGH COURT OF JUDICATURE AT PATNA CR. WJC No. 235 of 2011 BASGIT YADAV, Son of Shri Ram Naresh Yadav, resident of Mathnital, P.S. – Chouk Patna City, District – Patna. ………… Petitioner. Versus 1. THE STATE OF BIHAR. 2. The Home Commissioner-cum-Secretary (Police) Department, Govt. of Bihar, Old Secretariat, Patna. 3. The District Magistrate, Patna. 4. The Senior Superintendent of Police, Patna. ………… Respondents. ----------- 09/ 20.05.2011 This is a petition for issuance of a writ in the nature of habeas corpus commanding the respondents to release the petitioner from the illegal detention after quashing the order dated 13.12.2010 passed by the State Government in exercise of power conferred under Section 21(1) read with Section 22 of the Bihar Control of Crimes Act, 1981 by which the State Government has been pleased to confirm the detention order dated 18.10.2010 passed by the District Magistrate, Patna under Section 12(2) of the said Act in respect of the petitioner. 2. The case of the petitioner is that while the petitioner was in jail in connection with Chouk Patna City P.S. Case No. 44 of 2010, the order of detention under Section 12(2) of the Bihar Control of Crimes Act, 1981, 2 henceforth the Act was served with a copy of order of detention passed by the District Magistrate dated 18.10.2010 on the proposal of Senior Superintendent of Police, Patna. The ground for detention is that the petitioner being involved in Chouk Patna City P.S. Case No. 44 of 2010 under Section 302/34 of the Indian Penal Code later converted into Section 396 and allied Section of the Indian Penal Code as well as involved in Pirbahore P.S. Case No. 58 of 2010 for offence under Section 399 and 402 of the Indian Penal Code and Section 25, 26 and 35 of the Arms Act is acting in a manner prejudicial to the public order and further taken into consideration that he is in jail and attempting for grant of bail and his release would adversely affect the public order. On the proposal of Senior Superintendent of Police, Patna, the order of detention dated 18.10.2010 passed by the District Magistrate, Patna was approved on 29.10.2010 and confirmed by the State Government vide order dated 13.12.2010. 3. The order of detention has been challenged by the petitioner on the ground that the detention order was served on the petitioner without the First Information Report of the Chouk Patna City P.S. Case No. 44 of 2010 3 and hence, the petitioner has been devoid from filing effective representation against the order of detention. 4. It has further been contended that the order of detention passed by the District Magistrate on recommendation of Senior Superintendent of Police without due application of mind and the order of detention only mentions two cases and petitioner ought not have been declared a habitual offender disturbing the public order on the basis of only two cases referred therein. 5. It has further been contended that the petitioner was in jail at the time of passing of the order and the authority concerned has not considered that what activity of the petitioner has caused the authorities to pass the order of detention when he was already in jail. 6. It has further been contended that the order of detention passed under Section 12(2) of the Bihar Control of Crimes Act, 1981, is a composite order, which is not permissible in law as the Collector under Section 12(2) of the Bihar Control of Crimes Act, 1981 cannot order for detention of a person for a period exceeding three months at one time and hence the order of detention passed against the petitioner for one year at one time is a composite order and 4 cannot be sustainable in law and for this contention he has relied upon unreported decision passed in Cr. W. J. C. No. 1048 of 2010 dated 01.12.2010 (Guddu Kumar @ Guddu Gope Vs. The State of Bihar). 7. The learned counsel for the respondents, however, has filed the counter affidavit controverting the averments made in the petition and has asserted that the copy of the detention order has been served on detenue and was received by him on 19.10.2010. Hence, the fact remains that the order of detention was passed on 18.10.2010, the copy of the order received to the detenue on 19.10.2010. The detention order was approved by the State Government on 29.10.2010 and finally confirmed by the State Government on 13.12.2010 after due approval of the order of detention by the Advisory Board. The counter affidavit filed has not been controverted by the petitioner. 8. The learned counsel for the State, however, has contended that the copy of the First Information Report of Chouk Patna City P. S. Case No. 44 of 2010 has been served on the petitioner along with the order of detention and photo copy of the receipt of the same has also been filed with counter affidavit. 5 9. It has further been contended that the allegations made in the two cases as referred in ground of detention are so serious in nature that it comes within the ambit of public order exceeding law and order and it is the magnitude of the effect of the crime on the society which counts and even a single instance can have the effect of effecting the public order. Since the nature of the allegation in two cases are serious to the extent that the law and order has extended to public order and it is a subjective satisfaction which counts and the subjective satisfaction of the District Magistrate cannot be judged objectively and further the authority concerned has taken into consideration that the petitioner was in jail and also considered that his coming out of jail may be prejudicial to the interest of the State disturbing the public order and the petitioner likelihood of this attempt to come out. Hence, there is no merit in the submission that authorities concerned not taken into consideration there facts. 10. It has further been contended that the order of detention passed for a period of one year at a time by the District Magistrate has well been considered in decision reported in 2009 (3) PLJR 249 (Pintu Yadav Vs. 6 The State of Bihar & Ors.) where the same point and argument as advanced by the petitioner was rejected by this Court. 11. On respective submission of the parties, the question for consideration is whether the order of detention passed by the District Magistrate suffers from the infirmities pointed out by the petitioner. 12. However, the first question is raised that the petitioner was not served with the copy of the First Information Report of Chouk Patna City P.S. Case No. 44 of 2010. However, the counter affidavit filed by the State has annexed the photo copy of the receipt of the First Information Report and the materials regarding the Chouk Patna City P.S. Case No. 44 of 2010, which has not been controverted and hence there is no merit in the submission that the petitioner could not file effective representation for want of the papers regarding Chouk Patna City P.S. Case No. 44 of 2010. 13. The second point raised is that only two cases have been referred against the petitioner and that cannot be the basis for holding the petitioner as a habitual offender or his act is prejudicial to the public order. 7 However, the two cases against the petitioner one is Chouk P.S. Case No. 44 of 2010 for offence under Section 302 of the Indian Penal Code which was later converted into under Section 396 of the Indian Penal Code. However, the case is of murder with dacoity and at the instance of this petitioner there was recovery of the looted articles and further the offence under Section 399 and 402 of the Indian Penal Code read with Section 25, 26, and 35 of the Arms Act and hence the nature of the occurrence is serious in nature may have its prejudicial effect in the society affecting public order and the two occurrence took place within a period of 15 days and hence the nature of the offence and the magnitude of its effect on the society was considered by the authorities. However, it is a subjective satisfaction of the authority and it cannot be objectively judged and hence, taking into consideration, the nature of crime, the order of detention cannot be held to be illegal on this ground. 14. That the petitioner was in jail at the time of occurrence. However, merely because the petitioner is in jail is no ground to hold the order of detention is bad as an order of detention may be passed even if a person is in jail. However, the authority concerned considered as apparent 8 from the proposal and the order of detention that the petitioner was attempting to release from the jail and that witnesses were threatened and the prejudicial effect on the society on his release and hence the order of detention is passed. 15. Hence, having regard to the fact that there is material to suggest that the authority concerned were aware of the fact that the release of the petitioner causing prejudicial effect on the society from jail and hence there is no merit in this submission to challenge the order of detention. 16. However, the last point raised by the learned counsel for the petitioner is that the order of detention has been passed for one year and the contention is that an order of detention cannot be passed by the District Magistrate for more than three months and hence, the submission has been made by the learned counsel for the petitioner is that the order passed for one year in exercise of the jurisdiction under Section 12(2) of the Bihar Control of Crimes Act, 1981 is not sustainable beyond a period of three months and for which the reliance has been placed upon unreported decision passed in Cr. W. J. C. No. 1048 of 9 2010, order dated 01.12.2010 (Guddu Kumar @ Guddu Gope Vs. The State of Bihar & Ors.) and it is relevant to quote reliance placed by the learned counsel for the petitioner passed in Cr. W. J. C. No. 1048 of 2010, order dated 01.12.2010 (Guddu Kumar @ Guddu Gope Vs. The State of Bihar & Ors.) :- “Considering these facts, the impugned order dated 08.05.2010, which is a composite order and an order passed for one year in exercise of jurisdiction under Section 12 (2) of the Bihar Control of Crimes Act, is an order in itself is illegal and without jurisdiction and on that count this order is quashed. The subsequent order of approval, dated 17.05.2010, issued by the Government of Bihar, under Section 12 (3), giving approval to an order, which is completely illegal and without jurisdiction as well as the order of confirmation passed by the State Government, annexed as Annexure-A to the counter affidavit filed by the Respondent No. 2, dated 14.06.2010, contained in Memo No. 7/CCA-1020/2010 H (P) 4870, Patna, dated 14.06.2010, are quashed. 17. However, in decision reported in 2009 (3) PLJR 10 249 (Pintu Yadav Vs. The State of Bihar & Ors.) the same point was raised in para 2 of the said judgment, which is relevant to be quoted :- “The only contention put forth by the counsel for the petitioner in assailing the order dated 16th July, 2008 passed by the State Government is that under Section 12 (2) of the Bihar Control of Crimes Act, 1981, the order of detention in the first instance cannot exceed three months whereas vide order dated 16th July, 2008, the detention of the petitioner has been ordered until 4th June, 2009 i.e., for one year.” 18. Thereafter the Division Bench of this Court considered that according to Section 12 of the Bihar Control of Crimes Act, 1981 provides that for preventive detention, the power is vested in the State Government and in certain circumstances upon the District Magistrate and if an order of preventive detention is passed by the District Magistrate, the life of such order cannot exceed for more than twelve days unless in the meantime it has been approved by the State Government. It is only where the State Government, upon 11 being satisfied of the conditions provided in sub-section (1), passes an order of preventive detention then such order of the State Government in the first instance cannot exceed three months but duration of such order may be extended by the State Government from time to time not exceeding three months at any one time whereas it is admitted position that the District Magistrate in exercise of power conferred under Section 12(2) of the Bihar Control of Crimes Act, 1981 ordered the detention of the petitioner and the order of preventive detention was approved by the State Government within the statutory period of twelve days and after approval of the detention order the matter was referred to the Advisory Board and then the State Government confirmed the order of detention under Section 21(1) of the Bihar Control of Crimes Act read with Section 22 of the Act, 1981, with a direction to detain the petitioner for a maximum period of twelve months and hence in the facts and circumstances of the case, hold that the Constitutional and statutory safeguards have been fully adhered to and there is no violation of Section 12(2) of the Act, 1981 as the initial order of detention was passed by the District Magistrate and before expiry of twelve days from issuance of that order, the 12 order of detention has been approved by the State Government and hence on that ground hold that there is no merit in the contention of the learned counsel for the petitioner that the order of detention passed by the State Government could not have exceeded in the first instance to three months as the initial order was not of the State Government but of the District Magistrate. It is relevant to quote para 5 of the judgment reported in 2009 (3) PLJR 251 (Pintu Yadav Vs. State of Bihar & Ors.) “According to this Section, that provides for preventive detention, the power is vested in the State Government and in certain circumstances upon the District Magistrate. We need not to go into the conditions that must exist before the decision is arrived at by the State Government or the District Magistrate before passing the order of preventive detention. Suffice it to say, that if an order of preventive detention is passed by the District Magistrate, the life of such order cannot exceed for more than twelve days unless in the meantime it has been approved by the State Government. It is only where the State Government, upon being satisfied of the conditions 13 provided in sub-section (1), passes an order or preventive detention then such order of the State Government in the first instance cannot exceed three months but duration of such order may be extended by the State Government from time to time not exceeding three months at any one time.” 19. Hence, having regard to the fact, the decision reported in 2009 (3) PLJR 249 (Pintu Yadav Vs. The State of Bihar & Ors.) and unreported decision passed in Cr. W. J. C. No. 1048 of 2010, order dated 01.12.2010 (Guddu Kumar @ Guddu Gope Vs. The State of Bihar & Ors.) is a decision per incurium as the same has not been taken into consideration, the earlier decision reported in 2009(3) PLJR 249 (Pintu Yadav Vs. The State of Bihar & Ors.) and hence the ratio decided in unreported decision passed in Cr. W. J. C. No. 1048 of 2010, order dated 01.12.2010 (Guddu Kumar @ Guddu Gope Vs. The State of Bihar & Ors.) is not applicable. 20. Hence, there is no merit in the contention of the learned counsel for the petitioner to challenge the order of detention on this ground that order of detention cannot be passed beyond the period of three months by the 14 State Government. 21. Hence, we do not find any merit in this petition and it is, accordingly, dismissed. Kundan (Shyam Kishore Sharma, J.) (Gopal Prasad, J.)