IN THE HIGH COURT OF JUDICATURE AT PATNA CR. WJC No.1048 of 2010 GUDDU KUMAR @ GUDDU GOPE Versus THE STATE OF BIHAR & ORS For the Petitioner: Mr. Gajendra Kumar Jha, Adv. Mr. Sushil Kumar Jha, Adv. For the Respondent: JC to G.A. 1 ----------- 05. 01.12.2010 Heard learned counsel for the petitioner and the State. Counter affidavits have been filed on behalf of Respondent No. 2 and Respondent No. 3 in denial of the statement and allegation made by the petitioner in the Criminal Writ Application. The petitioner has been detained on account of orders issued by the District Magistrate, Patna, dated 08.05.2010, contained in Memo No. 1388, which is a composite order, issued in exercise of jurisdiction under section 12 (2) of the Bihar Control of Crimes Act. By this Order, the District Magistrate, in the first instance passed an order of detention against the petitioner for one year, which is not permissible under the provisions of section 12 (2) of the Bihar Control of Crimes Act. The petitioner has challenged the order of detention dated 08.05.2010 as well as the order of approval passed under section 12 (3) of the Bihar Control of Crimes Act by the Under 2 Secretary, Government of Bihar (Home) Police Department, giving approval to the order of detention passed by the District Magistrate under section 12(2) of the Act. The petitioner has prayed for quashing of both the orders stating that the order, dated 08.05.2010, passed by the District Magistrate, Patna is illegal and bad in law for the reasons that it is a composite order and it is for a period beyond three months and also that the District Magistrate has passed the order of detention, completely following the recommendation made by the Sr. Superintendent of Police, Patna without there being his own satisfaction. The petitioner has taken plea in his writ application that out of four cases, which are Fathua P. S. Case No. 134 of 2009, dated 14.04.2009 registered under section 302/34 of the Indian Penal Code and 27 of the Arms Act; Fathua P. S. Case No. 154 of 2009, dated 01.05.2009, registered under sections 386 / 387 / 307 / 34 of the Indian Penal Code; Fathua P. S. Case No. 171 of 2009, dated 22.05.2009, registered under section 392 of the Indian Penal Code; and Fathua P. S. Case No. 172 of 2009, dated 22.05.2009, registered under section 394 of the Indian Penal 3 Code. The petitioner is not named in three cases as his name has been implicated in three cases on the basis of confessional statement of the co-accused. So far Fathua P. S. Case No. 154 of 2009 is concerned, the petitioner has been acquitted in this case by judgment and order dated 26.02.2010, much before the issuance of detention order dated 08.05.2010. Petitioner has also been acquitted in another case, i.e., Fathua P. S. Case No. 134 of 2009, registered for the offence under section 302/34 of the Indian Penal Code. So far Fathua P. S. Case No. 171 of 2009 and 172 of 2009 is concerned, these are almost reached the final stage of trial. During trial four witnesses have already been examined, but none of them have recognized the petitioner as an accused. In sum and substance, it has been stated by the petitioner that if the District Magistrate would have verified these matters before issuance of the detention order. We could have easily come to this conclusion that none of the cases, which have been taken as a ground, on that basis any detention order could have been passed. Petitioner’s case is that he could not have been considered as a habitual offender, since none of 4 these cases is relate to a period within close proximity of the passing of the detention order. In none of the case, there is any material to show that it relates to the public order, as such there was no reason for issuance of detention order against the petitioner on the basis of these four cases, taken as a ground. In the counter affidavit filed on behalf of the Respondent Nos. 2 and 3, there is no denial of those statements made in the writ application. Petitioner in his representation, filed against the detention order, had also mentioned these facts, even then, there is no denial or acceptance in the counter affidavit filed on behalf of the Respondent Nos. 2 and 3. Considering the fact that the petitioner can not be considered as a habitual offender and the ground, which has been taken were stale and none- existent, the subsequent orders of approval or confirmation can not be considered as an order lawful and passed in accordance with law. 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 Cirmes Act, is an order in itself is illegal and without 5 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. This application is allowed. SKM (Mridula Mishra, J.) (Dharnidhar Jha, J.)