IN THE HIGH COURT OF JUDICATURE AT PATNA CR. WJC No.945 of 2008 7 19.1.2009 Binod Bhindwar son of Sri Deo Narain Yadav @ Bhinwar, resident of village (Hriday Nagar) Bhawanipur, P.S.Birpur, District Supaul VERSUS 1. The State of Bihar through the Secretary, Department of Home (Police), Old Secretariat, Bailey Road, Government of Bihar, Patna 2. The Secretary, Department of Home (Police), Old Secretariat, Bailey Road, Government of Bihar, Patna 3. Deputy Secretary, Department of Home (Police), Old Secretariat, Bailey Road, Government of Bihar, Patna 4. District Magistrate, Supaul 5. Superintendent of Police, Supaul 6. Sub-Divisional Police Officer, Birpur, District Supaul 7. Officer Incharge of Birpur Police Station, District Supaul. -------- For the Petitioner : M/s Ram Balak Mahto, Sr.Advocate & Ajay, Advocate For the State : Mr R.K.Singh, JC to AAG II -------- Heard learned counsel for the petitioner and learned counsel for the State. Petitioner has prayed for quashing of order dated 7.6.2008 contained in Annexure-1 which has been passed by the District Magistrate, Supaul in Misc.Detention Case No.1/08 under section 12(2) of the Bihar Control of Crimes Act, 1981 (hereinafter referred to 2 as ‘the Act’). From the records it is clear that the detention order has been approved by the State Government under section 12(3) of the Act and subsequently confirmed on 24.7.2008. Before advancing other points, learned senior counsel for the petitioner has laid stress on the facts that petitioner is admittedly in jail custody in connection with several cases since 10.10.2005. It has been urged that the satisfaction of the concerned authority that the activities of the petitioner cannot be prevented otherwise than by his immediate arrest is not supported by the materials on record including the detention order contained in Annexure-1. To substantiate this submission, it was highlighted that petitioner is said to be involved in 13 cases and he is reported to be on bail in 8 of them. According to the last counter affidavit and stand taken by the State counsel, petitioner has been acquitted in three of the remaining cases and is facing trial in other two cases. According to petitioner, in the remaining two cases in which he is not on bail, the petitioner has not filed any 3 application for bail and, therefore, the authorities have erred in coming to a satisfaction that he is likely to come out of jail on account of bail and hence, he must be put under preventive detention. Learned counsel for the State has tried to persuade us to accept the fact that since the trial in remaining two cases is at the fag end hence, on that account the apprehension of the authorities may be held to be valid and no interference be made with the impugned order. We have carefully gone through the materials on record and particularly, the impugned order of detention. That order as well as the report of the Superintendent of Police, Supaul only discloses about criminal activities of the petitioner and an apprehension that he is likely to come out of jail on bail. This apprehension that petitioner is likely to come out on bail is admittedly shown to be based on no material because petitioner has not applied for bail in remaining two cases. The correct situation appears to be that trial in the remaining two cases is progressing and according to counsel for the State, the main witnesses 4 are turning hostile and hence, the authorities have now materials to come to a view that petitioner is likely to come out of jail custody soon on account of his acquittal in the remaining two cases. These materials and the view that he is likely to be acquitted in the remaining two criminal cases do not find mention in the impugned order or in the report of the Superintendent of Police. In the impugned order and in the report of the Superintendent of Police, the view is that petitioner is likely to come out of jail custody on bail, as noticed earlier. This view is not supported by facts since petitioner has chosen not to apply for bail in the remaining two cases. Some other points urged on behalf of the petitioner are not being considered as the writ petition is succeeding on the first point noticed and discussed above. In view of aforesaid discussion, we are of the considered view that the authorities while forming their substantive satisfaction for passing the impugned order under section 12(2) of the Act, failed to keep in mind all the relevant facts, particularly for coming to an opinion that petitioner is likely to come out of jail custody on 5 account of bail when he had not applied for bail. They have not applied their mind to the stage of remaining cases and the fact that witnesses are turning hostile and he may be acquitted in those two cases leading to a chance of his coming out of detention. As a result, the impugned order is found to be bad in law only for the reason of non- application of mind to the relevant facts, noticed above. On that account, the impugned order dated 7.6.2008 contained in Annexure-1 as also subsequent orders for its approval and confirmation are hereby quashed. Since admittedly petitioner is in jail custody in connection with other pending criminal cases in which he has not applied for bail, we are not passing any order for his immediate release from the jail custody. It goes without saying that concerned authorities are always at liberty to pass fresh order under the Act in accordance with law. (Shiva Kirti Singh, J.) (J.N.Singh, J.) sk