IN THE HIGH COURT OF JUDICATURE AT PATNA CR. WJC No.55 of 2011 BANDAR YADAV @ BANDARWA YADAV @ DHARMENDRA YADAV Versus THE STATE OF BIHAR & ORS. ----------- 2. 18.01.2011. Heard Sri Md. Raisul Haque learned counsel appearing for the petitioner and Sri P.K.Verma, A.A.G.V, counsel appearing for the State. This application has been filed by the petitioner challenging the order no.43- 1 legal dated 9.10.2010 (A-1) passed by the District Magistrate, Saharsa in exercise of jurisdiction conferred upon him under Section 12(2)of the Bihar Control of Crime Act, 1981(hereinafter referred to as the ‘Act’) and also the order dated 20.12.2010 contained in order no.7/CCA-10- 107/2010H(P)-10165 issued under the signature of Under Secretary, Department of Home, Bihar, Patna u/S 21(1)read with 22 of the Act affirming the detention order of District Magistrate, Saharsa. The petitioner has been detained by 2 the District Magistrate, Saharsa vide orders Annexure-1 and 1/1 for an indefinite period and the same has been affirmed by the under Secretary, Government of Bihar, Department of Home vide Annexure-5 for a period till 8.10.2011. Petitioner was in judicial custody in connection with Salkhua P.S.Case No.77 of 2009 when he was intimated regarding his detention by the Superintendent of Jail. Petitioner was supplied Hindi version as well as English version of order dated 9.10.2010 (Annexure-1 and 1/1) passed by the District Magistrate, Saharsa. The petitioner came to know from this order that the Superintendent of Police, Saharsa has made a recommendation to the District Magistrate, Saharsa for detention of petitioner under the provisions of Bihar Control of Crimes Act, giving details of cases against the petitioner. The District Magistrate without making any enquiry about 3 the present status of those cases, referred by the Superintendent of Police and without himself being satisfied the nature of cases as to whether these relate to public order, passed the order of detention dated 9.10.2010, by which the petitioner was detained for one year. The order of detention passed by the District Magistrate, Saharsa was also approved by the Department of Home vide its order no.7CCA 10107/2010H(P)8615 dated 20.12.2010, in the same manner, without being satisfied about its legality. The petitioner filed his representation against the order of detention on 8.11.2010, but the same remained pending for consideration for 42 days. It was rejected on 20.12.2010 without any consideration and without assigning any reason. The order of rejection was communicated to the petitioner vide memo no.10164 dated 20.12.2010. On the same date the order of 4 detention passed by the District Magistrate was also confirmed by the State Government in terms of Section 21 read with Section 22 of the Act and petitioner was directed to remain under detention till 8.10.2011. When this matter was taken up for hearing, we were going to quash the order of detention, the order of approval and the order of confirmation, even without any counter-affidavit as the illegality was so apparent in these orders. Annexure-1 and Annexure-1/1 are order of detention, one in English and another in Hindi, passed by the District Magistrate, Saharsa. Both the detention orders are though same but not identical, as there are discrepancies in between these orders of detention. In the English version of order seven cases have been taken as ground for detention but in Hindi version two cases have been taken as ground for detention. In the English version of the order, Salkhua 5 P.S.Case No.53 of 2007, Salkhua P.S.Case No.54 of 2007, Salkhua P.S.Case No.67 of 2008, Salkhua P.S.Case No.77 of 2009, Salkhua P.S.Case No.78 of 2009, Salkhua P.S.Case No.79 of 2009 and Salkhua P.S.Case No.127 of 2009 have been mentioned as grounds for detention. In Hindi version Salkhua P.S.Case No.77 of 2009 and Salkhua P.S.Case No.78 of 2009 have been taken as grounds for detention. The counsel for the petitioner submits that there was no reason for passing an order of detention against the petitioner when he was already in judicial custody and there was no apparent reason for his coming out of the jail immediately as the trial was going on in connection with Salkhua P.S.Case No.77 of 2009. The petitioner had already been granted bail in four cases, i.e., Salkhua P.S.Case No.53 of 2007, Salkhua P.S.Case No.54 of 2007, Salkhua P.S.Case No.167 of 2008 and Salkhua P.S.Case No.78 of 2009. He 6 had been acquitted in Salkhua P.S.Case No.79 of 2009 and Salkhua P.S.Case No.127 of 2009. Only case in connection with which he is in judicial custody, i.e., Salkhua P.S.Case No.77 of 2009 in which the trial is going on. All witnesses except I.O. have been examined. None of the witnesses have supported the case of prosecution and there is all likelihood of petitioner’s acquittal in this case. In the Hindi version of detention order also Salkhua P.S.Case No.77 of 2009 has been taken as ground, another case, i.e., Salkhua P.S.Case No.77 of 2009 relates to Arms Act and that could have been taken as the ground for his detention. It has also been submitted by the counsel for the petitioner that the District Magistrate, Saharsa without there being any authorization for passing an order of detention for one year under the provisions of Section 12(2)of the Act has passed an order of detention for one year 7 in complete violation of the provisions under Section 12(2)of the Act. Section 12(2) the Bihar Control of Crimes Act authorizes the District Magistrate for passing an order of detention under Section 12(2) only for a period of three months which could be extended time to time with the approval of the State Government. The State Government also cannot pass the order of detention for a period more than one year. The first order of detention passed by the District Magistrate, Saharsa itself being illegal and without jurisdiction, as such its confirmation by the State Government also amounts to giving confirmation to an illegal order. The counsel for the petitioner has further submitted that as provided under the Act representation filed by the detenue has to be considered and disposed of with a reasoned order within two weeks of its filing. In the present case for 42 days it 8 remained without its consideration. The representation of the petitioner was disposed of simultaneously, on the same date, the order of detention was confirmed under Section 21 read with Section 22 of the Act. It has also been submitted that one of the ground which has been taken by the District Magistrate for detention of the petitioner is that he is a threat to the public and in case he is released on bail, disturbance will be created in the general election scheduled to be held in the month of October-2010. Counsel for the petitioner submits that this could never be a ground for detention under the Bihar Control of Crimes Act. For these reasons the order of detention it’s approval and confirmation by State Government are fit to be quashed. We find much substance in the submissions made by the counsel for the petitioner. Since, the detention order 9 passed against the citizen takes away their liberty, that is the reason that all provisions under the Act and it’s procedure have been made mandatory, so that the liberty of the citizen cannot be curtailed in a casual manner. In the present case, the detention order has been passed in complete violation of the provisions under the Act. The grounds on which the petitioner has been detained are also having no proximity to the detention order. Cases in which the petitioner is on bail or in which he has been acquitted long time back have been taken as ground for detention. This indicates that the District Magistrate, Saharsa himself did not enquire into the matter before passing the order of detention. Approval has been accorded to such an illegal and order without jurisdiction by the State and its authority. Finally, it was confirmed by the State Government without examining the 10 legality of the order. For all these reasons and finding that the order of detention has been passed in complete violation of the constitutional provision, we have no other option than to quash the impugned order contained in Annexure-1, 1/1 dated 9.10.2010. The order of confirmation passed by the State Government dated 20.12.2010(Annexure-5) is also quashed. This application is allowed. The petitioner is directed to be released forthwith, if not wanted in any other case. B.Kr. ( Mridula Mishra,J. ) ( Dharnidhar Jha,J.)