IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.

Transcription

1 1 IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P. (Cr.) No.261 of 2014 Md. Mansoor Manser Nauwa, son of Kalam Nauwa, R/o Wasseypur, P.O. Bhulinagar, P.S. Bank Moare, District Dhanbad..... Petitioner. -Versus- 1. The State of Jharkhand. 2. The Secretary, Home Department, Dhurwa, P.O. Dhurwa, P.S. Jagganathpur, District Ranchi. 3. The Principal Secretary, Home Department, Dhurwa, P.O. Dhurwa, P.S. Jagganathpur, District Ranchi. 4. The District Magistrate-cum-Deputy Commissioner, Dhanbad, P.O. Dhanbad, P.S. Dhanbad, District Dhanbad. 5. The Superintendent of Police, Dhanbad, having his office at Court More, Post Office Dhanbad, P.S. Dhanbad, District Dhanbad.....Respondents. with W.P. (Cr.) No.23 of 2015 Sudhir Dubey, son of Harihar Dubey, resident of Barka Dhakaichak, Krishna Brahma, P.O. Dhakaichak, P.S. Krishna Brahma, District Baksar (Bihar).. Petitioner. -Versus- 1. The State of Jharkhand, through the Principal Secretary, Department of Home, Govt. of Jharkhand, P.O. & P.S. Dhurwa, District Ranchi (Jharkhand). 2. The District Magistrate, Jamshedpur, P.O. & P.S. Sakchi, District East Singhbhum (Jharkhand). 3. The Senior Superintendent of Police, Jamshedpur, P.O. & P.S. Sakchi, District East Singhbhum (Jharkhand).....Respondents with W.P. (Cr.) No.32 of 2015 Abdul Guddu, son of Abdul Hamid, resident of Makdumpur, P.S. Parsudih, Town Jamshedpur, District East Singhbhum, Jharkhand.. Petitioner. -Versus- 1. The State of Jharkhand, through the Secretary, Department of Home, Govt. of Jharkhand, Office at Dhurwa, P.O. & P.S. Dhurwa, District Ranchi. 2. Under Secretary, Department of Home, Govt. of Jharkhand, Office at Dhurwa, P.O. & P.S. Dhurwa, District Ranchi. 4. District Magistrate, East Singhbhum, P.O. & P.S. Sakchi, Town Jamshedpur, District East Singhbhum, Jharkhand. 5. The Sr. Superintendent of Police, East Singhbhum, Jamshedpur, P.O. & P.S. Sakchi, District East Singhbhum Jharkhand.....Respondents with

2 2 W.P. (Cr.) No.34 of 2015 Kanhaya Singh, son of Lalan Singh, resident of Pradhan Tola, Baroda Ghat, P.O. & P.S. Bagbera, District East Singhbhum, at Jamshedpur (Jharkhand).. Petitioner. -Versus- 1. The State of Jharkhand, through the Principal Secretary, Department of Home, Govt. of Jharkhand, P.O. & P.S. Dhurwa, District Ranchi (Jharkhand). 2. The District Magistrate, Jamshedpur, P.O. & P.S. Sakchi, District East Singhbhum (Jharkhand). 3. The Senior Superintendent of Police, Jamshedpur, P.O. & P.S. Sakchi, District East Singhbhum (Jharkhand)....Respondents. CORAM : HON BLE MR. JUSTICE D. N. UPADHYAY For the Petitioners : M/s. Anil Kr. Sr. Advocate Amresh Kumar and Jyoti Nayan, Advoates For the Respondents : M/s Rajiv Ranjan Mishra, G.P.II. CAV on 8 th July, 2015 Pronounced on 24 th July, 2015 D.N. UPADHYAY: Since these writ petitions involve same points of law and facts, with the consent of the parties, the same have been taken up for hearing together and are being disposed of with this common order W.P. (Cr.) No.261 of 2014: 2. In this writ petition, the petitioner has payed (i) for quashing Order No.1483 dated 30 th July, 2014, whereby the District Magistrate, Dhanbad has been pleased to pass detention order against the petitioner for one year under Section 12(2) of Jharkhand Control of Crimes Act, 2002 (for short 'JCC Act'); AND (ii) for quashing Order No.5/CCA/01/13/2014/5379 dated 16 th October, 2014 passed by the Deputy Secretary, Department of Home, Government of Jharkhand, whereby the detention order passed under Section 12(2) of JCC Act has been confirmed under Sections 21(1) and 22 of JCC Act by which the petitioner has been directed to be detained till 29 th July, 2015; AND (iii) for quashing Order No.5/CCA/01/13/2014/5195 dated 9 th October, 2014 passed by the Principal Secretary, Department of Home, Government of Jharkhand, whereby representation filed by the petitioner against the order of detention dated 30 th July, 2014 passed under Section 12(2) of JCC Act has been

3 3 rejected. W.P.(Cr.) No.23 of 2015: 3. In this writ petition, the petitioner has payed for quashing the order, contained in Memo No.54(A) dated 5 th August, 2014, whereby the District Magistrate, East Singhbhum has been pleased to pass detention order against the petitioner for one year under Section 12(2) of Jharkhand Crime Control Act, W.P.(Cr.) No.32 of 2015: 4. In this writ petition, the petitioner has payed for quashing the order, contained in Memo No.167(A) dated 28 th October, 2014, whereby the District Magistrate, East Singhbhum has been pleased to pass detention order against the petitioner for one year under Section 12(2) of Jharkhand Crime Control Act, 2002; and has further prayed for a direction on the respondents to release the petitioner from jail. W.P.(Cr.) No.34 of In this writ petition, the petitioner has payed for quashing order, contained in Memo No.90(A) dated 30 th August, 2014, whereby the District Magistrate, East Singhbhum has been pleased to pass detention order against the petitioner for one year under Section 12(2) of Jharkhand Crime Control Act, The petitioners have assailed the detention orders mainly on the following grounds:- (i) Action on the part of the respondents authorities is illegal and violative of Articles 14, 21 and 22 of the Constitution of India besides the facts and grounds on which aforesaid orders have been passed; (ii) The aforesaid orders have been challenged by the petitioners, banking on the provisions contained in Section 12(2) of the JCC Act, as the petitioners cannot be detained for more than three months in one stretch under an order passed under the provision of Section 12(2) of the JCC Act; and (iii) The District Magistrate has not been vested with

4 4 power of detaining the petitioners for a period of one year, as the District Magistrate can only detain a person under Section 12(2) of the JCC Act for a period of three months at one time. 7. The petitioners have placed reliance on the recent judgment of the Hon'ble Supreme Court rendered in the case of Cherukuri Mani Vs. Chief Secretary, Government of Andhra Pradesh & Ors., reported in (2014)0 Cr.L.J. 2748, and the judgment passed by this Court in W.P. (Cr.) (H.B.) No.459 of 2010 [Pankaj Lala Vs. The State of Jharkhand & Ors.]. In the case of Cherukuri Mani (Supra), the order passed under Section 3(2) of the Andhra Pradesh Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986 (for short 'A.P. Act, 1986') was under challenge. It was pointed out that Section 3(2) of A.P. Act, 1986 and its provisions are parameteria to Section 12(2) of JCC Act. In the aforesaid case, the appellant-cherukuri Mani happens to be the wife of detenue-narendra Chowdari. The husband of the appellant was having criminal antecedent. He has been considered as 'GOONDA' and by the order passed under Section 3(2) of the A.P. Act he was directed to be detained for 12 months. Learned counsel relied upon Paragraphs-12 to 16 of the said judgment, which reads as under:- 12. A reading of the above provisions makes it clear that the State Government, District Magistrate or Commissioner of Police are the authorities, conferred with the power to pass orders of detention. The only difference is that the order of detention passed by the Government would remain in force for a period of three months in the first instance, whereas similar orders passed by the District Magistrate or the Commissioner of Police shall remain in force for an initial period of 12 days. The continuance of detention beyond 12 days would depend upon the approval to be accorded by the Government in this regard. Sub-section (3) makes this aspect very clear. Section 13 of the Act mandates that the maximum period of detention under the Act is 12 months. 13. Proviso to Sub-section (2) of Section 3 is very clear in its purport, as to the operation of the order of detention from time to time. An order of detention would in the first instance be in force for a period of three months. The Government alone is conferred with the power to

5 5 extend the period, beyond three months. Such extension, however, cannot be for a period, not exceeding three months, at a time. It means that, if the Government intends to detain an individual under the Act for the maximum period of 12 months, there must be an initial order of detention for a period of three months, and at least, three orders of extension for a period not exceeding three months each. The expression extend such period from time to time by any period not exceeding three months at any one time assumes significance in this regard. 14. The requirement to pass order of detention from time to time in the manner referred to above, has got its own significance. It must be remembered that restriction of initial period of detention to three months, is nothing but implementation of the mandate contained in Clause (4)(a) of Article 22 of the Constitution of India. It reads as under: Clause 4: No law providing for preventive detention shall authorize the detention of a period for a longer period than three months unless- (a) an Advisory Board consisting of persons, who are or have been, or are qualified to be appointed as, Judges of a High Court has reported before the expiration of the said period of three months that there is in its opinion sufficient cause for such detention: Provided that nothing in this sub-clause shall authorize the detention of any person beyond the maximum period prescribed by any law made by Parliament under Sub-clause (b) of Clause (7); or (b) such person is detained in accordance with the provisions of any law made by Parliament under subclauses (a) and (b) of Clause (7). 15. Where the law prescribes a thing to be done in a particular manner following a particular procedure, it shall be done in the same manner following the provisions of law, without deviating from the prescribed procedure. When the provisions of Section 3 of the Act clearly mandated the authorities to pass an order of detention at one time for a period not exceeding three months only, the Government Order in the present case, directing detention of the husband of the appellant for a period of twelve months at a stretch is clear violation of the prescribed manner and contrary to the provisions of law. The Government cannot direct or extend the period of detention up to the maximum period of twelve months, in one stroke, ignoring the cautious legislative intention that even the order of extension of detention must not exceed three months at any one time. One should not ignore the underlying principles while passing orders of detention or extending the detention period from time to time. 16. Normally, a person who is detained under the provisions of the Act is without facing trial which in other words amounts to curtailment of his liberties and denial of civil rights. In such cases, whether continuous detention of such person is necessary or not, is to be assessed and reviewed from time to time. Taking into consideration these factors, the Legislature has specifically provided the mechanism Advisory Board to review the detention of a person. Passing a detention order for a period of twelve months at a stretch, without proper review, is deterrent to the rights of the detenue. Hence, the impugned Government Order directing detention for the maximum period of twelve months straightaway cannot be sustained in law.

6 6 8. Counsel appearing for the writ petitioners have submitted that other grounds taken by them in respective writ petitions are equally important and the orders impugned can well be quashed, if those grounds are taken into consideration, but they confine their argument to the legality of the order passed under Section 12(2) of the JCC Act. It was submitted that the orders impugned by which the petitioners have been directed to be detained for twelve months in one stretch can well be quashed in view of recent judgment of the Hon'ble Supreme Court rendered in the case of Cherukuri Mani (supra). 9. Since the writ petitioners have confined their argument to the validity of the orders passed under Section 12(2) of the JCC Act and relied upon the judgment of the Hon'ble Supreme Court in the case of Cherukuri Mani (supra), discussion on other grounds, explaining the facts and circumstances appearing in the cases at hand, shall be a futile exercise. Therefore, counsel appearing on behalf of the respondents have also requested to confine their argument on the legal issue indicated above. 10. Mr. R. R. Mishra, learned counsel, appearing on behalf of the respondent-state has pointed out the provisions, contained in Section 12 of the JCC Act, which reads as under:- 12. Power to make order detaining certain persons.-(1) The State Government may, if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the maintenance of public order and there is reason to fear that the activities of anti-social elements can not be prevented otherwise than by the immediate arrest of such person, make an order directing that such antisocial elements be detained. (2) If having regard to the circumstances prevailing or likely to prevail in any area within the local limits of the jurisdiction of a District Magistrate, the State Government is satisfied that it is necessary so to do, it may by an order in writing direct, that during such period as may be specified in the order, such District Magistrate may also, if satisfied as provided in sub-section (1) exercise the powers conferred upon by the said subsection: Provided that the period specified in an order made by the State Government under this sub-section shall not, in the first instance exceed three months, but the State Government may, if satisfied as aforesaid that it is necessary so to do, amend such order to extend such period from time to time by any period not exceeding three months at any one time.

7 7 (3) When any order is made by District Magistrate, he shall forthwith report, the fact to the State Government together with the grounds on which the order has been made and such other particulars as, in his opinion, have a bearing on the matter, and no such order shall remain in force for more than 12 days after the making thereof unless, in the meantime, it has been approved by the State Government: Provided that where under section 17 the grounds of detention are communicated by the officer making the order after five days but not later than ten days from the date of detention, this sub-section shall apply subject to the modification that, for the words twelve days, the words fifteen days shall be substituted. 11. It was submitted that the State Government can make an order for detention under sub-section (1) of Section 12 and the power which the State Government can exercise under Section 12(1) can also be invoked by the District Magistrate under sub-section (2) of Section 12. The concluding line of sub-section (2) of Section 12 speaks that District Magistrate may also, if satisfied as provided in sub-section (1) exercise the powers conferred upon by the said sub-section. 12. On perusal of the aforesaid provision of law it would be clear that a District Magistrate within the local limit of its jurisdiction can also pass a detention order, which the State Government may make under sub-section (1) of Section 12. Emphasis has been given that sub-section (2) of Section 12 is nothing but power conferred upon the District Magistrate to pass order, which the State Government may pass under subsection (1) of Section It was argued that period of detention is not indicated either in sub-section (1) or in sub-section(2) of Section 12. So far as the proviso to sub-section (2) of Section 12 is concerned that indicates empowerment of the District Magistrate to pass order under sub-section (2) of Section 12. It was contended that the meaning of Provided in the first instance exceed three months, but the State Government may, if satisfied as aforesaid that it is necessary so to do, amend such order to extent such period from time to time by any period not exceeding three months at any one time is that validity of power conferred upon the District Magistrate to pass detention order under sub-section (2) shall be for a period of three months at one time and the power so

8 8 conferred may be amended, if the State Government thinks it necessary for further period but not exceeding three months at one time. It was argued that the proviso to sub-section(2) of Section 12 cannot be misconstrued that detention order passed under Section 12(2) shall only be for a period of three months. 14. In support of such argument, learned counsel for the respondents has referred Paragraphs 12 and 13 of the judgment rendered in the case of Jawala Kant Mishra Vs. The State of Bihar & Ors., reported in 1989 PLJR 153, and made a request to this Court that whatever the order may be passed by this Court, but reference of aforesaid paragraphs may be incorporated in the order and, if possible, the same may be reproduced. Considering the request of learned counsel for the respondents, Paragraphs 12 and 13 of the judgment in the case of Jawala Kant Mishra (supra) are quoted as under:- 12. It was then urged on behalf of the petitioner that the District Magistrate should have passed order for his detention only for three months. He could extend the period of detention but for not more than three months at a time. Reliance was placed to support this proposition upon the proviso to Section 12(2) of the Act. There being no material to show that the District Magistrate had passed orders extending the detention from three months, the detention was invalid and must be quashed. 13. I regret the submission is entirely unfounded. The proviso to Section 12(2) of the Act does not provide maximum period of detention. It should be appreciated that the proviso is a super imposition on the main provision contained in section 12(2) of the Act which lays down that the State Government may authorise a District Magistrate to exercise powers under Section 12(1). When so authorised the District Magistrate should also have the jurisdiction to pass orders for detention in terms of Section 12(2). The main Section provides that the State Government may vest a District Magistrate with the power to detain but the duration of that authorisation may be for such period as may be specified in the order. The proviso lays down that the authorisation to the District Magistrate cannot exceed three months in the first instance and the State Government may amend it by extending such periods of authorisation from time to time. It is thus obvious that the period in the proviso to Section 12(2) is the limit for which the State Government may authorise a District Magistrate to pass orders for detention. It is not the petitioner's stand that in this case the District Magistrate of East Champaran had not been authorised by the State Government to detain the detenue. Reliance, therefore, placed upon Section 12(2) is thus entirely misconceived. The contention based thereon must be rejected outright.

9 9 15. Learned counsel for the respondents has further referred to Section 19 of JCC Act, which speaks about, if detention order has been made under this Act the Government, shall within three weeks from the date of detention of a person under the order, place before the Advisory Board constituted by it under Section 18, meaning thereby the matter may be referred by the Government to Advisory Board, constituted under Section 18 of the JCC Act. Thereafter, Sections 21 and 22 of JCC Act come in picture. If in the opinion of Advisory Board, sufficient cause for detention of a person has been assigned the Government may confirm the detention order and continue the detention. The maximum period of detention i.e. 12 months finds mentioned in Section 22 of JCC Act. 16. By referring the aforesaid provisions of law, learned counsel for the respondents has tried to impress upon the Court that period of detention is not indicated in Section 12, rather Section 12(2) deals with empowerment of the District Magistrate. Section 21 indicates the jurisdiction of the Advisory Board and the period of detention, which is 12 months, finally indicated in Section 22 of the JCC Act. It was argued that all these aspects have not been properly placed before the Apex Court and, therefore, this Court under Article 226 of the Constitution of India may pass an order which the Court deem fit. 17. I have heard rival argument advanced on behalf of the parties and have also gone through the provisions of law referred to above. Learned counsel appearing on behalf of both sides confined their argument to the extent of application of Section 12(2) of the JCC Act with its proviso. Since other mechanism involved against passing of the aforesaid detention order have not been raised, it is not desirable to go into that aspect. But it is needed to indicate that the District Magistrates, having jurisdiction to pass order under Section 12(2) against the respective detenue, have passed the respective orders, which are challenged in the respective writ petitions.

10 I would like to mention here that to make order detaining certain persons has been appearing under different Acts enacted on different occasions considering the exigency and urgency to maintain public tranquility as well law and order to curb terrorism and to nab antisocial elements. Power to make order for preventive detention has been prevailing in almost every State of our country and for that special enactment has been made by the Parliament. 19. In the erstwhile State of Bihar, it was Bihar Control of Crimes Act, 1981 and after creation of State of Jharkhand the said Act was adopted and now it is known as Jharkhand Control of Crimes Act, In support of the submission advanced regarding application of Section 12(2) of the JCC Act, learned counsel for the respondents has referred the judgment of the Patna High Court rendered in the case of Jawala Kant Mishra (Supra). Learned Single Judge of the Patna High Court has dealt with the provision, giving full favour to the argument advanced by the learned counsel for the respondents. The provision to pass detention order under Bihar Control of Crimes Act, 1981 (as adopted by the State of Jharkhand) has not been declared ultra vires and the law has got the statutory force. But Article 141 of the Constitution of India says that law declared by the Supreme Court to be binding on all courts within the territory of India. 20. The question as to whether a Court exercising interior jurisdiction can term a judgment of the Supreme Court to be per incuriam. The answer would be in negative because Article 141 of the Constitution of India comes in picture. In this context, Paragraph 27 of the judgment rendered in the case of Jagdish Lall, reported in 2003(3) PLJR 86, is very much relevant and I need it to quote herein below. 27. On principle also if one tends to ignore the judgment of the Supreme Court levelling the same to be judgment rendered in per incuriam, the same shall be fraught with danger. This will result into post-mortem of the judgment of the Supreme Court and the binding effect of the Judgment, which the Constitution makers clearly have in their mind while enacting Art. 141 of the Constitution, shall be rendered meaningless. Art. 141 of the Constitution has been incorporated to avoid conflicts of authority and to secure certainty and uniformity in the

11 11 administration of justice. If principle of per incuriam is permissible to be invoked by the High Court, in relation to the judgment of the Supreme Court, in face of Art. 141 of the Constitution of India, for the parity of reasons the same shall apply to the Courts exercising inferior jurisdiction than that of the High Court. In such a situation, even though the law is declared by the Supreme Court, its status shall be in a fluid state, and it shall be difficult for anybody to speak about the status of law on a particular subject. Thus the submission advanced, if accepted will tend to cause irreparable damage and make the position of law uncertain. I am of the considered opinion that it is not permissible for any Court, which obviously includes the High Court, but not the Supreme Court, to depart from the Law laid down by the Supreme Court by calling its decision as per incuriam. Decision rendered by the Supreme Court is binding on Subordinate Courts, however erroneous the construction may be. In fact, a Court exercising inferior jurisdiction cannot call a judgment of the Supreme Court to be erroneous. To many, it may sound frustrating to say that I say emphatically that if inferior Court is allowed to disobey a judgment of the Superior Court, the entire legal system shall collapse. Judicial system can work and can work alone if someone is allowed to have the last word and if that last word once spoken is loyally accepted. Judges are under an oath to uphold the Constitution and the law, hence it is my duty in face of Art. 141 of the Constitution to do or die and accept the judgment loyally. Hence, I lack competence to term the judgment of the Supreme Court in Kunj Bihari Mishra (Supra) per incuriam decision. The writ petitioners have relied upon the judgment of the Hon'ble Supreme Court rendered in the case of Cherukuri Mani (Supra) and their Lordships have dealt with the issue involved which appears similar in these petitions. Needless to mention here that sub-section (2) of Section 12 of the JCC Act is parameteria to Section 3(2) of the A.P. Act, Hon ble Apex Court has discussed and interpreted the aforesaid provision of law and held that a person cannot be detained for more than three months at one stretch if the order is passed under Section 3(2) of the A.P. Act, Keeping in mind the provision contained in Article 141 of the Constitution of India and also in the circumstances indicated above, this Court has no jurisdiction to deviate from the findings of the Hon'ble Supreme Court given on the issue. The grounds taken by the petitioners find squarely covered by the judgment of the Hon ble Supreme Court rendered in the case of Cherukuri Mani (Supra). In the result, these writ petitions are hereby allowed.

12 The orders of detention passed by respective District Magistrates against respective petitioners stand quashed. Further the order passed by the Principal Secretary, Department of Home, Government of Jharkhand and the order passed by the Respondent-State by which detention of the petitioners has been confirmed for twelve months, also stand quashed. The respondents shall issue appropriate direction for the release of the petitioners from custody. (D. N. Upadhyay, J.) Sanjay/NAFR