The Madhya Pradesh High Court reiterated that right to make a representation against the order of detention which can be made not only to the Advisory Board but also to the detaining authority, i.e., the authority that has made the order of detention or the order for the continuance of such detention, which is competent to give immediate relief by revoking the said order as well as to any other authority which is competent under law to revoke the order for detention and thereby give relief to the person detained.
BRIEF FACTS
The singular point raised by the petitioner before the Madhya Pradesh High Court in the instant case was that in the detention order the learned District Magistrate did not mention that detenue- Narendra Thakur could prefer representation against the detention order before the same authority namely District magistrate thereby violating a valuable right of the petitioner flowing from Article 22 of the Constitution of India.
REASONING AND DECISION OF THE COURT
The High Court stated that the legal position is squarely covered by a Full Bench Judgment of this Court Kamal Khare v. The State of Madhya Pradesh which is followed in Gurubachan Singh Saluja v. The State of Madhya Pradesh & Others.
It was held in the case of Gurubachan Singh Saluja which is as follows:
Article 22(5) imposes a dual obligation on the authority making the order of preventive detention: (i) to communicate to the person detained as soon as may be the grounds on which the order of detention has been made; and (ii) to afford the person detained the earliest opportunity of making a representation against the order of detention.
Article 22(5) thus proceeds on the basis that the person detained has a right to make a representation against the order of detention and the aforementioned two obligations are imposed on the authority making the order of detention with a view to ensure that right of the person detained to make a representation is a real right and he is able to take steps for redress of a wrong which he thinks has been committed.
Article 22(5) must, therefore, be construed to mean that the person detained has a right to make a representation against the order of detention which can be made not only to the Advisory Board but also to the detaining authority, i.e., the authority that has made the order of detention or the order for the continuance of such detention, which is competent to give immediate relief by revoking the said order as well as to any other authority which is competent under law to revoke the order for detention and thereby give relief to the person detained.
The right to make a representation carries within it a corresponding obligation on the authority making the order of detention to inform the person detained of his right to make a representation against the order of detention to the authorities who are required to consider such a representation. The effect of not informing the detenue of his right to make a representation to the detaining authority renders the detention illegal.
HELD
In view of the dicta of Full Bench, the impugned order was accordingly set aside.
CASE DETAILS
CASE NAME: LOKENDRA SINGH V. THE STATE OF MADHYA PRADESH & OTHERS
DATE OF DECISION: SEPTEMBER 6, 2021
BENCH: JUSTICE ANIL VERMA, JUSTICE SUJOY PAUL
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