Baba Parihast @ Jitendra Kumar vs The State Of Jharkhand
2022 Latest Caselaw 1235 Jhar

                                         1                  W.P. (Cr.) No. 438 of 2021


       IN THE HIGH COURT OF JHARKHAND AT RANCHI
                       W.P. (Cr.) No. 438 of 2021
     Baba Parihast @ Jitendra Kumar, aged about 28 years, S/o late
     Ganesh Parihast, Resident of Mansarovar, P.O. & P.S. Deoghar, Town,
     District- Deoghar                                ... Petitioner
                              -Versus-
1.   The State of Jharkhand
2.   The Secretary, Home Department, P.O. Dhurwa, P.S. Jagganathpur,
     District- Ranchi
3.   The Secretary, Department of Home, Prisoner and Disaster
     Management, Government of Jharkhand, P.O. Dhurwa, P.S.
     Jagganathpur, District- Ranchi
4.   The District Magistrate-cum-Deputy Commissioner, Deoghar, P.O. &
     P.S. Deoghar Town, District- Deoghar
5.   The Superintendent of Police, Deoghar, P.O. & P.S. Deoghar Town,
     District- Deoghar
6.   Sub Divisional Police Officer, Deoghar, P.O. & P.S. Deoghar Town,
     District- Deoghar                                ... Respondents
                                -----

PRESENT HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

-----

For the Petitioner    : Mr. Ankit Kumar, Advocate
For the State         : Mr. Ashok Kumar Yadav, G.A.-I
                        Ms. Priyanka Boby, A.C. to G.A.-I
                                 -----
C.A.V. on 21.03.2022                         Pronounced on 29.03.2022

Heard Mr. Ankit Kumar, learned counsel for the petitioner and

Mr. Ashok Kumar Yadav assisted by Ms. Priyanka Boby, learned counsel for

the State.

2. This petition has been filed for quashing the letter no. 3052 dated

24.08.2021 issued by the Secretary, Department of Home, Prisoner and

Disaster Management, Government of Jharkhand, Ranchi whereby the

Government of Jharkhand has sanctioned the order of detention of the

petitioner under Section 12(2) of the Jharkhand Crime Control Act, 2002

(for the sake of brevity herein after to be referred to as the 'the Act, 2002')

pursuant to request made by the District Magistrate cum Deputy

Commissioner, Deoghar vide letter no.891 dated 17.08.2021. The letter

dated 26.10.2021 whereby sanction of order of detention under Section

12(2) of the Act, 2002 issued by the Secretary, Department of Home,

Prisoner and Disaster Management is also under challenge. The

recommendation of the District Magistrate cum Deputy Commissioner,

Deoghar vide letter dated 17.08.2021 has also been sought to be quashed.

The order dated 03.11.2021 by which further three months' detention

order has been extended, has also been challenged in this petition.

3. Mr. Ankit Kumar, learned counsel for the petitioner submitted that

respondent no.4 vide letter no.891 dated 17.08.2021 has ordered to detain

the petitioner under Section 12(2) of the Act, 2002 for a period of three

months. He further submitted that in the said letter dated 17.08.2021,

reference was given that ten cases are pending against the petitioner. He

also submitted that vide letter dated 24.08.2021, the Secretary,

Department of Home, Prisoner and Disaster Management, Government of

Jharkhand has sanctioned the order of detention of the petitioner under

Section 12(2) of the Act, 2002 on the request of the District Magistrate

cum Deputy Commissioner, Deoghar. The further sanction order dated

26.10.2021 has been issued by the said Department. He further submitted

that vide letter dated 28.10.2021, respondent no.5 has recommended and

requested to extend the period of detention of the petitioner from

17.11.2021 to 18.02.2022. Pursuant thereto, the respondent no.4 vide

letter dated 03.11.2021 further extended the period of detention for three

months w.e.f. 17.11.2021 to 18.02.2022. By way of referring paragraph 13

of the petition, learned counsel for the petitioner pointed out the cases

against the petitioner, which are pending and disposed of. By way of

referring letter dated 12.08.2021, he submitted that byonly two cases have

been alleged to have been committed by the petitioner for last three years

and in one of the case the petitioner has been granted regular bail by this

Court and in another case the bail application of the petitioner is pending

before the learned Additional Sessions Judge, Deoghar. The Advisory

Board, Jharkhand under Section 19 of the Act, 2002 found sufficient cause

for detention of the petitioner. He further submitted that the petitioner has

already remained in detention for about nine months. By way of referring

Sub-section (2) of Section 12 of the Act, 2002, he submitted that proviso

stipulates that detention order can be extended from time to time, but not

exceeding three months at any one time. By way of referring Section 22 of

the Act, 2002, he submitted that maximum period for which any person

may be detained shall be twelve months from the date of detention. He

also submitted that unnecessarily the petitioner has been detained and this

is the violation of Article 21 of the Constitution of India. He relied upon the

judgment rendered by the Hon'ble Supreme Court in the case of Banka

Sneha Sheela v. State of Telangana, reported in (2021) 9 SCC 415.

4. Paragraph 19 of the said judgment is quoted herein below:

"19. To tear these observations out of context would be fraught with great danger when it comes to the liberty of a citizen under Article 21 of the Constitution of India. The reason for not adopting a narrow meaning of "public order" in that case was because of the expression "in the interests of" which occurs in Articles 19(2) to 19(4) and which is pressed into service only when a law is challenged as being unconstitutional for being violative of Article 19 of the Constitution. When a person is preventively detained, it is Articles 21 and 22 that are attracted and not Article 19. Further, preventive detention must fall within the four corners of Article 21 read with Article 22 and the statute in question. To therefore argue that a liberal meaning must be given to the expression "public order" in the context of a preventive detention statute is wholly inapposite and incorrect. On the contrary, considering that preventive detention is a necessary evil only to prevent public disorder, the Court must ensure that the facts brought before it directly and inevitably lead to a harm, danger or alarm or feeling of insecurity among the general public or any section thereof at large."

5. He further relied upon the judgment rendered by the Hon'ble

Supreme Court in the case of Vijay Narain Singh v. State of Bihar and

others, reported in (1984) 3 SCC 14.

6. Relying on these two judgments, he submitted that the petitioner's

liberty is being violated which is against Article 21 of the Constitution of

India and, hence, the detention orders are required to be quashed by this

Court.

7. Per contra Mr. Ashok Kumar Yadav, learned G.A.-I appearing for the

State submitted that the Sub Divisional Police Officer, Deoghar vide letter

dated 12.08.2021 forwarded a proposal for detention of the petitioner

under Section 12(1) read with Section 12(2) of the Act, 2002 for

maintaining law and order and in the said proposal the case history and

criminal antecedent of Baba Parihast, who is the petitioner was described.

He further submitted that in the said letter, it has been specifically and

categorically mentioned that the petitioner is a habitual offender and he is

committing offence of extortion by brandishing illegal firearms upon peace

loving citizen and he is creating serious problem in maintaining law and

order. The Superintendent of Police, Deoghar took cognizance of the said

proposal. Considering the seriousness of the matter, the Superintendent of

Police, Deoghar requested the Deputy Commissioner, Deoghar vide letter

dated 14.08.2021 for detention of the petitioner. The detention of the

petitioner was approved by the Department of Home, Prison and Disaster

Management on 17.08.2021. He further submitted that the matter of

detention of the petitioner was also placed before the Advisory Board of

Jharkhand comprising of a sitting Judge of the High Court as a Chairman

and two judicial officers as Members and vide order dated 04.10.2021, the

Advisory Board has also approved the detention of the petitioner from

perusal of the materials on record. He also submitted that in view of

unlawful act of the petitioner and in the interest of society at large, the

detention has been ordered against the petitioner. He further submitted

that the extension has also been made in terms of the statute for three

months at one time. He further submitted that a person can be detained

under the Act, 2002 upto twelve months and the petitioner has only

completed nine months. By way of referring supplementary counter

affidavit, he submitted that the Superintendent of Police, Deoghar

requested the District Magistrate cum Deputy Commissioner, Deoghar vide

letter dated 07.01.2022 for extension of detention order dated 17.08.2021

under the Act, 2002 from 17.02.2022 to 16.05.2022 and the District

Magistrate cum Deputy Commissioner, Deoghar passed the order

confirming the extension for the said period and sent for approval to the

Secretary, Department of Home, Prison and Disaster Management under

Sections 21(1) and 22 of the Act, 2002. He further submitted that the case

relied by the learned counsel for the petitioner in the case of Banka Sneha

Sheela (supra), the Hon'ble Supreme Court has considered Sections 420,

406 and 506 of the Indian Penal Code, whereas, in the case in hand

serious allegation against the petitioner is there with regard to extortion

and other illegal activities. Thus, the said judgment is not helping the

petitioner. In view of these facts, he submitted that there is no illegality in

the order of detention of the petitioner and this petition is fit to be

dismissed.

8. This Court has gone through the materials on the record. On perusal

of the letter dated 17.08.2021 by which the District Magistrate cum Deputy

Commissioner, Deoghar has requested for detention of the petitioner, he

has taken care of the fact that the petitioner used to threaten the

witnesses, who depose against the petitioner. He has also noted that the

petitioner is a leader of gang and there is all apprehension of law and order

problem. In the said letter, the cases against the petitioner have also been

disclosed. Much care has been taken in the statute itself to show that no

arbitrary order be passed against any person. The provision prescribed in

the Act for sanction by the Government and to place the matter before the

Advisory Board under the Act have been taken care of in passing of the

order. In the case of Banka Sneha Sheela (supra), much reliance has been

put by the learned counsel for the petitioner. The Hon'ble Supreme Court

has considered the submission of the counsel, who placed reliance in the

case of Subramanian v. State of T.N. in paragraphs 27 and 28 of the

judgment in the case of Banka Sneha Sheela (supra), which are quoted

herein below:

"27. Shri Ranjit Kumar, learned Senior Counsel appearing on behalf of the State of Telangana relied strongly upon Subramanian v. State of T.N., and in particular upon paras 14 and 15 which read as follows: (SCC p. 704) "14. It is well settled that the court does not interfere with the subjective satisfaction reached by the detaining authority except in exceptional and extremely limited grounds. The court cannot substitute its own opinion for that of the detaining authority when the grounds of detention are precise, pertinent, proximate and relevant, that sufficiency of grounds is not for the court but for the detaining authority for the formation of subjective satisfaction that the detention of a person with a view to preventing him from acting in any manner prejudicial to public order is required and that such satisfaction is subjective and not objective. The object of the law of preventive detention is not punitive but only preventive and further that the action of the executive in detaining a person being only precautionary, normally, the matter has necessarily to be left to the discretion of the executive authority. It is not practicable to lay down objective rules of conduct in an exhaustive manner. The satisfaction of the detaining authority, therefore, is considered to be of primary importance with certain latitude in the exercise of its discretion.

15. The next contention on behalf of the detenu, assailing the detention order on the plea that there is a difference between "law and order" and "public order" cannot also be sustained since this Court in a series of decisions recognised that public order is the even tempo of life of the community taking the country as a whole or even a specified locality.

28. The statement made by this Court in paras 14 and 15 were on facts which were completely different from the facts of the present case as reflected in paras 16 and 17 thereof which read as follows: (Subramanian case, SCC p. 705) "16. We have already extracted the discussion, analysis and the ultimate decision of the detaining

authority with reference to the ground case dated 18-7- 2011. It is clear that the detenu, armed with "aruval", along with his associates, armed with "katta" came to the place of the complainant. The detenu abused the complainant in filthy language and threatened to murder him. His associates also threatened him. The detenu not only threatened the complainant with weapon like "aruval" but also damaged the properties available in the shop. When the complainant questioned the detenu and his associates, the detenu slapped him on his face. When the complainant raised an alarm for rescue, on the arrival of general public in and around, they were also threatened by the detenu and his associates that they will kill them.

17. It is also seen from the grounds of detention that because of the threat by the detenu and his associates by showing weapons, the nearby shopkeepers closed their shops out of fear and auto drivers took their autos from their stand and left the place. According to the detaining authority, the above scene created a panic among the public. In such circumstances, the scene created by the detenu and his associates cannot be termed as only law and order problem but it is public order as assessed by the detaining authority who is supposed to safeguard and protect the interest of public. Accordingly, we reject the contention raised by the learned Senior Counsel for the appellant." This was obviously a case in which "public order" was directly affected and not a case in which "law and order" alone was affected and is thus distinguishable, on facts, from the present case."

9. The judgment relied by the learned counsel for the petitioner in the

case of the Vijay Narain Singh (supra) has also been considered in the

judgment of Banka Sneha Sheela (supra) in paragraph 21 of that

judgment, which is quoted herein below:

"21. Likewise, in Vijay Narain Singh v. State of Bihar, a three-Judge Bench of this Court (in which A.P. Sen, J., dissented), Venkataramiah, J., speaking for the majority, reminds us:

"32. ... It is well settled that the law of preventive detention is a hard law and therefore it should be strictly construed. Care should be taken that the liberty of a person is not jeopardised unless his case falls squarely within the four corners of the relevant law. The law of preventive detention should not be used merely to clip the wings of an accused who is involved in a criminal prosecution. It is not intended for the purpose of keeping a man under detention when under ordinary criminal law it may not be possible to resist the issue of orders of bail, unless the material available is such as would satisfy the requirements of the legal provisions authorising such detention. When a person is enlarged on bail by a competent criminal court, great caution

should be exercised in scrutinising the validity of an order of preventive detention which is based on the very same charge which is to be tried by the criminal court.""

(emphasis supplied)

10. In the case of Vijay Narain Singh (supra), the Hon'ble Supreme Court

has held that care should be taken that the liberty of a person is not

jeopardised unless his case falls squarely within the four corners of the

relevant law. The provisions of the Act, 2002 has been complied with. The

petitioner is under detention for about nine months and the Act itself bar

the detention at any one time will not be more than three months and

maximum period of detention shall be twelve months, which has not been

concluded as yet. Had it been a case that even after twelve months the

petitioner has been detained, the matter would have been different and

Article 21 of the Constitution of India may have an implication. The

authorities have acted under four corners of relevant law i.e. the Jharkhand

Crime Control Act, 2002.

11. A reference may be made to the judgment rendered by the Hon'ble

Supreme Court in the case of Raj Kumar Singh v. State of Bihar and

others, reported in (1986) 4 SCC 407. Paragraph 11 of the said

judgment is quoted herein below:

"11. We have noted who is an anti-social element under the Act. The petitioner-appellant has not yet been convicted under any of these sections referred to hereinbefore. So far the incidents referred to hereinbefore betray criminal propensity. The first incident is of a case which was one year prior to the date of the detention order and the other incident was of the same date. If in this background, an appropriate authority charged with the implementation of the Act comes to the satisfaction that the petitioner-appellant is one who is habitually committing or abetting the commission of offences, such a conclusion is neither irrational nor unreasonable."

12. Section 12 of the Act, 2002 has been considered in paragraph 31 of

the judgment rendered by the Hon'ble Supreme Court in the case of Vijay

Narain Singh (supra), which is quoted herein below:

"31. It is seen from Section 12 of the Act that it makes provision for the detention of an anti-social element. If a person is not an anti-social element, he cannot be detained under the Act. The detaining authority should, therefore, be satisfied that the person against whom an order is made under Section 12 of the Act is an anti-social element as defined in Section 2(d) of the Act. Sub-clauses (ii), (iii) and (v) of Section 2(d) of the Act which are not quite relevant for the purposes of this case may be omitted from consideration for the present. The two other sub-clauses which need to be examined closely are sub-clauses (i) and (iv) of Section 2(d). Under sub-clause (i) of Section 2(d) of the Act, a person who either by himself or as a member of or leader of a gang habitually commits or attempts to commit or abets the commission of offences punishable under Chapter XVI dealing with offences affecting the human body or Chapter XVII dealing with offences against property, of the Penal Code, 1860 is considered to be an anti-social element. Under sub- clause (iv) of Section 2(d) of the Act, a person who has been habitually passing indecent remarks to, or teasing women or girls, is an anti-social element. In both these sub-clauses, the word "habitually" is used. The expression "habitually" means "repeatedly" or "persistently". It implies a thread of continuity stringing together similar repetitive acts. Repeated, persistent and similar, but not isolated, individual and dissimilar acts are necessary to justify an inference of habit. It connotes frequent commission of acts or omissions of the same kind referred to in each of the said sub-clauses or an aggregate of similar acts or omissions. This appears to be clear from the use of the word "habitually" separately in sub-clause (i), sub-clause (ii) and sub-clause (iv) of Section 2(d) and not in sub-clauses (iii) and (v) of Section 2(d). If the State Legislature had intended that a commission of two or more acts or omissions referred to in any of the sub-clauses (i) to (v) of Section 2(d) was sufficient to make a person an "anti-social element", the definition would have run as "Anti-social element" means "a person who habitually is. ..". As Section 2(d) of the Act now stands, whereas under sub-clause (iii) or sub-clause (v) of Section 2(d) a single act or omission referred to in them may be enough to treat the person concerned as an 'antisocial element', in the case of sub-clause (i), sub-clause (ii) or sub- clause (iv), there should be a repetition of acts or omissions of the same kind referred to in sub-clause (i), sub-clause (ii) or in sub-clause (iv) by the person concerned to treat him as an "anti-social element". Commission of an act or omission referred to in one of the sub-clauses (i), (ii) and (iv) and of another act or omission referred to in any other of the said sub-clauses would not be sufficient to treat a person as an "anti-social element". A single act or omission falling under sub-clause (i) and a single act or omission falling under sub- clause (iv) of Section 2(d) cannot, therefore, be characterised as a habitual act or omission referred to in either of them. Because the idea of "habit" involves an element of persistence and a tendency to repeat the acts or omissions of the same class or kind, if the acts or omissions in question are not of the same kind or even if they are of the same kind when they are committed with a long interval of time between them they

cannot be treated as habitual ones."

13. In the case of Vijay Narain Singh (supra), the Hon'ble Supreme Court

has also noted that if the persons engaged in anti-social activities seeking

to create serious public disorder are being dealt with effectively by ordering

their preventive detention and at the same time it is assured that the law

would not be used arbitrarily to deprive the citizen of his right to life and

liberty, there should not be any objection to the order of preventive

detention. Those who are responsible for the national security or for the

maintenance of public order must be the sole judges of what the national

security or public order requires. Sufficiency of grounds is not for the court

but for the detaining authority for the formation of his subjective

satisfaction.

14. The petitioner involved in serious crimes having direct nexus with

finding of detaining authority. The order of detaining authority or State

Government is valid. The Advisory Board has also confirmed the detention.

Hence, no case of interference is made out.

15. Accordingly, this petition stands dismissed.

16. Consequently, I.A. No.454 of 2022 stands disposed of.

(Sanjay Kumar Dwivedi, J.) High Court of Jharkhand, Ranchi Dated: the 29th day of March, 2022 Ajay/ N.A.F.R.