Jharkhand High Court
Vishal Anand @ Vishal Anand Sahu @ ... vs The State Of Jharkhand on 17 August, 2023
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Criminal Appellate Jurisdiction)
W.P (Cr.) No. 435 of 2023
Vishal Anand @ Vishal Anand Sahu @ Visal Anand aged about 36 years,
s/o Bikram Sahu Village-Murma, PO & PS-Mandar, District-Ranchi
(Jharkhand) ......... Petitioner
Versus
1. The State of Jharkhand
2. The Chief Secretary, the Government of Jharkhand, Office at Project
Bhavan, PO & PS-Dhurwa, District-Ranchi (Jharkhand)
3. The Home Secretary, Department of Home, Jail and Disaster
Management, Government of Jharkhand, Office at Project Bhavan, PO &
PS-Dhurwa, District-Ranchi (Jharkhand)
4. The Under Secretary, Department of Home, Jail and Disaster
Management, Government of Jharkhand, Office at Project Bhavan, PO &
PS-Dhurwa, District-Ranchi (Jharkhand)
5. The Deputy Commissioner, Ranchi cum The District Magistrate, Ranchi
office at D.C Office Ranchi PO-GPO, PS-Kotwali, District-Ranchi
(Jharkhand)
6. The Senior Superintendent of Police, Ranchi Office at SSP Office, Ranchi
PO-GPO, PS-Kotwali, District-Ranchi(Jharkhand)
7. The Dy. Superintendent of Police, Khelari Office at Dy. S.P Office,
Khelari Po & PS-Khelari, District-Ranchi (Jharkhand)
8. The Officer in Charge of Mandar PS, Office at Mandar PS, PO & PS-
Mandar, District-Ranchi (Jharkhand) ...... Respondents
CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
For the Petitioner : Mr. Suraj Kishore Prasad, Advocate
For the State of Jharkhand : Mr. Indranil Bhaduri, SC-IV
--------------
ORDER
17th August 2023
Per, Shree Chandrashekhar, J.
Vishal Anand aged about 36 years has filed this writ petition to
question the Order No.7 dated 30th August 2022 passed by the Deputy
Commissioner (District Magistrate) at Ranchi to preventively detain him at
Birsa Munda Central Jail, Hotwar at Ranchi.
2. The confirmation order dated 2nd November 2022 passed by the
Under Secretary, Department of Home, Jail and Disaster Management,
Government of Jharkhand and the extension orders dated 30 th November
2022 and 28th February 2023 have also been put to challenge in the present
proceeding.
3. A counter-affidavit has been filed on behalf of the Deputy
Commissioner and Senior Superintendent of Police both at Ranchi in which
the facts regarding the orders passed by the statutory authorities have not
been denied. Similarly, in the counter-affidavit filed on behalf of the
Department of Home, Prison and Disaster Management, Government of
Jharkhand the foundational facts are not denied. From the preventive
detention order passed by the Deputy Commissioner at Ranchi, we gather
that the detenu is an accused in Nagri PS Case No.199 of 2020 which was
lodged under sections 307/353 r/w section 34 of the Indian Penal Code and
sections 25(1-A)/27/35 of the Arms Act and section 17 of the CLA Act. In
this case along with Akash Linda the detenu has been sent up for trial under
section 302/34 of the Indian Penal Code and section 27 of the Arms Act.
There is also a reference of Mandar PS Case No.152 of 2021 which was
registered under section 302/120-B of the Indian Penal Code. In Mandar PS
Case No.152 of 2021, one of the witnesses, namely, Ravindra Nand Tiwari
is said to have been killed in furtherance of a criminal conspiracy hatched by
the detenu. The order of preventive detention dated 30 th August 2022 is
primarily founded on these two criminal cases and sanha entries dated 11th
November 2022, 13th November 2022, 14th November 2022 and 15th
November 2022.
4. No doubt the powers of the State Government exercisable
through the Deputy Commissioner under sub-section 2 of section 12 of the
Jharkhand Control of Crimes Act, 2002 have been held valid and the
amendment made through the Act 9 of 1994 by which section 12-A has been
incorporated clarifies that the grounds of detention shall be severable and,
therefore, invalidity of one ground amongst others shall not render the
preventive detention order invalid.
5. Section 12 of the Jharkhand Control of Crimes Act, 2002 is
extracted 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 anti-social
element 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
sub-section: 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.
(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."
6. Sub-section 3 to section 12 provides that the order of preventive
detention made by the District Magistrate shall forthwith be communicated
to the State Government together with the grounds on which the order has
been made and such orders shall remain in force for not more than 12 days
after the making thereof unless in the meantime it has been approved by the
State Government. As we have noticed, there is no dispute that the order of
preventive detention dated 30th August 2022 has been approved by the State
Government on 15th September 2022. Proviso to sub-section 3 which
provides that a period of 15 days shall be counted wherever the order of
preventive detention has been communicated after 5 days of the making of
such an order is not applicable in the present case for the reason that the
preventive detention order dated 30th August 2022 has been communicated
to the State Government on 1st September 2022.
7. Besides the above, we further find that the order dated 28 th
February 2023 by which the order preventively detaining the detenu has
been extended by six months is also flawed in law. Proviso to sub-section 2
makes it mandatory and puts a rider on the powers of the State Government
exercised through the Deputy Commissioner that an order of preventive
detention shall not exceed three months in the first instance. It further
clarifies that if the State Government is satisfied that it is necessary so to do,
it shall amend the order of preventive detention to extend such period from
time to time by any period not exceeding three months at any one time. A
plain reading of proviso to sub-section 2 thus makes it clear that the original
order of preventive detention as also any order of extension cannot exceed
three months at one time whereas by an order dated 28th February 2023 the
preventive detention order dated 30th August 2022 which was extended for
three months by an order dated 30 th November 2022 has now been extended
by six months till 29th August 2023.
8. Mr. Indranil Bhaduri, the learned State counsel has referred to a
decision in W.P (Cr.) No.282 of 2017 titled"Jitendra Korwa @ Chhotan Ji
@ Komal Ji v. The State of Jharkhand and Ors." to support the order dated
28th February 2023. The writ Court has observed as under:
"Juxtaposing the factual aspects of the case with the legal issues dealt
with in the preceding paragraphs would reveal that the State
Government has extended the period of detention of the petitioner for
a period of three months and the original order of detention also is
confined to a period of three months. The State Government has the
discretion to continue with the detention of a detenu for such period as
it thinks fit in terms of Section 21 of the Act. The same therefore gives
a prerogative to the State Government to either pass an order of
detention at the initial stage itself for a maximum period of one year in
terms of Section 22 of the Act or in fractured extensions and after the
initial order of detention is passed in view of the legal mandate which
flows from the judgment of T. Devaki (supra) no further necessity
would arise for the State Government to take the opinion of the
Advisory Board.
The prayer of the writ petitioner, therefore, is not tenable in view of
the discussions made hereinabove and accordingly, the same is,
hereby, dismissed."
9. This is fundamental in law that the statutory period provided in
a Statute and that too relating to preventive detention cannot be extended by
a judicial pronouncement. This is of course within the powers of the Court
to condone the delay for filing a petition etc. even where the Limitation Act
is not applicable but by no stretch of imagination the order in "Jitendra
Korwa" can be construed to give powers to the State Government to pass an
order extending preventive detention of the detenu by a period exceeding
three months at one time. This is a clear misreading of the judgment in
"Jitendra Korwa" in the garb of which the State is now trying to cloth
legality to the order dated 28th February 2023. The provisions under
sections 21 and 22 of the Act provide the maximum period of detention but
how a detenu can be preventively detained for a maximum period of 12
months is controlled by the provisions of section 12 which clearly put a rider
on the power of the State Government to pass an order of extension of the
preventive detention order beyond 3 months at one time. Of course, for
passing an order extending the preventive detention for a total period of
another 9 months by 3 separate orders of extension the State Government is
not required to take fresh opinion of the Advisory Board.
10. While so, the order dated 28th February 2023 passed by the
Under Secretary, Department of Home, Jail and Disaster Management,
Government of Jharkhand extending the period of preventive detention of
the writ petitioner till 29th August 2023 is quashed.
11. W.P(Cr.) No.435 of 2023 is allowed.
12. Let a copy of this order be handed over to the learned State
counsel.
13. Let a copy of this order be transmitted to the Jail
Superintendent, Birsa Munda Central Jail, Hotwar at Ranchi through
'FAX".
(Shree Chandrashekhar, J.)
(Anubha Rawat Choudhary, J.)
High Court of Jharkhand, Ranchi
Dated: 17th August 2023
Sudhir/NAFR
