Purohit @ Rohit Aatma vs The State Of Madhya Pradesh
2024 Latest Caselaw 5604 MP

Madhya Pradesh High Court

Purohit @ Rohit Aatma vs The State Of Madhya Pradesh on 23 February, 2024

Author: Sheel Nagu

Bench: Sheel Nagu

IN THE HIGH COURT OF MADHYA PRADESH
                 AT JABALPUR
                     BEFORE
      HON'BLE SHRI JUSTICE SHEEL NAGU
                        &
      HON'BLE SHRI JUSTICE VINAY SARAF
         ON THE 23th OF FEBRUARY, 2024
          WRIT PETITION No. 713 of 2024

     BETWEEN:-

     PUROHIT @ ROHIT AATMA S/O VIJAY
     AATMA, AGED ABOUT       21 YEARS,
     OCCUPATION: UNEMPLOYED, R/O BIHARI
     MAHARAJ KA BAADA, P.S. BELBAGH,
     DISTRICT JABALPUR (MADHYA PRADESH)

                                        .....PETITIONER

     (BY SHRI YOGESH SONI - ADVOCATE)

                       AND

1.   THE STATE OF MADHYA PRADESH
     THROUGH SECRETARY, DEPARTMENT OF
     HOME AND INTERNAL AFFAIRS, VALLABH
     BHAWAN, BHOPAL (MADHYA PRADESH)

2.   COLLECTOR           MAGISTRATE/
     COLLECTOR JABALPUR DISTRICT
     JABALPUR (MADHYA PRADESH)

3.   SUPERINTENDANT    OF          POLICE
     DISTRICT   JABALPUR         (MADHYA
     PRADESH)

4.   STATION   HOUSE   OFFICER     P.S.
     BELBAGH    DISTRICT   JABALPUR
     (MADHYA PRADESH)
                             .....RESPONDENTS
                                              2


              (RESPONDENTS/STATE BY SHRI B.D. SINGH - DEPUTY A.G.
              WITH SHRI G.P. SINGH - GOVERNMENT ADVOCATE)
      -----------------------------------------------------------------------------------------
      This petition coming on for admission this day, Hon'ble Shri
Justice SHEEL NAGU passed the following:

                                        ORDER

This petition filed under Article 226 of the Constitution assails legality and validity of order of preventive detention dated 29.08.2023 (Annexure P/1) passed by District Magistrate, Jabalpur detaining the petitioner for a period of three months u/S.3 of National Security Act, 1980 (for brevity "N.S.A.").

1.1 Further challenge is laid to subsequent order dated 22.11.2023 (Annexure P/2) of the same authority extending period of preventive detention till 29.02.2024.

2. Learned counsel for rival parties are heard on the question of admission so also final disposal.

3. The grounds in support of aforesaid challenge as raised by learned counsel for petitioner are as follow:-

(i) The impugned order suffers from non application of mind since number of criminal cases in which petitioner has been acquitted have been ignored and proposal for preventively detaining petitioner is made by Superintendent of Police, Jabalpur on 29.08.2023 which post haste has been acted upon by District Magistrate, Jabalpur by passing impugned order on the very same day i.e. 29.08.2023;

(ii) The impugned order and subsequent order of extension has been passed post haste without appreciating the ground realities;

(iii) The impugned order has been passed without affording opportunity of being heard to the petitioner;

(iv) The foundational order of preventive detention has not been forwarded to the State forthwith for approval and the State has also approved the same with inordinate and unexplained delay;

(v) The State Government has not sent the order of preventive detention and its approval to the Central Government in accordance with mandate of Section 3(5) of N.S.A.;

(vi) The representation made by petitioner against impugned order has been decided with considerable delay thereby vitiating impugned order; and

(vii) The impugned order is vitiated for being politically motivated.

4. Learned counsel for the State has filed parawise reply as well as additional return countering submissions of petitioner and supporting impugned order of preventive detention and its extension. State counsel has contended that petitioner is a history sheeter involved in 23 different criminal cases including seven cases of preventive action under Chapter VIII of Cr.P.C. It is submitted that since 2015 till 2023 there were 16 offences registered under different sections including offence of murder registered in 2019, offence u/S.325 registered in 2015, offence u/S.308 registered in 2020,, offence u/S.427 registered in 2022 and 2023, besides case registered u/S.14 of M.P. Rajya Suraksha Adhiniyam, 1990. Looking to

large number of criminal antecedents where petitioner was involved in repeated offences including of serious nature, his continued liberty was causing prejudice to the public order. The liberty exercised by petitioner was at the cost of spreading fear and terror in the minds of members of general public. The police therefore submitted a comprehensive report to the District Magistrate proposing action of preventive detention under N.S.A. since acts of petitioner were prejudicing public order in the area concerned.

5. Pertinently, the Advisory Board approved the order of preventive detention which led to the State Government confirming order of preventive detention.

6. After hearing learned counsel for rival parties, this Court is of the considered view that no case for interference is made out for the reasons infra:-

(i) Learned counsel for petitioner by relying upon recent decision of Apex Court in (2021) 20 SCC 98 (Sarabjeet Singh Mokha vs. District Magistrate, Jabalpur & Ors.) submits that the Apex Court has set aside order of preventive detention challenged therein inter alia on the ground of unexplained delay on the part of State Government in deciding the representation made by detenu. If concluding Para 56 of said judgment in Sarabjeet Singh Mokha (supra) is seen, it is evident that delay in deciding representation by State Government should fall within the category of unexplained delay. If the State Government has explained delay reasonably, then order of preventive detention cannot stand vitiated on this ground alone.

In the instant case, facts reveal that against order of preventive detention passed on 29.08.2023 and its approval on 06.09.2023 by the State, a representation was made by petitioner as late as on 03.01.2024, which was rejected by the State on 14.02.2024. It is not disputed at the Bar that reasons for detention were communicated to the petitioner immediately after passing of order of preventive detention and yet petitioner took more than four months to make representation to the State Government which was rejected on 14.02.2024.

The State has explained delay of about 40 days in deciding representation by submitting that representation had been made to the Minister concerned and not to the State Government and therefore it took time for representation to reach the Competent Authority after being routed through various offices in the Secretariat.

In this view of the fact where petitioner himself had delayed making representation by more than four months, the State cannot be held responsible for delay of about 40 days in deciding representation, especially when the same was addressed and made to a wrong authority and therefore some time was consumed for it to reach the Competent Authority. The delay caused by the State had been properly explained and therefore no benefit therefrom can be derived by petitioner.

(ii) The ground of non application of mind is of no avail to petitioner. The order of preventive detention is backed by cogent material of pendency of large number of offences against petitioner

since last about 07-08 years few of which are of serious nature. The repeated involvement in cognizable offences reveals criminal proclivity of petitioner. A person like petitioner, who is a history- sheeter creates an aura of fear and terror among the members of general public. This sense of fear in the minds of members of general public disturbs the even tempo of life. If person of such criminal proclivity is allowed the benefit of unhindered liberty, then he may become cause for disturbing the peace and tranquility of area concerned where he resides and moves and interacts with members of general public. Thus, to maintain even peaceful tempo of life in the society or a locality, if liberty of such person like petitioner is not curtailed, the public order of area concerned gets disturbed and therefore for the sake of larger public good, liberty of one individual like petitioner is required to be curtailed. This is the object behind the concept of preventive detention.

All these factors have been taken into account by Recommending Authority i.e. S.P., the Competent Authority i.e. District Magistrate and also the State Government and therefore it cannot be said that order of preventive detention and its extensions are vitiated for non application of mind.

(iii) As regards ground of non affording prior opportunity of being heard before passing impugned order is concerned, it is suffice to say that the very purpose and object behind preventive detention would stand defeated, if prior opportunity is afforded. The object is to prevent a person from committing acts in future, which prejudices public order by coming to a conclusion on the basis of

his past conduct. If person like petitioner would have been afforded prior opportunity of being heard before passing impugned order, then petitioner would have continued to cause prejudice to the public order. More so, concept of prior opportunity of being heard is antithetical to the very concept of preventive detention.

(iv) Other ground of proposal for preventive detention and the order of preventive detention having been made on the same day also does not impress this Court. The S.P., Jabalpur in the instant case proposed to the District Magistrate, Jabalpur to initiate action under N.S.A. against petitioner on 29.08.2023 while District Magistrate, Jabalpur passed the order on the very same day i.e. 29.08.2023. The decision regarding preventive detention is required to be taken under the law promptly without delay. In fact, promptness demonstrated by District Magistrate, Jabalpur deserves appreciation. This ground also is of no avail to the petitioner.

(v) As regards ground of violation of Section 3(5) of N.S.A. is concerned, State in its additional return filed on 23.02.2024 has brought on record receipt of communication made u/S.3(5) of N.S.A. to the Central Government on 13.09.2023. Section 3(5) of N.S.A. mandates that when order of preventive detention is approved by the State Government, same is to be reported to Central Government within seven days. The approval by the State Government is dated 06.09.2023 whereas reporting to the Central Government was on 13.09.2023, which is within seven days as per Section 3(5) of N.S.A. and therefore this ground too does not hold any water.

7. Pertinently, order of preventive detention is primarily based on subjective satisfaction of the Competent Authority. However, this subjective satisfaction ought to be based on some objective material. In the instant case, large number of offences registered against petitioner in the last few years where sufficient material before Competent Authority to arrive at a subjective satisfaction that the even tempo of life in and around the area of movement of petitioner would suffer disturbance. This impelled the Competent Authority to arrive at the conclusion that if liberty of petitioner is not curtailed under National Security Act, then public order will stand prejudicedy. For the sake of maintaining public order in the society, if an individual's liberty is curtailed temporarily by arriving at subjective satisfaction based on objective material, then no fault can be found in the order of preventive detention.

8. In the conspectus of above discussion, this Court sees no reason to interfere in the order of preventive detention and its extensions passed by District Magistrate, Jabalpur and the State Government.

9. Consequently, present petition stands dismissed.

  (SHEEL NAGU)                                             (VINAY SARAF)
     JUDGE                                                     JUDGE
 mohsin





Date: 2024.02.29 10:38:39 +05'30'