HARE RAM PANDEY Vs. STATE OF BIHAR

JUDGEMENT

(1.) Undoubted by the non-success before the Patna High Court and this Court on selfsame issues the appellant has filed this appeal questioning correctness of a judgment of the Patna High Court which declined to interfere with an order directing his detention by order dated 14-9-1995 in terms of Section 12 of the Bihar Control of Crimes Act, 1981 (in short 'the Act'). According to the appellant the order of detention was without authority in law and, therefore, deserves to be nullified by issuance of a writ of mandamus/certiorari under Art. 226 of the Constitution of India, 1950 (in short 'the Constitution'). By the impugned judgment dated 4-3-1997 the Patna High Court in Cr. W. J. C. No. 144 of 1997 repelled the contention. It was held that the Act itself provides the procedure as to how the matter should proceed if the person in respect of whom the order of detention is passed is detained. It was noted that he had a right to make representation and also to be heard before the Advisory Board constituted under the Act. The procedure indicated in the Act safeguards the rights available under Art. 22 of the Constitution. Reference was made to the earlier writ petitions which were filed and it was noted that in the earlier writ petitions the challenges were on similar footings. Circumstances under which the order of detention could be quashed at the pre-detention stage were highlighted by this Court in Additional Secretary to the Government of India and others v. Smt. Alka Subhash Gadia and another (1992 Supp (1) SCC 496) and according to the High Court this was not a case where the order of detention could be nullified at the pre-detention stage. The Court also noticed that the appellant has tried to avoid process of law for a long period and wanted to take advantage of that, which he cannot be permitted to do and the law has to take its own course.

(2.) In support of the appeal, learned counsel for the appellant submitted that the occurrence which formed foundation for the order of detention relates to an incident which took place during an election and with oblique motives the provisions of the Act affecting liberty of the appellant has been used. The incident which formed the background of the order of detention allegedly took place in March, 1995, and since appellant tried to highlight the failure of the governmental machinery in ensuring free and fair election, out of political vendetta the order of detention has been passed at the behest of political leaders. Great emphasis was laid on the order of detention which purportedly refers to a notification dated 4-4-1994 issued by the Government which operated till 30th June, 1994. It was urged that since the District Magistrate had no authority under Section 12(2) of the Act to pass the order of detention, the order of detention was clearly without jurisdiction. In any event, after a long lapse of time stale matters should not be allowed to be rekindled. According to him the ratio in Alka Subhash's case (supra) has clear application to the facts of the case.

(3.) In response, learned counsel for the respondent-State submitted that the scope of interference at pre-detention stage is extremely limited and the area has been clearly spelt out in Alka Subhash's case (supra) and the appellant's case does not fall to the situation contemplated in said case. It is further submitted that the appellant is not correct in saying that the District Magistrate had no authority to pass the order of detention. These specific stands were taken in the earlier writ petitions and were rejected. Even the special leave petition filed before this Court was withdrawn. In any event, the notification of the Government of Bihar (Home) Police Department, dated 20th June, 1995 empowered the District Magistrate to pass an order of detention and the notification was operative till 30-9-1995 within which period the order of detention was passed.