BINOD CHOUDHARY Vs. STATE OF BIHAR

JUDGEMENT

(1.) THIS application has been filed for and quashing the order dated 5.4.2005 (Annexure -1) whereby the District Magistrate, Begusarai passed order for detention of the petitioner. Further prayer made by the petitioner is to quash the order dated 15.4.2005 (Annexure -2) and order dated 27.5.2005 (Annexure -3) whereby the State Government approved and confirmed the order of detention and directed that the petitioner shall be detained till 4.4.2006.

(2.) SHORN of unnecessary details facts giving rise to the present writ application are that the District Magistrate, Begusarai by order as contained in Memo dated 5.4.2001 (Annexure -1) being satisfied that petitioner&aposs detention is necessary for maintaining public order, in exercise of its power under Section 12(2) of the Bihar Control of Crimes Act, 1981, hereinafter referred to as the Act, passed order for his detention. Fact that petitioner was in judicial custody finds mentioned in the order of detention and at the same time it is also mentioned that petitioner is making attempt for release on bail. The District Magistrate forwarded the order of detention to the State Government and the State Government in exercise of its power under section 12(3) of the Act, approved the order of detention. The matter was placed before the Advisory Board, which made its recommendation. In conformity with the recommendation of the Advisory Board, the State Government by order dated 27th May, 2005 (Annexure -3) confirmed the order of detention and directed that the petitioner shall be detained till 4.4.2006.

(3.) MR . Ajay Kumar Thakur, appearing on behalf of the petitioner raises a very short point. He submits that at the time, when the District Magistrate passed the order of detention, the petitioner was already in jail and therefore, there was no occasion for the detaining authority to pass the order of detention. In fairness to Mr. Thakur he concedes that an order of detention can be passed when a detenu is in custody, but before the order of detention is passed the detaining authority has to be satisfied that the detenu is likely to be released on bail. He submits that in the present case, there is nothing on record to suggest that petitioner was likely to be released on bail. He points out that the prayer of the petitioner for grant of bail was rejected on 31st January, 2005 and no application filed by the petitioner for bail was pending on the date when the District Magistrate passed the order of detention. This according to Mr. Thakur, itself renders petitioner&aposs detention illegal. In support of the submission, reliance has been placed on a judgment of Supreme Court in the case of T.V. Saravanan @ S.A.R. Prasana Venkatachaariar Chaturvedi vs. State through Secretary & Anr., reported in 2006(2) Supreme 115. Our attention has been drawn to paragraph 14 of the judgment which reads as follows.