KARTIK MUNDA Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) WHILE the petitioner was in custody, he was served with an order dated 27.5.2009 (Annexure 1) passed under Section 12(1) of the Bihar (Jharkhand) Control of Crimes Act, 2002 (hereinafter referred to as 'the Act') by the District Magistrate, East Singhbhum (Jamshedpur), respondent no.3 alongwith the grounds of detention whereby and whereunder the petitioner was ordered to be detained in custody for a period of 12 months. Subsequently, the State Government in exercise of power conferred under Section 12(3) of the Act, approved the order of detention, vide its order dated 8.6.2006 (Annexure C), copy of which seems to have been served upon the petitioner. Thereafter a representation was filed by the petitioner on 9.6.2009 before the Secretary, Department of Home, Government of Jharkhand, for revocation of the detention order for the reason mentioned therein which was rejected on 29.6.2009. All these orders have been challenged to be bad on several counts.

(2.) LEARNED counsel appearing for the petitioner submits that detention order was passed while the petitioner was in custody and as such, the order of detention should have been passed in compelling necessity, satisfaction/reason of which should have been recorded by the respondent in its detention order but no reason whatsoever has been recorded, rather it has simply been stated that there would be an adverse effect on the public order, if the petitioner comes out of the jail, which would not justify the order of detention, as the District Magistrate before passing order should have made himself satisfied on the basis of the material placed before him that the detenu is likely to indulge in the act prejudicial to the maintenance of public order, if he is enlarged on bail and that he is satisfied from various reports and facts that the detenu is likely to be released on bail. Admittedly, detention order does not indicate about his satisfaction on the aforesaid point and, as such, the order of detention would be deemed to have been passed mechanically which is unsustainable in law.

(3.) LEARNED counsel appearing for the petitioner submits that the District Magistrate, East Singhbhum, Jamshedpur, respondent no. 3 has been vested with the power under Section 12(2) of the Act to pass order of detention in terms of Section 12(1) of the Act under Notification No.1151 dated 23.3.2009 but the said notification has been held to be invalid by this Court in a case of Babar Khan @ Rasid Hussain V/s. State of Jharkhand and Others [2009(4) J.C.R 537 (Jhr.)] as the said notification is conspicuously silent as to whether power has been conferred upon all the District Magistrate to pass detention order in terms of Section 12(1) of the Act either in the circumstances prevailing on the date of order preventing the detenu from acting in any manner prejudicial to the maintenance of the public order or in the circumstances likely to prevail during three months for which power has been conferred and, as such, the said notification was held to have been issued mechanically. Therefore, if the said notification no.1151 dated 23.3.2009 itself has been found to be invalid, detention order passed by the respondent no.3, on being conferred power by the State Government under the said notification, would certainly be bad.