Amreshwar Pratap Sahi, CJ.
1. Heard learned counsel for the petitioner and learned Advocate General for the State of Bihar, assisted by Shri Prabhu Narayan Sharma, Assisting Counsel to Advocate General.
2. This matter concerns the detention of the petitioner under the Bihar Control of Crimes Act, 1981. An order has been passed under Section 12(2) of the said Act for detaining the petitioner on the basis of a police report dated 13th July, 2018. The detention order has been passed on 18th of August, 2018 and the same has been affirmed by the State Government vide order dated 1st of October, 2018. The said orders are under challenge.
3. The petitioner, apart from the other cases referred to in the police report, was also involved in an incident in respect whereof Bikramganj P.S. Case No. 95 of 2018 has been registered.
4. The order of preventive detention as affirmed by the State Government to keep the petitioner behind bars in the interest of public order is the gravamen of the present dispute.
5. The petitioner claims that he is a practising lawyer in the local Civil Court of District Rohtas and he has been implicated in certain cases in spite of the fact that he is dedicated towards every good cause of the society and as a matter of fact he had got an FIR lodged against the members of his own community. He is also a patient of Hepatitis B and in respect of the FIR arising out of Bikramganj P.S. Case No.95 of 2018, he has been granted bail by this Court on 5th October, 2018.
6. The detention order under the Bihar Control of Crimes Act, 1981 (hereinafter referred as 'the 1981 Act') has been passed on 18th of August, 2018 while the petitioner was in custody. The petitioner filed a representation before the State Government which has also been rejected on 1st of October, 2018.
7. Prior to this, the petitioner had been served with a notice of exterment to which he submitted a reply on 12th June, 2018 and the said proceedings were dropped.
8. The petitioner in respect of the cases referred to in the detention order and the confirmation order also refers to a particular case relating to the posting of certain material on the face book which according to the respondents was sufficient to make one believe that the petitioner was spreading hatred and aimed at disturbing public order by resorting to such activities. The criminal history of the petitioner is as follows:-
(i) Bikramganj P.S. Case No.9 of 2017 dated 12.01.2017 under Sections 147, 149, 341, 323, 353, 143, 504, 506 of the IPC. This was with regard to an allegation of an unlawful assembly blocking the road and creating obstruction in the discharge of Government work causing danger to life. The charge-sheet in the said case has been submitted on 29th June, 2018.
(ii) Bikramganj P.S. Case No.186 of 2017 dated 3rd July, 2017 under Sections 504, 341, 323, 324/34 of the IPC. This is an allegation with regard to an alleged assault and use of abusive language against the informant in which a charge-sheet has been filed on 30th November, 2017.
(iii) Bikramganj P.S. Case No.95 of 2018 dated 18th March, 2018 under Sections 153 (A), 504 of the IPC. It is this case lodged by one Manoj Kumar Singh posting news on the Facebook. While submitting the charge-sheet, the petitioner has been charged of the offences under Sections 295(A)/153(A)/504 of the IPC and Section 66 of the D.I.T. Act in which charge sheet has been filed on 29th June, 2018.
(iv) Bikramganj P.S. Case No.210 of 2018 dated 6th June, 2018 under Sections 341, 342, 323, 354, 379, 506, 384, 307/34 of the IPC. The allegation in this is that one Aruna Devi lodged the FIR alleging that the petitioner along with his associates surrounded her and snatched her Mangal Sutra with the intention to cause bodily harm and even kill her.
9. The petitioner, according to this case history, was found to have indulged in activities that would be detrimental to public peace and public order and, therefore, his detention was found to be necessary. Accordingly, in exercise of the powers conferred under Section 12(2) of the 1981 Act and the Notification dated 21st June, 2018, a detention order was passed by the District Magistrate on 18th August, 2018.
10. The petitioner's representation was received that was dispatched to the Home Department and after calling for the report from the District Magistrate and the Superintendent of Police, the order was confirmed by the Advisory Board and was approved by the State Government vide an order dated 1st October, 2018. The detention period is of one year that is to come an end on 17th August, 2019.
11. One of the ingredients that forms the basis of the detention order is of a case relating to the posting of offensive material on the Facebook. This material levelled an allegation against a T.V. Anchor Anjana and the same is extracted herein under:- " Parwez Khan 14 Mar at 3:13 P.M.
12. Thus, apart from the other criminal cases, the history whereof has been indicated in the detention order, one of the grounds was that in case the petitioner is allowed to be released and there is every likelihood of he being granted a bail order, his presence in the society would be detrimental as there is every likelihood of his indulging into activities that may spread communal disharmony. There is also a recital in the detention order that he has the potential to spread such news even while remaining in jail and, therefore, he should be kept under detention to prevent any such mis-happening.
13. We have heard learned counsel for the petitioner who submits that there was no material to arrive at any such conclusion and the apprehension about the petitioner being bailed out was also unfounded keeping in view the nature of the bail order which has been passed in the present case.
14. The exercise of power under Section 12 of the 1981 Act is to prevent anti-social elements from carrying out their nefarious activities for which a detention order can be passed. Section 12 is extracted herein 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 subsection:
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 subsection shall apply subject to the modification that, for the words "twelve days", the words "fifteen days" shall be substituted."
15. Learned counsel for the petitioner has relied on a judgment of a Division Bench of this Court in the case of Mahendra Sharma @ Mahendra Sardar v. The State of Bihar and Ors (Criminal Writ Jurisdiction Case No. 698 of 2014) to contend that the passing of a preventive detention order requires strict scrutiny as it necessarily curtails the personal liberty of a person without trial in the interest of the public at large on the ground that release of the detenue is likely to disturb the peace and order of society. The Division Bench in paragraph 7 has discussed the intent and purpose of preventive law and its impact which is extracted herein under:-
"7. As may appear from the reading of the provision of Section 3, there is some sense of urgency in initiating and taking action under Section 3 of the Act. The urgency is to protect the society from unlawful activities which are noted in the very provisions of Section 3(1) of the Act which may ultimately prejudice and disturb the peace and order and smooth flow of human life and activities in the society so that society moves smoothly without being disturbed by any criminal activities and further, that people live in the society enjoying peaceful atmosphere not only to enjoy their lives but also to prosecute their vocations. It appears necessary that a crime free society is created by taking preventive measures which are envisaged to be taken either by Section 3 or by Sections 12, 17 and 22 of the Act by the authorities at different levels and in the light of reports which might have been received by them. But, it is too well known to be pointed out that passing preventive detention order or orders of the nature which are required to be passed under Section 3 of the Act necessarily curtails the personal liberties of the person proceeded against. The liberties which have to be curtailed or which have to be abridged are guaranteed under Chapter III of the Constitution of India as the fundamental Right's of the citizens and persons and courts exist only to safeguard those liberties to the extent unless it becomes utterly necessary to put down some fetters on the enjoyment of those rights that too under some emergent situation. The right to personal liberty, in fact, are the catalysts of human development. Liberty of any nature enthuses persons and citizens of the nation to think and interact, to chart paths of achievements in their personal lives and thus, enhance the prospect of nation building. The ordinary situation could be always viewing with foul eyes such actions which tell upon the personal liberties of persons living anywhere in the society.
Preventive laws are harsh and sometimes they do not appear passed after following the general provisions of trials which could be available to a criminal court. Summary proceedings by perusing the reports so as to drawing the subjective satisfaction so as to issuing the order are the modes of proceeding in such matters, but even in that case, as may appear from the very provisions of Section 3 or other provisions, the right to be heard has been safeguarded by the legislature. In case of Section 3 of the Act, the right is available to a person in a broader manner than what appears available to him when he is being proceeded against either under Section 12 or 17 or 22 a case of an order which has to be passed under Section 22 of the Act, the legislature has set down more stringent a measure by directing that all materials including the show-cause or explanation submitted by the proposed detenue has to be placed before the State Advisory Board so as to taking a decision under Section 21 of the Act to recommend or not to recommend the detention of a person. We need hardly to point out that the State Advisory Board is constituted by persons of reason and conscience and it is supposed that they had never defaulter in making recommendations which are desired to be made by them."
16. It was further found that the recording of reasons by the District Magistrate is a must and further merely because a person is involved in a few cases, the same may not be a convincing reason by itself to pass an order of preventive detention. The observations made in paragraphs 9 and 10 are extracted herein under:-
"9. The negation of this right by the District Magistrate has to be declared arbitrary if he does not record reasons for denying the right of hearing to a person.
10. We were not required to note into such finer details the scope and ambit of the provision of section 3 of the Act for disposing of the present petition, but considering that a District Magistrate holds position in the district who heads not only many establishments but has a wider power of passing various orders telling upon the personal liberties of a person, we desired to clarify position so that the personal liberties do not fall prey to personal whims and caprice of a person who might be the District Magistrate of a district on mere information which has not yet been verified and tested by going through the trial procedure. We have noted that detention as well as laws on preventive detention is somewhat draconian. For drawing satisfaction for acting under the provisions of the Act it requires some serious and weighty materials because the satisfaction is never objective it is subjective and one is made to believe generally the report submitted by the police establishment. If a person being at large appears dangerous to the society then in that act his detention may be required, but merely because he has been involved or has been concerned in a few cases may not be requiring him to be detained if the materials past and present other than the first information report do not appear as convincing to a reasonable man as is required under law. This was the reason that we were explaining the provisions in some finer details so as to impressing upon the District Magistrate not only of Arwal, but of all districts of the State that they are supposed, on account of being the officer of the State, to protect the liberties of the citizens also. Issuing a notice itself is a very serious business and it could be done only for compelling reasons as the very receipt of a notice under the Act by a person may put his personal liberties under some clouds. The District Magistrate should be cautious and should in all cases adhere to the provisions of the Act before they have finally decided to issue an order."
17. We have been apprised of another Division Bench judgment where the petition was allowed on the ground that there was no particular material in the order to demonstrate that the detenue was trying to come out of jail nor was there any material showing that the petitioner's release was likely to cause disturbance culminating in public disorder. Thus, where the detenue was alleged to be making an attempt to come out of jail was not found to be the basis for preventive detention and the writ petition was allowed. The said decision of the Division Bench is in the case of Shyam Rai @ Shyam Chandra Rai v. The State of Bihar and Ors. (Criminal Writ Jurisdiction Case No. 523 of 2014) decided on 10th July, 2014.
18. The above mentioned judgment has referred to the judgment of the Apex Court in the case of Huidrom Konungjao Singh vs. State of Manipur, (2012) 7 SCC 181. The order of detention was quashed in that case after discussing the entire law on the subject. Paragraphs 4 to 9 are extracted herein under:-
4. The question of personal liberty of a person is sacrosanct and State Authority cannot be permitted to take it away without following the procedure prescribed by law, otherwise it would be violative of the fundamental rights guaranteed under Articles 21 and 22 of the Constitution. In Ayya vs. State of U.P. [(1989) 1 SCC 374 : 1989 SCC (Cri) 153 : AIR 1989 SC 364] this Court held that the law of preventive detention is based and could be described as a "jurisdiction of suspicion" and the compulsion of values of freedom of democratic society and of social order sometimes might compel a curtailment of individual's liberty.
5. In Yumman Ongbi Lembi Leima vs. State of Manipur [(2012) 2 SCC 176 : (2012) 1 SCC (Cri) 701] this Court held that: (SCC p. 182, para 27)
"27. - personal liberty of an individual is the most precious and prized right guaranteed under the Constitution in Part III thereof. The State has been granted the power to curb such rights under criminal laws as also under the laws of preventive detention, which, therefore, are required to be exercised with due caution as well as upon a proper appreciation of the facts as to whether such acts are in any way prejudicial to the interest and the security of the State and its citizens, or seek to disturb public law and order, warranting the issuance of such an order."
6. Whether a person who is in jail can be detained under detention law has been the subject matter of consideration before this Court time and again. In Dharmendra Suganchand Chelawat vs. Union of India [(1990) 1 SCC 746 : 1990 SCC (Cri) 249 : AIR 1990 SC 1196], this Court while considering the same issue has reconsidered its earlier judgments on the point in Rameshwar Shaw vs. District Magistrate, Burdwan [AIR 1964 SC 334 : (1964) 1 Cri LJ 257], Masood Alam vs. Union of India [(1973) 1 SCC 551 : 1973 SCC (Cri) 435 : AIR 1973 SC 897], Dulal Roy vs. District Magistrate, Burdwan [(1975) 1 SCC 837 : 1975 SCC (Cri) 329], Alijan Mian vs. District Magistrate, Dhanbad [(1983) 4 SCC 301 : 1983 SCC (Cri) 840 : AIR 1983 SC 1130], Ramesh Yadav vs. District Magistrate, Etah [(1985) 4 SCC 232 : 1985 SCC (Cri) 514 : AIR 1986 SC 315], Suraj Pal Sahu vs. State of Maharashtra [(1986) 4 SCC 378 : 1986 SCC (Cri) 452], Binod Singh vs. District Magistrate, Dhanbad [(1986) 4 SCC 416 : 1986 SCC (Cri) 490 : AIR 1986 SC 2090] and Shashi Aggarwal vs. State of U.P. [(1988) 1 SCC 436 : 1988 SCC (Cri) 178 : AIR 1988 SC 596] and came to the following conclusion: (Chelawat case [(1990) 1 SCC 746 : 1990 SCC (Cri) 249 : AIR 1990 SC 1196], SCC p. 754, para 21)
"21. The decisions referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for that purpose it is necessary that the grounds of detention must show that (i) the detaining authority was aware of the fact that the detenu is already in detention; and (ii) there were compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future, and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities."
7. In Amritlal vs. Union Govt. [(2001) 1 SCC 341 : 2001 SCC (Cri) 147 : AIR 2000 SC 3675] a similar issue arose as the detaining authority recorded its satisfaction for detention under the Act, in view of the fact that the person, who was already in jail, was going to move a bail application. In the grounds of detention it had been mentioned that there was "likelihood of the detenu moving an application for bail" and hence detention was necessary. This Court held that there must be cogent materials before the authority passing the detention order that there was likelihood of his release on bail. (See also N. Meera Rani vs. Govt. of T.N. [(1989) 4 SCC 418 : 1989 SCC (Cri) 732], Kamarunnissa vs. Union of India [(1991) 1 SCC 128 : 1991 SCC (Cri) 88 : AIR 1991 SC 1640] and Union of India vs. Paul Manickam [(2003) 8 SCC 342 : 2004 SCC (Cri) 239 : AIR 2003 SC 4622] .)
8. This Court while deciding the case in A. Geetha vs. State of T.N. [(2006) 7 SCC 603 : (2006) 3 SCC (Cri) 324] relied upon its earlier judgments in Rajesh Gulati vs. Govt. of NCT of Delhi [(2002) 7 SCC 129 : 2002 SCC (Cri) 1627 : AIR 2002 SC 3094] , Ibrahim Nazeer vs. State of T.N. [(2006) 6 SCC 64 : (2006) 3 SCC (Cri) 17] and Senthamilselvi vs. State of T.N. [(2006) 5 SCC 676 : (2006) 3 SCC (Cri) 50] and held: (A. Geetha case [(2006) 7 SCC 603 : (2006) 3 SCC (Cri) 324], SCC p. 606, para 10)
"10. ... that the detaining authority should be aware that the detenu is already in custody and is likely to be released on bail. The conclusion that the detenu may be released on bail cannot be ipse dixit of the detaining authority."
Its subjective satisfaction based on materials, normally, should not to be interfered with.
9. In view of the above, it can be held that there is no prohibition in law to pass the detention order in respect of a person who is already in custody in respect of criminal case. However, if the detention order is challenged the detaining authority has to satisfy the Court the following facts:
(1) The authority was fully aware of the fact that the detenu was actually in custody.
(2) There was reliable material before the said authority on the basis of which it could have reasons to believe that there was real possibility of his release on bail and further on being released he would probably indulge in activities which are prejudicial to public order.
(3) In view of the above, the authority felt it necessary to prevent him from indulging in such activities and therefore, detention order was necessary.
In case either of these facts does not exist the detention order would stand vitiated. The present case requires to be examined in the light of the aforesaid settled legal proposition."
19. There is yet another aspect which deserves mention and that we have come across, namely, the extensive and elaborate proposition of law while striking down the provisions of Section 66A of the IT Act, 2000 where it was held that it was violative of Article 19 (1) (a) and Article 19(2) of the Constitution of India. The corresponding provision in the Kerala Police Act was also struck down. The Apex Court discussed the issues relating to public order being disturbed on the posting of certain information on the Facebook and it was ultimately found that the punishment indicated for sending offensive message through communication under Section 66-A were unconstitutional. The judgment in the case of Shreya Singhal vs. Union of India, reported in (2015) 5 SCC 1 therefore also deals with issues relating to safeguards against arrest and detention arising out of such cyber crimes and the protection of fundamental rights as indicated above. It appears that a Miscellaneous Application No.3220 of 2018 was filed in the said case which came up on 15th February, 2019 whereby the Supreme Court was pleased to pass the following order:-
"The learned Attorney General appears before us and has made a concrete suggestion, which we accept.
The suggestion is that copies of this Court's judgment in 'Shreya Singhal vs. Union of India' [(2015) 5 SCC 1] will be made available by every High Court in this country to all the District Courts. This should be done within a period of eight weeks from today.
Also, we direct the Union Government to make available copies of this judgment to the Chief Secretaries of all the State Governments and the Union Territories. This should be done within a period of eights weeks from today. The Chief Secretaries will, in turn, sensitise the police departments in this country by sending copies of this judgment to the Director General of Police in each State, within a period of eights weeks thereafter.
The application stands disposed of accordingly."
20. It is thus evident that the matters relating to such offenses arising out of the Facebook posts have to be dealt with keeping in view the said observations of the Apex Court.
21. Learned counsel for the petitioner contends that the petitioner has been granted bail in all the cases, including the following order dated 5.10.2018 being passed in respect of Bikramganj P.S. Case No. 95 of 2018.
"Heard the parties.
The petitioner seeks bail in Bikramganj P.S. Case No. 95 of 2018 registered for the offences under Sections 153(a), 504 of the I.P.C. and Section 66 of the D.I.T. Act.
Allegation against the petitioner is of making sensational and provocative messages viral on social media causing communal tension in area.
Submission on behalf of the petitioner is that he has been falsely implicated in this case and now he is in custody and he is ready to abide by the conditions imposed upon him by this Court.
Heard the learned A.P.P. and the informant who opposed the prayer for bail of the petitioner stating that the petitioner is in jail custody and he is accused in four other cases.
Having heard both sides and in view of the fats and circumstances of the case, as stated above, I am not inclined to grant bail to the petitioner at this stage.
Please Login To View The Full Judgment!
> However, learned Court concerned is directed to release the petitioner on completion of six months of the petitioner in jail custody shall be released on bail on furnishing bail bond of Rs. 25,000/- to the satisfaction of the trial court on condition that in future, if he is found involved in such type of the cases, the prosecution shall move for cancellation of his bail bond. Accordingly, this application is disposed of." 22. The said bail order was passed when the petitioner was in custody and immediate bail was declined but, at the same time, the Court observed that the petitioner shall be released on completion of six months of serving jail custody. 23. The detention order is to last till 17th of August, 2019. 24. We have considered the submissions raised and we find that the detention order does not appear to have detailed the material or the compelling reasons so as to construe that the petitioner was while in jail involved in planning to disturb public order after he comes outside jail. This material is only based on an allegation that he had threatened a police officer with dire consequences. 25. Apart from this, the detention order dated 18th August, 2018 also recites that while being detained in jail he has the potential, and he does conspire to spread hatred and violence. We have not been able to gather anything from the report of the Superintendent of Police or even the detention order about the existence of any such material. The State Government, while approving the same, therefore, appears to have overlooked these aspects, including the material which may or may not have been there for the purpose of drawing such inference by the detaining authority. 26. The Face Book message extracted above has nowhere been analyzed nor any conclusion drawn keeping in view the judgment of the Apex Court in the case of Shreya Singhal (supra). The State Government also does not appear to have applied its mind keeping in view the observations made in the said judgement. 27. We, therefore, at this stage find that the State Government is required to re-visit the matter in order to consider the correctness or otherwise of the detention order dated 18.08.2018. 28. We partly allow the writ petition and set aside the order of confirmation dated 1st October, 2018 passed by the State Government and remit the matter back to the Respondent No. 2 for being placed before the competent authority of the State Government for a decision afresh within the period of 15 days from today and communicate the same to the petitioner. 29. A copy of the order may be made available by tomorrow to the Assisting Counsel to learned Advocate General for being communicated to the Respondent No. 2 for taking appropriate action.