Back
2020 Supreme(Pat) 657
IN THE HIGH COURT OF JUDICATURE AT PATNA
ANJANI KUMAR SHARAN, J.
Manoj Kumar Singh - Appellant
Versus
State of Bihar and Ors. - Respondent
Cr. WJC No. 1778 of 2019
Decided On : 15-04-2020
Advocate Appeared:
For the Appellant : Ray Saurabh Nath
For the Respondent: Manish Kumar
Headnote:
Bihar & Orissa Public Demand Recovery Act, 1914 – Section 9 – Certificate case – Detention of petitioner in judicial custody – Certificate Officer, without deciding objection filed by petitioner under Section 9 of Act, denying liability by certificate debtor, cannot insist for production of petitioner before him from judicial custody as the Act does not mandate presence of petitioner for deciding objection – Action of Certificate Officer is manifestly arbitrary and in gross violation of principles of natural justice, as power was exercised beyond statutory provisions of Act – Section 40 of the Act prescribes the maximum period of six months of civil prison, which could not be extended beyond that in any circumstance – Petitioner remained in regular custody for more than six months on the basis of production warrant issued by Certificate Officer – Only power vested in Certificate Officer to detain a person in civil prison is provided under Section 15 of Act which is one of modes for execution of certificate and not as a mode of punishment – In present case, no order under Section 15 of Act has been passed conferring power to detain a person to justify order for issuance of production of warrant – Bihar & Orissa Public Demand Recovery Act nowhere conferred power to a Certificate Officer to issue production warrant and to direct a prison authority to produce a detainee in custody before him and continued detention of petitioner for last six months is without any authority of law and is arbitrary, illegal and unlawful – Superintendent of Jail directed to release petitioner forthwith. (Paras 9, 11 to 13)
JUDGMENT :
ANJANI KUMAR SHARAN, J.
1. This case has been posted before me for hearing through video-conferencing, under the orders of Hon'ble the Chief Justice, in view of Nation going through lock down as an aftermath of the outbreak of COVID-19 pandemic.
2. Learned counsel for the petitioner submits that despite of the acquittal of the petitioner in Dhoreiya (Banka) P.S. Case No. 2 of 2016, vide judgment dated 04.10.2019 passed by the learned Judicial Magistrate 1st Class, Purnia, G.R. Case No. 22 of 2016/3842 of 2018 (Trial No. 35 of 2019), the petitioner has yet not been released from the Jail.
3. This Court vide order dated 09.01.2020 has directed the respondent nos. 2 & 3 to file counter affidavit and, pursuant thereto, the Superintendent of Central Jail, Purnia has filed its counter affidavit which is on record. The stand taken by the Jail Superintendent in his counter affidavit is that, after receiving the release order in the aforesaid case, the petitioner was released on 04.10.2019 in this case, but was not released physically and is detained in custody on the strength of production warrant issued by the Certificate Officer, Banka in Certificate Case No. 2 of 2015-16.
4. Thereafter, the petitioner has filed I.A. No. 1 of 2020, on 31.01.2020 before this Court, for modification in the prayer made in Cr.W.J.C. No. 1778 of 2019 to the following effect--
i. For releasing the petitioner from the illegal custody of the respondent authorities in certificate case no. 02/2015-16 pending before the Certificate Officer, Banka in which the petitioner had already filed his objection and the same is pending since 10.06.2016.
ii. For release of the petitioner who was in detention in Banka Jail since 17.11.2016 till 14.09.2016, thereafter in Purnea Jail since 15.09.2018 till 04.01.2020 and at present in illegal detention in Banka Jail since 04.01.2020 in violation of the fundamental rights enshrined under Article 21 of the Constitution.
iii. In view of gross illegalities committed by the authorities by way of detaining the petitioner in Banka Jail an award by way of cost may also be passed.
5. Learned counsel for the petitioner further submits that the detention of the petitioner in judicial custody in connection with Certificate Case No. 2 of 2015-16 is illegal and without jurisdiction as the Certificate Officer has no authority to issue production warrant for bringing the petitioner before him. Firstly, recovery of an alleged amount without deciding his objection filed under Section 9 of the Bihar & Orissa Public Demand Recovery Act (hereinafter in short referred to as the Act') and secondly there is no provision conferring power to the Certificate Officer to issue production warrant under the Act. Thus, he submits that the detention of the petitioner in judicial custody is without valid order, having no force of law and, accordingly, prayed that the petitioner may be directed to be released forthwith.
6. The petitioner has brought on record the order-sheet of the entire Certificate Case No. 2 of 2015-16 (Annexure-8 to the writ application). From bare perusal of Annexure-8, it transpires that a certificate proceeding was initiated at the instance of Bihar State Food and Civil Supplies Corporation Limited (BSFC), by taking recourse of Section 5 & 6 of the Act, to recover Rs. 3,12,89,683.00 (Rupees Three Crores Twelve Lakhs Eighty Nine Thousand Six Hundred and Eighty Three only). The Certificate Officer Banka, vide its order dated 20.12.2015, issued notice to the petitioner on 08.03.2016. Pursuant thereto, the petitioner appeared before the Certificate Officer and the Certificate Officer directed for payment of Rs. 50 Lakhs by the certificate debtor (the petitioner) and further directed that in case of failure to make payment by the next date, distress warrant will be issued against the petitioner and on 31.03.2016 distress warrant was issued against the petitioner. It further manifest from perusal of the order sheet of Certificate Case No. 2
