2009 Supreme(Raj) 2323
RAJASTHAN HIGH COURT AT JAIPUR BENCH
Ajay Rastogi, Raghuvendra Singh Rathore, JJ.
Anil Nayak (Pilani) - Appellant
Versus
State and Ors. - Respondent
Habeas Corpus (Writ) Petition Nos. 13569 of 2008, 12090 of 2008, 14057 of 2008, 14402 of 2008, 315 of 2009, 660 of 2009, 1606 of 2009, 2555 of 2009, 5276 of 2009.
Decided On : 5-10-2009
Important Points
The State Government must record its satisfaction that there are "circumstances prevailing or likely to prevail" in the area within local limits of jurisdiction of a District Magistrate, and if the State Government is satisfied that it is necessary to do so it may, by order in writing, direct District Magistrate to exercise the powers conferred under Section 3(1) of PASA Act.
Subject
Constitutional Law - DELEGATION OF POWERS
Act Referred
SOCIAL ACTIVITIES ACT : S.3(1)(2)
Headnote
RAJASTHAN PREVENTION OF ANTI-SOCIAL ACTIVITIES ACT, 2006 - SECTION 3(2) - DELEGATION OF POWERS TO DISTRICT MAGISTRATES - VALIDITY - CIRCUMSTANCES PREVAILING OR LIKELY TO PREVAIL - SATISFACTION OF STATE GOVERNMENT - REQUIREMENT - NOTIFICATION CONFERRING POWERS UPON ALL DISTRICT MAGISTRATES WITHOUT EXAMINING PREVAILING CIRCUMSTANCES - INVALIDITY.
Fact of the Case:
Habeas Corpus petitions challenging the orders of detention passed against the petitioners under the Rajasthan Prevention of Anti-Social Activities Act, 2006 (PASA Act). The petitioners contended that the delegation of powers to District Magistrates to pass orders of detention under Section 3(2) of the PASA Act was arbitrary and without due application of mind, as the State Government had issued a general notification on 18.08.2008 delegating powers to all District Magistrates in the entire State without being satisfied as to whether there were prevailing or likely to prevail circumstances in any area within the jurisdiction of a District Magistrate.
Finding of the Court:
The Court held that the conferment of powers upon all District Magistrates by the State Government was illegal and invalid as it was not based on any material to satisfy that there were circumstances prevailing or likely to prevail in the local limits of their jurisdiction calling upon the State Government to confer/delegate its powers under Section 3(2) of the Act. The Court observed that the subjective satisfaction of the State Government conferring powers upon all the District Magistrates of Rajasthan in general was without examining as to whether there were circumstances prevailing or likely to prevail in local limits of their jurisdiction.
Issues: 1. Whether the delegation of powers to District Magistrates to pass orders of detention under Section 3(2) of the PASA Act was arbitrary and without due application of mind? 2. Whether the State Government had examined the prevailing circumstances or likely to prevail circumstances in any area within the jurisdiction of a District Magistrate before delegating powers under Section 3(2) of the PASA Act?
Ratio Decidendi: 1. The Court held that the delegation of powers to District Magistrates to pass orders of detention under Section 3(2) of the PASA Act was arbitrary and without due application of mind, as the State Government had issued a general notification on 18.08.2008 delegating powers to all District Magistrates in the entire State without being satisfied as to whether there were prevailing or likely to prevail circumstances in any area within the jurisdiction of a District Magistrate. 2. The Court observed that the subjective satisfaction of the State Government conferring powers upon all the District Magistrates of Rajasthan in general was without examining as to whether there were circumstances prevailing or likely to prevail in local limits of their jurisdiction.
Final Decision: The Court allowed the habeas corpus petitions and quashed the notification dated 18.08.2008 conferring powers upon all District Magistrates under Section 3(2) of the PASA Act. Consequently, the orders of detention impugned against the petitioners were also quashed and set aside.
For the Petitioner:Rajesh Choudhary for Biri Singh, Jai Raj Tantia, N.K. Saini, Mahendra Sharma and R.R. Baisla, Advocates.
For the Respondents: Rajendra Yadav, Government Counsel.
JUDGMENT
1. - These Habeas Corpus (Writ) petitions on joint request have been heard together, and are being disposed of by a common judgment since grounds urged are almost common & identical for assailing the orders though having been separately passed against the petitioners against whose detention writ of habeas corpus is being sought herein.
2. Contextual facts are being taken out of the Habeas Corpus Petition, 13569 of 2008, Anil Nayak v. State , which has been filed through his brother Jitendra, relating to detention of the petitioner. Superintendent of Police, Jhunjhunu vide letter dated 15.09.2008 submitted report to the District Magistrate Jhunjhunu for initiating action of detention against detenu-Anil Under Section 3(1) of Rajasthan Prevention of Anti-social Activities Act, 2006 (Act No. 1 of 2008)("PASA Act"). In the report of Superintendent of Police, allegations imputed against detenu (Anil) were inter-alia that after opening history sheet of the detenu and despite having been in stringent supervision he was found being involved in criminal activities (e.g., to quarrel with police administration, murder, attempt to murder, keep unauthorised weapons, involved in excise cases/property disputes). Consequently, there being great fear in public and disturbing the peace in the area, inasmuch as due to his threats, independent eye witnesses were afraid of giving evidence against him, as a result whereof, law & order situation was being adversely affected in the area. In the report, Superintendent of Police also observed that detenue (Anil) is involved in anti-social activities which being prejudicial to maintenance of public order, have necessitated to make order that he should be detained. Taking note of the report of Superintendent of Police and on being satisfied with material having been brought before him, the District Magistrate held that as per record submitted before him it is clear that detenu (Anil) is dangerous person as defined Under Section 2(c) of PASA Act and accordingly passed an order Under Section 3(1) of the PASA Act for detaining him in Central Jail Jaipur for a period of one year from the date of his detention vide order dated 26.09.2008. He was taken in detention and sent to Central Jail, Jaipur where he was served with a notice dated 29.09.2008 alongwith order of detention, report of Superintendent of Police, besides supporting documents informing that against his detention he may file representation, through Superintendent Central Jail, Jaipur to the State Government.
3. However, vide order dated 10.10.2008 Deputy Secretary (Security), Department of Home (Gr.IX) Government of Rajasthan, Jaipur conveyed approval of State Government as regards order dated 26/09/08 of detention of the detenu (Anil) passed by District Magistrate, Jhunjhunu. Thereafter notice was also served upon detenu (Anil) vide letter dated 16.10.08 of District Magistrate, Jhunjhunu affording him an opportunity of personal hearing, if so desired against his detention, before the advisory committee. After taking note of opinion of advisory committee, his detention was confirmed by State Government vide order dated 11.11.2008 for a period of one year from 27.09.2008 to 26.09.2009.
4. In all other cases, procedure as provided under PASA Act was followed by District Magistrates as having been adopted in the case of Anil (detenu) and after reports having been furnished by the Superintendent of Police the orders of detention were passed by District Magistrate concerned on being satisfied in accordance with provisions Under Section 3(1) of PASA Act, which was also approved by State Government Under Section 3(3) and after taking note of the opinion of advisory Board, the orders of detention were confirmed and continued the detention for a period of one year from the date of taking in detention, as is evident from chart ad infra- |
| Name of detenu Habeas Corpus Petition No. | Date & Order of detention District Magistrate | | | |
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