R.F.NARIMAN,J. - (1.) The present appeal arises out of a preventive detention order dated 21.9.2016 by which the appellant was preventively detained under the Bihar Control of Crimes Act, 1981 ("the Act" for short) for the maximum period of one year. The facts relevant to decide this appeal are as follows:
(2.) The appellant is alleged to be a history-sheeter who has been involved in at least 31 grave crimes - many of them murder, attempt to murder and kidnapping. He has been in jail since 24.6.2015 in connection with these crimes. A preventive detention order dated 5.9.2016 was first passed against the appellant under section 12(2) of the aforesaid Act. A representation against the aforesaid order was also made by the appellant on 12.9.2016, but for want of State Government approval within the time specified under the said Act, the order was rendered ineffective "with effect from today". This was, in fact, stated to be so by an order dated 17.9.2016, which "revoked" the said detention order As this was the case, the present detention order was passed on 21.9.2016. It is not disputed that this order has been passed on the self same grounds as the order dated 5.9.2016 with certain other grounds that have arisen, all of which are prior to 17.9.2016. This order was approved by the Under Secretary to the State Government on 26.9.2016. A representation was made to the District Magistrate dated 28.9.2016 who acts under delegated power under the State Government. This representation was rejected on 6.10.2016 by the under Secretary to the Government of Bihar. On the very date, a second representation was sent, this time to the State Government. This representation has not been adverted to or disposed of by the State Government. On 20.10.2016, the Advisory Board, constituted under Section 18 of the Act, stated that the grounds of detention were made out under the Act, and finally on 25.10.2016, the second order of detention was confirmed by the State Government. A writ petition was filed by the appellant challenging the aforesaid order. By the impugned judgment dated 18.1.2017, it was held that the appellant was a history-sheeter with a long standing record of criminal antecedents and involved in grave offences even though he is acquitted in 18 of 31 cases. There are at least 13 cases including serious offences in which, apart from other cases, he is facing trial. It was further found that this is not a case where the detention order is passed on stale grounds. It was also held that this order was passed "apart from old cases other than cases in the grounds justifying detention" including 3 recent entries which are called "sanhas" entries in different police stations with regard to the appellant's conduct. It was further held that the appellant's representation made to the State Government on 6.10.2016 not having been disposed of can make no difference inasmuch as this representation and the first representation are virtually the same - the first representation had been considered and rejected. The Court held that the first was considered by the District Magistrate who opined that it ought to be rejected, and this was considered by the State Government, which took the same view. It was also held that no mala-fides were involved, and the plea that the appellant was not informed as to the authority to whom he should make the representation, was dismissed by stating that the detention order itself stated that it could be made through the Jail Superintendent. The appellant states that he is an illiterate person who cannot read and write but is advised by well-wishers and lawyers who are well informed, and that since, through his advisors, he has made a representation that was rejected, no prejudice was caused to him. The Division Bench found no infirmity or illegality in the order impugned.
(3.) Mr. U.R. Lalit, learned senior counsel appearing on behalf of the appellant, has argued five points before us. According to him when the first preventive detention order namely, 5th September, 2016 has been "revoked", the second order can only be passed on fresh grounds which arise after the order of revocation, namely after 17.9.2016. Since it is an admitted case that the grounds on which the 21.9.2016 order passed, are all prior to this date, there is a direct infraction of Section 23(2) of the Act, and that therefore this itself would be sufficient to render the said detention order illegal. He raised four other points - that the order does not mention the authority to whom the representation is to be made, and that this would violate both Article 22(5) of the Constitution and Section 17 of the Act. He cited a number of authorities in support of this proposition. He also argued that since the appellant was already in jail for over a year before the preventive detention order was passed, the basic requirements of Section 12(1) of the Act were not met, namely, that the State Government must not only be satisfied, with respect to a person, with a view to prevent such person from acting in any manner prejudicial to the public order, but that it must further be satisfied that there is reason to fear that the activities of anti-social elements cannot be prevented otherwise than by the immediate arrest of such person. According to him, a person already having been arrested does not satisfy the second part of Section 12(1) of the Act, and the order would therefore fail on this ground also. Two other grounds were raised, namely, that the District Magistrate has acted contrary to Section 12(3) of the Act read with Section 21 of the General Clauses Act, 1897 and that the State Government has not at all dealt with the second representation made to it on 6.10.2016, and that this would also be fatal to the impugned order.;