MOHAMMAD RAFIQ,J. - (1.) This habeas corpus petition has been preferred by Ishika, aged six years, Neha, aged four years, and Veer, aged two years, through their mother Manju Devi, praying for issuance of a writ of habeas corpus for release of their father Vishram Gurjar, who has been placed under preventive detention vide order dated 20.09.2016 passed by the Executive Magistrate and Police Commissioner, Jaipur Metropolitan, Jaipur, which has been approved by the Government by order dated 03.11.2016 passed under Section 3(2) of the Rajasthan Prevention of Anti-Social Activities Act, 2006.
(2.) It may be noted at the outset that Vishram Gurjar himself earlier filed D.B. Habeas Corpus Writ Petition No.243/2016, which was dismissed by a coordinate bench of this court vide judgment dated 13.12.2016. The present Hebeas Corpus Petition has been preferred on the basis of judgment of this court dated 31.03.2017 in D.B. Habeas Corpus Writ Petition No.235/2016 - Rajesh Sharma @ Raju Pandit through Rakesh Sharma v. State of Rajasthan and Others. This court, vide aforesaid judgment dated 31.03.2017 in D.B. Habeas Corpus Writ Petition No.235/2016, held that the order of his preventive detention dated 28.09.2016 passed under Section 3(2) of the Rajasthan Prevention of Anti-Social Activities Act, 2006 (for short, 'the PASA Act') is not in conformity with provisions of section 20 of the Code of Criminal Procedure. The order of preventive detention passed in that case was therefore held to have been passed by incompetent authority and therefore quashed and set aside.
(3.) Dr. Mithlesh Kumar, learned counsel for petitioner, submitted that dismissal of earlier Habeas Corpus Petition filed by Vishram Gurjar notwithstanding, the present Habeas Corpus Petition having been filed through children can be maintained under the principle of 'PARENS PATRIAE'. It is imperative for a State by virtue of directive principles as well as the fundamental rights enshrined in the Constitution of India to secure to all its citizens the rights guaranteed by the Constitution and where citizens are not in a position to ascertain these rights, the State comes into picture and protects the rights of such citizens. Reference in this connection is made to Article 38 and 39A of the Constitution. Learned counsel for the petitioners, in support of his argument, has relied on the judgments of the Supreme Court in Charan Lal Sahu etc. v. Union of India and Others - AIR 1990 SC 1480 and Suchita Srivastava and Another v. Chandigarh Admin - (2009) 9 SCC 1. Learned counsel argued that after decision of the earlier Habeas Corpus Petition filed by Vishram Gurjar, the petitioners came across to subsequent judgment rendered by this court dated 31.03.2017 in D.B. Habeas Corpus Writ Petition No.235/2016 - Rajesh Sharma @ Raju Pandit v. State of Rajasthan and Others , where under similar order of preventive detention of the petitioner passed by the Commissioner of Police under Section 32 of the PASA Act, has been declared to be incompetent and unconstitutional and therefore was quashed. Moreover, learned counsel submitted that there have taken place certain developments subsequent to dismissal of earlier Habeas Corpus Petition filed by the petitioner in that the petitioner has been acquitted (i) in criminal case arising out of F.I.R. No.289/21.07.2013, registered with the Police Station Muhana, Jaipur, (ii) in criminal case arising out of F.I.R. No.78/10.03.2012 registered with Police Station Muhana, Jaipur, (iii) in criminal case arising out of F.I.R. No.112/13.04.2012 registered with Police Station Muhana, Jaipur, and (iv) in criminal case no.810/2014 arising out of F.I.R. No.117/2014, Police Station Muhana, Jaipur. In all the above cases, the petitioner has been acquitted vide order dated 25.11.2016, 25.11.2016, 16.01.2017 and 17.04.2017, respectively. Vide judgment dated 17.04.2017 passed by the court of Additional Chief Metropolitan Magistrate No.21, Jaipur Metropolitan, Sanganer, the petitioner has been acquitted of the charge under Sections 147 and 354 I.P.C. by giving him the benefit of doubt whereas he has been acquitted of the charge under Sections 323, 341 and 451 of the I.P.C. on the basis of compromise entered into between the parties. All these events took place after dismissal of the earlier Habeas Corpus Petition vide order dated 13.12.2016 filed by him. Present writ petition therefore can be maintained on the basis of subsequent developments.;