Nishar Hassan @ Nishu vs The State of Jharkhand

Per Sujit Narayan Prasad, J.

The present amended writ petition has been filed under Article 226 of the Constitution of India for the following reliefs:

The factual aspect which has been pleaded in the writ petition are as follows:

I.Bodam P.S Case No.39/2024 registered under sections 109(1), 3(5), 61(2) of B.N.S and 27 of the Arms Act; II.Mango P.S Case No.33/2024 registered under sections 302/120B, 34 IPC and u/s 27 of the Arms Act; III.Mango P.S Case No.247/2023 registered under sections 302/120B, 34 IPC and u/s 27 of the Arms Act; IV.Bishtupur P.S Case No.57/2022, registered under sections 387 and 506 IPC; V.Bishtupur P.S Case No..99 of 2022, registered under sections 25(1-B),26 of Arms Act; and VI.Sonari P.S Case No.220/2021 registered under sections 307, 34, 120B IPC and section 3/4 of Explosives Substance Act.

Being aggrieved with the aforesaid orders of detention, its confirmation and order of extension of the said detention, the present writ petition has been preferred.

Mr. Pran Pranay, the learned counsel appearing for the petitioner has taken the following grounds in assailing the impugned order:

It has been contended that the petitioner was produced before the Advisory Board on after a lapse of 21 days, i.e ,17.11.2025 which again is de-hors the provision of law under the Jharkhand Control of Crimes Act, 2002 which clearly mandates that the exercise be done within a period of 21 days (3) weeks).

The learned counsel appearing for the petitioner, based upon the aforesaid grounds, has submitted that the impugned orders dated 07.10.2025, 19.12.2025 and 19.03.2026 as well as the order confirming the same dated 15.10.2025, 24.12.2025 and 26.03.2026 are liable to be quashed and set aside, therefore, needs interference by this Court.

Per contra, Indranil Bhaduri, the learned State counsel appearing for the respondent-State to defend the impugned order has raised the following grounds:

The learned State counsel, based upon the aforesaid grounds, has submitted that the impugned orders, thus, need no interference and the present writ petition is fit to be dismissed.

We have heard the learned counsel appearing for the parties and gone through the pleadings made in the writ petition along with the relevant documents annexed therewith.

In the backdrop of the aforesaid factual aspect the following issues require consideration herein:

Whether grant of bail to the detenue/petitioner in the cases lodged against him is ground for his release from the preventive detention passed under 12(2) of the Jharkhand Control of Crimes Act, 2002?

The issue no. (i) is whether the criminal activities of petitioner come under the purview of definition of “Anti-social Elements’’ as defined under section 2(d) of the Jharkhand Control of Crimes Act, 2002?

But, before considering the first issue, the statutory provision as contained under the Jharkhand Control of Crimes Act,2002 needs to be referred herein.

The relevant provisions which require consideration herein are Section 2(d) and Section 12 of the Jharkhand Control of Crimes, 2002, (referred herein as Act of 2002).

“Anti-social Element” has been defined in section 2(d) of the Act of 2002, which reads hereunder as: -

From perusal of Section 2(d) of the Act of 2002, it is evident that "anti-social element" is a person who habitually commits or abets offenses listed in Chapters XVI or XVII of the Indian Penal Code, or certain other specific crimes. It needs to refer herein that this definition requires a pattern of behaviour, not isolated incidents, and aims to identify individuals whose acts cause alarm or terror among the public, warranting preventive detention to maintain public order.

It requires to refer herein that the Act of 2002 was meant to make special provisions for the control and suppression of anti-social elements with a view to maintenance of public order. It also needs to refer herein that the “Law and Order” problems typically affect only individuals or small groups, whereas “public order” disruptions affect the community’s normal functioning on a broader scale often generating fear or anxiety among the general public.

It is pertinent to mention herein that the primary element with respect to Section 2(d)(i) of the Act of 2002 seems to be the word "habitual". It would thus mean that a person who is frequently engaged in committing or attempting or abating commission of an offence in terms of Chapter XVI or Chapter XVII of the Indian Penal Code would be an anti-social element. In this context, we may refer to the case of Vijay Narayan Singh Vs. State of Bihar reported in (1984) 3 SCC 14 wherein the word "habitually" has been sought to be enumerated in the following manner:

Thus, from the aforesaid, it is evident that if a person is not an antisocial element, he cannot be detained under the Act of 2002. The detaining authority should, therefore, be satisfied that the person against whom an order is passed under Section 12 of the Act of o2022 is an anti-social element as defined in Section 2(d) of the Act. Under sub-clause (i) of Section 2(d) of the Act, a person who either by himself or as a member of or leader of a gang habitually commits or attempts to commit or abets the commission of offences punishable under Chapter XVI dealing with offences affecting the human body or Chapter XVII dealing with offences against property, of the Penal Code, 1860 is considered to be an anti-social element. Further the expression "habitually" means "repeatedly" or "persistently". It implies a thread of continuity stringing together similar repetitive acts. Repeated, persistent and similar, but not isolated, individual and dissimilar acts are necessary to justify an inference of habit.

It requires to refer herein that Section 12 of the Act of 2002 contains the word “anti-social” which qualifies the section 12 of Act 2002 for passing the order of detention of any individual or others. Section 12 of the Act is the initiation of the process of detaining a person under the Act, for ready reference the same is being quoted herein, which reads as under-

Thus, from the perusal of Section 12 of the Act of 2002, it is evident that power to make orders detaining certain persons are provided in section 12 of the Jharkhand Control of Crimes Act, 2002. Section 12(1) provides that if State Government is 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 cannot be prevented otherwise than by the immediate arrest of such person, make an order directing that such anti-social element be detained.

Hence, section 12(1) of the Act empowers the State Government to detain anti-social element if there is reason to fear that the activities of anti-social elements cannot be prevented otherwise than by the immediate arrest of such person. The anti-social element has been defined in Section 2(d) of the Jharkhand Control of Crimes Act, 2002 and section 2(d)(i) of the Act provides that "Anti-social Element" means a person who either by himself or as a member of or leader of gang habitually commits, or attempts to commit or abets the commission of offences punishable under Chapter XVI or Chapter XVII of the Indian Penal Code.

In the backdrop of the aforesaid settled position of law this Court is now, dealing with the first issue whether the criminal activities of petitioner come under the purview of definition of “Anti-social Elements’’ as defined under section 2(d) of the Jharkhand Control of Crimes Act, 2002.

On going through the impugned detention order dated 07.10.2025 (Annexure-2), this Court finds that six criminal cases and ten cases of sanhas are registered in different police stations against the detenue/petitioner as mentioned in the impugned detention order passed by the respondent no.3 District Magistrate-cum- Deputy Commissioner, East Singhbhum, Jamshedpur, on the recommendations made by the Senior Superintendent of Police, East Singhbhum, Jamshedpur vide letter no.1294 dated 26.09.2025 ( Anexure-1 series).

This Court finds from the impugned initial detention order dated 07.10.2025 (Annexure-2) that the following FIRs and sanhas have been registered against the detenue/petitioner in different police stations:

Hence, from the FIRs and sanhas mentioned in the impugned detention order dated 07.10.2025 (Annexure-2), this Court finds that six FIRs were registered against the detenue/petitioner in addition to 10 sanhas in different police stations in the district of Jamshedpur.

But, on perusal of the six pending cases registered against the detenue/petitioner, as mentioned in the impugned detention order dated 07.10.2025 (Annexure-2), it is apparent that the crime committed by the detenue/petitioner ranges to murder, attempt to murder, extortion etc. and cases under Arms Act and Explosives Substance Act have been registered against the petitioner.

Hence, this Court is of the view that detenue/petitioner is a habitual offender. Detenue/petitioner habitually commits offences punishable under section Chapter XVI or Chapter XVII of the Indian Penal Code as defined in section 2(d)(i) of the Act.

Further, the detaining authority respondent no.3, while passing the impugned detention order 07.10.2025 (Annexure-2), under section 12(2) of the Act of 2002, was satisfied that the detention of the petitioner was necessary as continuous criminal activities of the petitioner was causing threat to maintenance of public order.

This Court, on consideration of the aforesaid factual aspect, is of the view that the authority concerned has rightly considered that the act of the detenue/petitioner comes under the purview of the “Anti-social Elements’’ as stipulated under Section 2(d) of the Jharkhand Control of Crimes Act, 2002. This Court, therefore, is of the view that the orders of detention on this score need no interference.

Accordingly issue no. (i) is hereby answered.

Regarding this issue, i.e., whether in the facts and circumstances of the present case, can it be said that the authorities have got the subjective satisfaction while passing the order of detention?

Learned counsel for the detenue/petitioner has submitted that out of the six FIR registered against the petitioner, petitioner has been enlarged on bail in all cases. But these materials were not placed before the detaining authority and, hence, it cannot be said that detaining authority had subjective satisfaction before passing the impugned detention order.

Before, proceeding further, it would be pertinent to mention the case of Ameena Begum v. State of Telangana, (2023) 9 SCC 587, wherein Hon’ble Apex Court has laid down certain principles to be observed by the Constitutional Court while examining the legality of orders of preventive detention. Paragraph-28 of this judgment is quoted herein below-

Hence, the Hon’ble Apex Court in case of Ameena Begum v. State of Telangana (supra), on the issue of subjective satisfaction of the detaining authority has laid down that the order based on the requisite satisfaction, albeit subjective, of the detaining authority, for, the absence of such satisfaction as to the existence of a matter of fact or law, upon which validity of the exercise of the power is predicated, would be the sine qua non for the exercise of the power not being satisfied. Hon’ble Apex Court further laid down that the Court may examine that the satisfaction has been arrived at bearing in mind existence of a live and proximate link between the past conduct of a person and the imperative need to detain or is based on material which is stale.

In the present case, ongoing to the impugned detention orders, passed by the detaining authority Respondent No. 3 vide Memo No. 622(A) dated 07.10.2025 (Annexure-2), the sequence of criminal cases registered against the detenue are as follows:

Bodam P.S Case No.39/2024 dated 07.12.2024, registered under sections 109(1), 3(5), 61(2) of B.N.S and 27 of the Arms Act;

Mango P.S Case No.33/2024 dated 03.02.2024 registered under sections 302/120B, 34 IPC and u/s 27 of the Arms Act;

Mango P.S Case No.247/2023 dated 27.08.2023 registered under sections 302/120B, 34 IPC and u/s 27 of the Arms Act;

Bishtupur P.S Case No.57/2022, dated 17.03.2022 registered under sections 387 and 506 IPC,

Bishtupur P.S Case No..99 of 2022, dated 09.05.2022, registered under sections 25(1-B) A/26 of Arms Act; and

Sonari P.S Case No.220/2021 dated 23.12.2021 registered under sections 307, 34, 120B IPC and section 3/4 of Explosives Substance Act.

In the present case, it is not in dispute that in the aforesaid criminal cases registered against the detenue/petitioner in different police station of district of East Singhbhum, he has been enlarged on bail but it is also not in dispute that in all the aforesaid criminal cases the trial is going on.

On going through the impugned detention order, passed by the detaining authority Respondent No. 3 vide Memo No. 622(A) dated 07.10.2025 (Annexure-2), this Court finds that while passing the impugned detention order, the detaining authority respondent no.3 had considered the proposal of respondent no.4-Senior Superintendent of Police, East Singhbhum, which was sent to the detaining authority Respondent No. 3 vide memo no. 1294 dated 26.09.2025 (Annexure-1 series).

In the impugned detention order, the detaining authority respondent no.3 had taken note of the proposal of the Senior Superintendent of Police, East Singhbhum, that the detenue/petitioner is an antisocial notorious criminal, allegedly involved in offences of extortion, murder, kidnapping and offences involving Arms Act and detenue had been to jail for several times and out of fear nobody comes forward to depose against him in the Court, during the trial. The detenue/ petitioner is in jail and from jail, he was preparing notorious gang and for this petitioner was recruiting new boys and from jail, with aid of his henchman, he was extorting money from businessman and builder of the area and there was an atmosphere of fear among the public.

It has also been brought on record by the authorities that Bodam P.S Case No.39/2024 dated 07.12.2024, registered under sections 109(1), 3(5), 61(2) of B.N.S and 27 of the Arms Act, was orchestrated by the detenue/petitioner from aboard, consequently, the Ministry of Home Affairs, Government of India, cancelled his Visa and issued a Look Out Circular. He was subsequently arrested at Indira Gandhi International Airport, New Delhi, on 20.05. 2025, and sent to jail.

Further, this Court has gone through ten Sanhas registered against the detenue/petitioner mentioned in the impugned detention order and finds that the respondent-authority has also taken into consideration the fact that after receiving news of his release from jail, atmosphere of fear and resentment has been created among the businessmen and contractors of the area, giving rise to a likelihood of disturbance of law and order and public order.

Hence, releasing on bail of the detenue/petitioner in six criminal cases registered against him, does not dilute the crimes committed by the detenue/petitioner and hence, it cannot be said that detaining authority had no subjective satisfaction, while passing the impugned detention order.

In the present case, the factual aspect as has been dealt with hereinabove while deciding the issue, this Court is of view that the detaining authority has taken into consideration the fact in entirety which shows the subjective satisfaction based upon the document as found to be available with the recommending authority which has been accepted by the detaining authority.

In the present case, the authority concerned while passing the impugned detention order which was passed on 07.10.2025(Annexure-2) has taken into consideration the entire history of accusation against the petitioner and only thereafter has passed the order of detention.

Hence, the satisfaction has been arrived by the detaining authority bearing in mind existence of live and proximate link between the past conduct of the detenue/petitioner and material which is not stale and is in consonance of the judgment rendered by the Hon’ble Apex Court in the case of Ameena Begum v. State of Telangana and others(supra).

Accordingly issue no. (ii) is hereby answered.

Regarding this issue, i.e., whether grant of bail to the detenue/petitioner in the criminal cases registered against him is ground for his release from the prevention detention passed under 12(2) of the Jharkhand Control of Crimes Act, 2002?

Learned counsel for the petitioner has submitted that detenue/petitioner has been enlarged on bail in all the criminal cases lodged against him and the said cases were relied by the detaining authority while passing the impugned order of detention dated 07.10.2025 (Annexure-2) and hence, detention order cannot be sustained.

This Court finds that in the impugned detention order dated 07.10.2025 (Annexure-2), there is reference of six criminal cases registered against the detenue/petitioner and ten numbers of sanahas.

In the aforesaid context, ongoing through the writ petition, this Court finds that out of six criminal cases registered against detenue/petitioner, he has been enlarged on bail in all the aforesaid cases and the cases are pending for trial.

Hence, so far as enlargement on bail of the detenue/petitioner in pending criminal cases registered against him is concerned, this Court finds that it is the subjective satisfaction of the Detaining Authority that in spite of his continuous activities causing threat to maintenance of public order and in such circumstances, based on the relevant materials and satisfying itself, that it would not be possible to control his habituality in continuing the criminal activities by resorting the normal procedures, the Detaining Authority had passed an order detaining him under the Jharkhand Control of Crimes Act, 2002.

Further, enlargement on bail of the detenue/petitioner, cannot be said to affect the decision taken by the competent authority of detention, rather the accusation so made in the First Information Report is to be seen for the purpose to have the subjective satisfaction of the nature of accusation made in the said FIR. Since the detention order is to be passed by the competent authority anticipating the criminality of the concerned and it would be evident from the accusation made in the impugned detention order dated 07.10.2025 (Annexure-2), passed by the Respondent No.3-Deputy Commissioner-cum-District Magistrate, East Singhbhum,

The consideration of coming from judicial custody by virtue of order passed by the Court to release on bail has been taken into consideration by the Hon'ble Apex Court in D.M Nagaraja Versus Government of Karnataka and others reported in (2011) 10 SCC 215 wherein the detenue had challenged his detention order. The Hon'ble Apex Court in that case had noted in paragraph-17 that the even after release on bail the detenue again started indulging in the same type of offences, particularly, threatening the public life, damaging public property, etc. and hence, the detenue’s appeal was dismissed. Further in paragraph-20 of the aforesaid judgment the Hon'ble Apex Court had noted the subjective satisfaction of the detaining authority in passing the detention order against the detenue, for ready reference Paragraph-17 and 20 of D.M Nagaraja Versus Government of Karnataka and others (supra) case is quoted herein below -

In the present case, from the impugned detention order dated 07.10.2025 (Annexure-2), it is apparent that crime committed by the detenue/petitioner ranges to murder, attempt to murder, extortion, and offences under Arms Act and Explosive Substance Act have also been registered against the petitioner. In addition to that, it has been reported that the petitioner orchestrated the incident of firing and other criminal activities while residing abroad; consequently, the Ministry of Home Affairs, Government of India, cancelled his Visa and issued a Look Out Circular. He was subsequently arrested at Indira Gandhi International Airport, New Delhi, on 20.05.2025, and sent to jail.

The detenue/petitioner has also provided tabular chart in his writ petition, wherein detenue/ petitioner has shown a list of criminal cases registered against him and on perusal, it appears that six cases are still pending against him and all the six cases were registered against the detenue/petitioner in the year 2021,2022,2023 and 2024, one after another, but, the detenue/ petitioner did not remorse his criminality.

Even, from the recommendation of the respondent no. 4-Senior Superintendent of Police, East Singhbhum, and various Sanahas registered against the detenue/petitioner, it is apparent that the detenue/petitioner while confined in jail has made an organized gang and uses his henchmen to commit extortion of money from businessmen, contractor in the area of Jamshedpur and out of fear nobody comes forward to register cases against the detenue/petitioner.

The authority concerned while passing the impugned detention order on 07.10.2025 (Annexure-2), has taken into consideration the entire history of accusation against the petitioner and only thereafter has passed the order of detention.

Thus, from the impugned detention order dated 07.10.2025 (Annexure-2), it is evident that the detenue/petitioner is habitually involved in offences which ranges from attempt to murder, extortion, offences of organized crime etc. and several cases under Arms Act and Explosives Substance Act have also been registered against the detenue/petitioner and further on the basis of subjective satisfaction, the detaining authority has arrived to conclusion that the well-organized manner in which such pre-judicial activities have been carried on and nexus between dates of incidents and passing of the detention order and the said observation is according to the ratio laid down by the Hon’ble Apex Court in the case of D.M Nagaraja Versus Government of Karnataka and others(supra) therefore, the said observation of the detaining authority cannot be said to suffer from an error.

Accordingly, Issue No.(iii) is hereby answered.

Learned counsel for the detenue/petitioner has also taken the point that the authorities concerned did not inform him the grounds of detention as such the vital right has been denied to him.

In order to verify the aforesaid contention, this Court has gone through the impugned detention order wherefrom it is evident that the impugned order contained in Memo No. 622(A) dated 07.10.2025 (Annexure-2) the copy of the detention order has been served to the detenue/ petitioner as finds mention in the last page of the impugned order of detention and the petitioner in his writ petition has also admitted that he was handed over the copy of the order passed by the District Magistrate( i.e. the detaining authority).

Further, ongoing through the writ petition, this Court finds that the detenue/petitioner in his pleading has not pleaded any specific material facts as to not communicating the ground of detention to him, rather it has been said that the petitioner tried to send a representation to the Detaining Authority but the same was refused by the Jail Authorities and it was communicated to him that the same would not be forwarded. But in this regard, the petitioner has failed to produce any documentary evidence which was communicated to him by the concerned Jail Authority.

Hence, this Court is of view that the detenue/petitioner has failed to prove, by any cogent evidence, that he was not communicated the ground of detention and only bald allegation has been levelled against the authorities concerned.

This Court, on the basis of the discussion made hereinabove, is of the view that the orders of detention need no interference.

Accordingly, the detention order dated 07.10.2025 (Annexure-2) which was extended time to time vide order dated 19.12.2025 (Annexure-3), order dated 19.03.2026 (Annexure-4) and order dated 25.06.2026 (Annexure-5) passed by the respondent no.3 and the order dated 15.10.2025 (Annexure-6) confirming the detention order dated 07.10.2025 (Annexure-2), order dated 24.12.2025 (Annexure-7) confirming the extension order dated 19.12.2025(Annexure-3), order dated 26.03.2026 (Annexure-8) confirming the extension order dated 19.03.2026 (Annexure-4) and order dated 02.07.2026 (Annexure-9) confirming the extension order dated 25.06.2026 (Annexure-5) passed by the respondent no.2-Additional Secretary, Department of Home, Prison and Disaster Management, Government of Jharkhand, requires no interference by this Court.

Consequent thereto, the instant writ petition stands dismissed.

Pending I.As, if any, stands disposed of.