JUDGMENT D.G. Deshpande, J.
1. These two Writ Petitions are challenging the detention order. The arguments were advanced by Mr. Chitnis, Senior Counsel with Mr. Tripathi for the petitioners / detenus, and by Mr. Borulkar, PP, Mr. D.S. Mhaispurkar, APP and Mrs. A.S. Pai, APP for the Respondents - State.
2. So far as Writ Petition No. 987 of 2005 is concerned, the detenu is Mohammed Bilal Hanif Shaikh @ Bilal Bachkana. So far as Writ Petition No. 1597 of 2005 is concerned, the detenu is Uday Mahadev Sawant.
3. Mr. Chitnis made certain legal submissions only for both the matters, and, therefore, we are, dealing with only those legal submissions. For the purpose of the present judgment, we are setting out facts in Writ Petition No. 987 of 2005. The order of detention in this Writ petition is dated 18.1.2005 issued by A. N. Roy, Commissioner of Police, Brihan Mumbai. It is under sub section (2) of Section 3 of The Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders and Dangerous Persons Act, 1981 (hereinafter referred to as "MPDA Act"). The grounds of detention are of the same date i.e. 18.1.2005. In paragraph 4 grounds of detention are mentioned. One C.R. No. 00/04 dated 21.9.2004 under Section 387, 34 of IPC registered at J.J. Marg Police Station is there, along with two in-camera statements referred to in paragraph 4(b)(i) of witness No. 1 and in paragraph 4(b)(ii) of witness No. 2. Detention Authority in paragraph 5 has stated that it was satisfied that the petitioner was a dangerous person as defined in Section 2(b-1) of the MPDA Act, and, therefore the activities were prejudicial to the maintenance of public order, and, therefore, he was required to be detained and detention order was accordingly passed.
4. In Writ Petition No. 1597 of 2005 the detention order is dated 8.4.2005 ( Annexure "A"). Grounds of detention are of the even date (Annexure "B"). Paragraph 5 is the specific paragraph. One C.R. No. 13/05 was registered against the petitioner on 16.1.2005 under Section 384, 387, 504 IPC, and, then there are two in-camera statements. Grounds of detention are mentioned in paragraph 5(b)(i) and 5(b)(ii), on the basis of which detention orders were passed.
5. It was the main contention of Mr. Chitnis that in-camera statements, as such, cannot be used for detention, because according to him, if in-camera statements disclose a cognizable offence, then there is no option to police but to register FIR and investigate the offence. If no offence is registered and no investigation is done, then those in-camera statements, cannot be considered for coming to the conclusion that the petitioner "habitually commits any of the offences punishable under Chapter XVI and XVII of I.P.C." According to Mr. Chitnis, the word "punishable" means "punished" and no punishment is possible unless the offence is registered or FIR is registered. Mr. Chitnis made this submission on the basis of the judgment of the Supreme Court in case of State of Haryana and Ors. v. Bhajan Lal and Ors. reported in 1992 SCC (Cri) 426, and further contended that even though this judgment of Bhajan Lal is considered by the Division Bench of this Court in the case of Sachin Sudhakar Nikam v. A.N. Roy Commissioner of Police and Ors. reported in 2005 All MR (Cri) 1684, the judgment in Sachin Nikam's case is per incurriam, because important paragraphs of the Supreme Court Judgment in Bhajan Lal's case, viz. paragraph Nos. 28, 29, 32, 34 to 39, 41 to 48, 50 to 60, 75, 83 and 95, were not at all considered. According to him the judgment in Sachin Nikam's case is also sub-silentio on this ground. In support of his contention that "punishable" means "punished", he relied upon the judgment of the Supreme Court Sube Singh and Ors. v. State of Haryana and Ors. Mr. Chitnis, therefore, in this background stated that in-camera statements, cannot, in law be considered as offence punishable under Chapter XVI and XVII of IPC for want of registration of FIR, investigation, and filing of police report, and, if in-camera statements are ruled out or not considered, then nothing remains with the police in these two cases to show that the petitioners - detenus were habitual offenders as defined under Section 2(b-1) of MPDA Act. Therefore, according to him, the detention order was liable to be quashed.
6. On the other hand, it was contended by the Prosecutors that this interpretation put forth by Mr. Chitnis of the word "punishable" was not at all proper. Bhajan Lal's case was considered fully by the Division Bench of this Court in Sachin Nikam's case, and, similar submissions of Mr. Chitnis were rejected by the Division Bench, therefore, Mr. Chitnis cannot be permitted to raise those grounds / submissions again and again. The learned Prosecutors contended that the judgment of the Division Bench in Sachin Nikam's case was neither per incurriam nor sub-silentio. In-camera statements could be relied upon even without registering the FIR. Therefore, there was sufficient material with the Detaining Authority to come to the conclusion that the petitioners were habitual offenders in their respective category, and therefore, there was no need or necessity to interfere with the detention order.
7. Sachin Nikam's case was under the MPDA Act. Mr. Chitnis appeared there with Mr. Tripathi for the petitioner. In that case arguments and submissions of Mr. Chitnis have been reproduced in paragraph 3 of the judgment, and the argument was that as per Section 2(b-1) of MPDA Act, a dangerous person is a habitual offender who have repeatedly committed ...offences punishable under Chapter XVI and XVII of the I.P.C., that the detention was based on two in-camera statements, and no offences were registered and a Competent Court has not taken cognizance of any of the offences on the basis of the said in-camera statements. Mr. Chitnis relied upon the judgment of Bhajan Lal's case, and, contended that if the offence disclosed is cognizable offence then the Police Officer has no option but to register FIR. His further submission was that condition precedent for the commencement of investigation under Section 157(1) of the Criminal Procedure Code is the existence of the reason to suspect the commission of a cognizable offence which has to be prima facie disclosed, by the allegations made in the FIR, and, therefore, if the allegations made in two in-camera statements disclosed commission of cognizable offence, it was the duty of the Police Officer to register the case on the basis of such information and registration of a case was a sine-qua-non for the commencement of investigation and if that is not done, then the acts complained of in in-camera statements, cannot be termed as offences.
8. According to Mr. Chitnis, the judgment of Division Bench (Sachin Nikam's case) is per incurriam or sub-silentio, and therefore, not a bar in reconsidering the same arguments, by us. It is therefore necessary to find out what these two terms per incurriam and sub-silentio mean. He relied upon a judgment of the Supreme Court State of U.P. and Anr. v. Synthetic & Chemicals Ltd. and Anr., therein Supreme Court has discussed these two doctrines. Paragraphs 40 and 41 of the Judgment, are as under:
"40. 'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratium. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, "in ignoratium of a statute or other binding authority'. (Young v. Bristol Aeroplane Co. Ltd.). Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey this Court while pointing out the procedure to be followed when conflicting decisions are placed before a bench extracted a passage from Halsbury's Laws of England incorporating one of the exceptions when the decision of an appellate court is not binding.
41. Does this principle extend and apply to Does this principle extend and apply to Does this principle extend and apply to a conclusion of law, which was neither raised nor preceded by any consideration. In other words can such conclusions be considered as declaration of law? Here again the English Courts and jurists have carved out an exception to the rule of precedents. It has been explained as rule of sub-silentio. " A decision passes sub-silentio, in the technical sense that has come to be attached to that phrase, when the particular point out of law involved in the decision is not perceived by the court or present to its mind". (Salmond on Jurisprudence 12th Edn. p. 153). In Lancaster Motor Company (London) Ltd. v. Bremith Ltd. the Court did not feel bound by earlier decision as it was rendered 'without any argument, without reference to the crucial words of the rule and without any citation of the authority'. It was approved by this Court in Municipal Corporation of Delhi v. Gurnam Kaur. The bench held that, 'precedents sub-silentio and without argument are of no moment.' The courts thus have taken recourse to this principle for relieving from injustice perpetrated by unjust precedent. A decision which is not express and is not founded on reasons nor it proceeds on consideration of issue cannot be deemed to be a law declared to have a binding effect as is contemplated by Article 141. Uniformity and consistency are core of judicial discipline. But that which escapes in the judgment without any occasion is not ratio decidendi. In B. Sharma Rao v. Union Territory of Pondicherry it was observed, "it is trite to say that a decision is binding not because of its conclusions but in regard to its ratio and the principles, laid down therein.' Any declaration or conclusion arrived without application of mind or preceded without any reason cannot be deemed to be a declaration of law or authority of a general nature binding as a precedent. Restraint in dissenting or overruling is for sake of stability and uniformity but rigidity beyond reasonable limits is inimical to the growth of law."
In short, the judgment is per in curriam if it is in an ignorance of a statute or Authority and it is sub-silentio when a particular point of law involved in the decision is not perceived by the court or present to its mind.
9. According to Mr. Chitnis, the judgment in Sachin Nikam's case is both per incurriam or sub-silentio. It will have therefore to be seen and tested whether in fact and in reality the Judgment in Sachin Nikam's case is per incurriam or sub-silentio. At this juncture, it is necessary, to give a background of the judgment of the Supreme Court in Bhajan Lal's case. The matter before the Supreme Court was by way of S.L.P. at the instance of State of Haryana and two others assailing the judgment of the Division Bench of the Punjab and Haryana High Court dated 8.9.1988 referred to in Writ Petition No. 9172 of 1987, by which the entire criminal proceedings inclusive of registration of FIR was quashed and respondent No. 2 Dharam Pal was directed to pay costs to the respondent No. 1 Bhajan Lal.
10. Dharam Pal the respondent No. 2 had filed a complaint on 12.11.1987 making serious allegations against Bhajan Lal of accumulation of wealth beyond known source of income. On this complaint which was sent to the Chief Minister, the Officer on Special Duty made an endorsement "C.M. has seen. For appropriate action" and marked the same to the Director General of Police (DGP), who in turn made an endorsement "Please look into this; take necessary action and report" and marked it to the Superintendent of Police (SP) Hissar. S.P. Hissar made an endorsement "Please register a case and investigate." The S.H.O. has registered a case under Sections 161 and 165 of IPC and Section 5(2) of the Prevention of Corruption Act and took up the investigation. In the meantime the Writ Petition No. 9172 of 1987 was filed before the High Court of Punjab and Haryana for quashing the FIR and for stopping the investigation. High Court granted exparte stay, which was made absolute thereafter. Three statements came to be filed in the High Court in that Writ Petition on behalf of the Police and the High Court finally held that:
"It thus appears that the allegation regarding application of mind by the SHO Inspector Tara Chand of Police Station, Sadar, Hissar has been made only because the SP was feeling shallow under his feet...that all was not well with them and both of them were feeling cold under their feet as to who amongst them would take the odium upon himself for having done something which was in fact not done by either of them. Faced against the wall, they felt compelled on July 14, 1988 to put in hotch potch affidavits aforesaid which do not indicate any application of mind by either one of them..."
Finally, the High Court concluded that allegations do not constitute a cognizable offence for commencing the lawful investigation and granted the relief as prayed for with costs of the writ petition. It was this order of the High Court, which was challenged before the Supreme Court.
11. Therefore, from these facts, it is clear that the issue before the Supreme Court was whether the allegations made by Dharam Pal in his complaint against Bhajan Lal revealed any cognizable offence and if so what was the duty and who was bound to register the offence. It is in this background in paragraph 33, the Supreme Court held that:
"It is, therefore, manifestly clear that if any information disclosing a cognizable offence is laid before an officer in charge of a police station satisfying the requirements of Section 154(1) of the Code, the said Police Officer has no other option except to enter the substance thereof in the prescribed form; that is to say, to register a case on the basis of such information."
12. In paragraph 61 the Supreme Court has observed:
"Heretofore, we have dealt with the intendment of the various statutory provisions relating to the registration of the first information report, the statutory duty cast on the police officers to investigate the cognizable offence, such authority of the police officers in the field of investigation and the circumscribed limits imposed on such authority in the conduct of investigation."
In the subsequent paragraphs from paragraph 64 onwards the allegations made by Dharam Pal in his complaint have been considered by the Supreme Court. Then in paragraph 95 after quoting case of State of W.B. v. Swapan Kumar Guha, wherein it is stated that "if the FIR does not disclose the commission of a cognizable offence, the court would be justified in quashing the investigation on the basis of the information as laid or received." Thereafter, a paragraph from the same judgment is quoted by the Supreme Court that "if an offence is disclosed, the court would not normally interfere with an investigation into the case etc". Thereafter in paragraph 102 the Supreme Court has after interpreting various relevant provisions of the Code under Chapter XIV and the principles of law enunciated by the Supreme Court in the series of decisions relating to the exercise of extraordinary power, categorisation of powers was made. Ultimately the judgment of the Punjab and Haryana High Court was set aside.
13. From the aforesaid facts of Bhajan Lal's case, and, the law laid down therein, it will be clear that the law laid down was totally in different context. No provision of any of the detention laws were under challenge before the Supreme Court nor was directly or indirectly or even remotely concerned. The position of in-camera statements as is there, in the present cases, was not at all before the Supreme Court for consideration. However, this judgment was heavily relied upon by Mr. Chitnis before the Division Bench in Sachin Nikam's case, and, his contention is that the judgment of Sachin Nikam's case is per incurriam or is effected by the doctrine of sub-silentio only because certain paragraphs of the judgment of Bhajan Lal, as noted by us, were not considered by the Division Bench.
14. We are not at all in agreement with the submissions of Mr. Chitnis. The Division Bench in Sachin Nikam's case has in fact considered all the submissions made by Mr. Chitnis before them, which have been reproduced above. They have considered the judgment in the case of Bhajan Lal. In fact, it can be said that the judgment of Bhajan Lal was considered in all aspects but the Division Bench did not agree with the submissions of Mr. Chitnis because the facts in Bhajan Lal's case, and, the background in which the Supreme Court gave its decision regarding the obligation of the Police to register FIR, were totally different. The position of in-camera statement in a detention matter, is an altogether different, i.e. it is regarding the information given to the police regarding cognizable offences. Therefore, Judgment of the Division Bench in Sachin Nikam's case, cannot be said to be per incurriam nor can it be said that it is effected by the doctrine of sub-silentio. "A decision passes sub silentio, in the technical sense that has came to be attached to that phrase, when the particular point of law involved in the decision is not perceived by the court or present to its mind." The point involved in Bhajan Lal's case was definitely perceived by the Division Bench in Sachin Nikam's case. The point was altogether, and, totally different, basically and fundamentally different in Bhajan Lal's case and Sachin Nikam's case which was a case under the detention laws, where in-camera statements and their effect was to be considered.
15. Obviously, Mr. Chitnis in support of his contention has relied upon the judgment of the Supreme Court in Bhajan Lal's case, as a precedent. Whether this precedent has any bearing or whether not, or whether it should be made applicable or not, also depends upon the exposition of law relating to the precedent by the Supreme Court. The basic principal in this regard is a decision is an Authority for the questions of law determined by it. But the court decides the question of law in the facts of a particular case. It is the test, that is, the fact that gives rise to a decision of or interpretation of law, and, therefore, while considering the judgment as a precedent, it has to be seen in what context the same was given or delivered. This position of law regarding precedent is not unknown to Mr. Chitnis, particularly, when, he made submissions regarding the judgment of Sachin Nikam's case as per incurriam or sub silentio. We, may reproduce the observations of the Supreme Court in paragraphs 275, 276, 277, 278, in the judgment reported in 2005 AIR SCW 2985 Zee Tele Films Ltd. and another v. Union of India and Ors.
"275. Are we bound hands and feet by Pradeep Kumar Biswas (supra)? The answer to the question must be found in the law of precedent. A decision, it is trite, should not be read as a statute. A decision is an authority for the questions of law determined by it. Such a question is determined having regard to the fact situation obtaining therein. While applying the ratio, the court may not pick out a word or a sentence from the judgment divorced from the context in which the said question arose for consideration. A judgment, as is well known, must be read in its entirety and the observations made therein should receive consideration in the light of the questions raised before it [See Punjab National Bank v. R.L. Vaid and Ors., .
276. Although, decisions are galore on this point, we may refer to a recent one in State of Gujarat and Ors. v. Akhil Gujrat Pravasi V.S. Mahamandal and Ors. wherein this Court held:
"....It is trite that any observations made during the course of reasoning in a judgment should not be read divorced from the context in which they were used."
277. It is further well-settled that a decision is not an authority for the proposition which did not fall for its consideration.
278. It is also a trite law that a point not raised before a Court would not be an authority on the said question."
In the last paragraph, the Supreme Court has stated that a point not raised before a court would not be an authority on the said question. Therefore, Bhajan Lal's case is an authority on the point of in-camera statements. The observations made by the Supreme Court about FIR, are not applicable, in these case.
16. When on the face of it, the judgment of Bhajan Lal, is not applicable in these cases then it was not applicable in Sachin Nikam's case but even then the Division Bench totally, properly and fully considered the objections and submissions of Mr. Chitnis and disagreed with him. It was not necessary for the Division Bench in Sachin Nikam's case to quote or refer to each and every paragraph of the Bhajan Lal's case.
17. Therefore, the net result of these findings and conclusions arrived, by us, will be that the submissions made by Mr. Chitnis before us, regarding in-camera statements, cannot be accepted nor they are required to be even considered again because they were considered and rejected by the Division Bench in Sachin Nikam's case. When a particular submission was made fully and extensively, and, was considered by the court in earlier decisions directly and extensively, then the same cannot be permitted to be made again and again. That is not permitted at all.
18. Therefore, all the submissions about the obligation of the Police Officers to register FIR on the basis of in-camera statements, failure in doing so, resulting in rendering the in-camera statements useless, are required to be turned down and rejected at the thresholds. Similar arguments of Mr. Chitnis regarding the interpretation of the word "punishable" and "punished" which is part and parcel of the earlier submissions, has to be rejected. But while doing so, we, may add that the very object of using the in-camera statements in detention matters, is to give protection to the persons who are aggrieved by the illegal activities of the detenus. It is only because the people do not want to come forward and make report in usual manner against a dangerous person or against the person whose activities are causing threat or apprehension to the public at large, that in-camera statements are permitted to be used in the detention matters. If the people do gather courage and make report of every illegal activity of such persons, then, in that eventuality in-camera statements, may not be necessary. But till the threat perception is there, and, which is bound to be there, depending upon the dangerous activities of such persons, like the petitioners, then, in-camera statements will have to be considered. The obligation upon the police to register the offence, if they receive information of cognizable offence, cannot be pressed into service so far as detention matters are concerned. The ratio in Bhajan Lal's case, has no application because this aspect of detention, the circumstances in which the in-camera statements are to be recorded or are recorded, was not at all before the Supreme Court while deciding the case of Bhajan Lal.
19. Mr. Chitnis tried to distinguish the words "punishable" and "punished" and contended that illegal acts do not become punishable unless FIR is registered and offence is investigated and charge sheet is filed. We do not find any merit in this submission only because these matters are of detention where in-camera statements by virtue of precedents of the Supreme Court and the various High Courts have been accepted as a piece of evidence or material or circumstances to be used against the detenu for his detention. The word "punishable" has to be interpreted with reference to the activities of the detenu and it has to be seen whether those illegal activities are punishable according to law or not. So far as detention matters are concerned, the word "punishable" cannot be equated with "punished".
20. According to Mr. Chitnis, in-camera statements, cannot, in law, be considered as offences punishable under Chapter XVI and XVII of IPC for want of registration of FIR, investigation and filing of police report. If this interpretation of Mr. Chitnis, is accepted, then the entire detention law will have to be rendered useless. The word "offence" has been defined in Section 40 of IPC as under:
"Offence.-Except in the Chapters and sections mentioned in clauses 2 and 3 of this section, the word "offence" denotes a thing made punishable by this Code."
In Chapter IV, Chapter V-A and in the following sections, namely, Sections 64, 65, 66, 67, 71, 109, 110, 112, 114, 115, 116, 117, 187, 194, 195, 203, 211, 213, 214, 221, 222, 223, 224, 225, 327, 328, 329, 330, 331, 347, 348, 388, 389 and 445, the word "offence" denotes a thing punishable under this Code, or under any special or local law as hereinafter defined. And in Sections 141, 176, 177, 201, 202, 212, 216 and 441, the word "offence" has the same meaning when the thing punishable under the special or local law is punishable under such law with imprisonment for a term of six months or upwards, whether with or without fine."
Everywhere the word is "punishable by this Code" i.e if the offence is brought to the notice of the court, if it is proved, then the question of punishment will arise. The purpose of recording in-camera statement is to show to the Detaining Authorities that the acts complained of, falling in Chapter XVI and XVII of the IPC, of the detenu are punishable under the Code and nothing more. If "punishable" is to be interpreted with reference to the detention matters as "punished", then even the offence registered cannot be used against the detenu, till the detenu is made to face the trial and convicted or punished. Such an interpretation is most unnatural, and, if accepted it will frustrate the entire detention law.
21. Since the submissions made by Mr. Chitnis were already rejected by the Division Bench of this Court in Sachin Nikam's case, as stated above, we are not required to consider them again. Even otherwise for the reasons stated above, and relying upon the judgment of Division Bench of this Court in Sachin Nikam's case, we hereby reject them, and make it clear that Sachin Nikam's judgment is not per incurriam nor is effected by the doctrine of sub-silentio. Therefore, both these arguments of Mr. Chitnis, are required to be rejected, and they are hereby rejected.
22. The learned Prosecutors, in this regard, relied upon the judgment of the Supreme Court Smt. Phulwari Jagdambaprasad Pathak v. Shri R.H. Mendonca and Ors., and our attention was drawn to paragraph 16, which is as under:
"Then comes the crucial question whether 'in-camera' statements of persons/ witnesses can be utilised for the purpose of arriving at subjective satisfaction of the detaining authority for passing the order of detention. Our attention has not been drawn to any provision of the Act which expressly or impliedly lays down the type of material which can form the basis of a detention order under Section 3 of the Act. Preventive detention measure is harsh, but it becomes necessary in larger interest of society. It is in the nature of a precautionary measure taken for preservation of public order. The power is to be used with caution and circumspection. For the purpose of exercise of the power it is not necessary to prove to the hilt that the person concerned had committed any of the offences as stated in the Act. It is sufficient if from the material available on record the detaining authority could reasonably feel satisfied about the necessity for detention of the person concerned in order to prevent him from indulging in activities prejudicial to the maintenance of public order. In the absence of any provision specifying the type of material which may or may not be taken into consideration by the detaining authority and keeping in view the purpose the statute is intended to achieve the power vested in the detaining authority should not be unduly restricted. It is neither possible nor advisable to catalogue the types of materials which can form the basis of a detention order under the Act. That will depend on the facts and situation of a case. Presumably, that is why the Parliament did not make any provision in the Act in that regard and left the matter to the discretion of the detaining authority. However, the facts stated in the materials relied upon should be true and should have a reasonable nexus with the purpose for which the order is passed."
This Authority of the Supreme Court, supports, our view that in-camera statements have been accepted, as a piece of strong circumstance.
23. Therefore, for all the aforesaid reasons, we pass the following order:
ORDER Both the Writ Petitions are dismissed.