1 judgment 733.16.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
Criminal Writ Petition No.733 of 2016
Santosh s/o Bhimrao Mohokar,
aged about 32 years,
R/o.-Pariharpura, Wadali, Amravati
(Presently at Central Prison, Amravati). .... Petitioner.
Versus
1] The State of Maharashtra,
through its Secretary,
Home Department, Mantralaya, Mumbai-32.
2] The Commissioner of Police, Nagpur.
3] The Superintendent,
Central Prison, Amravati. .... Respondents.
Shri R.M. Daga, Advocate for petitioner.
Shri A.D. Sonak, APP for respondents.
Coram : B.P. Dharmadhikari &
Kum. Indira Jain, JJ.
th Dated : 14 December, 2016.
ORAL JUDGMENT [Per B.P. Dharmadhikari, J.) ::: Uploaded on - 19/12/2016 ::: Downloaded on - 21/12/2016 00:12:39 ::: 2 judgment 733.16.odt Rule. Rule made returnable forthwith. Heard finally with the consent of the learned Advocates for the parties.
2] The order of detention dated 28-06-2016 passed by the Detaining Authority i.e. respondent no.2 and its confirmation by respondent no.1 on 08-08-2016 is assailed in this petition under Article 226 of the Constitution of India by the detenu on the short ground of non-application of mind.
3] Learned Advocate Shri Daga for the petitioner submits that though the order of detention is passed by taking support of four in-camera statements, those statements are not perused by respondent no.2 and there is nothing on record to show that the Detaining Authority applied its mind to the contents thereof. He argues that though the several offences are mentioned in the impugned order of detention, in 2016, there are only two offences ::: Uploaded on - 19/12/2016 ::: Downloaded on - 21/12/2016 00:12:39 ::: 3 judgment 733.16.odt registered at Frezarpura Police Station, District Amravati viz; Crime No.75 of 2016 which is allegedly dated 01-02-2016 while Crime No.218 of 2016 is dated 22-03-2016. As these two crimes were not found sufficient, four in-camera statements of the witnesses A to D are recorded on 05-05-2016 and 06-05-2016.
The proposal has been prepared on the basis of all the offences and on these in-camera statements and processed further.
Though the Assistant Commissioner of Police mentions that he has verified those statements by putting his endorsement dated 13-05-2016, the respondent no.2 has neither talked with any of these witnesses nor with the Senior Police Inspector who has recorded the same and there is no record of any consultation between the Assistant Commissioner of Police and respondent no.2. He, therefore, relies upon the judgment in Criminal Writ Petition No.171 of 2016 (Salman Khan @ Baba son of Haroon Khan Pathan vrs The State of Maharashtra, through its Secretary, ::: Uploaded on - 19/12/2016 ::: Downloaded on - 21/12/2016 00:12:39 ::: 4 judgment 733.16.odt Home Department, Mantralaya, Mumbai and others) dated 22-08-2016 and judgment in the case of Sau. Chandabai w/o Dadarao Kale vrs State of Maharashtra and others reported at 2016 All MR (Cri) 4797. He states that as the non-application of mind is manifest, the order of detention cannot be sustained.
4] The learned Additional Public Prosecutor has relied upon the reply-affidavit as also the impugned order. He submits that the decision to initiate the proceedings was taken after looking into all the offences and accordingly, the proposal was put up. The proposal has travelled through different officers. The Detaining Authority after going through the record passed the order of detention on 28-06-2016. The learned Additional Public Prosecutor submits that the grounds mentioned in the detention order apply to the petitioner. All these facts are specifically narrated and subjective satisfaction is recorded in paragraph 10 where the Detaining ::: Uploaded on - 19/12/2016 ::: Downloaded on - 21/12/2016 00:12:39 ::: 5 judgment 733.16.odt Authority expressly records that he has gone through all the materials on record. He points out that four in-camera statements formed the part of record and as such the respondent no.2-
Authority has perused those statements. In this situation, the order of detention is just and proper. He further adds that, even if, four in-camera statements are ignored, the earlier history coupled with two offences of recent origin constitutes the sufficient material to support the subjective satisfaction recorded therein. He, therefore, prays for dismissal of the Criminal Writ Petition.
5] The perusal of grounds mentioned in the order of detention reveals that there are total nine offences under the Maharashtra Police Act [Bom. Act No.XXII of 1951], and last of the offence in such category is at serial no.7 and it is dated 07.09.2015. Thereafter, Crime No.75 of 2016 is mentioned at serial no.8 which is dated 01-02-2016 and last crime which is mentioned at serial no.9 is Crime No. 218 of ::: Uploaded on - 19/12/2016 ::: Downloaded on - 21/12/2016 00:12:39 ::: 6 judgment 733.16.odt 2016 and it is dated 22-03-2016.
6] The proposal for externment is initiated by the Senior Police Inspector, Police Station Frezarpura. Its English copy served on the petitioner shows date 10-05-2016. However, its Marathi copy does not carry the said date. This proposal is endorsed by the Assistant Commissioner of Police of Frezarpura Circle. He has prepared a separate report recommending the detention. Though there is no date mentioned below his signature, in outward stamp appearing on first page date 14-05-2016 is mentioned. Below it, an outward entry of that proposal is taken on 17-05-2016 by the office of the Deputy Commissioner of Police Circle-I, Amravati City appears. The said office has on 19-05-2016 forwarded the proposal to respondent no.2.
7] In initial proposal, there is mention of in-camera statements.
::: Uploaded on - 19/12/2016 ::: Downloaded on - 21/12/2016 00:12:39 :::7 judgment 733.16.odt The verification was done by the Assistant Commissioner of Police after he received the said proposal. In last but one paragraph of his recommendation, Shri Deshmukh, the Assistant Commissioner of Police has mentioned that in-camera witnesses A to D were summoned in his office and enquiry was made. They stated that the statements were correctly recorded. Enquiry was also made about the incident and the contents of those statements were found correct. Hence, it is mentioned that, the Assistant Commissioner of Police was objectively satisfied about the correctness. It is mentioned that, therefore, he made endorsement on in-camera statements.
8] When the report/papers reached the office of respondent no.2, the respondent no.2 has issued order of detention dated 28-06-2016.
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9] Perusal of said order reveals that in paragraph 5, the grounds
for detention are mentioned and therein reference is only two offences i.e. Crime Nos.75 of 2016 and 218 of 2016 for consideration. Thereafter, in paragraph 6, it is mentioned that, as general public is fearful about the petitioner and not willing to depose against him in open fearing backlash from the petitioner, the police recorded four "such statements" of four different witnesses. Why words "such statements" are employed is not very clear. In paragraph (6.1) there is mention of in-camera statement of witness A. Paragraph (6.2) deals with in-camera statement of witness B. Paragraph (6.3) is about witness C and paragraph (6.4) is about witness D. The statements of witness A and witness B are recorded on 05-05-2016. They speak of incident dated 07-03-2016 and 09-03-2016 respectively. The statements of witness C and witness D are recorded on 06-05-2016 and they speak of incident dated 09-04-2016 and 15-04-2016 respectively.
::: Uploaded on - 19/12/2016 ::: Downloaded on - 21/12/2016 00:12:39 :::9 judgment 733.16.odt At the end of paragraph 6 the respondent no.2 has mentioned that "in-camera statements were verified by the Assistant Commissioner of Police, Frezarpura regarding its veracity". Then there is further discussion about these in-camera statements in paragraphs 7, 8 and 9. After these three paragraphs, the respondent no.2 recorded a conclusion that he was/is subjectively satisfied that because of fear of the present petitioner the witnesses were not ready and willing to come forward, complain or depose.
10] In paragraph 10, the Authority states that it has gone through all the materials on record before it and it is subjectively satisfied that the petitioner was acting in a manner prejudicial to the public peace and order thus subjective satisfaction has been recorded in these words without expressly commenting upon the correctness or otherwise of the objective assessment of prevailing situation by ::: Uploaded on - 19/12/2016 ::: Downloaded on - 21/12/2016 00:12:39 ::: 10 judgment 733.16.odt Assistant Commissioner of Police Shri Deshmukh.
11] Mere availability of four in-camera statements on record by itself is not enough to gather and sustain a subjective satisfaction of a Detaining Authority that those witnesses or people in general are not ready and willing to come forward and depose because of apprehension entertained by them. The said subjective satisfaction has to be about the reaction of the witnesses to the situation prevailing in locality on account of terror created by the activities of the petitioner. These general reactions/impressions could have been gathered by the Detaining Authority by going through the contemporaneous record available with Police Station or then, after considering the material with the concerned Senior Police Inspector who has procured such in-camera statements. He could have also consulted the Senior Police Inspector or the Assistant Commissioner of Police to find out the prevailing situation in the ::: Uploaded on - 19/12/2016 ::: Downloaded on - 21/12/2016 00:12:39 ::: 11 judgment 733.16.odt area. There is no such exercise undertaken. Four in-camera statements though on record and though reproduced partially in the order of detention, do not show that the same were thus looked into by the Detaining Authority to reveal conscious use thereof.
The Detaining Authority could have made an endorsement that it has seen those statements while passing the order in the process of consideration. On the contrary, we find that the objective assessment of the Assistant Commissioner of Police is only reproduced by the Detaining Authority at the end of paragraph 6 without further expressing itself on the relevance and impact of those four in-camera statements.
12] In this situation, the judgments cited supra clinch the controversy. One of us (B.P. Dharmadhikari, J.) is party to both these judgments. The effort made by learned Additional Public Prosecutor is to dissect the order and to support the detention only ::: Uploaded on - 19/12/2016 ::: Downloaded on - 21/12/2016 00:12:39 ::: 12 judgment 733.16.odt by referring to the crimes mentioned in the chart by ignoring the in-
camera statements. He has also invited our attention to the judgment in Criminal Writ Petition No.171 of 2016. The consideration in paragraphs 08, 09 and 10 in the said judgment and outcome thereof also holds good. The order of detention is, therefore, unsustainable. The proposing Authority did not find two crimes in 2016 itself sufficient to initiate the proposal and therefore four in-camera statements have been recorded just in two days' and after recording thereof within three days' the proposal for detention was initiated. Detaining Authority has accepted its exercise.
13] We, therefore, find that the order of detention dated 28-06-2016 & the later order approving it passed on 08-08-2016 are unsustainable. Accordingly, the same are quashed and set aside.
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14] Rule is made absolute accordingly. No costs.
15] Criminal Application (APPW) No.146 of 2016 stands
disposed of.
JUDGE JUDGE
Deshmukh
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