Smt. Laxmibai Nandkumar Patil vs Mr. M.N. Singh, Commissioner Of ...
2003 Latest Caselaw 432 Bom

JUDGMENT

D.G. Deshpande, J.

1. Heard the learned counsel for the petitioner and the learned A.P.P. for the State.

2. The petition is filed by the mother of the detenue. Her son was detained by order dated 23.5.2002. The grounds of detention are of the even date and there is no dispute about the service of the detention order within time.

3. One C.R. No. 418 of 2002 and two in-camera statements are the basis on which the detention order is clamped. The detention order is challenged by the detenue no number of grounds. However, the learned counsel for the petitioner restricted himself mainly the concerned one ground i.e. total non-application of mind. So far as the reproduction of facts about the C.R. are concerned, he drew out attention to paras 5(a)(i) and 5(a)(ii) in the grounds of detention. He also pointed out that, in fact the victim of the said assault one Nisar Ali Shaikh has lodged a F.I.R. against unknown person giving description of his assailant and the offence came to be registered on the complaint of said Nisar Ali Shaikh on C.R. No. 418 of 2001 against unknown person. He, therefore, contended that when the C.R. was registered against unknown person and only description was given, then giving of facts by the detaining authority in the manner in which it has been done in para 5(a)(i) is indicative of non-application of mind. He also pointed out that, in para 5(a)(ii) the detaining authority has stated that on the complaint of Nisar Ali Shaikh the offence was registered against the detenue and his associate. He has given wrong statement because the offence was registered against an unknown person.

4. Therefore, according to the counsel for the petitioner, it is the case of total non-application of mind and the detaining authority has not even cared to go through the C.R. correctly and properly and has ascribed particular role to a particular person including the detenue and his associate only on the basis of surmises. As against this, the learned A.P.P. pointed out that, the identification parade was subsequently conducted and the memo of identification parade is on record, copy of which was given to the detenue. She also further pointed out that the detenue has made his confessional statement to admit his guilt in the assault and, therefore, from the identification parade memorandum and confessional statement, the detaining authority was justified in reproducing the facts as has been contained in para 5(a)(i) of the grounds of detention. We are not at all satisfied with the explanation advanced by the learned A.P.P. for the purpose of appreciating the submissions made by the counsel for the detenue. We are reproducing paras 5(a)(i) & 5(a)(ii) of the detention order:-

"Para 5(a)(i): On 07.12.2001 at about 10.30 hours, Shri Nisar Ali Dawood Shaikh came to Mahim Slope to see his sick brother Shri Zakaria Ali Shaikh. After meeting his sick brother Shri Nisar Ali went to take food at fishermen colony alongwith his friend Shri Ganesh Shinde. After having lunch, they both were returning to Mahim Slope along the street under the pipeline behind Building No. 14 Mahim. At about 14.00 hours, they came at a open place near pipe line, when you and your associate Khalid Imtiyaz Sardar waylaid them near a Grocery shop. You threatened Shri Nisar Ali Dawood Shaikh saying that, "TU JYADA CHADH GAYA HAI, AAJ TUJHE MAIN KHTAM KAR DALUNGA", and saying so, you whipped out a chopper tucked at your waist. On seeing your angry mood the passersby got scared and ran helter skelter due to fear. Shri Ganesh Shinde also ran and shouted for help calling the local residents and shopkeepers for the rescue of Shri Nisar Ali. On hearing his shouts the residents and the shopkeepers came out from their shops for help. On seeing gathered people you threatened them saying that, "KOI AAGE NAHI AYEGA, MUJHE JANATE NAHIN KYA? AAGE AAYEGA TO EK EK KO KAT DALUNGA", and you rushed on those people. Due to fear, gathered people ran helter skelter.

At this juncture, your associate Khalid caught hold of Shri Nisar Ali from behind. You then turned back at Shri Nisar Ali and roared. "DEKHO GANDU MERI WAT KYA HAI YAHAPE. MERE MAMALE ME GIRANE KI KISIKI MAJAL NAHI, CHAHE TO AUR CHILLAKE DEKH LE." You then mercilessly gave repeated blows with chopper on the both hands, right shoulder, right thigh and right leg of Shri Nisar Ali. In this gruesome assault, your associate Khalid also sustained injury on his left hand. Hence he loosened his grip on the person of Shri Nisar Ali and Shri Nisar Ali collapsed on the ground. At that time, you again gave blows of chopper on the back of Shri Nisar Ali. Due to merciless attack Shri Nisar Ali had sustained severe bleeding injuries all over his body. On seeing injured Shri Nisar Ali in a pool of blood in motionless condition, your associate Khalid told you that, "AARE WO TO MAR GAYA, TU AUR KITNA MAREGA." Then, you and your associate Khalid ran away from the place. You assaulted Shri Nisar Ali in order to kill him but he miraculously survived. The injured Shri Nisar Ali was removed to the Bhabha Hospital, where he was admitted for medical treatment."

"Para 5(a)(ii): In this connection, on the complaint of Shri Nisar Ali Shaikh, a case vide C.R. 418/2001 Under Section 307, 34 IPC r/w 425 of the Indian Arms Act, was registered against you and your said associate at Mahim Police Station."

5. A comparison of these two paras will clearly show that in para 5(a)(i) the detaining authority has ascribed a specific role to the detenue and another role to his associate. In the F.I.R. the assailants have been referred to as the person having a chopper and the other person who held them victim. Two persons have been described in the F.I.R. alongwith the weapon. In the memorandum of identification parade which is at page No. 101 on record, the witness has identified two persons, the detenue and his associate. The detenue was identified by ascribing his specific role, namely, that the detenue uttered the words, "TU JYADA CHADH GAYA HAI, AAJ TUJHE MAIN KHATAM KAR DALUNGA". So saying the detenue inflicted repeated blows on the hands of the victim. The same witness then identified the associate of the detenue and attributed his particular role to him, namely, that he hold the victim from behind.

6. It will be clear that, even if the memorandum of identification parade was with the detaining authority, the detaining authority in the absence of any mention in the F.I.R., ascribed the role to the detenue and his associate as has been done in ground No. 5(a)(i). It is, therefore, clear case of total non-application of mind. Neither the F.I.R. was clearly seen nor there was any material to give particulars of the nature given in ground 5(a)(i) when the F.I.R. was against unknown person. Similarly, in para 5(a)(ii) the detaining authority has stated that the offence was registered against the detenue and his associate. This is also a wrong statement, because the offence was recorded against the unknown person. From the grounds of detention it is clear that C.R. is filed on the material used by the detaining authority for clamping the detention order. All the documents pertaining to the C.R. including the F.I.R. and the memorandum of identification period were before the detaining authority but even then the grounds of detention have been prepared in mechanical manner without application of mind and without consideration of vital documents and consequently the detention order has to be quashed and set aside. The counsel for the petitioner also contended that the in-camera statements of witnesses "A" & "B" were stereotyped but since we are allowing this petition on one ground about which the learned A.P.P. could not satisfy us, we are not considering the other grounds raised by the counsel for the detenue.

In the result, petition allowed. Detention order is quashed and set aside. The detenue Shri Karun Nandkumar Patil be released forthwith, if not required in any other matter.

Rule made absolute.