Bombay High Court
Santosh S/O Bhimrao Mohokar (In ... vs The State Of Maharashtra, Thr. ... on 14 December, 2016
Bench: B.P. Dharmadhikari
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.)
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
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,
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
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
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.
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.
8 judgment 733.16.odt
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.
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
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
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
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.
13 judgment 733.16.odt
14] Rule is made absolute accordingly. No costs.
15] Criminal Application (APPW) No.146 of 2016 stands
disposed of.
JUDGE JUDGE
Deshmukh
