Bombay High Court
Dashrath Madhukar Kasbe @ Dk vs The State Of Maharashtra And Ors on 3 February, 2021
Bench: S.S. Shinde, Manish Pitale
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION (ST.) NO.3334 OF 2020
Dashrath Madhukar Kasbe @ DK ]
R/o. 59, Bhawani Peth, Mukund ]
Nagar, Solapur. ]
At present, Yerwada Central Prison, ]
Pune. ] ... Petitioner
Versus
1. The State of Maharashtra ]
2. Commissioner of Police, Solapur, ]
New Administrative Building, ]
Gandhi Nagar, Solapur. ]
3. Senior Police Inspector, Fouzdar ]
Chawdi Police Station, Solapur. ] ... Respondents
...
Mr. Priyal G. Sarda for the petitioner.
Ms. M.H. Mhatre, A.P.P. for the respondents.
...
CORAM : S.S. SHINDE &
MANISH PITALE, JJ.
RESERVED ON : 14TH JANUARY, 2021
PRONOUNCED ON : 03RD FEBRUARY, 2021.
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JUDGMENT:- [Per: Manish Pitale, J.]
1. Rule. Rule made returnable forthwith. With the consent of
learned counsel appearing for the parties, heard finally.
2. The subject matter of challenge in this writ petition is order
of detention dated 31/08/2020 issued by respondent No.2. The
grounds of detention and other documents were served on the
petitioner. Respondent No.2 stated in the grounds of detention
that in view of the criminal cases already registered against the
petitioner, as also the fact that there was imminent possibility of
his release from custody and that there was every likelihood of the
petitioner indulging in activities prejudicial to the maintenance of
public order, he was subjectively satisfied that the order of
detention was necessary. Respondent No.2 also made reference
to in-camera statements of two witnesses to come to a conclusion
that there was real possibility of the petitioner indulging in
activities prejudicial to the maintenance of public order.
3. The petitioner has raised various grounds of challenge in
the present writ petition to challenge the detention order.
Learned counsel appearing for the petitioner emphasized upon
three main grounds of challenge. Firstly, it was submitted that the
detention order stood vitiated because respondent No.2,
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detaining authority, was not even aware and also did not refer to
the order dated 28/08/2020 passed by the Court of Magistrate at
Solapur whereby bail application of the petitioner was granted.
According to learned counsel appearing for the petitioner, since
respondent No.2 was not even aware about the said order being
passed and the reasons given by the court for releasing the
petitioner on bail, the detention order was clearly vitiated.
4. Secondly, it was submitted that although respondent No.2
referred to and relied upon in-camera statements of two witnesses,
there was no conclusion specifically rendered by respondent No.2
to the effect that he believed the genuineness of the said
statements. Thirdly, it was submitted that respondent No.2 did
not have sufficient material on record to come to a conclusion
that the activities of the petitioner would be prejudicial to the
maintenance of public order because the criminal cases registered
against the petitioner were of personal nature pertaining to
offences under certain provisions of the Indian Penal Code
("IPC") and The Maharashtra Money Lending (Regulation) Act,
2014 ("Money Lending Act"). It was submitted that respondent
No.2 failed to appreciate the distinction between 'the law and
order' on the one hand and 'the public order' on the other.
According to learned counsel for the petitioner, respondent No.2
failed to appreciate the well settled position of law in this regard.
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5. On the other hand, affidavit filed on behalf of the
respondents opposed the said grounds specifically pressed into
service on behalf of the petitioner. In an affidavit dated
19/11/2020 filed by respondent No.2, detaining authority, it was
stated that the proposal forwarded by the sponsoring authority
was approved by the said respondent and that the grounds of
detention were immediately dictated on 20/08/2020, while the
order of detention was issued on 31/08/2020. It was further
stated in the affidavit that during this period, the sponsoring
authority had received the aforesaid order granting bail to the
petitioner, dated 28/08/2020 and, therefore, copy of the same
along with its translation was provided to the petitioner on
05/09/2020.
6. In the said affidavit, it was also submitted that the in-
camera statements of two witnesses available on record clearly
demonstrated the fact that the petitioner was a threat to public
order and that the propensity of the petitioner to indulge in
activities like extortion was evident from the material on record.
On this basis, it was stated in the affidavit that the writ petition
deserved to be dismissed.
7. Learned counsel for the petitioner relied upon judgment of
this court in the case of Lakhan Rohidas Jagtap v. Commissioner
of Police1 wherein a Division Bench of this court held that when
1 [2019] 0 All MR (Cr.) 5261
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the detaining authority was not aware about the reasoned order
granting bail to the detenu, the order of detention stood vitiated.
It was emphasized that in the said case, even though the detaining
authority knew that an application for bail had been filed and that
bail was indeed granted to the detenu, since the reasons for grant
of bail were not placed before the detaining authority, the order of
detention was set aside.
8. Learned counsel further relied upon the judgment of the
Division Bench of this court in the case of Laxman @ Kaka
Yallappa Jadhav v. The Commissioner of Police, Solapur 2,
wherein this court relied upon judgments of the Hon'ble Supreme
Court and by considering a specific FIR pertaining to a suicide
case, reference to which is made in the impugned detention order
also, held that the petitioner therein was entitled for grant of
relief. Learned counsel also relied upon judgments of the
Hon'ble Supreme Court on the distinction between law and order
situation that could be dealt with by ordinary criminal law and,
situations concerning maintenance of public order justifying
issuance of order of detention.
9. On the other hand, Ms. Mhatre, learned A.P.P. relied upon
an affidavit, placed on record on behalf of the respondents, and
contended that the in-camera statements available on record in
the present case clearly demonstrated that the release of the
2 Order dated 22/12/2020 in Criminal Writ Petition (St.) No.3330 of 2020
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petitioner would be prejudicial to the maintenance of public
order. It was further submitted that genuineness of the in-camera
statements was verified by the A.C.P., Division-II, Solapur.
Therefore, the petitioner was not justified in claiming that such
in-camera statements were not reliable. In this regard, learned
A.P.P. relied upon judgments of this Court in the case of
Zebunnisa Abdul Majid v. M.N. Singh & Ors. 3 and Santosh
Kashinath Kamble v. State of Maharashtra & Ors. 4 It was
submitted that when copy of the bail order dated 28/08/2020,
along with its translation, was admittedly served on the petitioner
immediately after the issuance of the detention order, it could not
be said that only on the said ground, the order of detention could
be said to be vitiated.
10. Heard learned counsel appearing for the rival parties and
perused the material on record. The detention order in the
present case has been issued under Section 3 of the Maharashtra
Prevention of Dangerous Activities of Slumlords, Bootleggers,
Drug Offenders, Dangerous Persons, Non Licenced performers of
Audiovisual Arts (Video Pirates), Sand Smugglers and Person
Engaged in Black-marketing of Essential Commodities Act,
1981("the said Act"). There can be no doubt about the fact that
issuance of such a detention order is an extra-ordinary step taken
by the respondents, which needs to be justified on the basis of
3 2001 (3) Mh. L.J. 365
4 Judgment dated 03/04-03-2016 in Cri. Writ Petition No.4510 of 2015
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material to show that the ordinary process of criminal law is not
enough to deal with a person like the petitioner before this court.
Therefore, in the context of the said Act and similar other statutes
pertaining to issuance of detention orders, the courts have
consistently taken a very strict view of the matters so as to ensure
that the rights available to a detenu under Article 22 of the
Constitution of India are fully preserved.
11. The first ground of challenge raised in the present writ
petition concerns order granting bail to the petitioner, dated
28/08/2020. A perusal of the detention order shows that while
respondent No.2 has referred to the fact that bail application filed
by the petitioner is pending, there is no reference to the aforesaid
order dated 28/08/2020 granting bail to the petitioner, despite
the fact that the detention order was issued on 31/08/2020.
Respondent No.2 has simply stated that there is a possibility of
grant of conditional bail to the petitioner and that therefore, there
is a real and imminent possibility of his release, which would be
prejudicial to the maintenance of public order.
12. There is no dispute about the fact that order granting bail to
the petitioner was passed on 28/08/2020 itself i.e. before the
order of detention was issued. Therefore, it is evident that the
said bail order was not before respondent No.2 when the
detention order was issued. It is necessary for the detaining
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authority like respondent No.2 to take into consideration such
relevant material before arriving at the subjective satisfaction that
it is necessary to issue the detention order. In the present case,
grant of bail to the petitioner and the reasons for which such bail
was granted, were certainly relevant factors, which ought to have
been in the knowledge of respondent No.2 and, after taking the
same into consideration, respondent No.2 could have arrived at
his subjective satisfaction. In view of the admitted position that
the order granting bail to the petitioner was not even placed
before respondent No.2, it becomes clear that the detention order
stood vitiated. In this context, reliance placed by learned counsel
for the petitioner on the judgment of the Division Bench of this
Court in the case of Lakhan Rohidas Jagtap (supra), is justified for
the reason that in the said case, even though the detaining
authority was aware about the detenu being granted bail, yet, the
detention order was found to be vitiated only for the reason that
the detaining authority did not have before it the reasons for
which bail was granted to the detenu. In the present case,
respondent No.2, detaining authority, was not even aware about
the grant of bail to the petitioner and, therefore, the detention
order stood vitiated.
13. Insofar as the second ground of challenge to the effect that
the detention order stood vitiated because respondent No.2 failed
to conclude anything regarding genuineness of the in-camera
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statements is concerned, learned A.P.P. has relied upon judgment
in the case of Zebunnisa Abdul Majid (supra). A perusal of the
said judgment would show that if there is material on record to
indicate that the in-camera statements were verified, no fault
could be found with the detaining authority in relying upon such
statements. In the present case, the material on record indicates
that an exercise was carried out to verify such in-camera
statements. In the affidavit filed on behalf of respondent No.2, it
is specifically stated that the A.C.P., Division-II of Solapur
verified the truthfulness of the incidents narrated in the in-camera
statements and that the said officer has recorded his satisfaction
upon verification. Although the detention order in the present
case does not appear to specifically record such verification, it
cannot be said that only on the said ground, the detention order
passed by respondent No.2 could be said to be vitiated. To this
extent, learned A.P.P. is justified in claiming that there is no
substance in the second ground raised on behalf of the petitioner.
But, what is significant is that taking into consideration the entire
material on record, it needs to be examined whether there was
enough material on record to justify issuance of the detention
order, in the absence of which, there was imminent threat in
maintenance of public order. This takes us to the third ground of
challenge.
14. The third ground of challenge in the present writ petition
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pertains to the aspect of distinction between law and order, which
can be taken care of by ordinary criminal law, as opposed to
maintenance of public order, which would require issuance of the
detention order. The Hon'ble Supreme Court in its judgments in
the cases of Arun Ghosh v. State of West Bengal5 and Abdul
Razak Nannekhan Pathan v. Police Commissioner, Ahmedabad
& Anr.6 has deliberated upon the distinction between public
order on the one hand and law and order on the other. In the said
judgments, it has been held that the degree of disturbance of
public order depends upon the act of a person which may have
the tendency to disturb the even tempo of life of the community.
It has been held that individual acts that cause hurt to other
individuals need to be distinguished from activities whereby there
is a constant danger or fear to the community at large. On this
basis, it has been held that the instances of criminal activities
indulged in by a person needs to be examined to come to a
conclusion that possibility of further such activities by such a
person would be prejudicial to the maintenance of public order.
15. In the present case, respondent No.2 has referred to certain
criminal cases registered against the petitioner. The table at
paragraph 4 of the grounds of detention would show that while
the petitioner stood acquitted in 13 cases, in two cases, the
matters were pending before the courts and in one case pertaining
5 AIR 1970 SC 1228
6 (1989) 4 SCC 43
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to Maharashtra Prevention of Gambling Act, 1887, investigation
was underway. In paragraph 5, a reference is made to two cases
wherein the petitioner is an accused - one pertaining to suicide
and, the other an offence under the Money Lending Act. Apart
from this, there is reference made to in-camera statements of two
witnesses.
16. It is relevant that in the aforementioned judgment of the
Division Bench of this court rendered on 22/12/2020 in the case
of Laxman @ Kaka Yallappa Jadhav (supra), a reference is made
to one of the cases being C.R. No.816 of 2020 pertaining to
suicide by an individual, who was allegedly harassed by the
repeated demands of return of money made by the petitioner
therein and his associates. In the said judgment, Division Bench
of this court has found that merely because the petitioner therein
was also an accused in C.R. No.816 of 2020 and the main
allegation was against one accused Vyankatesh Pampanna
Dambaidini, it could not be said that the harsh action of
detention was justified. The said reasoning would apply to the
present case also because even in the present case, the allegation
against the petitioner in the same C.R. No.816 of 2020 is that he,
along with his associates, was responsible for the harassment to
the said person for return of money, who ultimately committed
suicide.
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17. The other criminal case pertains to offences under Sections
452, 368, 504 and 506 of the IPC read with Section 39 and 45 of
the Money Lending Act. Even this criminal case indicates
allegations against the petitioner with regard to specific instances
and grievances raised by individuals. The question is whether in
view of the aforesaid settled position of law, it can be said that
such individual cases pertain to disturbance of public order or that
they would be covered under the realm of law and order, to be
dealt with by ordinary criminal law. As held in the
aforementioned judgment of the Division Bench of this court in
Laxman @ Kaka Yallappa Jadhav (supra), howsoever
reprehensible the conduct of the petitioner may appear to be in
an individual criminal case, it could not be said that the same
would amount to an apprehension of breach of public order
justifying issuance of order of detention.
18. Hence, we are of the view that the present writ petition
deserves to be allowed on the first and third grounds raised on
behalf of the petitioner. In view of the above, the present writ
petition is allowed in terms of prayer clause (b) of the petition
which reads as under:
"(b) That the impugned order No.D.O. No.06/CB/DP/
20 dated 31/08/2020 passed by the present
Respondent No.2 may be quashed and set aside
and the Petitioner may be released from jail
forthwith."
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19. Consequently, the petitioner shall be released forthwith
unless required in any other case.
20. Rule is made absolute in the above terms.
(MANISH PITALE, J.) (S.S. SHINDE, J.)
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