Bombay High Court
Ratnamala Wd/O Mukund Balkhande ... vs State Of Mah. Thr. Home Dep. ... on 1 July, 2022
Bench: S.B. Shukre, G. A. Sanap
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL WRIT PETITION NO.820 OF 2021
PETITIONER:- Ratnamala Mukund Balkhande,
Aged about 52 years, Occupation-
Housewife R/o Apatapa Road, Sant Kabir
Nagar, Akot File, Akola, Dist. Akola.
DETENU Sachin Mukund Balkhande, Aged 30 yrs,
Occ.Cable Work, R/o Apatapa Road, Sant
Kavir Nagar, Akot File, Akola Dist.Akola
(At present lodged in Nashik Central
Prison, M.H.)
...VERSUS...
RESPONDENTS :- 1. State of Maharashtra, through Home
Department (Special), 2nd Floor,
Mantralaya, MadaM Cama Road,
Hutatma Rajguru Chowk, Mumbai-32.
2. The Principal Secretary to the
Government of Maharashtra Home
Department (Special), 2nd Floor,
Mantralaya, Madam Cama Road,
Hutatma Rajguru Chowk, Mumbai-32.
3. The District Magistrate, Akola and
Detaining Authority, Akola.
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Mr. P .V. Navlani, counsel for the petitioner.
Mr.S.S.Doifode, APP for respondent
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CORAM : SUNIL B.SHUKRE &
G.A.SANAP, JJ.
DATE : 01.07.2022.
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ORAL J U D G M E N T (Per :Sunil B.Shukre, J.)
1. Heard.
2. Rule. Rule made returnable forthwith. Heard finally
by consent of the learned counsel appearing for the parties.
3. The detenu has been preventively detained vide order
dated 04.09.2021 passed by respondent No.3, which has been
confirmed by the State. These orders are under challenge in this
petition.
4. According to the learned counsel for the petitioner,
the detention order is patently illegal as it suffers from basic
defects. He points out that several crimes registered against the
detenu were considered and it was well known to the detaining
authority that in all the seven crimes the detenu was on bail and
yet, the reasons of grant of bail were not placed before the
detaining authority. He also submits that some documents were
not supplied to the detenu. On these grounds he urges that the
detention order deserves to be quashed and set aside.
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5. Learned APP strongly opposes the petition and
submits that out of seven crimes considered by the detaining
authority, two crimes were of recent origin and a detailed
discussion in respect of the facts of those crimes and the extent of
the involvement of the detenu has been made and the effect of his
such involvement together with his previous criminal activity has
been appropriately considered by the detaining authority. He also
submits that the previous criminal activity and the two crimes
recently registered against the detenu and the statements of two
confidential witnesses sufficiently indicated that the detenu
continuously and consistently indulged in criminal activities so
much so that ordinary measures of law were not sufficient for
putting restrain on him and it was found that his criminal activity
was disturbing public order and therefore, the satisfaction reached
by the detaining authority is proper and beyond any question.
6. Learned APP further submits that in five of seven
crimes, copies of bail orders were not placed before the detaining
authority, but, in one of the recent crimes, Crime No.810 of 2021,
copy of the bail application as well as copy of the operative bail
order was placed before the authority. He further submits that in
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another recent crime bearing Crime No.252 of 2021, the detenu
was not arrested by the Investigating Officer, but was only given
an intimation to remain present before the concerned Court as
and when called upon to do so, by that Court, and this intimation
was given under Section 41-A of the Code of Criminal Procedure.
He, therefore, submits that the requirement of law of placing the
bail order before the detaining authority insofar as the recent
crimes are concerned, has been substantially fulfilled in this case.
He, thus, submits that there is no merit in the petition.
7. We would first deal with the objection that bail orders
were not placed before the detaining authority. On this point, the
law is very clear. This Court, in the case of Elizabeth Ranibhai
Prabhudas Gaikwad Vs.The State of Maharashtra and anr. reported
in 2021 ALL MR (Cri) 1394, following the law expounded by the
Apex Court in the case of Abdul Sathar Ibrahim Manik Vs.Union of
India and ors reported in AIR 1991 SC 2261 held thus:-
"If the Authority does not take into
consideration the orders of bail granted to the
proposed detenue, it may lead to an anomalous
situation whereby one authority of law i.e.
Criminal Court thinks it fit to enlarge such a
person in criminal offences registered against
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him and the other authority of law considers it
necessary that such person is detained in custody
because of his criminal activities exhibited by
pendency of criminal cases against him. The law
does not expect any mismatch between the
orders passed by the two law enforcing
authorities and therefore, it is necessary that
when one authority releases a person on bail, the
other authority seeking to detain him again for
the same criminal activities, considers the impact
of the bail order and reaches to an appropriate
conclusion in the matter. This law is expounded
by the Apex Court in the case of Abdul Sattar
Ibrahim Manik .vs. Union of India and Others,
AIR 1991 SC 2261 : [1991 ALL MR ONLINE 1728
(S.C.)] which has been followed by another
Division Bench in the case of Paras s/o.
Ramprasad Sahu vs. State of Maharashtra and
another, 2003 (3) Mh.L.J. 24 : [2003 ALL MR
(Cri) 2296]. In paragraph 8 of this Judgment, the
Division Bench has reproduced relevant
observations of Supreme Court in the cited case
of Abdul Sattar Ibrahim Manik. For the sake of
convenience, we would like to reproduce the
same as under :
"In a case where detenu is released on
bail and is at liberty at the time of
passing the order of detention, then
the Detaining Authority has to
necessarily rely upon them as that
would be vital ground for ordering
detention. In such a case the bail
application and the order granting bail
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should necessarily be placed before the
authority and the copies should be
supplied to the detenu."
8. In this case, although, seven crimes registered against
the detenu formed the material for reaching the subjective
satisfaction of the detaining authority, admittedly, in five of the
crimes, in which the detenu was on bail, no bail orders were
placed before the detaining authority. This lacuna, in our opinion,
has vitiated the satisfaction reached by the detaining authority as
it was deprived of opportunity to consider relevant material,
though available.
9. Of course, it is submitted by learned APP that these
five crimes were only considered as indicative of the previous
criminal activity and therefore it was not necessary for the
detaining authority to consider the reasons for which the detenu
was granted bail in each of these cri.mes. In our respectful
submission the argument cannot be accepted. The law settled by
Hon'ble Apex Court in the case of Abdul Sathar Ibrahim Manik
(supra), is clear in this regard. Hon'ble Supreme Court has in
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clear terms observed that in the case where detenu is released on
bail and is at liberty at the time of passing the order of detention,
then the detaining authority has to necessarily rely upon them as
that would be a vital ground for ordering detention. Hon'ble
Supreme Court further held that in such a case, the bail
application and the order granting bail must necessarily be placed
before the authority and the copies should also be supplied to the
detenu. It would then mean that, whenever previous crimes
registered against the detenu are considered as indicative of
continuous criminal activity of the detenu, the detaining authority
must also consider the reasons for which the detenu was granted
bail in those previously registered crimes. This is because of the
fact that those reasons would enable the detaining authority to
reach proper satisfaction upon knowing existence of prima facie
case against the detenu or otherwise in those previously registered
crimes. Besides, as held by this Court in the case of Elizabeth
Ranibhai Prabhudas Gaikwad (supra) there should not be any
mismatch or unexplained inconsistency between the order passed
by one authority granting bail and the order passed by another
authority directing detention of that person for the very criminal
activity. Consideration of the reasons of bail would help the
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detaining authority bridge the gap, in some cases, between the
reasons for which bail was granted and the reasons for which
preventive detention is ordered. Thus, we find no substance in the
argument of learned APP made in this regard.
10. Learned APP has invited our attention to the case of
Lakhan Kisan Tusambad Vs.District Magistrate, Beed and ors.
reported in 2022 ALL MR (Cri)1748, to support the contention
that since previous crimes were considered only for the purpose of
demonstrating past crime record, non placing of bail orders in
those crimes has not adversely affected the detention order. Let
us, therefore, consider this case.
11. In the said case of Lakhan Kisan (supra), the Division
Bench at Aurangabad, found that the satisfaction reached by the
detaining authority was upon consideration of criminal
antecedents as well as recent criminal activities of the detenue
coupled with two in camera statements and therefore,
consideration of one non cognizable offence by the detaining
authority was held as not rendering the impugned order of
detention as illegal. These facts are quite different from the facts
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of the present case. In the said case of Lakhan Kisan (supra) the
issue was of consideration of criminal activity which had given rise
to one non-cognizable offence and other offences, and whereas in
the present case, the question related to non-consideration of
relevant material in the nature of reasons given by the competent
Courts for releasing the detenu on bail in five previous crimes.
Consideration of a non-cognizable crime together with other
relevant material for reaching a particular conclusion is quite
different from non-consideration of relevant material for reaching
the requisite satisfaction. Therefore, we do not think that the case
of Lakhan Kisan (supra) would help the State in justifying the
impugned detention order.
12. As regards consideration of the operative part of the
bail order in Crime No.810 of 2021, we are of the opinion that
consideration of the reasons of the bail order is what matters and
not the consideration of the operative order containing only the
directions for release of a person on bail on certain conditions.
The reason is obvious. Grounds of bail stated by the competent
Court reflect upon prima facie the nature and extent of
involvement of the detenu in the crime, and thus they are vital for
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reaching subjective satisfaction by the detaining authority. In the
case of Sunil Pandharinath Dhotre Vs.The Commissioner of Police,
Nashik and ors. reported in 2021 All MR (Cri) 2859, the detaining
authority had only considered the operative part of the bail order
of the detenu. The Division Bench took the view that the order
passed by the learned Sessions Judge while releasing the detenu
on bail was a wider piece of evidence and therefore, it ought to
have been forwarded to the detaining authority by sponsoring
authority. In holding so, it reiterated the view taken by another
Co-ordinate Bench in the case of Mukesh @ Mukya Ramesh
Desaikar Vs .Vivek Phansalkar and ors. in Writ Petition no.194 of
2020, wherein it is held that detailed order passed by the learned
Sessions Judge, Kalyan while releasing the detenu was a wider
piece of evidence and it ought to have been forwarded to the
detaining authority by the sponsoring authority.
13. We are thus of the view that merely supplying
operative part of the bail order to the detaining authority together
with bail application was not enough in this case. It was necessary
for the sponsoring authority to place before the detaining
authority, copy of the bail order containing reasons stated by the
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concerned Court for releasing the detenu on bail, as the grounds
on which and the reasons for which the detenu was released on
bail constituted relevant material for the detaining authority to
reach the requisite satisfaction. It then follows that the subjective
satisfaction reached by the detaining authority in the present case
being based upon non consideration of the relevant material is
bad in law.
14. About the other crime i.e. Crime No. 252 of 2021, it is
an admitted fact that the petitioner was not arrested and was
merely intimated to attend the concerned Court as and when
called upon to do so under section 41-A of the Code of the
Criminal Procedure. It is also an admitted fact that Crime No. 252
of 2021 registered with Police Station Akot File, Akola, was one of
the latest crimes and it was alleged to be committed by the detenu
in continuation of his previous criminal activity as seen from five
crimes registered against him, which were crime Nos.525 of 2020,
299 of 2020, 293 of 2020, 20 of 2020 and 4 of 2017. Yet the
Investigating Officer did not think it fit to arrest the detenu in
Crime No.252 of 2021, which was registered for such offences as
324,504 and 506 of the Indian Penal Code r/w Section 34 of the
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Indian Penal Code. If the Investigating Officer felt no need for
arresting the petitioner in this crime, it cannot be accepted that
the detenu should have been put under preventive detention for
continuing with his criminal activity resulting in registration of
Crime No.252 of 2021. The detaining authority, has not
considered this important aspect of the matter, and has
maintained complete silence on this point. This shows that the
impugned detention order belies the decision taken to not arrest
the petitioner in Crime No. 252 of 2021. This is yet another
reason why we see the impugned detention order as illegal.
15. In the result, we find that the impugned order is
perverse and illegal as it fails to take into consideration relevant
material and contradicts the decision taken to not arrest the
petitioner in recent crime.
16. There is also an objection about non supply of some
documents. We do not think it necessary to consider it as we have
already found the impugned detention order as bad in law on
other grounds.
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17. The Writ Petition is, therefore, allowed in terms of
prayer clause 'b' which reads as under :-
"(b) upon perusal of same, quash and set
aside order bearing No.Desk-2/HA/HOME/WS-
415/2021 passed by respondent no.3 District
Magistrate, Akola dated 04.09.2021 (Annexure
No.I) and also of order bearing No.MPDA-0921/
CR-286/Spl-3B passed by respondent No.1 i.e.
Home Department (Special) dt.14.10.2021
(Annexure No.V) in the interest of justice".
18. Rule is made absolute in the above terms.
(G.A.SANAP, J) (SUNIL B. SHUKRE,J)
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Signed By:KAVITA PRAVIN
TAYADE
P. A.
Signing Date:04.07.2022 14:42
