Bombay High Court
Somnath @ Devidas S/O. Baburao Devkate vs The State Of Mah. Thr. Its Secretary, ... on 7 December, 2023
Author: M.W.Chandwani
Bench: Vinay Joshi, M.W. Chandwani
2023:BHC-NAG:16900-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL WRIT PETITION NO.662 OF 2023
Somnath alias Devidas S/o Baburao
Devkate, Aged about 26 years,
R/o Bitargaon, Tah. Umarkhed,
District Yavatmal.
(Presently at Central Prison, Yavatmal) ...PETITIONER
...V E R S U S...
1. The State of Maharashtra,
Through its Secretary, Home
Department (Special), Mantralaya,
Mumbai.
2. District Magistrate, Yavatmal.
3. The Superintendent,
Central Prison, Yavatmal. ..RESPONDENTS
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Shri R.M. Daga, Advocate for petitioner.
Shri M.J. Khan, APP for respondents.
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CORAM :- VINAY JOSHI AND M.W. CHANDWANI, JJ.
ARGUMENTS WERE HEARD ON : 07.11.2023.
JUDGMENT PRONOUNCED ON : 07.12.2023.
JUDGMENT (PER : M.W.CHANDWANI, J.):
. Rule. Rule made returnable forthwith. Heard finally by
consent of the learned counsel for the parties.
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2. By this writ petition under Article 226 of the Constitution of
India, the petitioner seeks to quash and set aside the impugned
order dated 08.06.2023 passed by the respondent no.2 under
section 3(1) of the Maharashtra Prevention of Dangerous
Activities of Slumlords, Bootleggers, Drug-offenders, Dangerous
persons, video Pirates, Sand Smugglers and Persons engaged in
Black Marketing Essential Commodities Act, 1981 (Amendment of
2015)(for short, 'MPD Act'). The petitioner further challenges to
the order dated 17.07.2023 passed by the respondent no.1 under
section 3 of the MPD Act, confirming the order dated 08.06.2023
of the respondent no.2.
3. Brief resume of the facts which give rise to this petition are
stated as under:
The proposal for detention was made by the Assistant Police
Inspector of Police Station, Bitergaon to detain the petitioner
under the provisions of MPD Act on the ground that the petitioner
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is dangerous person. Number of offences have been registered
against the petitioner. The detaining authority, after relying on two
crimes registered within last six months as well as the in-camera
statements of witness 'A' and 'B' came to the conclusion that the
petitioner has created a sense of terror in people's mind. The
witnesses and victim do not come forward and complaint because
of the fear. The activities of petitioner are adversely likely to
affect, the maintenance of public order. Therefore, the respondent
no.2-detaining authority has passed the impugned order dated
08.06.2023 and was supplied to the petitioner alongwith the
ground for detention. The said order of respondent no.2 was
confirmed by the respondent no.1-State Government by its order
dated 17.07.2023 under the provisions of MPD Act. Feeling
aggrieved with the said order, the present writ petition came to be
filed.
4. Heard Shri R.M. Daga, learned counsel for the petitioner
and Shri M.J. Khan, learned Additional Public Prosecutor for
respondents. We have perused the record.
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5. Though various grounds have been raised in the petition but
the learned counsel for the petitioner principally raised the
following grounds:
(a) That none of the two offences relied upon by the detaining
authority, forming basis for passing the detention order is
detrimental to the maintenance of the public order and
those offences can be at most termed as acts which are
disruptive of law and order.
(b) There is no live link of the alleged incidents stated by the
witness 'A' with the detention order.
6. In answer to the allegations made in the petition, the
respondent no.2 has filed affidavit-in-reply dated 18.10.2023,
through the Collector and District Magistrate, Yavatmal reiterating
its stand that the petitioner was considered as a "dangerous
person" under the MPD Act and sought to be justified his
detention and supported the impugned orders.
7. The bone of contention of the petitioner is that two crimes
which formed basis of passing the detention order are personal
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disputes between the petitioner and the complainant. First Crime
No.15/2023 is registered with Police Station, Bitergaon for the
offences punishable under sections 323, 324, 294, 504 and 506 of
the Indian Penal Code (for short, 'IPC'), wherein the friend of the
complainant was beaten on the ground that why he stay with the
complainant and not with the petitioner and his associates. Even,
the complainant was assaulted by the knife by the associates of the
petitioner. On the complaint of Rajesh Kondewad, the aforesaid
offences came to be registered against the petitioner.
8. In second crime, which is relied by the detaining
authority is Crime No.138/2023 registered with Bitergaon Police
Station for the offences punishable under sections 326, 294, 506
read with section 34 of the IPC, in this case again complainant is
Rajesh Kondewad. It appears that on the count of kicking by the
complainant to the brother of the petitioner, the petitioner
assaulted the complainant-Rajesh Kondewad with iron rod, due to
which complainant's nose bone scratched and there was bleeding
from the eye socket.
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9. Thus, both crimes are in nature of personal dispute between
the petitioner and complainant - Rajesh Kondewad and accused
on account of rivalry between the complainant and the petitioner.
No doubt, these crimes are necessarily a breach of law and order,
but, not a breach of public order. There is difference between
breach of public order and breach of law and order. Contextually,
we may refer the decision of the Supreme Court in the case of
Kanu Biswas Vs. State of West Bangal1 on the question of what
constitutes breach of "public order" as opposed to breach of "law
and order" :-
"6. The distinction between the concept of public
order and that of law and order has been adverted
to by this Court in a number of cases. In the case
of Dr. Ram Manohar Lohia v. State of Bihar,
[1966] 1 S.C.R. 709, Hidayatullah J. (as he then
was) said that any contravention of law always
affected order, but before it could be said to affect
public order, it must affect the community at
large. He considered three concepts, law and
order, public order and the security of the State,
and observed that to appreciate the scope and
extent of each one of them, one should imagine
the concentric circles. The largest of them
represented law and order, next represented
1 (1972) 3 SCC 831
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public order and the smallest represented the
security order, just as an act might affect public
order but not the security of the State. In the
subsequent case of Arun Ghosh v. State of West
Bengal, [1970] 3 S.C.R. 288, the Court dealt with
the matter in the following words: "Public order is
the even tempo of the life of the community
taking the country as a whole or even a specified
locality. Disturbance of public order is to be
distinguished from acts directed against
individuals which do not disturb the society to the
extent of causing a general disturbance, of public
tranquility. It is the degree of disturbance and its
effect upon the life of the community in a locality
which determines whether the disturbance
amounts only to a breach of law and order. Take
for instance, a man stabs another. People may be
shocked and even disturbed, but the life of the
community keeps moving at an even tempo,
however much one may dislike the act. Take
another case of a town where there is communal
tension. A man stabs a member of' the other
community. This is an act of a very different sort.
Its implications are deeper and it affects the even
tempo of life and public order is jeopardized
because the repercussions of the act embrace large
sections of the community and incite them to
make further breaches of the law and order and to
subvert the public order. An Act by itself is not
determinant of its own gravity. In its quality it
may not differ from another but in its potentiality
it may be very different."
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7. The question where a man has only committed
a breach of law and order or has acted in a
manner likely to cause a disturbance, of the public
order, according to the dictum laid down in the
above case is a question of degree and the extent
of the reach of the act upon the society. Public
order is what the French call "order publique" and
is something more than ordinary maintenance of
law and order. The test to be adopted in
determining whether an act affects law and order
or public order, as laid down in the above, case,
is : Does it lead to disturbance of the current of
life of the community so as to amount to a
disturbance of the public order, or does it affect
merely an individual leaving the tranquillity of the
society undisturbed ? "
10. Applying the ratio laid down in the above referred
decisions, the facts alleged in two crimes referred to in the
detention order, in our considered opinion, could not form the
basis or material for recording subjective satisfaction by the
authority in terms of Section 3 of the MPD Act, as none of the acts
in those two crime would either be termed to be disruptive of
maintenance of public order or any manner detrimental to its
maintenance. Clearly, in this case regular Penal Laws would deal
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with those two offences, which are under trial before the
concerned Court.
11. This takes us to the in-camera statements of the
witnesses. Perusal of in-camera statements clearly show that there
is non-application of mind by the detaining authority whilest
dealing with in-camera statements and placing reliance upon them
for passing the detention order. The confidential statement of
witness 'A' did not refer any specific incident except incident
allegedly occurred in the year 2012. It refers about the petitioner
that he leads luxury life by selling alcohol illegally and hurting
sentiments of other religious by gathering unlawful assembly and
creating common tension. Then, the statement refers to incident
of year 2018 alleging that he tried to create communal tension
between two groups. Thus, the statement of witness 'A' refers to
incident, which is more than five years old prior to the order. It
being stale material, having no live link with the action of
detention sought by the authority and could not have been
considered for having subjective satisfaction by the detention
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order. Perusal of confidential statement of witness 'B' refers to the
same incident on which second crime was registered, which we
have already dealt with and labelled as personal dispute between
the petitioner and the complainant- Rajesh Kondewad in the said
crime. Therefore, this statement also could not be considered for
arriving at subjective satisfaction for passing the impugned order.
12. It appears that two incidents which were relied by the
detaining authority wherein the complainant is common, weighed
in the mind of detaining authority or the proposing authority. The
authorities felt apprehension of repeating the offence by the
petitioner against the complainant in the said crime. A mere
apprehension of breach of law and order is not sufficient to meet
the standards of adversely affecting maintenance of public order.
Though nature of allegation, in second crime, against the detenu
is serious, the personal liberty of an accused cannot be sacrificed
on the altar of preventive detention, merely because a person is
implicated in criminal proceeding. The power of preventive
detention is exceptional. The case in hand is a clear example of
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non-application of mind to the material circumstances having
been bearing on subjective satisfaction of the detaining authority.
We are clearly of the opinion that there is no material on record of
the detaining authority, which could justify the order of detention
of the detenu under section 3 of the MPD Act.
13. For the reasons above, we quash and set quash and
set aside the impugned order dated 08.06.2023 passed by the
respondent no.2- District Magistrate, Yavatmal, so also order dated
17.07.2023 passed by the respondent no.1 and direct the detenu
to be set at liberty forthwith, unless his detention is required for
some other case. The petition is disposed of accordingly. The Rule
is made absolute.
(M.W. CHANDWANI, J) (VINAY JOSHI, J.)
Wagh
