Bombay High Court
Bhushan S/O. Chandrakant Pohokar vs The State Of Mah. Thr. Its Secretry Home ... on 3 September, 2024
Author: Vinay Joshi
Bench: Vinay Joshi
2024:BHC-NAG:10056-DB
1 wp153.2024
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL WRIT PETITION NO.153/2024
Bhushan S/o Chandrakant Pohokar,
aged about 22 Yrs., Occ. Labour,
R/o Mahatma Fule Nagar, Navsari,
Amravati, Distt. Amravati. ... Petitioner
- Versus -
1. The State of Maharashtra,
through its Secretary, Home
Department (Special),
Mantralaya, Mumbai.
2. The Commissioner of Police,
Amravati City, Distt. Amravati.
3. The Police Inspector,
Police Station Gadge Nagar,
Distt. Amravati. ... Respondents
-----------------
Mr. Sumit Gandhe, Advocate for the Petitioner.
Mr. A.R. Chutke, A.P.P. for Respondent Nos.1 to 3.
----------------
CORAM: VINAY JOSHI & MRS.VRUSHALI V. JOSHI, JJ.
DATED: 3.9.2024.
ORAL JUDGMENT (Per Mrs. Vrushali V. Joshi, J.)
Heard Mr. Sumit B. Gandhe, learned Advocate for the
petitioner and Mr. A.R. Chutke, learned A.P.P. for respondent
Nos.1 to 3. Rule.
2 wp153.2024
2. The petitioner challenges the order of detention dated
14.10.2023 passed by respondent No.2 which is confirmed by
respondent No.1 vide order dated 4.12.2023.
3. Learned Advocate for the petitioner has taken us
through the impugned orders and the material which was before
the Authorities at the time of passing the impugned orders. He
submits that two offences are considered for passing the detention
orders. The first offence is Crime No.554/2023 punishable
under Sections 363, 366, 376(2)(n), 376(3), 504 and 506 of
Indian Penal Code and Sections 4 and 6 of Protection of Children
from Sexual Offences Act. It was registered on 20.4.2023.
Another offence is registered against him as he has violated the
externment order and, therefore, the offence i.e. Crime
No.575/2023 is registered under Sections 142 and 135 of the
Maharashtra Police Act along with Sections 4/25 of Arms Act. It
was registered on 25.4.2023. Both the cases are pending before
3 wp153.2024
the concerned Court. In both the offences the petitioner is on
bail.
4. The impugned order is passed on 14.10.2023 and
confirmed on 4.12.2023. Learned Advocate for the petitioner has
stated that there was no live link between the last crime registered
against the petitioner and the order of detention. If we consider
the F.I.R. in the first offence it would show that the incident had
taken place on 20.4.2023. Though the petitioner was on bail the
contents of the bail orders are not considered. The serious offence
is registered against the petitioner for the offence punishable
under POCSO Act and Sections 376(2) and 376 (3) of I.P.C.
5. Learned Advocate for the petitioner has contended
that the petitioner was released on bail as the victim herself has
filed the say stating that the offence has been registered on the say
of owner of petrol pump and no incident occurred as alleged in
the F.I.R. and, therefore, he has been released on bail. Another
4 wp153.2024
offence is registered as the petitioner has jumped the externment
order. He was found in the area from which he was externed and,
therefore, the offence is registered. Considering the nature of both
the offences it does not create the situation disturbing the public
order. The first offence is in individual capacity and no public
order is affected in said offence.
6. The petitioner was released on bail under the orders
of the Court and, therefore, it will have to be held that there was
no subjective satisfaction of the authority to pass the detention
order. As regards in-camera statements it appears that the
verifying authority is different and the detaining authority has
only put remark as 'seen'. The record does not show that the
detaining authority has personally verified the contents of
in-camera statements by calling those witnesses. The petitioner
has further relied on the decision in case of Khaja Bilal Ahmed V/
s. State of Telangana reported in (2020) (13) SCC 632 wherein it
is observed that "......In the absence of a clear indication of a
5 wp153.2024
causal connection, a mere reference to the pending criminal cases
cannot account for the requirements of Section 3. It is not open to
the detaining authority to simply refer to stale incidents and hold
them as the basis of an order of detention. Such stale material will
have no bearing on the probability of the detenu engaging in
prejudicial activities in the future."
7. Further reliance has been placed on Alakshit V/s. The
State of Maharashtra and others reported in 2023 ALL MR (Cri)
1919 in support of his argument that the contents of the bail
orders are necessary to be considered while passing the detention
order. He has also relied on the decision in case of Alam Hussain
Sheikh V/s. Commissioner of Police and others reported in 2018
ALL MR (Cri) 1098 in support of his argument that there is delay
in passing the detention order and there is no live link. He has
further submitted that no confirmation of such order ought to
have been done by the State as it was suffering from illegality and
it deserves to be set aside.
6 wp153.2024
8. Per contra, learned A.P.P. has strongly opposed the
petition supporting the detention order passed by the detaining
authority. He has stated that there is no delay in passing the
detention order. Considering the offences committed by the
petitioner and the detenue is a famous criminal and is involved in
criminal activities with his active role from 2019. He is involved
in various offences like simple hurt, grievous hurt, attempt to
murder, robbery, damage to property, breach of peace,
threatening, possession of dangerous weapon, violation of
prohibitory order, violation of notifications, abducting,
kidnapping a girl and raping her etc. Deputy Commissioner of
Police Zone-1, Amravati City had passed the externment order
against the detenue for the period of one year but the detenue
during such period entered intentionally in externment area
without previous permission of superior authority and violated
the said order. Ample opportunity was given to the detenue to
change his behaviour but he is continuously committing offences
and his behaviour is not changing. Because of his activities the
7 wp153.2024
public peace and public order is breached and there is certainty of
damage to the life and property of the general public. The
detenue was continuously engaged in criminal activities during
his bail period. Hence prayed to dismiss the petition.
9. The learned A.P.P. has relied on the following
judgments:-
(i) Vishal Aananda Mahabal V/s. The
State of Maharashtra and others reported in 2022
ALL MR (CRI) 2494,
(ii) Rohit @ Karan S/o Purshottam
Naukariya V/s. State of Maharashtra and others
reported in 2022 ALL MR (Cri) 3758,
(iii) Allauddin Nigro @ Babu Chand
Sayyed V/s. The State of Maharashtra and another
reported 2013 ALL MR (Cri) 801,
(iv) Shri Sujit Suresh Menpal V/s. Shri
A.N. Roy, Commissioner of Police, Br. Mumbai
and others reported in 2006 ALL MR (Cri) 3017,
(v) Segar @ Sekar K. Nadar V/s. Shri R.H.
Mendonca, Commissioner of Police and others
reported in 1999 ALL MR (Cri) 1768,
(vi) Iqbal Munnaf Sayyed V/s. The
Commissioner of Police, Pune City and others
reported in 2108 ALL MR (Cri) 968,
8 wp153.2024
(vii) Jagdish Suresh Kudekar V/s. The
Commissioner of Police, Thane and others
reported in 2020 ALL MR (Cri) 3898 and
(viii) Ashok Kisan Jadhav V/s. The State of
Maharashtra and another reported in 2021 ALL
MR (Cri) 1873.
10. From the detention order it is to be noted that for the
purpose of passing it, two offences were considered as aforesaid.
It is not in dispute that in both the cases the petitioner has been
released on bail. It is well settled law that the grounds on which
the detenue is granted bail also form important part of the
material available against such person and, therefore, it is the duty
of detaining Authority to consider that material. Grant of bail is
an important factor which goes into making up of requisite
satisfaction of Authority. Though it is mentioned in the grounds
that the petitioner was on bail, the orders passed by the
competent Courts are not considered while passing the detention
order. When those offences were considered the detaining
authority ought to have considered the proceedings of those cases.
In first case the offence is committed for the serious offence like
9 wp153.2024
rape and offence under the POCSO Act. He was released on bail.
If the detaining authority would have considered the contents of
bail orders then said offences would not have been considered for
passing the detention order because victim herself had given the
statement that no such offence is committed and she had given no
objection for releasing the petitioner on bail and then the detenue
is released on bail. When the judicial opinion leans in favour of
petitioner, the detaining Authority is obliged to pay its difference
to it. This has not been done by the detaining Authority. The
petitioner has placed reliance on judgment of this Court in case of
Alakshit (supra) in support of his argument. The question,
therefore, arises as to how the said offence can be considered to
assess the behaviour of the petitioner as detrimental to public
order. The preventive action was taken against the detenue as he
has violated the said order passed by the S.D.M., therefore, the
crime is registered under Sections 142 and 135 of the
Maharashtra Police Act i.e. violating the externment order which
cannot be taken into consideration for passing the detention
10 wp153.2024
order. We, therefore, held that there was no subjective satisfaction
arrived at by the detaining authority before passing the impugned
detention orders.
11. In-camera statements of witnesses "A" and "B" though
taken into consideration they would certainly about the extortion.
The witness has stated the incident of 28.8.2023 and statement
was recorded on 19.9.2023. Another witness has also stated the
incident dated 15.8.2023. It is also of extortion by showing the
knife. We, therefore, agree with the submissions of learned
Advocate for the petitioner passed in Khaja Bilal Ahmed (supra)
wherein Ameena Begum V/s. State of Telangana and others
reported in 2023(9) SCC 587 and Dr. Ram Manohar Lohia V/s.
State of Bihar and others reported in 1966 SCR (1) 709 are
considered holding that the offences which are pending before the
Court can at the most create law and order situation and not the
public order.
11 wp153.2024
12. The petitioner has also raised the ground of delay in
passing the detention order from the date of last crime. Let us
consider the date wise incidents. The time will not start to run
from the date of the last offence that was registered. For
considering delay, we will have to consider the time till last
offence, then in-camera statements, verification by superior
officers and also the detaining Authority. Two offences which
were considered by the detaining authority are dated 20.4.2023
and 25.4.2023. The statements were recorded on 16.9.2023 and
14.9.2023. The incidents mentioned in said statements are of
15.8.2023 and 28.8.2023. The order was passed on 14.10.2023
and confirmed on 4.12.2023. Even if we consider the dates of
verification which is done by Assistant Commissioner on
26.9.2023, Commissioner of Divisional Office Amravati on
9.10.2023 and seen by Authority on 13.10.2023, there is delay in
passing the order. No explanation is given by the respondents in
the reply as to why there is delay. According to respondents there
is no delay in passing the detention order and there is live link but
12 wp153.2024
considering the dates of the offences and the order passed there is
inordinate delay which is not explained.
13. Though the Advisory Board has approved the
detention order yet for the aforesaid reasons we do not find that
there was any material before the detaining authority to detain the
petitioner and, therefore, confirmation of the said order cannot be
upheld.
14. The judgements relied upon by the learned A.P.P. are
not applicable to the case in hand as the facts stated therein are
different than the present case.
15. For the above said reasons, the petition deserves to be
allowed and it is accordingly allowed.
The petitioner be set at liberty forthwith, if not
required in the any other crime.
(MRS.VRUSHALI V. JOSHI, J.) (VINAY JOSHI, J.)
Tambaskar.
Signed by: MR. N.V. TAMBASKAR
Designation: PA To Honourable Judge
Date: 06/09/2024 15:18:55
