Bombay High Court
Shri Akash Raviprasad Dixit vs The State Of Mah. Thr. Principal ... on 24 September, 2024
Author: Vinay Joshi
Bench: Vinay Joshi
2024:BHC-NAG:10746-DB
1/12
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL WRIT PETITION NO.235 OF 2024
Shri.Akash Raviprasad Dixit,
aged about 22 years, R/o. Shivaji
Ward, Umarkhed, Ta. Umarkhed,
Dist. Yavatmal. Petitioner
-Versus-
1. The State of Maharashtra,
Through Principal Secretary
(Appeals and Security),
Home Department, Mantralaya,
Mumbai-32.
2. The District Magistrate,
Yavatmal, Tah and Dist.
Yavatmal. Respondents
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Shri Abhishek A Zade, counsel for the Petitioner.
Shri S.S. Doifode, APP for R-1 and 2.
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CORAM : VINAY JOSHI AND
MRS.VRUSHALI V. JOSHI, JJ.
Date of reserving the judgment: 04/09/2024
Date of pronouncing the judgment : 24/09/2024
JUDGMENT (Per :Vrushali V.Joshi, J.)
Heard.
2. Rule. Rule made returnable forthwith. The Criminal Writ
Petition is heard finally with the consent of the learned counsels
appearing for the parties.
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3. Invoking the powers of this Court under Articles 226 and
227 of the Constitution of India, the petitioner is impugning the
detention order no. Home/Pol/Desk-12/ws/1633/2023 dated
14.09.2023 passed by the Respondent no.2 -District Magistrate
under Section 3(2) of the Maharashtra Prevention of Dangerous
Activities of Slumlords, Bootleggers, Drug Offenders,Dangerous
Person and video Pirates, Act, 1981 (herein after referred to as the
MPDA,Act.) and confirmed by the State Government in terms of
Section 12(1) of the said MPDA Act, on 14.12.2023.
4. The grounds of detention were supplied to the
petitioner as contemplated under Section 8 of the MPDA, Act, on
the same day of the order of detention i.e., 14.09.2023. It was
mentioned in these grounds of detention that he was a dangerous
person responsible for causing communal riots hurting the religious
sentiments of communities, committing forcible theft by injuring
those belonging to scheduled castes and scheduled tribes creating
nuisance, threat and danger among the citizens.
5. In the recent past, four crimes: C.R.No.192/2023 dated
09.03.2023, C.R.No.230/2023 dated 26.03.2023, C.R.No.
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276/2023 dated 17.04.2023 and C.R.No.426/2023 dated
10.07.2023, have been registered, in which, the first and the third
offence is sub-judiced before the concerned Court while the second
and the fourth is under investigation. The statements of couple of
witnesses were recorded in-camera and verified through the Sub-
Divisional Police Officer, Pusad, before Respondent no.2 - District
Magistrate formed a subjective opinion that the activities of
petitioner were prejudicial to the public order.
6. Learned advocate for the petitioner challenges the order
of detention on following grounds:-
(i) The order comprises of old and past record, the Respondent
no.2 has referred that these crimes have not been taken into
consideration for passing the impugned order.
(ii) The petitioner was not informed about the action of approval
of the said order within the period of five months and the same
does not disclose the date of approval as well.
(iii) The petitioner was served upon with the letter dated
14.09.2023 before the hearing of matter by the Advisory Board
without obtaining his acknowledgement, therefore, opportunity of
hearing has not been given to the petitioner violating the principle
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of natural justice, as a consequence of which he was not able to
make representation.
7. Learned counsel for the petitioner submitted that, the
statement of witness "A" appears to have been recorded, when the
incident was alleged to have occurred in the month of May 2023,
So also, the statement of witness "B" appears to have been recorded
with regards to the incident alleged to have occurred eighteen
months prior to the statement given. He further submitted that,
due to the hasty action of the authorities, it appears malicious that
the in-camera statements of witness "A" and "B" were verified to be
true and bonafide.
8. The learned APP referring to the affidavit-in-reply filed
by the Respondent no.2 supports the order. He submitted that, the
petitioner was detained on 21.10.2023 in District Prison, Akola. He
was absconding after commission of crime on the day of 'Pola'
festival and the copy of the order of approval along with the
communication was made by the office of Respondent no.1 on
25.09.2023.
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9. Learned APP further submitted that, while passing the
detention order, Respondent no.2 has properly considered the
recent four crimes which are clearly mentioned in the grounds of
detention. It is submitted that, the petitioner was issued notice by
the Secretary, Advisory Board, Government of Maharashtra, on
20.11.2023 with respect to the hearing to be held on video
conferencing on 30.11.2023 at about 4:00 P.M. for which he
appeared. The report of the Advisory Board states that there is
sufficient cause for the detention of the petitioner to be continued
further. It is submitted that the criminal activities of the petitioner
shows his tendency to commit serious criminal offences after being
released from the prison, creating danger and a sense of insecurity
among people which is adversely affecting the maintenance of
public order. Hence, prayed to dismiss the writ petition.
10. The detaining authority has considered four offences and
two statements for passing the detention order. The ground of the
petitioner is that there is delay in passing the detention order and
there is no situation of disturbance of public order to pass the
detention order. Four crimes are considered. First Crime No.192 of
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2022 is for the offence punishable under Section 324 of the Indian
Penal Code. In this case, the petitioner has beaten the complainant
with stones and fists and blows under the influence of liquor when
the complainant went to take a tea in market. In this crime,
whether the complainant was on bail, or the notice is issued is not
mentioned.
11. The another Crime No.230 of 2023 is for the offence
punishable under Section 394, 336, 323, 504, 506 r/w 34 of the
Indian Penal Code. In this case, the petitioner assaulted his
neighbour Aniket with fists and blows along with his associates and
took 1550 from his pocket and when people gathered there, he left
the place.
12. The third Crime No.276 of 2023 is for the offence
punishable under Sections 294, 323, 506 r/w 34 of the Indian
Penal Code and for the offence punishable under Sections 4 and 25
of Arms Act. The complainant has stopped his car near the signal at
that time the applicant along with his associates came there and he
asked him why he has parked his car there and he slapped him and
thereafter by taking knife he broke the glass of his car.
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13. The fourth Crime No.426 of 2023 is for the offence
punishable under Sections 324, 323, 294, 506 r/w 34 of the Indian
Penal Code. In this case, the petitioner assaulted the complainant
with beer bottle on his head at that time, associates were with him.
The offence is registered. The last offence is committed on
10.07.2023. The order was passed on 14.09.2023 after near about
two months. Considering the nature of offences, it reveals that
though it is on public place, the ordinary law is sufficient to handle.
14. After going through the crime record, it reminds us that
recently this Bench has passed the order in Criminal Writ Petition
No.113 of 2024 on 29.08.2024 by considering same offences, who
is one of the associates of this petitioner. This Court has taken the
view that in all the three offences, the assailant is the petitioner and
his associates, though the weapons are used and the petitioner has
assaulted in public, these offences are not sufficient to term as it is
disturbing public order.
15. While considering whether it is situation of breach of
public order or law and order, the Hon'ble Apex Court in the case
of Ameena Begum Vs. The State of Telangana & Ors [Arising out
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of SLP (Criminal) No.8510/2023] has held in para Nos.31, 32 and
34 which read as under :
"31. It is trite that breach of law in all cases does not lead to pub-
lic disorder. In a catena of judgments, this Court has in clear terms
noted the difference between "law and order" and "public order.
32. We may refer to the decision of the Constitution Bench of
this Court in Ram Manohar Lohia vs. State of Bihar [(1966) 1
SCR 709], where the difference between "law and order" and
"public order" was lucidly expressed by Hon'ble M. Hidayatullah,
J. (as the Chief Justice then was) in the following words:
"54. *** Public order if disturbed, must lead to public dis-
order. Every breach of the peace does not lead to public
disorder. When two drunkards quarrel and fight there is
disorder but not public disorder. They can be dealt with
under the powers to maintain law and order but cannot be
detained on the ground that they were disturbing public
order. Suppose that the two fighters were of rival commu-
nities and one of them tried to raise communal passions.
The problem is still one of law and order but it raises the
apprehension of public disorder. Other examples can be
imagined. The contravention of law always affects order
but before it can be said to affect public order, it must af-
fect the community or the public at large. A mere distur-
bance of law and order leading to disorder is thus not nec-
essarily sufficient for action under the Defence of India
Act but disturbances which subvert the public order are.
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55. It will thus appear that just as 'public order' in the rul-
ings of this Court (earlier cited) was said to comprehend
disorders of less gravity than those affecting 'security of
State', 'law and order' also comprehends disorders of less
gravity than those affecting 'public order'. One has to
imagine three concentric circles. Law and order represents
the largest circle within which is the next circle represent-
ing public order and the smallest circle represents security
of State. It is then easy to see that an act may affect law and
order but not public order just as an act may affect public
order but not security of the State."
34. In Kuso Sah vs. The State of Bihar [(1974) 1 SCC 195],
Hon'ble Y.V. Chandrachud, J. (as the Chief Justice then was)
speaking for the Bench held that:
"4. *** The two concepts have well defined contours, it
being well established that stray and unorganised crimes
of theft and assault are not matters of public order since
they do not tend to affect the even flow of public life. In-
fractions of law are bound in some measure to lead to dis-
order but every infraction of law does not necessarily re-
sult in public disorder. ***
6. *** The power to detain a person without the safeguard
of a court trial is too drastic to permit a lenient construc-
tion and therefore Courts must be astute to ensure that
the detaining authority does not transgress the limitations
subject to which alone the power can be exercised. ***"
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16. The cognizance of the offences is taken under ordinary
criminal law in existence and two cases are pending for investiga-
tion and two cases are pending before the Competent Court.
17. In view of above said observations, the offences which
are considered for detention, does not come under the purview of
public order.
18. Two statements, which are considered by the detaining
authority are not even seen by the detaining authority while passing
the detention order. One of the ground for challenging the
detention order is that there is no subjective satisfaction about the
truthfulness of the statement of confidential witnesses.
19. The learned A.P.P. has placed reliance on the judgment of
Zebunnisa Abdul Majid Vs. M. N. Singh and Others. [2001(3)
Mh.L.J. 365], in which it is observed that though the truthfulness
of the statements are not physically verified by the detaining
authority, it is verified by the recording authority and it is discussed
by the detaining authority and if it is mentioned in the affidavit that
he is satisfied by discussing and going through the statements of the
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witnesses, that affidavit is sufficient for the subjective satisfaction of
the truthfulness of the said statements.
20. In support of his argument about subjective satisfaction
of the truthfulness of the statements he has also relied on the fol-
lowing judgments :
i] Mohammed Mustafa S/o. Mohammad Mastan Vs.
The State of Maharashtra and Anr. [2018 ALL MR (Cri)
37].
ii] G. Reddeiah Vs. Government of Andhra and
anr. [(2012) 2 SCC 389].
21. On perusal of the grounds in this case, it appears that the
detaining authority has not even discussed with the recording
authorities and verifying authorities and not subjectively satisfied
about the truthfulness of the statements. Both the witnesses have
mentioned the incident of 18 months before giving the statement.
Though the statement was recorded on 21.08.2023, the incidents
are mentioned prior to 18 months while recording the statement.
Though it was verified by the S.P on 28.08.2023, it is not even
seen by the detaining authority. Nothing is there on record to show
that the detaining authority has discussed with the person who have
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verified it. Though it is mentioned in the affidavit that he is
satisfied by the correctness and truthfulness of the statement which
is not even seen by the detaining authority, therefore, the
statements cannot be considered for passing the detention order.
22. There is delay in passing the order, the bails orders are
not considered while passing the detention order. The bail orders
are not even placed before the detaining authority and it is not
mentioned by the detaining authority in the grounds of detention.
Therefore, the detention order stands vitiated. In view of above
observations, the application is allowed.
23. The detention order passed by the detaining authority
is quashed and set aside.
24. The petitioner be set at liberty forthwith, if not required
in any other crime.
25. Rule is made absolute in aforesaid terms.
(MRS.VRUSHALI V. JOSHI, J) (VINAY JOSHI, J)
Signed by: Kavita P Tayade
Designation: PA To Honourable Judge
Date: 26/09/2024 18:38:18 Kavita
