Bombay High Court
Gabbu Kisan Gujariwal vs The State Of Maharashtra Thr. Section ... on 2 April, 2025
Author: Nitin W. Sambre
Bench: Nitin W. Sambre
2025:BHC-NAG:3453-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL WRIT PETITION NO.45 OF 2025
Gabbu S/o Kisan Gujariwal
Aged about 28 years, Occ. Labor
R/o Sajanpuri, Khamgaon
Tah. & Dist. Khamgaon. Petitioner
-Versus-
1. State of Maharashtra
Through Section Officer
Home Department (Special)
2nd Floor Main Building Mantralaya,
Madam Cama Road, Mumbai -
400032.
2. District Magistrate
Dist, Buldana.
3. Sub-Divisional Police Officer
Khamgaon, Dist. Buldana.
4. Police Station Officer
Police Station Shivaji Nagar,
Khamgaon, District Buldhana
5. Superintendent, District Prison, Respondents
Dist. Akola.
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Mr.Amol Mohan Jaltare, counsel for the Petitioner.
Mr. A.J. Gohokar, A.P.P. for respondent Nos. R-1 to 5.
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CORAM : NITIN W. SAMBRE AND
MRS. VRUSHALI V. JOSHI, JJ.
DATE : 02/04/2025
ORAL JUDGMENT (Per: Vrushali V. Joshi, J.)
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1) Heard.
2) Rule. Rule made returnable forthwith. The Criminal Writ
Petition is heard finally with the consent of the learned counsel
appearing for the parties.
3) The petitioner aggrieved by the order dated 21.06.2024
passed by the District Magistrate, Buldhana (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 of Essential Commodities Act, 1981,
(hereinafter referred to as "MPDA Act") and subsequent
confirmation of the same by Respondent no.1 on 07.08.2024 has
preferred the instant criminal writ petition against the impugned
order.
4) The first crime which has been taken up for consideration in
passing the detention order is Crime No. 41/2024 registered
under Sections 326, 341, 143, 147, 148, 427, 504 of the Indian
Penal Code r/w 3(1) (r) (s), 3(2) (va) of the SC/ST Atrocities Act
at Police Station, Shivajinagar, Khamgaon. On the F.I.R of one
Kailas Tayade, it is stated that the present petitioner along with
twenty six others stopped the complainant, who was handing over
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his cow to one Sheikh Akram for care, dubious of slaughtering,
abused based on caste and beat him.
5) The second offence is registered against the complainant
and his companion in Crime no.41/2024, alleged of commission
of the crime under Sections 34 of IPC r/w 11(1)(a), 11(1)(d),
11(1)(e), 11(1)(f), 11(1)(h), 11(1)(i) of the Animal Cruelty Act
and Sections 5(A)(1), 5(A)(2), 5B, 9 of the Maharashtra Animal
Preservation Act under the charges of carrying one red coloured
cow whose legs were tied and she was kept in a white coloured
gunny bag having insufficient space.
6) Since the second crime is not related to the petitioner, it has
not been taken into consideration for passing the detention order.
The report which came to be sent by the Police Inspector, Police
Station Khamgaon, Buldhana, under the MPDA Act for the
proposed detention of the petitioner does not bear date.
7) In Crime no. 89/2024 the offence u/s 4, 25 of the Arms
Act r/w Section 188 of the IPC and Section 135 of the
Maharashtra Police Act is registered, it is alleged that the detenu
was absconding in C.R. 41/2024. Upon receiving secret
information, when police authorities reached his house, the
petitioner ran away by dropping a sword from his hand and
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thereafter he was not traced, while the weapon came to be seized.
8) Adv. Jaltare has pressed onto certain grounds which are as
under:
(a) The respondents have miserably failed to appreciate the
fact that in C.R. no. 41/2024, the petitioner with an intent to
prevent the complainant party and save the cows from being sent
to the slaughter house, has been solely targeted as he is an active
member of the Rashtriya Gau Seva Sangha.
(b) That the facts in C.R. no. 42/2024 have not been dealt
with by the Respondent no.4 while forwarding the proposal to
the authorities justifying the need of detention.
(c) In-camera statements of both the witneses refer to incident
in Crime no. 41/2024, i.e., assault and beating to one person of
Scheduled Caste and one of another caste and damage to their
vehicle. The police authorities were very well aware of the fact
that the said incident was in respect of saving a cow being sent to
slaughter house.
9) The counsel for the petitioner submitted that, in-camera
statements of witnesses "A" and "B" are identical and do not bear
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remark and endorsement of verification by the competent
authority.
10) Learned A.P.P. opposed the submissions of the petititoner
and relied on the affidavit-in-reply filed on behalf of the
petitioner.
11) He argued that the proposal submitted by Respondent
no.4 includes various Sections under which the petitioner has
been charged and respective criminal cases are pending before the
competent Courts. No cogent material or evidence has been put
forth by the petitioner. The District Magistrate, Buldhana, has
also relied upon meaningful statements of two secret witnesses to
come to the conclusion that, looking at the graph of crimes of the
present petitioner, his violent attitude and criminal habits,
repeated commission of crimes in the surrounding areas, creating
disturbance and danger needs consideration under the provisions
of the Act of 1981.
12) Heard both the learned counsel.
13) On perusal of the detention order passed by the
detaining authority, it appears that the order has been passed
in a very casual manner. The requirement of consideration of
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recent crimes within six months is not followed by the
detaining authority while passing the detention order. The
entire criminal history is considered for passing the detention
order. Since 2015, all the crimes have been taken into
consideration labelling the petitioner as a 'dangerous person'.
If we peruse the entire list of offences and presume that last
two offences are considered for passing the detention order,
which are committed in the year 2024 i.e, Crime No. 41 of
2024 and Crime No.89 of 2024. It appears from the record
that Crime no.41 of 2024 is registered as the petitioner along
with 21 persons tried to release the cow, which was being
taken to the slaughter house by the complainant, therefore,
the petitioner along with other persons restrained the
complainant and the crime was registered against all 21
persons. The petitioner has stated in this petition that the
complaint was also lodged by the petitioner against the
complainant and the said counter complaint is not considered
by the detaining authority. It was against the complainant for
cruelty towards animals.
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14) The other offence which we can consider is crime
No.89 of 2024. In the said offence, the crime is registered
for the offence punishable under sections 4 and 25 of the
Arms Act and Section 188 of the Indian Penal Code and
Section 135 of the Prohibition Act. On receiving information
that the petitioner came to his house as he was absconding in
Crime No.41 of 2024, the police went to his house. The
petitioner was not present but the police have seized the
sword from his house and the crime came to be registered.
Prima facie, it appears that it was not taken from possession
of the petitioner and therefore, the offence under sections 4
and 25 of the Arms Act will not be attracted.
15) As all the offences since 2015 are considered while
passing the detention order. Such extraneous material is not
permissible in the eyes of law to form basis or consider for
passing the impugned order.
16) The petitioner has placed reliance on the decision of
Khaja Bilal Ahmed Vs.State of Telangana and ors. reported
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in 2019 DGLS (SC)1677 in support of his argument, that
bail order and First Information Reports of stale offences
have been taken into account which influenced the mind of
the authority. In para 15 it has been observed as under:-
15. In the present case, the order of
detention states that the fourteen cases were
referred to demonstrate the "antecedent criminal
history and conduct of the appellant". The order
of detention records that a "rowdy sheet" is
being maintained at PS Rain Bazar of Hyderabad
City and the appellant "could not mend his
criminal way of life" and continued to indulge in
similar offences after being released on bail. In
the counter affidavit filed before the High
Court, the detaining authority recorded that
these cases were "referred by way of his criminal
background... (and) are not relied upon". The
detaining authority stated that the cases which
were registered against the appellant between
2009 and 2016 "are not at all considered for
passing the detention order" and were "referred
by way of his criminal background only". This
averment is plainly contradictory. The order of
detention does, as a matter of fact, refer to the
criminal cases which were instituted between
2007 and 2016. In order to overcome the
objection that these cases are stale and do not
provide a live link with the order of detention, it
was contended that they were not relied on but
were referred to only to indicate the antecedent
background of the detenu. If the pending cases
were not considered for passing the order of
detention, it defies logic as to why they were
referred to in the first place in the order of
detention. The purpose of the Telangana
Offenders Act 1986 is to prevent any person
from acting in a manner prejudicial to the
maintenance of public order. For this purpose,
Section 3 prescribes that the detaining authority
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must be satisfied that the person to be detained
is likely to indulge in illegal activities in the
future and act in a manner prejudicial to the
maintenance of public order. The satisfaction to
be arrived at by the detaining authority must not
be based on irrelevant or invalid grounds. It
must be arrived at on the basis of relevant
material; material which is not stale and has a
live link with the satisfaction of the detaining
authority. The order of detention may refer to
the previous criminal antecedents only if they
have a direct nexus or link with the immediate
need to detain an individual. If the previous
criminal activities of the appellant could indicate
his tendency or inclination to act in a manner
prejudicial to the maintenance of public order,
then it may have a bearing on the subjective
satisfaction of the detaining authority. However,
in the absence of a clear indication of a 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."
17) The material which was expected to be produced
before the detaining authority is not produced such as the
First Information Report, which was registered against the
complainant based on the complaint lodged by the petitioner.
As such said material is not considered by the detaining
authority. On perusal of confidential witnesses, it reveals that
the statements of the witnesses which are considered for
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passing of the detention order are not even verified or seen by
the detaining authority. In both the statements the witnesses
have stated about the general nature of the petitioner and the
incident of 09/02/2024. No subjective satisfaction is
recorded about the truthfulness of the statements. Extraneous
material, stale offences are considered. If the latest offences
are considered, there is no subjective satisfaction regarding
the disturbance of the public order.
18) In view of the above mentioned observations, the
impugned order passed by the detaining authority is hereby
quashed and set aside. Hence, we pass the following order.
19) The Writ Petition is allowed in terms of it's prayer
clauses (i) and (ii). The petitioner be set at liberty forthwith,
if not required in any other crime.
20) Rule is made absolute in above terms.
Signed by: Kavita P Tayade (MRS.VRUSHALI V. JOSHI, J) (NITIN W. SAMBRE, J)
Designation: PA To Honourable Judge
Date: 04/04/2025 10:36:20 Kavita
