Bombay High Court
Jogindersingh Ranjitsingh Chavan vs The State Of Maharashtra And Another on 9 January, 2025
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
2025:BHC-AUG:1504-DB
1
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD.
CRIMINAL WRIT PETITION NO. 1621 OF 2024
Jogindersingh Ranjitsingh Chavan
Age : 25 years, Occ : Labour,
R/o Railway Station Road, Shikalkari Vasti,
Basmat, Tq. Basmat, Dist. Hingoli, Maharashtra
..PETITIONER
-VERSUS-
1. The State of Maharashtra
Through Hon'ble Secretary,
Home Department (Special),
Mantralaya, Mumbai.
2. The Collector and District Magistrate of Hingoli,
Dist. Hingoli, Maharashtra.
..RESPONDENTS
...
Advocate for the petitioner : Mr. Shaikh Faiyazuddin
APP for Respondent- State : Mrs. P.R. Bharaswadkar
...
CORAM : SMT. VIBHA KANKANWADI AND
ROHIT W. JOSHI, JJ.
DATED : 9th JANUARY, 2025., 2024.
JUDGMENT (PER ROHIT W. JOSHI, J.) :
. The petitioner has filed the present petition under Article
226 of the Constitution of India, in order to challenge the order of
preventive detention dated 27.05.2024 issued by Respondent No.2 in
exercise of powers under Section 3(1) and (2) 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,
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1981 (Hereinafter referred to as "MPDA" for the purpose of brevity).
The said order is approved vide order dated 05.06.2024 passed by
Respondent No.1 under Section 3(3), which is also impugned in the
petition. The petitioner has been placed under preventive detention on
the ground that he is a "dangerous person" within the meaning of
Section 2(b-1) of MPDA. The grounds of detention dated 27.05.2024
have been communicated to the petitioner on the date of his detention.
The detaining authority has referred to 15 offences registered against
the petitioner from 11.08.2022 till 05.05.2024. Apart from this, one
externment proceeding under Section 55 of the Maharashtra Police Act
is also referred to. As per the grounds of detention, the detaining
authority has taken into consideration last two offences registered
against the petitioner, viz :- (I) F.I.R. No.82/2024 dated 09.02.2024, for
the offences punishable under Sections 353, 332, 212, 189, 504 read
with Section 34 of the Indian Penal Code and Section 4/25 of the Arms
Act and Section 142 of the Maharashtra Police Act and (ii) F.I.R.
No.250/2024 dated 05.05.2024 for the offences punishable under
Section 142 of the Maharashtra Police Act and Section 4/25 of the
Arms Act. It is stated that during the course of confidential enquiry, the
Police Inspector, Police Station, Vasmat City has recorded in-camera
statements of two witnesses, who have agreed for recording their
statements on condition of anonymity.
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2. The Advisory Board has expressed opinion after
considering the representation of the petitioner that there are sufficient
grounds for continuing preventive detention of the petitioner.
3. Shri Shaikh Faiyazuddin, learned counsel for the petitioner
submits that the two offences, which are stated to be taken into
consideration by the detaining authority are not relating to breach of
public order. He states that at the best the said offences can be said to
be relating to law and order and by no stretch of imagination it can be
said that public order has been adversely affected due to the same. He
points out that with respect to the offence registered vide F.I.R.
No.250/2024, the Police has merely issued a notice under Section
41A(1) of the Code of Criminal Procedure and has not arrested him. He
contends that the Police Authority itself has not considered the said
offence to be a serious offence. With respect to the second offence
registered vide F.I.R. No.82/2024, he states that he was arrested in
relation to the said offence on 05.05.2024 and subsequently released
on bail on 10.05.2024. He contends that taking the averments in the
said F.I.R. on its face value at best Section 4/25 of the Arms Act and
Section 142 of the Maharashtra Police Act can be attributed to him. The
other sections are not attributable to him. He criticizes the order of
preventive detention on the ground that for alleged breach of the
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externment order passed under Section 55 of the Maharashtra Police
Act, prosecution under Section 142 of the said Act is already initiated
against him. He would go on to submit that when recourse can be and
in fact has been taken to ordinary law in order to meet the situation,
Respondent No.2 could not resort to shortcut method by passing order
of prevention detention. With respect to the offence under Arms Act, he
states that the detention order does not refer to any notification under
the said Act and as such, the offence under the said Act is not made
out. Apart from this, he states that the order refers to 15 offences in all
and although it is stated that only the aforesaid two offences have been
taken into consideration, in fact all 15 offences have been considered
by the detaining authority. He states that since stale offences have been
taken into consideration. The order stands vitiated on the ground that
irrelevant considerations have weighed with detaining authority while
passing the impugned order of preventive detention.
4. Per contra, Smt. P.R. Bharaswadkar, learned APP has
strenuously argued that the petitioner has become a threat to the
society at large, he has willfully violated the order of externment
passed against him on more than one occasion, crime is his sole source
of income and as such he is threat to public law and order. She states
that although the detaining authority has made a reference to offences
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registered against the petitioner, the said references are only for the
purpose of understanding his background. She states that only two
offences, which are in proximity, have been taken into consideration
effectively for passing the order of preventive detention. She points out
from the F.I.R. that on both occasions when the petitioner was
apprehended while he has entered Vasmat City limits in breach of
externment order, he was found possessing a knife. She made elaborate
reference to the offence registered vide Crime No. 82/2024 to contend
that the petitioner and his family members had even threatened the
police authorities while they had been to his house for apprehending
him on learning that he had entered city limits in defiance to
externment order. She further states that the petitioner is a history-
sheeter. Victims and witnesses of crime committed by him do not feel
safe to depose against him or even to speak about his criminal activities
due to fear. She contends that having regard to totality of
circumstances, it was found essential to curtail his liberty by placing
him under preventive detention. She buttresses the submissions by
pointing out that even orders of externment did not deter him from
entering city limit with deadly weapons. She also states that all the
procedural safeguards like confirmation of order by the State
Government, reference to Advisory Board, opportunity of hearing by
the Advisory Board and a final order by the State Government upon
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considering positive report by the Advisory Board have been followed
in the present matter. She sums of the submissions urging that the
petition be dismissed.
5. At the outset we state that although subjective satisfaction
for preventive detention is arrived at on the basis of two offences, viz:-
Crime No.82/2024 and Crime No.250/2024, we find upon perusal of
grounds of detention that in fact all the 15 offences registered against
the petitioner have been taken into consideration by respondent No.2.
There is a specific reference to all the offences in paragraph 4.3.
Respondent No.2 has observed by making a reference to the said 15
offences that complainants in the said 15 cases were belonging to
different caste, religion, occupations and different age group and
different accomplices were involved with the petitioner in the said
offences. The offences were committed within the jurisdiction of
different Police Stations. Two offences are punishable with sentence of
over 7 years and deadly weapons like iron sickle, sword, iron pipe and
wood stick were used while committing the offence. It is thus clear that
all 15 offences have been taken into consideration while passing the
impugned order of detention. The order of detention is dated
27.05.2024, respondent No.2 has referred to 13 offences registered
from 11th August, 2022 to 2nd September, 2023. These offences are not
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in proximity of time. It is apparent that old and stale offences have
been taken into consideration while arriving at subjective satisfaction to
place the petitioner in preventive detention. Since irrelevant material
has weighed with Respondent No.2 while passing order of preventive
detention, the subjective satisfaction stands vitiated.
6. As regards the two offences, which according to
Respondent No.2 have been actually taken into consideration, the first
offence was registered on 09.02.2024, vide Crime No.82/2024. The
offence is registered under Sections 353, 332, 212, 189, 504 read with
Section 34 of the IPC, section 4/25 of the Arms Act and Section 142 of
the Maharashtra Police Act. Perusal of the F.I.R. in Crime No.82/2024
demonstrates that the informant is Police person posted at Vasmat City
Police Station. He states that a secret informer revealed to him that the
petitioner had entered the limits of Vasmat city in breach of the
externment order and was present at his house. This information was
received while he was on patrolling duty along with Police Inspector
and other police personnel. He states that on gathering this
information, the Police Party reached the house of the petitioner. On
noticing the Police Party, the petitioner jumped out of a window in the
house and climbed the tin shed of his house with a view to flee from
the spot. He states that the Police Party had apprehended him and
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while he and Police Inspector were taking him in Police Van, his father
took out a knife and threatened them. His father and brother created a
ruckus and terror at the spot. They along with mother of the petitioner
had indulged in a scuffle with the police personnel and could be
controlled only when the appropriate force was used against them. As
regards this offence, the contents of the F.I.R. will demonstrate that
offence under Section 142 of the Maharashtra Police Act and sections
189 and 504 of the IPC were committed by the petitioner, in as much
as, he had breached the externment order. The offence under Section
353 i.e. assault or use of criminal force to deter public servant from
discharging his duty, Section 332 i.e. voluntarily causing hurt to deter
public servant from performing his duty and Section 212 i.e.
harbouring an offender are attributable to the other accused persons,
viz:- parents and brother of the petitioner. The offence under the Arms
Act is also attributable to Ranjitsingh, father of the petitioner and not to
the petitioner. A perusal of F.I.R. will further demonstrate that it is not
even alleged that incident had occurred infront of people at large or
that it had caused any terror of fear amongst the people, who were
allegedly present. The said offence at best can be said to be law and
order issue and not public order issue.
7. Crime No.250/2024 came to be registered on 05.05.2024
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for the offences under Section 142 of the Maharashtra Police Act and
Section 4/25 of the Arms Act. The informant is Assistant Police
Inspector at Police Station, Vasmat City. He states that on 05.05.2024,
while conducting all out operation with other police persons, he was
patrolling in different areas in Vasmat City, he received secret
information that the petitioner had breached the externment order and
was roaming within the city limits with a knife. He states that at around
1:30 a.m., the Police Party reached the house of the petitioner and on
seeing the Police Party, he was trying to flee from house. He was then
apprehended with a knife which was concealed in his shirt.
8. As regards both these offences, the first thing is to be
noticed is that reasons recorded by the detaining authority as also F.I.Rs
do not mention that the Central Government has issued notification in
the official gazette as contemplated under Section 4 of the Arms Act
prohibiting acquisition, possessing and carrying of arms with respect to
Vasmat city or District Hingoli at the relevant time. Section 25 of the
Arms Act provides for punishment for various offences under the said
Act including breach of any of the provisions of the said Act. In the
absence of any prohibitory notification as contemplated by Section 4,
offence under Section 4/25 of the Arms Act does not appear to have
been committed. This is a prima facie opinion expressed only for the
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purpose of the present matter. In any case, we find that while applying
his mind to the material provided to him for arriving at subjective
satisfaction, Respondent No.2 - detaining authority ought to have
verified as to whether the provisions of the Acts under which offences
were registered were prima facie attracted or not. It is apparent that
respondent No.2 has not done so. Non-application of mind is, therefore,
writ large on the face of reasons for detention recorded by Respondent
No.2.
9. As regards offence under Section 142 of the Maharashtra
Police Act, the allegation against the petitioner is that an externment
order was passed against him and he had visited Vasmat city from
where he was externed while the said order was in operation. Breach of
the order of externment is an offence under Section 142 of the said Act.
We are of the considered opinion that when a situation i.e. breach of
externment order has been suitably addressed by taking recourse to
regular law under statutory provisions i.e. the Maharashtra Police Act,
action of preventive detention was completely unwarranted.
10. Perusal of two F.I.Rs. will demonstrate that the said
offences gave rise to law and order problem and not public order
problem. There is marked distinction between law and order and public
order.
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11. Distinction between the terms "law and order" and "public
order" has been explained by the Hon'ble Supreme Court in various
judgments from time to time. The Hon'ble Supreme Court has in the
matter of Ram Manohar Lohia Vs. State of Bihar reported AIR 1960 SC
633 held that in contravention of law always affects order, however,
before it can be said to affect "public order", it must be shown that it
affects the community or public at large. The Hon'ble Supreme Court
has categorized offences into three parts, viz:- (i) "law and order",
(ii) "public order" and "security of the State". In the words of the
Hon'ble Supreme Court these three categories of offences are like
concentric circles, largest being law and order, next being public order
and smallest being security of the State. Therefore, every offence which
may affect law and order will not affect public order. Just as an act
might affect public order may not affect security of the State. Therefore,
in every case of preventive detention, the Court must carefully examine
as to whether the offence/s stated to be committed by the detenue
fall/s within the category of law and order or public order. The order of
preventive detention can be justified only if the offence falls under later
category and not the previous one. Similar distinction has been made in
the matters of Pushkar Mukherjee Vs. State of West Bengal reported in
(1969) 1 SCC 10, Shyamlal Chakraborty Vs. Commissioner of Police,
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Culcutta reported (1970) 1 SCR 762 and State of Uttar Pradesh Vs.
Sanjai Pratap Gupta reported in (2004) 8 SCC 591. In the matters of
Ram Manohar Lohia (supra) and Sanjay Gupta (supra), the Hon'ble
Supreme Court has held that an offence can be said to affect public
order only it affects the community or general public at large. It is
stated that the action must be such that it disturbs even tempo of life of
the community at large. The Hon'ble Supreme Court has explained by
giving illustrations that act of theft, vandalism and even murder are
examples of mere breach of law and order whereas acts such as
communal riots, caste clashes etc., are offences affecting public order.
The said principles laid down by the Hon'ble Supreme Court from time
to time have been reiterated recent in the matter of Nenavath Bujji etc
Vs. State of Telangana reported in AIR 2024 SC 1610 and held that the
distinction between law and order and public order is one of degree
and extent of the reach of the act in question in the society at large. An
offence can be said to affect public order adversely only it is of such
nature as to disturb the normal tempo of life of members of community
at large. If the offence affects a few individuals only then it will be a
law and order issue and not public order issue. Even if the offences
committed in public view it can not be said that it affects public order
adversely, unless it directly affect the tempo of life of general public.
The Hon'ble Supreme Court while dealing with pari materia provisions
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for the State of Telangana held that in order to term a person as
"gunda" which is same as a dangerous person under MPDA, he must be
in the habit of adversely affecting public order or creating public order
situation. An habitual offender, who creates law and order problem
will, therefore, not be an habitual offender/dangerous person for the
purpose of laws relating to preventive detention.
12. Respondent No.2 has also relied on two in-camera
statements. In-camera statement dated 18.05.2024 marked as "A" refers
to an attempt to commit theft in house of the witness. This obviously
was not an attempt to commit offence adversely affecting public order.
Likewise the statement marked "B" stated to be recorded on 17.05.2024
also indicates that the petitioner had committed theft of billy goat and
was carrying the same on his motorcycle and on being asked about the
same, he misbehaved with the said witness and went away leaving the
billy goats at the spot. Apart from these specific allegations both
statements made general allegations without referring to any particular
incident. Both these statements do not remotely indicate that the
petitioner has caused any public order problem.
13. For the reasons aforesaid, we are of the opinion that the
petition deserves to be allowed. Hence, we pass the following order:-
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ORDER
I) The Writ Petition stands allowed.
II) The detention order dated 27.05.2024 bearing No.2024
DC-1/KAVI-255/2024/1697 passed by respondent No.2 as well as the
approval order dated 05.06.2024 and the confirmation order dated
30.08.2024 passed by respondent No.1 stand quashed and set aside.
III) Petitioner - Jogindersingh Ranjitsingh Chavan shall be released
forthwith, if not required in any other offence.
IV) Rule is made absolute in the above terms.
[ROHIT W. JOSHI] [ SMT. VIBHA KANKANWADI]
JUDGE JUDGE
sga/
