Bombay High Court
Om @ Vinay S/O Laxman Dangoriya vs The State Of Maharashtra Thr. Home Dep. ... on 17 January, 2025
Author: Nitin W. Sambre
Bench: Nitin W. Sambre
2025:BHC-NAG:519-DB
cri.w.p.451-24.odt
1/10
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL WRIT PETITION NO.451 OF 2024
1. Om @ Vinay s/o. Laxman Dangoriya, Petitioner
aged about 25 years, Occ: Student, R/o.
Navalbaba Ward, Pusad,
Tal: Pusad, District: Yavatmal.
At present lodged in Amravati Central
Prison,Amravati.
-Versus-
1. State of Maharashtra, Respondents
Through Home Department (Special),
2nd Floor, Mantralaya, Mumbai - 400 032.
2. District Magistrate, District - Yavatmal.
3. Sub-Divisional Police Officer, Pusad, District
- Yavatmal.
4. Police Inspector, Police Station Pusad City,
Pusad, District: Yavatmal.
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Adv. Hariom V. Dhage, counsel for the Petitioner.
Adv. S.S. Hulke, A.P.P. for R-1 to 4 for Respondents.
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CORAM : NITIN W. SAMBRE AND
MRS. VRUSHALI V. JOSHI, JJ.
DATE : 17/01/2025
ORAL 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 counsel
appearing for the parties.
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3. By way of this Petition, under Article 226 of the
Constitution of India, the petitioner is challenging the impugned
order dated 07/05/2024 passed by the Respondent no.2 in exercise
of the powers conferred by 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);
which is approved by the State on 16/05/2024.
4. The two offences i.e., C.R. no. 95/2024 and C.R. no.
112/2024 which are taken into account for passing the detention
order were registered on 22/02/2024 and 05/03/2024 respectively.
The in-camera statements of witnesses "A" and "B" too have been
relied upon.
(i) C.R. no. 95/2024 is filed under Sections 324, 323,
504, 506, 34 of the Indian Penal Code at the Pusad
City, Police Station.
(ii) C.R. no. 112/2024 is filed under Sections 324,
323, 504, 506, 143, 144, 147, 148 and 149 of the
Indian Penal Code at the Pusad City, Police Station.
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The particulars of both the crimes are as under:
(a) In C.R. no. 95/2024, the complainant, a resident of
Kamptee, Nagpur, along with his friend, for the purpose of his
fabrication work had gone to visit his site at the Pusad City. After
the work, they went to a Chinese food handcart and placed the
order. Since, their order did not arrive within fifteen minutes after
they placed the order, they were about to leave when the owner of
the food cart raised his voice. A fight broke out between them. The
complainant resisted the beating and the boy wearing a black T-
shirt hit the complainant's friend on the back of his head with a
wooden stick and also threatened to kill them if they were seen at
that place again. Therefore, both the accused were served with a
notice under 41-A of the Code of Criminal Procedure. The
petitioner is alleged to be an accomplice in the said offence. The
matter is sub-judice before the concerned Court.
(ii) In C.R. no. 112/2024, the petitioner with his associates
was bursting firecrackers in front of the house of the complainant.
The complainant requested them to not burst the crackers as they
could potentially catch fire which could be dangerous for everyone
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in their home. The petitioner along with his associates took out
weapons such as iron rod, wooden bat, iron pipe, stick and abused
the complainant and his family members and threatened to kill
them. The present matter is under investigation.
5. The grounds raised by the learned advocate of the
petitioner are as under:
(a) One of the most important grounds raised is that,
Respondent no.4 had falsely created criminal antecedents against
the petitioner in order to get his detention order.
(b) Respondent no.4 while recording the confidential
statement of witness B, failed to see that the witness had mere
grudges and that the statement revealed their identity.
(c) Further, the detaining authority failed to see that on
earlier occasion also Respondent no.4 had sought for externment of
the petitioner from five districts for a period of two years, which the
Respondent no.3 after due consideration of the material on record
and considering the cases against the petitioner had rejected the
proposal of the Respondent no.4 seeking externment of the
petitioner.
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6. The learned advocate for the petitioner, Mr. Dhage,
submitted that, the petitioner was granted bail in all the cases. He
further submitted that, the subjective satisfaction of the verifying
authority has to be about unwillingness of such witnesses to come
forward and to depose against the detenu, so also about the
truthfulness of the statement. The perusal of the statements clearly
establishes the identity of the witnesses and the statements are not
of the anonymous witnesses but of the alleged victims having
grudges against the detenu himself.
7. On the other hand, Learned A.P.P., Mr. Hulke, vehemently
opposed the submissions of the petitioner by heavily relying upon
the affidavit in-reply on behalf of the Respondent no.2.He
submitted that, upon perusal of the grounds of the detention in
para no. 8 of the order and the particulars of the crimes mentioned,
it clearly shows that the petitioner had actively indulged in the said
offences against public wherein, such acts of the petitioner has
caused deterrence in public and has even disturbed the peace and
tranquility in the society.
8. Learned A.P.P. further contended that, the dismissal of the
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proposal of externment by the Sub-Divisional Magistrate, vide
order dated 07/12/2023, ipso facto cannot be a ground to set aside
the detention order as the said authority had considered the
circumstances prevailing at the time of issuance of the said
proposal. There is no nexus between the dismissal of the
externment proposal and the detention order passed.
9. Heard the learned counsel appearing for the petitioner
and the learned APP for the respondents.
10. The petitioner is detained as a dangerous person. Two
crimes are considered for passing the detention order. An order of
detention under Section 3(1) of the Act can be issued against the
detenu to prevent him from acting in any manner prejudicial to the
maintenance of public order. Public order is defined in the
explanation to Section 2(a) of the Act as encompassing situations
that cause "harm, danger or alarm or a feeling of in security among
the general public or any section thereof or a grave wide-spread
danger to life or public health."
11. The breach of law in all cases does not lead to public
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disorder. In number of cases, the Hon'ble Apex Court has noted
the difference between "law and order' and "public order". In the
judgment of Ameena Begum Vs. The State of Maharashtra and ors .,
[SLP (Criminal) No.8510 of 2023] the Hon'ble Apex Court has
referred the decision of the Constitutional Bench of the Apex Court
in the case of Ram Manohar Lohia Vs.State of Bihar , reported in
(1966) 1 SCR 709,wherein it is observed as under:
54. *** Public order if disturbed, must lead to
public disorder. 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 communities 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 affect the community or the
public at large. A mere disturbance of law and
order leading to disorder is thus not necessarily
sufficient for action under theDefence of India
Act but disturbances which subvert the public
order are. A District Magistrate is entitled to take
action under Rule 30(1)(b) to prevent subversion
of public order but not in aid of maintenance of
law and order under ordinary circumstances.
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55. It will thus appear that just as "public
order" in the rulings 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 representing 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".
12. In Kuso Sah Vs. The State of Bihar, reported in (1974)
1 SCC 195, the Hon'ble Apex Court in para No.4 and 6 has
observed as under:-
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. Infractions of
law are bound in some measure to lead to
disorder but every infraction of law does not
necessarily result in public disorder.***
6. *** The power to detain a person without the
safeguard of a court trial is too drastic to permit a
lenient construction 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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13. If the offence is committed against a particular individual
it falls within the ambit of "law and order" whereas when the public
at large is adversely affected by the criminal activities of a person,
then such conduct of the person is said to be disturbing the "public
order". The distinction between the areas of "law and order" and
public order' lies not merely in the nature or quality of the act, but
in the proper degree and extent of its impact on the society. In the
aforesaid cases, it has been held that the cases do not fall within the
ambit of words 'public order' or 'disturbance of public order'
instead, they fall within the scope of the words "law and order", and
that there was no need for the detaining authority to pass the
impugned order. Therefore, the impugned order was quashed and
the detenu was set at liberty.
14. The offences alleged to have been committed by the
detenu, it appears that in both the offences, the acts affects the
individuals. In first offence the crime under Section 324 is
registered in which the role of the petitioner was not the main role.
In another offence, the enmity was there with the family of the
complainant and it is also the act against an individual. Such acts
would not tend to affect even the flow of public life.
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15. The statement of the confidential witnesses also does not
reveal that it affects the public order. It is against an individual. It is
only seen by the detaining authority. Considering the identical
contents in both the statements and as it is only seen by the
authority, the statements are also not helpful to pass the said order.
16. In view of the above said observations, the impugned order
passed by the detaining authority is hereby quashed and set aside.
Hence, we pass the following order.
17. The Writ Petition is allowed in terms of it's prayer clause
(b). The petitioner be set at liberty forthwith, if not required in any
other crime.
18. Rule is made absolute in above terms.
(MRS.VRUSHALI V. JOSHI, J) (NITIN W. SAMBRE, J)
Signed by: Kavita P Tayade
Designation: PA To Honourable Judge
Date: 17/01/2025 16:30:54 Kavita
