Bombay High Court
Harshal Rakesh Brahmne vs State Of Maharashtra Through Its ... on 6 March, 2025
Author: Nitin W. Sambre
Bench: Nitin W. Sambre
2025:BHC-NAG:2394-DB
cri.w.p. 848-24.odt
1/10
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL WRIT PETITION NO.848 OF 2024
Harshal Rakesh Brahmne, Aged 24 years,
Occup. Labour r/o Datey Lay-Out,
Indrprastha Nagpur. Petitioner
-Versus-
1. State of Maharashtra,
Through its Secretary, Department of
Home, Mantralaya, Mumbai- 32
2. State of Maharashtra, through Police
Commissioner, Nagpur City, District Nagpur.
3. State of Maharashtra through Police Station
Officer, Police Station, Sonegaon, Nagpur
City. Respondents
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Mr. Pratik Jayant Mehta, Advocate for the Petitioner.
Mr. A.B.Badar, A.P.P. for State.
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CORAM : NITIN W. SAMBRE AND
MRS. VRUSHALI V. JOSHI, JJ.
DATE : 06/03/2025.
ORAL JUDGMENT (Per: Vrushali V. Joshi, J.)
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.
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3) The petitioner is raising challenge to the impugned
order dated 09/07/2024 bearing No. D.O.No.DET/MPDA/Zone-
I/PC/32/2024 passed by respondent No.2, Commissioner of
Police, Nagpur City, Tah. and District Nagpur, under Section 3(2)
of the Maharashtra Prevention of Dangerous Activities of
Slumlords, Bootleggers, Drug-Offenders, Dangerous Persons,
Video Pirates, Sand Smugglers and Person Engaged in Black
Marketing of Essential Commodities Act, 1981, ('MPDA Act' for
short), thereby ordering his detention as a dangerous person.
4) Heard the learned counsel appearing for the petitioner
and the learned Additional Public Prosecutor for the
State/respondents.
5) Learned Advocate appearing for the petitioner
challenges the impugned order, which appears to have been
confirmed by the State Government by an order dated 30/08/2024
on the ground that the impugned order which has been passed by
the detaining authority is based on non-application of mind and
without adhering to the statutory procedure. The grounds of
detention appear to have been based on three offences namely,
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Crime No.508 of 2023 committed on 25/12/2023 for the offence
punishable under Sections 307, 326, 341, 294, 506-B, 143, 144,
147, 148, 149 of the Indian Penal Code. The Second Crime is 158
of 2024 committed on 10/10/2023 for the offence punishable
under Sections 4/25 of Arms Act r/w Section 135 of the
Maharashtra Police Act and the third offence is Crime No.77 of
2024 dated 27/02/2024 for the offences punishable under Sections
143, 144, 147, 148, 149, 365, 504, 506-B of the Indian Penal
Code r/w Section 4/25 of Arms Act, Section 3 and 7 of the
Criminal Law Amendment Act, so also, Section 135 of the
Maharashtra Police Act.
6) The detaining authority has also considered in-camera
statements of two witnesses. It is submitted that the detaining
authority had not considered that in the two offences, which are
still under investigation, the petitioner has been released on bail
and the bail order appears to have been produced before the
detaining authority. In one offence, notice has been served under
Section 41-A of the Code of Criminal Procedure. The contents of
the case would show that there was law and order situation and
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public order was not disturbed which required the detention of the
petitioner. It is the contention of the petitioner that he was not
given an opportunity to make proper representation. Translation
of documents was not given to the petitioner. Further, there was no
proper verification of in-camera statements by the detaining
authority and they only state that they are 'seen' and 'verified', but
there is no remark that the verification has been properly done.
There is a delay in passing the order from the date of last crime and
even the incident considered in the statement of the witnesses.
Therefore, there was no live-link and belated order has been passed.
Therefore the detention order is illegal and deserves to be quashed
and set aside.
7) Per contra, learned Additional Public Prosecutor
submits that a well reasoned order has been passed while
authorizing the order of the detention. The petitioner was involved
in all three offences. All the three offences are pending before the
Court. If we consider the facts in crime No.508 of 2023, the
offence under Section 307 is registered. In the said offence, the
complainant and his friends went to Agent Jack Bar and Restaurant,
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situated at V.R.Mall, Medical Chowk, Nagpur. After having
dinner, the complainant and his friends came out in front of
V.R.Mall at about 2.10 a.m, at that time, two unknown persons
aged about 28-30 years started abusing Ashish Hazare, a friend of
the complainant without any reason. At that time, the unknown
persons had consumed alcohol. The complaint's friend Anand Shah
gave an understanding to the said unknown person. After that,
both of them started beating the complainant and his friends and
thereafter, the complainant and his friends left in Ashish Hazare's
car towards the direction of Railway Quarter in front of Manish
Bakery. At that time, they forcibly stopped them and about 6-7
persons came in a Swift Dzire Car and 2-3 motorcycles, and one of
them had an iron sword in one hand, which he raised to kill the
complainant. All of them tried to commit murder. The complaint
was lodged.
8) In another offence, Crime No. 158 of 2024, the police
were searching the petitioner in Crime No.77 of 2024, as he was
absconding and they came to know his whereabouts near SBI bank,
in Uday Nagar Chowk, they went there and arrested him. At that
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time, petitioner was having knife with him and therefore, the
offence was registered against him.
9) Crime No.77 of 2024 is also for the offence punishable
under Section 365, 323 and other sections of the Indian Penal
Code. In this case, the petitioner took the complainant from his
Cafe and assaulted him for talking to his friend Pranali, and also
threatened him to not to talk with her again. All these offences are
committed in a public place and in all the offences deadly weapons
are used. If a person is roaming with a sword in his hand in public
and using it in the crime, prima facie, we can consider that it would
raise public order and not only law and order situation.
10) The statements of witnesses A and B would show that
the incidents have taken place in public and the said witnesses were
threatened by the petitioner therefore, these incidents and the facts
would certainly show that it is the public order that was disturbed.
The learned counsel appearing for the petitioner has stated that the
statements of witnesses do not show breach of public order. If we
consider the statement of those witnesses, they were recorded and
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verified. Verification has been categorically stated by the detaining
authority i.e. sufficient compliance.
11) The learned counsel appearing for the petitioner has
relied on the judgment passed by this Court in Writ Petition No.
73 of 2022 decided on 21/10/2022 (Smt. Bismillah and ors. Vs.
The State of Maharashtra and ors.) in support of his argument that
no subjective satisfaction was arrived by the detaining authority
before passing the detention order. The truthfulness and
correctness of the incident stated by the witnesses also their
unwillingness to come forward because of the fear of the petitioner,
the impugned order do not comply with the dictum of the
judgment.
12) The learned counsel appearing for the petitioner in
support of his argument for delay in passing the impugned order
and no live-link with the offence considered in the grounds of the
detention has relied upon the judgment passed by this Court in
Civil Writ Petition (ST) No.14420 of 2024 (Shubhangi Balkrishna
Lonare Vs. The State of Maharashtra and ors.), decided on
21/10/20222 and Writ Petition No. 873 of 2012 (Shaikh Husain
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@ Shahrukh Shaikh Patru Vs. The State of Maharashtra and anr.
Decided on 21/04/2023.
13) The bail order passed by the respective Courts in the
offences is not considered properly. The petitioner further relied
on Writ Petition No. 1162 of 2023 (Sidhant @ Sidhdharth Sanjay
Marathe..Vs.. Commissioner of Police,Pune City and ors. decided
on 25/07/2023 in support of his argument that statements of in
camera witnesses A and B were not provided to the petitioner along
with grounds of detention which is in violation of fundamental
right under Article 22 of the Constitution of India.
14) The offences which are considered, while passing the
detention order are the offences under Section 307, 323, 365 and 4
and 25 of the Arms Act. In all the three offences, deadly weapons
are used. At the cost of repetition, we would like to note the fact
that the petitioner was roaming in public by holding sword in his
hand. It is observed in the case of Shaikh Shahrukh. Vs. State of
Maharashtra 2023 DJLS Bombay 1318, that a detaining authority
must record his subjective satisfaction that the statements of
witnesses were genuine and that ht has interacted with Assistant
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Commissioner of Police to verify such a statement. Here, said
subjective satisfaction has been arrived at.
15) The learned APP has relied on the judgment in the case
of Salauddin Imamuddin Ansari and anr. The State of Maharashtra
reported in 2020 ALL MR(Cri.) 1641, wherein it is observed by
this Court relying on the judgment of K.Varadharaj Vs. State of
T.N. and anr. reported in (2006) 6 SCC 735, wherein it is
observed that it was not mandatory for the detaining authority to
take into consideration the bail application filed by the detenu and
any order passed thereon by the Criminal Court, such requirement
would depend upon the facts of each case. In that case, it is held by
the Hon'ble Supreme Court that it is clear that placing the
application for bail and the order made thereof are not always
mandatory and such requirement would depend upon the facts of
each case. In the case in hand, in both the matters, wherein, the
petitioner was released on bail, the bail orders are considered.
Therefore, considering the judgment passed by this Court, it
appears that the detaining authority was aware of the fact that the
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detenu was on bail. He had considered the instances i.e crimes
committed by the detenu, while passing the detention order.
16) As aforesaid, the subjective satisfaction has been arrived
at on the basis of the three offences as well as two in-camera
statements. We do not find that this is a case where we should
exercise our Constitutional power to set aside the detention order.
We may also refer to the opinion that has been given by the
advisory board and the said opinion is made available to us which
shows that the petitioner was heard through video conferencing.
The detention order has been confirmed by considering the
opinion of the advisory board as contemplated under law and
therefore, we pass the following order.
17) The Criminal Writ Petition is dismissed.
18) Rule stands discharged.
(MRS.VRUSHALI V. JOSHI, J) (NITIN W. SAMBRE, J)
Signed by: Kavita P Tayade
Designation: PA To Honourable Judge
Date: 10/03/2025 17:24:48 Kavita
