Bombay High Court
Karan Pandurang Pawar vs The State Of Maharashtra And Others on 7 May, 2025
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
2025:BHC-AUG:13912-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.453 OF 2025
Karan s/o Pandurang Pawar
Age: 25 years, Occu.: Labour,
R/o. Near Ayodhya Nagari,
Bhamri Chowk, Latur,
Taluka and District Latur .. Petitioner
Versus
1. The State of Maharashtra
Through its Section Officer,
Home Department (Special),
Mantralaya, Mumbai-32.
2. The District Magistrate,
Latur, Tq. And Dist. Latur.
3. The Superintendent of Jail,
Central Jail, Harsool, Aurangabad,
District Aurangabad. .. Respondents
...
Mr. P. V. Gole, Advocate h/f Mr. V. D. Gunale, Advocate for petitioner.
Mr. G. A. Kulkarni, APP for respondents/State.
...
CORAM : SMT. VIBHA KANKANWADI &
SANJAY A. DESHMUKH, JJ.
DATE : 07 MAY 2025
JUDGMENT (Per Smt. Vibha Kankanwadi, J.)
. Heard learned Advocate Mr. P. V. Gole holding for learned
Advocate Mr. V. D. Gunale for the petitioner and learned APP Mr. G. A.
Kulkarni for respondents - State.
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2. Rule. Rule made returnable forthwith. The petition is heard finally
with the consent of the learned Advocates for the parties.
3. The petitioner challenges the detention order dated 13.11.2024
passed by respondent No.2 bearing No.2024/MAG/MPDA/DESK-2/WS-471
and the approval order dated 22.11.2024 as well as the confirmation
order dated 10.01.2025 passed by respondent No.1, by invoking the
powers of this Court under Article 226 of the Constitution of India.
4. Learned Advocate for the petitioner has taken us through the
impugned orders and the material which was supplied to the petitioner
by the detaining authority after passing of the order. He submits that
though several offences were registered against the petitioner, yet for
the purpose of passing the impugned order, two offences were
considered i.e. Crime No.361 of 2024 registered with MIDC Latur Police
Station, District Latur for the offences punishable under Sections 324,
323, 504, 506 read with Section 34 of Indian Penal Code and Crime
No.654 of 2024 registered with MIDC Latur Police Station, District Latur
for the offences punishable under Sections 118(1), 115, 352, 351(2), 3(5)
of the Bhartiya Nyaya Sanhita. Learned Advocate appearing for the
petitioner submits that the District Magistrate, Latur while passing the
impugned order had considered two offences in which the petitioner has
been shown to be involved and two statements of in-camera witnesses
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for concluding the petitioner to be the dangerous person, however in
Crime No.361 of 2024, the investigating officer had not even arrested the
petitioner. Notice under Section 41(A)(1) of the Code of Criminal
Procedure was given. The said offence is still under investigation. In
respect of second offence i.e. Crime No.654 of 2024, it is stated that the
petitioner is still absconding. That means, the order came to be passed
allegedly when the petitioner is absconding. No steps under Section 7 of
the M.P.D.A. have been taken. Taking into consideration the contents of
both the FIRs and the statements of in-camera witnesses 'A' and 'B', at
the most law and order situation would have been created and not the
public order.
5. Per contra, the learned APP strongly supports the action taken
against the petitioner. He submits that the petitioner is a dangerous
person as defined under Maharashtra Prevention of Dangerous Activities
of Slumlords, Bootleggers, Drug-Offenders, Dangerous Persons and
Video Pirates Act, 1981 (hereinafter referred to as the "MPDA Act"). The
detaining authority has relied on the two in-camera statements and the
subjective satisfaction has been arrived at. There is no illegality in the
procedure adopted while recording the in-camera statements of the
witnesses. Due to the terror created by the petitioner, people are not
coming forward to lodge report against him and, therefore, it affects the
public order. Learned APP relies on the affidavit-in-reply of Ms. Varsha
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Thakur Ghuge, the District Magistrate, Latur, wherein she has explained
as to what was the material before her to arrive at the subjective
satisfaction. She categorically states that after arriving at the subjective
satisfaction, she has passed the order. The overall criminal graph of the
petitioner would show that he was continuing with his dangerous
activities and thereby going on committing crimes, because of which he
has created terror in the area and, therefore, the said act on the part of
the petitioner amounts to creating public order situation. The statements
of in-camera witnesses especially show that with the help of iron scythe,
injuries were caused to those persons and amount has been extracted.
Those witnesses have specifically stated that because of the terror
created by the petitioner, people had not come forward even to help
them. Therefore, no fault can be found in the impugned order.
6. Before considering the case, we would like to take note of the
legal position as is emerging in the following decisions :-
(i) Nenavath Bujji etc. Vs. State of Telangana and others,
[2024 SCC OnLine SC 367],
(ii) Ameena Begum Vs. The State of Tamilnadu and Ors.,
[2023 LiveLaw (SC) 743];
(iii) Kanu Biswas Vs. State of West Bengal, [1972 (3) SCC
831] wherein reference was made to the decision in Dr. Ram
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Manohar Lohia vs. State of Bihar and Ors. [1966 (1) SCR 709];
(iv) Mustakmiya Jabbarmiya Shaikh Vs. M.M. Mehta, [1995
(3) SCC 237];
(v) Pushkar Mukherjee and Ors. Vs. The State of West
Bengal, [AIR 1970 SC 852];
(vi) Phulwari Jagdambaprasad Pathak Vs. R. H. Mendonca
and Ors., (2000 (6) SCC 751) and;
(vii) Smt. Hemlata Kantilal Shah Vs. State of Maharashtra
and another, [(1981) 4 SCC 647].
7. Taking into consideration the legal position as summarized above,
it is to be noted herein as to whether the detaining authority while
passing the impugned order had arrived at the subjective satisfaction
and whether the procedure as contemplated has been complied with or
not. In Nenavath Bujji (Supra) itself it has been reiterated by the
Hon'ble Supreme Court that illegal detention orders cannot be sustained
and, therefore, strict compliance is required to be made, as it is a
question of liberty of a citizen. Here, it appears that list of seven offences
is separately given and two matters in which preventive actions under
Section 107 of the Code of Criminal Procedure and Section 126 of the
Bhartiya Nagrik Suraksha Sanhita were taken. She has considered two
offences i.e. Crime No.361 of 2024 and Crime No.654 of 2024. Both the
offences were registered with MIDC Latur Police Station, District Latur.
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The first offence is under Sections 324, 323 etc. of Indian Penal Code
and the second offence is under Sections 118(1), 115, 352, 351(2), 3(5)
of Bhartiya Nyaya Sanhita. That means, the Sections are similar. In
both the matters, it is stated that the petitioner along with his associates
had assaulted the informants with the help of iron Katti causing injury to
both of them. In Crime No.361 of 2024, the petitioner has been given
notice under Section 41(A) of the Code of Criminal Procedure. We are
taking note of the earlier chart i.e. the chart in respect of seven offences
and out of them, in five offences, the petitioner has been given notice
under Section 41(A) of the Code of Criminal Procedure. That means, at
no point of time in respect of those five offences as well as Crime
No.361 of 2024, the investigating officer thought that the arrest of the
petitioner is necessary. The Sections which have been invoked in Crime
No.654 of 2024 are same. However, it is to be noted that in respect of
this offence, the petitioner is absconding and could not be arrested.
When we are considering notice under Section 41(A) of the Code of
Criminal Procedure, we should take note of Section 41 also which deals
with powers of the police to arrest without warrant. Section 41(1)(b)(ii)
(a) of the Code of Criminal Procedure prescribes that if the police officer
is satisfied that the arrest is necessary, he can arrest a person to prevent
such person from committing any further offence. When so many
offences are stated to be registered against the petitioner, how at no
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point of time, any investigating officer had not felt that in order to prevent
any offence in future, the petitioner can be arrested. Section 35 of the
Bhartiya Nagrik Suraksha Sanhita corresponds to Section 41 and 41(A)
of the Code of Criminal Procedure. When the police officer had not
though it fit to arrest the petitioner, then against such person taking
action of preventive detention is unjustifiable.
8. We would like to rely on the decision of the Hon'ble Supreme
Court in Arjun s/o Ratan Gaikwad Vs. The State of Maharashtra and
others, [Criminal Appeal (Arising out of SLP (Crl.) No.12516 of 2024
dated 11.12.2024 :: 2024 INSC 968], wherein it has been observed
that :-
"16. In the present case, all the six cases are with
regard to selling of illicit liquor. Though six cases are
registered, the Excise Authority did not find it necessary
to arrest the appellant even on a single occasion. It
would have been a different matter, had the appellant
been arrested, thereafter released on bail and then
again the appellant continued with his activities.
However, that is not the case here."
Though this is a case under the provisions of Maharashtra
Prohibition Act, yet the ratio is required to be considered in respect of
notice.
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9. As regards statements of in-camera witnesses 'A' and 'B' are
concerned, we had the opportunity to open the sealed packet of the
statements those have been kept in the record and we found that there
is no verification endorsement by the learned District Magistrate.
Verification of such in-camera statements is necessary because that is
going to lead the District Magistrate to arrive at a conclusion as to
whether the said person can be considered as dangerous person. The
Hon'ble Supreme Court in many cases, time and again, has held that the
action of preventive detention is a symbol of draconian rule and it can be
used in exceptional circumstances to prevent any wrong against the
public at large. Basic precautions appears to have been taken in the
present matter. How and under which circumstance the petitioner came
before the District Magistrate is a question. No steps under Section 7 of
the MPDA Act were ever taken and, therefore, this is a fit case where we
should exercise our constitutional powers under Article 226 and 227 of
the Constitution of India.
10. Thus, taking into consideration the above observations and the
decisions of the Hon'ble Apex Court, at the most, the statements as well
as the offences allegedly committed would reveal that the petitioner had
created law and order situation and not disturbance to the public order.
Though the Advisory Board had approved the detention of the petitioner,
yet we are of the opinion that there was no material before the detaining
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authority to categorize the petitioner as a dangerous person or
bootlegger.
11. For the aforesaid reasons, the petition deserves to be allowed.
Hence, following order is passed :-
ORDER
I) The Writ Petition is allowed.
II) Detention order dated 13.11.2024 passed by respondent
No.2 bearing No.2024/MAG/MPDA/DESK-2/WS-471 and approval
order dated 22.11.2024 as well as confirmation order dated
10.01.2025 passed by respondent No.1, are hereby quashed and
set aside.
III) Petitioner viz. Karan Pandurang Pawar shall be released
forthwith, if not required in any other offence.
IV) Rule is made absolute in the above terms.
[ SANJAY A. DESHMUKH ] [ SMT. VIBHA KANKANWADI ]
JUDGE JUDGE
scm
