Bombay High Court
Krushna Shrawan Shinde vs The State Of Maharashtra And Others on 7 May, 2025
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
2025:BHC-AUG:14147-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.441 OF 2025
Krushna Shrawan Shinde
Age: 25 years, Occu.: At Present in Jail
R/o. Sumbha, Tal. And Dist. Osmanabad
District Osmanabad. .. Petitioner
Versus
1. The State of Maharashtra
Through its Secretary,
Home Department (Special)
Mantralaya, Mumbai.
2. The Collector/District Magistrate,
Osmanabad.
3. The Superintendent
Central Prison, Harsul,
Aurangabad. .. Respondents
...
Ms. Tanvi V. Jadhav, Advocate for the petitioner (Appointed Through
Legal Aid).
Mr. A. R. Kale, 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 Ms. Tanvi V. Jadhav for the petitioner and
learned APP Mr. A. R. Kale for the 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 07.11.2024
passed by respondent No.2 bearing No.2024/DC/MAG-3/WS-429 and
approval order dated 14.11.2024 as well as confirmation order dated
07.01.2025 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. She submits that in
all seventeen offences were registered against the petitioner i.e. (i)
Crime No.231 of 2021 registered with Dhoki Police Station, District
Dharashiv for the offences punishable under Sections 307, 324, 143,
147, 148, 149 of Indian Penal Code, (ii) Crime No.116 of 2022 registered
with Bembli Police Station, District Dharashiv for the offences punishable
under Sections 457, 380 of Indian Penal Code, (iii) Crime No.171 of
2022 registered with Bembli Police Station, District Dharashiv for the
offences punishable under Sections 395, 397, 354(b), 427 of Indian
Penal Code, (iv) Crime No.127 of 2023 registered with Anandnagar
Dharashiv Police Station, District Dharashiv for the offences punishable
under Sections 454, 380 of Indian Penal Code, (v) Crime No.101 of
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2023 registered with Bembli Police Station, District Dharashiv for the
offences punishable under Sections 457, 380 of Indian Penal Code, (vi)
Crime No.19 of 2024 registered with Bembli Police Station, District
Dharashiv for the offences punishable under Sections 324, 504 of Indian
Penal Code, (vii) Crime No.76 of 2024 registered with Shiradhon Police
Station, District Dharashiv for the offences punishable under Sections
454, 380 of Indian Penal Code, (viii) Crime No.103 of 2024 registered
with Shiradhon Police Station, District Dharashiv for the offences
punishable under Sections 457, 380 of Indian Penal Code, (ix) Crime
No.158 of 2024 registered with Shiradhon Police Station, District
Dharashiv for the offences punishable under Sections 331(4), 305 of
Bhartiya Nyaya Sanhita, (x) Crime No.130 of 2024 registered with Dhoki
Police Station, District Dharashiv for the offences punishable under
Sections 457, 380 of Indian Penal Code, (xi) Crime No.221 of 2024
registered with Dhoki Police Station, District Dharashiv for the offences
punishable under Sections 354, 380 of Indian Penal Code, (xii) Crime
No.266 of 2024 registered with Dhoki Police Station, District Dharashiv
for the offences punishable under Sections 331(4), 305(A) of Bhartiya
Nyaya Sanhita, (xiii) Crime No.273 of 2024 registered with Dhoki Police
Station, District Dharashiv for the offences punishable under Sections
331(4), 305(A) of Bhartiya Nyaya Sanhita, (xiv) Crime No.147 of 2024
registered with Kallamb Police Station, District Dharashiv for the
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offences punishable under Sections 457, 380 of Indian Penal Code, (xv)
Crime No.279 of 2024 registered with Kallamb Police Station, District
Dharashiv for the offences punishable under Sections 331(4), 305(A) of
Bhartiya Nyaya Sanhita, (xvi) Crime No.171 of 2024 registered with
Bembli Police Station, District Dharashiv for the offences punishable
under Sections 331(4), 305(A) of Bhartiya Nyaya Sanhita and (xvii)
Crime No.276 of 2024 registered with Dhoki Police Station, District
Dharashiv for the offences punishable under Sections 331(4), 305(A) of
the Bhartiya Nyaya Sanhita. Learned Advocate appearing for the
petitioner who has been appointed through legal aid vehemently submits
that the detaining authority has absolutely not applied his mind while
passing the detention order. The petitioner has been shown to be
involved in seventeen cases right from 2021 and all have been
considered for passing the detention order. All the offences are similar in
nature mostly involving the offences under Sections 454, 380 of Indian
Penal Code, Sections 395, 397, 307 of Indian Penal Code and Sections
331(4), 305 of Bhartiya Nyaya Sanhita. There was absolutely no live link
between the offences and the detention order. The learned District
Magistrate has not considered the bail orders in many cases. In five
cases out of seventeen, the petitioner has been released on bail. Way
back from August 2023 - September 2023, only in four matters charge-
sheets have been filed. As per the chart that is given in the order and in
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rest of all the twelve cases, even the charge-sheet has not been filed.
Now, in three matters i.e. in R.C.C. No.396 of 2024 in respect of Crime
No.276 of 2024, in R.C.C. No.399 of 2024 in respect of Crime No.266 of
2024 and in R.C.C. No.393 of 2024 in respect of Crime No.273 of 2024,
the petitioner has been acquitted by the concerned Court on 21.01.2025.
In all these matters, it appears that the charge-sheet was filed on
10.10.2024, still the learned Magistrate showed the matter as still under
investigation. In all the matters which were under Sections 454, 380 of
Indian Penal Code, the FIR was against unknown persons. The name of
the present petitioner came to be involved on the basis of discovery
panchanama under Section 23(2) of Bharatiya Sakshya Adhiniyam,
2023. All these offences and the statements of in-camera witnesses
would show that at the most law and order situation would have been
created and not the public order.
5. Learned Advocate for the petitioner relies on the following
decisions :-
I) Pradeep Nilkanth Paturkar Vs. S. Ramamurthi and
others, [1993 Supp (2) SCC 61],
II) Rekha Vs. State of Tamil Nadu Through Secretary to
Government and Another, [(2011) 5 SCC 244],
III) Sadhu Roy Vs. The State of West Bengal, [(1975) 1
SCC 660],
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IV) Khaja Bilal Ahmed Vs. Stte of Telangana and others,
[(2020) 13 SCC 632].
6. 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 Dr. Sachin
Ombase, the District Magistrate, Dharashiv, who has stated as to how he
had arrived at the subjective satisfaction and what was the material
before him at the time of passing the impugned order. Learned APP
submits that in spite of involvement of the petitioner in so many cases,
his criminal activities have not been curtailed. The criminal antecedents
can be taken into consideration for passing the detention order. There is
no illegality or error committed by the learned District Magistrate in
holding the petitioner as a dangerous person. Therefore, no fault can be
found in the impugned order.
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7. 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
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].
8. 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
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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 is to be noted from the impugned
order that the District Magistrate has considered all the seventeen
offences, which were registered against the petitioner, for passing the
detention order. The first offence that was registered against the
petitioner was on 19.07.2021, in which he came to be arrested on
02.08.2021. In first four matters, he was released on bail and the cases
are stated to be still pending before the concerned Courts. In Crime
No.19 of 2024 registered with Bembli Police Station, the offence involved
was under Sections 324, 504, 506 of Indian Penal Code and only notice
has been given to the petitioner under Section 41(A)(1) of the Code of
Criminal Procedure. In ten cases, the petitioner is said to be in
Magisterial Custody, but then in Crime No.276 of 2024 i.e. last offence, it
is stated that he is on bail from 04.09.2024. The bail orders passed in
those cases have not been considered at all by the learned District
Magistrate and, therefore, we would like to rely on the decision in Joyi
Kitty Joseph Vs. Union of India and Ors., [Criminal Appeal No.___
of 2025 (arising out of Special Leave Petition (Crl.) No.16893 of
2024) decided by the Hon'ble Supreme Court on 06.03.2025],
wherein reliance has been placed on the decision in Ameena Begum v.
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State of Telangana and others, [(2023) 9 SCC 587] and it has been
observed that preventive detention is impermissible when the ordinary
law of the land is sufficient to deal with the situation was per incuriam to
the Constitution Bench decision in Haradhan Saha vs. State of W.B.
[(1975) 3 SCC 198], in the limited judicial review available to constitutional
courts in preventive detention matters. However, in Ameena Begum
(Supra), the Hon'ble Supreme Court explained the true distinction
between a threat to "law and order" and acts "prejudicial to public order"
and it is stated that it cannot be determined merely by the nature or
quality of the act complained of, but in the proper degree and extent of
its impact on the society. Further, it is observed that "When bail was
granted by the jurisdictional Court, that too on conditions, the detaining
authority ought to have examined whether they were sufficient to curb
the evil of further indulgence in identical activities; which is the very basis
of the preventive detention ordered. The detention order being silent on
that aspect, we interfere with the detention order only on the ground of
the detaining authority having not looked into the conditions imposed by
the Magistrate while granting bail for the very same offence; the
allegations in which also have led to the preventive detention, assailed
herein, to enter a satisfaction as to whether those conditions are
sufficient or not to restrain the detenu from indulging in further like
activities."
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9. At any point of time, the prosecution has not filed any application
for cancellation of bail even after coming to know that the petitioner is
still committing offences.
10. The Hon'ble Supreme Court in Khaja Bilal Ahmed (Supra), has
held that :-
"22. In the facts of that case, the Court held that the order of
detention was passed on stale grounds, which could not have
been considered as relevant for arriving at the subjective
satisfaction that the detenu must be detained. This Court held
thus:-
17. The detention order must be based on a reasonable
prognosis of the future behaviour of a person based on
his past conduct in light of the surrounding
circumstances. The live and proximate link that must
exist between the past conduct of a person and the
imperative need to detain him must be taken to have
been snapped in this case. A detention order which is
founded on stale incidents, must be regarded as an order
of punishment for a crime, passed without a trial, though
purporting to be an order of preventive detention. The
essential concept of preventive detention is that the
detention of a person is not to punish him for something
he has done but to prevent him from doing it. See G.
Reddeiah v. State of A.P. (2012) 2 SCC 389 and P.U.
Iqbal v. Union of India, (1992) 1 SCC 434."
(Emphasis supplied)
Therefore, the proximity has to be shown or live link is to be
shown by the respondents.
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11. In most of the offences alleged to have been committed in 2024
involving Sections 457, 380 of Indian Penal Code or equivalent Section
from Bhartiya Nyaya Sanhita, the FIRs are against unknwon persons.
There were co-accused involved in the matter and it appears that the
prosecution had heavily relied on the discovery panchanama under
Section 23(2) of Bharatiya Sakshya Adhiniyam, 2023 allegedly given by
co-accused Akshay Shinde. The confessional statements of the co-
accused involving another person in the crime can be proved only under
the provisions of law and not by way of Section 23(2) of Bharatiya
Sakshya Adhiniyam. The said discovery is not binding on the accused
who has not made such statement. Though the District Magistrate
cannot act as per the Judicial Magistrate First Class and assess the
evidence, but at least he should bear in mind that there are hurdles for
the prosecution to prove such confessional statements. If the case is
based only on the confessional statement, then every precaution is
required to be taken by the District Magistrate while curtailing the
personal liberty of a person. The personal liberty cannot be curtailed on
the basis of inadmissible evidence. The acquittal in three matters is of
course subsequent to the passing of the impugned order. We can also
take a note from the record that the same discovery panchanama under
Section 23(2) of Bharatiya Sakshya Adhiniyam given by co-accused is
used in some other cases also which are still pending before the learned
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Magistrate. We can take the note of the fate of those cases on the basis
of the judgment of acquittal in three cases. In Rekha (Supra), Hon'ble
Supreme Court has observed that :-
"Whenever an order under a preventive detention law is
challenged one of the questions the court must ask in
deciding its legality is : Was the ordinary law of the land
sufficient to deal with the situation ? If the answer is in the
affirmative, the detention order will be illegal."
12. Here, in this case, the ordinary law is in fact sufficient to take
action against the petitioner, if he is involved in subsequent offences
also. In respect of taking recourse to those available legal provisions to
curtail the liberty of the petitioner, a step which is termed as rule of
draconian law has been followed and, therefore, such order cannot be
allowed to sustain.
13. 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
authority to categorize the petitioner as a dangerous person or
bootlegger.
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14. For the aforesaid reasons, the petition deserves to be allowed.
Hence, following order is passed :-
ORDER
I) Writ Petition stands allowed.
II) Detention order dated 07.11.2024 passed by respondent
No.2 bearing No.2024/DC/MAG-3/WS-429 and approval order
dated 14.11.2024 as well as confirmation order dated 07.01.2025
passed by respondent No.1, are hereby quashed and set aside.
III) Petitioner viz. Krushna Shrawan Shinde 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
