Ranveer Jograna @ Ranchhod ... vs State Of Gujarat
2021 Latest Caselaw 16449 Guj

       C/SCA/2987/2021                                  ORDER DATED: 21/10/2021




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 2987 of 2021

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         RANVEER JOGRANA @ RANCHHOD RAHABHAI BHARWAD
                             Versus
                       STATE OF GUJARAT
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Appearance:
MR BHAVIN S RAIYANI(3855) for the Petitioner(s) No. 1
MR AKASH CHHAYA, AGP(1) for the Respondent(s) No. 1,2,3
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     CORAM:HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI

                                 Date : 21/10/2021

                                  ORAL ORDER

1. This petition is filed under Article 226 of the Constitution of India in which the petitioner has prayed for the following reliefs:

"27.A. This Hon'ble Court may be pleased to admit this Special Civil Application.

B. This Hon'ble Court may be pleased to allow this Special Civil Application by issuing a writ of mandamus or any other appropriate, writ, order or direction quashing and setting aside the order of detention (if any) passed by the respondent No.2 at a pre- execution stage.

C. This Hon'ble Court may be pleased to direct respondents, and/or their agents, servants, persons, employees etc. not to execute the order of detention (if any) till the admission, hearing and final disposal of this petition and thus to stay further proceedings.

D. This Hon'ble Court may be pleased to direct the respondent no.2 to produce the order of detention (if any) along with the grounds of detention before this Hon'ble Court for kind perusal of the same and for the adjudication of present petition in the interest of justice.

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E. Grant such other and further relief(s) as deemed just and proper by this Hon'ble Court in the interest of justice."

2. Heard learned advocate Mr.Bhavin Raiyani for the petitioner and learned AGP Mr.Chhaya for the respondents.

3. Learned advocate Mr.Raiyani for the petitioner submitted that FIR being C.R.No. 11184002200788 of 2020 has been filed against the present petitioner and others before the Chhotaudepur police station for the alleged offences punishable under Sections 186, 323, 332, 341, 353, 379, 392, 143, 147, 149, 504 and 506(2) of the Indian Penal Code. It is submitted that on the basis of the single FIR which has been filed against the petitioner, the petitioner has apprehension that order of detention will be passed under the provisions of the Gujarat Prevention of Anti-social Activities Act, 1985 and therefore at this stage, this petition has been filed. It is also pointed out from the memo of the petition that earlier also, one FIR was registered against the petitioner in the year 2019 for the alleged offences punishable under Sections 323, 504 and 114 of Indian Penal Code and Sections 3(2)(5a) and 3(1)(r)(s) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. Learned advocate for the petitioner has referred to the averments made in the petition and thereafter contended that the present petition be entertained at pre-detention/pre-execution stage.

4. On the other hand, learned AGP has pointed out that the order of detention has already been passed against the petitioner on 28.7.2020 on the basis of the FIR which is placed on record at page no.43 of the compilation. It is further submitted that so far as the FIR of 2019 is concerned, the said FIR is not taken into consideration by the detaining

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authority while passing the order of detention against the petitioner.

5. Learned advocate for the petitioner, at this stage, contended that the detaining authority has considered one FIR for passing order of detention against the petitioner. It is further contended that co-accused i.e. original accused no.5 of the FIR which has been taken into consideration by the detaining authority, filed petition being Special Civil Application No.14088 of 2020 before this Court at pre-execution stage and this Court vide order dated 26.4.2021 allowed the said petition. It is, therefore, urged that when the order of detention has been quashed and set aside so far as the co-accused is concerned, similar order be passed in favour of the petitioner herein.

6. I have considered the submissions canvassed by learned advocates appearing for the parties. I have also perused the material placed on record. It has emerged that while passing the order of detention dated 28.7.2020, the respondent-detaining authority has considered the FIR which is placed on record at page no.43 of the compilation. Thus, on the basis of the FIR which has been filed against the petitioner, the order of detention has been passed. It is further revealed from the record that so far as the co-accused of the said FIR is concerned, i.e. Kana Jograna, he filed Special Civil Application No.14088 of 2020 before this Court at pre- execution stage and this Court, vide order dated 26.4.2021, quashed and set aside the order of detention passed against the said co-accused.

7. At this stage, the decision rendered by the Hon'ble Supreme Court in the case of Pushkar Mukherjee and others v/s The State of Bengal reported in AIR 1970 SC 852 is required to be considered wherein the Hon'ble Supreme Court has observed in paragraph 8:

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"8. The question to be considered in the present case is whether grounds (a), (b) and (e) served on Subhas Chandra Bose are grounds which are relevant to "the maintenance of public order". All these grounds relate to cases of assault on solitary individuals either by knife or by using crackers and it is difficult to accept the contention of the respondent that these grounds have any relevance or proximate connection with the maintenance of public order. In the present case we are concerned with detention under s. 3( 1 ) of the Preventive Detention Act which permits apprehension and detention of a person likely to act in a manner prejudicial to the maintenance of public order. Does the expression "public(1) [1951] S.C.R. 167. order" take in every kind of infraction of order or only some categories thereof. It is manifest that every act of assault or injury to specific persons does not lead to public disorder. When two people quarrel and fight and assault each other inside a house or in a street, it may be said that there is disorder but not public disorder. Such cases are dealt with under the powers vested in the executive authorities under the provisions of ordinary criminal law but the culprits cannot be detained on the ground that they were disturbing public order. The contravention of any law always affects order but before it can be said to affect public order, it must affect the community or the public at large. In this connection we must draw a line of demarcation between serious and aggravated forms of disorder which directly affect the community or injure the public interest and the relatively minor breaches of peace of a purely local significance which primarily injure specific individuals and only in a secondary sense public interest. A mere disturbance of law and order leading to disorder is thus not necessarily sufficient for action under the Preventive Detention Act but a disturbance which will affect public order comes within the scope of the Act. A District Magistrate is therefore entitled to take action under s. 3 (1 ) of the Act to prevent subversion of public order but not in aid of maintenance of law and order under ordinary circumstances. In Dr. Ram Manohar Lohia v. State of Bihar(1), it was held by the majority decision of this Court that the expression "public order" was different and does not mean the same thing as "law and order". The question at issue in that case was whether the order of the District Magistrate, Patna under Rule 30(1)(b) of the Defence of India Rules, 1962 against the

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petitioner was valid. Rule 30( 1 )(b) provided that a State Government might, if it was satisfied with respect to a person that with a view to preventing him from acting in a manner prejudicial to 'public safety and maintenance of public order' it is necessary to do so, order him to be detained. The order of the District Magistrate stated that he was satisfied that with a view to prevent the petitioner from acting in any manner prejudicial to the 'public safety and the maintenance of law and order,' it was necessary to detain him. Prior to the making of the order the District Magistrate had, however, recorded a note stating that having read the report of the Police Superintendent that the petitioner's being at large was prejudicial to 'public safety' and 'maintenance of public order', he was satisfied that the petitioner should be detained under the rule. The petitioner moved this Court under Art. 32 of the Constitution for a writ of habeas corpus directing his release from detention, contending that though an order of detention to prevent acts prejudicial to public order may be justifiable ,an order to prevent acts prejudicial to law and order would not be justified by the rule. It was held by the majority judgment that what was (1) [1966] 1 S.C.R. 709, meant by maintenance of public order was the prevention of disorder of a grave nature, whereas, the expression 'maintenance of law and order' meant prevention of disorder of comparatively lesser gravity and of local significance. At page 746 of the Report, Hidayatullah, J. as he then was, observed as follows in the course of his judgment:

"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. By using the expression 'maintenance of law and order' the District Magistrate was widening his own field of action and was adding a clause to the Defence of India Rules."

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The order no doubt mentioned another ground of detention, namely, the prevention of acts prejudicial to public safety, and in so far as 'it did so, it was clearly within the rule. But the order of detention must be held to be illegal, though it mentioned a ground on which a legal order of detention could have been based, because it could not be said in what manner and to what extent the valid and invalid grounds operated on the mind of the authority concerned and contributed to the creation of his subjective satisfaction. It was accordingly held that the order of detention made by the District Magistrate was invalid and the petitioner should be set at liberty. In our opinion, the principle laid down in this case governs the decision in the present case also and the order of the District Magistrate, Howrah dated January 20, 1968 must be held to be ultra vires and illegal.

8. While considering the facts of the present case, following decisions rendered by this Court as well as the Hon'ble Supreme Court are required to be kept in view.

9. The Full Bench of this Court in the case of Vijaysinh @ Gatti Pruthvisinh Rathod Vs. State of Gujarat and another reported in 2015 (1) GLR 703 has held that the petition challenging the order of detention at pre-execution stage is maintainable. However, this Court can exercise powers in exceptional and rare cases. Similar view has been taken by the Division Bench of this Court in the case of Mukeshbhai Versibhai Desai Versus State of Gujarat (Order dated 18.06.2020 passed in Letters Patent Appeal No.108 of 2020). Thus, the present petition is maintainable.

10. In the case of Rekha Versus State of Tamilnadu reported in (2011) 5 SCC 244, the Hon'ble Supreme Court has observed in paragraph No.30 as under:-

"30. Whenever an order under a preventive detention law is challenged one of the questions the court must ask in deciding its

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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. In the present case, the charge against the detenu was of selling expired drugs after changing their labels. Surely the relevant provisions in the Indian Penal Code and the Drugs and Cosmetics Act were sufficient to deal with this situation. Hence, in our opinion, for this reason also the detention order in question was illegal."

11. In the case of Additional Secretary to the Government of India and Others Versus Smt. Alka Subhash Gadia and Another reported in 1992 (Suppl.) (1) SCC 496, the Hon'ble Supreme Court has observed in Paragraph-30 as under:

"30. As regards his last contention, viz., that to deny a right to the proposed detenu to challenge the order of detention and the grounds on which it is made before he is taken in custody is to deny him the remedy of judicial review of the impugned order which right is a part of the basic structure of the Constitution, we find that this argument is also not well merited based as it is on absolute assumptions. Firstly, as pointed out by the authorities discussed above, there is a difference between the existence of power and its exercise. Neither the Constitution including the provisions of Art. 22 thereof nor the Act in question places any restriction on the powers of the High court and this court to review judicially the order of detention. The powers under Articles 226 and 32 are wide, and are untrammelled by any external restrictions, and can reach any executive order resulting in civil or criminal consequences. However, the courts have over the years evolved certain self-restraints for exercising these powers. They have done so in the interests of the administration of justice and for better and more efficient and informed exercise of the said powers. These selfimposed restraints are not confined to the review of the orders passed under detention law only. They extend to the orders passed and decisions made under all laws. It is in pursuance of this self- evolved judicial policy and in conformity with the self-imposed internal restrictions that the courts insist that the aggrieved person First allow the due operation and implementation of the concerned law and exhaust the remedies provided by it before approaching the High court and this court to invoke their discretionary

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extraordinary and equitable jurisdiction under Articles 226 and 32 respectively. That jurisdiction by its very nature is to be used sparingly and in circumstances where no other efficacious remedy is available. We have while discussing the relevant authorities earlier dealt in detail with the circumstances under which these extraordinary powers are used and are declined to be used by the courts. To accept Shri Jain's present contention would mean that the courts should disregard all these time-honoured and well-tested judicial self-restraints and norms and exercise their said powers, in every case before the detention order is executed. Secondly, as has been rightly pointed out by Shri Sibal for the appellants, as far as detention orders are concerned if in every case a detenu is permitted to challenge and seek the stay of the operation of the order before it is executed, the very purpose of the order and of the law under which it is made will be frustrated since such orders are in operation only for a limited period. Thirdly, and this is more important, it is not correct to say that the courts have no power to entertain grievances against any detention order prior to its execution. The courts have the necessary power and they have used it in a proper cases as has been pointed out above, although such cases have been few and the grounds on which the courts have interfered with them at the preexecution stage are necessarily very limited in scope and number, viz., where the courts are prima facie satisfied (i) that the impugned order is not passed under the Act under which it is purported to have been passed, (ii) that it is sought to be executed against a wrong person, (iii) that it is passed for a wrong purpose, (iv) that it is passed on vague, extraneous and irrelevant grounds or (v) that the authority which passed it had no authority to do so. The refusal by the courts to use their extraordinary powers of judicial review to interfere with the detention orders prior to their execution on any other ground does not amount to the abandonment of the said power or to their denial to the proposed detenu, but prevents their abuse and the perversion of the law in question."

12. Keeping in view the aforesaid guidelines laid down by the Hon'ble Supreme Court in the case of Additional Secretary to the Government of India and Others Versus Smt. Alka Subhash Gadia and Another (supra), if the facts of the present case are carefully examined, this Court is of the view that the case of the petitioner falls under Category-(iv) of the said

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decision.

13. Thus, in the facts and circumstances of the present case, I am inclined to exercise powers under Article 226 of the Constitution of India in favour of the present petitioner. The present petition is accordingly allowed. The impugned order of detention No.MAG/PASA/VASHI/20/2020 dated 28.7.2020 is quashed and set aside. Rule is made absolute accordingly. Direct Service is permitted.

(VIPUL M. PANCHOLI, J) SRILATHA