22 April 2019


Judgments

High Court of Gujarat

Mahesh Shakraji Thakore Vs. Commissioner of Police and Ors.

MANU/GJ/0009/2018

10.01.2018

Criminal

Registration of FIRs by itself cannot have any nexus with breach of maintenance of public order and the authority can take recourse under IPC

Instant petition is against the order of detention passed by the Respondent No. 1 in exercise of powers conferred under Section 3[2] of the Gujarat Prevention of Anti Social Activities Act, 1985 by detaining the detenue as a dangerous person as defined under section 2[c] of the Act. Learned advocate for the detenue submits that, the order of detention impugned in present petition deserves to be quashed and set aside on the ground that, the registration of two offences by itself cannot bring the case of the detenue within the purview of definition of dangerous person under Section 2[c] of the Act. Further exception that, the illegal activity carried out as alleged, cannot have any nexus or bearing with the maintenance of the public order and at the most it can be said to be breach of law and order. Further, except statements of witnesses and registration of FIRs, no other relevant or cogent material is available on record connecting the alleged anti-social activities of the detenue with breach of the public order.

The subjective satisfaction arrived at by the detaining authority cannot be said to be legal, valid and in accordance with law inasmuch as the offences alleged in the FIRs cannot have any bearing on the public order since the law of the land i.e. Indian Penal Code, 1860 (IPC) and other relevant penal laws are sufficient enough to take care of the situation and that the allegations as have been levelled against the detenue cannot be said to be germane for the purpose of bringing the detenue as a dangerous person within the meaning of Section 2[c] of the Act and, unless and until the material is there to make out a case that the person concerned has become a threat and a menace to the society so as to disturb the whole tempo of the society and that the whole social apparatus is in peril disturbing public order at the instance of such person, it cannot be said that the detenue is a dangerous person within the meaning of Section 2[c] of the Act. Except general statement, there is no material on record which shows that, the detenue is acting in such a manner which is dangerous to the public order. In view of the ratio laid down by the Supreme Court, the Court is of the opinion that, the activities of the detenue cannot be said to be dangerous to the maintenance of public order and at the most fall under the maintenance of law and order. Further, there are serious allegations against the petitioner. On perusal of the jail record, it seems that, police has not taken proper care in investigating offences and Petitioner was arrested only on presumption.

Simpliciter registration of FIRs by itself cannot have any nexus with the breach of maintenance of public order and the authority can take recourse under the Indian Penal Code and no other relevant or cogent material exists for invoking powers under Section 3[2] of the Act. Even the Supreme Court has considered that, detention is not permitted even in the case of robbery and theft. The present case is under Sections 143, 147, 148, 149, 323, 324, 294(c) , 506 (2) and 114 of the IPC and 135 (1) of G.P. Act. Moreover, the competent authority has assigned such a reason that, since they are unable to take action under Sections 107 and 110 of the Criminal Procedure Code [Cr. P.C.], they are detaining the detenue. Unfortunately and surprisingly the authority has disclosed in the impugned order that, they do not believe in taking action under sections 107 and 110 of the Cr. P.C and instead of following such rule of law, they selected to pass an order of detention. Therefore, the Court has no option but to allow the petition.

No doubt, neither the possibility of launching of a criminal proceedings nor pendency of any criminal proceedings is an absolute bar to an order of preventive detention. But, failure of the detaining authority to consider the possibility of either launching of or pendency of criminal proceedings may, in the circumstances of a case, lead to the conclusions that the detaining authority has not applied its mind to the vital question as to whether it was necessary to make an order of preventive detention. Since, there is an allegation that, the order of detention is issued in a mechanical manner without keeping in mind, whether it was necessary to make such an order, when an ordinary criminal proceedings could well serve the purpose. The detaining authority must satisfy the Court that, the question too was borne in mind before the order of detention was made. In present case, the detaining authority failed to satisfy the Court that the detaining authority so bore the question in mind and, therefore, the Court is justified in drawing the inference that, there was no application of mind by detaining authority to the vital question of whether it was necessary to preventively detain the detenue. The Apex Court rendered in the case of Rekha v. State of Tamil Nadu through Secretary to Government and another observed that, if a person is liable to be tried, or is actually being tried for a criminal offence but the ordinary criminal law will not be able to deal with the situation, then and only then, preventive detention can be taken recourse to. The order of detention passed by the Respondent No. 1 is quashed. The petition is allowed.

Relevant

Rekha v. State of Tamil Nadu through Secretary to Government and another reported in MANU/SC/0366/2011
: (2011)5 SCC 244

Tags : FIR Detention Validity

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