Bombay High Court
Shahrukh Yunus Khan Through His Father ... vs The State Of Maharashtra And Ors on 16 April, 2016
Author: V.K. Tahilramani
Bench: V.K. Tahilramani, Anuja Prabhudessai
1. cri wp 385-16.doc
RMA
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO. 385 OF 2016
Shahrukh Yunus Khan
Age : 20 Years, Occ : Daily Wages.
R/at : Kala Khadak Zopadpatti,
Wakad, Dist. Pune.
Through his father Yunus Majid Khan,
Age : 45 Years, Occ : Daily Wages. .. Petitioner
Versus
1. State of Maharashtra
Through the Secretary,
Home Department (Spl),
Mantralaya, Mumbai.
2. Commissioner of Police
Pune City.
3. The Superintendent,
Kolhapur Central Prison,
Kolhapur. .. Respondents
...................
Appearances
Mr. Rahul S.Kadam Advocate for the Petitioner
Mrs. A.S. Pai APP for the State
...................
CORAM : SMT. V.K. TAHILRAMANI &
SMT. ANUJA PRABHUDESSAI, JJ.
Reserved on : APRIL 1, 2016.
Pronounced on : APRIL 16, 2016.
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JUDGMENT [ PER SMT. V.K. TAHILRAMANI, J. ] :
1. The petitioner / detenu - Shahrukh Yunus Khan has preferred this petition questioning the preventive detention order passed against him on 23.12.2015 by respondent No. 2 i.e Commissioner of Police, Pune City. The said detention order has been passed in exercise of powers under Section 3(2) of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders, Dangerous Persons and Video Pirates Act, 1981 (No. LV of 1981) (Amendment-
1996 and 2009) (for short, 'MPDA Act'). The said detention order is based on two C.Rs. i.e C.R. No. 325/2015 and C.R. No. 511/2015 of Wakad Police Station and two incamera statements. C.R. No. 325/2015 is under Sections 324, 323 and 504 read with 34 of IPC and C.R. No. 511/2015 is under Sections 307, 143, 144, 147, 148 and 149 of IPC. The detention order was passed whilst the detenu was already lodged in jail in connection with C.R. No. 511/2015. After passing of the detention order, the said detention order along with grounds of detention was served to the detenu in jail.
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2. Though a number of grounds have been raised in this petition whereby the detention order has been assailed, however, Mr. Kadam, the learned counsel appearing for the petitioner has pressed only two grounds before us. The first ground is that when the detenu was already in judicial custody, the order of detention could not have been passed on mere ipse dixit of the detaining authority that the detenu was likely to be released on bail without there being any material before the detaining authority to come to the conclusion that the detenu was likely to be released on bail in the near future. Reliance was placed on the decision of the Supreme Court in the case of T.V. Sravanan alias S.A.R. Prasana Vs. State through Secretary and Anr. 1.
He placed reliance on paragraph 14 of the said decision wherein it is observed that when there was no cogent material before the detaining authority on the basis of which the detaining authority could be satisfied that the detenu was likely to be released on bail, mere ipse dixit of the detaining authority is not sufficient to sustain the order of 1 (2006) 2 SCC 664 jfoanz vkacsjdj 3 of 19 ::: Uploaded on - 16/04/2016 ::: Downloaded on - 17/04/2016 00:00:38 :::
1. cri wp 385-16.doc detention and the inference by the detaining authority that the detenu is likely to be released on bail has to be drawn from the available material on record.
3. Mr. Kadam submitted that in the present case, there is no material on record to come to the conclusion that the detenu is likely to be released on bail, hence, the detention order as in the case of Sravanan (supra) would be vitiated.
Mr. Kadam pointed out that C.R. No. 511/2015 is under Section 307 of IPC which is a serious offence. Charge sheet had not been filed in the said case and none of the co-
accused had been granted bail in the said case, hence, only on the basis of the fact that the detenu had filed application for bail, it cannot be said that the detenu is likely to be released on bail.
4. On careful perusal of the decision in the case of Sravanan (supra), in paragraph 14 itself, we find that the bail application moved by the detenu had been rejected by the jfoanz vkacsjdj 4 of 19 ::: Uploaded on - 16/04/2016 ::: Downloaded on - 17/04/2016 00:00:38 :::
1. cri wp 385-16.doc Courts just 12 days before the detention order was issued and it was in these circumstances that the Supreme Court observed that there was no material whatsoever before the detaining authority to apprehend that the detenu was likely to move an application for bail or there was eminent possibility of the prayer for bail being granted. However, the facts in the present case are entirely different. The present case is based on two C.Rs. and two incamera statements.
Two C.Rs. are C.R. No. 325/2015 and C.R. No. 511/2015 of Wakad Police Station. In C.R. No. 325/2015, the detenu has already been granted bail on 14.7.2015 and in C.R. No. 511/2015, the detenu had applied for bail. C.R. No. 511/2015 is under Sections 307, 143, 144, 147, 148 and 149 of IPC. In the case of Sravanan (supra), the application of the detenu for bail was rejected. The Supreme Court noted that the order of detention was passed merely 12 days after dismissal of bail application by the High Court and there was nothing on record to show that the detenu had made any preparation for filing of bail application or that bail jfoanz vkacsjdj 5 of 19 ::: Uploaded on - 16/04/2016 ::: Downloaded on - 17/04/2016 00:00:38 :::
1. cri wp 385-16.doc application was filed by him which was likely to come up for hearing in due course. Hence, it was held that there was no material before the detaining authority to come to the conclusion that the detenu is likely to be released on bail.
Such are not the facts in the present case, hence, the decision in the case of Sravanan (supra) would not applicable to the facts of the present case. In the present case, the detenu had preferred an application for bail which was pending at the time when the order of detention was issued.
In the present case, there was reliable material before the detaining authority on the basis of which, the detaining authority would have reason to believe that there was a real possibility of the detenu being released on bail. One of the materials being the nature of the offence which was mainly under Section 307 of IPC. The offence under Section 307 of IPC is not compulsorily punished with life imprisonment or death. In fact, the offence under Section 307 of IPC can even be punished with imprisonment upto 10 years. It is a matter of common knowledge that bail is normally granted in cases jfoanz vkacsjdj 6 of 19 ::: Uploaded on - 16/04/2016 ::: Downloaded on - 17/04/2016 00:00:38 :::
1. cri wp 385-16.doc under Section 307 of IPC even if the charge sheet is not filed.
Thus, we can say that the main material before the detaining authority was the fact that the detenu had preferred an application for bail and the other material was the nature of the offence. While considering the possibility of bail being granted, the type of offence is one of the main considerations. Looking to the material before the detaining authority that is the fact that the detenu had preferred an application for bail and the nature of the offence, it cannot be said that the subjective satisfaction of the detaining authority that the detenu is likely to be released on bail is founded on ipse dixit of the detaining authority and not supported by any circumstance or material indicative of real possibility of release of detenu on bail.
5. Thereafter, reliance was placed by Mr. Kadam on the decisions of the Supreme Court in the case of Ramesh Yadav Vs. District Magistrate, Etah & Ors.2, to contend that if a bail application was preferred by the detenu, the 2 (1985) 4 SCC 232 jfoanz vkacsjdj 7 of 19 ::: Uploaded on - 16/04/2016 ::: Downloaded on - 17/04/2016 00:00:38 :::
1. cri wp 385-16.doc appropriate course was not to issue an order of detention but to oppose the application for bail and if that results in failure, to challenge the said order before the higher forum. The decision in the case of Ramesh Yadav (supra) is by a bench of two Judges. This decision was considered by a bench of 3 Judges of the Supreme Court in the case of Suraj Pal Sahu Vs. State of Maharashtra & Ors. 3. After considering the decision in the case of Ramesh Yadav (supra), in paragraph 28 of this decision, the Supreme Court observed that this principle will have to be judged and applied in the facts and circumstances of each case.
6. The decision in the case of Ramesh Yadav (supra) and the decision of the Supreme Court in the case of N. Meera Rani Vs. Government of Tamil Nadu & Anr. 4 have been considered by the Supreme Court in the case of Kamarunnissa Vs. Union of India & Anr. 5. After considering both these decisions as well as the decisions of 3 AIR 1986 SC 2177 4 (1989) 4 SCC 418 5 (1991) 1 SCC 128 jfoanz vkacsjdj 8 of 19 ::: Uploaded on - 16/04/2016 ::: Downloaded on - 17/04/2016 00:00:38 :::
1. cri wp 385-16.doc the Supreme Court in the cases of Dharmendra Suganchand Chelawat Vs. Union of India 6 and Sanjay Kumar Aggarwal Vs. Union of India 7, the Supreme Court observed thus :-
"13. From the catena of decisions referred to above it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition, to question it before a higher court. What this court stated in the case of Ramesh Yadav (supra) was that ordinarily a detention order should not be passed merely to preempt or circumvent enlargement on bail in cases which are essentially criminal in nature and can be dealt with under the ordinary law. It seems to us well settled that even in a case where a person is in custody, if the facts and circumstances of the case so demand, resort can be had to the law of preventive detention.
6 (1990) 1 SCC 746
7 (1990) 3 SCC 309
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In the present case, all the criteria as set out in paragraph 13 of the decision in the case of Kamarunnissa (supra) are clearly met, hence, the detention order cannot be vitiated. Looking to the facts of the present case, the possibility of the detenu being released on bail was a real one and not imaginary one and certainly not a mere ipse dixit of the detaining authority
7. Thereafter, reliance was placed by Mr. Kadam on the decision of the Supreme Court in the case of Rekha Vs. State of Tamil Nadu8. He placed reliance on the observation in paragraph 30 of the decision which reads thus:-
" 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. 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 8 (2011) 5 SCC 244 jfoanz vkacsjdj 10 of 19 ::: Uploaded on - 16/04/2016 ::: Downloaded on - 17/04/2016 00:00:38 :::
1. cri wp 385-16.doc detention order in question was illegal."
Mr. Kadam submitted that in the facts of the present case, the ordinary law of the land would have been sufficient to deal with the situation and it was not necessary to issue an order of detention. In the case of Rekha (supra), the detenu was selling expired drugs after changing their labels, hence, in such circumstances, it was held that the relevant provisions of the Penal Code and the Drugs and Cosmetics Act was sufficient to deal with this situation. However, in the present case, it is seen that the detention order is issued not just on the basis of 2 C.Rs. in one of which, the detenu was released on bail but it is also issued on the basis of two incamera statements.
8. The case of Rekha (supra) has been considered in two later decisions of the Supreme Court i.e in the case of D.M. Nagaraja Vs. Government of Karnataka & Ors.9 and G. Reddeiah Vs. Government of Andhra Pradesh & Anr. 10.
In both these decisions, the Supreme Court considered the 9 (2011) 10 SCC 215 10 (2012) 2 SCC 389 jfoanz vkacsjdj 11 of 19 ::: Uploaded on - 16/04/2016 ::: Downloaded on - 17/04/2016 00:00:38 :::
1. cri wp 385-16.doc earlier decision in the case of Rekha (supra) and distinguished it. In both these decisions, it is held that each case will have to be decided on its own facts. In the present case as stated earlier two C.Rs. have been registered against the detenu, however, in addition to these two C.Rs., the detaining authority has relied on statements of two incamera witnesses i.e Witness A and Witness B. Witness A has stated that the detenu has created a reign of terror in the area of Wakad Police Station. On 4.10.2015 at about 7.00 p.m., Witness A noticed people running helter-skelter. On making inquiry, Witness A learnt that the detenu had come there with three to four accomplices and was threatening people with a sword. On hearing this, the witness was scared and was about to close his office. Just then, the detenu and his accomplices come to the spot. The detenu demanded Rs. 1500/- from Witness A at the point of sword and told him that every month the witness has to give the detenu Rs. 1500/-, otherwise the detenu would not allow him to live in that area. The detenu jfoanz vkacsjdj 12 of 19 ::: Uploaded on - 16/04/2016 ::: Downloaded on - 17/04/2016 00:00:38 :::
1. cri wp 385-16.doc further threatened that if the witness went to the police, the detenu would kill him with sword. The witness was scared, hence, he did not complain to the police.
As far as the incident relating to Witness B is concerned, Witness B has stated that the terrorizing acts of the detenu have disrupted the routine life of the residents in that locality. Witness B has stated that on 16.10.2015, the detenu threatened him at the point of a big knife and demanded Rs. 2000/-. The detenu assaulted the witness on his leg and forcibly took away Rs. 1200/- which was in the cash box. While going, the detenu threatened Witness that if he went to the police, the detenu would kill him.
9. The grounds of detention clearly advert to the fact that confidential inquiry was made about criminal activities of the detenu in the locality of Wakad Police Station and surrounding areas wherein it was noticed that a large number of people were victimized by the detenu in recent past. It was also noted that due to fear of the detenu, jfoanz vkacsjdj 13 of 19 ::: Uploaded on - 16/04/2016 ::: Downloaded on - 17/04/2016 00:00:38 :::
1. cri wp 385-16.doc nobody dares to complain against the detenu openly and make statement openly against the detenu due to fear of retaliation. The witnesses only on being assured that their names and identities will be kept secret and they will not be called open to give evidence against the detenu in any court of law or any other forum, have expressed willingness to give their statements about criminal activities of the detenu. In the grounds of detention, contents of the incamera statements of the two witnesses "A" and "B" are reproduced.
It discloses the involvement of the detenu in criminal activities within the area of Wakad Police Station and nearby areas indicating that the detenu had created a reign of terror and had become a perpetual and potential danger to the even tempo of life of people in those areas. Thus, it is seen that the detenu had created such a reign of terror that the people were not willing to come forward to complain against him. In such case, it is difficult for the ordinary law of land to deal with the situation and to prevent the detenu from again acting in a manner prejudicial to the maintenance of public jfoanz vkacsjdj 14 of 19 ::: Uploaded on - 16/04/2016 ::: Downloaded on - 17/04/2016 00:00:38 :::
1. cri wp 385-16.doc order.
10. Mr. Kadam tried to argue that the externment order would have served the purpose, however, as far as this contention is concerned, it is seen that the detenu who appears to be a weapon-wielding dangerous desperado and continuously engaged in extortion, would shift his prejudicial activities from the jurisdiction of Wakad Police Station to whichever area that he has been externed to. Moreover, from the grounds of detention itself, it is seen that chapter proceedings were initiated against the detenu and the detenu had even executed an interim bond of Rs. 10,000/- to maintain peace. However, the detenu continued committing serious offences in the jurisdiction of Wakad Police Station and Khadki Police Station. Criminal activities of the detenu showed an ascending trend and the detenu was arrested in many cases. However, in all cases except C.R. No. 511/2015, he was granted bail by the court and after being released on bail in the earlier cases, the detenu again committed various jfoanz vkacsjdj 15 of 19 ::: Uploaded on - 16/04/2016 ::: Downloaded on - 17/04/2016 00:00:38 :::
1. cri wp 385-16.doc serious offences. Based on this, the detaining authority reached the conclusion and in our opinion, rightly so that this shows that the normal law of land is insufficient to contain the dangerous criminal activities of the detenu. Looking to all these aspects, we find no merit in this contention.
11. Lastly Mr. Kadam submitted that the detention order can be issued under the MPDA Act only if the detenu is acting in a manner prejudicial to the maintenance of the public order and in the present case, there is no material to show that the activities of the detenu are prejudicial to the maintenance of public order. In support of his contention, he has placed reliance on the decision of the Supreme Court in the case of K.K. Saravana Babu Vs. State of Tamil Nadu & Anr.11. He placed reliance on paragraphs 31 and 32 of the said decision which read thus:-
"31. We have tried to deal with the important cases dealing with the question of 'law and order' and 'public order' right from Romesh Thappar 2 to the latest case of R. Kalavathi13. This Court has been consistent in its approach while deciding the distinction between `law and order' and 11 (2008) 9 SCC 89 jfoanz vkacsjdj 16 of 19 ::: Uploaded on - 16/04/2016 ::: Downloaded on - 17/04/2016 00:00:38 :::
1. cri wp 385-16.doc `public order'. According to the crystallized legal position, cases affecting the public order are those which have great potentiality to disturb peace and tranquility of a particular locality or in the words of Hidayatullah, J. disturb the even tempo of the life of the community of that specified locality.
32. In the instant case, in the grounds of detention, two cases have been enumerated, one of which pertains to the offences punishable under Sections 420, 465, 468 read with Sections 471 and 120B IPC in Crime No. 70 of 2006.
Another case pertains to Crime No. 364 of 2007 registered under Sections 420, 465, 466, 467, 468 read with Sections 471 and 120B IPC. The facts of these cases have been carefully examined and even assuming the allegations of these cases as true, even then by no stretch of imagination, the offences committed by the detenu can be called prejudicial to public order. The detenu can be dealt with under the ordinary criminal law if it becomes imperative."
As far as this contention is concerned, it is already noted above that the present detention order has been issued on the basis of two C.Rs. and two incamera statements. The facts of C.R. No. 511/2015 as seen from the grounds of detention is that the detenu assaulted the complainant and his friends with dangerous weapon. The people present there got scared and ran helter-skelter and while others closed the doors of their house. The incident jfoanz vkacsjdj 17 of 19 ::: Uploaded on - 16/04/2016 ::: Downloaded on - 17/04/2016 00:00:38 :::
1. cri wp 385-16.doc relating to Witness A also shows that when people saw the detenu along with his accomplices threatening the people with sword, people started running helter-skelter. Witness A was also about to close his office, however, the detenu came and threatened him at the point of sword and robbed the witness of money. Witness A had stated that the detenu has created reign of terror in the area. Witness B has stated that the local traders and workers working in the area were under tremendous fear due to reign of terror created by detenu and the terrorizing acts of the detenu have disrupted routine life of the residents in Wakad and nearby areas. From this, it is seen that the activities of the detenu were clearly such as to affect the public order. In the case of Saravana (supra), the detention order was issued only on the basis of two C.Rs and both the C.Rs. were mainly under Section 420 of IPC i.e cases of cheating and forgery. Thus, these were incidents which affected individuals and not the society at large. Such are not the facts in the present case.
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12. Learned APP submitted that incidents relating to Witness A & B are of extortion in public places and such acts are bound to affect public order. In support of this contention, learned APP has relied on the decision of the Supreme Court in the case of Hasan Khan Ibne Haider Khan Vs. R.H. Mendnoca & Ors. 12. In the said case also, it was argued that the activities of the detenu were such that they did not disturb the public order. The Supreme Court in paragraph 9 of the said decision observed thus:-
" We find that the appellant extorted money from businessmen and also gave threats to the people at the public place and thereby undoubtedly affected the even tempo of life of the society, therefore, such activities cannot be said to be mere disturbance of law and order. "
15. In view of the above, in our opinion, this ground raised by the learned counsel for the petitioner to espouse the case of the detenu, is also of no avail. Accordingly, the petition is dismissed. Rule is discharged.
[ SMT. ANUJA PRABHUDESSAI, J ] [ SMT. V.K. TAHILRAMANI, J. ] 12 AIR 2000 SC 1146.
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