Bombay High Court
Laxman @ Kaka Yallappa Jadhav (Detenu) vs The Commissioner Of Police, Solapur And ... on 22 December, 2020
Equivalent citations: AIRONLINE 2020 BOM 2873
Author: M.S. Karnik
Bench: S.S.Shinde, M.S.Karnik
cri.wp 3330-20.doc
DDR
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION ST. NO. 3330 OF 2020
Laxman @ Kaka Yallappa Jadhav
Age 54 years, r/o. Settlement Free
Colony No.3, Solapur ..Petitioner
(Detenu)
vs.
1. The Commissioner of Police
Solapur.
2. The State of Maharashtra
(Through Addl. Chief Secretary
to Government of Maharashtra
Mantralaya, Home Department
Mantralaya, Mumbai)
3. The Superintendent
Yerwada Central Prison, Pune ..Respondents
----------------------------
Mr. Jayshree Tripathi i/b. Mr. U.N. Tripathi for the Petitioner.
Mr. J.P. Yagnik, APP for State.
----------------------------
CORAM : S.S.SHINDE &
M.S.KARNIK, JJ.
RESERVED ON : DECEMBER 10, 2020
PRONOUNCED ON : DECEMBER 22, 2020
1/17
cri.wp 3330-20.doc
JUDGMENT :(PER M.S. KARNIK, J.) Rule. Rule is made returnable forthwith. Heard fnally with the consent of learned counsel appearing for the parties.
2. This Petition under Article 226 of the Constitution of India takes an exception to the order of detention dated 27/8/2020 issued under Section 3(2) of the of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug-Ofenders, Dangerous Persons, Video Pirates, Sand Smugglers and persons engaged in Black-Marketing of Essential Commodities Act, 1981 (hereinafter referred to as 'the said Act' for short) by the respondent No.1 - Commissioner of Police, Solapur.
3. Though the order of detention is challenged on various grounds mentioned in the Petition, learned counsel for the detenu during the course of the argument has restricted her challenge to the detention order on the grounds (c), (d), (h) and
(i) of the Petition.
4. The facts in brief are that the impugned order of detention was made on 27/8/2020 and served on the petitioner on the same day. The petitioner's representation dated 14/9/2020 was sent to the State Government on 14/9/2020 itself. 2/17
cri.wp 3330-20.doc
5. We propose to deal with the grounds of challenge raised by learned counsel for the petitioner at seriatim. We frstly deal with the ground (h) of the Petition. Learned counsel for the petitioner invited our attention to ground 4.3 of the grounds of detention which reads thus :
"On 06/08/2020 an application was received through Speed Post to the Ofce of the Commissioner of Police, Solapur in which the said applicant threatened to kill Hon'ble District and Session Judge, The Commissioner of Police, Solapur & Deputy Commissioner of Police, Solapur for removing your name from the case and to grant your bail and discharge you from the case (relied ofence).
This shows that, you do not have any respect and fear for law, hence you have committed serious ofences one after another as shown above.
However, this detention order is not based on the ofences, preventive action & above application as shown above. These are showed only to high-light your previous criminal history and are referred documents."
6. It is the contention of learned counsel for the petitioner that a specifc request was made to supply the copy of the application as referred to in paragraph 4.3 of the grounds of detention wherein it is stated as "relied ofence". Though a specifc request was made in the representation, no application/document is supplied to the petitioner thereby depriving the petitioner to make efective representation. In support of her submission, learned counsel relied upon the 3/17 cri.wp 3330-20.doc decision of the Apex Court in the case of Ramchandra A. Kamat vs. Union of India and ors.1. Our attention is invited to paragraph 10 of the decision of the Apex Court to support her submission that once the detenu states that for efective representation it is necessary that he should have copies of the statements and documents referred to in the grounds of detention it is the duty of the detaining authority to furnish them with reasonable expedition. The detaining authority cannot decline to furnish copies of the documents on the ground that the grounds were sufciently detailed to enable the petitioner to make an efective representation. \
7. She has also relied upon the decision of this Court in the case of Mohan Manik Deshefti vs. The Commissioner of Police and others2 to submit that the documents requested by the petitioner ought to have been supplied to enable him to make efective representation.
8. Learned APP in response to ground (h) invited our attention to the afdavit-in-reply fled by the detaining authority. The detaining authority has dealt with ground 5(h) of the Petition in paragraph 13 of the afdavit fled by him. Paragraph 13 reads thus :-
1 (1980) 2 SCC 270 2 Criminal Writ Petition No.600 of 2018, decided on 28th March, 2018.4/17
cri.wp 3330-20.doc "13. With reference to para 5(h) of the ground, I deny the contention raised by the Petitioner on following reasons;
In reply of this Para I state that, In reply of this Para I state that, the requested/demanded documents were served to the petitioner as well as to his Advocate U.N. Tripathi on 21/09/2020 via mail at 8.12 pm as per his request through Superintendent Yerwada Central Prison, Pune via mail.
As well as I have clearly mentioned in Para 01 of the grounds of detention that "Copies of the documents placed before me are enclosed except the names and identifying particulars of the witnesses/victims in connection with the grounds mentioned in paragraph No.5-4 & 5-5 below as well as an application of a known applicant mentioned below in Para No.4-3, which cannot be furnished to petitioner in the public interest and for which I claim privilege".
As per the article 22(6) of the Constitution of India it is stated as "Nothing in clause (5) shall require the authority making any such order as is referred to in that clause to disclose facts which such authority considers to be against the public interest to disclose".
As well as, as per the section 8(2) of MPDA Act, 1981 it is stated that "Nothing in the sub-section (1) shall require the authority to disclose facts which it considers to be against the public interest to disclose".
The statement 'relied ofence' is been stated as the applicant in the application has threatened to kill Hon'ble District and Session Judge, The Commissioner of Police, Solapur & Deputy Commissioner of Police, Solapur for removing petitioner's 5/17 cri.wp 3330-20.doc name and to grant him bail and discharge from the relied ofence. That's why it has been stated as relied ofence.
Hence, I deny the contentions raised by petitioner in this Para."
9. From the response of the detaining authority, we fnd that there is no material to connect the Petitioner with allegations made in the application dated 06.08.2020. Merely on the basis of application dated 06.08.2020 without anything more to establish the nexus of the Petitioner with the allegations made in the application, the said application and the contents therein could not have been the basis for forming an opinion that the Petitioner does not have any respect and fear for law. The detaining authority has however observed that the detention order is not based on the application dated 06.08.2020, and therefore, in our opinion, challenge to the detention order on ground (h) of the Petition is devoid of any merit.
10. Learned counsel for the petitioner then pressed ground (d) of the Petition. She submits that the detaining authority has taken into consideration two cases viz.C.R.No.816 of 2020 under Sections 302, 306, 34, 386, 364(a), 504, 506 of the Indian Penal Code r/w. 39, 45 of the Maharashtra Money Lending Regulation Act, 2014 and C.R.No. 110/2020 under Sections 269, 336, 188 of 6/17 cri.wp 3330-20.doc the Indian Penal Code r/w. 51 (b) of the Disaster Management Act, 2005 for arriving at a subjective satisfaction as to the necessity for passing the detention order.
11. The ofence in C.R. No.816 of 2020 pertained to the suicide committed by the deceased. It is alleged that the Petitioner abetted the commission of suicide. In the submission of learned counsel for the Petitioner, on a reading of the alleged incident as narrated in C.R.No.816 of 2020, by no stretch of imagination it can be held that public order is disturbed for the alleged activity of the petitioner. According to her, in the entire narration of the incident in the said C.R., there is no direct involvement of the petitioner in abetting the suicide of the deceased. She pointed out that in the grounds of detention in paragraph 5.2 though it is mentioned that "your associates", but factually it is apparent that it is primarily one accused namely Vyankatesh Pampanna Dambaidini from whom the deceased had borrowed an amount of Rs.70 lakhs in the year 2019 in respect of an earlier transaction pertaining to the Hotel business in which the deceased sufered heavy fnancial loss due to pandemic. She submits that the petitioner had no concern with this transaction.
12. Learned counsel for the petitioner then invited our attention to second relied C.R.No. No. 110 of 2020 registered 7/17 cri.wp 3330-20.doc under Sections 269, 336, 188 of the Indian Penal Code r/w. 51(b) of the Disaster Management Act, 2005. The allegation is that the Petitioner was riding a motorcycle speedily near Saibaba Chowk which was seen by the complainant - Police Constable - 1522 Rama Haridas Bhingare during Nakabandi. The rider of the motorcycle was obstructed and the documents of the motorcycle seen. There were several motorcycles of which one belonged to the Petitioner. The riders were asked whether they knew about the prohibition order passed for the prevention of spread of Covid-19 virus to which they agreed having knowledge. According to the allegations in the complaint, despite knowing the seriousness of the pandemic, the riders of the motorcycles were found breaching the orders given by the District Collector, Solapur and the orders published in newspapers and other media. The motorcycles and the accused were taken to Salgar Vasti Police Station. As order given by the District Collector, Solapur was defed, the ofences under Sections 269, 336, 188 of the Indian Penal Code r/w. 51(b) of the Disaster Management Act, 2005 came to be registered on 4/4/2020.
13. Learned counsel for the petitioner relying on the decisions of the Hon'ble Supreme Court in the case of Arun Ghosh vs. State of West Bengal3 and Abdul Razak Nannekhan Pathan 3 AIR 1970 SC 1228 8/17 cri.wp 3330-20.doc vs. Police Commissioner, Ahmedabad and another 4 to invite our attention to the well settled principle of law as regards the distinction between public order and law and order. She submitted that act of the petitioner by no stretch of imagination can be said to be subversive of public order.
14. In response to ground (d), the detaining authority has relied upon these two C.Rs. and in-camera statements of the witnesses to demonstrate that the petitioner has committed ofences which falls under Chapter XVI and XVII of the Indian Penal Code thereby showing petitioner's propensity towards criminality, as well as his tendency and inclination to likely revert to similar activities prejudicial to the maintenance of public order in future.
15. We would deal with the submission of learned counsel and learned APP so far as ground (d) by frstly referring to the celebrated decision of the Hon'ble Supreme Court in the case of Arun Ghosh (supra). The Hon'ble Supreme Court elaborately dealt with the distinction between public order and law and order. It would be apposite to refer to paragraph 3 of the decision which reads thus :-
"3. The submission of the counsel is that these are stray acts directed against individuals and are not subversive of public order 4 (1989) 4 SCC 43 9/17 cri.wp 3330-20.doc and therefore the detention on the ostensible ground of preventing him from acting in a manner prejudicial to public order was not justifed. In support of this submission reference is made to three cases of this Court: Dr. Ram Manohar Lohia v. State of Bihar, 1966-1 SCR 709 = (AIR) 1966 SC 740) ; Pushkar Mukherjee and Ors. v. State of West Bengal, W.P.NO. 179 of 1968, D/- 7-11-1968 (sc) and Shyamal Chakraborty v. The Commissioner of Police, Calcutta and Anr.,W.P. NO.102 of 1969, D/-4-8-1969. In Dr. Ram Manohar Lohia's case 1966-1 SCR 709 = (AIR) 1966 SC 740) this Court pointed out the diference between maintenance of law and order and its disturbance and the maintenance of public order and its disturbance. Public order was said to embrace more of the community than law and order. Public order is the even tempo of the life of the community taking the country as a whole or even a specifed locality. Disturbance of public order is to be distinguished from acts directed against individuals which do not disturb the society to the extent of causing a general disturbance of public tranquility. It is the degree of disturbance and its efect upon the life of the community in a locality which determines whether the disturbance amounts only to a breach of law and order. Take for instance, a man stabs another. People may be shocked and even disturbed, but the life of the community keeps moving at an even tempo, however much one may dislike the act. Take another case of a town where there is communal tension. A man stabs a member of the other community. This is an act of a very diferent sort. Its implications are deeper and it afects the even tempo of life and public order is jeopardized because the repercussions of the act embrace large sections of the community and incite them to make further breaches of the law and order and to subvert the public order. An act by itself is not determinant of its own gravity. In its quality it may not difer from another but in its potentiality it may be very diferent. Take the case of assault on girls. A guest at a hotel may kiss or make advances to half a dozen chamber maids. He may annoy them and also the management but he does not cause disturbance of public order. He may even have a fracas with 10/17 cri.wp 3330-20.doc the friends of one of the girls but even then it would be a case of breach of law and order only. Take another case of a man who molests women in lonely places. As a result of his activities girls going to colleges and schools are in constant danger and fear. Women going for their ordinary business are afraid of being waylaid and assaulted. The activity of this man in its essential quality is not diferent from the act of the other man but in its potentiality and in its afect upon the public tranquility there is a vast diference. The act of the man who molests the girls in lonely places causes a disturbance in the even tempo of living which is the frst requirement of public order. He disturbs the society and the community. His act makes all the women apprehensive of their honour and he can be said to be causing disturbance of public order and not merely committing individual actions which may be taken note of by the criminal prosecution agencies. It means therefore that the question whether a man has only committed a breach of law and order or has acted in a manner likely to cause a disturbance of the public order is a question of degree and the extent of the reach of the act upon the society. The French distinguish law and order and public order by designating the latter as order publique. The latter expression has been recognised as meaning something more than ordinary maintenance of law and order. Justice Ramaswami in Writ Petition No. 179 of 1968 (SC) drew a line of demarcation between the serious and aggravated forms of breaches of public order which afect the community or endanger the public interest at large from minor breaches of peace which do not afect the public at large. He drew an analogy between public and private crimes. The analogy is useful but not to be pushed too far. A large number of acts directed against persons or individuals may total up into a breach of public order. In Dr. Ram Manohar Lohia's case 1966-1 SCR 709 = (AIR) 1966 SC 740) examples were given by Sarkar and Hidayatullah, JJ. They show how similar acts in diferent contexts afect diferently law and order on the one hand and public order on the other. It is always a question of degree of the harm and its efect upon the community. The question to ask is:11/17
cri.wp 3330-20.doc Does it lead to disturbance of the current of life of the community so as to amount to a disturbance of the public order or does it afect merely an individual leaving the tranquility of the society undisturbed? This question has to be faced in every case on facts. There is no formula by which one case can be distinguished from another."
16. In the present case, so far as C.R.No. 816 of 2020 is concerned, the same pertains to a suicide case based on the allegation that the deceased had borrowed an amount of Rs.70 lakhs from one accused Vyankatesh Pampanna Dambaldini in the year 2019 in respect of Hotel business in which the deceased sufered heavy fnancial loss due to pandemic. The allegation is that the petitioner was threatening the deceased to return the amount and had thereby abetted the suicide of the deceased. So far as the second C.R.No.110 of 2020 on which the reliance is placed pertains to the breach of prohibitory orders issued by the District Collector. The petitioner and his associates were found riding motorcycles during the pandemic in breach of the prohibitory orders which were in force and therefore, the ofences under Sections 269, 336, 188 of the Indian Penal Code r/w. 51(b) of the Disaster Management Act, 2005 came to be registered.
17. We fnd that the conduct of the petitioner in threatening the deceased to return the money which he had borrowed from 12/17 cri.wp 3330-20.doc an accused Vyankatesh Pampanna Dambaldini may be reprehensible but it does not add up to the situation where it can be said that the community at large was being disturbed or in other words there is a disturbance of public order or likelihood of breach of public order. Even so far as the breach of prohibitory orders of the District Collector are concerned, the petitioner was found riding a motorcycle during a pandemic for which the ofence against him has been registered and for the breach thereof normal laws of land are sufcient to take care of. In our opinion, the registration of the C.Rs. on the allegations stated hereinbefore are not enough to justify such a harsh action of detention. In our opinion, the present case falls within the dictum of proposition expounded by Their Lordships in the case of Arun Ghosh as to the distinction made between public order and law and order. The result therefore is that however reprehensible the conduct of Laxman @ Kaka Yallappa Jadhav may be, it cannot be said to amount to an apprehension of breach of public order for which alone his detention can be ordered.
18. The next ground on which the petitioner assails the order of detention is ground (c) of the Petition. She points out paragraph 6 of the grounds of detention where the detaining authority has stated that there is a real and imminent possibility that the 13/17 cri.wp 3330-20.doc petitioner will avail bail in future. In her submission, this stand of the detaining authority is not justifed in the absence of any cogent material of his release on bail and merely quoting that "ofences as mentioned above are not necessarily punishable with death and that there is a provision under Section 439 of the Code of Criminal Procedure that High Court and Sessions Court may grant conditional bail" is not sufcient material to justify the perception of the detaining authority that there is real and imminent possibility for grant of bail. Learned counsel pointed out that none of the co-accused were granted bail in similar circumstance and therefore the apprehension of the detaining authority that the petitioner may avail bail is erroneous in the absence of cogent material.
19. Learned counsel for the petitioner relied upon the decision of the Apex Court in the case of Rekha vs. State of Tamil Nadu through Secretary of Government and another 5 and Ahmedhussain Shaikhhussain @ Ahmed Kalio vs. Commissioner of Police, Ahmedabad and another 6 in support of her submission.
20. Learned APP invited our attention to the detention order. Learned APP justifed this ground by submitting that the 5 (2011) 5 SCC 244 6 (1989) 4 SCC 751 14/17 cri.wp 3330-20.doc detaining authority has gone through the entire investigation papers of the said ofences and considered the role played by the petitioner in the respective ofences. Following is the relevant portion of the afdavit-in-reply :
"It is further submitted that I have gone through the entire investigation papers of the said ofences and he have considered the role played by the petitioner in a respective ofences. I was further aware that the punishment for the ofences registered against the petitioner is not compulsorily death. Therefore, after considering the overall nature of allegations against the petitioner and after considering the said reliable material placed before him, I came to the conclusion that the petitioner would be granted bail by the concerned Courts in future and after availing bail facility the petitioner will become a free person and looking to his propensity and potentiality towards criminality, the petitioner would likely to revert into similar type of prejudicial activities in future. I say that the Order of Detention has been issued by me, since I was subjectively satisfed that the activities of the petitioner were prejudicial to the maintenance of public order, hence in order to prevent the petitioner from further indulging in such prejudicial activities which afected the maintenance of Public Order, I have issued the Order of Detention against the petitioner."
(emphasis supplied)
21. The answer to ground (c) of the Petition need not detain us any longer. Once we have arrived at a conclusion that the ofences registered against the petitioner afect law and order and not public order, in that event, the question of sustaining the detention order even on ground (c) does not arise. The fndings of the detaining authority are based on the possibility of 15/17 cri.wp 3330-20.doc Petitioner being released on bail in respect of ofences afecting law and order and not public order. This ground therefore cannot form the basis of the detention order.
22. We do not fnd it necessary now to deal with ground (i) as we have already found that the detention of the petitioner cannot sustained on ground (d) and (c) of the Petition. The Writ Petition, therefore, succeeds and deserves to be allowed. Hence the following order :
ORDER
(i) The Writ Petition is allowed in terms of prayer Clause
(b) which reads thus :-
"(b) The order of Detention bearing No.05/CB/DP/2020 dated 27.08.2020 issued under Section 3 of M.P.D.A. Act, 1981 by the Respondent No.1 be quashed and set aside and on quashing the same the Petitioner be ordered for release forthwith."
(ii) The petitioner - detenu - Laxman @ Kaka Yallappa Jadhav shall be released forthwith unless otherwise he is required in any other matter.
23. Rule is made absolute accordingly.
16/17
cri.wp 3330-20.doc
24. The Writ Petition is disposed of accordingly.
25. This judgment will be digitally signed by the Personal Assistant of this Court. All concerned will act on production by fax or email of a digitally signed copy of this judgment.
(M.S.KARNIK, J.) (S.S.SHINDE, J.)
Digitally
signed by
Diksha Diksha Rane
Date:
Rane 2020.12.30
18:14:12
+0530
17/17