This bench dismissed a writ petition challenging a Show Cause Notice issued under Section 110(g) Cr.P.C. The Court held that clause (g) applies to desperate and dangerous persons and does not require the person to be a habitual offender, unlike clauses (a) to (f).
Petition dismissed; Rule discharged with no order as to costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.336 OF 2005
Mujibur Rehman Abdul Ganikhan )
aged 37 years, Indian Inhabitant)
residing at Room No.30/31, )
3rd floor, Kathawala Building, )
101, Bhandari Street, )
Mumbai 400 003. )...Petitioner
Versus
1. The State of Maharashtra )
through the Public )
Prosecutor, High Court, )
(A.S.) Bombay. )
2. The Sr. Inspector of Police)
L.T.Marg Police Station, )
Mumbai. )
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3. The Special Executive )
Magistrate, Pydhoni Divn. )
Mumbai 400 003. )...Respondents
Shri Subhash Jha with Shri G.D.Upadhyay i/b Law Global
for petitioner
Shri B.H.Mehta, APP for Respondent Nos.1 to 3.
CORAM : R.M.S.KHANDEPARKAR &
P.V.KAKADE, JJ.
DATE : 16TH FEBRUARY,2005.
ORAL JUDGMENT :- (Per Khandeparkar, J.)
1. Heard. Rule. By consent, rule made returnable
forthwith.
2. The petitioner challenges the Show Cause Notice
issued under Section 110(g) of the Code of Criminal
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Procedure solely on the ground that the sole incident
disclosed in the show cause notice nowhere reveals that
the Petitioner is a habitual offender which is otherwise
prerequisite for the exercise of powers under Section
110 by the Authority to enable it to call the Petitioner
to execute Bond assuring good behaviour. Placing
reliance in the decision of the Apex Court in the case
of Gopalanachari vs. State of Kerala reported in 1980
(supp) Supreme Court Cases 649 and the decision of the
Division Bench of this Court in the case of Santosh
Vishwanath Shinde vs. J.R.Sangam Asstt. Commissioner
of Police & Anr. reported in 1995(1) Crimes 571, the
learned advocate for the Petitioner submitted that the
provisions under clause 110(g) have to be read with the
other provisions of Section 110 as well as Section 109
of Cr.P.C. and having so read along with the show cause
notice under challenge, it is apparent that the contents
of the show cause notice disclosed that the same nowhere
warranted exercise of powers by the authorities under
the said provision nor it justified calling the
petitioner to execute any bond in terms of Section
110(g) of Cr.P.C. It is the contention of the
petitioner that habitual commission of offence is the
prerequisite to call upon a party to execute the Bond in
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terms of Section 110 (g) of Cr.P.C.
3. At the outset it is to be mentioned that the
Petition has been filed challenging the show cause
notice issued pursuant to the Order under Section 111
Cr. P.C. calling upon the Petitioner to show cause
against the execution of bond in terms of the provisions
of Section 110(g) of Cr.P.C. Obviously, the Petitioner
has sufficient opportunity to show cause against the
said requirement of execution of the bond and in such
cases interference by this Court in writ jurisdiction is
to be avoided, unless, of course, when the order under
Section 111 of Cr. P.C. discloses lack of bonafide and
on that count itself the petition could be rejected.
However, since the petitioner has also raised a purely
question of law, it would be necessary to deal with the
same. The point raised is whether for issuance of show
cause notice on information in terms of Section 110(g)
of Cr.P.C., is it necessary that such person should be a
habitual offender.
4. Section 110 Cr.P.C. comprises of different
clauses (a) to (g). Clauses from (a) to (f) thereof
relate to the persons, who indulge in different offences
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"by habit" or "habitually", whereas clause (g) relates
to the persons who are desperate and dangerous. It
nowhere refers to the persons committing offences
habitually. In fact, the legislature has avoided the
expression "by habit" or "habitually" to be used in
clause (g), while one of those expression has been
consistently used in clauses (a) to (f). It, therefore,
discloses that clause (g) cannot be read, as sought to
be argued by the learned advocate for the petitioner.
For the purpose of the proceeding under clause (g)
therefore , it is not necessary that the person should
be habitual offender.
5. The rule of interpretation ejusdem generis is
well settled and it applies where a general word follows
particular and specific words of same nature as itself
but it has no application where there is no genus or
category indicated by the Legislature. It was clearly
held by the Apex Court in Jage Ram & Ors. vs The State
of Haryana & Ors. reported in AIR 1971 SC 1033 that
"the ejusdem generis rule is not a rule of law but
merely a rule of construction to aid the Courts to find
out the true intention of the Legislature. If a given
provision is plain and unambiguous and the legislature
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intent is clear, there is no occasion to call into aid
that rule."
6. Perusal of the proviso of law comprised under
Section 110 of Cr.P.C. it is evident that each clause
thereunder relates to different type of offence, besides
while clauses (a) to (f) relate to the habitual
offenders, the clause (g) relates to desperate and
dangerous persons. The words used therein are very
clear and unambiguous and do not warrant any
interpretation as sought to be argued on behalf of the
petitioner. This however does not mean that habitual
offender cannot be desperate and/or dangerous. But, it
does not require that such desperate and/or dangerous
person should necessarily be a habitual offender, though
such person if found to be desperate and dangerous can
also be subjected to the requirement of execution of
bond under Section 116 of Cr.P.C.
7. Perusal of the show cause notice issued in the
matter in hand discloses that on an allegation of theft
of jewellery, a person was assaulted to such an extent
that he lost his life and further suppressing the fact
that he lost his life on account of the assault by the
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Petitioner and others, a false information was sought to
be given that the dead boy was lying on the road. The
show cause notice refers to various facts prima facie
disclosing involvement of the petitioner in the alleged
illegal activity. Obviously, an opportunity is given to
the petitioner to show cause by issuing the said notice.
Instead of availing the said opportunity, the petitioner
has chosen to rush to this Court for quashing the show
cause notice without any justifiable ground.
8. The decision of the Apex Court Gopalanachari
(supra) nowhere lays down that for an exercise of powers
under Section 110(g) a person has necessarily to be
habitual, desperate and dangerous. It has been clearly
observed therein that "words of wide import, vague
amplitude and for too generalised to be safe in the
hands of the police cannot be constitutionalised in the
context of Article 21 unless read down to be as fair and
reasonable legislation with reverence for human rights.
A glance at Section 110(g) shows that only a narrow
signification can be attached to the words in clauses
(a) to (g), "by habit a robber .....", "by habit a
receiver of stolen property ....", "habitually protects
or harbours thieves ....", "habitually commits or
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attempts to commit or abets the commission of ....", "
is so desperate and dangerous as to render his being at
large without security hazardous to the community."
These expression, when they become part of the
preventive chapter with potential for deprivation of a
man’s personal freedom upto a period of three years,
must be scrutinised by the court closely and anxiously."
The occasion to scrutinise the materials in the process
of adjudication relating to the allegations against the
petitioner would arise after the Petitioner files his
reply to the show cause notice. Being so, it is
premature to consider the same by merely referring to
the show cause notice. The said decision of the Apex
Court nowhere supports the contentions sought to be
raised on behalf of the petitioner.
9. The Division Bench of this Court in Santosh
Vishwanath Shinde’s case had ruled thus:
"6. The notice in the instant case mentions
only one solitary incident. Except the
solitary incident no data is made available
justifying the resort to the provisions of
Section 110 of the Criminal Procedure Code. No
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antecedents are pointed out as far as the
detenus are concerned. Hence, resort to the
provisions of Section 110 and issuance of the
impugned notice upon the detenus under Section
111 is not justified in the facts and
circumstances of the case. In the present
case, apart from the incident quoted in the
notice, no material is pointed out in order to
draw an inference that the detenus are by habit
robbers, house-breakers, thieves, or forgers,
or they habitually commit, or attempt to
commit, or abet the commission of offences
involving the breach of peace. We have not the
slightest doubt that expressions like "you are
habituated to commit such offences" cannot be
flung in the face of a man with laxity of
semantics. The Court must insist on
specificity of facts and be satisfied that one
swallow does not make a summer and a consistent
course of conduct convincing enough to draw the
rigorous inference that by confirmed habit,
which is second nature, the counter-petitioner
is sure to commit the offences mentioned in he
is not kept captive. Preventive sections
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privative of freedom, if incautiously proved by
indolent judicial processes, may do deeper
injury. They will have the effect of detention
of one who has not been held guilty of a crime
and carry with it the judicial imprimatur, to
boot. To call a man dangerous is itself
dangerous, to call a man desperate is to affix
a desperate adjective to stigmatise a person as
hazardous to the community is itself a judicial
hazard unless compulsive testimony carrying
credence is abundantly available."
Obviously, it was in relation to the case wherein the
show cause notice was issued, which read as under :
"On 27.12.1994 at 19.45, you were coming along
with your colleagues in the form of Morcha
towards Barkatali Road while shouting slogans
in loud voice. At that time, you were stopped
at Vidya Hostel, Barkat Ali Road. On that
occasion, you had gathered unlawfully in breach
of order of Commissioner of Police, Greater
Bombay. Though you were ordered by the police
preventing you from slogan shouting, you
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refused to obey such orders and continued
shouting slogan. Thereby, you committed an
offence of breach of public peace. Therefore,
an offence was registered against you and your
colleagues and you were arrested."
Apparently it was not a case disclosing the facts to
support, even prima facie, the allegation of a person
being desperate and dangerous. Being so, the
observations made in the said decision cannot apply to
the case where a person is sought to be dealt with on
allegation of being a desperate and dangerous, prima
facie revealed from the facts narrated in the notice.
10. The ratio of the decision is to be understood
after considering the facts of the case, the point which
was raised for consideration and the ruling given on
such point, as has been held by the Apex Court in Union
of India vs. Dhanwanti Devi and Ors. 1996(6) SCC 44.
11. For the reasons stated herein above, the
Petition fails and is hereby dismissed. The rule is
discharged with no order as to costs.
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(R.M.S.Khandeparkar,J.)
(P.V.Kakade, J.)
2 issues framed by the court
Whether for issuance of a show cause notice under Section 110(g) of Cr.P.C., it is necessary that the accused be a habitual offender.
Whether the ejusdem generis rule applies to integrate the 'by habit' requirement from clauses (a) to (f) into clause (g) of Section 110 Cr.P.C.
Colour shows how this judgement treated each authority
Gopalanachari vs. State of KeralaReferred¶15
Gopalanachari vs. State of Kerala reported in 1980 (supp) Supreme Court Cases 649
Santosh Vishwanath Shinde vs. J.R.Sangam Asstt. Commissioner of PoliceDistinguished¶33
Santosh Vishwanath Shinde vs. J.R.Sangam Asstt. Commissioner of Police & Anr. reported in 1995(1) Crimes 571
Jage Ram & Ors. vs The State of HaryanaReferred¶23
Jage Ram & Ors. vs The State of Haryana & Ors. reported in AIR 1971 SC 1033 · Who else cites this
Union of India vs. Dhanwanti DeviReferred¶10
Union of India vs. Dhanwanti Devi and Ors. 1996(6) SCC 44 · Who else cites this
4 provisions across 1 enactments
Mujibur Rehman Abdul Ganikhan
The State of Maharashtra
RMS KHANDEPARKAR
P V KAKADE
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court