Quashed

Khengarbhai Bhalabhai Rabari v. State of Gujarat

Gujarat HC2 Sept 2014SCA/5686/2014

Case brief

AI extract

What is this about?

The High Court of Gujarat quashed a detention order under the Gujarat Prevention of Anti Social Activities Act. The single judge held that the petitioner was not a 'dangerous person' as his offences were not habitual, relying on the Supreme Court's decision in Mustakmiya Jabbarmiya Shaikh.

What did the court decide?

Order of detention dated 31.03.2014 quashed and set aside; petitioner set at liberty forthwith.

Khengarbhai Bhalabhai Rabari Vs State of… — Pension and Retirement Benefits | Gujarat HC (2014)

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C/SCA/5686/2014 JUDGMENT

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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SPECIAL CIVIL APPLICATION NO. 5686 of 2014

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FOR APPROVAL AND SIGNATURE:

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HONOURABLE MR.JUSTICE A.J.DESAI

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1 Whether Reporters of Local Papers may be allowed to see the judgment ?

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2 To be referred to the Reporter or not ?

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3 Whether their Lordships wish to see the fair copy of the judgment ?

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4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder ?

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5 Whether it is to be circulated to the civil judge ?

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KHENGARBHAI BHALABHAI RABARI....Petitioner(s)

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Versus

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STATE OF GUJARAT & 2....Respondent(s)

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Appearance:

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MR.RAJESH B SONI, ADVOCATE for the Petitioner(s) No. 1 MS MEGHA CHITALIYA ASSISTANT GOVERNMENT PLEADER for the Respondent(s) No. 3

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CORAM: HONOURABLE MR.JUSTICE A.J.DESAI

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Date : 02/09/2014

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ORAL JUDGMENT

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1.0 By way of the present petition, the petitioner- detenue has

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prayed to quash and set aside the order of detention dated 31.03.2014 passed by respondent No. 2 in exercise of powers conferred under Section 3(2) of the Gujarat Prevention of Anti Social Activities Act, 1985 [for short 'the PASA Act'] by detaining the detenue as a 'dangerous person' as defined under Section 2(c) of the Act.

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2.0 Learned advocate for the petitioner would submit that the petitioner came to be made an accused in three offences being [i] C.R. No. I-72 of 2011 for the offences punishable under Sections 420, 465 , 467, 468, 471, 120(B), 416 and 419 of the Indian Penal Code, [ii] C.R. No.I- 105 of 2012 for the offences punishable under Sections 143, 147, 148, 149, 324, 323, 504, 447 of the Indian Penal Code and M. Case No. 8 of 2013 for the offences punishable under Sections 406,420,506(2), 114 and 120(B) of the Indian Penal Code. All the three offences are registered before Kathlal Police Station. He would further submit that the petitioner is not an habitual offender and cannot be detained under the provisions of PASA Act. By relying upon the decision in case of Mustakmiya Jabbarmiya Shaikh V. M.M.Mehta, Commissioner of Police & Ors. reported in 1995(2) G.L.R.1268 , he would further submit that there is no question of breach of any public order, and therefore, the petitioner cannot be treated as 'dangerous person' under the provisions of PASA Act.

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3.0 On the other hand, Ms. Megha Chitaliya, learned Assistant Government Pleader by relying upon the judgement and order dated

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15.07.2014 passed in Special Civil Application No. 4002 of 2014 (Coram : Hon'ble Mr. Justice S.G.Shah), would submit that two offences have been registered against the present petitioner and the case of the petitioner is covered by the said decision. Learned Assistant Government Pleader would further submit that the detenue had preferred Letters Patent Appeal No. 905 of 2014 challenging the decision of above referred Special Civil Application No. 4002 of 2014, which came to be dismissed by the Division Bench of this Court (Coram : Hon'ble Mr. Justice V.M.Sahai and Honble Mr.Justice R.P.Dholaria) vide order dated 22.08.2014 passed in Letters Patent Appeal No. 905 of 2014, and therefore, the present petition be dismissed.

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4.0 In reply to the argument advanced by Ms. Megha Chitaliya,, learned Assistant Government Pleader, learned advocate for the petitioner would submit that the decision of Mustakmiya Jabbarmiya Shaikh V. M.M.Mehta, Commissioner of Police (Supra) was not brought to the notice of the learned Single Judge (Coram : Hon'ble Mr. Justice S.G.Shah) as well as before the Division Bench (Coram : Hon'ble Mr. Justice V.M.Sahai and Honble Mr. Justice R.P.Dholaria), and therefore, the order of detention has not been quashed and set aside. By placing a copy of judgement and order dated 04.08.2014 passed in Special Civil Application No. 4844 of 2014 by the learned Single Judge (Coram : Hon'ble Mr. Justice S.G.Shah), learned advocate would further submit that the learned Single Judge, by relying upon

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different decisions of this Court as well as of the Apex Court including decision of Mustakmiya Jabbarmiya Shaikh V. M.M.Mehta, Commissioner of Police (Supra), has held that only on the ground of lodging FIR under the provision of the Arms Act, the authority would not entitle to detain the person under the provision of the Arms Act labelling him as a 'dangerous person'. By relying upon another subsequent decision of the Division Bench of this Court (Coram : Hon'ble Mr. Justice V.M.Sahai and Hon’ble Mr. Justice R.P.Dholaria) dated 27.08.2014 passed in Latters Patent Appeal No. 920 of 2014, learned advocate for the petitioner would further submit that the Division Bench has opined that only registering the offence under the provision of Arms Act or under the provisions of Chapter XVI or Chapter XVII of the IPC, no sufficient reason arisen to label the person as dangerous person, and therefore, the detention order confirmed by the learned Single Judge came to be quashed and set aside.

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5.0 The Apex Court has in case of Mustakmiya Jabbarmiya Shaikh V. M.M.Mehta, Commisioner of Police (Supra) observed as under:

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8. The Act has defined "dangerous person" in clause (c) of Sec. 2 to mean a person who either by himself or as a member or leader of a gang habitually commits or attempts to commit or abets the commission of any of the offences punishable under Chapter XVI or Chapter XVII of the Penal Code or any of the offences punishable under Chapter V of the Arms Act. The expression 'habit' or 'habitual' has, however, not been defined under the Act. According to The

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Law Lexicon by P. Ramanatha Aiyar, Reprint Edn. (1987), p. 499, 'habitually' means constant, customary and addicted to specified habit and the term habitual criminal may be applied to anyone who has been previously convicted of a crime to the sentences and committed to prison more than twice. The word 'habitually' means 'usually' and 'generally'. Almost similar meaning is assigned to the words 'habit' in Aiyar's Judicial Dictionary, 10th Edn., p. 485. It does not refer to the frequency of the occasions but to the invariability of practice and the habit has to be proved by totality of facts. It, therefore, follows that the complicity of a person in an isolated offence is neither evidence nor a material of any help to conclude that a particular person is a "dangerous person" unless there is material suggesting his complicity in such cases which lead to a reasonable conclusion that the person is a habitual criminal. In Gopalanchari v. State of Kerala, AIR 1981 SC 674 this Court had an occasion to deal with expressions like "bad habit", 'habitual', 'desperate', 'dangerous', and 'hazardous'. This Court observed that the word habit implies frequent and usual practice. Again in Vijay Narain Singh v. State of Bihar, 1984 (3) SCC 14 this Court construed the expression 'habitually' to mean repeatedly or persistently and observed that it implies a thread of continuity stringing together similar repetitive acts but not isolated, individual and dissimilar acts and that repeated, persistent and similar acts are necessary to justify an inference of habit. It, therefore, necessarily follows, that in order to bring a person within the expression "dangerous person" as defined in clause (c) of Sec. 2 of the Act, there should be positive material to indicate that such person is habitually committing or attempting to commit or abetting the commission of offences which

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are punishable under Chapter XVI or Chapter XVII of I.P.C. or under Chapter V of the Arms Act and that a single or isolated act falling under Chapter XVI or Chapter XVII of I.P.C. or Chapter V of the Arms Act cannot be characterised as a habitual act referred to in Sec. 2(c) of the Act.

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9. Further, sub-sec. (1) of Sec. 3 of the Act confers power on the State Government and a District Magistrate or a Commissioner of Police under the direction of the State Government to detain a person on being satisfied that it is necessary to do so with a view to preventing him from acting in any manner prejudicial to the maintenance of "public order". The explanation attached to Sub-sec. (4) of Sec. 3 reproduced above in the foregoing para contemplates that "public order" shall be deemed to have been affected adversely or shall be deemed likely to be affected adversely inter alia if any of the activities of any person referred to in sub-sec. (4) directly or indirectly, are causing or is likely to cause any harm, danger or alarm or feeling of insecurity among the general public or any section thereof or a grave or widespread danger to life, property or public health. Sub-sec. (4) of Sec. 3 also provides that for the purpose of Sec. 3, a person shall be deemed to be 'acting in any manner prejudicial to the maintenance of public order' when such person is a "dangerous person" and engaged in activities which affect adversely or are likely to affect adversely the maintenance of public order. It, therefore, becomes necessary to determine whether besides the person being a "dangerous person" his alleged activities fall within the ambit of the expression 'public order'. A distinction has to be drawn between law and order and maintenance of public order because most often

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the two expressions are confused and detention orders are passed by the authorities concerned in respect of the activities of a person which exclusively fall within the domain of law and order and which have nothing to do with the maintenance of public order. In this connection it may be stated that in order to bring the activities of a person within the expression of "acting in any manner prejudicial to the maintenance of public order", the fall out and the extent and reach of the alleged activities must be of such a nature that they travel beyond the capacity of the ordinary law to deal with him or to prevent his subversive activities affecting the community at large or a large section of society. It is the degree of disturbance and its impact upon the even tempo of life of the society or the people of a locality which determines whether the disturbance caused by such activity amounts only to a breach of "law and order" or it amounts to "public order". If the activity falls within the category of disturbance of "public order" then it becomes essential to treat such a criminal and deal with him differently than an ordinary criminal under the law as his activities would fall beyond the frontiers of law and order, disturbing the even tempo of life of the community of the specified locality. In the case of Arun Ghosh v. State of W. B., 1970 (1) SCC 98 this Court had an occasion to deal with the distinction between law and order and public order. Hidayatullah, C. J. (as he then was), speaking for the Court observed that public order would 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 specified locality. Disturbance of public order is to be distinguished from acts directed against individuals which do not disturb the society to the extent of

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causing a general disturbance of public tranquillity. It is the degree of disturbance and its effect upon the life of the community in a locality which determines whether the disturbance amounts only to a breach of law and order. It has been further observed that the implications of public order are deeper and it affects 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 differ from another but in its potentiality it may be very different. Again in the case of Piyush Kantilal Mehta v. Commissioner of Police, 1989 Supp. (1) SCC 322 : [1989(1) GLR 563 (SC)], this Court took the view that in order that an activity may be said to affect adversely the maintenance of public order, there must be material to show that there has been a feeling of insecurity among the general public. If any act of a person creates panic or fear in the minds of the members of the public upsetting the even tempo of life of the community, such act must be said to have a direct bearing on the question of maintenance of public order. The commission of an offence will not necessarily come within the purview of public order which can be dealt with under ordinary general law of the land.

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6.0 I have heard learned advocate for the respective parties. Perused the impugned order of detention. The three offences have been registered under provisions of the Indian Penal Code against the petitioner out of which one offnece is of the year 2011 and another two

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offences are registered in the year 2012 and 2013 and therefore, there is delay in passing the detention order. I am of the opinion that learned advocate for the petitioner has rightly submitted that the decision of Mustakmiya Jabbarmiya Shaikh V. M.M.Mehta, Commissioner of Police (Supra) was not brought to the notice of the learned Single judge as well as before the Division Bench. I have also considered the decisions rendered in case of [i] Ranubhai Bhikhabhai Bharwad [Vekaria] v. State of Gujarat reported in 2000[3] GLR 2696, and [ii] Ashokbhai Jivraj @ Jivabhai Solanki v. Police Commissioner, Surat reported in 2000[1] GLH 393

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7.0 Considering the observation made by the Apex Court as well as above fact, I am of the opinion that the activities of the present petitioner was not of a dangerous to public at large. Hence, the present petition requires consideration and accordingly, is allowed. Order of detention dated 31.03.2014 passed by respondent No. 2 is hereby quashed and set aside. The detenue is ordered to be set at liberty forthwith, if not required in connection with any other case. Rule is made absolute. No order as to cost. Direct service is permitted.

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(A.J.DESAI, J.)

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niru*

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Khengarbhai Bhalabhai Rabari v. State of Gujarat

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Khengarbhai Bhalabhai Rabari v. State of Gujarat

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