Allowed

Vikrambhai Alias Mukeshbhai Laxmanbhai Bharwad v. State of Gujarat

Gujarat HC20 Mar 2018SCA/3318/2018

Case brief

AI extract

What is this about?

This court quashed the order of preventive detention under the Prevention of Anti-Social Activities Act, observing that mere registration of FIRs does not establish that a person is 'dangerous' or a threat to public order. The offenses could be pleaded under the Indian Penal Code.

What did the court decide?

Order of detention dated 17.2.2018 quashed; detenu set at liberty; bail bond cancelled; surety deposit refunded to petitioner.

Vikrambhai Alias Mukeshbhai Laxmanbhai Bharwad Vs… — Service and Employment | Gujarat HC (2018)

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C/SCA/3318/2018 JUDGMENT

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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R/SPECIAL CIVIL APPLICATION NO. 3318 of 2018

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FOR APPROVAL AND SIGNATURE:

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HONOURABLE MR.JUSTICE S.G. SHAH

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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 or any order made thereunder ?

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VIKRAMBHAI ALIAS MUKESHBHAI LAXMANBHAI BHARWAD

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Versus

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STATE OF GUJARAT

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Appearance:

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MR CHIRAG B PATEL(3679) for the PETITIONER(s) No. 1 MS VRUNDA SHAH, AGP for the RESPONDENT(s) No. 3 RULE SERVED BY DS(65) for the RESPONDENT(s) No. 1,2

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CORAM: HONOURABLE MR.JUSTICE S.G. SHAH Date : 20/03/2018 ORAL JUDGMENT

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1. Heard learned counsel for the parties.

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2.This court has on 7.3.2018 passed following
order in Civil Application No. 1 of 2018:-
1.Heard learned advocate Mr. B.S. Patel
appearing with learned advocate Mr. Chirag
Patel for the applicant – petitioner and

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Page 1 of 9

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C/SCA/3318/2018 JUDGMENT

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learned AGP Ms. Jyoti Bhatt for the
respondent No.3.

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Learned advocate for the applicant has pointed out that one FIR being C.R.No.I-98 of 2017 is registered with Viramgam Rural Police Station on 30.12.2017, wherein complainant is Kiritbhai Jesingbhai Gohil, who has disclosed the fact of his complaint at 2.30 p.m. before police, wherein there is categorical statement that one Pravinbhai Bhurabhai has conveyed him about the incident, which took place at 11.30 a.m. in the sim of Village: Shiyal so also connected incident, which took place at about 1.30 p.m. near Jakhwada bus-station. There is categorical disclosure that both these incidents are connected with each other and with reference to the same dispute between the parties. Pursuant to such disclosure by the complainant, the police has recorded a statement of Pravinbhai Bhurabhai Gohil, who was informed to the complainant on the same day i.e. 30.12.2017, as already disclosed in complaint itself. Moreover, said Pravinbhai was accompanying with the complainant at the relevant time and there is allegation that one of the accused has also beaten said Pravinbhai. Therefore, his presence and statement cannot be now denied by anyone. However, surprisingly, another FIR being C.R.No.II-164 of 2017 is registered with the same police station i.e. Viramgam Rural Police Station at 6.15 p.m. only for the incidence, which is already disclosed in first FIR and alleged to have been committed at 11.15 p.m. in the sim of Village: Shiyal, which is only regarding threat i.e. under Sections 504, 506(2) and 114 of the Indian Penal Code with ‘charges under Sections 183 and 184 of Village Panchayat Act’. However, fact in first FIR is very much clear wherein allegations and charges of threats and under The Village Panchayat Act is already

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C/SCA/3318/2018 JUDGMENT

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disclosed. Therefore, prima facie, at this
stage, even without entering into the
further factual details and merits of the
dispute between the parties or any other
issue with reference to investigation
regarding commission of offence, if any, by
any of the accused, the fact is quite clear
that the investigating agency has failed to
consider the provisions of Section 220 of
Criminal Procedure Code, which specifically
makes it clear that if, in one series of
acts so connected together as to form the
same transaction, more offences than one are
committed by the same person, he may be
charged with, and tried at one trial for,
every such offence and if the acts alleged
constitute an offence falling within two or
more separate definitions of any law in
force for the time being by which offences
are defined or punished, the person accused
of them may be charged with, and tried at
one trial for, each of such offences.

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3.Therefore, bare reading of Section 220
of Cr.P.C. makes it clear that there cannot
be a separate FIR and separate trial for
chain of offences, when allegation/s
regarding threat and alleged offence under
The Village Panchayat Act is already
disclosed by the first complainant, namely,
Kiritbhai Jesingbhai Gohil in FIR being
C.R.No.I-98 of 2017, there is no reason
whatsoever for the investigating agency to
register the second FIR.

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Though above observations are for limited purpose of considering present petition, it becomes clear that for detaining any person when there is requirement of more than one FIR, this is a clear attempt to show that there are two FIRs against applicant – petitioner so that he may not get any prohibitory order against the competent authority against his proposed

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C/SCA/3318/2018 JUDGMENT

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detention. However, in the present case,
before applicant – petitioner approached the
court against such proposed detention, he
has been detained based upon such FIRs.
Therefore, though there is one another FIR
against the applicant – petitioner being
Viramgam Rural Police Station C.R.No.108 of
2016 on 30.12.2016 i.e. exactly before a
year, if we peruse the entire record, more
particularly bunch of papers submitted with
the order of detention, it becomes clear
that applicant – petitioner can never be
termed as ‘Dangerous Person’ when two
separate FIRs are registered against him
with some ulterior motive as described
herein above. It cannot be ignored that the
applicant – petitioner has complained about
beating by the investigating agency before
the Judicial Magistrate First Class.

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5.Therefore, it would be appropriate to
release the applicant – petitioner
immediately from detention as prayed for in
paragraph 23(A) of this Civil Application
since there is no substance in the order of
detention, which is impugned in main
petition, because at present, respondents
have yet not come forward with relevant
information. Thereby, now, Civil Application
is allowed. Thereby, applicant – petitioner
is ordered to be released temporarily from
detention on usual terms and conditions upon
furnishing personal bond of Rs.10,000/-
(Rupees Ten Thousand only) and solvent
surety of the like amount before the
concerned jail authority. Rule is made
absolute. Direct service is permitted.“

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3.This petition is directed against the order
of detention dated 17.2.2018 passed by
respondent No.2, in exercise of powers
conferred under section 3(2) of the Gujarat

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C/SCA/3318/2018 JUDGMENT

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Prevention of Anti Social Activities Act,
1985 [for short ‘the Act’] by detaining the
detenu as a “dangerous person” as defined
under section 2(c) of the Act.

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4.Learned advocate for the detenu submits that
the order of detention impugned in this
petition deserves to be quashed and set aside
and the ground that the registration of two
offences by itself cannot bring the case of
the detenu within the purview of definition
of “dangerous person” under Section 2(c) of
the Act. Learned counsel for the detenu
further submits 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 detenu with
breach of the public order.

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5.Learned counsel for the detenu, placing
reliance on the decisions reported in the
cases of [i]Ranubhai Bhikhabhai Bharwad
[Vekaria] v. State of Gujarat reported in
2000[3] GLR 2696, [ii] Ashokbhai Jivraj @
Jivabhai Solanki v. Police Commissioner,

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C/SCA/3318/2018 JUDGMENT

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Surat reported in 2000[1] GLH 393; and [iii]
Mustakmiya Jabbarmiya Shaikh v. M.M. Mehta,
reported in [1995] 3 SCC 237, submitted that
the case on hand is squarely covered by the
ratio laid down in the aforesaid decisions.
Learned counsel for the detenu further
submits that it is not possible to hold in
the facts of the present case that the
activities of the detenu with reference to
the criminal case/s had affected even tempo
of the society, posing a threat to the very
existence of the normal and routine life of
the people at large or that on the basis of
the criminal case/s, the detenu had put the
entire social apparatus in disorder, making
it difficult for whole system to exist as a
system governed by the rule of law by
disturbing the public order.

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6.Learned AGP for the respondent – State
supported the detention order passed by the
authority and submitted that the detenu is a
dangerous person and sufficient material and
evidence was found during the course of
investigation, which was also supplied to the
detenu, indicating that the detenu is in
habit of indulging into activities as defined
under Section 2(c) of the Act and considering
the facts of the case, the detaining
authority has rightly passed the order of

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C/SCA/3318/2018 JUDGMENT

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detention and the detention order deserves to
be upheld by this Court.

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7.Having heard the learned counsel for the
parties and considering the facts and
circumstances of the case, it appears that
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 and other relevant penal laws are
sufficient enough to take care of the
situation and that the allegations as have
been levelled against the detenu cannot be
said to be germane for the purpose of
bringing the detenu 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

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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 detenu 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

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C/SCA/3318/2018 JUDGMENT

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detenu is acting in such a manner which is
dangerous to the public order. In view of the
ratio laid down by the Hon’ble Supreme Court
in the cases of [i] Ranubhai Bhikhabhai
Bharwad (supra), [ii] Ashokbhai Jivraj @
Jivabhai Solanki (supra) and [iii] Mustakmiya
Jabbarmiya Shaikh (supra), the Court is of
the opinion that the activities of the detenu
cannot be said to be dangerous to the
maintenance of public order and at the most
fall under the maintenance of “law and
order”.

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8.In view of the above, I am inclined to allow
thispetitionbecausesimplicitor
registration of FIR 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.

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9. If we peruse the citations, it becomes clear that even the Hon’ble Supreme Court has considered that detention is not permitted even in the case of robbery and theft. The present is the case of sections 147, 148, 149, 143, 307, 323, 341, 427, 120B, 504, 506(2), 325 of the Indian Penal Code,

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C/SCA/3318/2018 JUDGMENT

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Sections 183 and 184 of Village Panchayat Act
and Section 135 of the Gujarat Police Act.
Therefore, the Court has no option but to
allow the petition.

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10. The petitioner has argued on merits on FIRs, referring certain judgments. However, discussion of such facts, prima facie at this stage, is not warranted since it may otherwise prejudice the trial.

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11. However, since all such order/s are quashed on technical ground, the same shall not come in the way of the detaining authority to pass an appropriate order in future.

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12. In the result, the petition is allowed. The order of detention dated 17.2.2018 passed by the respondent No.2 is quashed and set aside. The detenu is ordered to be set at liberty forthwith if not required in connection with any other case. Rule is made absolute accordingly.

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13. Since petitioner was released temporarily by above quoted order dated 7.3.2018, the bail bond furnished by the petitioner pursuant to such order shall stand cancelled. Learned advocate for the petitioner has deposited Rs.10,000/- before jail authority towards surety as per above order. Jail authority shall immediately refund such amount to the petitioner, without fail.

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14. Direct service permitted.

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(S.G. SHAH, J.)

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binoy

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Vikrambhai Alias Mukeshbhai Laxmanbhai Bharwad v. State of Gujarat

Case brief

What is this about?

What did the court decide?

Vikrambhai Alias Mukeshbhai Laxmanbhai Bharwad v. State of Gujarat

Case brief

What is this about?

What did the court decide?

What the court decided

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