Bhoite Vs. State of Maharashtra & Ors.
[Criminal Appeal No.
24 of 2012 arising out of SLP (CRL.) No. 6118 of 2011]
J U D G M E N T
R.M. Lodha, J.
have heard Dr. A.M. Singhvi, learned senior counsel for the appellant, Mr. Shankar
Chillarge, learned counsel for the State of Maharashtra and Mr. Suhas Kadam, learned
counsel for the respondent no. 4.
January 10, 2011, the District Magistrate, Jalgaon in exercise of the powers
conferred upon him by sub-section (1) of Section 3 of the Maharashtra Prevention
of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders and Dangerous
Persons Act, 1981 (for short 'the 1981 Act') and the Government Order Home Department
(Special) Mantralaya, Mumbai No. DDS 1210/Cr-207/SPL-3(B) dated 31.12.2010
directed Tanaji Keshavrao Bhoite resident of Kishavkunj, Bhoite Nagar, Jalgaon
to be detained under the provisions of the 1981 Act. This order was followed by
another order of the same date directing that Tanaji Keshavrao Bhoite shall be
detained in Central Prison, Nagpur.
legality of the detention order dated January 10, 2011 was challenged by the
present appellant, who is son of the detenu, in the Bombay High Court at Aurangabad
Bench, Aurangabad. The Division Bench of that Court dismissed the Criminal Writ
Petition filed by the appellant on May 13, 2011. It is from this order that the
present appeal, by special leave, has arisen.
A.M. Singhvi, learned senior counsel for the appellant urged diverse grounds in
challenging the order of the High Court. We do not want to deal with all the
grounds urged by Dr. A.M. Singhvi as in our view, appeal deserves to be allowed
on the short ground that we indicate hereinafter.
pursuance of Section 8 of 1981 Act, the detenu was supplied with the grounds
for detention setting out therein particulars of offences and the action taken against
him. The offences registered against the detenu way back in the year 1980 upto the
last offence registered on August 14, 2010 have been noted by the detaining
authority in reaching at the satisfaction that the detenu's activities were
prejudicial to the maintenance of public order and he was dangerous person within
the meaning of Section 2 (b-1) of the 1981 Act. The last criminal case referred
to in the grounds is against the detenu for the offences under Sections 143, 147,
323, 504, 506, 353, 427 of the Indian Penal Code read with Section 7 of Criminal
Law Amendment Act read with Section 37 (1)(3) for breach of Section 135 of the Bombay
Police Act, 1951, registered at Dharangaon Police Station on August 14, 2010.
admitted position is that detenu was arrested in connection with the above
crime on August 15, 2010 and he was released on bail by the Judicial Magistrate,
1st Class, Dharangaon on that very day. One of the conditions imposed in the Order
of Bail was that the detenu would appear at Dharangaon Police Station on every
Monday between 10.00 a.m. to 12 O'Clock till the charge-sheet was filed. Later
on, the detenu made an application before the Judicial Magistrate, 1st Class,
Dharangaon seeking relaxation of the above condition. That application was
allowed and the above condition was relaxed by the concerned Judicial
Magistrate on January 4, 2011.
would be, thus, seen that the order releasing the detenu on bail in the crime registered
on August 14, 2010 and the order relaxing the bail condition were passed by the
Judicial Magistrate, 1st Class, Dharangaon much before the issuance of detention
order dated January 10, 2011. However, the detention order or the grounds
supplied to the detenu do not show that the detaining authority was aware of
the bail order granted in favour of the dentenu on August 15, 2010.
a case where detenu is released on bail and is enjoying his freedom under the order
of the court at the time of passing the order of detention, then such order of
bail, in our opinion, must be placed before the detaining authority to enable
him to reach at the proper satisfaction.
the present case, since the order of bail dated August 15, 2010 was neither placed
before the detaining authority at the time of passing the order of detention
nor the detaining authority was aware of the order of bail, in our view, the detention
order is rendered invalid. We cannot attempt to assess in what manner and to
what extent consideration of the order granting bail to the detenu would have effected
the satisfaction of the detaining authority but suffice it to say that
non-placing and non-consideration of the material as vital as the bail order
has vitiated the subjective decision of the detaining authority.
three Judge Bench of this Court in the case of Rekha vs. State of Tamil Nadu Through
Secretary to Government and Another, reported in (2011) 5 SCC 244, decided
recently held as under: "In this connection,it may be noted that there is nothing
on the record to indicate whether the detaining authority was aware of the fact
that the bail application of the accused was pending on the date when the detention
order was passed on 08.04.2010. On the other hand, in para 4 of the grounds of detention
it is mentioned that "Thiru. Ramakrishnan is in remand in crime No. 132/2010
and he has not moved any bail application so far". Thus, the detaining authority
was not even aware whether a bail application of the accused was pending when he
passed the detention order, rather the detaining authority passed the detention
order under the impression that no bail application of the accused was pending but
in similar cases bail had been granted by the courts. We have already stated above
that no details of the alleged similar cases has been given. Hence, the detention
order in question cannot be sustained."
the case of Rekha (supra), the detention order was held to be bad as the
detaining authority was not aware of the fact that the bail application of the detenu
was pending on the date when the detention order was passed. In the present case,
the detenu was already released on bail but the detaining authority was not
aware of the fact of grant of bail to the detenu.
reference to the decision of the majority view in the case of Vijay Narain Singh
vs. State of Bihar and Others, reported in (1984) 3 SCC 14, may not be out of
the context. In paragraph 32 of the Judgment, Venkataramiah, J. (as His Lordship
then was) speaking for the majority observed as follows: "When a person is
enlarged on bail by a competent criminal court, great caution should be exercised
in scrutinising the validity of an order of preventive detention which is based
on the very same charge which is to be tried by the criminal court."
other offences referred to in the order of detention suffer from remoteness and
want of proximity to the order of detention. None of the criminal cases, except
the offence registered on August 14, 2010, referred to in the grounds for
detention, can be said to be proximate to the order of detention.
view of the above, we are satisfied that the order of detention dated January 10,
2011 cannot be sustained and has to be set aside. We order accordingly.
is allowed and the order dated May 13, 2011 passed by the Bombay High Court, Aurangabad
Bench, Aurangabad, is set aside. The detenu - Tanaji Keshavrao Bhoite - is ordered
to be released forthwith, if not required in any other case.
light of the above order, no order is required to be passed on the Application for
Impleadment and the same stands disposed of accordingly.
ITEM NO.201 COURT
NO.10 SECTION IIA S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS Petition(s)
for Special Leave to Appeal (Crl) No(s).6118/2011
(From the judgment and
order dated 13/05/2011 in CRLWP No.123/2011 of The HIGH COURT OF BOMBAY AT
Bhoite Vs. State of Maharashtra & Ors.
Respondent(s) (With appln(s)
for permission to file additional documents and impleadment and permission to file
rejoinder affidavit and office report)(FOR FINAL DISPOSAL)Date: 04/01/2012 This
Petition was called on for hearing today.
CORAM : HON'BLE MR.
JUSTICE R.M. LODHA HON'BLE
MR. JUSTICE H.L.
GOKHALE for Petitioner(s)
Dr. A.M. Singhvi,Sr. Adv.
Mr. Jayant Bhushan, Sr.Adv.
Mr. Shivaji M.
Mr. Anish R. Shah, Adv.
Mr. Jayant Bhatt, Adv
Mr. Nishant R
Mr. Asha Gopalan
Mr. Debasis Misra , Adv
for Res. No. 4
Mr. Suhas Kadam, Adv.
Mr. Debasis Misra, Adv.
UPON hearing counsel
the Court made the following
O R D E R
Judgment has been
dictated. Release of full Judgment may take time. It is, therefore, directed
that following operative Order may be issued: "The appeal is allowed and the
Order dated May 13, 2011 passed by the Bombay High Court, Aurangabad Bench, Aurangabad
is set aside. The Detenu - Tanaji Keshavrao Bhoite - is ordered to be released forthwith,
if not required in any other case."