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2004 Supreme(Bom) 799
IN THE HIGH COURT OF BOMBAY
Desai Ranjana (Smt.) Oka Abhay S., JJ.
Sachin Sudhakar Nikam .... Petitioner.
Versus
A.N. Roy, Commissioner of Police others.... Respondents.
Criminal Writ Petition No. 1629 of 2004, decided on 6-12-2004.
Advocates appeared :
S.R. Chitnis, Sr.C. with U.N. Tripathi, for petitioner.
D.S. Mhaispurkar, A.P.P., for respondents.
Headnote:Criminal Procedure Code, 1973 - Sections 154 and 157 - Detention - Based on one FIR and two in-camera statements - Contention in-camera statements cannot be termed as offences if it is an offence a report about had to be recorded and investigated by police. It is not registered investigated it cannot be taken as an offence under Section 2(b-1) of M.P.D.A. Act. - Held, it is obligatory that an offence once in notice of Police Officer, it has to be registered and investigated, if officer fails to register and investigate, it does not mean it is not an offence. A distinction to be made between commission of offence and registration of FIR offence forms part of substantive law and registration/investigations part of procedural law. 1992 SCC (Cri) 426 - Referred to.
Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders and Dangerous Persons Act, 1981 - Sections 3(2) and 2(b-1) - Detention - Offences - Ingredients of - Detention based on one FIR and two in-camera statements - Contention, in-camera statements cannot be termed as offences because if it taken as an offence a report about that had to be recorded and investigated by police. If it is not registered or investigated it cannot mean to be an offence for purposes of Section 2(b-1) of Act. - Held, though it is obligatory that an offence once comes to the notice of Police Officer, it has to be registered and investigated, but if officer is not able register and investigate it, it does not mean it is not an offence. A distinction has to be made between commission of offence and registration of FIR because offence forms part of substantive law and registration/investigations part of procedural law. 1992 SCC (Cri) 426 - Referred to.
Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders and Dangerous Persons Act, 1981 - Sections 3(2) and 2(b-1) - Subjective satisfaction - Detention, decision of whether property arrived at - Contention, case is based on one FIR and two in camera statements, no FIR is recorded or investigation made accordingly it is not a case of dangerous person and subjective satisfaction should have at least two convictions to sustain action. - Held, not acceptable. It cannot be said that habitual offender can be inferred only after two convictions are recorded. Convictions can take number of years and offenders can continue to commit crimes with impunity and would defeat object of Act. Precondition for detention is that authority must record its subjective satisfaction that detenu has been habitually committing or attempting to commit offences in Chapters XVI and XVII of IPC or Chapter V of Arms Act. 1992 Cri LJ 769 (SC); 1982 (2) Bom CR (SC) 218 and Full Bench decision in 2001 (Supp) Bom CR (FB) 526 - Referred to.
Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders and Dangerous Persons Act, 1981 - Section 3(2) and 2(b-1) - Detention - Whether justified - Order passed against detenu against him one FIR and two in-camera statements were already recorded - Affidavit in reply shows petitioner and associates committed several offences, but witnesses were not coming forward to make complaint due to reign of terror created by detenu. - Only when witnesses were given to believe that their identity will not be disclosed, if they gave the statements. Material on record shows petitioner allegedly committed the offences in the localities it cannot be said that allegations are vague or that detenu has been deprived of his right to make effective representations.
Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders and Dangerous Persons Act, 1981 - Sections 3(2) and 2(b-1) - Effect on public order - Whether affected by activities of detenu. - Held, in-camera statements indicate people of the locality were scared and ran here and there and disturbed the tempo of life. It amounted to disturbance of public order.
OKA ABHAY S., J.: - By this petition under Article 226 of the Constitution of India, the petitioner-detenu has taken exception to the order of detention dated 12th July, 2004 passed by the respondent No. 1 under section 3(2) of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders, and Dangerous Persons Act, 1981 (hereinafter referred to as "the said Act of 1981").
2. The impugned order of detention is based on an offence registered vide C.R. No. 155 of 2004 with Nehru Nagar Police Station, Mumbai. In the said C.R. No. 155 of 2004, the allegation is about commission of an offence punishable under sections 364(A), 386, 323, 34 of the Indian Penal Code, 1860 (hereinafter referred to as "I.P.C.") read with section 37(1)(a) of the Bombay Police Act, 1951. The order is also based on two in-camera statements of the witnesses A and B.
3. Shri S.R. Chitnis, the learned Senior Counsel appearing on behalf of the petitioner has raised an interesting question of law based on the judgment of the Apex Court in the case of (State of Haryana and others v. Bhajan Lal and others)1, reported in 1992 S.C.C.(Cri.) 426 (hereinafter referred to as "Bhajan Lal's case"). He submitted that under section 2(b-1) of the said Act of 1981, a dangerous person is a habitual offender who has repeatedly committed either by himself or as a member or a leader of a gang or has habitually attempted to commit or habitually abetted commission of any of the offences punishable under Chapter XVI or XVII of the I.P.C. or the offences punishable under Chapter V of the Arms Act, 1959. He submitted that the impugned order of detention is based on two in-camera statements on the basis of which first information report as required by section 154 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Code") has not been registered and even a competent Court has not taken cognizance of any of the offences on the basis of the said two in-camera statements. Placing reliance on the law laid down by the Apex Court in Bhajan Lal's case, he submitted that if any information disclosing commission of a cognizable offence is laid before an officer in-charge of a Police Station satisfying the requirements of section 154(1) of the Code, the said Police Officer has no option except to enter the substance thereof in the prescribed form, that is to say, to register a case on the basis of such information. He submitted that the condition precedent to the commencement of investigation under section 157(1) of the Code is the existence of the reason to suspect the commission of a cognizable offence which has to be, prima facie, disclosed by the allegations made in the first information laid before the Police Officer under section 154(1) of the Code. He submitted that if the allegations made in the two in-camera statements relied upon by the Detaining Authority disclosed commission of a cognizable offence, it was the duty of the Police Officer concerned to register a case on the basis of such information. He submitted that the registration of a case as per the requirement of section 154(1) of the said Code is sine qua non for the commencement of investigation under section 157 of the Code and as a result of the failure of the concerned officer to register offences on the basis of the in-camera statements, the acts complained of in the said two in-camera statements cannot be termed as offences. He submitted that as the act's complained of in the two in-camera statements cannot be treated as offences, the impugned order of detention is based only on one solitary F.I.R. He, therefore, placing reliance on the various decisions of the Apex Court urged that the petitioner cannot be termed as a dangerous person and therefore, the order of detention passed by the respondent No. 1 is illegal. He submitted that the requirement of section 2(b-1) of the said Act of 1981, is that a person is a dangerous person provided he is habitually committi
