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IN THE HIGH COURT OF BOMBAY
Mohammed Bilal Hanif
VERSUS
A. N. Roy commissioner of Police
Decided no: DECEMBER 19, 2005
Practice and Procedure - When a particular submission was made fully and extensively and considered by the Court in earlier decisions directly and extensively, then the same cannot be permitted to be made again and again.
Precedent - A decision is an authority for the questions of law determined by it - The Court decides the question of law in the facts of a particular case - It is the test, that, is the fact that gives rise to a decision of or interpretation of law, and, therefore, while considering the judgment as a precedent it has to be seen in what context the same was given or delivered. 2005 AIR SCW 2985 - Relied.
Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders and Dangerous Persons Act (55 of 1981) - Section 3(2) - Use of in-camera statements in detention matters - Object. - The very object of using the in-camera statements in detention matters, is to give protection to the persons who are aggrieved by the illegal activities of the detenus. It is only because the people do not want to come forward and make report in usual manner against a dangerous person or against the person whose activities are causing threat or apprehension to the public at large, that in-camera statements are permitted to be used in the detention matters. If the people do gather courage and make report of every illegal activity of such persons, then, in that eventuality in-camera statements, may not be necessary. But till the threat perception is there, and, which is bound to be there, depending upon the dangerous activities of such persons, like the petitioners, then, in-camera statements will have to be considered. The obligation upon the police to register the offence, if they receive information of cognizable offence, cannot be pressed into service so far as detention matters are concerned.
CONSTITUTION OF INDIA, 1950 - Article 141 Judgment as a precedent. When a particular submission made fully and extensively was considered by Court in earlier decisions directly then same cannot be permitted to be made again and again.
PER D. G. DESHPANDE, J.
( 1 ) THESE two Writ Petitions are challenging the detention order. The arguments were advanced by Mr. Chitnis, Senior Counsel with Mr. Tripathi for the petitioners / detenus, and by Mr. Borulkar, PP, Mr. D. S. Mhaispurkar, APP and Mrs. A. S. Pai, APP for the Respondents - State.
( 2 ) SO far as Writ Petition No. 987 of 2005 is concerned, the detenu is Mohammed Bilal Hanif Shaikh @ Bilal Bachkana. So far as Writ Petition No. 1597 of 2005 is concerned, the detenu is Uday Mahadev sawant.
( 3 ) MR. Chitnis made certain legal submissions only for both the matters, and, therefore, we are, dealing with only those legal submissions. For the purpose of the present judgment, we are setting out facts in Writ Petition No. 987 of 2005. The order of detention in this Writ petition is dated 18. 1. 2005 issued by A. N. Roy, Commissioner of Police, brihan Mumbai. It is under sub section (2) of section 3 of The Maharashtra Prevention of Dangerous activities of Slumlords, Bootleggers, Drug Offenders and Dangerous Persons Act, 1981 (hereinafter referred to as "mpda Act" ). The grounds of detention are of the same date i. e. 18. 1. 2005. In paragraph 4 grounds of detention are mentioned. One c. R. No. 00/04 dated 21. 9. 2004 under Section 387, 34 of IPC registered at J. J. Marg Police station is there, along with two in- camera statements referred to in paragraph 4 (b) (i) of witness No. 1 and in paragraph 4 (b) (ii) of witness no. 2. Detention Authority in paragraph 5 has stated that it was satisfied that the petitioner was a dangerous person as defined in Section 2 (b-1) of the mpda Act, and, therefore the activities were prejudicial to the maintenance of public order, and, therefore, he was required to be detained and detention order was accordingly passed.
( 4 ) IN Writ Petition No. 1597 of 2005 the detention order is dated 8. 4. 2005 ( Annexure "a" ). Grounds of detention are of the even date (Annexure "b" ). Paragraph 5 is the specific paragraph. One c. R. No. 13/05 was registered against the petitioner on 16. 1. 2005 under Section 384, 387, 504 ipc, and, then there are two in-camera statements. Grounds of detention are mentioned in paragraph 5 (b) (i) and 5 (b) (ii), on the basis of which detention orders were passed.
( 5 ) IT was the main contention of Mr. Chitnis that in-camera statements, as such, cannot be used for detention, because according to him, if in-camera statements disclose a cognizable offence, then there is no option to police but to register fir and investigate the offence. If no offence is registered and no investigation is done, then those in-camera statements, cannot be considered for coming to the conclusion that the petitioner "habitually commits any of the offences punishable under Chapter XVI and XVII of I. P. C. " According to mr. Chitnis, the word "punishable" means "punished" and no punishment is possible unless the offence is registered or FIR is registered. Mr. Chitnis made this submission on the basis of the judgment of the supreme Court in case of State of Haryana and others vs. Bhajan Lal and others reported in 1992 SCC 426 (Cri) 426, and further contended that even though this judgment of Bhajan Lal is considered by the division Bench of this Court in the case of Sachin sudhakar Nikam vs. A. N. Roy Commissioner of Police 1684 and ors. reported in 2005 All MR (Cri) 1684, the judgment in Sachin Nikams case is per incurriam, because important paragraphs of the Supreme Court judgment in Bhajan Lals case, viz. paragraph Nos. 28, 29, 32, 34 to 39, 41 to 48, 50 to 60, 75, 83 and 95, were not at all considered. According to him the judgment in Sachin Nikams case is also sub-silentio on this ground. In support of his contention that "punishable" means "punished", he relied upon the judgment of the Supreme Court reported in (1989) 1 SCC 235 Sube Singh and others others vs. State of Haryana and others. Mr. Chitnis, therefore, in this background stated that in-camera statements, cannot,
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