ASHOKBHAI JIVRAJ vs COMMISSIONER OF POLICE

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1999 Supreme(Guj) 522

Gujarat High Court
Judgename :C.K.THAKKER, K.M.MEHTA
ASHOKBHAI JIVRAJ - Appellant
Versus
COMMISSIONER OF POLICE - Respondent
L.P.A. 1139 of 1999
Decided On : 10/01/1999

Advocates Appeared: B.C.DAVE, REKHA H.KAPADIA

Headnote:(a) Constitution of India, 1950 - Art. 22(5) - Prevention of Anti-social Activities Act, 1985 - Secs. 3 & 9(2) - Order of preventive detention passed under Sec. 3 of the Act, on the basis of four stray incidents and statements of two witnesses whose names identity and particulars not disclosed - Held, following 1992 (2) GLR 1360 that statements of witnesses not sufficient to pass an order of detention and following 1995 (2) GLR 1268 (SC) that stray incidents would not affect public order to enable authorities to pass an order of detention - Distinction between Public order and Law and order.
       The selective phrases in the statements would not take out the case from maintenance of law and order to that of maintenance of public order and as power of detention could not be used for maintenance of law and order, but only for public order, the order of detention made in such circumstances could not be upheld.
       [Para 25]
       (b) Constitution of India, 1950 - Art. 226 - In the writ for quashing detention order and in the appeal against order of S.B. the State did not file counter affidavit justifying order of detention - Inaction on the part of the State deprecated, need of counter affidavit by the detaining authority and in justifying circumstances by an Officer or authority other than detaining authority emphasised - Government asked to be careful and place all the facts and circumstances on record justifying the action taken.
       The order of detention was passed on December 15,1998 i.e. before ten months. A petition was filed as early as on January 22, 1999 and though the learned Single Judge decided it on August 3,1999, i.e. after more than seven months, no step was taken by the detaining authority to file counter and the matter was decided without affidavit. The matter did not end there. When appeal was filed against that order, the Division Bench issued notice on August 18, 1999 in LPA and it was made returnable on September 6, 1999. Even thereafter time was granted at the request of learned AGP and the matter is finally heard today, i.e. on October 1, 1999. Yet, no counter is filed. We hope and trust that in future, in such matters, when a citizen is deprived of his personal liberty by keeping him behind the bar under preventive detention laws without trial by a competent court, the detaining authority will be much more careful and make all endeavours to place all the facts and circumstances on record justifying the action taken.
       [Para 28]

C. K. THAKKER, J.

( 1 ) THIS appeal is filed against dismissal of SCA No. 597 of 1999 by the learned Single Judge on 3/08/1999. Appellant was the original petitioner. He was detained by the Commissioner of Police, Surat City, Surat under the provisions of the Prevention of Anti Social Activities Act, 1985 (hereinafter referred to as "the Act" ). In the order of detention, it was stated that the detaining authority was satisfied that with a view to preventing the detenu from acting in a manner prejudicial to maintenance of public order, it was necessary to detain him and accordingly, the order was passed. In the grounds of detention of even date, it was stated that four cases have been registered against the detenu in the year 1998.

( 2 ) ON 29/03/1998, at about 18. 00 hours, the detenu had gone to the residence of Smt. Jaina Bibi, wife of Anwarhusein Shakurbhai Shaikh at Surat and teased her daughter Yashminbanu, aged about 16 years. He also misbehaved with her for which a complaint was filed against the detenu for the offences punishable under Sections 452, 352, 323, 504 , 506 (2) ,427 of the Indian Penal Code read with Section 135 of the Bombay Police Act. In connection with the said incident, the detenu was arrested on 30/03/1998 and charge sheet was submitted on 4/05/1998. The said case and is pending.

( 3 ) ON 3/04/1998, at about 21-30 hours, the detenu along with his associates had gone to Smt. Gomaben, widow of Khetabhai Atmaram and assaulted her as well as her son Anil. A complaint for that incident was filed for offences punishable under Sections 326, 504 and 114 IPC read with Section 135 of the Bombay Police Act. The detenu was arrested on 4/04/1998 and charge sheet was submitted on 17/06/1998. The case awaits trial. On 26/05/1998, at 23-00 hours, the detenu and his brother Jayesh assaulted Pravin Dhanjibhai. They also threatened him to kill for which, a complaint was filed for the offences punishable under Sections 504, 506 (2) read with Section 114 of the IPC read with Section 135 of the Bombay Police Act. For that incident, the detenu was arrested on 9/10/1998 and charge sheet was submitted on the same day.

( 4 ) LASTLY, on Octo 22/10/1998,at about 23. 30 hours,the detenu in the company of his brother Jayesh went to Smt. Jainabibi, wife of Anwarbhai Shakurbhai Shaikh and asked her to withdraw the cases filed against the detenu, or else to prepare for dire consequences. A case was registered for that incident under Sections 504, 506 (2), 114 IPC , the detenu was arrested on 7/11/1998 and charge sheet was also submitted on 16/11/1998. That case is yet to go for trial.

( 5 ) OVER and above four cases, two statements have been recorded by the authority on November 20 and 21, 1998 respectively. The first witness stated that on the last Dev Diwali day, at about 2 p. m. the detenu and his two associates had come to the business premises of the witness and demanded Rs. 500. 00. On refusal to pay the amount,the witness was beaten. He was also assaulted with knife. He shouted for help and other persons assembled. 4-5 persons came forward to save the witness but the detenu threatened them that if they would come forward, they would also be killed. All persons went away. Shops and Lorry-Gallas were closed down. It affected even tempo of life and it adversely affected public order.

( 6 ) THE second witness stated that on 8/11/1998, at 5-00 p. m. the detenu, in the company of 7-8 persons, assembled near business premises of the witness. It was objected to by the witness. Detenu got excited and he asked as to who the witness was and why he was asking him not to sit there. The witness was thereafter beaten by the detenu as well as by his associates. When the witness shouted for help, the detenu took out a knife. All persons who had come there went away to save their lives. Shops and Lorry-Gallas were shut down. The witness was having Rs. 500. 00 with him which were taken away by the detenu. He was also threatened that if he would

Click Here to Read the rest of this document

1999 Supreme(Guj) 522

Gujarat High CourtJudgename :C.K.THAKKER, K.M.MEHTAASHOKBHAI JIVRAJ - AppellantVersusCOMMISSIONER OF POLICE - RespondentL.P.A. 1139 of 1999Decided On : 10/01/1999

Gujarat High Court
Judgename :C.K.THAKKER, K.M.MEHTA
ASHOKBHAI JIVRAJ - Appellant
Versus
COMMISSIONER OF POLICE - Respondent
L.P.A. 1139 of 1999
Decided On : 10/01/1999