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2025 Supreme(Online)(Bom) 6392
BOMBAY HIGH COURT
VINAY JOSHI, MRS.VRUSHALI V. JOSHI, JJ
Bhushan S/o Chandrakant Pohokar – Appellant
Versus
The State of Maharashtra – Respondent
Criminal Writ Petition No.153/2024
For the Appellants/Petitioners: Mr. Sumit Gandhe
For the Respondents: Mr. A.R. Chutke
Preventive detention orders must consider relevant bail decisions and cannot rely on outdated or unrelated incidents to justify detention.
Headnote:(A) Indian Penal Code - Sections 363, 366, 376(2)(n), 376(3), 504 and 506 - Protection of Children from Sexual Offences Act - Sections 4 and 6 - Detention order - The court set aside the detention order on grounds of lack of subjective satisfaction and failure to consider important factors like bail orders and delay in passing the order. (Paras 10, 12, 15)
(B) Preventive detention - Criteria for passing detention order - Authority must consider recent and relevant information and confirm orders based on the likelihood of disturbing public order. (Paras 3, 6, 10)
Facts of the case:
The petitioner challenged his detention order which was based on pending criminal cases, asserting no current threat to public order.
Findings of Court:
The court found that prior bail decisions and case specifics were not adequately considered, leading to a lack of justification for the detention.
Issues: Whether the detention was justified considering previous bail decisions and the timing of the detention order.
Ratio Decidendi: The court ruled that preventive detention should not rely on stale incidents and must demonstrate a causal link to ongoing threats to public order.
Result: Petition allowed.
| Table of Content |
|---|
| 1. challenge to detention based on bail status. (Para 3 , 4 , 5) |
| 2. criteria for detention orders should include consideration of bail. (Para 10 , 12) |
| 3. public order must demonstrate direct threats. (Para 11) |
ORAL JUDGMENT (Per Mrs. Vrushali V. Joshi, J.)
Heard Mr. Sumit B. Gandhe, learned Advocate for the petitioner and Mr. A.R. Chutke, learned A.P.P. for respondent Nos.1 to 3. Rule.
2. The petitioner challenges the order of detention dated 14.10.2023 passed by respondent No.2 which is confirmed by respondent No.1 vide order dated 4.12.2023.
3. Learned Advocate for the petitioner has taken us through the impugned orders and the material which was before the Authorities at the time of passing the impugned orders. He submits that two offences are considered for passing the detention orders. The first offence is Crime No.554/2023 punishable under Sections 363, 366, 376(2)(n), 376(3), 504 and 506 of Indian Penal Code and Sections 4 and 6 of Protection of Children from Sexual Offences Act . It was registered on 20.4.2023. Another offence is registered against him as he has violated the externment order and, therefore, the offence i.e. Crime No.575/2023 is registered under Sections 142 and 135 of the Maharashtra Police Act along with Sections 4/25 of Arms Act . It was registered on 25.4.2023. Both the cases are pending before the concerned Court. In both the offences the petitioner is on bail.
4. The impugned order is passed on 14.10.2023 and confirmed on 4.12.2023. Learned Advocate for the petitioner has stated that there was no live link between the last crime registered against the petitioner and the order of detention. If we consider the F.I.R. in the first offence it would show that the incident had taken place on 20.4.2023. Though the petitioner was on bail the contents of the bail orders are not considered. The serious offence is registered against the petitioner for the offence punishable under POCSO Act and Sections 376(2) and 376 (3) of I.P.C.
5. Learned Advocate for the petitioner has contended that the petitioner was released on bail as the victim herself has filed the say stating that the offence has been registered on the say of owner of petrol pump and no incident occurred as alleged in the F.I.R. and, therefore, he has been released on bail. Another offence is registered as the petitioner has jumped the externment order. He was found in the area from which he was externed and, therefore, the offence is registered. Considering the nature of both the offences it does not create the situation disturbing the public order. The first offence is in individual capacity and no public order is affected in said offence.
6. The petitioner was released on bail under the orders of the Court and, therefore, it will have to be held that there was no subjective satisfaction of the authority to pass the detention order. As regards in-camera statements it appears that the verifying authority is different and the detaining authority has only put remark as ‘seen’. The record does not show that the detaining authority has personally verified the contents of in-camera statements by calling those witnesses. The petitioner has further relied on the decision in case of Khaja Bilal Ahmed V/ s. State of Telangana reported in (2020) (13) SCC 632 wherein it is observed that “......In the absence of a clear indication of a causal connection, a mere reference to the pending criminal cases cannot account for the requirements of Section 3. It is not open to the detaining authority to simply refer to stale incidents and hold them as the basis of an order of detention. Such stale material will have no bearing on the probability of the detenu engaging in prejudicial activities in the future.”
7. Further reliance has been placed on Alakshit V/s. The State of Maharashtra and others reported in 2023 ALL MR (Cri) 1919 in support of his argument that the contents of the bail orders are necessary to be considered while passing the detention order. He
