IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL CRIMINAL CRIMINAL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION CRIMINAL CRIMINAL CRIMINAL WRIT PETITION NO.1629 OF 2004 WRIT PETITION NO.1629 OF 2004 WRIT PETITION NO.1629 OF 2004 Sachin Sudhakar Nikam, age 32 years, residing at Nikam Chawl, Near Amrapali Flour Mill, Rambai Colony, P.L.Lokhande Marg, Chembur, Mumbai 400 089 (At present detained at Nasik Road Central Prison, Nasik.) .... Petitioner. Versus. 1. A.N.Roy, Commissioner of Police, Brihan Mumbai. 2. The State of Maharashtra. 3. The Superintendent, Nashik Road Central Prison, Nashik. .... Respondents. Shri S.R.Chitnis, Senior Counsel with Shri U.N.Tripathi for the Petitioner. Shri D.S.Mhaispurkar, A.P.P. for the Respondents. CORAM CORAM CORAM ; SMT.RANJANA DESAI, & ; SMT.RANJANA DESAI, & ; SMT.RANJANA DESAI, & ABHAY ABHAY ABHAY S. OKA, JJ. S. OKA, JJ. S. OKA, JJ. Date Date Date on which hearing on which hearing on which hearing completed. completed. completed. : 2nd November, 2004. 2nd November, 2004. 2nd November, 2004. Date Date Date on which judgment on which judgment on which judgment isisis pronounced. pronounced. pronounced. : 6th December, 2004. 6th December, 2004. 6th December, 2004. JUDGMENT JUDGMENT JUDGMENT (Per Abhay S.Oka, J.). (Per Abhay S.Oka, J.). (Per Abhay S.Oka, J.). 1. 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 : 2 : 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 "IPC") 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 apeparing 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 Vs. Bhajan Lal and others, reported in 1992 Supreme Court Cases (Cri.) page 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 : 3 : commission of any of the offences punishable under Chapter XVI or XVII of the IPC 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, primafacie, 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 : 4 : 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 acts 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 committing offences which are described in the said section. He, therefore, submitted that unless it is shown that the Petitioner has committed more than one offence covered by section 2(b-1), by no stretch of imagination, it can be said that the Petitioner is a : 5 : habitual offender and therefore, the Petitioner cannot be termed as a dangerous person. 4. The learned Senior Counsel further submitted that both the in-camera statements are very vague. He urged that in the in-camera statements description of the place of occurrence of the incidents is not narrated. He submitted that even in the order of detention, the area/locality of the place of the incidents described in the in-camera statements have not been mentioned. He submitted that the failure to mention this vital information vitiates the order of detention. he submitted that as information regarding the area/locality was not furnished to the Petitioner, he could not make an effective representation against the order of detention. He submitted that thus the Petitioner has been deprived of his constitutional protection under Article 22(5) of the Constitution of India. Shri Chitnis further submitted that a specific request was made by the detenu’s Advocate for furnishing information about the area/locality of the incidents described in the in-camera statements and as the said information was not supplied to the Petitioner, he could not make effective representation and, therefore, the fundamental rights of the Petitioner guaranteed by Article 22(5) of the Constitution have been violated. : 6 : 5. The learned Senior Counsel further submitted that if the incidents which are narrated in the C.R. registered against the Petitioner as well as in the in-camera statements are examined, it cannot be said that the public order is disturbed as a reason of the said incidents and at the highest it will amount to disturbance of law and order. 6. The learned Senior Counsel has extensively taken us through the decision of the Apex Court in Bhajan Lal’s case. He has relied upon other decisions of the Apex Court reported in 1984 Cr.L.J. page 177 (State of Punjab and others v/s. Jagdev Singh Talwandi) (hereinafter referred to as "Jagdev Singh Talwandi’s case"); 1974 Supreme Court Cases (Cri.) page 18 (Prabhu Dayal Deorah V/s. The District Magistrate, Kamrup & others) (hereinafter referred to as "Prabhu Dayal’s case"); 1995 Supreme Court Cases (Cri.) page 454 (Mustakmiya Jabbarmiya Shaikh v/s. M.M.Mehta, Commissioner of Police and others) (hereinafter referred to as (Mustakmiya’s case"); 1999 Supreme Court Cases (Cri.) page 1014 (Amanulla Khan Kudeatalla Khan Pathan v/s. State of Gujrat and others) (hereinafter referred to as "Amanulla khan’s case"); and (1989) 3 SCC page 321 (Rashidmiya @ Chhava Ahmedmiya Shaik v/s. Police : 7 : Commissioner, Ahemdabad and another) (hereinafter referred to as "Rashidmiya’s case"). 7. It must be noted here that it is not seriously disputed by the learned Counsel appearing for the Petitioner that the two in-camera statements disclosed commission of offences punishable under the relevant chapters of the IPC mentioned in section 2(b-1) of the said Act of 1981. The learned Senior Counsel has strongly relied upon the statement made by the detaining authority in paragraph No.3 of his affidavit-in-reply dated 28th October 2004. The said statement is as under: "It is stated that the incamera statements of witnesses though an offence, however, it is not necessary that the investigation should be carried out pertaining to the incamera statements and further registering the said case." Relying upon the said statement, the learned senior Counsel submitted that the detaining authority has admitted that it is not necessary to register the case on the basis of the in-camera statements and to investigate the offences. He submitted that thus it is : 8 : an admitted position that the Police do not intend to register a case under section 154(1) of the said Code on the basis of the in-camera statements. As stated earlier, the contention of the learned Counsel appearing for the Petitioner is that the Police Officer concerned was under an obligation to register offences as required by section 154(1) of the Code on the basis of in-camera statements and as a result of his failure to do so, the acts complained of in the in-camera statements cannot be termed as offences. 8. Shri Mhaispurkar, the learned A.P.P. appearing for the Respondents has supported the impugned order of detention. He submitted that due to the terror unleashed by the Petitioner, no one is ready to come forward and lodge complaints against the Petitioner with the Police and therefore, in-camera statements have been recorded. He submitted that in-camera statements of witnesses A and B have been considered by the detaining authority as a material and subjective satisfaction has been recorded by the detaining authority after considering the in-camera statements and the F.I.R. that the Petitioner has been habitually committing offences, which are specified in section 2(b-1) of the said Act of 1981. He submitted that the failure to register F.I.R. on the basis of in-camera statements is : 9 : irrelevant and the requirement of section 2(b-1) of the said Act of 1981 is satisfied if the in-camera statements disclosed commission of certain offences. He relied upon the affidavits-in-reply of the detaining authority. He has made reference to the decisions of the Apex Court reported in Judgment Today 2000 (8) SC 209 (Smt.Phulwari Pathak v/s. Shri R.H.Mendonca & others) (hereinafter referred to as "Phulwari Pathak’s case"); and (1973) 1 SCC page 372 (Pandharinath Shridhar Rangnekar v/s. Dy.Commissioner of Police, the State of Maharashtra) (hereinafter referred to as "Pandharinath’s case"). He has also placed reliance on another decision of the Apex Court reported in AIR 1981 S.C. page 2005 (State of Gujarat v/s. Adam Kasam Bhaya) (hereinafter referred to as "Adam’s case"). He has also placed reliance on the decision of the Division bench of this Court reported in 2001 Cri.L.J. page 2759 (Smt.Zubunnisa Abdul Majid v/s. M.N.Singh & others) (hereinafter referred to as "Zebunnisa’s case"); 1995 Cr.L.J. page 231 (Smt.Kailas Laximan Joshi v/s.B.Akanshi C.P.Thane) (hereinafter referred to as "Kailas Joshi’s case"); 1993 Cr.L.J. page 3259 (Anthony @ Sandy John Nigro v/s.Rammurthi, C.P.Mumbai) (hereinafter referred to as "Anthony’s case"). He lastly relied upon the judgment of the Full Bench of this Court reported in 2001(3) Mah.L.J. page 580 : 10 : (Subhangi Tukaram Sawant v/s.R.H.Mendonca & others) (hereinafter referred to as "Subhangi’s case"). 9. We have carefully considered the submissions made by the learned Counsel appearing for the parties. Before adverting to the said submissions, it is necessary to refer to the order of detention. The detaining authority has relied upon C.R.No.155 of 2004 registered on 13th May 2004 by Nehru Nagar Police Station, Mumbai. The said C.R. has been registered on the basis of a complaint by one Shri Sunil Kisanlal Shevaliya. The allegation of the complainant is that he is a resident of Thakkar Bapa Colony, Vasant Nagar, Chembur, Mumbai. He is residing at the said place alongwith his mother Smt.Rukminidevi, and his brother Motilal. According to the complainant, he along with his brother are carrying on business of building construction as well as repairs of building. The complainant had undertaken the work of repairs in the house of one Trilokchand at Yeshwant Nagar at Chembur. On 12th May 2004 he had deputed his supervisor and two workers to the house of Shri Trilokchand for removing the cement sheets. In the evening the supervisor of the Complainant Shri Ravi Rathod informed the complainant that the Petitioner’s associate Shri Santosh Mane had been to the site and had abused and threatened the said Ravi Rathod and the : 11 : workers. The Petitioner’s associate Santosh Mane informed Shri Ravi Rathod that the complainant should contact him urgently. On 13th May 2004 at about 8.00 a.m. the Petitioner’s supervisor Shri Ravi Rathod and his two workers started repair work in the house. At about 12.45 p.m. the Complainant went to the site. At about 1.00 p.m. the Petitioner and his associates came there. The Petitioner’s associate Shri Santosh Mane abused Shri Ravi Rathod and with help of the Petitioner and his other two associates took Shri Ravi Rathod to the left side of "Highway Chinese Restaurant". Therefore, the complainant followed the Petitioner and his associates when he found that the Petitioner and his associates were manhandling the said Shri Ravi Rathod. The Complainant got scared and returned to the work site. After sometime Shri Ravi Rathod also returned to the work site. The Petitioner’s associate Santosh Mane followed Shri Ravi Rathod and ordered Shri Ravi Rathod to bring Complainant’s brother Motilal . The Petitioner’s associate Santosh Mane asked the Complainant about his identity. The Complainant disclosed that his brother Motilal had undertaken the repair work and that he was supervising the repair work. After hearing this, the Petitioner’s associate Santosh Mane asked the Complainant to accompany him. The Complainant refused to do so. Hence the Petitioner’s : 12 : said associate gave a fist blow on the mouth of the Complainant and caught hold of him and started dragging him towards left side of "Highway Chinese Restaurant". At that time the Petitioner’s associate Shri Santosh Mane was holding a weapon looking like a knife. The Complainant shouted for help. At that time the Petitioner’s associate Santosh Mane threatened the members of public and warned them not to help the Petitioner. As a result of the scare the Complainant’s workers run away. People gathered got scared and the shopkeepers pulled down their shutters. The Petitioner and his associates abused the complainant. The said Santosh Mane told the Petitioner and his associates to assault the Complainant as he was not paying hafta The Petitioner and his associates started giving fist blows to the Complainant. At that time the Complainant’s brother Motilal rushed there. When the Petitioner and his associates saw Motilal, they asked Motilal why the repair work was started without their permission. The Petitioner and his associate demanded a sum of Rs.25,000/- and threatened that if the said amount was not paid, limbs of the Complainant would be chopped. When Motilal declined to pay the amount, the Petitioner and his associates got enraged and assaulted Motilal by fist blows. Hence Motilal handed over a cash of Rs.5000/- to the Petitioner’s associate Shri Santosh : 13 : Mane. At that time one Shri Sundar Chopra who was present tried to intervene and therefore, the Petitioner and his associates threatened him to leave the place. The Petitioner’s associate Shri Santosh Mane threatened the said Motilal in presence of Sunder Chopra to pay the remaining amount of Rs.20,000/-by next day failing which Motilal will be assaulted. The detaining authority noted that in connection with the said C.R. the Petitioner was arrested and remanded to the judicial custody. The detaining authority also recorded subjective satisfaction that the Petitioner may be granted bail in accordance with the normal law of land in due course and that considering the tendencies and inclinations of the Petitioner, in the event of the Petitioner becoming a free person and remaining at large, he was likely to revert to similar prejudicial activities. 10. The detaining authority has relied upon in-camera statement of witness A which is recorded on 9th June 2004. Witness A has described the Petitioner and his Associate Santosh Mane as goondas who are moving with weapons like chopper, knife etc. Witness A stated that they have created a reign of terror and by virtue of the terror created they are extorting hafta from building contractors, shopkeepers, small scale industrialists in : 14 : the localities of Yeshwant Nagar, Shell Colony, Jai Ambe Nagar and adjoining areas. The witness stated that in the last week of April 2004 the Petitioner and his associates came at his place of business. Shri Santosh Mane demanded a sum of Rs.10,000/- from the witness. When the witness stated that he was not possessing the amount, the said Santosh Mane took out a knife from the pocket of his trouser and placed it on the stomach of the witness. The Petitioner caught hold of his hand. His associates threatened the workers of the witness by knife. The Petitioner took out a sum of Rs.5000/- from the pocket of the associate of the witness and gave a kick to the witness as a result of which he fell down. He stated that after seeing the incident, the persons passing through the lane ran helter skelter and the residents of the locality closed the doors of their houses. He stated that while leaving the said Santosh Mane threatened the Petitioner that if he reported the matter to the Police, he and his family members will be killed. The witness stated that due to the scare created by the said Santosh Mane, he did not report the matter to the police. 11. Witness B in his in-camera statement made similar allegations against the Petitioner and his associates regarding the terror created by them in certain : 15 : localities. He stated that in the first week of May 2004 at about 8.30 p.m., Santosh Mane and the Petitioner and his associates came at the place of his business and demanded a sum of Rs.5000/- and threatened to kill the witness if the said amount was not paid. When the witness declined to pay the amount on the ground that his business was suffering from recession, the Petitioner took out a chopper and banged the same on the table in front of the witness. Santosh Mane forcibly took cash collection of Rs.2300/- which was kept in the drawer of the table. When the witness tried to resist, the said Santosh Mane delivered kick blows on the chest of the witness as a result of which he fell down. He stated that his customers ran away. The Petitioner while leaving threatened the witness that he will have to pay a sum of Rs.2000/- per month if he was desirous of running the business. He also threatened the witness that if he attempts to narrate the incident to anybody he would be killed. Due to the scare the witness did not report the matter to the Police Station. 12. Before going to the ratio of the decision of Apex court in Bhajan Lal’s case, it is necessary to refer to relevant statutory provisions. Section 2(b-1) of the said Act of 1981 reads thus: : 16 : "2(b-1). "dangerous person" means a person, who either by himself or as a member or leader of a gang, habitually commits, or attempts to commit or abets the commission of any of the offences punishable under Chapter XVI or Chapter XVII of the Indian Penal Code or any of the offences punishable under Chapter V of the Arms Act, 1959." The said Act of 1981 does not define the term "offence". Section 2(b-1) refers to the offence punishable under Chapter XVI or Chapter XVII of the IPC or Chapter V of the Arms Act. Section 2(40) of the IPC defines the word "offence" as under: "40. "Offence - Except in the Chapters and sections mentioned in clauses 2 and 3 of this section, the word "offence" denotes a thing made punishable by this Code. . In Chapters IV (Chapter VA) and in the following sections, namely, sections 64, 65, 66, 67, 71, 109, 110, 112, 114, 115, 116, 117, 187, 194, 195, 203, 211, 213, 214, 221, 222, 223, 224, 225, 327, 328, 329, 330, 331, 347, 348, 388, 389, and 445, the word : 17 : "offence" denotes a thing punishable under this Code, or under any special or local law as hereinafter defined. . And in sections 41, 176, 177, 201, 202, 212, 216, and 441, the word "offence" has the same meaning when the thing punishable under the special or local law is punishable under such law with imprisonment for a term of six months or upwards, whether without or without fine." The Code of Criminal Procedure also defines the word "offence" in section 2(n) which reads as under: "2(n). "Offence" means any act or omission made punishable by any law for the time being in force and includes any act in respect of which a complaint may be made under Section 20 of the Cattle Trespass Act, 1871 (1 of 1871)." The Bombay General Clauses Act, 1904 defines "offence" in section 2(33) as: "2(33). "offence" shall mean any act or omission made punishable by any law for the : 18 : time being in force." 13. Thus, broadly speaking, an offence is a thing which is punishable by any law. An offence is an act or omission which is made punishable by law. On a plain reading of the definition of "offence" under various enactments referred to above, it can be said that an offence is said to have been committed when there is an act or omission on the part of a person which is made punishable by law. Thus an offence is complete when an act punishable by any law is committed by a person. An offence is committed when there is an omission on the part of any person which is made punishable by any law. 14. The learned Senior Counsel appearing for the Petitioner has heavily relied upon the Judgment of the Apex Court in Bhajan Lal’s case. He has extensively taken us to the various paragraphs of the Judgment of the Apex Court. Some of the relevant paragraphs which are relied upon by the learned Counsel are as under: "30. The legal mandate enshrined in Section 154(1) is that every information relating to the commission of a "cognizable offence" (as defined under section 2(c) of the Code) if given orally (in which case it is to be : 19 : reduced into writing) or in writing to"an officer incharge of a police station" (within the meaning of Section 2(o) of the code) and signed by the informant should be entered in a book to be kept by such officer in such form as the State Government may prescribe which form is commonly called as "First Information Report" and which act of entering the information in the said form is known as registration of a crime of a case" 31. At the state of registration of a crime or a case on the basis of the information disclosing a cognizable offence in compliance with the mandate of Section 154(1) of the Code, the concerned police officer cannot embark upon an enquiry as to whether the information, laid by the informant is reliable and genuine or otherwise and refuse to register a case on the ground that the information is not reliable or credible. On the