:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 987 OF 2005 CRIMINAL WRIT PETITION NO. 987 OF 2005 CRIMINAL WRIT PETITION NO. 987 OF 2005 Shri Mohammed Bilal Hanif ] Shaikh @ Bilal Bachkana ] age 26 years, residing at ] Khalil Building, 2nd floor ] Room No. 25, Mutton Street, ] Chor Bazar, Mumbai 400 003 ] At present detained at Nasik ]..Petitioner Road Central Prison, Nasik ] (Detenu) versus 1. Shri A. N. Roy ] Commissioner of Police, ] Brihan Mumbai ] 2. The State of Maharashtra ] 3. The Superintendent, ] Nasik Road Central Prison, Nasik]..Respondents WITH WITH WITH CRIMINAL WRIT PETITION NO. 1597 OF 2005 CRIMINAL WRIT PETITION NO. 1597 OF 2005 CRIMINAL WRIT PETITION NO. 1597 OF 2005 Uday Mahadev Sawant ] age 30 years, resident of ] 11-B, Gr. Floor, Kings Corner ] Building, L.T. Road, Mahim ] Mumbai 400 016 ] (At present detained at Nasik ]..Petitioner Road Central Prison at Nasik) ](Detenu) versus 1. Shri A. N. Roy ] Commissioner of Police, ] Brihan Mumbai ] 2. The State of Maharashtra ] 3. The Superintendent, ] Nasik Road Central Prison, Nasik]..Respondents Mr. S. R. Chitnis, Senior Counsel with Mr. U. N. Tripathi for the Petitioners in both the Writ Petitions. Mr. S. R. Borulkar, P.P. with Mr. D. S. :2: Mhaispurkar with Mrs. A. S. Pai APP for the Respondents - State. CORAM : D. G. DESHPANDE, & CORAM : D. G. DESHPANDE, & CORAM : D. G. DESHPANDE, & V. M. KANADE, JJ. V. M. KANADE, JJ. V. M. KANADE, JJ. DATE : 19TH DECEMBER,2005 DATE : 19TH DECEMBER,2005 DATE : 19TH DECEMBER,2005 ORAL JUDGMENT ( PER D.G. DESHPANDE, J.) : ORAL JUDGMENT ( PER D.G. DESHPANDE, J.) : ORAL JUDGMENT ( 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 :3: 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 :4: "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 State of Haryana and others State of Haryana and others vs. Bhajan Lal and others reported in 1992 SCC vs. Bhajan Lal and others reported in 1992 SCC vs. Bhajan Lal and others reported in 1992 SCC :5: (Cri) 426 (Cri) 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 Sachin Sachin Sudhakar Nikam vs. A.N. Roy Commissioner of Police Sudhakar Nikam vs. A.N. Roy Commissioner of Police Sudhakar Nikam vs. A.N. Roy Commissioner of Police & ors. reported in 2005 All MR (Cri) 1684 & ors. reported in 2005 All MR (Cri) 1684 & ors. reported in 2005 All MR (Cri) 1684, the judgment in Sachin Nikam’s case is per incurriam, because important paragraphs of the Supreme Court Judgment in Bhajan Lal’s 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 Nikam’s 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 (1989) 1 SCC 235 Sube Singh and others (1989) 1 SCC 235 Sube Singh and others vs. State of Haryana and others vs. State of Haryana and others vs. State of Haryana and others. Mr. Chitnis, therefore, in this background stated that in-camera statements, cannot, in law be considered as offence punishable under Chapter XVI and XVII of IPC for want of registration of FIR, investigation, and filing of police report, and, if in-camera statements are ruled out or not considered, then nothing remains with the police in these two cases to show that the petitioners - detenus were habitual offenders as defined under Section 2(b-1) of MPDA :6: Act. Therefore, according to him, the detention order was liable to be quashed. 6. On the other hand, it was contended by the Prosecutors that this interpretation put forth by Mr. Chitnis of the word "punishable" was not at all proper. Bhajan Lal’s case was considered fully by the Division Bench of this Court in Sachin Nikam’s case, and, similar submissions of Mr. Chitnis were rejected by the Division Bench, therefore, Mr. Chitnis cannot be permitted to raise those grounds / submissions again and again. The learned Prosecutors contended that the judgment of the Division Bench in Sachin Nikam’s case was neither per incurriam nor sub-silentio. In-camera statements could be relied upon even without registering the FIR. Therefore, there was sufficient material with the Detaining Authority to come to the conclusion that the petitioners were habitual offenders in their respective category, and therefore, there was no need or necessity to interfere with the detention order. 7. Sachin Nikam’s case was under the MPDA Act. Mr. Chitnis appeared there with Mr. Tripathi for :7: the petitioner. In that case arguments and submissions of Mr. Chitnis have been reproduced in paragraph 3 of the judgment, and the argument was that as per Section 2(b-1) of MPDA Act, a dangerous person is a habitual offender who have repeatedly committed ..............offences punishable under Chapter XVI and XVII of the I.P.C., that the detention was based on two in-camera statements, and no offences were registered and a Competent Court has not taken cognizance of any of the offences on the basis of the said in-camera statements. Mr. Chitnis relied upon the judgment of Bhajan Lal’s case, and, contended that if the offence disclosed is cognizable offence then the Police Officer has no option but to register FIR. His further submission was that condition precedent for the commencement of investigation under Section 157(1) of the Criminal Procedure 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 FIR, and, therefore, if the allegations made in two in-camera statements disclosed commission of cognizable offence, it was the duty of the Police Officer to register the case on the basis of such information and registration of a case was a :8: sine-qua-non for the commencement of investigation and if that is not done, then the acts complained of in in-camera statements, cannot be termed as offences. 8. According to Mr. Chitnis, the judgment of Division Bench (Sachin Nikam’s case) is per incurriam or sub-silentio, and therefore, not a bar in reconsidering the same arguments, by us. It is therefore necessary to find out what these two terms per incurriam and sub-silentio mean. He relied upon a judgment of the Supreme Court reported in (1991)4 (1991)4 (1991)4 SCC 139 State of U.P. and another vs. Synthetic & SCC 139 State of U.P. and another vs. Synthetic & SCC 139 State of U.P. and another vs. Synthetic & Chemicals Ltd. and another Chemicals Ltd. and another Chemicals Ltd. and another, therein Supreme Court has discussed these two doctrines. Paragraphs 40 and 41 of the Judgment, are as under: "40. ’Incuria’ literally means "40. ’Incuria’ literally means "40. ’Incuria’ literally means ’carelessness’. In practice per incuriam ’carelessness’. In practice per incuriam ’carelessness’. In practice per incuriam appears to mean per ignoratium. English appears to mean per ignoratium. English appears to mean per ignoratium. English courts have developed this principle in courts have developed this principle in courts have developed this principle in relaxation of the rule of stare decisis. relaxation of the rule of stare decisis. relaxation of the rule of stare decisis. The ’quotable in law’ is avoided and ignored The ’quotable in law’ is avoided and ignored The ’quotable in law’ is avoided and ignored if it is rendered, "in ignoratium of a if it is rendered, "in ignoratium of a if it is rendered, "in ignoratium of a statute or other binding authority’. (Young statute or other binding authority’. (Young statute or other binding authority’. (Young v. Bristol Aeroplane Co. Ltd.). Same has v. Bristol Aeroplane Co. Ltd.). Same has v. Bristol Aeroplane Co. Ltd.). Same has been accepted, approved and adopted by this been accepted, approved and adopted by this been accepted, approved and adopted by this Court while interpreting Article 141 of the Court while interpreting Article 141 of the Court while interpreting Article 141 of the Constitution which embodies the doctrine of Constitution which embodies the doctrine of Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri precedents as a matter of law. In Jaisri precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey this Court while Sahu v. Rajdewan Dubey this Court while Sahu v. Rajdewan Dubey this Court while pointing out the procedure to be followed pointing out the procedure to be followed pointing out the procedure to be followed when conflicting decisions are placed before when conflicting decisions are placed before when conflicting decisions are placed before :9: a bench extracted a passage from Halsbury’s a bench extracted a passage from Halsbury’s a bench extracted a passage from Halsbury’s Laws of England incorporating one of the Laws of England incorporating one of the Laws of England incorporating one of the exceptions when the decision of an appellate exceptions when the decision of an appellate exceptions when the decision of an appellate court is not binding. court is not binding. court is not binding. 41. Does this principle extend and apply to 41. Does this principle extend and apply to 41. Does this principle extend and apply to a conclusion of law, which was neither a conclusion of law, which was neither a conclusion of law, which was neither raised nor preceded by any consideration. raised nor preceded by any consideration. raised nor preceded by any consideration. In other words can such conclusions be In other words can such conclusions be In other words can such conclusions be considered as declaration of law? Here considered as declaration of law? Here considered as declaration of law? Here again the English Courts and jurists have again the English Courts and jurists have again the English Courts and jurists have carved out an exception to the rule of carved out an exception to the rule of carved out an exception to the rule of precedents. It has been explained as rule precedents. It has been explained as rule precedents. It has been explained as rule of sub-silentio. " A decision passes of sub-silentio. " A decision passes of sub-silentio. " A decision passes sub-silentio, in the technical sense that sub-silentio, in the technical sense that sub-silentio, in the technical sense that has come to be attached to that phrase, when has come to be attached to that phrase, when has come to be attached to that phrase, when the particular point out of law involved in the particular point out of law involved in the particular point out of law involved in the decision is not perceived by the court the decision is not perceived by the court the decision is not perceived by the court or present to its mind". (Salmond on or present to its mind". (Salmond on or present to its mind". (Salmond on Jurisprudence 12th Edn. p. 153). In Jurisprudence 12th Edn. p. 153). In Jurisprudence 12th Edn. p. 153). In Lancaster Motor Company (London) Ltd. v. Lancaster Motor Company (London) Ltd. v. Lancaster Motor Company (London) Ltd. v. Bremith Ltd. the Court did not feel bound Bremith Ltd. the Court did not feel bound Bremith Ltd. the Court did not feel bound by earlier decision as it was rendered by earlier decision as it was rendered by earlier decision as it was rendered ’without any argument, without reference to ’without any argument, without reference to ’without any argument, without reference to the crucial words of the rule and without the crucial words of the rule and without the crucial words of the rule and without any citation of the authority’. It was any citation of the authority’. It was any citation of the authority’. It was approved by this Court in Municipal approved by this Court in Municipal approved by this Court in Municipal Corporation of Delhi vs. Gurnam Kaur. The Corporation of Delhi vs. Gurnam Kaur. The Corporation of Delhi vs. Gurnam Kaur. The bench held that, ’precedents sub-silentio bench held that, ’precedents sub-silentio bench held that, ’precedents sub-silentio and without argument are of no moment.’ The and without argument are of no moment.’ The and without argument are of no moment.’ The courts thus have taken recourse to this courts thus have taken recourse to this courts thus have taken recourse to this principle for relieving from injustice principle for relieving from injustice principle for relieving from injustice perpetrated by unjust precedent. A decision perpetrated by unjust precedent. A decision perpetrated by unjust precedent. A decision which is not express and is not founded on which is not express and is not founded on which is not express and is not founded on reasons nor it proceeds on consideration of reasons nor it proceeds on consideration of reasons nor it proceeds on consideration of issue cannot be deemed to be a law declared issue cannot be deemed to be a law declared issue cannot be deemed to be a law declared to have a binding effect as is contemplated to have a binding effect as is contemplated to have a binding effect as is contemplated by Article 141. Uniformity and consistency by Article 141. Uniformity and consistency by Article 141. Uniformity and consistency are core of judicial discipline. But that are core of judicial discipline. But that are core of judicial discipline. But that which escapes in the judgment without any which escapes in the judgment without any which escapes in the judgment without any occasion is not ratio decidendi. In B. occasion is not ratio decidendi. In B. occasion is not ratio decidendi. In B. Sharma Rao v. Union Territory of Sharma Rao v. Union Territory of Sharma Rao v. Union Territory of Pondicherry it was observed, "it is trite to Pondicherry it was observed, "it is trite to Pondicherry it was observed, "it is trite to say that a decision is binding not because say that a decision is binding not because say that a decision is binding not because of its conclusions but in regard to its of its conclusions but in regard to its of its conclusions but in regard to its ratio and the principles, laid down ratio and the principles, laid down ratio and the principles, laid down therein.’ Any declaration or conclusion therein.’ Any declaration or conclusion therein.’ Any declaration or conclusion arrived without application of mind or arrived without application of mind or arrived without application of mind or preceded without any reason cannot be deemed preceded without any reason cannot be deemed preceded without any reason cannot be deemed :10: to be a declaration of law or authority of a to be a declaration of law or authority of a to be a declaration of law or authority of a general nature binding as a precedent. general nature binding as a precedent. general nature binding as a precedent. Restraint in dissenting or overruling is for Restraint in dissenting or overruling is for Restraint in dissenting or overruling is for sake of stability and uniformity but sake of stability and uniformity but sake of stability and uniformity but rigidity beyond reasonable limits is rigidity beyond reasonable limits is rigidity beyond reasonable limits is inimical to the growth of law." inimical to the growth of law." inimical to the growth of law." In short, the judgment is per in curriam if it is in an ignorance of a statute or Authority and it is sub-silentio when a particular point of law involved in the decision is not perceived by the court or present to its mind. 9. According to Mr. Chitnis, the judgment in Sachin Nikam’s case is both per incurriam or sub-silentio. It will have therefore to be seen and tested whether in fact and in reality the Judgment in Sachin Nikam’s case is per incurriam or sub-silentio. At this juncture, it is necessary, to give a background of the judgment of the Supreme Court in Bhajan Lal’s case. The matter before the Supreme Court was by way of S.L.P. at the instance of State of Haryana and two others assailing the judgment of the Division Bench of the Punjab and Haryana High Court dated 8.9.1988 referred to in Writ Petition No. 9172 of 1987, by which the entire criminal proceedings inclusive of registration of FIR was quashed and respondent No.2 Dharam Pal was :11: directed to pay costs to the respondent No.1 Bhajan Lal. 10. Dharam Pal the respondent No.2 had filed a complaint on 12.11.1987 making serious allegations against Bhajan Lal of accumulation of wealth beyond known source of income. On this complaint which was sent to the Chief Minister, the Officer on Special Duty made an endorsement "C.M. has seen. For appropriate action" and marked the same to the Director General of Police (DGP), who in turn made an endorsement "Please look into this; take necessary action and report" and marked it to the Superintendent of Police (SP) Hissar. S.P. Hissar made an endorsement "Please register a case and investigate." The S.H.O. has registered a case under Sections 161 and 165 of IPC and Section 5(2) of the Prevention of Corruption Act and took up the investigation. In the meantime the Writ Petition No. 9172 of 1987 was filed before the High Court of Punjab and Haryana for quashing the FIR and for stopping the investigation. High Court granted exparte stay, which was made absolute thereafter. Three statements came to be filed in the High Court in that Writ Petition on behalf of the Police and :12: the High Court finally held that : "It thus appears that the allegation "It thus appears that the allegation "It thus appears that the allegation regarding application of mind by the SHO regarding application of mind by the SHO regarding application of mind by the SHO Inspector Tara Chand of Police Station, Inspector Tara Chand of Police Station, Inspector Tara Chand of Police Station, Sadar, Hissar has been made only because the Sadar, Hissar has been made only because the Sadar, Hissar has been made only because the SP was feeling shallow under his feet...that SP was feeling shallow under his feet...that SP was feeling shallow under his feet...that all was not well with them and both of them all was not well with them and both of them all was not well with them and both of them were feeling cold under their feet as to who were feeling cold under their feet as to who were feeling cold under their feet as to who amongst them would take the odium upon amongst them would take the odium upon amongst them would take the odium upon himself for having done something which was himself for having done something which was himself for having done something which was in fact not done by either of them. Faced in fact not done by either of them. Faced in fact not done by either of them. Faced against the wall, they felt compelled on against the wall, they felt compelled on against the wall, they felt compelled on July 14, 1988 to put in hotch potch July 14, 1988 to put in hotch potch July 14, 1988 to put in hotch potch affidavits aforesaid which do not indicate affidavits aforesaid which do not indicate affidavits aforesaid which do not indicate any application of mind by either one of any application of mind by either one of any application of mind by either one of them..." them..." them..." Finally, the High Court concluded that allegations do not constitute a cognizable offence for commencing the lawful investigation and granted the relief as prayed for with costs of the writ petition. It was this order of the High Court, which was challenged before the Supreme Court. 11. Therefore, from these facts, it is clear that the issue before the Supreme Court was whether the allegations made by Dharam Pal in his complaint against Bhajan Lal revealed any cognizable offence and if so what was the duty and who was bound to register the offence. It is in this background in paragraph 33, the Supreme Court held that : :13: "It is, therefore, manifestly clear that if "It is, therefore, manifestly clear that if "It is, therefore, manifestly clear that if any information disclosing a cognizable any information disclosing a cognizable any information disclosing a cognizable offence is laid before an officer in charge offence is laid before an officer in charge offence is laid before an officer in charge of a police station satisfying the of a police station satisfying the of a police station satisfying the requirements of Section 154(1) of the Code, requirements of Section 154(1) of the Code, requirements of Section