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Mere Registration Of FIRs By Itself Can't Have Nexus With Breach Of "Public Order": Gujarat High Court Quashes Preventive Detention
PRIYANKA PREET
4 May 2022 10:46 AM GMT
Drawing a distinction between the term 'public order' and 'law and order'', the Gujarat High Court has held that mere registration of FIR/s against an accused person does not mean he is a threat to the society or disturbs all social apparatus.A Bench comprising Justice SH Vora and Justice Sandeep Bhatt observed,"Simplicitor registration of FIR/s by itself cannot have any nexus with the...
Drawing a distinction between the term 'public order' and 'law and order'', the Gujarat High Court has held that mere registration of FIR/s against an accused person does not mean he is a threat to the society or disturbs all social apparatus.
A Bench comprising Justice SH Vora and Justice Sandeep Bhatt observed,
"Simplicitor registration of FIR/s by itself cannot have any nexus with the breach of maintenance of public order...no other relevant and cogent material exists for invoking power under section 3(2) of the Gujarat Prevention of Anti Social Activities Act, 1985."
The Petitioner herein was accused of committing offences under Sections 363, 366, 376(2)(N) of the IPC and u/s 4,5(L),6,7,8,9(L) and 10 of the POCSO Act and u/s 3(2)(5), 3(2) (5-A), 3(1)W(i) of the Atrocities Act.
An order of preventive detention came to be passed against him on February 4, 2022.
The Petitioner contested that the registration of the offences under the aforesaid sections cannot itself bring the case of the detenue under the Act of 1985. Further, there was no nexus of the alleged activity of the detenue with the maintenance of public order. At the most, the alleged activity could amount to a breach of law and order.
Additionally, barring a statement of witnesses, registration of the FIR and panchnama, no other evidence was brought on record to show that the alleged activity breached public order in a manner that "affected even tempo of the society causing threat to the very existence of normal and routine life of people at large or that on the basis of criminal cases, the detenue had put the entire social apparatus in disorder, making it difficult for whole system to exist as a system governed by rule of law by disturbing public order."
Per contra, the AGP insisted that there was sufficient evidence to indicate that the detenue was in the habit of indulging into anti-social activities and therefore, the order of detention ought to be upheld.
Opining that the penal laws were sufficient to take care of the allegations levelled against the detenue and that there was no necessity for the authorities to bring the alleged offence within the meaning of Section 2(ha) of the 1985 Act, the High Court remarked:
"Unless and until, the material is there to make out a case that the person has become a threat and menace to the Society so as to disturb the whole tempo of the society and that all social apparatus is in peril disturbing public order at the instance of such person, it cannot be said that the detenue is a person within the meaning of section 2(ha) of the Act."
Referring to Pushker Mukherjee v/ s. State of West Bengal [AIR 1970 SC 852] where the Supreme Court had drawn a distinction between 'public order' and 'law and order', the Bench observed, "The contravention of any law always affects order but before it can be said to affect public order, it must affect the community or the public at large. In this connection we must draw a line of demarcation between serious and aggravated forms of disorder which directly affect the community or injure the public interest and the relatively minor breaches of peace of a purely local significance which primarily injure specific individuals and only in a secondary sense public interest."
Accordingly, the Bench allowed the petition and quashed the order of detention.
Case Title: Azaz S/O Ahmed Ibrahim Ishabhai vs Commissioner Of Police
Citation: 2022 LiveLaw (Guj) 146
Case No.: C/SCA/3372/2022
