Mere Registration Of FIR By Itself Cannot Have Any Nexus With Breach Of Maintenance Of Public Order: Gujarat HC Quashes Preventive Detention Order
The Gujarat High Court quashed a preventative detention order observing that registration of FIR by itself does not have any nexus with the breach of maintenance of public order.
The Court set aside the detention order against the detenue detained by the detaining authority under Section 3(1) of the Gujarat Prevention of Anti-Social Activities Act, 1985 (the Act) observing that there must be material 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 goes in peril disturbing the public order at the instance of such person.”
A Division Bench of Justice Ilesh J. Vora and Justice Vimal K. Vyas observed, “Subjective satisfaction arrived at by the detaining authority cannot be said to be legal, valid and in accordance with law, inasmuch as the offences alleged in the FIRs cannot have any bearing on the public order as required under the Act and other relevant penal laws are sufficient enough to take care of the situation and that the allegations levelled against the petitioner - detenue cannot be said to be germane for the purpose of bringing the petitioner - detenue within the realm of the meaning of Section 2(c) of the Act.”
Advocate BH Solanki represented the petitioner, while AGP L.B. Dabhi appeared for the respondents.
The detenue challenged the detention order on the grounds that it was based solely on the registration of three FIRs against him. The FIRs were registered for offences under Sections 324, 323, 294B, 506(2) and 114 of the IPC and Section 135(1) of the Gujarat Police Act. The detenue argued that the FIRs did not justify the invocation of the Act as they did not pertain to activities that would disrupt public order.
The Court explained that the subjective satisfaction arrived at by the detaining authority cannot be said to be legal or valid per the law. Similarly, the Court stated that the offences alleged in the FIRs cannot have any bearing on the public order as required under the Act.
“It cannot be said that the detenue is a person which would fall within the meaning of Section 2(c) of the Act. Except general statements, there is no other material on record which shows that the petitioner - detenue has acted in such a manner which has become dangerous to the public order,” the Bench remarked.
Except for general statements, the Bench noted that there was no other material on record to show that the detenue had become “dangerous to the public order.”
“We are inclined to allow this petition, because simplicitor registration of FIRs by itself cannot have any nexus with the breach of maintenance of public order and the authority cannot have recourse under the Act and no other relevant and cogent material exists for invoking the power under Section 3(1) of the Act.” the Court held.
The Bench reiterated the well-settled position of law that “the freedom of human-being is supreme” and the same cannot be curtailed or restricted unless the detention was extremely necessary and the activities of the detenue affected the ‘public order’. “While passing the detention orders, the authorities have to be mindful of the characteristic,” the Court added.
The Court discussed the personal liberty protected under Article 21 of the Constitution, which ensured that preventive detention was only applied in rare and exceptional cases. The Bench clarified that Article 22 of the Constitution must be read as an exception to Article 21, applicable only in situations where the procedural established was meticulously followed.
Accordingly, the High Court allowed the petition.
Cause Title: Mohanbhai Gnaneshwarbhai @ Gennibhai Jesingbhai Dantani v. Commissioner Of Police & Ors.
