Karan Ashok Mudiraj v. The State Of Maharashtra And Others
2025:BHC-AUG:20721-DB
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO.654 OF 2025 Karan Ashok Mudiraj Age: 24 years, Occu.: Labour, R/o. Gadipura, Hingoli, Taluka and District Hingoli .. Petitioner
Versus
1.
The State of Maharashtra Through its Section Officer, Home Department (Special), Mantralaya, Mumbai-32.
2.
The District Magistrate, Hingoli, District Hingoli.
3.
The Superintendent of Jail, Central Prison, Aurangabad.
.. Respondents ...
Mr. V. S. Wakale h/f Mr. S. G. Ghongade, Advocate fro the petitioner. Mr. S. A. Gaikwad, APP for the respondents/State. ...
CORAM : SMT. VIBHA KANKANWADI & SANJAY A. DESHMUKH, JJ.
DATE : 28 JULY 2025 JUDGMENT (Per Smt. Vibha Kankanwadi, J.) .
Heard learned Advocate Mr. V. S. Wakale holding for learned Advocate Mr. S. G. Ghongade for the petitioner and learned APP Mr. S. A. Gaikwad for the respondents - State.
[1]
2.
Rule. Rule made returnable forthwith. The petition is heard finally with the consent of the learned Advocates for the parties. 3.
The petitioner challenges the detention order dated 01.04.2025 bearing No.2025 DC-1/KAVI-240/2025/897 passed by respondent No.2 as well as the approval order dated 09.04.2025 and the confirmation order dated 14.05.2025 passed by respondent No.1, by invoking the powers of this Court under Article 226 of the Constitution of India. 4.
Learned Advocate for the petitioner has taken us through the impugned orders and the material which was supplied to the petitioner by the detaining authority after passing of the order. He submits that though several offences were registered against the petitioner, yet for the purpose of passing the impugned order, only one offence was considered i.e. Crime No.761 of 2024 dated 08.11.2024 registered with Hingoli City Police Station, District Hingoli for the offences punishable under Sections 109, 309(4), 308(2), 118(2), 296(b), 351(3), 3(5) of Bharatiya Nyaya Sanhita, 2023 and under Sections 3(1)(r), 3(1)(s), 3(2) (v), 3(2)(va) of the Scheduled Castes and Scheduled Tribe (Prevention of Atrocities) Act, 1989 (hereinafter referred to as the "Atrocities Act"). Learned Advocate for the petitioner submits that the impugned order would show that the material that was placed before the detaining authority was not sufficient to arrive at subjective satisfaction. Further, [2]
the detaining authority had simply considered that the earlier writ petition challenging the earlier detention order was allowed by this Court i.e. Criminal Writ Petition No.1901 of 2023 decided on 08.03.2024, but the observations and the law therein has absolutely not been considered. The detaining authorities are in fact without considering the law laid down are passing illegal orders. Therefore, those orders cannot be allowed to sustain. Here, in the present impugned order, only one offence has been considered i.e. Crime No.761 of 2024, which came to be registered on 08.11.2024. The prosecution story in the said offence would show that the offence is individual in nature and general public is not involved. At the most law and order situation would have been created.
Further, in the said offence, the petitioner has been released on bail on 12.12.2024 by the competent Court, however, the detaining authority has not considered the bail order. There is delay in passing the impugned order. Further, the in-camera statements of witnesses 'A' and 'B' would show that at the most law and order situation would have been created and not the public order and, therefore, such illegal order deserves to be quashed and set aside.
5.
Per contra, the learned APP strongly supports the action taken against the petitioner. He submits that the petitioner is a dangerous person as defined under Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug-Offenders, Dangerous Persons and [3]
Video Pirates Act, 1981 (hereinafter referred to as the "MPDA Act"). The detaining authority has relied on the two in-camera statements and the subjective satisfaction has been arrived at. There is no illegality in the procedure adopted while recording the in-camera statements of the witnesses. Due to the terror created by the petitioner, people are not coming forward to lodge report against him and, therefore, it affects the public order. Learned APP relies on the affidavit-in-reply filed by Mr. Abhinav Goel, the then District Magistrate, Hingoli, presently working as Municipal Commissioner, Kalyan-Dombivali Municipal Corporation, District Thane. He supports the detention order passed by him and tries to demonstrate as to how he had arrived at the conclusion that the petitioner is a dangerous person.
The subjective satisfaction was arrived at on the basis of the in-camera statements and the contents of the FIR. After the subjective satisfaction, the detaining authority has passed a reasoned order, which is then confirmed with the opinion of the Advisory Board and, thereafter, confirmed by the State Government on 14.05.2025. Therefore, no fault can be found in the impugned order. 6.
Before considering the case, we would like to take note of the legal position as is emerging in the following decisions :- (i) Nenavath Bujji etc. Vs. State of Telangana and others, [2024 SCC OnLine SC 367], [4]
(ii) Kanu Biswas Vs. State of West Bengal, [1972 (3) SCC 831] wherein reference was made to the decision in Dr. Ram Manohar Lohia vs. State of Bihar and Ors. [1966 (1) SCR 709]; (iii) Mustakmiya Jabbarmiya Shaikh Vs. M.M. Mehta, [1995 (3) SCC 237];
(iv) Pushkar Mukherjee and Ors. Vs. The State of West Bengal, [AIR 1970 SC 852];
(v) Phulwari Jagdambaprasad Pathak Vs. R. H. Mendonca and Ors., (2000 (6) SCC 751) and;
(vi) Smt. Hemlata Kantilal Shah Vs. State of Maharashtra and another, [(1981) 4 SCC 647].
7.
Taking into consideration the legal position as summarized above, it is to be noted herein as to whether the detaining authority while passing the impugned order had arrived at the subjective satisfaction and whether the procedure as contemplated has been complied with or not. In Nenavath Bujji (Supra) itself it has been reiterated by the Hon'ble Supreme Court that illegal detention orders cannot be sustained and, therefore, strict compliance is required to be made, as it is a question of liberty of a citizen. At the outset, it is to be noted that the statements of in-camera witnesses 'A' and 'B' are taken on 01.12.2024. The proposal was then submitted by the sponsoring authority on 02.12.2024. It appears that the confidential statements came to be [5]
verified on 04.12.2024. The Superintendent of Police forwarded the said proposal to the detaining authority on 11.12.2024 and the detention order has been passed on 01.04.2025. That means, there is delay in passing the detention order. The affidavit-in-reply by Mr. Abhinav Goel, the then District Magistrate, Hingoli/detaining authority, is totally silent on the point of delay. This ground alone is sufficient to set aside the detention order. Further, while passing the present impugned order, note has been taken that the earlier detention order dated 16.10.2023 has been set aside by this Court in Criminal Writ Petition No.1901 of 2023 vide judgment and order dated 08.03.2024, but the detaining authority has not considered the observations and the law therein.
Now, in the present impugned order, as stated above, only one offence has been considered i.e. Crime No.761 of 2024 dated 08.11.2024. Perusal of the contents of the said FIR would show that the offence is individual in nature and general public was not involved. At the most, law and order situation would have been arisen and not the public order. Further, it appears that in respect of the said offence, the petitioner has been released on bail by the competent Court on 12.12.2024, however, the detaining authority has not considered the bail order. Here, we would like to rely on the decision in Joyi Kitty Joseph Vs. Union of India and Ors., [Criminal Appeal No.___ of 2025 (arising out of Special Leave Petition (Crl.) No.
Court on 06.03.2025], wherein reliance has been placed on the decision in Ameena Begum v. State of Telangana and others, [(2023) 9 SCC 587] and it has been observed that preventive detention is impermissible when the ordinary law of the land is sufficient to deal with the situation was per incuriam to the Constitution Bench decision in Haradhan Saha vs. State of W.B. [(1975) 3 SCC 198], in the limited judicial review available to constitutional courts in preventive detention matters. However, in Ameena Begum (Supra), the Hon'ble Supreme Court explained the true distinction between a threat to "law and order" and acts "prejudicial to public order" and it is stated that it cannot be determined merely by the nature or quality of the act complained of, but in the proper degree and extent of its impact on the society.
Further, it is observed that "When bail was granted by the jurisdictional Court, that too on conditions, the detaining authority ought to have examined whether they were sufficient to curb the evil of further indulgence in identical activities; which is the very basis of the preventive detention ordered.
indulging in further like activities."
8.
Further, reliance can be placed on the decision in Dhanyam Vs. State of Kerala and Ors., [Criminal Appeal No.2897 of 2025 (Arising out of SLP (Crl.) No.14740 of 2024) decided on 06.06.2025], wherein it has been observed that :- "17.From perusal of Section 2(j), it is evident that a person who indulges in activities "harmful to maintenance of public order" is sought to be covered by the Act. This Court in Sk. Nazneen Vs. State of Telangana, [(2023) 9 SCC 633] had emphasized on the distinction between public order as also law and order situations : "18.
In two recent decisions [Banka Sneha Sheela v. State of Telangana, (2021) 9 SCC 415 : (2021) 3 SCC (Cri.) 446; Mallada K. Sri Ram v. State of Telangana, (2023) 13 SCC 537: 2022 SCC OnLine SC 424], this Court had set aside the detention orders which were passed, under the same Act i.e. the present Telangana Act, primarily relying upon the decision in Ram Manohar Lohia [Ram Manohar Lohia v. State of Bihar, 1965 SCC OnLine SC9] and holding that the detention orders were not justified as it was dealing with a law and order situation and not a public order situation."
19. ......The observations made in the detention order do not ascribe any reason as to how the actions of the [8]
detenu are against the public order of the State. As discussed above, given the extraordinary nature of the power of preventive detention, no reasons are assigned by the detaining authority, as to why and how the actions of the detenu warrant the exercise of such an exceptional power.
20.
Moreover, it has been stated therein by the authority that the detenu is violating the conditions of bail imposed upon him in the cases that have been considered for passing the order of detention. However, pertinently, no application has been filed by the respondent-State in any of the four cases, alleging violation of such conditions, if any, and moreover, have not even been spelt out here."
9.
Perusal of the statements of witnesses 'A' and 'B' would show that general public was not involved. Those statements would have created at the most law and order situation and not the public order. 10.
Thus, taking into consideration the above observations and the decisions of the Hon'ble Apex Court, at the most, the statements as well as the offences allegedly committed would reveal that the petitioner had created law and order situation and not disturbance to the public order. Though the Advisory Board had approved the detention of the petitioner, yet we are of the opinion that there was no material before the detaining authority to categorize the petitioner as a dangerous person or [9]
bootlegger.
11.
For the aforesaid reasons, the petition deserves to be allowed. Hence, following order is passed :-
ORDER
I) The Writ Petition stands allowed.
II) The detention order dated 01.04.2025 bearing No.2025 DC1/KAVI-240/2025/897 passed by respondent No.2 as well as the approval order dated 09.04.2025 and the confirmation order dated 14.05.2025 passed by respondent No.1, are hereby quashed and set aside.
III) Petitioner - Karan Ashok Mudiraj shall be released forthwith, if not required in any other offence. IV) Rule is made absolute in the above terms.
[ SANJAY A. DESHMUKH ] [ SMT. VIBHA KANKANWADI ] JUDGE JUDGE scm [10]