Research › Search › Judgment

Gujarat High Court · body

2020 DIGILAW 440 (GUJ)

Ravi Krishanan Mudaliyar v. State of Gujarat

2020-03-11

A.P.THAKER

body2020
JUDGMENT : 1. This petition has been preferred under Articles 226 and 227 of the Constitution of India by the petitioner on apprehension that on the basis of FIRs being IC. R.Nos.18/2018 and 101/2018, he is likely to be detained under PASA, he has preferred present petition at pre-detention stage. He has prayed for the following reliefs:- “13. The petitioner therefore prays your Lordships to:- (a) Kindly stay the execution of operation of detention order passed by the detaining authority on the basis of two FIRs Annexure-A against the petitioner pending admission and final disposal of this petition. (b) Kindly quash and set aside any other passed by the detaining authority in furtherance of two crimes registered against the petitioner with different serial number. (c) Any other relief your lordship deem fit to grant be granted.” 2. Heard learned advocate Mr.S.R.Yadav for the petitioner and learned AGP, Mr.Nikunj Kanara for the respondent- State. 3. Rule. The same is fixed forthwith with the consent of the parties. 4. Mr.S.R.Yadav, learned advocate for the petitioner has vehemently submitted that the offences alleged against the petitioner are under Sections 406, 420, 465, 467, 468, 471 read with Section 120-B of the Indian Penal Code and the allegations levelled against the petitioner does not fall within the definition of “bootlegger” and/or “dangerous person” as per the definitions given in the Prevention of Anti Social Activities Act. While inviting the attention of the Court to FIRs and the order passed by Co-ordinate Bench in Special Civil Application No.7509 of 2019 in respect of the co-accused, Mr.Yadav has submitted that on the ground of parity, the petitioner here may also be granted relief at pre-detention stage. He has invited the attention of the Court to another decision of this Court in the case of Vijaysing @ Gatti Pruthvisinh Rathod v. State of Gujarat and another reported in 2015 (1) GLR 703 and has submitted that the petition under Article 226 of the Constitution of India at pre-detention stage is maintainable. He has also submitted that considering the judgment of this Court this is a fit case wherein at pre-execution or at pre-arrest stage, stay be granted in favour of the petitioner. 5. He has also submitted that considering the judgment of this Court this is a fit case wherein at pre-execution or at pre-arrest stage, stay be granted in favour of the petitioner. 5. Learned AGP Mr.Kanara has vehemently submitted that the Full Bench of this Court, in the judgment relied on by learned advocate Mr.Yadav, has specifically referred to various decisions and has observed that though the petition under Article 226 is maintainable at pre-execution stage, considering the decision of this Court, which is based on judgment of the Supreme Court in the case of Additional Secretary to the Government of India v. Smt. Alka Subhash Gadia reported in 1992 (Suppl.) (1) SCC 496 and Dipak Bajaj v. State of Maharashtra reported in 2008 (16) SCC 14 , such extraordinary power may not be exercised and the petition may be dismissed at the threshold. He has also stated that Full Bench decision of this Court has been referred to by learned Single Judge of this Court in Special Civil Application No.6693 of 2018 in the case of Piyush @ Lakhan Manojbhai Bhavsar v. The Police Commissioner vide order dated 17.9.2018, learned Single Judge has dismissed the same. Against the order of learned Single Judge, the petitioner concerned has filed Letters Patent Appeal No.1281 of 2018, wherein Division Bench of this Court vide order dated 8.10.2018 has specifically held that there is no order of detention passed under the Prevention of Anti Social Activities Act, 1985. In paragraph 4 thereof, it is observed as under:- “4. During the course of hearing, learned counsel appearing for the appellant has fairly admitted that there is no order of detention passed under the provisions of PASA Act of 1985. If no such order of detention is passed, we fail to understand how such a petition, seeking the relief as sought for, could have been filed. While it is open for the appellant to file such a petition, when the order of detention is passed, if there is any ground available to challenge the same before the same is executed, but at the same time, if order of detention is not passed under the provisions of PASA Act, no such petition can be maintained seeking the relief as sought for.” 6. In view of above, he has prayed to dismiss present petition. 7. In view of above, he has prayed to dismiss present petition. 7. Considering the material placed on record and the contentions raised by learned advocates for both the sides and considering the aforesaid decisions, it is crystal clear that FIRs have been lodged against present petitioner and under the apprehension that he is likely to be detained, he has filed present petition at pre-detention stage. At this juncture, it is necessary to refer to Full Bench decision of this Court in the case of Vijaysing @ Gatti Pruthvisinh Rathod (supra), it is observed as under:- “18. Hence, the reference can be answered as under :- (1) As both the Division Benches of this Court in the case of Manchharam Samaram Meena vs. State of Gujarat (supra) and in the case of Chirag @ Vijay Bhikhubhai Chitrabhuj vs. State of Gujarat (supra) are not on disagreement for the maintainability of the petition for challenging the order of detention under Article 226 of the Constitution at the pre-execution stage, no further view deserves to be expressed. (2) Further, if the order of detention is challenged at pre-execution stage under Article 226 of the Constitution, the High Court by way of self-imposed restriction may examine as to whether the case is covered by the criteria laid down by the Apex Court in the case of Addl. Secy. To the Govt. of India v. Alka Subhash Gadia (Smt.) (supra) and Deepak Bajaj Vs. State of Maharashtra & Another, reported in (2008) 16 SCC 14 (supra) and thereafter may call for the relevant record from the detaining authority, but such would depend upon sound exercise of judicial discretion of the High Court under Article 226 of the Constitution and it cannot be said that in all cases, it would be obligatory for the High Court to satisfy itself as to whether the detention order is passed in consonance with the scheme of the enactment under which the detention order is passed or whether the detention order suffers from the vice of illegality or not, save and except the criteria as laid down by the Apex Court in the case of Addl. Secy. To the Govt. of India v. Alka Subhash Gadia (Smt.)(supra) and Deepak Bajaj Vs. State of Maharashtra & Another, reported in (2008) 16 SCC 14 (supra). Secy. To the Govt. of India v. Alka Subhash Gadia (Smt.)(supra) and Deepak Bajaj Vs. State of Maharashtra & Another, reported in (2008) 16 SCC 14 (supra). (3) The High Court while exercising the power under Article 226 of the Constitution of India in a petition for challenging the order of detention at the pre-execution stage may bear in mind the observations made by the Apex Court in the case of State of Maharashtra @ Ors. Vs. Bhaurao Punjabrao Gawande (supra) at paragraph 63 relevant of which reads as under:- “63. ... As a general rule, an order of detention passed by a Detaining Authority under the relevant ‘preventive detention’ law cannot be set aside by a Writ Court at the pre-execution or pre-arrest stage unless the Court is satisfied that there are exceptional circumstances specified in Alka Subhash Gadia. The Court must be conscious and mindful of the fact that this is a ‘suspicious jurisdiction’ i.e. jurisdiction based on suspicion and an action is taken ‘with a view to preventing’ a person from acting in any manner prejudicial to certain activities enumerated in the relevant detention law. Interference by a Court of Law at that stage must be an exception rather than a rule and such an exercise can be undertaken by a Writ Court with extreme care, caution and circumspection. A detenu cannot ordinarily seek a writ of mandamus if he does not surrender and is not served with an order of detention and the grounds in support of such order.” 8. A detenu cannot ordinarily seek a writ of mandamus if he does not surrender and is not served with an order of detention and the grounds in support of such order.” 8. Thus, in view of aforesaid legal position, it is crystal clear that the petition filed under Article 226 of the Constitution of India at pre-execution stage is maintainable in the eyes of law but the present case does not fall under the categories that have been identified by the Honourable Apex Court in the case of Smt.Alka Subhash Gadia (supra), which decision has also came up for consideration before Honourable Apex Court in the case of Sayed Taher Bawamiya v. Joint Secretary to the Government of India, reported in 2000 (8) SCC 630 , wherein following observations are made:- “[7.5] Thereafter the decision of the Hon’ble Supreme Court in the case of Smt. Alka Subhash Gadia (Supra) again came to be considered by the Hon’ble Supreme Court in the case of Sayed Taher Bawamiya v. Joint Secretary to the Government of India reported in (2000) 8 SCC 630 and paras 6 and 7, the Hon’ble Supreme Court has observed and held as under: “6. This Court in Alka Subhash Gadia case was also concerned with a matter where the detention order had not been served but the High Court had entertained the petition under Article 226 of the Constitution. This Court held that equitable jurisdiction under Article 226 and Article 32 which is discretionary in nature would not be exercised in a case where the proposed detenu successfully evades the service of the order. The Court, however, noted that the courts have the necessary power in appropriate cases to interfere with the detention order at the pre-execution stage but the scope for interference is very limited. It was held that the courts will interfere at the pre-execution stage with the detention orders only after they are prima facie satisfied : (i) that the impugned order is not passed under the Act under which it is purported to have been passed, (ii) that it is sought to be executed against a wrong person, (iii) that it is passed for a wrong purpose, (iv) that it is passed on vague, extraneous and irrelevant grounds, or (v) that the authority which passed it had no authority to do so. 7. 7. As we see it, the present case does not fall under any of the aforesaid five exceptions for the court to interfere. It was contended t hat these exceptions are not exhaustive. We are unable to agree with this submission. Alka Subhash Gadia case shows that it is only in these five types of instances that the court may exercise its discretionary jurisdiction under Article 226 or Article 32 at the pre-execution stage. The petitioner had sought to contend that the order which was passed was vague, extraneous and on irrelevant grounds but there is no material for making such an averment for the simple reason that the order of detention and the grounds on which the said order is passed has not been placed on record inasmuch as the order has not yet been executed. The petitioner does not have a copy of the same and therefore it is not open to the petitioner to contend that the non-existent order was passed on vague, extraneous or on irrelevant grounds.” 9. Learned advocate for the petitioner has referred to the order dated 29.9.2019 passed by co-ordinate Bench of this Court in Special Civil Application No.7509 of 2019 in the case of Manish Gyanchand Joriyomal Tharani (Sindhi) thru. Wife Bhoomi Manish Tharani v. Police Commissioner, Ahmedabad City for its proposition that parity may be granted to the present petitioner. However, on perusal of the said oral judgment, it is crystal clear that the petitioner therein was detained and order of detention was already executed, whereas present petition is filed at pre-execution stage. Therefore, there is no question of granting parity to the present petitioner. 10. The principle of parity cannot be applied mechanically. The role of each accused in the offence is required to be considered and if there is slighest of change in the role of accused concerned in commission of crime, then that fact may also be taken into consideration. If the role of the accused is different, then the accused may not be granted parity even if the co-accused is granted benefit by setting aside the order of detention. Therefore, no parity can be granted to the present petitioner. 11. As this petition is filed at pre-detention stage and no order has been passed by the authority concerned, though the petition is maintainable, the prayer made by the petitioner cannot be granted. Therefore, no parity can be granted to the present petitioner. 11. As this petition is filed at pre-detention stage and no order has been passed by the authority concerned, though the petition is maintainable, the prayer made by the petitioner cannot be granted. Therefore, present petition deserves to be rejected and the same is rejected. Rule is discharged with no order as to costs. However, if and when the order of detention is passed, it will be open for the petitioner to challenge the same in accordance with law.