Research › Search › Judgment

Gujarat High Court · body

2023 DIGILAW 857 (GUJ)

Jitubhai Mohanbhai Kuhada v. State Of Gujarat

2023-07-14

M.K.THAKKER

body2023
JUDGMENT : 1. By way of this application, present applicant is seeking to quash the FIR being II-C.R.No.3023 of 2001 registered with Veraval City Police Station for the offencs punishable under Sections 8(2)(b) and (c) of the Gujarat Prevention of Anti-Social Activities Act, 1985 (‘the PASA Act’ hereinafter). The applicant had also challenged the charge-sheet and other proceedings pursuant thereto contending that the same would amount to sheer abuse of process of Court and Law. 2. Brief facts leading to the present application are as follow: 2.1. It is the case of the prosecution that the order under Section 2(c) of the PASA Act was passed against the present applicant on 25.05.1998. The order could not be executed as the applicant was not traceable and was absconding therefore, the proceedings under Sections 82 and 83 of the Code of Criminal Procedure, 1973 came to be initiated. However, at the inquiry, it was found that the applicant was not possessing any property or vehicle. Therefore, proclamation was issued under Section 82 of the Code of Criminal Procedure, 1973 declaring the applicant as a proclaimed offender on 06.11.1998. 2.2. As per the provision under Section 8 of the PASA Act it is provided that, if after the procedure under Sections 82, 83, 84 and 85 of the Code of Criminal Procedure, 1973 for issuing proclamation against the person, if a person fails to appear before the authority to execute the order and he can be punished under Section 8 of the PASA Act with the imprisonment for a term, which may extend to 01 year or with fine or with both. Therefore, FIR came to be lodged on 23.03.2001 alleging the offence punishable under Section 8 of the PASA Act being II-C.R.No.3023 of 2001 registered with Veraval City Police Station, which is impugned in the present application. 3. Heard the learned advocate Mr.Harshit Tolia for the applicant and learned Additional Public Prosecutor Ms.M.D.Metha for respondent-State. 4. Learned advocate Mr.Harshit Tolia for the applicant submitted that the applicant is a local resident of Veraval and engaged in the various businesses and is a leading cricketer of Junagadh District and representing Junagadh district Cricket Association at National and International Levels. At the time of passing of order under the PASA Act, he was not present in the Veraval Town and was visiting foreign countries for a long period of time. At the time of passing of order under the PASA Act, he was not present in the Veraval Town and was visiting foreign countries for a long period of time. Under that circumstances, the applicant was not aware about the issuance of the order under the PASA and proceedings in pursuance thereto and therefore, he could neither appear before the authority nor challenge the proceedings initiated under the Code of Criminal Procedure, 1973. It is contended by Mr.Tolia that the applicant came back to Veraval Town on 07.07.2002 and came to know about the order under the PASA Act as well as the proceedings initiated under the PASA Act. Being a law abiding citizen, the applicant has surrendered before the police authority and he was sent to judicial custody. As the order under the PASA Act itself being illegal, it was revoked by the Home Department vide order dated 25.02.2002. 4.1. Learned advocate Mr.Tolia further submitted that when the order under the PASA Act itself was declared nullity and set aside being illegal, the impugned FIR is a consequences of the PASA Act, which would also being a completely nullity in the eyes of law. 4.2. Learned advocate Mr.Tolia further submitted that the sole basis of the FIR is the order passed by the authority to detain the applicant under the provision of PASA Act, now the order itself quashed and set aside by the PASA Board, continuation of the impugned FIR and charge-sheet would be sheer abuse of process of law. Learned advocate Mr.Tolia submitted that as the initial order itself is void ab initio, consequences following thereto also would go. 4.3. Learned advocate Mr.Tolia has relied on the decision rendered by this Court in the case of Karimaben K. Bagad vs. State of Gujarat and others, reported in (2004) 45 (3) GLR 2510. Relying on the decision rendered by this Court, learned advocate Mr.Tolia further submitted that the effect of the revocation of the order is the cancellation of the order. Learned advocate Mr.Tolia submitted that as a pre- requesite for the registration of impugned FIR i.e. the order of the PASA is declared void ab initio. The continuation of the proceedings under the impugned FIR would also a harassment to the applicant and therefore, he prays to quash and set aside the impugned FIR being II-C.R.No.3023 of 2001 registered with Veraval City Police Station. 5. The continuation of the proceedings under the impugned FIR would also a harassment to the applicant and therefore, he prays to quash and set aside the impugned FIR being II-C.R.No.3023 of 2001 registered with Veraval City Police Station. 5. Learned Additional Public Prosecutor Ms.Maithili Mehta submitted that against the present applicant number of antecedents were registered with different police stations therefore, order under the PASA Act was passed. However, with a view to see that the order could not be executed, he himself had absconded. Learned Additional Public Prosecutor would further submit that the impugned FIR was registered after following the due process of law and after declaring him as a proclaimed offender and ultimately the FIR was culminated into charge-sheet therefore, interference, at this stage, would be unwarranted. 5.1. Learned Additional Public Prosecutor Ms.Mehta further submitted that the trial is pending with the competent court having the jurisdiction therefore, at this stage, this application is required to be dismissed. 6. Before proceedings on the merits of the case, the relevant provisions under Sections 8, 13, 14 and 15 of the PASA Act is required to be perused. “8. Powers in relation to absconding persons.-(1) If the State Government or any authorised officer has reason to believe that a person in respect of whom a detention order has been made has absconded, or is concealing himself so that the order cannot be executed, than the provisions of sections 82 to 86 (both inclusive) of the Code of Criminal Procedure, 1973, shall apply in respect of such person and his property, subject to the modifications mentioned in this sub-section and, irrespective of the place where such person ordinarily resides, the detention order made against him shall be deemed to be a warrant issued by a competent Court. Where the detention order is made by the State Government, and officer, not below the rank of a District Magistrate or a Commissioner of Police authorised by the State Government in this behalf, or where the detention order is made by an authorised officer, the authorised officer, as the case may be, shall, irrespective of his ordinary jurisdiction, be deemed to be empowered to exercise all the powers of the competent Court under sections 82, 83, 84 and 85 of the said Code for issuing a proclamation for such person and for attachment and sale of his property situated in any part of the State and for taking any other action under the said sections. An appeal from any order made by any such officer rejecting an application for restoration of attached property shall lie to the Court of Sessions having jurisdiction in the place where the said person ordinarily resides, as provided in section 86 of the said Code. (2) (a) Notwithstanding anything contained in sub- section (1), if the State Government or an authorised officer has reason to believe that person in respect of whom a detention order has been made has absconded or is concealing himself so that the order cannot be executed, the State Government or the officer, as the case may be, may by order notified in the Official Gazette, direct the said person to appear before such officer, at such place and within such period as may be specified in the order. (b) Where such person fails to comply with such order, then unless he proves that it was not possible for him to comply therewith, and that he had, within the period specified in the order, informed the officer mentioned in the order of the reasons which rendered compliance therewith impossible and of his whereabouts, or proves that it was not possible for him to so inform the officer mentioned in the order, he shall, on conviction, be punished with imprisonment for a term which may extend to one year, or with fine, or with both. (c) Notwithstanding anything contained in the said Code, every offence under clause (b) shall be cognizable. *** 13. (c) Notwithstanding anything contained in the said Code, every offence under clause (b) shall be cognizable. *** 13. Action upon report of Advisory Board.-(1) In any case where the Advisory Board has reported that there is, in its opinion, sufficient cause for the detention of the detenu, the State Government may confirm the detention order and continue the detention of the detenu for a period, not exceeding the maximum period prescribed by section 14 as it thinks fit. (2) In any case where the Advisory Board has reported that there is, in its opinion, no sufficient cause for the detention of the person concerned, the State Government shall revoke the detention order and cause the detenu to be released forthwith. 14. Maximum period of detention.-The maximum period for which any person may be detained in pursuance of any detention order made under this Act which has been confirmed under section 13, shall be one year from the date of detention. 15. Revocation of detention orders.-(1) Without prejudice to the provisions of section 21 of the Bombay General Clauds Act, 1904, a detention order may, at any time for reasons to be recorded in writing, be revoked or modified by the State Government, notwithstanding that the order has been made by an authorised officer. (2) The expiry or revocation of a detention order (hereinafter in this sub- section referred to as "the earlier detention order") shall not bar the making of Another detention order (hereinafter in this sub-section referred to as "the sub- sequent detention order") under section 3 against the same person: Provided that in a case where no fresh facts have arisen after the expiry or revocation of the earlier detention order made against such person, the maximum period for which such person may be detained in pursuance of the subsequent detention order shall in no case extend beyond the expiry of a period of twelve months from the date of detention under the earlier detention order.” 7. It is an undisputed fact that after the order was passed under the PASA Act on 25.05.1998 and after he was declared proclaimed offender and the impugned FIR registered thereafter, he himself had surrendered with the police authority and made a representation with the Advisory Board wherein after considering the material placed before the authority, the order is revoked. It is an undisputed fact that after the order was passed under the PASA Act on 25.05.1998 and after he was declared proclaimed offender and the impugned FIR registered thereafter, he himself had surrendered with the police authority and made a representation with the Advisory Board wherein after considering the material placed before the authority, the order is revoked. The order of revocation is reproduced herein below: “REFERENCE DETENTION OF JITU MOHAN KUHADA ALIAS JITY MAGARA DETENUE OF JUNAGADH DISTRICT UNDER PASA. IN EXERCISE OF THE POWERS CONFERRED BY SUB-SECTION 1 OF SECTION 15 OF THE GUJARAT PREVENTION OF ANTI SOCIAL ACTIVITIES ACT, 1985, THE GOVERNMENT OF GUJARAT HEREBY REVOKES THE DETENTION ORDER DTD 25.05.1998 MADE BY THE DISTRATE JUNAGADH UNDER SUB SECTION 1 OF SECTION 3 OF THE SAID ACT AND DIRECTS THAT ABOVE PASA DETENUE SHALL BE RELEASED FROM DETENTION FORTHWITH REPEAT FORTHWITH UNLESS HE IS REQUIRED TO BE RETAINED UNDER THE ORDER OF ANY COMPETENT COURT OF LAW. REPORT COMPLIANCE ACCORDINGLY.” 8. The judgment which was relied upon by the learned advocate Mr.Tolia, in which subject matter is under the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 (SAFEMA) and similar case was there before this Court wherein also the order under the PASA Act was revoked. This Court in case of Karimaben K. Bagad (supra) has made the observations as under: “10. It is true that section 2 makes it clear that the revocation under that provision would be only in cases where the revocation has taken place in the exigencies referred therein. It is true that revocation under section 11 of the COFEPOSA has not been expressly mentioned in section 2 thereof. However, it is also required to be considered that the background in the present case is quite different. Even the Public Prosecutor incharge of the cause of the State was with the petitioner on the point that the order could be set aside on the ground of delay. Therefore, he made the aforesaid recommendation and, therefore, the State Government revoked the order of detention in the said matter. This means that when the Court was about to allow the petition and set aside the detention order, revocation under section 11 of the said Act has taken place. Therefore, he made the aforesaid recommendation and, therefore, the State Government revoked the order of detention in the said matter. This means that when the Court was about to allow the petition and set aside the detention order, revocation under section 11 of the said Act has taken place. In other words, looking to the above background, the said revocation could be treated to be equal to the quashing of an order by a judicial pronouncement of the Court. 11. It cannot be in dispute that an order revoked under section 2 would be equal to an order quashed by the Court. On this point, we find a decision of this court in the case of N D Chokshi v. Union of India, reported in 1992 (2) GLR 891 wherein this issue was required to be considered. Para 15 of the said decision is relevant for our reconsideration. In the said decision, it has been very clearly laid down that there is no difference between revocation by the competent authority and quashing and setting aside of the order by judicial pronouncement of this Court. In order to appreciate the said position, this court was required to consider a decision in the case of Ibrahim Bachu Bafan v. State of Gujarat, reported in AIR 1985 SC 697 . On appreciating the aforesaid situation, this Court came to a decision that looking to the above position, from the case decided by the Hon'ble Supreme Court in the case of Ibrahim Bachu Bafan (supra), it is clear that the ultimate effect of cancellation of the order of detention by the High Court under high prerogative jurisdiction and the order of revocation of order by the Government would be one and the same. 12. For a complete discussion and observation, it would be relevant to refer to para 15 of the said judgment hereunder: “15. It should be appreciated before proceeding further the original orders of detention came to be revoked in Spl.Cri. Application Nos. 289 and 704 of 1990, 377, 745, 747 and 748 of 1991. It therefore becomes clear that in the above said six Spl.Cri.Applications the original orders of detention under COFEPOSA issued against the respective detenus came to be revoked. It is the contention raised by the learned Advocates of the petitioners that a valid order of detention under COFEPOSA is prerequisite for the issuance of the proceedings under SAFEMA. It therefore becomes clear that in the above said six Spl.Cri.Applications the original orders of detention under COFEPOSA issued against the respective detenus came to be revoked. It is the contention raised by the learned Advocates of the petitioners that a valid order of detention under COFEPOSA is prerequisite for the issuance of the proceedings under SAFEMA. In support of their contention, the learned Advocates for the petitioners have invited the attention of this Court to the Supreme Court decision in the case of Union of India v. Haji Mastan (supra). In this decision it has been made clear that in view of section 6(1) of SAFEMA, the action under secs. 6 & 7 of SAFEMA may be taken against only those persons to whom SAFEMA applies. Looking to sub-section (2) of sec.2 of SAFEMA it appears that it applies to every person in respect of whom an order of detention has been made under COFEPOSA, provided that such order of detention has not been set aside by a court of competent jurisdiction. In view of this principle laid down by the Supreme Court in the case of Union of India v. Haji Mastan (supra), it must be accepted that initiation of proceedings under secs. 6 & 7 of SAFEMA pre-suppose a valid order of detention under COFEPOSA. As indicated above, in the aforementioned six petitions, original orders of detention have been revoked. The orders which have been revoked would not stand on a different footing than the orders which are set aside and quashed by the High Court while exercising the jurisdiction under Art.226 of the Constitution of India. This position is clearly obtained from the Supreme Court decision in Ibrahim Bachu Bafan v. State of Gujarat & Ors, AIR 1985 SC 697 . It has been pointed out that when the High Court exercises the jurisdiction under Art.226 of the Constitution of India, it definitely does not make an order of revocation. By issuing a high prerogative writ like Habeas Corpus or Certiorary, High Court quashes the impugned orders before it. It has been pointed out that when the High Court exercises the jurisdiction under Art.226 of the Constitution of India, it definitely does not make an order of revocation. By issuing a high prerogative writ like Habeas Corpus or Certiorary, High Court quashes the impugned orders before it. But as pointed out by the Supreme Court, the ultimate effect of cancellation of an order by revocation and by quashing of the same in exercise of the high prerogative jurisdiction vested within the High Court may be the same but the position as made by the Supreme Court in case of Ibrahim Bachu Bafan (supra) it is clear that the ultimate effect of cancellation of order of detention by the High Court under a high prerogative jurisdiction and the orders of revocation by the Government would be one and the same. It, therefore, shall have to be accepted that in the aforesaid mentioned six petitions, there were no valid orders of detention under COFEPOSA and therefore in absence of valid orders of detention under COFEPOSA the proceedings under SAFEMA could not have been instituted. It would therefore become clear that in the abovesaid six petitions the proceedings under SAFEMA would be bad for the above said reasons alone. 13. It is therefore, clear that the Division Bench of this Court has laid down that the effect of revocation of the order by the State Government and of an order setting aside the said order by a Court will be the same. 14. Now it is very clear that when an order passed by the detaining authority is approved by a competent Government and if the said order is confirmed by the Advisory Board, then the State Government can revoke the said order only under section 11 of the said Act. That is why, the State Government appears to have exercised the said powers of revoking its earlier order of the detaining authority i.e. powers under section 11 of the said Act. At that point of time, the State Government could not have exercised powers under section 2 as those stages had already gone. That is why, the State Government appears to have exercised the said powers of revoking its earlier order of the detaining authority i.e. powers under section 11 of the said Act. At that point of time, the State Government could not have exercised powers under section 2 as those stages had already gone. Therefore, merely because the power to revoke the order under section 11 was exercised by the State Government, it could not be said that the said revocation did not fall within the four corners of section 2 of the said Act and, therefore, the said revocation would not hit the order passed under the SAFEMA. It would not therefore, be possible for this Court to agree with the argument of Ms. Manisha Lavkumar that since the exercise was under section 11 of the said Act, the revocation did not fall within four corners of section 2 of the said Act and, therefore, the said revocation would not affect the scenario and would not affect the validity of an order passed under SAFEMA. 15. In order to support the said contention, Ms Manisha Lavkumar, learned Addl.Standing Counsel has tried to refer to the observations made by this Court during the course of the judgment in this petition in order dated 27.2.1997. The pertinent observation of this Court can be gathered from para 7 thereof. Even the case of Attorney General was also referred by the learned Judge of this Court. 16.On the one hand, this judgment was set aside in Criminal Appeal by the Hon'ble Supreme Court as stated earlier and, therefore, the observations made in the said judgment of this court could not be independently read for the purpose of deciding the present petition. Secondly, the aforesaid decision of 1992 (2) GLR 891 (supra) was specifically cited in the said matter and it seems that despite the said position, this court had come to a finding that revocation under section 11 was not within four corners of section 2 and, therefore, it would not hit the exercise of powers under SAFEMA. Though the said judgment of the Division Bench appears to have been shown to the learned Judge, there appears to be no detailed discussion thereto. On this aspect of the case, learned Sr.Advocate for the petitioner has relied upon a decision in the case of Govt. Though the said judgment of the Division Bench appears to have been shown to the learned Judge, there appears to be no detailed discussion thereto. On this aspect of the case, learned Sr.Advocate for the petitioner has relied upon a decision in the case of Govt. of A.P. v. B. Satyanarayana Rao, reported in (2000) 4 SCC 262 . The pertinent observations made in this decision may be reproduced for ready reference as under: "The rule of per incuriam can be applied where a court omits to consider a binding precedent of the same court or the superior court rendered on the same issue or where a court omits to consider any statute while deciding that issue. This is not the case here. Moreover, a case cannot be referred to a larger Bench on mere asking of a party. A decision by two Judges has a binding effect on another coordinate Bench of two Judges, unless it is demonstrated that the said decision by any subsequent change in law or decision ceases to be laying down a correct law." 17. Another decision cited by him can be gathered from the case of State of U.P. and anr. v. Synthetics and Chemicals Ltd. reported in (1991) 4 SCC 139 . The relevant observations of the Supreme Court from that decision can be reproduced for ready reference: "Incuria" literally means 'carelessness'. In practice per incuriam appears to mean per ignoratium. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratium of a statute or other binding authority'. 18. On the strength of the above observations, it becomes clear that when a judgment of a Division Bench of the same Court is shown, then a Single Judge is required to follow the same. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratium of a statute or other binding authority'. 18. On the strength of the above observations, it becomes clear that when a judgment of a Division Bench of the same Court is shown, then a Single Judge is required to follow the same. In view of the aforesaid two citations of the Hon'ble Supreme Court and in view of the aforesaid decision of the Division Bench of this Court and considering the aforesaid decision of the learned Single Judge referred to hereinabove, I am of the view that this court is required to follow the decision rendered by the Division Bench of this court in 1992 (2) GLR 891 (supra) and, therefore, without further discussion on the subject, I am of the view that when an order based on the provisions of COFEPOSA has been revoked by the appropriate authority or when it has been set aside by a competent court, then there would be no ground in existence for exercising power under SAFEMA. I am also of the view that there cannot be any difference between a withdrawal or revocation of an order under section 11 of the Act and quashing and setting aside of an order by judicial pronouncement of a competent court. It is more so, when a regular petition was filed and detention order under COFEPOSA was challenged and when the court was about to allow the petition and set aside and quash the order of detention then and at that stage, the order of revocation was passed. Therefore, in the aforesaid background, the respondents cannot be heard to argue that the order of revocation passed was under section 11 of the said Act and since it was not an order covered by section 2 of the Act it would hit the order passed under SAFEMA. The net result is that the order under SAFEMA was based on the order under COFEPOSA and when on revocation of the order under COFEPOSA, the base had gone and the super structure could not stand and, therefore, on the above principles when the order passed under COFEPOSA did not stand, then the consequential order under SAFEMA also could not stand at all. Therefore, on this ground, the petition can be allowed and the order under SAFEMA can be set at note.” 9. Therefore, on this ground, the petition can be allowed and the order under SAFEMA can be set at note.” 9. This Court has also considered the decision rendered by the Apex Court in case of Ibrahim Bachu Bafan vs. State of Gujarat, reported in 1985(0) AIJEL-SC 11473 wherein the Apex Court had discussed the meaning of revocation and effect thereto, which is as under: “This leads us to examine the tenability of the submission of Mr. Jethmalani as to the true meaning of the word 'revocation'. 'Revoke' is the verb and 'revocation' is its noun. These words have no statutory definition and, therefore, would take the commonsense meaning available for these words. Black's Law Dictionary gives the meaning of the word 'revoke' to be "the recall of some authority or thing granted or a destroying or making void of some deed that had existence until the act of revocation made it void." Wharton's Law Lexican gives the meaning to be "the undoing of a thing granted or a destroying or making void of some deed that had existence until the act of revocation made it void." The Shorter Oxford English Dictionary gives the meaning of the word 'revocation' to be "the action of recalling; recall of persons; a call or summons to return; the action of rescinding or annulling, withdrawing. The meaning of the word 'revoke' has been given as "to recall, bring back, to restore, to retract, to withdraw, recant, to take back to one-self." The true meaning of the verb 'revoke- and its noun, therefore, seem to signify that revocation is a process of recall of what had been done. According, to the Webster's Third New International Dictionary, the word means-"an act of recalling or calling back, the act by which one having the right annuls Something previously dose According to the Corpus Juris Secudum, 1952 Edition, Vol 77, the word 'revoke' carries with it "the idea of cancellation by the same power which originally acted and not to setting aside of an original order by higher forum Or power or jurisdiction It does not mean repudiation". 10. Considering the said decision, it transpires that when the order is revoked then the effect of the revocation is to rescind or annulling or withdrawing of order. The position would be brought back on revoking the order as if that the order was never in existence. 10. Considering the said decision, it transpires that when the order is revoked then the effect of the revocation is to rescind or annulling or withdrawing of order. The position would be brought back on revoking the order as if that the order was never in existence. Revocation is a process of recall of what had been done. 11. At this stage, submission of learned Additional Public Prosecutor with regard to the antecedent is not required to be considered as antecedent was a result of the PASA order, which was ultimately revoked. Therefore, the PASA order is not subject matter of this petition. Hence, this submission would not come into the rescue of the learned Additional Public Prosecutor. 12. When the original base i.e. the order under the PASA Act had gone, the structure i.e. the impugned FIR could not stand alone. This Court is of the opinion that this case is fully covered in the judgment rendered by the Apex Court in case of State of Haryana Vs. Bhajan Lal, reported in [1992 Supp (1) SCC 335] and therefore, the impugned FIR deserves to be quashed and set aside. 13. Resultantly, this application is allowed. The impugned FIR being II-C.R.No.3023 of 2001 registered with Veraval City Police Station is quashed and set aside with all consequential proceedings. Rule is made absolute accordingly.