FIR by itself cannot have any nexus with the breach of maintenance of public order: Gujarat High Court

Case Title: Dharmesh @ Dhamo Ashokbhai Rana vs. State of Gujarat

Date of Judgement: 11.11.2022

The Gujarat High Court in a significant order related to “detention” has held that ‘FIR by itself cannot have any nexus with the breach of maintenance of public order.’

In the present case, detenue challenged the order passed by the relevant authority under Prevention of Anti Social Activities Act, 1985 (the Act). 

On 13.09.2022 petitioner was detained under Section 3(2) of Prevention of Anti Social Activities Act, 1985.

Learned Counsel for the petitioner argued that order of detention should be set aside:

•  On the ground of registration of the offences under Sections 452, 354, 323, 506(2) of the IPC and u/s 7, 8 and 18 of the POCSO Act and u/s 135(1) of the G.P. Act. Act by itself cannot bring the case of the detenue within the purview of definition under section 2(ha) of the Act.
• And, illegal activity likely to be carried out or alleged to have been carried out, as alleged, cannot have any nexus or bearing with the maintenance of public order and at the most, it can be said to be breach of law and order.
• Further, except statement of witnesses, registration of above FIR/s and Panchnama drawn in pursuance of the investigation, no other relevant and cogent material is on record connecting alleged anti-social activity of the detenue with breach of public order.

Learned AGP for the respondent State supporting the detention argued that sufficient material and evidence was found during the course of investigation, which was also supplied to the detenue indicate that detenue is in habit of indulging into the activity as defined under section 2(ha) of the Act and considering the facts of the case, the detaining authority has rightly passed the order of detention and detention order deserves to be upheld by this Court.

After hearing both the parties to the case Hon’ble High Court observed that the 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 FIR/s cannot have any baring on the public order as required under the Act and other relevant penal laws are sufficient enough to take care of the situation.

The Hon’ble High Court directed that distinction has to be made between ‘law and order’ and ‘public order’ while dealing with case under Prevention of Anti Social Activities Act, 1985.

It was held that mere “registration of FIR/s 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 power under section 3(2) of the Act”, and hence impugned order of detention is quashed.

Relevant Cases cited in the Judgement:

• Pushker Mukherjee v/s. State of West Bengal [AIR 1970 SC 852]– distinction between ‘law and order’ and ‘public order’
• Syed Sabeena v/s. State of Telangana and Ors., Criminal Appeal No.908 of 2022 (@ SLP (Crl.) No.4260 of 2022

Act in Question: Prevention of Anti Social Activities Act, 1985

CORAM:

HONOURABLE MR. JUSTICE S.H.VORA

HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN