Mere Filing Of FIR Not Sufficient To Order Detention Under Gujarat Prevention Of Anti Social Activities Act: HC [Read Judgment]

Gujarat High Court on Wednesday set aside an order of detention passed under the Gujarat Prevention of Anti Social Activities Act, 1985, holding that the disorder caused by commission of an offence may not come under the purview of public disorder, irrespective of the gravity of the offence.

“…it appears 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 and that the allegations as have been levelled against the detenue cannot be said to be germane for the purpose of bringing the detenue within the meaning of section 2(c) of the Act (sic),” Justice S.H. Vora observed.

It may be noted that Section 2(c) of the Act defines a “dangerous person” to mean a person who commits/ attempts to commit/ abets in commission of any of the offences punishable under Chapter XVI or Chapter XVII of the Indian Penal Code or any of the offences punishable under chapter V of the Arms Act, 1959.

The Court further opined that filing of an FIR alone may not be enough to bring the case under the purview of the Act, and observed, “Unless and until, the material is there 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 is in peril disturbing public order at the instance of such person, it cannot be said that the detenue is a person within the meaning of section 2(c) of the Act,”

The Court was hearing a Petition filed by one Mr. Kanji Bhaskarbhai Desai, challenging a detention order passed against him under Section 3(2) of the Act in April this year.

Mr. Desai had submitted that registration of offences under Sections 384 (extortion), 387 (putting person in fear of death or of grievous hurt, in order to commit extortion), 389 (putting person in fear of accusation of offence, in order to commit extortion), 506 (criminal intimidation), 120(B) (criminal conspiracy), 34 (common intention) of the Indian Penal Code cannot, by itself, bring his case under Section 2(c) of the Act. He had further submitted that the activities covered by these provisions cannot have any nexus with the maintenance of public order.

The Court agreed with such contentions, and noted that the detention order was not passed in accordance with law, as the offences alleged in the FIR did not have any bearing on public order, as required under the Act. It observed that there was no material on record to show that the detenue was acting in a manner which was dangerous to public order.

Thereafter, setting aside the order of detention, Justice Vora observed, “I am inclined to allow this petition, because simplicitor 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.”