Gujarat High Court: In a petition under Article 226 of the Constitution of India for issuance of writ of Certiorari or any other appropriate writ, order or direction, for quashing and setting aside the impugned detention order against the petitioner, the Division Bench of AY Kogje* and Samir J. Dave, JJ. allowed the petition and held that mere registration of FIR by itself cannot have any nexus with the breach of maintenance of public order and the authority could not have taken a recourse under the PASA.
In the matter at hand, a complaint was registered against the petitioner by his wife and mother of the victim and the petitioner is the step-father of the victim. A detention order dated 08-09-2023 was passed by the Police Commissioner, Surat, against the petitioner and he was detained under the provisions of the Gujarat Prevention of Anti-social Activities Act, 1985 (‘PASA’) as a sexual offender for disturbing the ‘public order’ based on solitary offence registered against him.
The Court noted that the petitioner was arrested on 04-09-2023 and enlarged on regular bail on 05-09-2023. The Court referred to Shaik Nazeen v. State of Telangana1 wherein, it was laid down that the “State is not without a remedy, as in case the detenu is much a menace to the society as is being alleged, then the prosecution should seek for the cancellation of his bail and/or move an appeal to the Higher Court. But definitely seeking shelter under the preventive detention law is not the proper remedy under the facts and circumstances of the case.”
The Court said that the matter at hand is a private dispute arising out of the relation between the petitioner (step-father), victim (step-daughter) and the complainant (wife), i.e. within the family and therefore, it cannot be termed as an offence which has disturbed the public order.
Further, the Court referred to Pushkar Mukherjee v. State of W.B., (1969) 1 SCC 10, wherein distinction between ‘law and order’ and ‘public order’ was laid down, and it was said that “every act of assault or injury to specific persons does not lead to public disorder. When two people quarrel and fight and assault each other inside a house or in a street, it may be said that there is disorder but not public disorder.”
Therefore, the Court said that mere registration of FIR by itself cannot have any nexus with the breach of maintenance of public order and the authority could not have taken a recourse under the PASA. The Court also said that no relevant and cogent material existed for invoking power under Section 3(2) of the PASA.
Thus, the Court allowed the petition and the impugned order of detention dated 08-09-2023 was quashed and set aside.
[Premal v. Police Commissioner, 2024 SCC OnLine Guj 856, Decided on 05-02-2024]
*Judgment Authored by: Justice AY Kogje
1. Criminal Appeal No.908 of 2022.
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