- In the case of Azaz s/o Ahmed Ibrahim Ishabhai vs Commissioner of Police the Hon’ble Gujarat HC has held that mere registration of FIR against an accused person cannot be a ground for presuming that he is a threat to society or disturbs all social apparatus. The Court also laid down the distinction between ‘public order’ and ‘law and order’.
- In the instant case, the petitioner was accused of committing offences under sections 363, 366 and 376(2)(n) of IPC and sections 4, 5, 6, 7, 8, 9 and 10 of POCSO Act and under sections 3(2)(5), 3(2)(5-A) and 3(1)W(i) of the Atrocities Act. The present petition was filed against the order of detention passed by the detaining Authority under section 3(2) of the Act of 1985.
- The petitioner contended that the registration of the FIR under the aforementioned sections does not itself bring the case of the detenu within the purview of the definition provided under section 2(ha) of the Gujarat Prevention of Anti-social Activities Act, 1985 (‘the Act’). It was also contended that the illegal activity alleged to be carried out cannot have any nexus with the maintenance of public order, and at the most it can be said to be a breach of law and order.
- The Counsel for the State, on the other hand, contended that sufficient material had been brought on record to indicate that the detenu was in the habit of indulging into the activity as defined under section 2(ha) of the Act and that the detaining authority had rightly passed the detention order, which should be upheld by the Hon’ble HC.
- The Hon’ble HC observed that the satisfaction that had been arrived at by the detaining authority cannot be said to be legal, valid and in accordance with the law, as the offences alleged to have been committed in the FIR cannot have any bearing on the public order, as is required in the Act. The Court also observed that the allegations levelled against the accused cannot be said to be germane for the purpose of bringing the detenu within the meaning of section 2(ha) of the Act.
- The Court also observed that unless there is material on record to suggest that the accused has become a threat so as to disturb the whole tempo of the society and that all social apparatus is in peril, disturbing the public order at the instance of such accused, it cannot be said that the accused was a person within the meaning of section 2(ha) of the Act. The Court went on to observe that except general statements, there was no material on record to show that the detenu was acting in a manner that was dangerous to public order.
- The Court referred to the decision of the Apex Court in Pushker Mukherjee vs State of West Bengal AIR 1970 SC wherein the Apex Court had laid down the distinction between ‘law and order’ and ‘public order’. The Court observed that the contravention of any law always affects the order, but before it can be said to affect public order, it must affect the community or the public at large. A line of demarcation must necessarily be drawn between serious and aggravated forms of disorder which directly affect the community or injure the public interest and the relatively minor breaches of peace of local significance, which primarily injure specific individuals and only in a secondary sense, the public interest.
- In light of the aforesaid discussion, the Hon’ble HC allowed the petition and the order of detention was, thus, quashed.
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