REPORTABLE       

     IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLAT ORIGINAL JURISDICTION

CRIMINAL APPEAL NO. 24 OF 2012 [ARISING OUT OF SLP (CRL.) NO. 6118 OF 2011]

RUSHIKESH TANAJI BHOITE                           Appellant              

VERSUS

STATE OF MAHARASHTRA & ORS.                      Respondents

J U D G M E N T

R.M. Lodha, J.

1. Leave granted.

2. We have heard Dr. A.M. Singhvi, learned senior counsel  

for the appellant, Mr. Shankar Chillarge, learned counsel  

for the State of Maharashtra and Mr. Suhas Kadam, learned  

counsel for the respondent no. 4.

3. On January 10, 2011, the District Magistrate, Jalgaon in  

exercise of the powers conferred upon him by sub-section (1)  

of  Section  3  of  the  Maharashtra  Prevention  of  Dangerous  

Activities  of  Slumlords,  Bootleggers,  Drug  Offenders  and  

Dangerous Persons Act, 1981 (for short 'the 1981 Act') and  

the Government Order Home Department (Special) Mantralaya,  

Mumbai  No.  DDS  1210/Cr-207/SPL-3(B)  dated  31.12.2010

directed  Tanaji  Keshavrao  Bhoite  resident  of  Kishavkunj,  

Bhoite Nagar, Jalgaon to be detained under the provisions of  

the 1981 Act.  This order was followed by another order of  

the same date directing that Tanaji Keshavrao Bhoite shall  

be detained in Central Prison, Nagpur.

4. The legality of the detention order dated January 10,  

2011 was challenged by the present appellant, who is son of  

the detenu, in the Bombay High Court at Aurangabad Bench,  

Aurangabad.  The Division Bench of that Court dismissed the  

Criminal Writ Petition filed by the appellant on May 13,  

2011.  It is from this order that the present appeal, by  

special leave, has arisen.

5. Dr.  A.M.  Singhvi,  learned  senior  counsel  for  the  

appellant urged diverse grounds in challenging the order of  

the High Court.  We do not want to deal with all the grounds  

urged by  Dr. A.M. Singhvi as in our view, appeal deserves  

to  be  allowed  on  the  short  ground  that  we  indicate  

hereinafter.

6. In pursuance of Section 8 of 1981 Act, the detenu was  

supplied with the grounds for detention setting out therein  

particulars of offences and the action taken against him.  

The offences registered against the detenu way back in the  

year 1980 upto the last offence registered on August 14,  

2010 have been noted by the detaining authority in reaching  

at  the  satisfaction  that  the  detenu's  activities  were

prejudicial to the maintenance of public order and he was  

dangerous person within the meaning of Section 2 (b-1) of  

the 1981 Act.  The last criminal case referred to in the  

grounds  is  against  the  detenu  for  the  offences  under  

Sections 143, 147, 323, 504, 506, 353, 427 of the Indian  

Penal Code read with Section 7 of Criminal Law Amendment  

Act read with Section 37 (1)(3) for breach of Section 135  

of the Bombay Police Act, 1951, registered at Dharangaon  

Police Station on August 14, 2010.

7. The  admitted  position  is  that  detenu  was  arrested  in  

connection with the above crime on August 15, 2010 and he  

was released on bail by the Judicial Magistrate, 1st Class,  

Dharangaon on that very day.  One of the conditions imposed  

in the Order of Bail was that the detenu would appear at  

Dharangaon Police Station on every Monday between 10.00 a.m.  

to 12 O'Clock till the charge-sheet was filed.  Later on,  

the  detenu  made  an  application  before  the  Judicial  

Magistrate, 1st Class, Dharangaon seeking relaxation of the  

above condition.  That application was allowed and the above  

condition was relaxed by the concerned Judicial Magistrate  

on January 4, 2011.

8. It  would  be,  thus,  seen  that  the  order  releasing  the  

detenu on bail in the crime  registered on August 14, 2010  

and the order relaxing the bail condition were passed by the

Judicial Magistrate, 1st Class, Dharangaon much before the  

issuance  of  detention  order  dated  January  10,  2011.  

However, the detention order or the grounds supplied to the  

detenu do not show that the detaining authority was aware of  

the bail order granted in favour of the dentenu  on August  

15, 2010.   

9. In  a  case  where  detenu  is  released  on  bail  and  is  

enjoying his freedom under the order of the court at the  

time of passing the order of detention, then such order of  

bail, in our opinion, must be placed before the detaining  

authority to enable him to reach at the proper satisfaction.  

10. In the present case, since the order of bail dated  

August  15,  2010  was  neither  placed  before  the  detaining  

authority at the time of passing the order of detention nor  

the detaining authority was  aware of the order of bail, in  

our  view,  the  detention  order  is  rendered  invalid.   We  

cannot attempt to assess in what manner and to what extent  

consideration of the order granting bail to the detenu would  

have effected the satisfaction of the detaining authority  

but suffice it to say that non-placing and non-consideration  

of the material as vital as the bail order has vitiated the  

subjective decision of the detaining authority.   

11. A three Judge Bench of this Court in the case of  

Rekha vs. State of Tamil Nadu   Through Secretary to Government   and   

Another, reported in (2011) 5 SCC 244, decided recently held  

as under:

“In  this  connection,it  may  be  noted  that  there is nothing on the record to indicate  whether the detaining authority was aware of  the fact that the bail application of the  accused  was  pending  on  the  date  when  the  detention order was passed on 08.04.2010. On  the other hand, in para 4 of the grounds of  detention  it  is  mentioned  that  “Thiru.  Ramakrishnan  is  in  remand  in  crime  No.  132/2010  and  he  has  not  moved  any  bail  application  so  far”.  Thus,  the  detaining  authority was not even aware whether a bail  application of the accused was pending when  he  passed  the  detention  order,  rather  the  detaining  authority  passed  the  detention  order  under  the  impression  that  no  bail  application of the accused was pending but  in similar cases bail had been granted by  the  courts.  We  have  already  stated  above  that no details of the alleged similar cases  has been given. Hence, the detention order  in question cannot be sustained.”

12. In the case of Rekha (supra), the detention order  

was held to be bad as the detaining authority was not aware  

of the fact that the bail application of the detenu was  

pending on the date when the detention order was passed.  

In the present case, the detenu was already released on  

bail but the detaining authority was not aware of the fact  

of grant of bail to the detenu.

13. A reference to the decision of the majority view  

in the case of  Vijay Narain Singh vs.  State of Bihar and  

Others, reported in (1984) 3 SCC 14, may not be out of the  

context.  In paragraph 32 of the Judgment, Venkataramiah,

J. (as His Lordship then was) speaking for the majority  

observed as follows:

“When  a  person  is  enlarged  on  bail  by  a  competent  criminal  court,  great  caution  should  be  exercised  in  scrutinising  the  validity of an order of preventive detention  which is based on the very same charge which  is to be tried by the criminal court.“

14. The other offences referred to in the order of  

detention suffer from remoteness and want of proximity to  

the order of detention.  None of the criminal cases, except  

the offence registered on August 14, 2010, referred to in  

the grounds for detention, can be said to be proximate to  

the order of detention.

15. In view of the above, we are satisfied that the  

order  of  detention  dated  January  10,  2011  cannot  be  

sustained and has to be set aside.  We order accordingly.

16. Appeal is allowed and the order dated May 13, 2011  

passed  by  the  Bombay  High  Court,  Aurangabad  Bench,  

Aurangabad, is set aside.  The detenu – Tanaji Keshavrao  

Bhoite  -  is  ordered  to  be  released  forthwith,  if  not  

required in any other case.

17. In light of the above order, no order is required  

to be passed on the Application for Impleadment and the  

same stands disposed of accordingly.

 ..............................J.

(R.M. Lodha)

..............................J.  (H.L. Gokhale)

New Delhi, January 4, 2012

ITEM NO.201               COURT NO.10             SECTION IIA

           S U P R E M E   C O U R T   O F   I N D I A                          RECORD OF PROCEEDINGS                      Petition(s) for Special Leave to Appeal (Crl) No(s).6118/2011 (From  the  judgement  and  order   dated  13/05/2011  in  CRLWP  No.123/2011 of The  HIGH COURT OF BOMBAY AT AURANGABAD)

RUSHIKESH TANAJI BHOITE                           Petitioner(s)              VERSUS STATE OF MAHARASHTRA & ORS.                       Respondent(s) (With appln(s) for permission to file additional documents and  impleadment  and  permission  to  file  rejoinder  affidavit  and  office report) (FOR FINAL DISPOSAL)

Date: 04/01/2012  This Petition was called on for hearing today.

CORAM :         HON'BLE MR. JUSTICE R.M. LODHA         HON'BLE MR. JUSTICE H.L. GOKHALE

For Petitioner(s) Dr. A.M. Singhvi,Sr.Adv. Mr. Jayant Bhushan,Sr.Adv.

                    Mr. Shivaji M. Jadhav,Adv.

Mr. Anish R. Shah,Adv. Mr. Jayant Bhatt,Adv

Mr. Nishant R Katneshwarkar,Adv.

For Respondent(s) Mr. Shankar Chillarge,Adv. Mr. Asha Gopalan Nair,Adv.

                    Mr. Debasis Misra ,Adv

for Res. No. 4 Mr. Suhas Kadam,Adv. Mr. Debasis Misra,Adv.

          UPON hearing counsel the Court made the following                                O R D E R  

Judgment has been dictated.  Release of full Judgment may  take time.  It is, therefore, directed that following operative  Order may be issued:

“The appeal is allowed and the Order dated  May 13, 2011 passed by the Bombay High Court,  Aurangabad  Bench,  Aurangabad  is  set  aside.  The Detenu – Tanaji Keshavrao Bhoite - is  ordered  to  be  released  forthwith,  if  not

required in any other case.”

(N.K. Goel) Court Master

  (Renu Diwan)     Court Master