Subhangi Tukaram Sawant Vs. R.H. Mendonca and ors. - Court Judgment

Excerpt:
criminal - dangerous person - section 2 (b-i) of maharashtra prevention of dangerous activities of slumlords, bootleggers, drug offenders and dangerous persons act, 1981 - interpretation of word 'dangerous person' appearing in section 2 (b-i) - person who habitually commits or attempts to commit offences mentioned either by himself or as member of gang is dangerous person - no necessity of 2 prior convictions before a person could be detained as dangerous person. - - that is to say, the act complained of must be repeated more than once and be inherent in his nature. i cannot also share the view that thecommission of an act referred to in one of the sub-clause (i), sub-clause (ii), sub-clause (iv) of section 2(d) and any other act or omission referred to in any other of the said sub-clauses would not be sufficient to treat a person as an 'anti-social element'.further, 1 do not think it is correct to say that merely because there was an acquittal of such a person, the defining authority cannot take the act complained of leading to his trial into consideration. but i have not found it necessary to deal with them here as they would have become relevant only if i have been satisfied that the petitioner was an antisocial element. state of kerala this court had an occasion to deal with expressions like 'bad habit',habitual',desperate'.dangerous',and 'hazardous'.this court observed that the word habit implies frequent and usual practice. we are not concerned on facts specifically with respect to the very continuity of thread of the repetitive act, but with the aspect of what the terms 'habitually commits' would ultimately mean, in our view, the language that person commits an offence is a language which the court alone can speak and the person until he has been convicted cannot be considered to be a person who has committed the offence, when the repetitive acts of committing offence, which, to our minds, clearly refer to the repetitive, instances of the judgment of conviction recorded against such person, formation of habit, which is the next stage, would not at all occur. in fact, the grounds of detention clearly mention the aforesaid state of affairs and there is no bar for taking these incidents into consideration for the satisfaction of the detaining authority that whether the person is a 'dangerous person' within the ambit of section 2(c) of the act. we, therefore, fail to appreciate the first contention raised by the learned counsel for the petitioner that the satisfaction of the detaining authority that the detenu is a dangerous person is based upon the solitary incidence in respect of which a criminal case has already been registered. in our considered opinion the detaining authority has considered the three different incidents that happened on three different dates and not a solitary incidence and, therefore, the test of repeated ness or continuity of the activity is fully satisfied and the satisfaction of the detaining authority holding the detenu to be a 'dangerous person' is not vitiated in any manner. it may very well be that the executive authorities felt that it was riot possible to obtain a conviction for a particular offence under the official secrets-act; state of west bengal,.in the above case the apex court, in para 11 has held as under :11. it was faintly argued that after the authorities were satisfied that offences of violence like the above had been committed by the detenus, they could have been properly prosecuted in a court of law and since no prosecution was launched against them, the detention was malajide. it may very well be that the executive authorities felt that is was not possible to obtain a conviction for a particular offence under the official secrets act; it might well be that a magistrate trying a particular person under the code of criminal procedure has insufficient evidence before him, and, therefore, has to discharge such a person. but the detaining authorities might well feel that though there was not sufficient evidence admissible under the evidence act for a conviction, the activities of that person, which they had been watching, were of such a nature as to justify an order of detention. besides, the district magistrate, who issued the order is not the only and exclusive authority under the act who has to be satisfied as to the necessity of the order of detention. the act requires him to report the case to the government, who in its turn has to be satisfied, on consideration of all relevant materials before it, that the order is both valid and proper. the authority may prosecute the offender for an isolated act or acts of an offence for violation of any criminal law, but if it is satisfied that the offender has a tendency to go on violating such laws, then there will be no bar for the state to detain him under a preventive detention act in order to disable him to repeat such offences. 134 of 1997, 258 of 1997, 259 of 1997 that in order to describe a person under the act to be dangerous, two or more convictions to his discredit are essential, is not a good law. khan (supra) are concerned, they were dealing with cases under section 110 of code of criminal procedure, wherein habitual offenders are asked to execute bonds for good behaviour only, failing which they could be detained. union of india, the supreme court, in paragraph 7, has clearly held as under :as we they already said, it may not be possible to obtain a conviction for a particular offence: bose, the supreme court, in paragraph 8 of the judgment, has held as under :it might well be that a magistrate trying a particular person under the code of criminal procedure has insufficient evidence before him, and, therefore, has to discharge such a person. but the detaining authorities might well feel that though there was not sufficient evidence admissible under the evidence act for a conviction, the activities of that person, which they had been watching, were of such a nature as to justify an order of detention. the authority may prosecute the offender for an isolated act or acts of an offence for violation of any criminal law, but if it is satisfied that the offender has a tendency to go on violating such laws, then there will be no bar for the state to detain him under a preventive detention act in order to disable him to repeat such offences. 34. before parting with this reference, we would like to refer to certain disturbing aspects as disclosed. act',i would like to enlist some additional reasons. i fail to understand as to how the expressions 'habitually commits or attempts to commit or abets the 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' envisage of conviction in respect of those offences. they clearly do not connote a conviction.s. radhakrishnan, j. 1. in both the above writ petitions, detention orders passed by the first respondent - commissioner of police, brihan mumbai under the provisions of maharashtra prevention of dangerous activities of slumlords. bootleggers, drug offenders and dangerous persons act, 1981 have been challenged and the detenus tukaram bhaskar sawant and raju bhagwan gupta have been described as dangerous persons. earlier both the writ petitions came up before the division bench of this court and in view of the conflicting views of the various division benches of this high court. with regard to the meaning of 'dangerous person' the division bench by its order dated 25th april. 2000 had directed the registrar to seek appropriate orders from the hon'ble chief justice for constituting a larger bench, to resolve the conflict as to whether it is imperative that a person must have to. his discredit two or more convictions before he can be detained as a 'dangerous person', as per section 2(b-i) of the aforesaid m.p.d.a. act. accordingly the present full bench was constituted to resolve the above conflict.2. thus we have heard both the learned counsel exhaustively on the above question of law, that is 'whether it is imperative that a person must have to his discredit two or more convictions before he can be detained as a 'dangerous person' as defined under section 2(b-i) of the maharashtra prevention of dangerous activities of slumlords, bootleggers and drug offenders and dangerous persons act, 1981?'3. shri s.r. chitnis, the learned counsel for the petitioners had strongly contended that before a person can be detained as a dangerous person as per the provisions of the aforesaid m.p.d.a. act, he must have at least two prior convictions, and without the same, he cannot be a dangerous person. the learned counsel in that behalf also strongly relied on the reasoning in support of the said contention in the judgments of division benches from nagpur, in s.k. shamsher v. state of maharashtra, and s.s. chauhan v. state of maharashtra and ors.,.4. the learned counsel for the petitioners at the outset brought to ournotice the provisions of section 2(b-i) of the maharashtra prevention ofdangerous activities of slumlords, bootleggers and drug-offenders anddangerous persons act, 1981 (hereinafter referred to as 'the act') whichdefines 'dangerous person' as under :-'(b-i) 'dangerous person' means a person, who either by himself, or as a member or leader of a gang, habitually commits, or attempts to commit or abets the 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.'secondly, shri chitnis also pointed out the provisions of section 2(c) of the gujarat prevention of anti-social activities act, 1985, which reads as under ;-'(c) 'dangerous person' means a person, who either by himself or as a member or leader of a gang, habitually commits, or attempts to commit or abets the commission of any of the offences punishable under chapter xvi of chapter xvii of the indian penal code or any of the offences punishable under chapter v of the arms act, 1959.' thirdly. shri chitnis brought to our notice the provisions of section 2(d) of the bihar control of crimes act, 1981 which reads as under :-(d) anti-social elements' means a person who is - (i) either by himself or as a member of or leader of a gang habitually commits, or attempts to commit or abets the commission of offences, punishable under chapter xvi or chapter xvii of the indian penal code, or (ii) habitually commits or abets the commission of offences under the suppression of immoral traffic in women and girls act, 1956; or (iii) who by words or otherwise promotes or attempts to promote on grounds of religion, race, language, caste or community or any other grounds whatsoever, feelings of enmity or hatred between different religious, racial or language groups or castes or communities; or (iv) has been found habitually passing indecent remarks to, or teasing women or girls; or (v) who has been convicted of an offence under sections 25, 26. 27, 28 or 29 of the arms act of 1959.' 5. the learned counsel for the petitioners in support of his contention that a 'dangerous person' ought to have at least two prior convictions, before being termed as one, had strongly relied on a supreme court judgment in the case of vijay narain singh v. state of bihar and ors.,. in paragraphs 10, 14 (a. p. sen, j. dissenting) and 34 (venkatramiah, j. in majority) of the judgment the apex court has held as under :-(per a. p. sen, j. dissenting).'10. my learned brother venkataramiah, j. is inclined to give a restricted meaning to the word 'habitually' as denoting 'repetitive' and he is of the view that no order of detention under section 12(2) of the act could be made on the basis of a 'single instance', as a single act cannot be said to be forming the habit of the person. that is to say, the act complained of must be repeated more than once and be inherent in his nature. further, he is inclined to think that action under section 12(2) of the act can only be taken in respect of persons against whom there are verdicts of guilt after the conclusion of trials. according to him, merely on the basis of institution of criminal cases a person cannot be labelled as an anti-social element. i find considerable difficulty in subscribing to either of his views.''14. i also do not see why section 12(2) of the act should be confined in its operation against habitual criminals who have a certain number of prior convictions for offences of the 'character' specified. the definition of 'anti-social element' in section 2(d) of the act nowhere requires that there should be a number of prior convictions of a person in respect of offences of a particular type. i cannot also share the view that thecommission of an act referred to in one of the sub-clause (i), sub-clause (ii), sub-clause (iv) of section 2(d) and any other act or omission referred to in any other of the said sub-clauses would not be sufficient to treat a person as an 'anti-social element'. further, 1 do not think it is correct to say that merely because there was an acquittal of such a person, the defining authority cannot take the act complained of leading to his trial into consideration. it may be that the trial of a dangerous person may end in an acquittal for paucity of evidence due to unwillingness of witnesses to come forward and depose against him out of fright. if a person with criminal tendencies consistently or persistently or repeatedly commits or attempts to commit or abets the commission of offences punishable under chapter xvi dealing with offences affecting human body or chapter xvii dealing with offences against property of the indian penal code, there is no reason why he should not be considered to be an 'anti-social element'.(e.s. venkataramiah, j. in majority).'34. before leaving this case, i should state that a number of decisions were cited before us in which it had been held that an order of detention based on a criminal charge which is still to be tried may not be invalid and that an order granting bail by a criminal court cannot be a bar to the passing of an order of detention. but i have not found it necessary to deal with them here as they would have become relevant only if i have been satisfied that the petitioner was an antisocial element. moreover the orders of detention questioned in those cases were governed by the provisions of the statutes under which they had been issued.'6. the learned counsel for the petitioner also referred to the apex court judgments in the cases of gopalanchari v. state of kerala, and l.h. khan v. m.m. kamble, in support of his contention that before a preventive detention order is passed there must be atleast two convictions. the learned counsel for the petitioner has further placed reliance on ayub v. s.n. sinha, wherein the apex court in paragraphs 5 and 12 has held as under :-'5. now we shall consider whether he comes within the meaning of 'dangerous person' as defined in section 2(c) of the act which reads as under : '2.(c) 'dangerous person' means a person, who either by himself or as a member of or leader of a gang, habitually commits' or attempts to commit or abets the commission of offences, punishable under chapter xvi or chapter xvii or chapter xxii of the indian penal code (45 of 1860), or any of the offences punishable under chapter v of the arms act, 1959 (54 of 1959).'as per this definition, a person, who habitually commits or attempts to commit or abets the commission of offences mentioned therein either by himself or as a member of or leader of a gang is a 'dangerous person'. the expression 'habitually' is very significant. a person is said to be a habitual criminal who by force of habit or inward disposition is accustomed to commit crimes. it implies commission of such crimes repeatedly or persistently and prima facie there should be a continuityin the commission of those offences. in vijay narain singh v. state of bihar,' the majority decision explained the meaning of the word 'habitually' thus:'the expression 'habitually' means 'repeatedly' or 'persistently'. it implies a thread of continuity stringing together similar repetitive acts. repeated, persistent and similar, but not isolated, individual and dissimilar acts are necessary to justify an inference of habit. it connotes frequent commission of acts or omissions of the same kind referred to in each of the said sub-clauses or an aggregate of similar acts or omissions.'rashidmiya @ chhava ahmedmiya shaik shaik v. police commissioner, ahmedabad, is yet another case where the scope of section 2(c) of the act came up for consideration before this court and it is held that (scc p. 326, para 14) : .'therefore, this solitary incident would hardly be sufficient to conclude that the detenu was habitually committing or attempting to commit or abetting the commission of offences.'it is submitted that in the instant case except crime no, 96/90 there is no other, case pending and the other two crimes which are referred to in the grounds ended in acquittal and the definition of 'dangerous person' in section 2(c) does not include cases under the prohibition act. therefore the detenu is not a habitual offender so as to come within the meaning of 'dangerous person'. we find considerable force in this submission. we have gone through the entire record. the learned counsel appearing for the state could not place any material from which it can be inferred that the petitioner was a habitual offender. no doubt a lengthy counter is filed in which it is repeatedly averred in general that the detenu was indulging in prejudicial activities but as already mentioned, only crime no. 96/90 is pending investigation and from this alone we cannot infer that the petitioner is a 'dangerous person' within the meaning of section 2(c) of the act, to satisfy ourselves we have also carefully perused the f.i.r. in crime no. 96/90 and the complaint annexed to the same. the main allegation against the detenu was that he. out of sudden excitement, fired the revolver and as a result of which one mehbub khan received injury on his leg and again he fired a shot into the air and that he and his associates were moving around in a jeep threatening the people in the area. but in the order passed by the learned sessions judge on march 13, 1990 while releasing the petitioner on bail, it is noted that the said mehbub khan had no fire-arm injury at all and as a matter of fact, the public prosecutor conceded the same . the learned sessions judge has also noted that no medical evidence is produced to prove that anyone was injured during the alleged occurrence. if such is the only crime pending in which the detenu is alleged to have participated, it can by no stretch of imagination be said that he comes within the meaning of 'dangerous person' and the conclusions drawn by the detaining authority and benefit of sufficient material as required under section 2(c) of the act. this betrays non application of mind by the detaining authority. consequently, the grounds on which the detention order is passed, are irrelevant and non-existing. these are the reasons which weighed with us for not upholding the detention.'7. shri chitnis, the learned counsel for the petitioners had also referred to yet another apex court judgment in the case of abdul razaknannekhan pathan v. police commissioner,' similarly the learned counsel also strongly relied upon the apex court judgment in the case of mustakmiya jabbarmiya shaikh v. m.m. mehta., wherein the apex court in paras 8 and 12 has held as under :-'8. the act has defined 'dangerous person' in clause (c) of section 2 to mean a person who either by himself or as a member or leader of a gang habitually commits or attempts to commit or abets the commission of any of the offences punishable under chapter xvi or chapter xvii of the penal code or any of the offences punishable under chapter v of the arms act. the expression 'habit' or 'habitual' has however, not been defined under the act. according to the law lexicon by p. ramanatha aiydr. (1987) re edn. 499, 'habitually' means constant, customary and addicted to specified habit and the term habitual criminal may be applied to anyone who has been previously convicted of a crime to the sentences and committed to prison more than twice. the word 'habitually' means 'usually' and 'generally'. almost similar meaning is assigned to the word 'habit' in aiyar's judicial dictionary. 10th edn. p. 485. it does not refer to the frequency of the occasions but to the invariability of practice and the habit has to be proved by totality off acts. it, therefore, follows that the complicity of a person in an isolated offence is neither evidence nor a material of any help to conclude that a particular person is a 'dangerous person' unless there is material suggesting his complicity in such cases which lead to a reasonable conclusion that the person is a habitual criminal. in gopalanchari v. state of kerala this court had an occasion to deal with expressions like 'bad habit', 'habitual', 'desperate'.'dangerous', and 'hazardous'. this court observed that the word habit implies frequent and usual practice. again in vijay narainsinghv. state of bihar this court construed the expression habitually to mean repeatedly or persistently and observed that it implies a thread of continuity stringing together similar repetitive acts but not isolated, individual and dissimilar acts and that repeated, persistent and similar acts are necessary to justify an inference of habit. it, therefore, necessarily follows that in order to bring a person within the expression 'dangerous person' as defined in clause (c) of section 2 of the act, there should be positive material to indicate that such person is habitually committing or attempting to commit or abetting the commission of offences which are punishable under chapter xvi of chapter xvii of i.p.c. or under chapter v of the arms act and that a single or isolated act falling under chapter xvi or chapter xvii of i.p.c. or chapter v of arms act cannot be characterised as a habitual act referred to in section 2(c) of the act.''12. the alleged incident dated 12.8.1994 relating to the beating of some person on suspicion that he was informing the police about criminal activities of the petitioner, the allegation is sweeping without any material to support it. neither any timely report appears to have been made about it to the police nor any offence appears to have been registered against the detenu-petitioner concerning the said incident. there remains the solitary incident dated 10.8.1994 pertaining to the alleged beating of a businessman which is said earlier directed was against an individual having no adverse impact on publicat large. besides, the solitary incident dated 10.8.1994 alone would not provide a justification to hold that the petitioner was habitually committing or attempting to commit or abetting the commission of offences as contemplated in section 2(c) of the act because the expression habitually postulates a thread of continuity in the commission of offence repeatedly and persistently. however, in our considered opinion none of the aforementioned two incidents can be said to be incidents affecting public order nor from these stray and causal acts the petitioner can be branded as a dangerous person within the meaning of section 2(c) of the act, who was habitually engaged in activities adversely affecting or likely to affect adversely the maintenance of public order. similar is the position with regard to the recovery of .32 bore country-made revolver from the possession of the petitioner without any permit or licence which is an offence under section 25 of the arms act. the said revolver was found to be rusty and had a broken barrel. mere possession of a firearm without anything more cannot bring a case within the ambit of an act affecting public order as contemplated in section 3 of the act unless ingredients of section 2(c) of the act are also made out. from the facts discussed above it turns out that there was no material which may lead to a reasonable and definite conclusion that the detenu - petitioner was habitually engaged in criminal activities and, therefore, a dangerous person. the detaining authority thus passed the impugned order of detention against the petitioner without application of mind on the aforesaid aspects of the case and, therefore, the detention order could not be sustained.'8. the learned counsel for the petitioner had also referred to the judgment of nagpur bench of this high court in s.k. samsher v. state of maharashtra, holding that there must be previous convictions, before any preventive detention order could be passed. the learned counsel had also placed reliance on the judgment of the nagpur bench of this high court following the aforesaid view in the case of sanjay s. chauhan v. state of maharashtra and ors., wherein in paras 5, 6 and 7 it is held as under:-'5. as could be seen from the grounds, which were served on the petitioner before passing the detention order, it appears that in those grounds there was no mention of a single incident of the petitioner having received a conviction for any of the offences. the cases which have been reported to have been filed against the petitioner refer to the allegations about commission of the offences under section 324 r/w 34 of indian penal code and another case involving an offence under section 324 r/w of 34 i.p.c.. all these cases are said to be pending against the petitioner and have not been so far concluded.6. with this result, the petitioner contended that in the absence of any conviction recorded by the competent court against him and in the absence of there being any repeated convictions within the requisite proximity of time, the petitioner could not have been described by habit to commit offence or to abet the commission of the offence or to attempt to commit such offences under chapters xvi or xvii of the indian penal code or under chapter v of the arms act, therefore, the petitioner should not have been described as a dangerous person so as to attract his activityfor being further described as prejudicial to the public order within the meaning of the act.7. we had an occasion to follow the observations of the supreme court in the case of mustakmiya v. m. m. mehta (cited supra) again cited before us today. in that case similar situation arose and while assigning the meaning to clause (c) of section 2 of the gujarat prevention of anti-social activities act, 1985, which also specifically defines 'dangerous person'. their lordships of the supreme court were pleased to assign a meaning to the said phrase as defined in a similar manner in the said act and observed that a distinction had to be drawn between the law and order and maintenance of public order because most often the two expressions were confused and detention orders were passed by the authorities concerned in respect of the activities of a person which exclusively fall within the domain of law and order and which had nothing to do with the maintenance of public order. having so said, one judgment further proceed to throw light on the expression acting in any manner prejudicial to the maintenance of public order and in ascertaining the meaning of such phrase in the context of the said legislation, the court was further pleased to examine the definition in clause (c) of section 2 of the said act, which means a person who either by himself or as a member or leader of a gang habitually commits or attempt to commit or abets the commission of any offence punishable under chapter xvi or xvii of the penal code or any of the offences punishable under chapter v of the arms act. the phrase and the context in which the said phrase occurred and the purpose for which the said phrase was required to be defined in the said act stands identical in the similar manner under provisions of the maharashtra act, which is for consideration before us. that the provisions are pari materia, is obviously not debated before us and while ascertaining the meaning of similar phrase, viz., public orders, and a dangerous person as defined in the act, the supreme court observed that the term habitual criminal may be applied to any one, who has been previously convicted of a crime to the sentences and committed to prison more than twice, the word habitually means usually and generally city of a person in an isolated offence was neither the evidence nor material of any help to conclude that a particular person was a dangerous person unless there were to be a material suggesting his complicity in such cases which lead to a reasonable conclusion that the person was a habitual criminal. referring to the earlier decision, the supreme court also observed that the court construed the expression habitually to mean repeatedly or persistently and observed that it implied a thread of continuity stringing together similar repetitive act to justify the description of habit. it also then explained in para 8 of its judgment the meaning to be assigned to the phrase 'habitually' and then it recorded the meaning of the phrase habitually as stated in the law lexicon by p. ramanatha aiyar, reprint edition 1987 page 499 to mean constant, customary and addicted to specified habit and the term habitual criminal may be applied to any one who has been previously convicted of a crime to the sentences and committed to prison more than twice. having thus referred to the meaning assigned to the terms habitual the court then observed that it followed from the description of those meaning that the complicity of a person inan isolated offence was neither the evidence nor a material of any help to conclude that a particular person was a dangerous person, unless there were to be a material suggesting his complicity in such cases which lead to a reasonable conclusion that the person was a habitual criminal. we are not concerned on facts specifically with respect to the very continuity of thread of the repetitive act, but with the aspect of what the terms 'habitually commits' would ultimately mean, in our view, the language that person commits an offence is a language which the court alone can speak and the person until he has been convicted cannot be considered to be a person who has committed the offence, when the repetitive acts of committing offence, which, to our minds, clearly refer to the repetitive, instances of the judgment of conviction recorded against such person, formation of habit, which is the next stage, would not at all occur. in other words. in our view, unless a person is legally said to have committed an offence, on the strength of the judgment of conviction recorded against him, the person cannot be said to have committed the offence,, when a judgment of conviction thus follows and when because of the conduct of a person there are repetitive instances of conviction by the court in respect of the specified offences, the person so convicted can be described to be a person by habit committing the offences. the court further examined that even remote or not proximate instances of previous convictions would not be enough to establish the practice, unless there were to exist between the instances of such previous convictions, a proximity of conduct, continuity of conduct ortheact', and, thus enabled the court to infer that the instances of conviction in past were suggestive of a practice being followed an act being continued so as to attract description of it being a 'habit' of a person. when this is the meaning, which is available to be assigned to the phrase by habit committing the offences, we find it clear that in the absence of any or even a single instance of conviction shown in the grounds furnished to the petitioner, there is no precedence of he being found to have committed the offences specified in the act (chapters xvi or xvii of the indian penal code and chapter v of the arms act). thus when there was no material to indicate that the petitioner was convicted for any such offence, the petitioner could not have been described to have committed offence. if he could not be described to have committed the offence (for want of regular conviction), there arose no question of he forming a habit and when habit was not there, the allegations made against the petitioner were only indicative of the fact that on the strength of allegation followed by investigation only the charge-sheets were filed against him and till a person is found guilty of the offences involved in those charge-sheets by is proof beyond doubt about allegations, he could not have been described to be a person committing the offences we feel clear about this interpretation to be assigned to the term dangerous person and thus his activities being further considered to be prejudicial ,to the public order, envisaged under the act, incidentally, during the course of discussion before us, a hypothetical illustration came to be referred that in the event of there being 5 or 6 false cases filed against a person in which mere chargesheets are filed and cases are pending would such person come to be described as by habit committing the offences and then entail arigorous liability of being under the effect of such preventive legislation so as to describe him to be a dangerous person, we are afraid, and we must hasten to observe that habit can be established and the habit can be inferred not on the strength of repeated allegations but on the strength of judicial finding, which alone is the assurance and the guarantee to come forward with a finding that a person is dangerous because by habit be was shown to have indulged in repeatedly committing the offences specified in the act and when such factual situation poses before the detaining authority, the detaining authority can satisfy that there was a case for apprehension that he could continue to indulge in such habit, and therefore, prevention was necessary till then this harsh power, we are afraid, would not be available for use against a person who has not been repeatedly found guilty by criminal court upon proof of the allegations'.9. the learned counsel for the petitioners had also placed reliance on the judgment of the apex court in the case of amanulla khan kudeatalla khan pathan v. state of gujrat and others, wherein in para 4 the apex court has held as under :-'4. mr. anil kumar nauriya, the learned counsel appearing for the detenu in this court reiterated the same contention namely that a single incident in which the detenu is alleged to be involved and for which the criminal case had been registered will not be sufficient to hold the detenu to be a 'dangerous person' under section 2(c) of the act inasmuch as the expression 'dangerous person' has been defined to be a person who either by himself or as a member or leader of a gang, during a period of three successive years, habitually commits, or attempts to commits or abets the commission of any of the offences punishable under chapter xvii of the indian penal code or any of the offences punishable under chapter v of the arms act, 1959. in other words according to the learned counsel unless the activities of the detenu considered by the detaining authority indicate that he has either habitually committed or attempted to commit or abet the commission of offence, he cannot be held to be a 'dangerous person' under section 2(c) of the act. the expression 'habitually' would obviously mean repeatedly or persistently. it supplies (sic implies) the threat of continuity of the activities and, therefore, as urged by the learned counsel for the petitioner an isolated act would not justify an inference of habitual commission of this activity. in this view of the matter the question that requires adjudication is whether the satisfaction of the detaining authority in the present case is based upon the isolated incident for which the criminal case was registered or there are incidents more than one which indicate a repeated and persistent activity of the detenu. if the grounds of detention are examined from the aforesaid standpoint, it is crystal, clear that apart from the criminal case which had been registered against the detenu for having formed a gang and hatched a conspiracy to extort money from the innocent citizens by threatening them and keeping them under constant fear of death, the two witnesses examined by the detaining authority narrated the incident that happened on 26.7.1998 and 2.8.1998 in which the detenu was involved and on the first occasion a sum of rs. 1 lakh was demanded and when the person concerned refused, he was dragged and assaulted and on the second occasion a sum of rs. 50 thousand was demanded and onrefusal, the persons were dragged on the road and were beaten on the public road. it is not the grievance of the detenu that the statements of the aforesaid two witnesses had not been appended to the grounds of detention or had not been mentioned in the grounds of detention. in fact, the grounds of detention clearly mention the aforesaid state of affairs and there is no bar for taking these incidents into consideration for the satisfaction of the detaining authority that whether the person is a 'dangerous person' within the ambit of section 2(c) of the act. we, therefore, fail to appreciate the first contention raised by the learned counsel for the petitioner that the satisfaction of the detaining authority that the detenu is a dangerous person is based upon the solitary incidence in respect of which a criminal case has already been registered. in our considered opinion the detaining authority has considered the three different incidents that happened on three different dates and not a solitary incidence and, therefore, the test of repeated ness or continuity of the activity is fully satisfied and the satisfaction of the detaining authority holding the detenu to be a 'dangerous person' is not vitiated in any manner. the contention of the learned counsel for the petitioner therefore stands rejected'.in the light of the above judgment, the learned counsel for the petitioner has strongly reiterated his contention that before a preventive detention is passed against a dangerous person under the said m.p.d.a act, the said person must have atleast two prior convictions.10. ms. tahilramani, the learned public prosecutor appearing on behalf of the state had formulated certain broad submissions, as under:-(a) m.p.d.a. act is basically a preventive detention law. (b) habitually commits or attempts to commit, as such no conviction is visualised. (c) there is no supreme court decision which lays down that there should be a prerequisite of a previous conviction, before passing an order for preventive detention with regard to a 'dangerous person'. (d) preventive detention law is meant to prevent the commission of serious crimes and to protect the society, (e) individual liberty may have to be curtailed to protect the larger interests and safety of society. 11. the learned public prosecutor has also referred to and relied on the statement of objects and reasons before the amendment was made on 18.3.1996, regarding 'dangerous person' in the aforesaid m.p.d.a. act.12. the learned public prosecutor in support of her submission that there is no necessity of a previous conviction before preventive detention order is passed, relied on the supreme court judgment in the case of sahib singh dugal v. union of india,'. in para 7 of the said judgment the apex court has held as under :-'the next contention on behalf of the petitioners is that the order is mala fide. the reason for this contention is that it was originally intended to prosecute the petitioners under section 3 of the official secrets act and when the authorities were unable to get sufficient evidence to obtain a conviction they decided to drop the criminal proceedings and to order the detention of the petitioners. this by itself is not sufficient to lead to the inference that theaction of the detaining authority was mala fide. it may very well be that the executive authorities felt that it was riot possible to obtain a conviction for a particular offence under the official secrets-act; at the same time they might reasonably come to the conclusion that the activities of the petitioners which had been watched for over two years before the order of detention was passed were of such a nature as to justify the order of detention. we cannot infer merely from the fact that the authorities decided to drop the case under the official secrets act and thereafter to order the detention of the petitioners under the rules that the order of detention was mala fide. as we have already said, it may not be possible to obtain a conviction for a particular offence; but the authorities may still be justified in ordering detention of a person in view of his past activities which will be of a wider range than the mere proof of a particular offence in a court of law. we are not therefore prepared to hold. that the orders of detention in these cases were mala fide.'13. in support of her submissions the learned public prosecutor had also relied on the supreme court judgment in the case of debu ghose v. state of west bengal,. in the above case the apex court, in para 11 has held as under :-' 11. it was faintly argued that after the authorities were satisfied that offences of violence like the above had been committed by the detenus, they could have been properly prosecuted in a court of law and since no prosecution was launched against them, the detention was malajide. there is no substance in this argument. in the first place, we do not know whether the authorities could have obtained sufficient evidence against the petitioners for successfully prosecuting them in the ordinary course. there are decided cases in which the detention order has been upheld even after a prosecution was lunched but was withdrawn before the detention was made. it has been held that a mere decision to drop a prosecution before passing an order of detention cannot be regarded as mala fide. see sahib singh dugal v. union of india. 'it may very well be that the executive authorities felt that is was not possible to obtain a conviction for a particular offence under the official secrets act; at the same time they could reasonably come to the conclusion that the activities of the petitioners which had been watched for over two years before the order of detention was passed were of such a nature as to justify the order of detention.' 14. in support of her submission as to the preventive detention order passed after a discharge is valid, the learned public prosecutor had placed reliance upon supreme court judgment in the case of m.s. khan v. c.c. bose, wherein in paras 8 and 10 the apex court has held as under :-'8. since the petitioner was arrested on may 26, 1971 in connection with the criminal proceedings taken against him in relation to the very incidents which were also the subject-matter on which the impugned detention order was passed and there was some doubt as to whether he was in jail in connection with those proceedings on the day when the impugned order was passed, i.e. on june 18, 1971, we asked the state government to furnish us further particulars both as regard the said criminal proceedings and his whereaboutsof june 18, 1971. the further particulars furnished by the government show that the petitioner was arrested on may 26. 1971 in connection with the said incidents and was produced the next day before the magistrate. alipore. the petitioner remained in jail thereafter as an under trial prisoner until june 14, 1971, when the magistrate granted him bail and released him from jail custody. on june 18, 1971, the magistrate discharged the petitioner of the charges against him presumably on the ground that there was not adequate or satisfactory evidence against him. thus, the petitioner was at large on june 18 1971 when the impugned order detaining him was passed by the district magistrate. the mere fact, however, that criminal proceedings in connection with the same incidents had been adopted against the petitioner and he had been discharged by the trying magistrate does not mean that no valid order of detention could be passed against him in connection with those very incidents, or that such an order can for that reason be characterised as mala fide. it might well be that a magistrate trying a particular person under the code of criminal procedure has insufficient evidence before him, and, therefore, has to discharge such a person. but the detaining authorities might well feel that though there was not sufficient evidence admissible under the evidence act for a conviction, the activities of that person, which they had been watching, were of such a nature as to justify an order of detention. from the mere fact, therefore, that the magistrate discharged the petitioner from the criminal case lodged against him it cannot be said that the impugned order was incompetent, nor can it be inferred that it was without a basis or mala fide.'in para 10 the apex court has held as under :-'10. there are two difficulties at least in sustaining such a contention. the first is that assuming that the particular file referred to by mr. gupta did not contain the information regarding the said discharge order passed by the magistrate trying the said criminal case against the petitioner, that fact cannot necessarily mean that the district magistrate did not otherwise have that information. the second difficulty is that under the act the subjective satisfaction, which is the basis for an order under it, is that of the relevant district magistrate and not of a court of law, and for that reason the court is precluded from going into the question as to the adequacy or otherwise of the materials on which such satisfaction has been reached. besides, the district magistrate, who issued the order is not the only and exclusive authority under the act who has to be satisfied as to the necessity of the order of detention. the act requires him to report the case to the government, who in its turn has to be satisfied, on consideration of all relevant materials before it, that the order is both valid and proper. there is next the advisory board which has to consider once again all the relevant materials including the representation made by a detenu and has to give a personal hearing to him, if he so desires. it is, therefore, not possible to say that the detaining authorities did not have before them all the relevant materials before each of them passed its respective order. the very fact that the impugned order was made on the very day that the petitioner was discharged in the said criminal case would prima facie indicate, that the district magistrate discharge and hence passed the impugned order believing it to be necessary for preventing the petitioner from acting in a manner prejudicial to the maintenance of public order. it is, thus, impossible to say that the district magistrate was inducedto make the impugned order without his being aware of the said case and the discharge order passed therein by the trying magistrate.15. the learned public prosecutor had further relied on the supreme court judgment in support of her submissions that prosecution or its absence is no bar for an order of preventive detention, in the case of smt. hemlata kantilal shah v. state of maharashtra,' the apex court has held as under :'21. the rule laid down is that a prosecution or the absence of it is not an absolute bar to an order of preventive detention; the authority may prosecute the offender for an isolated act or acts of an offence for violation of any criminal law, but if it is satisfied that the offender has a tendency to go on violating such laws, then there will be no bar for the state to detain him under a preventive detention act in order to disable him to repeat such offences. what is required is that the detaining authority is to satisfy the court that it had in mind the question whether prosecution of the offender was possible and sufficient in the circumstances of the case. in some cases of prosecution it may not be possible to bring the culprit to book as in case of a professional bully, a murderer or a dacoit. witnesses do not come forward to depose against him out of fear, or in case of international smuggling, it may not be possible to collect all necessary evidence without unreasonable delay and expenditure to prove the guilt of the offender beyond reasonable doubt.'16. in support of her submission ms. tahilramani had submitted that the purpose of prosecution and the object of preventive detention are entirely different. the learned public prosecutor in that behalf had relied upon the apex court judgment in the case of h. saha v. state of west bengal. in paras 19 and 32, the apex court has held as under :-'19. the essential concept of preventive detention is that the detention of a person is not to punish him for something he has done but to prevent him from doing it. the basis of detention is the satisfaction of the executive of a reasonable probability of the likelihood of the detenu acting in a manner similar to his past acts and preventing him by detention from doing the same. a criminal conviction on the other hand is for an act already done which can only be possible by a trial and legal evidence. there is no parallel between prosecution in a court of law and a detention order under the act. one is a preventive act. in one case a person ts punished to prove (sic on proof of) his guilt and the standard is proof beyond reasonable doubt whereas in preventive detention a man is prevented from doing something which it is necessary for reasons mentioned in section 8 of the act to prevent.' in para 32 of apex court has held as under :-'32. the power of preventive detention is qualitatively different from punitive detention. the power of preventive detention is a precautionary power exercised in reasonable anticipation. it may or may not relate to an offence. it is not a parallel proceeding. it does not overlap with prosecution even if it relied on certain facts for which prosecution may be launched or may have been launched. an order of preventive detention may be made before orduringprosecution. an order of preventive detention may be made with or without prosecution and in anticipation or after discharge or even acquittal. the pendency of prosecution is no bar to an order of preventive detention. an order of preventive detention is also not a bar to prosecution.17. the learned public prosecutor has strongly placed reliance upon the supreme court judgment in the case of dhanji ram sharma v. superintendent of police,'. in paras 7 and 8 the apex court has held as under :-'7. a habitual offender or a person habitually addicted to crime is one who is a criminal by habit or by disposition formed by repetition of crimes. reasonable belief of the police officer that the suspect is a habitual offender or is a person habitually addicted to crime is sufficient to justify action under rules 23.4(3)(b) and 23.9(2). mere belief is not sufficient. the belief must be reasonable, it must be based on reasonable grounds. the suspect may ornery not have been convicted of any crime, even apart, from any conviction, there may be reasonable grounds for believing that he is a habitual offender'.further the apex court in the above judgment has held in para 8 as under :-'8. the question, therefore, is whether the respondents had reasonable grounds for believing that the appellant was a habitual offender or a person habitually addicted to crime. the appellant was charged with crime on three occasions for the offence of forging railway tickets and receipts. in the first case, he was discharged for want of evidence. in the second case, he was convicted by the trial court, but the conviction was set aside by the high court. in the third case, the appellant was discharged by the court on the ground that the court had no jurisdiction to try the case. so far, the appellant has not been convicted of any crime. but the second respondent filed an affidavit stating that the police administration has definite information about the unlawful activities of the appellant and on such information the respondents reasonably believed that he was a habitual offender indulging in the nefarious trade of forging railway tickets and receipts. the first respondent filed a supporting affidavit adopting this statement. the grounds of this belief are to be found in the information collected in the history sheet of the appellant. the history sheet was referred to in the affidavits, and the respondents swore that from the information at their disposal they reasonably believed the appellant to be a habitual offender. on the special facts of this case, the high court accepted this statement and did not think it necessary to call upon the respondents to supply the details of their information or to produce the history sheet. we are unable to say that the high court erred in the appreciation of evidence, or that its judgment should be reversed.'18. ms. tahilramani, the learned public prosecutor, in the light of the above judgments cited by her, strongly contended that the supreme court has repeatedly held that a preventive detention order could be passed even without a successful prosecution. she contended that none of the judgments of the supreme court cited by the learned counsel for the petitioner lays down that a prior conviction of an offence is a prerequisite, before passing of an order of preventive detention.19. ms. tahilramani had also relied upon another division bench judgment from nagpur bench in raju shivaji thakre v. state of maharashtra,' along with four other petitions, wherein the division bench has not agreed with the earlier two nagpur division bench judgments holding that there must be at feast two prior convictions, before passing of an order of preventive detention. in that behalf, it is relevant to quote para 11 of the said judgment:-'11. in view of the above referred apex court decision, the view taken by this court in criminal writ petition nos. 134 of 1997, 258 of 1997, 259 of 1997 that in order to describe a person under the act to be dangerous, two or more convictions to his discredit are essential, is not a good law. in our view, habitual offender or a person habitually addicted to crime is one who is a criminal by habit or by disposition formed by repetition of crimes. we, therefore, find no merit in the submission made by mr. jaiswal, the learned counsel for the petitioners, that unless there are two or more convictions to the discredit of the detenu, he cannot be described as a 'dangerous person'.20. now let us analyse all the judgments of the supreme court cited by the learned counsel for the petitioners, whether there is any proposition that prior to passing of an order of preventive detention, there ought to be atleast two prior convictions.21. in the first judgment cited by the learned counsel for the petitioners. viz. vijay narain singh (supra) the majority view nowhere lays down that there must be previous convictions before passing an order of preventive dentention. the minority view of a. p. sen j. no doubt proceeds on an assumption that the majority view has held that a preventive detention order can be passed only after verdicts of guilt after the conclusion of trials. therefore the case of vijay narain singh will be of no help to the petitioners.22. as far as gopalanchari (supra) and l. h. khan (supra) are concerned, they were dealing with cases under section 110 of code of criminal procedure, wherein habitual offenders are asked to execute bonds for good behaviour only, failing which they could be detained. these are not strictly preventive detention orders, hence have no application in the present cases.23. similarly. in ayub v. s. n. sinha (supra) the supreme court has held that a solitary incident would not amount to habitually committing offences. in this case also there is no prior conviction. in the case of abdul razak nannekhan pathan v. police commissioner, there was a single conviction, but the grounds were held to be vague. in this case also the supreme court does not lay down that there must be prior convictions before an order of preventive detention.24. the learned counsel for the petitioners had strongly relied on mustakmiya jabbarmiya shaikh v. m. m. mehta,, as the same was strongly relied upon by the aforesaid two division bench judgments of nagpur bench. we have very carefully persued the judgment. in paragraph 8, thelearned judges have only quoted law lexicon of p. ramanatha iyer to the effect that the term habitual criminal may be applied to anyone who has been previously convicted of a crime arid committed to prison more than twice. thereafter the learned judges have referred to aiyar's judicial dictionary. after that the learned judges conclude as under :-'it therefore follows that the complicity of a person in an isolated offence is neither evidence nor a material of any help to conclude that a particular person is a 'dangerous person' unless there is material suggesting his complicity in such cases which lead to a reasonable conclusion that the person is a habitual criminal.'in the said judgment, the supreme court has nowhere held that there must be two prior convictions before passing of an order of preventive detention. the views quoted from law lexicon and judicial dictionary are that of the respective authors. the supreme court has nowhere indicated that they are also of the same view. therefore, mere quotations from learned authors could not substitute the view of the supreme court. we do not find anywhere in the said judgment, the supreme court has laid down the proposition that there must be two prior convictions before passing of an order of preventive detention.25. the next case relied upon by the learned counsel for the petitioners was amanulla khan (supra), wherein the supreme court has held that a solitary criminal case registered against a person would not make him a habitual offender. hence the said case would be of no assistance to the learned counsel.26. on the contrary, the learned public prosecutor had cited various authorities cited hereinabove. in support of her contention that there is no need of two prior convictions before passing of an order of preventive detention. as rightly pointed out by the learned public prosecutor, in the case of preventive detention law, what is visualised is habitual commission or attempt to commit and nor a prior conviction.27. in sahib singh dugal v. union of india, the supreme court, in paragraph 7, has clearly held as under :-'as we they already said, it may not be possible to obtain a conviction for a particular offence: but the authorities may still be justified in ordering detention of a person in view of his past activities which will be of a wide range than the mere proof of a particular offence in a court of law.'28. similarly, in debu ghose v. state of west bengal, the supreme court, in paragraph 11, has held as under :-'in the first place, we do not know whether the authorities could have obtained sufficient evidence against the petitioners for successfully prosecuting them in the ordinary course. these are decided cases in which the detention order has been upheld even after a prosecution was launched but was withdrawn before the detention was made.'29. in m. s. khan v. c. c. bose, the supreme court, in paragraph 8 of the judgment, has held as under :-'it might well be that a magistrate trying a particular person under the code of criminal procedure has insufficient evidence before him, and, therefore, has to discharge such a person. but the detaining authorities might well feel that though there was not sufficient evidence admissible under the evidence act for a conviction, the activities of that person, which they had been watching, were of such a nature as to justify an order of detention.'30. again in smt hemlata kantilal shah v. state of maharashtra.' the supreme court, in paragraph 21 of its judgment, has held as under :-'the rule laid down is that a prosecution or the absence of it is not an absolute bar to an order of preventive detention; the authority may prosecute the offender for an isolated act or acts of an offence for violation of any criminal law, but if it is satisfied that the offender has a tendency to go on violating such laws, then there will be no bar for the state to detain him under a preventive detention act in order to disable him to repeat such offences.'31. in h. saha v. state of west bengal., the supreme court, in paragraph 19 of its judgment, has held as under :-'the essential concept of preventive detention is that the detention of a person is not to punish him for something he has done but to prevent him from doing it. the basis of detention is the satisfaction of the executive of a reasonable probability of the likelihood of the detenu acting in a manner similar to his past acts and preventing him by detention from doing the same. a criminal conviction on the other hand is for an act already done which can only be possible by a trial and legal evidence.'32. on the contrary, the aforesaid two division bench judgments in s. k. shamsher v. state of maharashtra (supra) and s. s. chavan v. state of maharashtra & ors. (supra) of nagpur bench proceed on an erroneous assumption that in mustakmiya jabbarmiya shaikh (supra) the supreme court has held that there must be two prior convictions, before passing an order of preventive detention. even otherwise the reasoning that unless and until there is a conviction, no habit can be inferred and that the same can be inferred only after two judicial decisions resulting in convictions, cannot be sustained in law. if the above reasoning is accepted, it will lead to a preposterous situation, since two prior convictions will take a number of years and till then the person concerned can continue to indulge in such crimes with impunity. the proximity aspect before passing a detention order will also be lost. the reasoning that a person is said to have committed an offence only after a conviction, is totally irrational and the same cannot be sustained. the above reasoning would render the preventive detention law totally nugatory and meaningless. we find the above reasoning totally meaningless and patently contrary to various supreme court decisions cited herelnabove. as observed by the supreme court in various decisions, the authorities may not be able to secure convictions at all, but that does not mean no preventive detention order could be passed.33. under the aforesaid circumstances; for the reasons set out herein-above, we unequivocally answer the question of law referred to us in the negative, that is to say that there is no necessity of two prior convictions.before a person could be detained as a 'dangerous person' as per section 2(b-i) of m.p.d.a. act. we further hold that the division bench decisions of this court in s. k. shamsher v. state of maharashtra, sanjay s. chauhan v. state of maharashtra and ors. and m. y. pathan v. state of maharashtra and ors. (supra), insofar as they lay down the law to the contrary, do not lay down the law correctly, and are. therefore, over ruled. in the light of the above decision on the referred question of law, now both the above writ petitions be placed before the regular division bench for disposal on its own merits.34. before parting with this reference, we would like to refer to certain disturbing aspects as disclosed. even though the above two division bench judgments from nagpur bench held that before passing of an order of preventive detention, there ought to be two prior convictions, another division bench from nagpur in raju shivaji thakre (supra) and other matters, chose to disagree, without referring the matter to be resolved by a larger bench. this was judicially inappropriate, because even if the dissent had merit, it should have found expression only in a manner consistent with the accepted norms of judicial propriety and discipline which are the hallmarks of judicial behavior. any deviation therefrom tends to erode the edifice of judicial sanctity.35. similarly, even after this larger bench was constituted to resolve the above conflict, another division bench at nagpur in m. y. pathan v. state of maharashtra and ors., proceeded to decide the matter, even after being informed of the constitution of a larger bench. this was also totally inappropriate and the persistence rather unfortunate.36. it may be useful to remind ourselves of the principles of judicial propriety and the right course to be followed in such situations repeatedly emphasised by the apex court in the interest of judicial discipline and consistency.37. the supreme court, in the case of hari singh v. state of haryana, in para 10 has held as under :'10. it is true that in the system of justice which is being administered by the courts, one of the basic principles which has to be kept in view, is that courts of co-ordinate jurisdiction, should have consistent opinions in respect of an identical set of facts or on a question of law. if courts express different opinions on the identical sets of facts or question of law while exercising the same jurisdiction, then instead of achieving harmony in the judicial system, it will lead to judicial anarchy.'38. in the case of asstt. collector of estate duty v. v. devaki ammal, in para 3 held as under :'3. we are at a loss to understand how, once one division bench of a high court has held a particular provision of law to be constitutional' and not violative of article 14. it is open to another division bench to hold that the same provision of law is unconstitutional and violative of article 14. judicial discipline demands that one division bench of a high court should, ordinarily, follow the judgment of another division bench of that high court. in extra-ordinary cases, where the latter division bench finds it difficult, for stated reasons, to follow the earlier division bench judgment, the proper course is to order that the papers be placed before the learned chief justice of the high court for constituting a larger bench. certainly, where one division bench has held a statutory provision to,be constitutional it is not open to another division bench to hold otherwise.'39. in the case of state bank of india v. labour enforcement officer (central). has held as under :-'2. it appears from the materials placed before us that the appellants brought to the notice of the learned single judge that another learned single judge of the same high court had quashed a similar prosecution initiated against the appellants accepting their above contention but the learned judge ignored the same. 3, if the learned judge was unable to share the view earlier expressed by another learned judge, on an identical point, he ought to have referred the matter to a division bench instead of deciding.the same. in mohadeolal kanodia v. administrator general of w. b. this court observed :'judicial decorum no less than legal propriety forms the basis of judicial procedure. if one thing is more necessary in law than any other thing, it is the quality of certainty. that quality would totally disappear if judges of coordinate jurisdiction in a high court start overruling one another's decisions. if one division bench of a high court is unable to distinguish a previous decision of another division bench, and holding the view that the earlier decision is wrong, itself gives effect to that view the result would be utter confusion. the position would be equally had where a judge sitting singly in the high court is of opinion that the previous decision of another single judge on a question of law is wrong and gives effect to that view instead of referring the matter to a larger bench. in such a case lawyers would not know how to advise their clients and all courts subordinate to the high court would find themselves in an embarrassing position of having to choose between dissentient judgments of their own high court.'40. in the case of usha kumar v. state of bihar and ors.,2 the apex court has held as under :-3. in the impugned judgment of a division bench of the patna high court (hon'bleaftabalam and a.n. trivedi, jj). dated 1.5.1995. the division bench has taken a view which is different from the view taken by the two earlier division benches of the same high court. the judgment itself sets out that normally the matter should have been referred to a larger bench; but this may further delay the matter and hence the division bench was proceeding with its judgment. this course which is taken by the division bench has created obvious difficulties. judicial discipline requires that if two division benches of the same high court take different views, the matter should be referred to a larger bench. one division bench cannot ignore or refuse to follow the decision of an earlier division bench of the same court and proceed to give its decision contrary to the decision given by the earlier division bench. if it is inclined to take a different view, a request should be made to the chief justice to refer the same to a full bench. even the purpose of saving time hasnot been served in the present case. the decision has merely generated these appeals which are filed in view of the appeal before us. all the parties are agreed that the appropriate course would be to refer the matter to the full bench of the patna high court.'41. we are constrained to make these observations, and refer to the note of caution sounded in the judgments of the supreme court only in the hope that judicial decorum, judicial discipline, judicial consistency, and judicial certainty, all inherent characteristics of our judicial system, are not jeopardised in future by a refusal to follow the discipline which binds all judges.per b. p. singh, c. j.i agree, per vishnu sahai, j. 1. i have gone through the erudite judgment of my learned brother s. radhakrishnan, j. although i agree with his conclusion and the reasons furnished by him in answering in negative the question referred to this full bench :- 'whether it is imperative that a person must have to his discredit two or more convictions before he can be detained as a 'dangerous person'under section 2(b-i) of the m.p.d.a. act', i would like to enlist some additional reasons.2. section 2(b-i) of the m.p.d.a. act reads thus :'dangerous person' means a person who either by himself or as a member or leader of a gang, habitually commits, or attempts to commit or abets the commissions of any of the offences, punishable under chapter xvl or chapter xvii of the indian penal code or any of the offences punishable under chapter v of the arms act, 1959.'3. a plain reading of section 2(b-i) of the m.p.d.a. act would show that the word habitually has to be read conjunctively, not only with the word commits but also with the expressions attempts to commit and abets the commission of.4. to my mind the language of section 2(b-i) of the m.p.d.a. act makes it crystal clear that mr. chitnis's premise that before a person can be detained as a 'dangerous person' under the said provision he must have to his discredit two or more convictions, is erroneous.5. the word habitually as used in section 2(b-i) of the m.p.d.a. act means persistently, repeatedly or continuously. just as a single swallow does not make a summer, a solitary act does not, constitute a habit. hence i have no difficulty in agreeing with mr. chitnis's submission that habitually as used in section 2(b-i) of the m.p.d.a. act, means more than once.6. but where i cannot see eye to eye with mr. chitnis is when he urges that the words 'habitually commits or attempts to commit or abets the commission of any of the offences punishable under chapter xvi or xvii of the indian penal code or any of the offences punishable under chapter v of the arms act, 1959' as used in the said provision imply that a person should have to his discredit atleast two or more convictions under the said provisions.7. it is a time-honored cannon 'of interpretation of statutes that where the words used in a statute are clear and unambiguous in their meaning courts do not do any violence with the language of a statute andconstrue them literally. i fail to understand as to how the expressions 'habitually commits or attempts to commit or abets the 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' envisage of conviction in respect of those offences. the expressions commits, commit, commission of offences are distinct in meaning and connotation from conviction. they clearly do not connote a conviction. an offence is committed or there is a commission of offence, when the offence takes place. for instance if a intentionally fires on b with a view to kill him the moment b is dead. a has committed the offence of murder, within the terms of clause firstly of section 300 of i. p.c., under chapter xvi of the indian penal code. if mr. chitnis's submissions was to be accepted then in the illustration furnished above, the offence of murder would only be deemed to have been committed after a was found guilty of it. lam afraid such an inference militates against commonsense and is unworthy of acceptance.8. it would be presumptuous to suggest that when the legislature enacted section 2(b-i) of the m.p.d.a. act it was oblivious of the distinction between the expressions commits an offence/commission of offences, as used therein and conviction in respect of offences, referred to therein. in my view the legislature in all its wisdom, with the avowed object that habitual commission of offences punishable under chapter xvi or xvii of the indian penal code or chapter v of the arms act, 1959 had to be prevented, has deliberately not used the word conviction jn section 2(b-i). it was alive to the grim reality that it takes an agonisingly long time between the commission of an offence and the trial of the accused who are to be prosecuted for it and if it used the word conviction the very objective of the enactment of the m.p.d.a. act, which was preventive, would be frustrated.9. had the legislature intended that a person should have to his discredit two or more convictions before he could be detained as a 'dangerous person' under section 2(b-i) of the m.p.d.a. act, the said provision instead of its present form would have read thus - dangerous person means a person who either by himself or as a member or leader of gang has been repeatedly convicted for committing or attempting to commit or abetting the commission of any of the offences punishable under chapter xvi of chapter xvii of the indian penal code or any of the offences punishable under chapter v of the arms act, 1959.personal assistant to issue an ordinary copy of the order to the parties.