Research › Search › Judgment

Karnataka High Court · body

2014 DIGILAW 29 (KAR)

Anitha v. Commissioner of Police

2014-01-08

K.L.MANJUNATH, RAVI V.MALIMATH

body2014
ORDER : K.L. Manjunath, J. 1. Petitioner, who is wife of one Vediappan @ Vedi, has filed this petition to declare the detention of said Vediappan @ Vedi by order No. CRM (4) DTN/02/2013 dated 27-3-2013 [copies at Annexure-A & B to the writ petition], passed by the first respondent and the confirmation order in No. HD 133 SST 2013 dated 4-4-2013 [copy at Annexure-E to the writ petition], passed by the second respondent, as illegal and void ab initio. Pursuant to the detention order dated 27-3-2013, passed under sub-section (1) of Section 3 of the Karnataka Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Gamblers, Goondas, Immoral Traffic Offenders and Slum Grabbers Act, 1985 [for short, the Act], as per Annexure-A to the writ petition, holding that the husband of petitioner is a goonda as defined under clause (g) of Section 2 of the Act, as required under the law, the order of detention was served on him, which is in Kannada language along with an English version of the order as per Annexure-B to the writ petition. The order of detention was forwarded to the second respondent - state government - for its approval within 12 days from the date of detention order, as required under sub-section (3) of Section 3 of the Act. The request of the detenu was placed before the advisory board and the advisory board rejected the request of the detenu. Therefore, the present writ petition is filed. 2. Though several grounds are urged in the writ petition, the main contentions of Sri Kiran S. Javali, learned counsel for the petitioner are two. According to him, the detention order furnished to the detenu in English language does not indicate that the petitioner's husband has a right to make a representation to the state government to consider his request for release and quashing of the order of detention, as required under Section 8 of the Act. The other contention of the petitioner is that when her husband-detenu was already in judicial custody pursuant to an order passed in a criminal case, when there were no reasons for the first respondent to infer that the detenu would get an order of bail from the competent court and after getting such bail, he would indulge in illegal activities as defined in the Act. Therefore, he requested the court to set aside the order of detention. 3. Therefore, he requested the court to set aside the order of detention. 3. To support his arguments, Sri Jawali has relied upon the judgment of this court rendered in WP (HC) No. 50 of 2007 dated 6-7-2007 [Noorulla vs. The Govt. of Karnataka] and also the judgment of the Supreme Court in the case of N. Meera Rani vs. Govt. of Tamilnadu ( AIR 1989 SC 2027 ). According to the learned counsel for the petitioner, it was well within the knowledge of first respondent that the husband of petitioner was in judicial custody concerning two criminal cases said to have been committed by him for the offences punishable under Sections 302 and 399and 402 IPC respectively and that it was not the case of the first respondent that the detenu was likely to come out of judicial custody after obtaining bail and indulge in illegal activities as defined under the Act. According to him, on account of the glaring mistakes committed by the first respondent in not intimating the detenu the right to make a representation to the state government to release him, the right guaranteed under the Act is taken away and as such the order of detention is bad in law and has to be set aside. 4. Per contra, Sri R. Om Kumar, learned AGA, submits that both grounds urged by the learned counsel for the petitioner are untenable, because, it is not the case of the petitioner that her husband is well versed only in English language and in view of the order passed by the first respondent in Kannada language, wherein it is indicated that the husband of the petitioner has a right to make a representation to the state government, the first contention has to be rejected. 5. In so far as the second contention is concerned, submission of learned AGA is that though the first respondent in his order of detention dated 27-3-2013 has referred to nine cases which were filed against the husband of the petitioner, by the time the detention order was passed, he was acquitted in seven cases and was facing trial only in two criminal cases, and out of which, he had secured bail from the competent court in one case, and in spite of obtaining bail, he did not offer surety and was languishing in jail. He further contends that the husband of petitioner had also made application for grant of bail in the other case and there was every likelihood of he getting bail in the said case and after securing bail, he would have indulged in illegal activities and therefore, in the interest of society, the order of detention has been passed as a preventive measure. Therefore, he requests the court to dismiss the petition. 6. Having heard the learned counsel for the parties and on a perusal of the order of detention, both in English and Kannada languages, we are of the view that while passing the order in English language, there is no indication as to the right given to the detenu to make a representation to the state government. According to the petitioner, her husband does not know either Kannada or English language. According to the petitioner, the mother tongue of the detenu is Tamil. Therefore, it was not possible for her husband to make a representation to the state government on account of non-indicating of his right to make a representation to the state government. 7. In view of the fact that the order of detention is passed both in Kannada and English languages and they are contradictory to each other, we are of the view that the right guaranteed in favour of a detenu under Section 8 of the Act, the contentions raised by the petitioner has to be accepted in so far as the first ground is concerned. 8. In so far as the second ground is concerned, it is not in dispute that out of nine cases filed against the husband of petitioner, by the time the order of detention was passed, he was acquitted in seven cases and he was facing trial only in two criminal cases and out of which he had been granted bail in one case and he had made application for grant of bail in the other case. But a perusal of the order passed by the first respondent, it is seen that the first respondent does not refer to obtaining of bail by the detenu in one of the cases and the application filed by the detenu for grant of bail in the other case. But a perusal of the order passed by the first respondent, it is seen that the first respondent does not refer to obtaining of bail by the detenu in one of the cases and the application filed by the detenu for grant of bail in the other case. It is also not the case of the first respondent that after getting bail in the other case, the detenu would again indulge in illegal activities, warranting passing of an order of detention. When the first respondent does not give proper reasons for passing the order of detention in respect of a person who was already in judicial custody and when there was no likelihood of he getting bail within the period of detention, we are of the view that the second ground urged by the learned counsel for the petitioner is also required to be accepted by this court. In the result, this petition is allowed and the order of detention in No. CRM(4)DTN/02/2013 dated 27-3-2013 [copies at Annexure-A & B to the writ petition], passed by the first respondent is hereby set aside.