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2015 DIGILAW 387 (KAR)

Jayamma v. State of Karnataka

2015-04-07

N.K.PATIL, RATHNAKALA

body2015
ORDER 1. This Petition is filed questioning the order of detention dated 11.9.2014 as per Annexure-A; order dated 22.9.2014 as per Annexure-C and final order of detention dated 21.10.2014 as per Annexure-E, in respect of detenu Sri. Prashantha @ Kariya, S/o Channegowda, aged 28 years, resident of No.86, 2nd Cross, Anjaneya Block, Sheshadri Puram, Bangalore (son of the petitioner herein), under the provisions of the Karnataka Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Gamblers, Goondas, Immoral Traffic Offenders and Slum-Grabbers Act, 1985 (hereinafter referred to as ‘the Act’ for short). 2. Sri. Hashmath Pasha, learned Counsel appearing for the petitioner submits that, the detenu is a vegetable vendor by profession and innocent person. His involvement in four criminal cases is referred as ground of his detention. But he is already acquitted from two criminal cases. He was on bail in the criminal cases cited in the order of grounds of detention, and never violated the conditions of bail order, otherwise the Investigating Officer would have moved for cancellation of his bail order. Recent case registered against him in Crime No.196/2013 of Malleswaram Police Station, in respect of incident of 30.7.2013. Then onwards until detention order was passed on 11.9.2014, nobody complained against him. The grounds supporting the detention order are vague without specifying any particular incident of his involvement. The detention order passed without specifying the period of detention and the confirmation of the said order by the State in extending his period of detention for 12 months w.e.f. 11.9.2014 is against the proviso to subsection (2) of Section 3 of the Act, is illegal. Though a Rowdy sheet is said to have been opened against him by Seshadripuram Police in 2009 itself, so far no case is registered by said Police. In none of the criminal cases initiated against him, the prosecution while opposing his bail application has alleged him as goonda. The term “goonda” as defined in Clause (g) of Section 2 of the Act is not attracted in his case. For passing an order of detention, the authority shall satisfy that, to prevent him from acting in any manner prejudiced to the maintenance of public order, detention order is necessary. The cases registered against him are in respect of offences against individual not against public and in respect of cases of offence punishable under Sections 399 and 402 of IPC. For passing an order of detention, the authority shall satisfy that, to prevent him from acting in any manner prejudiced to the maintenance of public order, detention order is necessary. The cases registered against him are in respect of offences against individual not against public and in respect of cases of offence punishable under Sections 399 and 402 of IPC. The allegation was about attempt to commit murder which provisions are invoked to fix him in those cases. In the absence of anybody complaining him for the acts of disturbing tempo of public like terrorizing the victims, the detention order is illegal, contrary to the mandates of the Act and also Article 21 and 22 of the Constitution of India. 3. Learned Additional Government Advocate while subscribing to the detention order has filed his objection statement and additional objection statement. Apart from reiterating the grounds of detention, he has further cited 11 criminal cases in which the detenu was involved and seven of said cases ended up in his acquittal. That apart, two cases under Section 110(e) and (g) of Cr. P.C. are filed against him before District Magistrate. He places his reliance on the judgment of the Division Bench of this Court Gulbarga Bench in W.P. No. 206009/2014 (GMRES) D.D. 2nd December 2014 in the matter of Smt. Sangeeta vs. State of Karnataka & Others whereby this Court dismissed the said writ petition on a detailed discussion of entire contentions raised on behalf of the detenu by concluding that detention order is invulnerable. 4. In the light of the submissions made by the learned Counsels appearing for the parties, the points that arise for our consideration are: (1) Whether the State Government was justified in extending the detention of the detenu vide Annexure-E for a period of 12 months at a stretch w.e.f. 11.9.2014? (2) Whether the detention order is supported by valid grounds? 5. The law in respect of first point for consideration is directly covered by the judgment of the Apex Court in the matter of Cherukuri Mani w/o Narendra Chowdari vs. Chief Secretary, Government of Andhra Pradesh & Others, AIR 2014 SC 2090, wherein it was held as under: “10. (2) Whether the detention order is supported by valid grounds? 5. The law in respect of first point for consideration is directly covered by the judgment of the Apex Court in the matter of Cherukuri Mani w/o Narendra Chowdari vs. Chief Secretary, Government of Andhra Pradesh & Others, AIR 2014 SC 2090, wherein it was held as under: “10. Now the issue for consideration before us is whether the State Government has the power to pass a detention order to detain a person at a stretch for a period of 12 months under the provisions of the Act. 11. To answer the above issue, it is necessary to examine the relevant provisions of the Act. Section 3 of the Act empowers the detention of certain category of persons, as defined under the Act. Apart from conferring of power, the section regulates the manner of passing the orders of detention as well as their duration. It reads thus: Section 3: Power to make orders detaining certain persons: (1) The Government may, if satisfied with respect to any bootlegger, dacoit, drug offender, goonda, immoral traffic offender or land-grabber that with a view to preventing him from acting in any manner prejudicial to the maintenance of public order, it is necessary so to do, make an order directing that such person be detained. (2) If, having regard to the circumstances prevailing or likely to prevail in any area within the local limits of the jurisdiction of a District Magistrate or a Commissioner of Police, the Government are satisfied that it is necessary so to do, they may, by order in writing direct that during such period as may be specified in the order, such District Magistrate or Commissioner of Police may also, if satisfied as provided in Subsection (1), exercise the powers conferred by the said subsection: Provided that the period specified in the order made by the Government under this subsection shall not in the first instance, exceed three months, but the Government may, if satisfied as aforesaid that it is necessary so to do, amend such order to extend such period from time to time by any period not exceeding three months at any one time. (3) When any order is made under the section by an officer mentioned in Subsection (2), he shall forthwith report the fact to the Government together with the grounds on which the order has been made and such other particulars as in his opinion, have a bearing on the matter, and no such order shall remain in force for more than twelve days after the making thereof, unless, in the meantime, it has been approved by the Government. 12. A reading of the above provisions makes it clear that the State Government, District Magistrate or Commissioner of Police are the authorities, conferred with the power to pass orders of detention. The only difference is that the order of detention passed by the Government would remain in force for a period of three months in the first Instance, whereas similar orders passed by the District Magistrate or the Commissioner of Police shall remain in force for an initial period of 12 days. The continuance of detention beyond 12 days would depend upon the approval to be accorded by the Government in this regard. Subsection (3) makes this aspect very clear. Section 13 of the Act mandates that the maximum period of detention under the Act is 12 months. 13. Proviso to Subsection (2) of Section 3 is very clear in its purport, as to the operation of the order of detention from time to time. An order of detention would in the first instance be in force for a period of three months. The Government alone is conferred with the power to extend the period, beyond three months. Such extension, however, cannot be for a period, not exceeding three months, at a time. It means that, if the Government intends to detain an individual under the Act for the maximum period of 12 months, there must be an initial order of detention for a period of three months, and at least, three orders of extension for a period not exceeding three months each. The expression "extend such period from time to time by any period not exceeding three months at any one time" assumes significance in this regard. 14. The requirement to pass order of detention from time to time in the manner referred to above, has got its own significance. The expression "extend such period from time to time by any period not exceeding three months at any one time" assumes significance in this regard. 14. The requirement to pass order of detention from time to time in the manner referred to above, has got its own significance. It must be remembered that restriction of initial period of detention to three months, is nothing but implementation of the mandate contained in Clause (4)(a) of Article 22 of the Constitution of India. It reads as under: Clause 4 : No law providing for preventive detention shall authorize the detention of a person for a longer period than three months unless – (a) An Advisory Board consisting of persons who are or have been, or are qualified to be appointed as, Judges of a High Court has reported before the expiration of the said period of three months that there is in its opinion sufficient cause for such detention: Provided that nothing in this sub-clause shall authorize the detention of any person beyond the maximum period prescribed by any law made by Parliament under Sub-clause (b) of Clause (7). (b) Such person is detained in accordance with the provisions of any law made by Parliament under sub-clauses (a) and (b) of Clause (7). 15. Where the law prescribes a thing to be done in a particular manner following a particular procedure, it shall be done in the same manner following the provisions of law, without deviating from the prescribed procedure. When the provisions of Section 3 of the Act clearly mandated the authorities to pass an order of detention at one time for a period not exceeding three months only, the Government Order in the present case, directing detention of the husband of the appellant for a period of twelve months at a stretch is clear violation of the prescribed manner and contrary to the provisions of law. The Government cannot direct or extend the period of detention up to the maximum period of twelve months, in one stroke, ignoring the cautious legislative intention that even the order of extension of detention must not exceed three months at any one time. One should not ignore the underlying principles while passing orders of detention or extending the detention period from time to time.” 6. Now coming to the second point for consideration: The State cannot defend itself with additional grounds at this stage. One should not ignore the underlying principles while passing orders of detention or extending the detention period from time to time.” 6. Now coming to the second point for consideration: The State cannot defend itself with additional grounds at this stage. It is only those grounds of detention which the detenu was informed that can be appreciated, nothing more. Had all these additional facts were furnished to him at the stage of informing him of grounds of detention, he would have made his effective representation to meet all those grounds. Hence, we confine our focus on the grounds of detention furnished to detenu as at Annexure-B. 7. The detenu by his goonda activities said to have threatened the complainants, tamper witnesses thereby safely gets rid of criminal charges. 8. In similar circumstances where several pending criminal cases were cited and witnesses were alleged to have been terrorized, the Apex Court in a judgment reported in (1989) 4 SCC 43 in the matter of Abdul Razak Nannekhan Pathan vs. Police Commissioner, Ahmedabad and Another at paragraphs 17 and 18 held as follows: “17. The facts and circumstances of that case are distinguishable from the facts of the present case and as such it has got no application. There is nothing in this case to show that the petitioner was a member of a gang which is engaged in criminal activities systematically in a particular locality and those create a panic and a sense of insecurity amongst the residents of that particular area in consideration of which the impugned order was made. Considering the above decisions, we are unable to hold that the criminal cases mentioned in the grounds and the statements of the witnesses referred to in the vague and irrelevant grounds of detention do not in any way pose a threat to the maintenance of public order nor it disturbs the even tempo of public life as envisaged in Section 3(1) of PASA Act. So there has been complete non-application of mind by the detaining authority before reaching a subjective satisfaction to make the impugned order of detention. 18. So there has been complete non-application of mind by the detaining authority before reaching a subjective satisfaction to make the impugned order of detention. 18. It has been urged on behalf of the detenu that there has been no consideration by the detaining authority of the relevant facts and circumstances before making an order under Section 9(2) of the PASA Act in not disclosing the names and addresses of the witnesses on whose statements the subjective satisfaction has been arrived at. It has also been stated in this connection that in the grounds of detention it has merely been stated: “Being afraid of you the aforesaid witnesses have asked not to disclose their names and addresses, because they are afraid of damage to their person and property….” It has been urged with force that this ground does not refer that the detaining authority has himself considered and satisfied that the disclosure of their names and addresses are likely to cause damages to their person and property. It has been stated by the detaining authority that on relevant enquiry, it found those statements to be true and as such the names and addresses of those witnesses have not been given to the detenu as provided in Section 9(2) of PASA Act, 1985. It has been contended on behalf of the petitioner that there is nothing to show that the detaining authority has himself considered that in public interest the names and addresses of these persons should not be disclosed and so much nondisclosure is vague. We do not want to enter into this controversy and decide the same as in our opinion the detaining authority has been satisfied not to disclose the names of those witnesses under Section 9(2) of the said Act. No other grounds have been urged before us on behalf of the petitioner”. That paralyses the entire allegation made about antisocial activities, terrorizing public, etc., which lack specification. 9. The Apex Court in the matter of Union of India vs. Paul Manickam and Another, (2003) 8 SCC 342 , held preventive detention is an anticipatory measure and does not relate to an offence while the criminal proceedings are to punish a person for an offence committed by him. They are not parallel proceedings. The object of the law of preventive detention is not punitive but only preventive. They are not parallel proceedings. The object of the law of preventive detention is not punitive but only preventive. It is resorted to when the executive is convinced on the materials available and placed before it that such detention is necessary in order to prevent the person detained from acting in a matter prejudicial to certain objects which are specified by the law. The action of the executive in detaining a person being only precautionary, the matter has necessarily to be left to the discretion of the executive authority. It is not practicable to lay down objective rules of conduct, the failure to conform to which alone should lead to detention. 10. The previous criminal cases in which detenu is said to have been involved are already dealt under the relevant penal law. The grounds of detention is not able to demonstrate with clarity that the free movement of the detenu would prejudice the maintenance of the public order. In that view of the matter, we are unable to endorse the detention order. The judgment of this Court in W.P. No. 206009/2014 (supra) on facts is distinct from the matrix on hand. In the result, the petition is allowed. The order of detention dated 11.9.2014 passed by the Commissioner of Police, Bangalore City, vide Annexure-A, is hereby quashed. The Chief Superintendent of Central Prison, Parappana Agrahara, Bangalore, is directed to set the detenu by name Sri. Prashantha @ Kariya, S/o Channegowda, aged 28 years/son of the petitioner, resident of No. 86, 2nd Cross, Anjaneya Block, Sheshadri Puram, Bangalore (son of the petitioner herein), at liberty forthwith, if not otherwise required. Operative portion of this order be communicated to the Chief Superintendent of Central Prison, Parappana Agrahara, Bangalore, forthwith.