Research › Search › Judgment

Karnataka High Court · body

2015 DIGILAW 870 (KAR)

Veena v. State Of Karnataka

2015-08-05

ANAND BYRAREDDY, S.SUJATHA

body2015
ORDER : Heard the learned Counsel for the Petitioner and the learned Government Advocate. 2. The petitioner is said to be the wife of one Sri Rajnikant Bijawad son of Sri Kashappa Bijawad who is the detenue in the present case. The petitioner and her husband are permanent residents of Veerapur Oni, settlement, near T.K. Habib Mill, Hubballi. The detenue is residing with his father, two younger brothers, two wives; one is petitioner and another is Smt. Bhuvaneshwari and they have two male children. It is the case of the respondents that the detenue started real estate business and he was indulging in criminal activities since the year 2000 and he was involved in cases of attempt to murder, rioting, assault, extortion of money, criminal intimidation and threatening innocent people and witnesses etc. It was further alleged that he was involved in five cases namely Cri.No.199 of 2010 registered in Hubballi Town Police Station for the offences punishable under Section 302 amongst other provisions of the Indian Penal Code, 1860, (hereinafter referred to as the 'IPC' for brevity), Cri.No.163 of 2013 registered in Kasabapeth Police Station for the offences punishable under Sections 143, 147, 148, 307, 504, 506(1) read with Section 149 of the IPC, Cri.No.189 of 2006 registered for the offences punishable under Sections 147, 148, 506 and 307 read with Section 149 of the IPC, in Hubballi Town Police Station, Cri.No.19 of 2000 registered in Bendigeri Police Station, Hubballi, for the offences punishable under Sections 307, 324 and other provisions of the IPC, Cri. No. 231 of 2014 registered in Sub-Urban Police Station, Hubballi, for the offences punishable under Sections 341 and 384 etc., of the IPC, as well as Section 66(a) of the Information Technology Act, 2000. 3. Further, it was the allegation of the respondents that a rowdy sheet was opened against the detenue as early as in the year 2004 before the Bendigeri Police Station, Hubballi, on the ground that by such criminal activities, the detenue was disturbing public order. It was further alleged that he was released on bail but he had violated the bail conditions and was indulging in antisocial activities adversely affecting the public peace and order. 4. He had no respect for the law of the land and he had created fear in the minds of the people of some areas of Hubballi City. It was further alleged that he was released on bail but he had violated the bail conditions and was indulging in antisocial activities adversely affecting the public peace and order. 4. He had no respect for the law of the land and he had created fear in the minds of the people of some areas of Hubballi City. Thereafter, after a lapse of several years, the detention order was finally passed against the detenue under Section 3(1) 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) and further the 1st respondent had extended the same by order dated 7-3-2015 for a period of twelve months. 5. The petitioner claims that the husband of the petitioner had made a representation to the Advisory Committee bringing to its notice the facts and circumstances of the case and seeking withdrawal of the detention order vide representation dated 3-2-2015. It is claimed that the first respondent had without considering the representation and the correctness of the order, passed the order dated 7-3-2015 confirming the order passed by the second respondent. 6. It is further stated that insofar as case in Cri.No.189 of 2006 registered before the Hubballi Town Police Station, has resulted in acquittal of the detenue by judgment dated 30-4-2010 in Session Case No.61 of 2007. Similarly, Cri.No.19 of 2000 registered in Bendigeri Police Station for the offences as alleged also ended in acquittal by judgment of the Sessions Court in Sessions Case No.203 of 2000, dated 11-8-2003. Insofar as other offences alleged, the trial was yet to commence though charge-sheet was filed long ago. It is claimed that even according to the charge-sheet, there was no sufficient material against the detenue to sustain the cases and it is therefore alleged that the detention order is clearly illegal and is without any basis and it is passed only on the strength of the pending cases which have not seen much progress though two cases as already stated have resulted in acquittal of the detenue. 7. 7. The petitioner is said to have filed a writ petition in W.P.No.100007 of 2015, dated 27-4-2015, Veena v State of Karnataka and Others, before this Court seeking the relief of habeas corpus, as the petitioner had not challenged the detention orders produced at Annexures-A and B. However, in view of the detention orders having been brought to the attention of the petitioner, the said petition has been withdrawn and this petition is filed. 8. The learned Counsel for the petitioner would primarily contend that the detention order is contrary to the settled legal position as laid down by this Court and the Apex Court. The learned Counsel for the petitioner would rely on the following decisions: (i) Cherukuri Mani v. Chief Secretary, Government of Andhra Pradesh and [AIR 2014 SCW 2811], (ii) Unreported judgment of a Division Bench of this Court in Jayashree v. State of Karnataka, (WPHC No.100003 of 2014and connected matters decided on 4-9-2014, (iii) Unreported judgment of this Court in Smt. Martina Mala v. State of Karnataka, (WPHC No.52 of 2015, decided on 1-6-2015), (iv) Unreported judgment of a Division Bench of this Court in Mrs.Kashmiri Zakir v. Commissioner of Police, Bangalore,(WPHC No.87 of 2014, decided on 18-8-2014), (v) Unreported judgment of a Division Bench of this Court in Smt.Vinutha Lakshmi v. The Commissioner of Police, Bangalore,(WPHC No. 12 of 2015, decided on 27-4-2015), (vi) Unreported judgment of a Division Bench of this Court in Smt.Prema Naritha v. The Commissioner of Police, Bangalore, WPHC No.2 of 2012, decided on 31-10-2012), (vii) Binod Singh v. District Magistrate, Dhanbad, Bihar and Others ( AIR 1986 SC 2090 ), 9. The Supreme Court in Cherukuri Mani's case, while interpreting the provisions of Andhra Pradesh Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986, which is in pari materia with 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 "Goondas Act" for brevity) has pronounced that a reading of the provisions would make it clear that the State Government, the District Magistrate or the Commissioner of Police, are the authorities, conferred with the power to pass orders of detention and the only difference is that a 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 twelve days. The continuance of detention beyond twelve days would depend upon the approval to be accorded by the Government in this regard. Sub section (3) makes this aspect very clear. Section 13 of the Act mandates that the maximum period of detention under the Act is twelve months. Proviso to sub section (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 twelve 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. 10. The learned Counsel would draw attention to the tenor of the corresponding section under the Goondas Act which is as follows: "3. 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. 10. The learned Counsel would draw attention to the tenor of the corresponding section under the Goondas Act which is as follows: "3. Power to make orders detaining certain persons - (1) The State Government may, if satisfied with respect to any bootleggers or drug-offender or gambler or goonda or immoral traffic offender or slum-grabber that with a view to prevent him from acting in any manner prejudicial to the maintenance of public order, it is necessary so to do, make as order directing that such persons 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 and Commissioner of Police, the State Government is satisfied that it is necessary so to do, it 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 sub-section (1), exercise the powers conferred by the sub-section: Provided that the period specified in the order made by the Government under this sub-section shall not, in the first instance, exceed three months, but the State 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 this section by an officer mentioned in sub-section (2), he shall forthwith report the fact to the State 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 State Government." 11. The learned Counsel would submit that the law laid down by the Supreme Court with reference to the Andhra Pradesh Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986, would apply with equal force to the Karnataka Prevention of Dangerous Activities of Bootleggers, Drug-offenders, Gamblers, Goondas, Immoral Traffic Offenders, Slum-grabbers Act, 1985, and this has been the consistent view of this Court in the above referred decisions and would submit that the detention order therefore, on the face of it, is illegal and the extension orders are equally bad in law and would have to be set at naught. 12. The learned Government Advocate however would submit that insofar as the several judgments of this Court are concerned, they are under active challenge before the Honourable Supreme Court of India and therefore any benefit to be given to the petitioner would certainly be subject to the result of the matters pending before the Supreme Court and hence seeks that the present petition be kept in abeyance awaiting the decision of the Honourable Supreme Court. 13. However, it has to be noticed that the law as consistently declared by this Court, following the judgment of the Honourable Supreme Court itself, there is no warrant to keep this matter in abeyance when on the face of it, it is disclosed that the impugned order is baa in law as it falls foul of the guidelines laid down by the Honourable Supreme Court and the positive view taken in the interpretation of the manner in which the detention orders could be passed. Therefore, the petition is summarily allowed. The detention order is set at naught. The petitioner's husband shall be set at liberty forthwith, subject to any further action which may be available to the State depending on the further result of the pending petitions before the Honourable Supreme Court. He may be set at liberty if he is not under custody in respect of other offences for which the remedy available to the petitioner's husband is left open.