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2016 DIGILAW 407 (KAR)

Shylamma v. State of Karnataka

2016-06-02

MOHAN M.SHANTANAGOUDAR, R.B.BUDIHAL

body2016
ORDER : The order of detention dated 1.3.2016 passed by the third respondent, the order of approval passed by the second respondent dated 5.3.2016 and the order of confirmation passed by the second respondent on 13.4.2016 are called in question in this writ petition. 2. Sri. Vishwajith Rai, learned advocate for the petitioner taking us through the records submits that the order of detention is illegal; the same suffers from non-application of mind by the detaining authority; though nine cases are foisted against the petitioner, he is acquitted in three cases and is released on bail in other cases; out of the nine cases registered, three are relating to maintenance of good behavior, maintenance of public peace etc.; six cases are registered against the petitioner under the provisions of Indian Penal Code (Chapter XVI); the last case registered against the petitioner is relating to the incident dated 22.7.2015 and the said crime is registered under Section 110(E) and (G) of Cr.P.C. The 8th case registered against the petitioner is relating to the incident that had happened on 11.5.2014 within the jurisdiction of Krishnaraja Police Station, Mysuru. Thus, according to the petitioner’s counsel there is no proximity between the incident relied upon by the detaining authority and the order of detention passed; that the orders are passed mechanically without due application of mind; the detaining authority has merely relied upon the report of the Sub-Inspector of Police; though the statement of objections are filed in the writ petition, the same is not supported by the affidavit of District Magistrate (the detailing authority), but the same is supported by the affidavit of the Police Inspector of Krishnaraja police station; that the District Magistrate has completely abdicated his functions in favour of the officer of the level of Inspector of police; the Inspector of Police could not have any knowledge as to how the detaining authority has arrived at the conclusion, in as much as, the Inspector of Police did not have any access to the records relied upon by the District Magistrate. Since the order suffers from illegality, the same is liable to be quashed. Percontra, Sri. Since the order suffers from illegality, the same is liable to be quashed. Percontra, Sri. D. Nagaraj, learned Government Advocate argued in support of the orders in question contending that the detaining authority has after due subjective satisfaction passed the impugned order of detention; this Court may not sit as an appellate authority for deciding the correctness or otherwise of the subjective satisfaction arrived at by the detaining authority; the cases registered against the petitioner by the concerned Inspectors do not suffer from lack of proximity; merely because the petitioner is young, he cannot be shown leniency; since the detaining authority is satisfied from the records and report of the concerned authorities that the petitioner is not mending his ways and is likely to threaten the witnesses in criminal cases has passed the order of detention. He submits that rowdy sheet is opened against the detenue by the Assistant Commissioner of Police, K.R. Sub-Division on 8.8.2013. On these among other grounds, he prays for dismissal of the writ petition. 3. Out of the total of 9 criminal cases registered against the detenue, we find that in one case the detenue is convicted; three cases are pending trial in Courts; in two cases, he is acquitted and in three other cases he has given bond for keeping peace and good behavior. Out of the total nine cases registered against the petitioner, three cases are registered under the provisions of Sections 107 and 110 of Cr.P.C. for the purpose of keeping peace and good behaviour in Society. In remaining six cases, the offences punishable under Indian Penal Code are alleged against the petitioner. Out of said six cases, the detenue is convicted in one case and acquitted in two cases. Three other cases are pending consideration before the trial Court. It is not in dispute that in all the three other cases which are pending consideration before the trial Court, the petitioner is released on bail. It is also not in dispute that in none of these three cases the State has filed the application seeking cancellation of bail alleging violation of any of the conditions imposed on the detenue at the time of release on bail. It is also not in dispute that in none of these three cases the State has filed the application seeking cancellation of bail alleging violation of any of the conditions imposed on the detenue at the time of release on bail. Since the application is not filed by the State in any of the cases seeking cancellation of bail, it becomes clear that the detenue has not violated any of the conditions imposed on him while he was released on bail. If really the detenue had violated any of the conditions of bail including threatening of witnesses etc., as alleged in the detention order, the State would not have kept quiet without filing applications for cancellation of bail. In this view of the matter, we are of the opinion that the detaining authority has mechanically mentioned that the detenue has threatened the witnesses and consequently the public are afraid to depose against him, which has affected free and fair trial in the Court of law. There is no basis for such observation made by the detaining authority and hence the order of detention on hand suffers from non-application of mind by the detaining authority. 4. As has been held by the Apex Court in the case of Rushikesh Tanaji Bhoite Vs. State of Maharashtra and others reported in (2012)1 SCC 72, when a person is enlarged on bail by a competent Court, great caution should be exercised in scrutinizing the validity of an order of preventive detention which is based on the very same charge which is to be tried by the Criminal Court. In the said matter, offences referred to in the order of detention suffered from remoteness and want of proximity to the order of detention. Thus, the Apex Court under the facts and circumstances of that case, proceeded to quash the order of detention on the said grounds. As mentioned supra, in the present matter also, we find that six cases are registered against the detenue with an allegation that he has committed the offences punishable under the provisions of Indian Penal Code; the detenue is acquitted in two cases; in one criminal case, he is convicted and has suffered imprisonment. He is enlarged on bail in the remaining three cases. He is enlarged on bail in the remaining three cases. The last case (i.e., case at Sl.No.9) registered against the detenue is Crime No.118/2015 and the same was registered under Section 110 of Cr.P.C. in the year 2015. So also, the cases at Sl. Nos. 4 and 6 are under the provisions of Section 107 of Cr.P.C. As per the definition as found in Section 2(g) of the Karnataka Prevention of Dangerous Activities of Bootleggers, Drug-Offenders, Gamblers, Goondas, Immoral Traffic Offenders and Slum-Grabbers Act, 1985, “Goonda” 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 VIII, Chapter XV, Chapter XVI, Chapter XVII and Chapter XXIII of the Indian Penal Code. Hence, it is clear that the cases registered against the detenue under the provisions of Cr.P.C. for the purpose of maintaining peace and good behavior cannot be taken note off to treat any person as Goonda within the meaning of Section 2(g) of the Karnataka Prevention of Dangerous Activities of Bootleggers, Drug-Offenders, Gamblers, Goondas, Immoral Traffic Offenders and Slum-Grabbers Act, 1985. Therefore, the cases at Sl. Nos. 4, 6 and 9 registered under Section 107 and Section 110 of Cr.P.C. against the detenue could not have been taken assistance of and relied upon by the detaining authority while terming the detenue as a goonda. Be that as it may. The 8th case which is the latest case under the Indian Penal Code registered against the detenue was relating to the offence committed on 11.5.2014. It cannot be said that the said case has got proximity to the detention order in as much as, the detention order is passed on 1.3.2016 i.e., after the lapse of about 1 year and 10 months from the registration of the last case under the provisions of I.P.C. 5. Before parting with the matter it is relevant to note the dictum laid down by the Apex Court in the case of Merugu Satyanarayana Vs. State of A.P. and others reported in AIR 1982 SC 1543 which reads thus: (relevant portion) “16…. … ….. In this case the District Magistrate, the detaining authority has not chosen to file his affidavit. The affidavit in opposition is filed by a Sub-Inspector of Police. State of A.P. and others reported in AIR 1982 SC 1543 which reads thus: (relevant portion) “16…. … ….. In this case the District Magistrate, the detaining authority has not chosen to file his affidavit. The affidavit in opposition is filed by a Sub-Inspector of Police. Would this imply that Sub-Inspector of Police had access to the file of the District Magistrate or was the Sub-Inspector the Person who influenced the decision of the District Magistrate for making the detention Order?....... And the Sub-Inspector of police does not say how he came to know about the subjective satisfaction of the District Magistrate. He does not say that he had access to the Me, or he is making the affidavit on the basis of the record maintained by the District Magistrate. Therefore, the inference is irresistible that at the behest of the Sub-Inspector of Police who appears to be the investigating officer in some criminal can in which each of the detenu is implicated, the District Magistrate completely abdicating his responsibilities made the detention order. …… …. …… 17. If the District Magistrate is to act in the manner he has done in this case by completely abdicating his functions in favour of an officer of the level of a Sub-Inspector of Police, the safeguards noticed by this Court are likely to prove wholly illusory and the fundamental right of personal liberty will be exposed to serious jeopardy. We only hope that in future the District Magistrate would act with responsibility, circumspection and wisdom expected of him by this Court as set out earlier. However, the conclusion is inescapable that the errors pointed out by the petitioners which have appealed to us remain uncontroverted in the absence of an affidavit of the detaining authority. We refuse to take any notice of an affidavit in opposition filed by a Sub-Inspector of Police in the facts and circumstances of this case.” In this matter, the aforementioned dictum laid down by the Apex Court is fully applicable. The state has filed statement of objections opposing this writ petition. The statement of objections is not supported by the affidavit of the District Magistrate who has passed the order of detention supporting his order of detention. On the contrary, the statement of objections is supported by the affidavit of Police Inspector of Krishnaraja police Station, Mysuru city. The state has filed statement of objections opposing this writ petition. The statement of objections is not supported by the affidavit of the District Magistrate who has passed the order of detention supporting his order of detention. On the contrary, the statement of objections is supported by the affidavit of Police Inspector of Krishnaraja police Station, Mysuru city. It cannot be said that the Sub-Inspector of Police had access to the file of District Magistrate or that Sub-Inspector had influenced the decision or had played any role while making detention order. The Inspector of Police does not disclose as to how he came to know about the subjective satisfaction of the District Magistrate. Though the District Magistrate was a party to this writ petition, he did not chose to file his affidavit justifying his order and has left it to the Inspector of Police to support the detention order. It is also not disclosed in the statement of objections that the Inspector has made the affidavit on the basis of the record maintained by the District Magistrate. Therefore, the inference is irresistible that at the behest of the Sub-Inspector of police who appears to be the investigating officer in some criminal cases in which the detenue is implicated, the impugned order is passed by the detaining authority. Consequently, the District Magistrate is completely abdicated his responsibilities while making the order of detention. If the District Magistrate is to act in the manner he has done in this case by completely abdicating his functions in favour of an officer of the level of an Inspector of Police, the safeguards noticed by the Courts are likely to prove wholly illusory and fundamental right will be exposed to serious jeopardy. In view of the same, the affidavit filed by the Inspector of Police needs to be ignored and the same is ignored. However the conclusion is inescapable that the errors pointed out by the petitioners have remained uncontroverted in the absence of the affidavit of the detaining authority. 6. In view of the aforementioned facts and circumstances and the observations made supra, the impugned orders are liable to be set aside. Accordingly, the impugned orders at Annexure ‘A’ dated 1.3.2016, Annexure ‘D’ dated 5.3.2016 and Annexure ‘E’ dated 13.4.2016 are quashed. The writ Petition is allowed. The detenue shall be released forthwith, if he is not required in any other criminal case. Accordingly, the impugned orders at Annexure ‘A’ dated 1.3.2016, Annexure ‘D’ dated 5.3.2016 and Annexure ‘E’ dated 13.4.2016 are quashed. The writ Petition is allowed. The detenue shall be released forthwith, if he is not required in any other criminal case. We make it clear that it is open for the concerned authorities to initiate fresh proceedings against the detenue, if need be, as required under the law. The operative portion of this order shall be communicated to the concerned Prison Authorities, immediately.