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2016 DIGILAW 448 (KAR)

Earanna @ Bonda Earanna v. State of Karnataka

2016-06-15

ANAND BYRAREDDY, L.NARAYANA SWAMY

body2016
ORDER : The present petition is filed challenging the order passed by the Deputy Commissioner and District Magistrate, Raichur dated 29.12.2015 as against the petitioner under Section 3 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). This order is said to have been confirmed by the State Advisory Board by its order dated 03.02.2016, whereby the petitioner is been ordered to be detained for a period of 12 months. 2. The facts leading up to the impugned orders is that the petitioner, aged about 46 years was said to be a vegetable vendor and was living with his wife and children at Jalalnagar, Raichur. He had been arrested for offences punishable under Sections 3(1) and 8 of the Goondas Act. It transpires that there were a large number of cases against the petitioner. The details of which are shown in tabular form as extracted hereunder: Sl. No. Crime No. Police Station Offences under Sections Stage 1. 76/2006 Market Yard Police Station 273, 284 of IPC & 32, 34 of KE Act Acquitted on 04.01.2008 2. 83/2006 Market Yard Police Station 273, 284 of IPC & 32, 34 of KE Act Acquitted on 27.05.2008 3. 61/2007 Market Yard Police Station 308, 273, 284 of IPC & 32, 34 of KE Act Acquitted on 12.01.2009 4. 15/2009 Market Yard Police Station 308, 273, 284 of IPC & 32, 34 of KE Act Acquitted on 01.01.2010 5. 26/2009 Special Excise Police Station 273, 284 of IPC & 34 of KE Act Acquitted on 01.07.2013 6. 10/2010 CPI West Raichur Police Station 308, 273, 284 of IPC & 34 of KE Act Acquitted on 01.07.2010 7. 120/2010 Special Excise Police Station 273, 284, 308, 328 of IPC & 32, 34 of KE Act Acquitted on 01.07.2010 8. 06/2011 Market Yard Police Station 308, 273, 284 of IPC & 32, 34 of KE Act Acquitted on 24.04.2011 9. 58/2011 Market Yard Police Station 273, 284 of IPC & 32, 34 of KE Act Acquitted on 14.12.2011 10. 62/2012 Market Yard Police Station 273, 284 of IPC & 32, 34 of KE Act Acquitted on 28.12.2012 11. 06/2013 Market Yard Police Station 273, 284 of IPC & 32, 34 of KE Act Acquitted on 01.04.2013 12. 58/2011 Market Yard Police Station 273, 284 of IPC & 32, 34 of KE Act Acquitted on 14.12.2011 10. 62/2012 Market Yard Police Station 273, 284 of IPC & 32, 34 of KE Act Acquitted on 28.12.2012 11. 06/2013 Market Yard Police Station 273, 284 of IPC & 32, 34 of KE Act Acquitted on 01.04.2013 12. 97/2014 Special Excise Police Station 273, 284 of IPC & 32, 34 of KE Act Pending trial 13. 60/2015 Market Yard Police Station 273, 284 of IPC & 32, 34 of KE Act Charge sheeted on 28.09.2015 14. 119/2015 Nil 448, 323, 354, 427, 504, 506 R/w 34 of IPC Charge sheeted on 05.12.2015 15. 128/2015 Market Yard Police Station 273, 284 of IPC & 32, 34 of KE Act Charge sheeted on 19.12.2015 16. 47/2010 Special Excise Police Station 110(G) of Cr.P.C. Bond executed on 18.06.2010 17. 133/2012 Special Excise Police Station 110(G) of Cr.P.C. Bond executed on 04.11.2010 18. 83/2015 Market Yard Police Station 110(G) of Cr.P.C. Bond executed on 04.11.2012 3. It is also to be noticed that though he has been acquitted in several cases, there are other cases which are pending even as on date. It is on account of these large number of cases against the petitioner and the petitioner also being characterized as a rowdy sheeter and having regard to the alleged activities in which the petitioner was involved, it is stated that the above orders have been passed and that the petitioner is now detained without a trial nor a finding of guilt in respect of any of those offences alleged. 4. It is contended that the impugned orders are clearly illegal and contrary to the law as laid down by the Supreme Court and reliance is placed on the judgments of the Supreme Court in Criminal Appeal No.1133/2014 in the case of Cherukuri Mani vs. the Chief Secretary, Government of Andhra Pradesh dated 08.05.2014 and Basavarajayya Swami vs. State of Karnataka in Criminal Appeal No.267/2016 dated 05.04.2016. 5. The learned Additional Advocate General however seeks to resist the petition and would submit that the detention orders have been passed in accordance with law and the contention that the orders are illegal is not tenable. 6. To address the rival contentions, the following sequence of events are to be taken into account. 5. The learned Additional Advocate General however seeks to resist the petition and would submit that the detention orders have been passed in accordance with law and the contention that the orders are illegal is not tenable. 6. To address the rival contentions, the following sequence of events are to be taken into account. It is found from the record that the Superintendent of Police, Raichur had submitted a report to the District Magistrate, who is the designated detaining authority under the Goondas Act, to proceed against the petitioner under Section 3 of the said Act, as his activities were detrimental to the maintenance of public order, as per report dated 21.12.2015. On 29.12.2015 the District Magistrate, after satisfying himself, that the petitioner had indeed indulged in the activities alleged, had passed the detention order. The order was duly served on the detenue on the same date, informing him of the grounds of detention and of his right to approach the detaining authority as well as the State Government. On 30.12.2015 the Superintendent of Police, Raichur is said to have served a copy of the order with intimation to the detaining authority about the service of the order of detention. On 06.01.2016 the State Government is said to have approved the detention of the petitioner. On 20.01.2016 intimation regarding the production of the detenue before the Advisory Committee, at Bangalore on 23.01.2016, was given. On 23.03.2016 the Advisory Committee having satisfied itself that there were sufficient grounds for the preventive detention of the petitioner had furnished its opinion in that regard. On 24.03.2016 the detention of the petitioner was extended by three months from 29.03.2016. The State Government had then passed an order under Section 12(1) and 13 of the Goondas Act extending the detention from 29.12.2015 for a period of 12 months. 7. According to the learned Counsel for the petitioner the detention order passed by the State Government extending the detention from 29.12.2015 for a period of 12 months is impermissible. This, according to him, is as laid down by the Apex Court in Cherukuri Mani’s case supra. He would submit that the Supreme Court was dealing with a similar situation in relation to the Andhra Pradesh Prevention of Dangerous Activities of Bootleggers, Drug-offenders, Gamblers, Goondas, Immoral Traffic Offenders and Slum-Grabbers Act, 1986. This, according to him, is as laid down by the Apex Court in Cherukuri Mani’s case supra. He would submit that the Supreme Court was dealing with a similar situation in relation to the Andhra Pradesh Prevention of Dangerous Activities of Bootleggers, Drug-offenders, Gamblers, Goondas, Immoral Traffic Offenders and Slum-Grabbers Act, 1986. The provisions of which are in pari materia with the Goondas Act applicable to the State of Karnataka and the Supreme Court had specifically considered the issue, whether the State Government had the power to pass a detention order to detain a person, at a stretch, for a period of 12 months under the Act. In answering the issue, Section 3 of the Andhra Pradesh Act which corresponds to Section 3 of the Karnataka Act was referred to and the text of the said section under the Andhra Pradesh Act and under the Karnataka Act are almost identical as could be seen in comparison below: Section 3 of the Andhra Pradesh Act Section 3 of the Karnataka Act Power to make order 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 prevent 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 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 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 sub-section (1), exercise the powers conferred by the said 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 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 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. Power to make orders detaining certain persons : (1) The State Government may, if satisfied with respect to any bootlegger 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 an 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 or a 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 State 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. 8. 8. The Apex Court has noticed that the State Government, the District Magistrate or the 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, Sub-section (3) of Section 3 makes this clear. Section 13 of the Act mandates that the maximum period of detention under the Act is 12 months. It is to be noticed that it is also the same under the Karnataka Act in so far as the maximum period of detention is concerned. The Supreme Court has interpreted the scheme of the Act as not providing for the extension of the period of detention beyond a period of three months at a time. In other words the Apex Court has held 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 atleast three orders of extension, for a period not exceeding three months each, and has also expressed that the requirement to pass orders of detention from time to time in the manner as stated above was nothing but an implementation of the mandate contained in clause-4(a) of Article 22 of the Constitution of India which reads as follows: “(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 authorise the detention of any person beyond the maximum period prescribed by any law made by Parliament under sub-clause (b) of clause (7);” 9. The Apex Court has further justified the procedure to be followed by holding that a person who is detained under the provisions of the Act is without facing a trial, which in other words amounts to curtailment of his liberties and denial of civil rights and in such cases whether continuous detention of such person is necessary or not is to be assessed and reviewed from time to time. It is for this reason that the law has provided the mechanism of constituting an Advisory Board to review the detention of a person and hence passing of detention order for a period of 12 months, at a stretch, without proper review, is a deterrent to the rights of the detenue and therefore has held that such an order cannot be sustained in law. 10. The above view has been reiterated and followed in Basavarajayya Swamy’s case by the Supreme Court. Though the learned Additional Advocate General seeks to place reliance on an earlier decision of the Supreme Court in D.M. Nagaraja vs. Government of Karnataka reported in (2011) 10 SCC 215 wherein an order of detention detaining a person for a period of 12 months has been approved, the issue did not directly arise in that decision and therefore the said decision would not assist the State in seeking to sustain the impugned orders. In any event, the later decision of the Supreme Court where the issue was directly under consideration would be applicable. Even though there is a Division Bench judgment of this Court in Writ Petition No.206431/2014 dated 19.12.2014 in Gajji Veeresh vs. The Secretary, Ministry of Home Affairs, wherein the decision of the Apex Court in Cherukuri Mani was brought to the attention of the Division Bench, the same is referred to in passing, but the Division Bench has proceeded to distinguish the said decision by reference to other case law. The said order would certainly be authority for the case decided therein. However, we feel bound by the view expressed by the Apex Court in Cherukuri Mani’s case and it has been referred to and relied upon in the more recent decision of the Apex Court in Basavarajayya Swamy’s case. 11. Consequently, the petition is allowed. The impugned orders are quashed. It would however not preclude the concerned respondents from taking any further steps against the petitioner in accordance with law. 11. Consequently, the petition is allowed. The impugned orders are quashed. It would however not preclude the concerned respondents from taking any further steps against the petitioner in accordance with law. The petitioner however, shall now be set at liberty in view of the orders impugned being found to be clearly illegal.