Vishwanatha Poojary Alms Kodikere Vishwa Alias Vishwa v. Government of Karnataka, Bangalore
2017-04-12
ASHOK B.HINCHIGERI, K.S.MUDAGAL
body2017
DigiLaw.ai
ORDER : Ashok B. Hinchigeri, J. The petitioner has called into question the order, dated 13-7-2016 (Annexure-A) passed by the respondent 3 in exercise of the power conferred by Section 3(1) and (2) of the Karnataka Prevention of Dangerous Activities of Bootleggers, Drug-Offenders, Gamblers, Goondas, Immoral Traffic Offenders and Slum-Grabbers Act, 1985 ('Goondas Act' for short) directing that he be detained in Central Prison, Vijayapura and the second respondent's order, dated 17-8-2016 (Annexure-B) confirming the third respondent's order of preventive detention and continuing the same for a period of 12 months. 2. Sri Dilraj J. Rohit Sequeira, the learned Counsel for the petitioner submits that the impugned orders are presumptuous. They are passed on the basis of the respondents' presumption that as soon as the petitioner is enlarged on bail, he would indulge in anti-social activities. He submits that it is not in dispute that the petitioner is in judicial custody and that he has not even applied for bail. As there is no likehood of his coming out of the judicial custody in the immediate run, the apprehension that he would disturb the public tranquility is absolutely unfounded. 3. The second submission made by the learned Counsel is that the impugned order, dated 17-8-2016 (Annexure-B) is bad, as it continues the petitioner's detention for a period of 12 months at a stretch. He reads out the provisions contained in Section 3(2) of the Goondas Act. It is as follows : "3. Power to make orders detaining certain persons.- (1).......... (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." 4.
He submits that the petitioner's continued detention for 12 months runs absolutely contrary to the proviso to Section 3(2) of the Goondas Act, extracted herein above. 5. Sri I. Tharanath Poojary, the learned Additional Government Advocate appearing for the respondents prays for the dismissal of this petition by reading paragraph 34 from the Hon'ble Supreme Court's decision in the case of Haradhan Saha v. State of West Bengal and Others, (1975) 3 SCC 198 . Paragraph 34 of the said decision reads as follows : "34. The recent decisions of this Court on this subject are many. The decisions in Borjahan Gorey v. State of West Bengal; Ashim Kumar Ray v. State of West Bengal; Abdul Aziz v. The District Magistrate, Burdwan and Debu Mahto v. State of West Bengal correctly lay down the principles to be followed as to whether a detention order is valid or not. The, decision in Biram Chand v. State of Uttar Pradesh, which is a Division Bench decision of two learned Judges is contrary to the other Bench decisions consisting in each case of three learned Judges. The principles which can be broadly stated are these. First, merely because a detenu is liable to be tried in a Criminal Court for the commission of a criminal offence or to be proceeded against for preventing him from committing offences dealt with in Chapter VIII of the Code of Criminal Procedure would not by itself debar the Government from taking action for his detention under the Act. Second, the fact that the Police arrests a person and later on enlarges him on bail and initiates steps to prosecute him under the Code of Criminal Procedure and even lodges a first information report may be no bar against the District Magistrate issuing an order under the preventive detention. Third, where the concerned person is actually in jail custody at the time when an order of detention is passed against him and is not likely to be released for a fair length of time, it may be possible to contend that there could be no satisfaction on the part of the detaining authority as to the likelihood of such a person indulging in activities which would jeopardise the security of the State or the public order. Fourth, the mere circumstance that a detention order is passed during the pendency of the prosecution will not violate the order.
Fourth, the mere circumstance that a detention order is passed during the pendency of the prosecution will not violate the order. Fifth, the order of detention is a precautionary measure. It is based on a reasonable prognosis of the future behaviour of a person based on his past conduct in the light of the surrounding circumstances." 6. The first question that falls for our consideration is whether the impugned orders are liable to be quashed on the ground that they are passed when the petitioner is in judicial custody ? 7. It is not in dispute that as many as 9 criminal cases are registered against the petitioner ranging from committing murder, attempting to murder, causing hurt, rioting, making preparations for dacoity, illegal possession, use of fire arms, criminal conspiracy, criminal intimidation, etc. He is convicted in two criminal cases and acquitted in three criminal cases. 8. The filing of the bail petition and the obtaining of the bail thereon in a series of cases cannot be monitored on day-to-day basis by the respondent-authorities. The impugned orders are passed with a view to preserve public tranquility. The track record of the petitioner is such that we are not persuaded to quash the impugned orders on the ground that the impugned orders are not required, as the petitioner is in judicial custody. If it is the threat perception of the respondent-authorities that the petitioner may indulge in acts prejudicial to the cause of peace in society, we do not propose to substitute our perception for the same. 9. As held by the Division Bench of this Court in the case of Smt. Sangeeta v. State of Karnataka and Others, ILR 2015 Kar. 92 (DB) (W.P. No. 206009 of 2014 (GM-RES)), sufficiency of material in arriving at subjective satisfaction cannot be gone into in exercise of writ jurisdiction. The protection of society has to claim higher priority under certain circumstances. The detenu cannot ask this Court to consider the question as to whether the satisfaction of the detaining authority can be justified by the application of objective tests. The detenu can challenge the detention order on the ground of mala fides or on the ground of absence of materials or if the grounds of detentions are vague or irrelevant. It is only in this incidental manner that the question of satisfaction may become justifiable.
The detenu can challenge the detention order on the ground of mala fides or on the ground of absence of materials or if the grounds of detentions are vague or irrelevant. It is only in this incidental manner that the question of satisfaction may become justifiable. Otherwise, the reasonableness or propriety of the said satisfaction cannot be challenged before the Courts. The Courts cannot be called upon to undertake an investigation into sufficiency of the materials on the basis of which the detentions order is passed. Paragraph 45 of the said decision is extracted herein below : "45. The Writ Court would neither act as a Court of appeal in a petition filed challenging the validity of the detention order nor it would put itself in the position of the detaining authority for satisfying itself of the adequacy of the materials. The power to issue a detention order depends on how the detaining authority processes, perceives and evaluates the threat to the maintenance of public order. Its satisfaction is purely subjective and excludes the judicial enquiry into the sufficiency of the grounds to justify the detention." 10. The second question that falls for our consideration is whether the order, dated 17-8-2016 (Annexure-B) confirming the earlier detention order, dated 13-7-2016 (Annexure-A) is bad, as it directs the petitioner's continued detention for a period of 12 months ? 11. The proviso to Section 3(2) of the Goondas Act states that the period of detention cannot exceed three months at any one time. But such a restriction is at the stage when the State Government or the detaining authority passes the order. Obviously the same is before placing the detention order before the Advisory Board. Once the State Government obtains the affirmative opinion of the Advisory Board, the provisions contained in Sections 12 and 13 of the Goondas Act come into operation. The said provisions are extracted herein below : "12. Action upon report of Advisory Board. - (1) In any case where the Advisory Board has reported that there is, in its opinion, sufficient cause for the detention of a person, the State Government may confirm the detention order and continue the detention of the person concerned for such period, not exceeding the maximum period specified in Section 13, as they think fit.
- (1) In any case where the Advisory Board has reported that there is, in its opinion, sufficient cause for the detention of a person, the State Government may confirm the detention order and continue the detention of the person concerned for such period, not exceeding the maximum period specified in Section 13, as they think fit. (2) In any case where the Advisory Board has reported that there is, in its opinion, no sufficient cause for the detention of the person concerned, the State Government shall revoke the detention order and cause the person to be released forthwith. 13. Maximum period of detention. - The maximum period for which any person may be detained, in pursuance of any detention order made under this Act which has been confirmed under Section 12 shall be twelve months from the date of detention." 12. Sections 3(2) and 13 of the Goondas Act contain the provisions governing the preventive detention at two different stages. The proviso to Section 3(2) cannot be construed as nullifying Sections 12 and 13. The said proviso qualifies the generality of only Section 3. Proviso is to be considered only in relation to the section or sub-section to which it stands as a proviso, The proviso is to be taken as limit in its operation to the section that it qualifies. 13. In the instant case, as is discern-able from the impugned order, dated 17-8-2016, the affirmative opinion of the Advisory Board is taken on 10-8-2016 itself. 14. Both the questions are thus liable to be answered against the petitioner and accordingly they are answered. We are satisfied that the detenu was afforded with adequate opportunities at every stage and that there is no violation of any procedural safeguards. 15. In the result, we dismiss this petition. No order as to costs.