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2021 DIGILAW 228 (TS)

K. Muttu v. State of Telangana

2021-07-12

A.RAJASHEKER REDDY, SHAMEEM AKTHER

body2021
ORDER : 1. Since the facts of the case, issue involved and the parties to both these writ petitions are identical, both these writ petitions are being taken up together and disposed of by way of this common order. 2. W.P. Nos. 12322 and 12331 of 2021 are filed by K. Muttu, who is the brother of the detenus in both the writ petitions, seeking a writ of Habeas Corpus challenging the separate detention orders Vide No. 17/PD/CELL/CCRB/RCKD/2021, dated 10.03.2021 and No. 11/PD/CELL/CCRB/RCKD/2021, dated 12.02.2021, respectively, passed by respondent No. 2-Commissioner of Police, Rachakonda Commissionerate, and the consequential confirmation orders vide G.O.Rt. No. 1059, General Administration (Spl. Law and Order) Department, dated 07.05.2021 and G.O.Rt.No. 906, General Administration (Spl. Law and Order) Department, dated 12.04.2021 respectively, passed by the Principal Secretary to Government, General Administration (Spl. Law and Order) Department, Government of Telangana. 3. Heard the learned counsel for both sides and perused the record. 4. Briefly, the case of the petitioner in both these writ petitions is that by relying on four recent criminal cases registered against the detenus during the years 2020 and 2021 in the limits of Rachakonda Police Commissionerate, the respondent No. 2-Commissioner of Police, Rachakonda Commissionerate, passed the impugned detention orders, dated 10.03.2021 and 12.02.2021. According to the respondent No. 2, the detenus are Goondas. The detenu in W.P. No. 12322 of 2021 is a notorious habitual offender engaging himself in bodily offences such as attempt to murder, voluntarily causing hurt, assaulting on public servants, criminal intimidation in the limits of Valigonda Police Station of Rachakonda Commissionerate. The detenu in W.P. No. 12331 of 2021 is a notorious habitual offender engaging himself in unlawful acts such as committing robberies, chain snatching, attack on passersby in the limits of Valigonda Police Station of Rachakonda Commissionerate. The illegal activities of the detenus are causing harm, panic and feeling of insecurity among the general public, which is adversely affecting the public order. With a view to prevent the detenus from acting in a manner prejudicial to the maintenance of public order, the impugned detention orders, dated 10.03.2021 and 12.02.2021 were passed. The impugned detention orders were confirmed by the Principal Secretary to Government, General Administration (Spl. Law and Order) Department, Government of Telangana, vide orders, dated 07.05.2021 and 12.04.2021 respectively. Hence, these Writ Petitions before this Court. 5. The impugned detention orders were confirmed by the Principal Secretary to Government, General Administration (Spl. Law and Order) Department, Government of Telangana, vide orders, dated 07.05.2021 and 12.04.2021 respectively. Hence, these Writ Petitions before this Court. 5. Smt. B. Mohana Reddy, learned counsel for the petitioner in both these writ petitions, has raised the following contentions before this Court: Firstly, that relying on four cases registered against the detenus in the years 2020 and 2021, the impugned detention orders are passed. Secondly, the alleged cases do not add up to “disturbing the public order” as the crimes alleged to have been committed by the detenus were against particular individuals. Hence, they are confined within the ambit and scope of the word “law and order.” Since the offences alleged are under the Indian Penal Code, the detenus can certainly be tried and convicted under the Indian Penal Code. Thus, there was no need for the detaining authority to invoke the draconian preventive detention law. Hence, the impugned orders tantamount to the colourable exercise of power. Thirdly, the detenus were granted conditional bail in two crimes relied upon by the detaining authority, i.e. Crime No. 255 of 2020 and Crime No. 16 of 2021 of Valigonda Police Station and the detenus have been complying the said conditions of bail. This fact was not placed before the detaining authority and the same was not considered and the said fact is not reflected in the impugned detention orders. On this ground alone, the impugned orders are legally unsustainable and are liable to be set aside. Lastly, law and order crimes were robbed as crimes affecting public order and the impugned detention orders were passed against the detenus mechanically, without looking into the facts of the case. Preventive detention laws cannot be invoked in every case as a matter of course and as an alternative to the punitive laws. The detaining authority has to be extremely careful while passing the detention order, since the detention ipso facto adversely affects the fundamental right of personal liberty enjoyed by the people under Article 21 of the Constitution of India. Thus, the impugned detention orders and the consequential confirmation orders are legally unsustainable and ultimately, prayed to set aside the same and allow the writ petitions, as prayed for. Thus, the impugned detention orders and the consequential confirmation orders are legally unsustainable and ultimately, prayed to set aside the same and allow the writ petitions, as prayed for. In support of her contentions, the learned counsel had relied on a decision of Division Bench of the erstwhile common High Court for the States of Telangana and Andhra Pradesh in Vasanthu Sumalatha and Others vs. State of Andhra Pradesh Rep. by its Chief Secretary, Hyderabad and Others, 2015 SCC Online Hyd. 790. 6. On the other hand, Sri. T. Srikanth Reddy, learned Government Pleader for Home representing the respondents would contend that the detenus in both these writ petitions are Goondas. They have engaged themselves in unlawful acts by indulging in series of bodily offences, attacking on general public on petty issues, attempt to murder and even gone to the extent of assault on police personnel while discharging their legitimate duties and terrifying the people of locality in the limits of Valigonda Police Station of Rachakonda Commissionerate and acting in a manner prejudicial to the maintenance of public order, apart from disturbing peace and tranquility in the society. The series of crimes allegedly committed by the detenus were sufficient to affect the even tempo of the society and create a feeling of insecurity in the minds of the people at large. All the mandatory provisions and the safeguards envisaged under the Constitution of India were strictly followed while passing the impugned detention orders and hence, the impugned detention orders do not suffer from illegality or impropriety. Further, the Advisory Board, in its review meeting, upon hearing the detenu and the concerned investigating officials and upon considering the entire material placed before it, rendered its opinion that there is sufficient cause for detention of the detenus. Subsequently, the impugned detention orders were confirmed by the Principal Secretary to Government, General Administration (Spl. Law and Order) Department, Government of Telangana, vide orders, dated 07.05.2021 and 12.04.2021 respectively. Further, in all the four cases relied upon by the detaining authority for detaining the detenus, the detenus got bail from the Courts concerned/were issued notice under Section 41A of Cr.P.C. Therefore, since there is an imminent possibility of the detenus committing similar offences, which are prejudicial to the maintenance of public order, the impugned detention orders were passed. Further, in all the four cases relied upon by the detaining authority for detaining the detenus, the detenus got bail from the Courts concerned/were issued notice under Section 41A of Cr.P.C. Therefore, since there is an imminent possibility of the detenus committing similar offences, which are prejudicial to the maintenance of public order, the impugned detention orders were passed. The detaining authority was legally justified in passing the impugned detention orders and ultimately, prayed to dismiss the writ petitions. 7. In view of the submissions made by both sides, the point that arises for determination in both these Writ Petitions is: “Whether the impugned detention orders, dated 10.03.2021 and 12.02.2021, passed by the Commissioner of Police, Rachakonda Commissionerate, respondent No. 2 and the confirmation orders, dated 07.05.2021 and 12.04.2021, passed by the Principal Secretary to Government, General Administration (Spl. Law and Order) Department, Government of Telangana, respectively, are liable to be set aside?” POINT: 8. In catena of cases, the Hon’ble Supreme Court had clearly opined that there is a vast difference between “law and order” and “public order.” The offences which are committed against a particular individual fall within the ambit of “law and order.” It is only when the public at large is adversely affected by the criminal activities of a person, is the conduct of a person said to disturb the public order. Moreover, individual cases can be dealt with by the criminal justice system. Therefore, there is no need for the detaining authority to invoke the draconian preventive detention laws against an individual. Invoking such law adversely affects the fundamental right of personal liberty, which is protected and promoted by Article 21 of the Constitution of India. Hence, according to the Hon’ble Supreme Court, the detaining authority should be wary of invoking the immense power under the Act. 9. In the case of Ram Manohar Lohia vs. State of Bihar, AIR 1966 SC 740 the Hon’ble Supreme Court has, in fact, deprecated the invoking of the preventive law in order to tackle a law and order problem. The Hon’ble Supreme Court has observed as under: “54. We have here a case of detention under Rule 30 of the Defence of India Rules which permits apprehension and detention of a person likely to act in a manner prejudicial to the maintenance of public order. The Hon’ble Supreme Court has observed as under: “54. We have here a case of detention under Rule 30 of the Defence of India Rules which permits apprehension and detention of a person likely to act in a manner prejudicial to the maintenance of public order. It follows that if such a person is not detained public disorder is the apprehended result. Disorder is no doubt prevented by the maintenance of law and order also but disorder is a broad spectrum which includes at one end small disturbances and at the other the most serious and cataclysmic happenings. Does the expression “public order” take in every kind of disorders or only some of them? The answer to this serves to distinguish “public order” from “law and order” because the latter undoubtedly takes in all of them. Public order if disturbed, must lead to public disorder. Every breach of the peace does not lead to public disorder. When two drunkards quarrel and fight there is disorder but not public disorder. They can be dealt with under the powers to maintain law and order but cannot be detained on the ground that they were disturbing public order. Suppose that the two fighters were of rival communities and one of them tried to raise communal passions. The problem is still one of law and order but it raises the apprehension of public disorder. Other examples can be imagined. The contravention of law always affects order but before it can be said to affect public order, it must affect the community or the public at large. A mere disturbance of law and order leading to disorder is thus not necessarily sufficient for action under the Defence of India Act but disturbances which subvert the public order are. A District Magistrate is entitled to take action under Rule 30(1)(b) to prevent subversion of public order but not in aid of maintenance of law and order under ordinary circumstances.” 10. In the case of Kanu Biswas vs. State of West Bengal, (1972) 3 SCC 831 the Hon’ble Supreme Court has opined as under: “The question whether a man has only committed a breach of law and order or has acted in a manner likely to cause a disturbance of the public order is a question of degree and the extent of the reach of the act upon the society. Public order is what the French call “order publique” and is something more than ordinary maintenance of law and order. The test to be adopted in determining whether an act affects law and order or public order, as laid down in the above case, is: Does it lead to disturbance of the current of life of the community so as to amount to a disturbance of the public order or does it affect merely an individual leaving the tranquility of the society undisturbed?” 11. In the instant case, the detaining authority relied on four crimes for preventively detaining the detenus, out of which, the detenus were alleged to be commonly involved in three crimes. We shall present the said four crimes in a tabular form the date of occurrence, the date of registration of FIRs, the offences complained of and their nature, such as bailable/non-bailable or cognizable/non-cognizable: Three crimes relied upon by the detaining authority in which, the detenus were alleged to be commonly involved S. No. Crime No. Date of Occurrence Date of registration of FIR Offences Nature 1. 233/2020 of Valigonda Police Station 10.10.2020 11.10.2020 Sections 324, 506 r/w 34 of IPC and Section 7 of Criminal Amendment Act Section 324: Cognizable/Non-bailable Section 506: Non-Cognizable/Bailable 2. 255/2020 of Valigonda Police Station 27.10.2020 27.10.2020 Sections 307, 341, 427, 504, 506 r/w 34 of IPC Section 307: Cognizable/Non-Bailable: Section 341: Cognizable/Bailable Sections 427, 504 and 506: Non-Cognizable/Bailable 3. 16/2021 of Valigonda Police Station 14.01.2021 15.01.2021 Sections 324, 506 and Section 7(1)(A) of Criminal Amendment Act, 1932 Section 324: Cognizable/Non-bailable Section 506: Non-Cognizable/Bailable Fourth Crime relied upon for preventively detaining the detenu in W.P. No. 12322 of 2021 S. No. Crime No. Date of Occurrence Date of registration of FIR Offences Nature 1. 15/2021 of Valigonda Police Station 14.01.2021 14.01.2021 Sections 332, 353, 427 and 7(1)(A) of Criminal Amendment Act, 1932 Sections 332 and 353: Cognizable/ Non-bailable Section 427: Non-Cognizable/Bailable Fourth Crime relied upon for preventively detaining the detenu in W.P. No. 12331 of 2021 S. No. Crime No. Date of Occurrence Date of registration of FIR Offences Nature 1. 227/2020 of Valigonda Police Station 26.09.2020 26.09.2020 Sections 324, 506 r/w 34 of IPC Section 324: Cognizable/Non-bailable Section 506: Non-Cognizable/Bailable 12. 227/2020 of Valigonda Police Station 26.09.2020 26.09.2020 Sections 324, 506 r/w 34 of IPC Section 324: Cognizable/Non-bailable Section 506: Non-Cognizable/Bailable 12. Placing reliance over the decision in Vasanthu Sumalatha’s case (supra), the learned counsel for the petitioners vehemently contended that the detenus in both these writ petitions were granted conditional bail in two cases relied upon by the detaining authority in which the detenus are alleged to be commonly involved, i.e. Crime No. 255 of 2020 and Crime No. 16 of 2021 of Valigonda Police Station and the detenus have been complying the said conditions of bail and that these conditional bails were not considered by the detaining authority while arriving at subjective satisfaction for invoking the draconian preventive detention law against the detenus. Further, the conditional bail granted to the detenus is not reflected in the impugned detention orders. On this ground alone, the impugned orders are legally unsustainable and are liable to be set aside. 13. A perusal of the material placed on record reveals that the detenus was granted conditional bail in two crimes relied upon by the detaining authority, i.e. Crime No. 255 of 2020 and Crime No. 16 of 2021 of Valigonda Police Station. In Crime No. 255 of 2020, the detenu in W.P. No. 12322 of 2021 was directed to appear before the Station House Officer, Valigonda Police Station on 15th and 30th day of every month between 03:00 P.M. and 08:00 P.M. for a period of three months or till filing of charge sheet, whichever is earlier; and the detenu in W.P. No. 12331 of 2020 was directed to appear before the Station House Officer, Valigonda Police Station, on the 1st and 15th day of every month between 10:00 A.M. and 03:00 P.M. for a period of four months or till filing of charge-sheet, whichever is earlier. Further, in Crime No. 16 of 2021, both the detenus were directed to appear before the SHO, Valigonda Police Station, between 10:00 A.M. and 11:00 A.M. on every Sunday till filing of charge-sheet of for two months, whichever is earlier. But, the conditional bail granted to the detenus by the Courts concerned in the aforesaid Crime Nos. 255/2020 and 16/2021 of Valigonda Police Station, as contended by the petitioner, does not find place in the impugned detention orders. But, the conditional bail granted to the detenus by the Courts concerned in the aforesaid Crime Nos. 255/2020 and 16/2021 of Valigonda Police Station, as contended by the petitioner, does not find place in the impugned detention orders. It is apt to state that non-consideration of the conditional bail order would amount to non-application of mind, as non-consideration of relevant and important material is fatal to the detention order. The conditional order of bail restricts the movement of the detenus and requires them to appear before the officer concerned periodically. Had the conditional bail orders granted to the detenus in Crime Nos. 255/2020 and 16/2021 been brought to the notice of the detaining authority, it might have resulted in the detaining authority arriving at the subjective satisfaction that the detention of the detenus was unnecessary. Failure of the sponsoring authority to place the conditional bail orders before the detaining authority is fatal, as it is a vital material, which would have weighed with the detaining authority at the time of passing the detention orders. In Vasanthu Sumalatha’s case (supra), a Hon’ble Division Bench of the erstwhile common High Court for the States of Telangana and Andhra Pradesh held as follows: 42. The bail order is a vital material for consideration. If it is not considered, the satisfaction of the detaining authority would be impaired. If it is considered, it would then be a document relied on by the detaining authority, though not specifically mentioned in the annexure to the order of detention, and ought to form part of the documents to be supplied to the detenu with the grounds of detention and without them, the grounds themselves cannot be said to have been complete. It amounts to denial of the detenu's right to make an effective representation and would be in violation of Article 22(5) of the Constitution of India. It would render the continued detention of the detenu illegal and entitle him to be set at liberty. 43. If the bail order, which is a vital material, is not considered, the satisfaction of the detaining authority itself would be impaired. [V. Muragesh vs. Collector and District Magistrate, Chittoor, MANU/AP/0862/2012 : 2013 Cri. L.J. 585, Durgam Subramanyam vs. Government of A.P. MANU/AP/1179/2012 : 2013 (4) ALT 243 , Kamal Kishore Saini MANU/SC/0303/1987 : (1988) 1 SCC 287 and M. Ahmedkutty MANU/SC/0427/1990 : (1990) 2 SCC 1 ]. [V. Muragesh vs. Collector and District Magistrate, Chittoor, MANU/AP/0862/2012 : 2013 Cri. L.J. 585, Durgam Subramanyam vs. Government of A.P. MANU/AP/1179/2012 : 2013 (4) ALT 243 , Kamal Kishore Saini MANU/SC/0303/1987 : (1988) 1 SCC 287 and M. Ahmedkutty MANU/SC/0427/1990 : (1990) 2 SCC 1 ]. Non-placing and non consideration of material, as vital as the bail order, vitiates the subjective decision of the detaining authority and the Court cannot attempt to assess in what manner, and to what extent, consideration of the order granting bail to the detenu would have affected the satisfaction of the detaining authority. [Rushikesh Tanaji Bhoite vs. State of Maharashtra, MANU/SC/0001/2012 : (2012) 2 SCC 72 ]. Failure of the sponsoring authority to place the conditional orders, granting anticipatory bail/bail, before the detaining authority is fatal as it is a vital material which would have weighed with the detaining authority at the time of passing the detention order. 14. In view of the above, the impugned detention orders are liable to be set aside on the ground of non-consideration of conditional bail granted to the detenus in two crimes relied upon by the detaining authority, i.e. Crime No. 255/2021 and Crime No. 16/2021, and non-mentioning about the same in the impugned detention orders. 15. For the reasons stated above, the impugned orders are legally unsustainable and are liable to be set aside. 16. In the result, the Writ Petition Nos. 12322 and 12331 of 2021 are allowed. The detention order Vide No. 17/PD CELL/CCRB/RCKD/2021, dated 10.03.2021, passed by respondent No. 2 and the consequential confirmation order vide G.O.Rt. No. 1059, General Administration (Spl. Law and Order) Department, dated 07.05.2021, passed by the Principal Secretary to Government, General Administration (Spl. Law and Order) Department, Government of Telangana, against the detenu in W.P. No. 12322 of 2021 and the detention order Vide No. 11/PD/CELL/CCRB/RCKD/2021, dated 12.02.2021, passed by respondent No. 2 and the consequential confirmation order vide G.O.Rt. No. 906, General Administration (Spl. Law and Order) Department, dated 12.04.2021, passed by the Principal Secretary to Government, General Administration (Spl. Law and Order) Department, Government of Telangana, against the detenu in W.P. No. 12331 of 2021 are hereby set aside. No. 906, General Administration (Spl. Law and Order) Department, dated 12.04.2021, passed by the Principal Secretary to Government, General Administration (Spl. Law and Order) Department, Government of Telangana, against the detenu in W.P. No. 12331 of 2021 are hereby set aside. The respondents are directed to set the detenus, namely Kallem Naresh S/o Dhavakhana (detenu in W.P. No. 12322 of 2021) and Kallem Srinu @ Bonagiri Srinu @ Karkuri Srinu @ Karkuri Ramesh S/o Davakhana @ Ramaswamy (detenu in W.P. No. 12331 of 2021) at liberty forthwith, if they are no longer required in any other criminal case. 17. Miscellaneous petitions, if any, pending in both these writ petitions, shall stand closed. There shall be no order as to costs.