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2021 DIGILAW 33 (TS)

Kammati Amrutha v. State of Telangana

2021-01-29

A.RAJASEKHAR REDDY, SHAMEEM AKTHER

body2021
ORDER : Dr. Shameem Akther, J. 1. Kammati Amrutha, W/o. Anjaiah, the petitioner, has filed the present Habeas Corpus petition, on behalf of her nephew, Kurra Anjaiah, S/o. Lachaiah, challenging the detention order, dated 11.08.2020, passed by the respondent No. 2-Commissioner of Police, Ramagundam, and the consequential confirmation order, dated 20.08.2020, passed by the respondent No.1-State of Telangana, represented by its Principal Secretary, Home Department, Hyderabad. 2. We have heard the learned counsel for both sides and perused the record. 3. Briefly, the facts of the case are that by relying on three recent criminal cases registered against the detenu during the year 2020 in the limits of Ramagundam and Karimnagar Police Commissionerates, the Commissioner of Police, Ramagundam, the respondent No. 2, passed the detention order, dated 11.08.2020. According to the respondent No. 2, the detenu indulged in the acts of goondaism by committing series of offences such as Burglaries, Automobile Thefts and Bodily Offence and created fear in the minds of general public. With a view to prevent the detenu from acting in a manner prejudicial to the maintenance of public order, the impugned detention order, dated 11.08.2020, was passed. The detention order was confirmed by the Principal Secretary to Government, General Administration (Spl. (Law and Order)) Department, Government of Telangana, respondent No. 1, vide G.O.Rt. No. 1218, dated 20.08.2020. Hence, this Writ Petition before this Court. 4. Ms. Sujatha Kurapati, learned counsel for the petitioner, has vehemently contended that the impugned detention order was passed by relying on three cases i.e., 1) Crime No. 223 of 2020 of Peddapalli Police Station, registered for the offence punishable under Section 379 I.P.C., 2) Crime No. 270 of 2020 of Mancherial Town Police Station, registered for the offence punishable under Section 379 I.P.C. and 3) Crime No. 133 of 2020 of Basanthnagar Police Station, registered for the offences punishable under Sections 457 and 380 I.P.C. The offences alleged against the detenu in the said cases do not amount to disturbing the public order. They fall within the ambit and scope of law and order. The bail petitions moved in Crime Nos. 223 of 2020 and 133 of 2020 were dismissed on 04.08.2020, but in Crime No. 270 of 2020 the detenu was granted bail on 04.08.2020 and again on 07.08.2020, the detenu moved bail petitions in Crime Nos. 223 of 2020 and 133 of 2020 and the same are pending consideration. The bail petitions moved in Crime Nos. 223 of 2020 and 133 of 2020 were dismissed on 04.08.2020, but in Crime No. 270 of 2020 the detenu was granted bail on 04.08.2020 and again on 07.08.2020, the detenu moved bail petitions in Crime Nos. 223 of 2020 and 133 of 2020 and the same are pending consideration. Admittedly, the detenu is in judicial custody since 06.07.2020 and the detaining authority on the apprehension that if he is released on bail, there is every likelihood of his indulging in similar offences, which are prejudicial to the maintenance of public order, passed the impugned detention order. Since the offences alleged against the detenu are under the Indian Penal Code, he can certainly be tried and convicted under the Indian Penal Code. The ordinary law was already invoked against the detenu to curb his illegal activities and invoking the preventive detention law, as an alternative method, is abuse of process of law. Further, the representation submitted by the detenu to the Advisory Board is pending. Therefore, the impugned detention order and the consequential confirmation order are unsustainable and the same are liable to be set aside. 5. On the other hand, Sri T. Srikanth Reddy, learned Government Pleader for Home, appearing on behalf of the learned Additional Advocate General, would submit that the detenu is involved in as many as nine (09) cases of Burglaries, Automobile Thefts and Bodily Offence. The series of crimes allegedly committed by him are sufficient to cause a feeling of insecurity in the minds of the people at large. While passing the impugned detention order, the detaining authority is well aware of the fact that the detenu is in judicial custody. The detenu was granted bail in one case and if he is released on bail in other two cases also, there is every likelihood of his indulging in similar offences, which are prejudicial to the maintenance of public order. The recourse to normal law may not be an effective deterrent in preventing him from indulging in further unlawful activities. The case of the detenu was referred to the Advisory Board. After hearing the detenu and the investigating officer, the Advisory Board rendered its report/opinion, whereby and whereunder, the Advisory Board opined that there is sufficient cause for detention of the detenu. The case of the detenu was referred to the Advisory Board. After hearing the detenu and the investigating officer, the Advisory Board rendered its report/opinion, whereby and whereunder, the Advisory Board opined that there is sufficient cause for detention of the detenu. The Government, upon receipt of the report/opinion from the Advisory Board and upon considering the entire material, confirmed the detention of the detenu vide order, dated 20.08.2020. There is no representation of the detenu pending before the Advisory Board, as alleged by the learned counsel for the petitioner. The authorities concerned are legally justified in passing the impugned orders. There are no grounds to grant the relief sought by the petitioner and ultimately, prayed to dismiss the Writ Petition. 6. In view of the submissions made by both the sides, the point that arises for determination in this Writ Petition is: "Whether the detention order, dated 11.08.2020, passed by respondent No. 2 and the consequential confirmation order, dated 20.08.2020, passed by respondent No. 1 are liable to be set aside?" POINT: 7. 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, the conduct of a person is 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. For the invoking of such law adversely effects the fundamental right of personal liberty which is protected and promoted by Article 21 of the Constitution of India. Hence, according to the Honourable Apex Court, the detaining authority should be wary of invoking the immense power under the Act. 8. In the case of Ram Manohar Lohia v. State of Bihar AIR 1966 SC 740 , the Honourable 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. 8. In the case of Ram Manohar Lohia v. State of Bihar AIR 1966 SC 740 , the Honourable 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. 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." 9. 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." 9. In the case of Kanu Biswas v. State of West Bengal (1972) 3 SCC 831 , the Honourable 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?" 10. In the present case, the detenu is said to be involved in three criminal cases i.e., Crime Nos. 223/2020, 270/2020 and 133/2020 and the detaining authority relying upon the said crimes, passed the impugned detention order. We shall present it in a tabular column the date of occurrence, the date of registration of FIR, the offences complained of and their nature, such as bailable/non-bailable or cognizable/non-cognizable. Crime No. Date of Occurrence Date of registration of FIR Offences Nature Cr. No. 223/2020 of Pedapalli PS 22/23.05.2020 06.06.2020 379 I.P.C. Non-bailable/cognizable Cr. No. 270/2020 of Mancherial Town PS 25.06.2020 04.07.2020 379 I.P.C. Non-bailable/cognizable Cr. No. 133/2020 of Basanthnagar PS 30.06.2020/01.07.2020 01.07.2020 457 and 380 I.P.C. Non-bailable/cognizable 11. A perusal of the impugned detention order reveals that the detenu moved bail petitions in all the three cases relied by the detaining authority before the Courts concerned and he was granted bail by the Court concerned in one case i.e., in Crime No. 270/2020. The bail petitions moved by the detenu in the remaining two cases are pending consideration before the Courts concerned and hence, he continues to be in judicial custody. The bail petitions moved by the detenu in the remaining two cases are pending consideration before the Courts concerned and hence, he continues to be in judicial custody. Under these circumstances, the apprehension of the detaining authority that since the detenu was granted bail in one crime, there is every possibility of his getting bail in the remaining cases and in the event of his release on bail, there is imminent possibility of committing similar offences, which are detrimental to the public order, unless he is prevented from doing so by an appropriate order of detention, is highly misplaced. It is the bounden duty of the Police to inform the learned Public Prosecutor about the conduct of an accused and to handover the history-sheet of the accused. The police ought to have been vigilant in collecting the whole data against the detenu and to furnish the same to the Public Prosecutor/Additional Public Prosecutor to defeat the bail application/s of the detenu. However, it is the Police that have to take required measures to inform the Public Prosecutor about the criminal history of the offender. For the inaction of the Police, the detaining authority cannot be permitted to invoke the preventive detention laws, in order to breach the liberty of an individual. 12. Grave as the offences may be, they relate to theft and lurking house trespass. So, no inference of disturbance of public order can be drawn. These cases can be tried under the normal criminal law. Hence, there was no need for the detaining authority to pass the detention order. 13. For the reasons stated above, the impugned orders are legally unsustainable and are liable to be set aside. 14. In the result, the Writ Petition is allowed. The impugned detention order vide C. No. 12/PDCELL/CCRB/RGM/2020, dated 11.08.2020, passed by respondent No. 2, and the consequential confirmation order vide G.O.Rt. No. 1218, General Administration (Spl. (Law & Order)) Department, dated 20.08.2020, passed by respondent No. 1 are hereby set aside. The respondents are directed to set the detenu, namely Kurra Anjaiah, S/o. Lachaiah, at liberty forthwith, if he is no longer required in any other criminal case. The miscellaneous petitions pending in this Writ Petition, if any, shall stand closed. There shall be no order as to costs.