Andhra HC (Pre-Telangana)
B. Srinivasa Rao vs Commissioner Of Police And Addl. ... on 6 August, 1997
Equivalent citations: 1997(5)ALD368, 1997(2)ALD(CRI)780
Author: V. Rajagopala Reddy
Bench: V. Rajagopala Reddy
JUDGMENT V. Rajagopala Reddy, J.
1. By an order dt. 23-1-1997 made in exercise of powers conferred under Section 3(2) of the Andhra Pradesh Prevention of Dangerous Activities of Boot-leggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986 (for short 'the Act'), the Commissioner of Police and Addl. District Magistrate, Visakhapatnam Metropolitan Area Police District, detained one B. Venkata Prasad, son of the petitioner, a remand prisoner. The order of detention states that the detenu is a goonda as defined under Section 2(g) of the Act and it was necessary to detain him as detenu with a view to prevent him from acting prejudicial to the maintenance of 'Public Order' and also in the interest of security of college-going girls and eliminate fear of insecurity among the parents in the society about their college-going daughters. The petitioner made a representations to the Government on 21-2-1997. The Advisory Board met on 28-2-1997. The Government issued the G.O. confirming the order of detention on 29-3-1997.
2. Learned Senior Counsel appearing for the petitioner raised three contentions :
1) The grounds furnished in the detention order do not relate to the maintenance of 'Public Order' but to Law and Order.
2) The detenu was in judicial custody on the date of the detention order and there was no apprehension of his releasing on bail and continue acts of rape against the college-going girls and thus cause insecurity among the parents of the society about their college-going daughters.
3) There is abnormal delay in consideration of the representation, by the Government, which vitiates the order of detention.
3. If a man should be deprived of his liberty, it should be done only under a law validly passed. Strict observance of the requirements of the law is ensured by the Courts. Even where a requirement of the law is breached in the slightest measure, Courts have not hesitated to strike down the order of detention. P. N. Bhagwati, J. (as he then was), in Smt. Icchu Devi Choraria v. Union of India, observed that (at Page 1986) :
"... We cannot forget that the power of preventive detention is a draconian power justified only in the interest of public security and order and it is tolerated in a free society only as a necessary evil. The power to detain without trial is an extraordinary power constituting encroachment on personal liberty and it is the solemn duty of the courts to ensure that this power is exercised strictly in accordance with the requirements of the Constitution and the law. The Courts should always lean in favour of upholding personal liberty, for it is one of the most cherished values of mankind. Without it life would not be worth living. It is one of pillars of free democratic society. Men have rightly laid down their lives at its altar in order to secure it, protect it and preserve it. The Constitution has therefore, while conceding the power of preventive detention, provided procedural safeguards with a view to protecting the citizen against arbitrary and unjustified invasion of personal liberty and the Courts have always zealously tried to uphold and enforce these safeguards."
In Vijay Narain Singh v. State of Bihar, , Chinnappa Reddy, J. (as he then was), observed in his concurring majority view, that (at Page 1336 of AIR) :
"... I do not agree with the view that those who are responsible for the national security or for the maintenance of public order must be the sole judges of what the national security or public order requires. It is too perilous a proposition. Our Constitution does not give a carte blanche to any organ of the State to be the sole arbiter in such matter .....
..... There are two sentinels, one at either end. The legislature is required to make the law circumscribing the limits within which persons may be preventively detained and providing for the safeguards prescribed by the Constitution and the Courts are required to examine, when demanded, whether there has been any excessive detention, that is, whether the limits set by the Constitution and the legislature have been transgressed ..."
Personal liberty is therefore the greatest of human freedoms and Courts have strictly construed the laws of preventive detention. M. N. Venkatachaliah, J. (as he then was) in Ayya alias Ayub v. State of U.P., , observed that (at Page 996 of Cri LJ) :
"10. There are well-recognised objective and judicial tests of the subjective satisfaction for preventive detention. Amongst other things, the material considered by the detaining authority in reaching the satisfaction must be susceptible of the satisfaction both in law and in logic. The tests are the usual administrative law tests where power is couched in subjective language. There is, of course, the requisite emphasis in the context of personal liberty. Indeed the purpose of public law and the public law Courts is to discipline power and strike at the illegality and unfairness of Government wherever it is found."
In the light of the above observations, it is to be seen whether the impugned order of detention was validly passed.
4. To consider the first contention, viz., whether the incidents referred to in the detention order relate to only Law and Order and not to 'Public Order' as contained therein, it is necessary to state the grounds of detention. They are :
"In the month of August, 1996 you induced one G. Kavitha, II Inter Student of S.V.L.N.P. College (Junior College), Gopalapatnam and took her to Cashew top at Adivivaram and there you enjoyed her sexually despite her protest and threatened her to kill, of she divulged to anybody and in the first week of December, 1996 at the instance of you, one G. R. Manohar also enjoyed the said Kavitha sexually.
On 14-12-96 in continuation of your criminal attitude, abducted the said Kavitha from the Picnic spot, Kailasagiri Hills by a white Maruthi Car bearing No. AP 31 E 8228 to Sagernager and there she was forcibly undressed, molested and raped her along with your friends under threat that you had her nude photos.
In this connection a case in Cr. No. 333/96 u/S. 376 r/w. 4\34, IPC has been registered at III Town L & O Police Station and investigating into.
On 21-12-96 you showed the nude photos secured from a magzine to Kavitha and threatened that you are having her nude photos and the said nude photos will be published, if she disobeys you.
On 23-12-96 morning at about 11.30 hrs., when the victim Kavitha got down from the Bus at Simhachalam Petrol Bunk, you along with your friend i.e., Mutchikarla Srinivasarao forcibly abducted her on your scooter bearing No. ATV 6968 and drove to the house of P. Srinivasarao, Physical Education Teacher situated at Krishnagar, Vepagunta, where she was confined in the bedroom and you forcibly removed her wearing apparels and raped her while your friends by name Ch. Satyanarayana, Ganesh, Srinivasa Rao, G. R. Manohar, Mutchikarla Srinivasarao and Prasad Reddy waiting in the hall. After enjoying her sexually, you went to the hall and later other accused raped her one after the other till 3 p.m. under the violence and threat to her life.
In this connection a case in Cr. No. 244/96 u/Ss. 376(2)(g), 366, 506 and 120-B, IPC has been registered at Pendurthi P.S. And now you are under Judicial custody as Remand Prisoner at Central Prison, Visakhapatnam."
5. In view of the above grounds, the allegation was that the detenu was habitually indulging in illicit acts and involving in anti-social activities, prejudicial to the society causing panic among the college-going girls and insecurity among their parents.
6. It is argued by the learned Senior Counsel that the incidents relate to committing of rape against the said Kavitha, only one individual, on three occasions, viz., in August, 1996, on 14-12-96 and 23-12-96. Therefore these incidents cannot be said to cause disturbance in the community so as to amount to disturbance of 'Public Order', when alone the order of detention can be made under the Act.
7. It is true that the incidents alleged in the detention order relate to only one individual, Kavita. But it should be noted that the offence of rape was regarded by the Courts as an offence against the humanity. When a woman was ravished, what is inflicted is not merely physical injury, but the deep sense of some deathless shame. Hence the said offence should not be regarded as an ordinary injury to a human being. This is not a case where the detenu had committed a solitary incident of rape in the heat of passion when the girl was found in a helpless condition. The detenu was alleged to have committed rape systematically 3 times against the said unfortunate girl Kavita. The gruesome act has become more horrible in view of the fact that his act enabled the other accused to commit gang-rape against her, more than twice. The first incident of rape committed in August, 1996 and he continued with the illicit act for the 2nd time on 14-12-96. At this incident the poor girl has become the victim of rape, not only by the detenu but by other four accused. Again on 23-12-1996, the detenu has taken away the girl forcibly, when the girls were picnicking and carried her on his scooter to a house, where she was again tortured committing rape by the detenu and other accused. It has to be noticed that the order of detention was passed u/S. 3(1) of the Act, which reads as follows :
"3. Power to make orders 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 preventing 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 person be detained."
A perusal of the language of the Section makes it clear that an order of detention can be made only if a person was acting prejudicial to the maintenance of Public Order. It is, therefore, necessary to see whether the incidents referred to in the detention order relate to 'Public Order' or simply affect the law and order, which can be taken care of by exercising the power under ordinary criminal law. The distinction between 'Public Order' and Law and Order has been succinctly brought out in a catena of decisions of the Apex Court.
In Ram Manohar Lohia v. State of Bihar, , the Court pointed out the difference between maintenance of law and order and its disturbance and the maintenance of Public Order and it has been held (at Page 627 of Cri LJ) :
"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.
... ... ...
One has to imagine three concentric circles. Law and Order represents the largest circle within which is the next circle representing public order and the smallest circle represents security of State. It is then easy to see that an act may affect law and order but not public order just as an act may affect public order but not security of the State."
Hidayatullah, C.J., speaking for the Court, in Arun Gosh v. State of West Bengal, , clarified the legal position on this point stating that it was the degree of disturbance and its effect upon the community in the locality, which determines whether the disturbance amounts only to a breach of law and order. It was held that (at Page 1137 of Cri LJ) :
"An act by itself is not determinant of its own gravity. In its quality it may not differ from another but in its potentiality it may be very different."
In Kanu Biswas v. State of West Bengal, ; Babul Mitra v. State of West Bengal, , and in several other decisions of the Apex Court the ratio in Arun Gosh case (5 supra) has been followed observing that the real test whether an act affects 'Public Order' or not, was whether it leads to disturbance of the even tempo of the life of the community or it affects merely an individual, leaving the tranquility of the society undisturbed.
In Moganti Srihari Rao v. Commissioner of Police and Addl. District Magistrate, Visakhapatnam, 1997 (3) ALD 215, a Division Bench of this Court comprising one of us, Y. Bhaskara Rao, J., has elaborately considered the effect of several decisions of the Supreme Court on the amplitude and scope of 'Public Order' and Law and order and summed up the legal position as follows :
"The law and order represents the largest circle, the next circle represents public order and the smallest circle represents the security of the State; and whether law and order is affected or public order is affected or security of the State is affected has to be decided as per the facts and circumstances of each case. There is vast distinction between public order and law and order. Every incident of law and order cannot be said to be incident of public order. Therefore, the court has to decide taking the facts and circumstances of each case whether there is threat to maintenance of public order or not."
8. Judging from the above principles the contention of the learned Counsel for the petitioner that the incidents mentioned in the detention order referred to only one girl Kavita, affecting only the said individual will not amount to disturbance to the Public Order, has no force. Four incidents are mentioned in the detention order, from which the detaining authority was satisfied that the detenu was indulging in illicit acts and involving in anti-social activities, being harmful to the society causing panic among the college-going girls and their parents. As earlier discussed, the detenu has been engaging in the cruel acts of committing rape and other illicit acts against the said girl, which are reprehensible. The said acts, enabling the other accused to commit gang rape against her, had affected not only the said girl and her family, but the entire student community in that locality and town. Girl students come from far flung places leaving the comfort and security of their homes and parents with the fond hope of acquiring knowledge in the Universities and colleges. If anyone of them was subjected to such cruel acts of forcible undressing, molestation and rape, it cannot be said that it would cause unhappiness and disturbance in the family of the concerned girl, but it would shock the sense of decency of the entire student community. Newspapers also it was submitted, have published the incidents in their harrific details. Learned Government Pleader vehemently argues that the incidents directed against the girl, caused panic in the entire community.
9. These acts, in our view, must have caused alarm and were prejudicial to the society. Whether only one girl was subjected to the illicit acts of the detenu or many other girls are subjected to, is not the relevant consideration. Since the illicit acts of the detenu are 'potential' enough, being of gruesome nature, to disturb the even tempo of the life of the community and not only touch the 'largest circle' of law and order but pierce into the 'next circle' representing Public Order. We have no doubt in our mind that the incidents mentioned, affect the Public order. Hence, we hold that the order of detention cannot be set aside on this ground.
10. It is next contended that the detention order is liable to be struck down on the ground that the detaining authority, having noticed that the detenu was under judicial custody, was justified in detaining him preventively only if he was satisfied that his release was imminent. No such satisfaction or awareness was evident from the deterntion order.
11. There is force in this submission. The order of detention says that it was necessary to make an order invoking the power under Section 3(2) of the Act directing the detenu, who was then remand prisoner, with a view to prevent him from acting in a prejudicial manner to the 'Public Order'. The grounds of detention also mention that the detenu was under judicial custody as a remand prisoner. The purpose of the order was therefore to prevent him from engaging in his activities, which were harmful to the society. At this stage it should be noticed that the detenu's bail application has been already dismissed before the Court below and normally in cases of rape the High Court will not grant bail to the accused. Then if he was already under custody, there is no justification for the authority to exercise his power, unless he was satisfied that there was likelihood of his being released on bail or for any other such reason. A person is detained by preventive detention without conducting any trial. Such a power, therefore, should be exercised only in exceptional cases and with great circumspection. There must be awareness on the part of the authorities that the detenu's release was imminent, in view of the fact that he might be released on bail and thereby continue his illicit acts. Without such satisfaction indicated in the order, since person was already under judicial custody, the order directing preventive detention should be struck down as an improper exercise of power.
12. Considering the same question, Sabyasachi Mukharji, J. speaking for the Court in Binod Singh v. District Magistrate, Dhanbad, Bihar, held that at page 1962 (of Cri LJ).
"There must be awareness of the facts necessitating preventive custody of a person for a social defence. If a man is in custody and there is no imminent possibility of his being released, the power of preventive detention should not be exercised. In the instant case when the actual order of detention was served upon the detenu, the detenu was in jail. There is no indication that this factor or the question that the said detenu might be released or that there was such a possibility of his release, was taken into consideration, by the detaining authority properly and seriously before the service of the order. A bald statement is merely an ipse dixit of the officer. If there were cogent materials for thinking that the detenu might be released then these should have been made apparent. Eternal vigilance on the part of the authority charged with both law and order and public order is the price which the democracy in this country extracts from the public officials in order to protect the fundamental freedoms of our citizens."
After elaborate review of the case law on the subject, in Dharmendra Suganchand Chelawat v. Union of India, , the Court arrvied at the following conclusions at Page 1237 (of Cri LJ) :
"........... that an order for detention can be validly passed against a person in custody and for that purpose it is necessary that the grounds of detention must show that (i) the detaining authority was aware of the fact that the detenu is already in detention; and (ii) there were compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression "compelling reasons" in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities."
A. M. Ahmadi, J. (as he then was) in Kamarunnisa v. Union of India, held that at Page 1948 (of AIR) :
"...... even in the case of a person in custory a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition to question it before a higher Court."
13. The detenu was already placed under judicial custody for the offences of Sections 376, 366, 506 and 120-B, I.P.C. and the Court below saw no reason to release him on bail and no material was stated to have placed before the Commissioner to see any possibility of his release on bail by this Court. Thus no such awareness was indicated in the order of detention. Hence, it should be held that the order of detention was illegal.
14. In view of the above finding, we do not propose to discuss the last point raised.
15. The order of detention is quashed. The writ petition is accordingly disposed of. No costs. However, this order will not have effect in his present judicial remand and the same has to be decided according to the merits of the criminal cases.
16. Order accordingly.