Telangana High Court
Saleti Satyaveni vs The State Of Telangana on 25 July, 2019
Author: Shameem Akther
Bench: Raghvendra Singh Chauhan, Shameem Akther
HIGH COURT FOR THE STATE OF TELANGANA
THE HON'BLE THE CHIEF JUSTICE RAGHVENDRA SINGH CHAUHAN
AND
THE HON'BLE Dr. JUSTICE SHAMEEM AKTHER
Writ Petition No.8873 of 2019
Date: 25.07.2019
Between:
Smt. Saleti Satyaveni
...Petitioner
And
The State of Telangana,
Rep by its Principal Secretary,
General Administration Department
Secretariat, Hyderabad and others
...Respondents
Counsel for the petitioner : Sri Koppalla Gopal for Ms. J. Sumathi
Counsel for the respondents : The Advocate General
The Court made the following:
W.P.No.8873 of 2019
2 HCJ & Dr. SAJ
ORDER:(Per the Hon'ble Dr. Justice Shameem Akther) Smt. Saleti Satyaveni, the petitioner, has filed this present Habeas Corpus petition on behalf of her mother, Smt. Saleti Laxmi, W/o. Late Madhava Rao, the detenu, challenging the detention order, dated 31.10.2018, passed by the Commissioner of Police, Cyberabad Police Commissionerate, the respondent No.2, and the confirmation order dated 10.01.2019 passed by the Principal Secretary to Government (POLL), General Administration (Spl. (Law and Order) Department, Government of Telangana, the respondent No.1.
Heard the learned counsel for the parties, and perused the impugned orders.
Briefly, the facts of the case are that by relying on the two recent cases registered against the detenu in the year 2018, the Commissioner of Police, Cyberabad Police Commissionerate, the respondent No.2, passed the detention order dated 31.10.2018. According to the respondent No.2, the detenu was involved in three offences of immoral trafficking of women in the limits of Cyberabad Police Commissionerate. But, merely relying on the two recent cases registered against the detenu in the year 2018, the detention order was passed. According to respondent No.2, the detenu is an 'Immoral Traffic Offender' and has been organizing prostitution by procuring female sex workers from different places. Subsequently, by order dated 10.01.2019, the detention order was confirmed by the Principal Secretary to Government (POLL), General Administration (Spl. (Law and Order) Department, Government of W.P.No.8873 of 2019 3 HCJ & Dr. SAJ Telangana, the respondent No.1. Hence, this writ petition before this Court.
Sri Koppalla Gopal, learned counsel, appearing for Ms. J. Sumathi, learned counsel for the petitioner, has raised the following contentions before this Court:
Firstly, that relying only on the two cases registered against the detenu in the year 2018, the detention order is passed.
Secondly, the alleged cases do not add up to "disturbing the public order". They are confined within the ambit and scope of the word "law and order". Since the offences alleged are under the Indian Penal Code and the Immoral Traffic (Prevention) Act, 1956, the detenu can certainly be tried and convicted under the Penal Code and the special law. Thus, there was no need for the detaining authority to invoke the draconian preventive detention laws. Hence, the impugned order tantamount to the colourable exercise of power. Thus, the impugned orders are legally unsustainable.
On the other hand, Mr. S. Sharath, the learned Special Government Pleader, pleads that in two cases relied by the detaining authority, the detenu managed to get bail from the Courts concerned. The series of crimes allegedly committed by her were sufficient to cause a feeling of insecurity in the minds of the people at large. Since the modus of committing the crime was organizing prostitution by procuring female sex workers from different places by promising to pay lucrative amounts, it has created sufficient panic in the minds of the general public. W.P.No.8873 of 2019
4 HCJ & Dr. SAJ Therefore, the detaining authority was legally justified in passing the impugned orders. Hence, the learned Government Pleader has supported the impugned orders.
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 31.10.2018, passed by the respondent No.2, and the confirmation order, dated 10.01.2019, passed by the respondent No.1, are liable to be set aside?"
POINT:
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. 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 Apex Court, the detaining authority should be wary of invoking the immense power under the Act.
In the case of Ram Manohar Lohia v. State of Bihar1, the Hon'ble Supreme Court has, in fact, deprecated the invoking of the 1 AIR 1966 SC 740 W.P.No.8873 of 2019
5 HCJ & Dr. SAJ 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 W.P.No.8873 of 2019
6 HCJ & Dr. SAJ public order but not in aid of maintenance of law and order under ordinary circumstances."
In the case of Kanu Biswas v. State of West Bengal2, the 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?"
In the present case, the detaining authority relied on two cases registered against the detenu for preventively detaining her vide Crime Nos.360/2018 and 511/2018. We shall present them in a tabular column 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.
Date of Date of Crime No. registration Offences Nature Occurrence of FIR Section Section 370A :
370A of IPC Cognizable/ 360/2018 of and Non-Bailable;
07.04.2018 07.04.2018 KPHB PS Sections 3, Sections 3, 4, 4, 5 & 6 of 5 & 6 of PITA :
PITA Cognizable 2 (1972) 3 SCC 831 W.P.No.8873 of 2019 7 HCJ & Dr. SAJ Section Section 370A : 370A of IPC Cognizable/ 511/2018 of and Non-Bailable; 28.05.2018 28.05.2018 KPHB PS Sections 3, Sections 3, 4, 4, 5 & 6 of 5 & 6 of PITA : PITA Cognizable
A bare perusal of the detention order clearly reveals that the detaining authority is concerned by the fact that in both the criminal cases relied upon by it, the detenu was granted bail by the Courts concerned and she was released from prison. However, the apprehension of the detaining authority that since the detenu was released from the prison on bail, her free movement in the society is not in the interest of the society and that there is imminent possibility of her indulging in similar prejudicial activities which are detrimental to public order, unless she is prevented from doing so by an appropriate order of detention, is highly misplaced. It is the bounden duty of the police concerned to hand over the entire material record available to the Public Prosecutor/Assistant Public Prosecutor to defeat the bail application/s of the detenu. If the Police were vigilant enough to collect the data on the alleged offenders, and to furnish the relevant information to the learned Public Prosecutors, the same could be placed by the learned Public Prosecutors before the concerned Court. However, it is the Police that have to take required measures to inform the learned 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.
W.P.No.8873 of 2019
8 HCJ & Dr. SAJ Grave as the offences may be, they relate to trafficking of women. So, no inference of disturbance of public order can be drawn. These type of cases can certainly be tried under the normal criminal justice system and under special law. And, if convicted, can certainly be punished by the Court of law. Thus, the cases do not fall within the ambit of the words "public order". Instead, they fall within the scope of the words "law and order". Hence, there was no need for the detaining authority to pass the detention order.
Therefore, for the reasons stated above, the impugned orders are legally unsustainable.
In the result, the Writ Petition is allowed. The impugned detention order dated 31.10.2018 passed by the respondent No.2 and the confirmation order dated 10.01.2019 passed by the respondent No.1 are hereby set aside. The respondents are directed to set the detenu, namely, Smt. Saleti Laxmi, W/o. Late Madhava Rao, at liberty forthwith, if she is no longer detained in judicial custody in the criminal cases, which have been so far registered against her.
The miscellaneous petitions pending in this Writ Petition, if any, shall stand closed. There shall be no order as to costs.
___________________________ RAGHVENDRA SINGH CHAUHAN, HCJ ___________________________ Dr. SHAMEEM AKTHER, J th 25 July, 2019 Bvv