Andhra Pradesh High Court - Amravati
S . Shiva Prasad, vs The State Of Andhra Pradesh, on 18 September, 2019
Author: C.Praveen Kumar
Bench: C.Praveen Kumar, M.Satyanarayana Murthy
1
THE HON'BLE ACTING CHIEF JUSTICE C. PRAVEEN KUMAR
AND
THE HON'BLE SRI JUSTICE M. SATYANARAYANA MURTHY
W.P. No.10483 of 2019
ORDER :(Per Hon'ble Acting Chief Justice C.Praveen Kumar) Heard Sri S.Dushyanth Reddy, learned counsel for the petitioner and Sri P.Sudhakar Reddy, learned Additional Advocate General
2. The present writ petition is filed by one, S.Siva Prasad, who is brother of one, Sunkara Ramu, who is now detained in the Central Prison, Kadapa, seeking issuance of a writ of Habeas Corpus for the production of the detenu before this court and declare his detention as illegal, improper and incorrect.
3. By an order dated 19.3.2019, the Collector and District Magistrate, Chittoor ordered detention of the detenu Sri Sunkara Ramu under Section 3(1)(2) read with Section 2(a) and (g) of Act 1 of 1986 on the ground that he is a GOONDA within a meaning of Act and with a view to prevent him from acting in a manner prejudicial to the maintenance of the public order.
4. The Detention Order came to be passed basing on two incidents. The first incident relates to crime No.73 of 2017, registered for the offence under Section 120-B and 302 read with Section 34 I.P.C. In the said case on the night of 28.9.2017 at about 8.30 PM at Nooli Krishnappa Mango Garden situated at Peddapalle, hamlet of Matlivaripalle, Kurabalakota Mandal, A1 along with others, including detenu, conspired to eliminate his rival Jagadeswar Reddy and in pursuance of the plan, eliminated him. In respect of the said crime, detenu was arrested on 23.10.2017. On 11.1.2018, the detenu was released on bail. The second incident 2 relates to crime No.58 of 2018 of Madanapalle II Town Police Station wherein on 30.5.2018 between 3.00 PM and 3.15 PM near Narayana Junior College, Madanapalle Town, some unknown accused murdered the deceased Naga Jyothi, wife of Jithendra (advocate), residing at Ammineni Street, Madanapalle Town. On a report given by the sister of the deceased, a criminal case came to be registered and during the course of investigation, it came to light that the detenu is also involved in the crime along with other accused. In the said case the detenu was arrested on 27.6.2018 and since then, he is in jail, as the alleged detenu is hard core criminal indulging in violent and unlawful activities, more particularly in the second incident, wherein an Advocate was killed at the instance of her husband, who is also an Advocate. It is stated in the order that the acts of the accused have created a feeling of insecurity among the general public and he has acted in a manner prejudicial to the maintenance of the public order. The order of detention dated 19.3.2019 was approved by G.O.Ms.No.735, dated 28.3.2019. Advisory Board reviewed the case and submitted its report dated 18.4.2019 to the 1st respondent, who confirmed the order of detention for a period of 12 months from 28.3.2019. Challenging the same, the present petition came to be filed.
5. Sri S.Dushyanth Reddy, learned counsel appearing for the petitioner, would contend that the order of detention came to be passed while detenu was in judicial custody and that there was no cogent material before the authority to show that the detenu was likely to be released on bail. He would further submit that in the absence of any material to show that there is any likelihood of detenu coming out on bail, passing of the detention order is contrary to law laid down by the Apex Court. He further submits that there is no material to show that the version of the detaining authority that the general public are terrorized to 3 come out or to give statements during investigation and that there is every likelihood of detenu terrorizing the general public by muscle power has no basis. In fact, not even a single complaint has been referred to in the grounds of detention with regard to detenu threatening the public at large or the witnesses. It is further pleaded that the second incident is said to have been taken place on 30.5.2018 and nearly 10 months later, the detention order came to be passed with an abnormal delay. Hence, subjective satisfaction of the detaining authority is to be doubted, having regard to the time gap between the last incident and the date of passing of the detention order.
6. On the other hand, a counter came to be filed by the 2nd respondent disputing the averments made in the affidavit filed in support of the writ petition. It is specifically stated that the two incidents referred to in the grounds of detention can be made the basis to pass the detention order. It is stated that the accused has committed offences of similar nature and that he is habitual offender. It is pleaded that if no order of detention is passed and if he is released on bail, there is every likelihood of he involving in offences of similar nature. Insofar as the apprehension that he is likely to come out on bail, Sri Sudhakar Reddy, learned Additional Advocate General, would contend that though he is involved in a gruesome offence in the year 2017, he was granted bail and thereafter, he got himself involved in another crime, wherein an Advocate was killed at the instance of another Advocate, who is none other than the husband of the deceased therein. Therefore, he apprehends that there is every likelihood of detenu coming out on bail in the second crime, though no bail application is pending before the court as on today. As the investigation is over and charge-sheet is also filed, no court can detain a 4 person till completion of trial and if he is released on bail, the possibility of he involving in the offence of this nature cannot be ruled out.
7. As seen from the record, the grounds of detention refer to two incidents; the first incident relates to an incident which took place on 28.9.2017 vide crime No.73 of 2017 and the second incident is in respect of an incident which took place on 30.5.2018 vide crime No.58 of 2018. Detenu in the first crime was released on bail on 11.1.2018. About 4 ½ months after his release in crime No.73 of 2017, he was shown as an accused in crime No.58 of 2018. As stated by us earlier, much stress has been laid by the Additional Advocate General with regard to second incident, as it was a murder of an Advocate at the instance of her husband, who was also an Advocate. But the grounds of detention show that a case was registered against an unknown persons and thereafter the detenu along with others was shown as an accused. We cannot go into the facts of the case and the material against the accused, to look into his culpability and also as to whether the facts warrant his conviction.
8. The point is whether there is any likelihood of detenu coming out on bail?
9. In W.P.No.30421 of 2018, dated 20-2-2019, this Court held as under :
"The exercise of the extraordinary power, of detaining an individual, in contravention of the provisions of Article 22(2) of the Constitution, is not warranted where the grounds of detention do not disclose existence of any material before the detaining authority to support his conclusion that there was every likelihood of the detenue being released on bail in connection with the cases in respect of which he had been arrested. The power, vested with the detaining authority, should be invoked and implemented in a justifiable manner as a detention order is an exception to the provisions of Articles 21 and 22(2) of the Constitution {YummanOngbiLembiLeima (2012) 2 SCC 176} 5 In P.Surendra v. State of A.P., rep.by its Chief Secretary, Hyderabad and others1 a Division Bench of this Court held as under:
"21. Subsisting custody of the detenue, by itself, does not invalidate the order of preventive detention, and the decision in this regard must depend on the facts of the particular case. (Union of India v. Paul Manickam (20)(2003)8SCC 342). It is not the law that no order of detention can validly be passed against a person in custody under any circumstances. (Sanjay Kumar Aggarwal v. Union of India (21)(1990)3 SCC 309; Kamarunnissa (4 supra). If the facts and circumstances of the case so demand, resort can be had to the law of preventive detention even if the person is in custody. Even in the case of a person in custody, a detention order can be validly passed (1) if the authority, passing the order, is aware of the fact that he is actually in custody; (2) if he has a reason to believe, on the basis of reliable material placed before him (a) that there is a real possibility of his release on bail, and (b) that, on being released, he would, in all probability, indulge in prejudicial activities; and (d) if it is felt essential to detain him to prevent him from so doing. If an order is passed, after recording satisfaction in this regard, the order would be valid.
22. The detaining authority must show its awareness of the subsisting custody of the detenue, and take that factor into account while making the order. If the detaining authority is reasonably satisfied, with cogent material, that there is a likelihood of his release and, in view of his antecedent activities which are proximate in point of time, he must be detained in order to prevent him from indulging in such prejudicial activities, the detention order can be validly made. (Paul Manickam case) Factors, such as the detenue being in jail, must be objectively considered. If there are casual connections, and if a bona fide belief is formed, then there is nothing to prevent an order of preventive detention being served on a person who is in jail, provided the detaining authority is satisfied that there is an imminent possibility of his being released and set at liberty. (Suraj Pal Sahu v. State of Maharashtra (22) 1(1986) 4 SCC 378)"
In T.V.Sravanan alias S.A.R.Prasana Venkatachaariar Chaturvedi v. State through Secretary and another2, the Apex Court held that there should be cogent material before the detaining authority to come to the satisfaction with regard to imminent possibility of detenue coming out on bail.
In Champion R.Sangma v. State of Meghalaya and another3, it has been held by the Apex Court that even in the case of a person in custody, a detention 1 2016(1)ALT(Crl.)(AP)142(DB) 2 (2006)2 SCC 664 3 (2015)16 SCC 253 6 order can validly be passed i)if the authority passing the order is aware of the fact that he is actually in custody; ii)if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of he 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 doing so.
In Rekha v. State of Tamil Nadu through Secretary to Government and another4 a Bench of Three Judges observed that "Where a detention order is served on a person already in jail, there should be a real possibility of release of a person on bail who is already in custody provided he has moved a bail application which is pending. It follows logically that if no bail application is pending, then there is no likelihood of the person in custody being released on bail, and hence the detention order will be illegal. However, there can be an exception to this rule, that is, where a co-accused whose case stands on the same footing had been granted bail. In such cases, the detaining authority can reasonably conclude that there is likelihood of the detenue being released on bail even though no bail application of his is pending, since most courts normally grant bail on this ground.
In N.Meera Rani v. Government of Tamilnadu and another5 a Three Judges bench, while following the principles laid down in Rameshwar Shaw's case, took similar view and observed that absence of satisfaction about the likelihood of detenue being released on bail, render the detention order illegal. It was a case where detenue's application for grant of bail, in a dacoity case has been rejected and remanded to custody. In the detention order, it has been recorded that the detenu's preventive detention was necessary so as to prevent him from indulging in activities prejudicial to maintenance of public order and that he would indulge, if allowed to remain at large. The Court held that subsisting custody of the detenue itself does not invalidate an order of his preventive detention and the decision must depend on the facts of the particular case. In cases of preventive detention, where the detenue is already in custody, the detaining authority must show its awareness to the fact of subsisting custody of the detenue and take that factor into account while making the order."
10. Keeping in view the judgments of this Court and of the Apex Court referred to above, we shall now proceed to deal with the issue as to 4 (2011) 5 SCC 244 5 (1989)4 SCC 418 7 whether there is any material before the authority to show that he is likely to be released on bail.
11. The fact that the detenu was in jail as on the date of passing of the detention order is not in dispute. It is also not in dispute that he is in jail since 11.6.2018. No bail application of the alleged detenu is pending before any court as on the date of passing of the detention order.
12. Since the detenu was released on bail in crime No.73 of 2017, within a period of three months from the date of his arrest, the Additional Advocate General apprehends that there is every possibility of he being released on bail as charge-sheet is also filed in the said case. It may be true that the Police have filed a charge-sheet, but it is not a rule that in all cases where charge-sheets are filed, the accused have to be released on bail. It all depends upon the facts and circumstances of each case. When no bail application is pending before any court seeking release, the apprehension that since he was released in the earlier crime, which was registered in the year 2017, he may also be released, appears to be farfetched. Every case will have to be decided basing on the material available on record. As said, no two criminal cases are similar and the apprehension of release on the ground that he was released in another case, cannot be accepted. Even if an application seeking bail is filed, the Public Prosecutor has every right to oppose the same by placing the material against the accused on record. What could not be achieved there cannot be achieved by passing the order of detention. The exercise of extraordinary power of detaining an individual, in contravention of Article 22(2) of the Constitution of India, is not warranted when the grounds of detention do not disclose existence of any material before the detaining authority to support his conclusion that there was likelihood of detenu being released on bail in connection with a case, in which he is in jail as 8 on the date of passing of the detention order. The power vested with the detaining authority should be invoked in a justifiable manner, as the detention order is an exception to the provisions of Articles 21 and 22(2) of the Constitution of India.
13. The learned Additional Advocate General relied upon the judgment of the Apex Court in Subramanian v. State of T.N.6 to contend that acts of the accused have created a feeling of insecurity in the general public as he acted in a manner prejudicial to the maintenance of the public order. But neither the grounds of detention, nor the order of detention refer to any complaint from any quarters, or by any individual, expressing a sense of insecurity in their minds with regard to the acts of the accused. When the accused is in jail since 11th June, 2018, it cannot be said that there was a feeling of insecurity in the minds of the general public with regard to the acts of the accused, in the month of March, 2019, when the detention order came to be passed. No iota of material has been placed to show the feeling of insecurity among the general public, if he is released on bail, or that his acts were creating a sense of insecurity to their person and property while on bail. It may be true that the detenu was involved in two incidents and participated in ghastly incidents of murder. Every murder is gruesome in its own way and the gravity of offence and the punishment to be awarded shall be based on the evidence adduced. Merely because he was released on bail in a case, about 1 year 6 months earlier, by itself cannot be an apprehension for his release in the second crime. One cannot understand as to why the detaining authority has to wait for 10 months after his arrest, if really such an apprehension was there. Though it is now alleged that since a charge-sheet is filed, the detenu would be released on bail, but in a case of this nature, a charge- 6 (2012) 4 SCC 699 9 sheet has to be filed within a period of 90 days, which is by September, 2018, failing which he would be entitled for statutory bail. Therefore, the argument of the learned Additional Advocate General that there is likelihood of detenu being granted bail, since the entire investigation is over and charge-sheet is filed cannot be a ground to say that there is a likelihood of detenu being released on bail, more so, when no application for bail is pending before any court, nor any attempt being made seeking release.
14. Hence, the Writ Petition is allowed setting aside the detention order, dated 19.3.2019. No order as to costs.
Consequently, miscellaneous petitions pending, if any, shall stand closed.
________________________________________________ ACTING CHIEF JUSTICE C. PRAVEEN KUMAR __________________________________________ JUSTICE M. SATYANARAYANA MURTHY Date: 18.09.2019 SKMR