Karnataka High Court
Sangeeta Sunkrol vs The Addl. District Magistrate And ... on 16 October, 2024
Author: S.Sunil Dutt Yadav
Bench: S.Sunil Dutt Yadav
-1-
NC: 2024:KHC-K:7698-DB
WPHC No. 200006/2024
R
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 16TH DAY OF OCTOBER, 2024
PRESENT
THE HON'BLE MR. JUSTICE S.SUNIL DUTT YADAV
AND
THE HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR
WRIT PETITION HABEAS CORPUS NO. 200006/2024
BETWEEN:
SMT. SANGEETA SUNKROL
W/O SATISH SUNKROL
(SATISH @ MARKET SATYA AS SHOWN IN
DETENTION ORDER DATED 29.05.2024)
AGED ABOUT 31 YEARS
R/A. YAKUB MANIYAR CHAWL
HEAD POST, KALABURAGI
PRESENTLY RESIDING AT:
#16-1-480,
POOSALBASTHI,
SAIDABAD,
HYDERABAD,
TELANGANA - 500 059.
...PETITIONER
Digitally signed
by VIDYA G R (BY SRI SANDESH CHOUTA, SENIOR ADVOCATE A/W
Location: HIGH SRI LAKSHMIKANTH G., ADVOCATE)
COURT OF
KARNATAKA
AND:
1. THE ADDL. DISTRICT MAGISTRATE AND
POLICE COMMISSIONER
KALABURAGI CITY
BY SRI CHETHAN R.
2. STATE OF KARNATAKA
BY UNDER SECRETARY
HOME DEPARTMENT (LAW & ORDER)
VIDHANA SOUDA
BENGALURU - 560 001.
-2-
NC: 2024:KHC-K:7698-DB
WPHC No. 200006/2024
3. SUPERINTENDENT
CENTRAL JAIL
BALLARI - 583 103.
... RESPONDENTS
(BY SRI Y.H. VIJAY KUMAR, ADDITIONAL ADVOCATE GENERAL A/W SRI MALLIKARJUNA BASAREDDY, GOVERNMENT ADVOCATE) THIS WRIT PETITION HABEAS CORPUS IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT OF HABEAS CORPUS DECLARING THAT THE DETENTION OF SRI SATISH @ MARKET SATYA S/O VENKATSWAMI REDDY BY ORDER DATED 29.05.2024 BEARING REFERENCE NO.01/GOONDA/MAG-2/KC/2024 AT ANNEXURE-A & A-1 PASSED BY RESPONDENT NO.1 UNDER SEC.3(1) & (2) OF THE GOONDA ACT, AND APPROVAL ORDER BEARING REFERENCE NO.HD 233 SST 2024, BENGALURU DATED 05.06.2024 AT ANNEXURE-B PASSED BY THE R2 UNDER SEC.3(3) OF THE GOONDA ACT AND CONFIRMATION ORDER BEARING REFERENCE NO.HD 233 SST 2024, BENGALURU DATED 15.07.2024 AT ANNEXURE-E PASSED BY RESPONDENT NO.2 UNDER SECTION 12 OF THE GOONDA ACT AS ILLEGAL AND VOID AB INITIO AND ETC.
THIS WRIT PETITION HABEAS CORPUS PERTAINING TO KALABURAGI BENCH, RESERVED ON 01.10.2024 AND COMING ON FOR PRONOUNCEMENT OF ORDERS AT PRINCIPAL BENCH, BENGALURU THROUGH VIDEO CONFERENCING, THIS DAY, S. SUNIL DUTT YADAV J., MADE THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE S.SUNIL DUTT YADAV AND HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR -3- NC: 2024:KHC-K:7698-DB WPHC No. 200006/2024 CAV ORDER (PER: HON'BLE MR. JUSTICE S.SUNIL DUTT YADAV) The petition has been filed by the wife of the detenu seeking for a declaration that detention of Satish Sunkrol @ Market Satya by order dated 29.05.2024 bearing No.01/Goonda/MAG-2/KC/2024 passed by the learned Additional District Magistrate and Police Commissioner, Kalaburagi City under Section 3(1) & (2) of 'The Karnataka Prevention of Dangerous Activities of Bootleggers, Drug-
Offenders, Gamblers, Goondas, Immoral Traffic Offenders, Slum-Grabbers and Video or Audio Pirates Act, 1985 [hereinafter referred to as 'the Act'] as being illegal and void. The petitioner has also challenged the Order of Approval dated 05.06.2024 bearing Reference No.HD 233 SST 2024 passed under Section 3(3) of the Act as well as the Confirmation Order dated 15.07.2024 bearing Reference No.HD 233 SST 2024 passed under Section 12 of the Act as being illegal.-4-
NC: 2024:KHC-K:7698-DB WPHC No. 200006/2024
2. The timeline of the orders passed, drawn from the synopsis of the petitioner is self-explanatory and the same is reproduced as hereunder:
Sl. Description/Events Particulars/Date No.
1. Writ Petition preferred by Smt. Sangeeta Sunkrol
2. Relationship with detenu Wife
3. Detenu's Name Sri Satish @ Market Satya S/o. Venkatswami Reddy
4. Order of Detention 29.05.2024
5. Arrest of Detenu 30.05.2024
6. The State approved the 05.06.2024 detention
7. The State confirmed and 15.07.2024 extended the detention for a period of one year
3. The detention order dated 29.05.2024 is passed by the respondent No.1-Additional District Magistrate and Police Commissioner, Kalaburagi City and is enclosed at Annexure-'A'. The said order narrates that the detune is a 'Goonda' as defined under Section 2 of the Act and was a "professional criminal habituated to commit offence against persons and property punishable under Chapters VIII, XVI, XVII and XXII of IPC" and has been passed with -5- NC: 2024:KHC-K:7698-DB WPHC No. 200006/2024 a view to "curb his anti-social activities, causing breach of peace and tranquility...".
4. The satisfaction of respondent No.1 that the detenu is "most likely to act prejudicially to the interest of public and indulge in criminal activities, thorough overt and covert means, in case of release from custody". The order is passed by invoking Section 3(1) & (2) of the Act.
5. The grounds for the order for detention have been passed on 29.05.2024 making out a case as follows:-
i) Developing own group and starting criminal activities;
ii) Involved in overt and covert offences;
iii) Assaulting public with dangerous weapons, attempting to murder, abusing in filthy language, picking quarrels, forming unlawful assembly.
iv)Assaulting in public places, disturbing public peace and tranquility.
v) Threatening complainant and witnesses for life, assaulting those who deposed against the Detenu in Court, rioting, etc. -6- NC: 2024:KHC-K:7698-DB WPHC No. 200006/2024
6. The grounds further detail offences under various statutory provisions including under IPC, SC/ST Act, Indian Arms Act.
7. The chronology of the occurrence of offences since the year 2009 have been detailed as hereunder:
S.No. Police Station Date of Cr. No.& Section of Present status of the case Report Law 1 R.G. Nagar PS, 01-10-2009 93/2009 U/Sec.147, Prl. Session's Judge Kalaburagi Kalaburagi City 148, 448, 504, 324, 307 in SC No.232/2014, after trial, R/w 149 IPC. acquitted on 30-09-2019.
2 Chowk PS, 12-02-2010 36/2010 U/Sec.341, III Addl. JMFC Kalaburagi in CC Kalaburagi City 504, 506 R/w 34 IPC No.2614/2011 after trial, acquitted on 01-01-2019
3. Chowk PS, 14-06-2011 128/2011 U/Sec.323, II Addl. Session's Judge Kalaburagi City 324, 504, 506, 307 IPC Kalaburagi in SC No.456/2011 & 3(1) (11) SC/ST PA after trial, acquitted on 04-05-
Act. 2015 4. Brahmpur PS, 09-12-2012 128/2012 U/Sec.341, IV Addl. JMFC Kalaburagi in CC Kalaburagi City 323, 324, 504, 506 R/w No.4263/2015 after trial, 34 IPC acquitted on 05-03-2018 5. Chowk PS, 13-01-2013 12/2013 U/Sec.399, III Addl. Session's Judge Kalaburagi City 401, 120(B) IPC & 25 of Kalaburagi in SC No.58/2017 Indian Arms Act after trial, acquitted on 02-07- 2018 6. Roza PS, 21-10-2013 63/2013 U/Sec.399, III Addl. Session's Judge Kalaburagi City 402 IPC Kalaburagi in SC No.74/2015 after trial, acquitted on 14-04- 2019 7. Chowk PS, 28-02-2014 27/2014 U/Sec. 143, V Addl. Session's Judge Kalaburagi City 147, 148, 341, 324, Kalaburagi in Spl. Case 302, 504, 506, R/w 149 No.42/2014 after trial, IPC & 3(1)(10), 3(2)(5) acquitted on 07-09-2019 SC/ST PA Act. -7- NC: 2024:KHC-K:7698-DB WPHC No. 200006/2024 8. R.G. Nagar PS, 06-01-2015 01/2015 U/Sec.386, II Addl. Session's Judge Kalaburagi City 504, 506 R/w 149 IPC Kalaburagi in CC No.9591/2022. the case is pending for enquiry, ND:12-06-2024 9. Chowk PS, 19-07-2015 121/2015 U/Sec.143, I Addl. Session's Judge Kalaburagi City 147, 148, 323, 324, Kalaburagi in SC No.244/2017 342, 365, 307, 448, after trial, acquitted on 20-08- 504, 506 R/w 149 IPC 2018 10. Station Bazar 12-07-2015 132/2015 U/Sec.143, Prl. Session's Judge Kalaburagi PS, Kalaburagi 147, 148, 341, 307, in SC No.55/2020 after City 326, R/w 19 IPC completion of trial, ND: 04-06- 2024 11. Chowk PS, 31-12-2015 210/2015 U/Sec.399, III Addl. Session's Judge Kalaburagi City 402 IPC Kalaburagi in SC No.63/2018 after trial, acquitted on 10-12- 2019 12. Station Bazar 03-03-2016 61/2016 U/Sec.143, Prl. JMFC Kalaburagi in CC PS. Kalaburagi 147, 504, 506 R/W 149 No.5351/2016 after trial, City IPC acquitted on 02-03-2020 13. Station Bazar 04-07-2016 137/2016, U/Sec. 143. Prl. Session's Judge, Kalaburagi PS. Kalaburagi 307 R/W 149 IPC & 25, SC No.28/2019 pending for trial City 27 Arms Act. ND:31-05-2024 14. Station Bazar 04-07-2016 138/2016 U/Sec. 353. III Addl. Session's Judge,
PS. Kalaburagi 307, 504, R/w 34 IPC Kalaburagi, SC No.27/2019. In City this case, accused persons Market Satya & Appushya @ Bandayya, are convicted U/Sec.353 IPC, for 2 years imprisonment and fine of Rs.10,000/-
15. Brahmapur PS, 21-01-2016 20/2016 U/Sec. 143, II Addl. Session's Judge Kalaburagi City 147, 148, 109, 302 R/w Kalaburagi in Spl. Case (SC/ST) 149 IPC & 3 (1), 3(2) No.25/2016, after trial, (5) SC/ST Act acquitted on 20-03-2018 -8- NC: 2024:KHC-K:7698-DB WPHC No. 200006/2024
16. Tunga Nagar PS, 15-12-2016 586/2016 U/Sec. 3, 25 III Addl. JMFC at Shivamogga Shivamogga (1) (aa) Indian Arms CC No.797/2019, pending for Act & 41 (d) CRPC & enquiry, ND: 27-06-2024, NBW 120(b) 307, R/w 34 IPC is passed against accused on 23-04-2024, but NBW not executed ND:27-06-2024
17. Shrirangapattan 29-11-2016 124/2016 U/Sec. 75 IPC III Addl. Session's Judge Rural PS, & 3, 25 (a) 25(1a) Shrirangapatna, SC Mandya Indian Arms Act No.5068/2022 pending for trial, ND:06-06-2024.
18. Shrirangapattan 29-10-2016 537/2016 U/Sec.395, III Addl. JMFC, Shrirangapatna PS, Mandya 363 IPC SC No.5009/2020 pending for
19. K.R. Sagar PS, 15-02-2017 62/2017 U/Sec. 75, trial, ND:06-06-2024.
Mandya 347, 363, 386, 395 IPC 20. Chowk PS, 23-03-2017 46/2017 U/Sec.143, Prl. Session's Judge, Kalaburagi Kalaburagi City 147, 148, 341, 326, Spl. KCOCA Case No.1/2017 109, 120(b), 393, 307, pending for trial, ND:04-06- 201, 212 R/w 149 IPC & 2024. 2 (d) (e) (f) & 3(1)(2) 3(2) 3(4) 3(5) (KCOCA Act) 21. Chowk PS, 30-05-2018 140/2018 U/Sec.504, II Addl. JMFC Kalaburagi in CC Kalaburagi City 506 IPC. No.220/2020, after trial, acquitted on 13-01-2023 22. Brahmapura, 18-10-2020 105/2020 U/Sec.341, IV Addl. JMFC, Kalaburagi, CC Kalaburagi City 504, 506 R/w 34 IPC No.10478/2021 pending for trial, ND:04-06-2024. 23. Sub Urban 03-11-2020 133/2020 U/Sec.399, V Addl. JMFC, Kalaburagi CC Station PS, 402 IPC No.48/2021 pending for trial, Kalaburagi City ND:04-06-2024. 24. Siadabad PS, 26-10-2020 365/2020 U/Sec.341, VII Addl. CMM Court Telangana State 323, 506 R/w 34 IPC Hyderabad, CC No.16363/2020, pending for enquiry, ND:10-07- 2024 25. Bagalgunti PS, 08-04-2021 134/2021 U/Sec.399, XXXI Addl. CMM Court, Bangalore CCB 402 IPC 7, 254(1b)(b) Bengalore, SC No.1225/2023, Unit Arms Act. pending for enquiry, ND:09-07- 2024. -9- NC: 2024:KHC-K:7698-DB WPHC No. 200006/2024
8. The grounds of detention also contains details of proceedings under Section 107 of Cr.P.C. which are as follows:
S No. PS Name Date of Report PAR No. & Present status Section 1 Chowk 11.02.2023 12/2023 Dated: 15.03.2023 MAG U/s 107 No.:131/2023, Bonded CrPC Over 2 Chowk 17.03.2024 22/2024 Dated: 15.03.2023 MAG U/s 107 No.:131/2023, Bonded CrPC Over
9. The details of the cases pending against ten of his accomplices are detailed and contain name of the accomplice, cases registered against them and details of the provision of law under which case is registered along with details of the police station.
10. The order containing the grounds of detention also details reasons for confinement as follows:
(i) Crime in inter-district and inter-state
(ii) Conviction by the courts
(iii) Prime accused in many heinous cases
(iv) Rowdy sheeter and habitual offender
(v) NBW issued for non appearance in court cases
(vi) No respect towards the law of the land
- 10 -
NC: 2024:KHC-K:7698-DB WPHC No. 200006/2024
(vii) Goonda in nature and tendency to form unlawful assembly
(viii) Atrocity on SC/ST community
(ix) Purchasing and selling illegal weapons
(x) Prime accused in KCOCA cases
(xi) Torturing people brutally
(xii) Tendency to indulge in acts prejudicial to public peace and tranquility
11. It was further stated in the said order that 'A' type Rowdy Sheet was opened against the detenu at Chowk Police Station Kalaburagi City and that the detenu was a threat to public tranquility, that the detenu has misused the opportunities granted by means of bail and involved himself in anti-social activities. It was stated that when the Police tried to apprehend the detenu, he used to go absconding and make appearance before the Court for obtaining anticipatory bail. It is also averred that the he had not changed his lifestyle and continued to disturb peace and tranquility of public. It was observed that many of the people had not given complaints out of fear, owing to his goonda nature and those who had dared to give complaints or appear as witnesses have turned hostile due
- 11 -
NC: 2024:KHC-K:7698-DB WPHC No. 200006/2024 to his threats. The Detaining Authority was of the "opinion that your Goondaism has resulted in disturbance of public peace and tranquility Kalaburagi City. Your propensity of terrorizing public has been successful. The people in the city are feeling unsafe. If you are let free, you will again be indulging in the same activities, prejudicial to public peace and tranquility. You have also indulged in tampering and destroying evidence. Intimidating innocent people, assaulting them fatally, attempting to murder them and committing extortion etc., are the order of day for you. The reports before me are self-evident that you have committed grave crimes time and again, as defined in provisions of Chapter-III, V, VIII, XVI, XVII, XVIII & XXII of IPC. Therefore, I am of explicit opinion that the provisions of Sec.2(g) regarding definition of Goonda, of The Karnataka Prevention of Dangerous activity of Bootleggers, Drug Offenders, Gamblers, Goondas, Immoral Traffic Offenders, Slum Grabbers, Act, 1985 (Karnataka Act No.12 of 1985), and Amendment Act 2009, is aptly applicable to you". Accordingly, it is stated that it
- 12 -
NC: 2024:KHC-K:7698-DB WPHC No. 200006/2024 was necessary to detain the detenu under Section 8 of the Act for maintaining public peace and tranquility. It was concluded as follows, "Hence, for the reasons discussed above, you are a 'Goonda'as defined U/Sec.2(g) of the Act, who has no respect rather fear for the law of the land. You have been time and again indulged in disturbing the public peace and tranquility. Therefore, acting U/Sec.3(1) of the Act, I have passed the order for your detention on 29.05.2024."
12. The order provided that the detenu could make a representation to the advisory board and could avail of other legally permissible opportunities before the advisory board.
13. Finally, the Confirmation Order has been passed, which orders have been challenged in the present proceedings.
14. The contentions of the petitioner are adverted to in the course of analysis of the grounds raised to avoid
- 13 -
NC: 2024:KHC-K:7698-DB WPHC No. 200006/2024 repetition. The legal attack as regards orders of Preventive Detention are often on the ground that the order of Preventive Detention must be supported by the existence of a 'live and proximate link' between the past conduct and present imperative need to detain the detenu. The Courts have held that an order of preventive detention must be passed by due application of mind and taking note of relevant factors. If orders are passed on the basis of incidents which are stale, it is often stated that incidents not being of relevance to establish imperativeness in passing an order of detention and such orders passed must be treated as being based on extraneous factors. The observations made by the Apex Court at para-22 in Sama Aruna v. State of Telangana and Another1, would be of appropriate relevance and are extracted herein below:
"22. We are of the view, that the detention order in this case is vitiated by taking into account incidents so far back in the past as would have no bearing on the immediate need to detain him without a trial. The satisfaction of the authority is 1 (2018) 12 SCC 150
- 14 -
NC: 2024:KHC-K:7698-DB WPHC No. 200006/2024 not in respect of the thing in regard to which it is required to be satisfied. Incidents which are stale, cease to have relevance to the subject-matter of the enquiry and must be treated as extraneous to the scope and purpose of the statute."
15. In such cases, the question would also arise regarding validity of an order of detention where after the last of such incidents there is a lull and after a substantial time lag an order of detention is sought to be passed. The detaining authority must establish habituality of commission of offences that could be directly linked to a pattern of behavior. In order to establish such pattern of behavior which would reasonably indicate continuing commission of offences, the authority must establish intermittent commission of offences which would indicate a regular pattern.
16. In series of judgments, the Apex Court has held that the order of detention must not be based upon stale events and the relevant observations made by the Apex
- 15 -
NC: 2024:KHC-K:7698-DB WPHC No. 200006/2024 Court in Ameena Begum v. State of Telangana and Others2 are as follows:
"19. In holding that the order of detention therein was grounded on stale grounds, the Court in Sama Aruna [Sama Aruna v. State of Telangana, (2018) 12 SCC 150 : (2018) 3 SCC (Cri) 441] held that : (SCC p. 158, para 17)
"17. ... The detention order must be based on a reasonable prognosis of the future behaviour of a person based on his past conduct in light of the surrounding circumstances. The live and proximate link that must exist between the past conduct of a person and the imperative need to detain him must be taken to have been snapped in this case. A detention order which is founded on stale incidents, must be regarded as an order of punishment for a crime, passed without a trial, though purporting to be an order of preventive detention. The essential concept of preventive detention is that the detention of a person is not to punish him for something he has done but to prevent him from doing it."
(emphasis supplied) 2 (2023) 9 SCC 587
- 16 -
NC: 2024:KHC-K:7698-DB WPHC No. 200006/2024
20. This was further affirmed by this Court in Khaja Bilal Ahmed v. State of Telangana [Khaja Bilal Ahmed v. State of Telangana, (2020) 13 SCC 632 : (2020) 4 SCC (Cri) 629] , where the detention order dated 2- 11-2018 issued under the Act had delved into the history of cases involving the appellant detenu from the years 2007-2016, despite the subjective satisfaction of the officer not being based on such cases. In quashing such an order, Hon'ble Dr D.Y. Chandrachud, J. (as the Chief Justice then was) observed : (SCC pp. 645-46, para 23) "23. ... If the pending cases were not considered for passing the order of detention, it defies logic as to why they were referred to in the first place in the order of detention. The purpose of the Telangana Offenders Act, 1986 is to prevent any person from acting in a manner prejudicial to the maintenance of public order. For this purpose, Section 3 prescribes that the detaining authority must be satisfied that the person to be detained is likely to indulge in illegal activities in the future and act in a manner prejudicial to the maintenance of public order. The satisfaction to be arrived at by
- 17 -
NC: 2024:KHC-K:7698-DB WPHC No. 200006/2024 the detaining authority must not be based on irrelevant or invalid grounds. It must be arrived at on the basis of relevant material; material which is not stale and has a live link with the satisfaction of the detaining authority. The order of detention may refer to the previous criminal antecedents [Ed. : The word between two asterisks has been emphasised in original.] only [Ed. : The word between two asterisks has been emphasised in original.] if they have a direct nexus or link with the immediate need to detain an individual. If the previous criminal activities of the appellant could indicate his tendency or inclination to act in a manner prejudicial to the maintenance of public order, then it may have a bearing on the subjective satisfaction of the detaining authority. However, in the absence of a clear indication of a causal connection, a mere reference to the pending criminal cases cannot account for the requirements of Section 3. It is not open to the detaining authority to simply refer to stale incidents and hold them as the basis of an order of detention. Such stale material will have no bearing on the
- 18 -
NC: 2024:KHC-K:7698-DB WPHC No. 200006/2024 probability of the detenu engaging in prejudicial activities in the future."
(emphasis supplied)
28. In the circumstances of a given case, a constitutional court when called upon to test the legality of orders of preventive detention would be entitled to examine whether:
28.7. The satisfaction has been arrived at bearing in mind existence of a live and proximate link between the past conduct of a person and the imperative need to detain him or is based on material which is stale;"
17. The burden of establishing this 'proximate and live link' is on the detaining authority. The law of Preventive Detention which results in detention without trial though is sanctioned by article 22 of the grundnorm i.e. the Constitution, this provision of preventive detention still falls within Part-III of the Constitution of India and the only way of reconciling preventive detention with the other rights of the same Chapter under Articles 14, 19 and 21 is by treating it as an exception and requiring making
- 19 -
NC: 2024:KHC-K:7698-DB WPHC No. 200006/2024 out of grounds justifying preventive detention in a strict manner3.
18. In the present case, the order of detention is passed by the detaining authority invoking power under Sections 3(1) and 2 of the Act on 29.05.2024. The detailed enumeration of offences involving the detenu starting from 2009 till date of passing of the order would indicate registering of First Information Reports commencing from 01.10.2009 and continuing till 08.04.2021.
19. Between 08.04.2021 and 29.05.2024 admittedly there are no incidents warranting registration of even first information reports. Insofar as such apparent time gap of about approximately thirty-five (35) months, the State points out to proceedings under Section 107 of Cr.P.C. initiated on the basis of report dated 11.02.2023 and 17.03.2024 as is evidenced by the table extracted supra at 3 The Apex Court in Icchu Devi Choraria v. Union of India - (1980) 4 SCC 531, has observed at para 5 that the burden of showing the detention is in accordance with the procedure established by law has been placed by the Court on the Detaining Authority in light of the mandate under article 21 of the Constitution of India
- 20 -
NC: 2024:KHC-K:7698-DB WPHC No. 200006/2024 para-8. The question as to whether proceedings under Section 107 would amount to establishing of 'proximity' as well as 'live link' and justifying imperativeness in passing an order of preventive detention, requires to be addressed.
20. No doubt, the proceedings under Section 107 of Cr.P.C. does indicate that the Executive Magistrate acting upon information that any person is likely to commit breach of peace or disturb public tranquility may require such person to execute a bond for keeping peace. However, it must be noticed that the proceedings under Section 107 do not by themselves constitute an offence punishable under Chapters-VIII, XV, XVI, XVII, XXII of IPC as is required to declare a person as a 'Goonda' in terms of Section 2(g) of the Act. The absence of an incident leading to registration of first information report for about thirty- five (35) months is too long a period to establish a continued propensity to once again commit offence affecting 'public order'. The apprehension of the Executive
- 21 -
NC: 2024:KHC-K:7698-DB WPHC No. 200006/2024 Magistrate under section 107 of Cr.P.C. if is to constitute a 'live link' is required to be backed by some additional material as well which is absent in the present case.
21. The grounds of detention that could constitute a 'live link' are repeat offences proximate to passing of the detention order since the last incident. Certain acts in the interregnum may not constitute offences but may still indicate potentiality of indulging in crime. An effort towards demonstration of the above by the police authorities is by referring to certain grounds such as; "NBW issued for non-appearance in Court cases; no respect towards the law of the land; tendency to indulge in acts prejudicial to public peace and tranquility; rowdy sheeter and habitual offender".
However it must be noticed that the above grounds that may cast an impression of apprehension of breach of law must be supported by material, though may not constitute an offence, material must be sufficient to at least constitute a seed of the impending offence. Mere
- 22 -
NC: 2024:KHC-K:7698-DB WPHC No. 200006/2024 vague assertions of habitual offender ipso facto may not be sufficient. The observations made by the Apex Court in Khudiram Das v. State of West Bengal and Others 4, in the context of subjective opinion regarding the detenu on the basis of available material, of immediate relevance to present context are as follows:-
"9. ... Then again the satisfaction must be grounded "on materials which are of rationally probative value". Machindar v. King [AIR 1950 FC 129 : 51 Cri LJ 1480 : 1949 FCR 827] . The grounds on which the satisfaction is based must be such as a rational human being can consider connected with the fact in respect of which the satisfaction is to be reached..."
22. The assertion regarding issue of NBW for non- appearance in Court cases, if was supported by reference to the incidents of non-appearance without obtaining exemptions from appearance in the case referred at ground No.5, perhaps could have been considered as an aspect of behavior in contravention of legal requirement of 4 (1975) 2 SCC 81
- 23 -
NC: 2024:KHC-K:7698-DB WPHC No. 200006/2024 appearance unless exempted in criminal proceedings. However, in the absence of furnishing of order-sheet reflecting Court proceedings in "Crime No. 586/2016 of Tunganagar PS, Shimogga District", there can be no inference drawn of his non-adherence to mandatory appearance in criminal proceedings in the absence of objectively verifiable material. No doubt, in the order of detention which enumeration the involvement in criminal offences punishable under various chapters of IPC, at Sl. No.16 though it is mentioned that the NBW was issued against the accused on 23.04.2024 but not executed, such assertions by itself may not be sufficient unless the order sheet reflecting Court proceedings was produced and furnished to the accused.
23. It is necessary to note that even after enumeration of the grounds of detention, if the same is premised on material, the same must be shared with the detenue.
- 24 -
NC: 2024:KHC-K:7698-DB WPHC No. 200006/2024
24. In light of the detaining authority referring to issuance of NBW as a reason for confinement, it was necessary that such document was furnished to the detenu which admittedly has not been served. The reason for construing any deviation in procedure of furnishing relied upon documents as being fatal to the order of preventive detention is the primacy given the right to reply and appose an order of preventive detention as envisaged under Article 22(5) of the Constitution of India.
The constitutional right contained under Article 22 sub-clause (5) of making a representation against the order of preventive detention will be rendered nugatory unless the grounds of detention are not only clear but the documents relied upon are furnished. If the ground made out is NBW was issued for non-appearance in Court cases, in such event as observed above unless the court proceedings indicating absence of attendance without exemption are communicated to the detenu, the right of representation will remain an illusory right that cannot be effectuated. Accordingly, inspite of details being furnished
- 25 -
NC: 2024:KHC-K:7698-DB WPHC No. 200006/2024 regarding issuance of NBW in a portion of detention order that by itself will not be sufficient in the absence of document evidencing court proceedings to enable effective reply. It needs to be noted that while the order of detention itself details the availment of an opportunity of representation, at such point of time the detenu is already under detention and accordingly, if the detenu is required to make out a reply or representation while in custody, it would be necessary that the detenu must be furnished with the documents relied upon. Non-supplying of such documents as in the present case, the record containing the proceedings would indeed prejudice the right of the detenu to make out a representation and would consequently initiate the order of detention.
25. The contention of the State that the aspect of prejudice is required to be demonstrated as the detenu is party to the legal proceedings cannot be accepted in light of his right to representation being exercised when he is
- 26 -
NC: 2024:KHC-K:7698-DB WPHC No. 200006/2024 already under detention and accordingly, access to records cannot be effectively exercised.
26. Other assertions in ground No.6 viz., 'no respect towards law of land' or ground No.4 'Rowdy sheeter and habitual offender' or ground No.12 'tendency to indulge in acts prejudicial to public peace and tranquility' are either vague as in case of ground No.12 as no specific incident is narrated so as to fill in the gap between 08.04.2021 and 29.05.2024 or are stale grounds as the rowdy sheet referred to in ground No.4 relates to the rowdy sheet opened on 19.08.2011.
27. Accordingly, the lack of demonstration of a proximate link between 08.04.2021 and 29.05.2024 has resulted in the order of detention being based on stale incidents. The assertion of habitual offender or absence of respect towards law of the land and other assertions as made in the ground of detention are not sufficient to maintain the thread of connection between the last incident and the order of detention in the absence of any
- 27 -
NC: 2024:KHC-K:7698-DB WPHC No. 200006/2024 material to substantiate propensity to commit crime realistically. Thus, the order stands vitiated.
The requirement of 'proximity/live link' is required to demonstrate imperativeness in invoking power of preventive detention more so where criminal prosecution is pending which proceedings may culminate in imposition of a punitive sentence. It is a settled position of law that the power of passing an order of preventive detention cannot be a punitive measure on the apprehension however reasonable it maybe that the detenu is going to go scot free in the pending trials due to lack of support to the prosecution by the crucial witnesses or otherwise.
28. The power of preventive detention as the very word indicates has to be used bono fidely for the purpose of prevention of possible criminal offences by the detenu based on past behavior with a pattern of repeat offences. The observations of the Apex Court in Khudiram Das (supra) would throw light on the above, the relevant observations are as follows:-
- 28 -
NC: 2024:KHC-K:7698-DB WPHC No. 200006/2024 "8.... The power of detention is clearly a preventive measure. It does not partake in any manner of the nature of punishment. It is taken by way of precaution to prevent mischief to the community. Since every preventive measure is based on the principle that a person should be prevented from doing something which, if left free and unfettered, it is reasonably probable he would do, it must necessarily proceed in all cases, to some extent, on suspicion or anticipation as distinct from proof..."
29. When the incidents constituting the last incident stops about thirty-five (35) months back and as discussed above the thread of connectivity between the last incident and the order of preventive detention is lost. The order of detention can be stated to be based on stale events in the absence of live link.
30. Intertwined with the issue of proximity and live link are other factors that have vitiated the order of detention in the present case. It is a settled position that the grounds of detention cannot be vague but must be
- 29 -
NC: 2024:KHC-K:7698-DB WPHC No. 200006/2024 certain and spelling out a ground that can be demonstrated to be absent by the detenu. To enable such effort of demonstration, the ground itself should be clear enough to enable demonstrating its absence.
31. In the present case the ground No.12, 'tendency to indulge in acts prejudicial to public peace and tranquility' is vague as it is not supported by material incidents that are verifiable, ground No.8 'atrocities on SC/ST communities', ground No.6 'no respect towards law of the land', suffer from similar vice of vagueness without any support from factual and material assertions based on legally recognizable events. Though in ground No.6 there is a specific assertion detenu has "time and again violated the terms and conditions imposed by the Court at the time the bail", no details are forthcoming as to the incidents constituting breach of the terms and conditions imposed at the time of granting bail. Admittedly, copies of the order enlarging the detenu on bail containing the conditions are not produced nor served upon the detenu.
- 30 -
NC: 2024:KHC-K:7698-DB WPHC No. 200006/2024 Considering that the right to represent against the order of detention is exercised while he is in detention, non furnishing of documents can be taken ipso facto causing prejudice.
Similarly, while referring to ground No.8, there is no enumeration of incidents. No doubt as regards ground No.8, certain cases relating offences under SC/ST Prevention of Atrocities Act are mentioned but it is also necessary to link the commission of offences under the SC/ST Prevention of Atrocities Act, so as to reveal the commission of offences as regards a community so as to affect 'public order' and not constitute merely a 'law and order' situation. A perusal of the allied offences along with the SC/ST Prevention of Atrocities Act, would indicate that the allied offences are offences against persons relating to bodily injury of individuals and though may constitute an issue of law and order but however, cannot be construed to be offences leading to an issue of public order namely, an issue between different communities and the like
- 31 -
NC: 2024:KHC-K:7698-DB WPHC No. 200006/2024 circumstances which only can be construed to be an issue affecting public order.
32. It is necessary to notice that there is a difference between the concept of law and order and public order. The legal basis of an order of preventive detention as under the Act of 1985 has the adverse effect on the maintenance of public order. The explanation to Section 2 of the Act throws light on the expression 'public order' as follows:
Explanation.- For the purpose of this clause, public order shall be deemed to have been affected adversely or shall be deemed likely to be affected adversely inter alia if any of the activities of any of the persons referred to in this clause directly or indirectly, is causing or is calculated to cause any harm, danger or alarm or a feeling of insecurity, among the general public or any section thereof or a grave or widespread danger to life or public health"
- 32 -
NC: 2024:KHC-K:7698-DB WPHC No. 200006/2024 The repeated use of the word 'public order' must be understood in terms of the explanation and in contra distinction to meaning ascribed to the word law and order.
33. The distinction between 'law and order and public order' is best expressed in the words of Hon'ble M. Hidayatullah, J. in Ram Manohar Lohia v. State of Bihar5 are as follows:
"54. ...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 5 1965 SCC Online SC 9
- 33 -
NC: 2024:KHC-K:7698-DB WPHC No. 200006/2024 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...
55. It will thus appear that just as "public order" in the rulings of this Court (earlier cited) was said to comprehend disorders of less gravity than those affecting "security of State", "law and order" also comprehends disorders of less gravity than those affecting "public order".
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..."
34. The above observation of Hon'ble M. Hidayatullah, J. is self-explanatory and would clearly indicate that though there is an overlap between law and order and public order, every incident that may affect law and order need not necessarily lead to an issue of public
- 34 -
NC: 2024:KHC-K:7698-DB WPHC No. 200006/2024 order. It is for the detaining authority to demonstrate that incident resulting in a law and order situation has also graduated in to an issue of public order which alone can justify passing of an order of preventive detention. Unless there is such analysis, the order of preventive detention may fail on the ground of not reflecting application of mind or on the ground that the test of fulfillment of public order remains unfulfilled. The overlap of law and order, public order and security of state as envisaged by Hon'ble M. Hidayatullah, J. can be depicted pictorially as below:
- 35 -
NC: 2024:KHC-K:7698-DB WPHC No. 200006/2024
35. The order of detention does not spell out by reasons as to how the offences not merely constitute a breach of 'law and order' but in fact constitutes breach of 'public order' and unless such distinction is made out, mere use of expressions disturbing public peace, tranquility, etc., are not sufficient. The burden upon the State while passing orders of preventive detention is onerous, warranting clarity in exercise of power on grounds of public order and not merely of law and order. The requirement of nexus between the offences stated to have been committed and the breach of public order must be clearly established and lack of such demonstration in the order itself would also make the order being passed without application of mind.
36. Though the State has contended that the order of preventive detention can still be upheld if any one ground of detention is made out and mere invalidity of some grounds would not vitiate the order in its entirety, however, in the present case the requirement of proximity
- 36 -
NC: 2024:KHC-K:7698-DB WPHC No. 200006/2024 and live link being a sine qua non of order of detention and in the absence of proximity and live link, the entirety of the order stands vitiated. Accordingly, the question of entering into sustainability of each of the grounds by clinical dissection also does not arise.
37. No doubt, the Apex Court has clarified in Bhupendra v. State of Maharashtra and Another6 that though the incident may not be of immediate proximity but may indicate a pattern, however, in the present case, a perusal of the nature of offence also does not reflect any pattern indicating continued propensity to commit offences affecting public order.
38. The details of the cases pending would reflect offences of various kinds including offences against the body, offences relating to property (robbery), offences relating to rioting with dangerous weapons. The offences enumerated cannot lead to the inference of a pattern of commission of offences relating to public order. Keeping in 6 (2008) 17 SCC 165
- 37 -
NC: 2024:KHC-K:7698-DB WPHC No. 200006/2024 mind the distinction between offences affecting law and order and those affecting public order, there is no pattern regarding commission of offences relating to the latter category. Accordingly, the contention of the State that the aspect of proximity cannot be defeated if there exists a pattern, is liable to be rejected in light of the above discussion.
39. It must be noticed that the role of the advisory board is a constitutional protection afforded in cases of detention without trial in order to protect personal liberty. The Apex Court in Nenavath Bujji etc. v. State of Telangana and Others7, has dealt with the duties of an Advisory Board at paragraph Nos.55 to 62 and emphasized that the opinion of the Advisory Board ought to lead to confirmation only upon the evaluation and scrutiny by the Board as an independent authority which itself ought to determine that such order of detention is necessary. It is also observed that the Advisory Board is take into 7 2024 SCC Online SC 367
- 38 -
NC: 2024:KHC-K:7698-DB WPHC No. 200006/2024 consideration all aspects and not just the subjective satisfaction of the detaining authority but must also examine whether such satisfaction justifies detention of the detenu. The Apex Court has opined that "59. ... The advisory board must consider whether the detention is necessary not just in the eyes of the detaining authority but also in the eyes of law". It is emphasized that the role of the Advisory Board does amount to an independent scrutiny as envisaged under Article 22 of the Constitution of India.
40. If such guideline and legal mandate of the Advisory Board are kept in mind, the present opinion of the Advisory Board falls short of such independent evaluation. A perusal of the said opinion would reveal that the opinion expressed does not reflect an "independent scrutiny". The requirement of an independent scrutiny would call for not only as regards to the subjective satisfaction of the detaining authority but also the
- 39 -
NC: 2024:KHC-K:7698-DB WPHC No. 200006/2024 justification in law for passing an order of preventive detention.
41. The distinction between the judicial review of an order of detention as also an order of confirmation of detention preceded by an opinion of the Advisory Board would necessarily involve commenting upon the opinion of the Advisory Board. The supremacy of judicial review though in the present case by a Bench of two Judges, would subject the opinion of the Advisory Board though consisting of three Judges to a process of judicial review by Bench of lesser number of Judges. The approach while dealing with an opinion of the Advisory Board by the Judges of the High Court would place them in a different role vis-à-vis the Judges of the High Court while exercising the power of judicial review.
Accordingly, in the present case, the Bench is constrained but obligated to deal with the opinion of the Advisory Board though rendered by a numerically larger number of Judges.
- 40 -
NC: 2024:KHC-K:7698-DB WPHC No. 200006/2024
42. Accordingly, the opinion of the Advisory Board itself being defective fails the test of judicial scrutiny in the process of judicial review and accordingly, the order of confirmation also stands vitiated not being assisted by an opinion as envisaged by the Apex Court8 which ought to have been an independent scrutiny.
43. Accordingly, the petition is allowed. The order of detention and its confirmation are set aside forthwith. The detenu shall be released forthwith and the order of such release must be communicated to the detaining authority by electronic mode as well.
Sd/-
(S. SUNIL DUTT YADAV) JUDGE Sd/-
(RAMACHANDRA D. HUDDAR) JUDGE VGR 8 Nenavath Bujji etc. v. State of Telangana and Others (supra)