Karnataka High Court
Smt. Gayathri vs The Police Commissioner on 18 November, 2020
Bench: Alok Aradhe, H T Narendra Prasad
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF NOVEMBER 2020
PRESENT
THE HON'BLE MR. JUSTICE ALOK ARADHE
AND
THE HON'BLE MR. JUSTICE H.T.NARENDRA PRASAD
W.P.H.C. NO.53 OF 2020
BETWEEN:
SMT. GAYATHRI
W/O LATE GOPI
AGED ABOUT 55 YEARS
R/AT. NO.193, # 48/1
KASHINAGAR, YELLACHENAHALLI
KANKAPURA MAIN ROAD
J.P. NAGAR, BANGALORE-560078
KARNATAKA.
... PETITIONER
(BY SRI. OM KUMAR, ADV., FOR
SMT. N. PADMAVATHI, ADV.,)
AND:
1. THE POLICE COMMISSIONER
NO.1, INFANTRY ROAD
BANGALORE DISTRICT
BANGALORE-560001.
2. STATE OF KARNATAKA
SECRETARY TO GOVERNMENT
HOME DEPARTMENT
VIDHANA SOUDHA
AMBEDKAR VEEDHI
BANGALORE-560001.
2
3. SUPERINTENDENT POLICE
CENTRAL PRISON
PARAPPANA AGRAHARA
BANGALORE-560068.
... RESPONDENTS
(BY SRI. Y.H. VIJAYAKUMAR, AAG-3 A/W
SRI. N. BALAJI, AGA FOR RESPONDENTS)
---
THIS WPHC IS FILED UNDER ARTICLE 226 AND 227 OF THE
CONSTITUTION OF INDIA, PRAYING TO DIRECT THE
RESPONDENTS TO QUASH THE ORDER OF DETENTION PASSED BY
THE RESPONDENT NO.1 DATED 13-12-2019 IN
NO.20/CRM(4)/DTN/2019 AND CONFIRMED BY THE RESPONDENT
NO.2 BY ORDER DATED 24-1-2020 IN HD NO.347 SST 2019 AND
DIRECT THE SUPERINTENDENT OF CENTRAL PRISON OF
BENGALURU TO RELEASE THE DETENUE IF THE DETENUE IS NOT
REQUIRED IN ANY OTHER CASES.
THIS WPHC COMING ON FOR HEARING, THIS DAY,
ALOK ARADHE J., DELIVERED THE FOLLOWING:
ORDER
In this writ petition under Article 226 and 227 of the Constitution of India, the petitioner who is mother of the detenue namely Sukesh alias Suki, has assailed the validity of the order of detention passed by the Commissioner of Police dated 13.12.2019 as well as the order dated 24.01.2020 which has been affirmed by the State Government under the provisions of Karnataka Prevention of Dangerous Activities of Bootleggers, Drug offenders, Gamblers, Goondas, Immoral Traffic 3 Offenders and Slum Grabbers and also Video and Audio Pirates Act, 1985 (hereinafter referred to as 'the Act' for short). The petitioner also seeks a direction to the respondent No.2 to release the detenu forthwith in case he is not required in connection with any other offence.
2. The facts leading to filing of this petition briefly stated are that the petitioner is the mother of the detenue namely Sukesh (hereinafter referred to as detenue). The detenue was arrested on 23.10.2019 by Kumaraswamy layout police station in connection with Crime No.292/2019 for the offences under Section 364A, 384, 323, 504, 506 read with Section 34 of the Indian Penal Code. Admittedly, nine cases were registered against the detenue. A report was submitted to the Commissioner of Police. Thereupon, an order of detention dated 13.12.2019 was served on the petitioner along with the grounds of detention and relevant material. The detenue was informed about his 4 right to submit a representation. The detenue thereupon submitted a representation which was duly considered and the order passed by the detaining authority was confirmed by the State Government by an order dated 24.01.2020. In the aforesaid factual background, this writ petition has been filed.
3. Learned counsel for the petitioner submitted that grounds referred to in the order of detention are factually incorrect and the order of detention was passed when the detenue was already in judicial custody. Since the detenue was in judicial custody, therefore, the order of detention could not have been passed. It is also pointed out that the detenue was not supplied with the legible copies of the documents and has been deprived of the right to submit the representation in an effective manner. It is also pointed out that the detenue has never violated any conditions of bail otherwise the respondents would have sought cancellation of bail 5 granted to the detenue. It is also contended that in criminal cases the detenue has falsely been implicated and in some cases, his name has been later on inserted. In support of aforesaid submission, reliance has been placed on the decision of the Supreme Court in 'RAMESHWAR PRASAD SHAW Vs. DISTRICT MAGISTRATE BURDWAN AND ORS. AIR 1964 SC 334, 'MERUGU SATYANARAYANA ETC. Vs. STATE OF ANDHRA PRADESH & ORS.' AIR 1982 SC 1543, and decision of this Court dated 29.10.2014 passed in WPHC No.129/2014 (Smt.Susheelamma Vs. The Additional Chief Secretary and others).
4. On the other hand, learned Additional Advocate General submitted that from perusal of the order passed by the detaining authority, it is evident that the detaining authority was aware of the fact that detenue is in judicial custody. However, the detaining authority has recorded the satisfaction that in case the detenue is 6 released on bail, he would act in a manner prejudicial to the maintenance of public order. It is further submitted that nine cases had been registered against the detenue and the detaining authority has formed the opinion that in case the detenue is released on bail, his activities would be prejudicial to maintenance of public order and the aforesaid order has rightly been affirmed by the State Government. It is also urged that the detenue in the representation, did not raise any grievance that the copies of the documents supplied to him are not legible. Therefore, the aforesaid stand is nothing but an after thought. Alternatively, it is submitted that even if some of the documents are found to be not legible, the same has no bearing on the order of detention. In support of aforesaid submission, reliance has been placed on the decision of the Supreme Court in 'PRAKASH CHANDRA MEHTA Vs. COMMISSIONER AND SECRETARY, GOVERNMENT OF KERALA AND OTHERS' 1985 (SUPP) SCC 144 AND 'UNION OF INDIA AND 7 ANOTHER Vs. DIMPLE HAPPY DHAKAD' 2019 SCC ONLINE SC 875.
5. We have considered the submissions made on both sides and have perused the record. The Act was enacted with an object to ensure that the maintenance of public order in the State is not adversely affected by the activities of known anti-social elements. The legislature also took note of the fact while enacting the Act that the activities of antisocial elements like bootleggers, drug offenders, gamblers, immoral traffic offenders and slum grabbers and also video and audio pirates, have caused a feeling of insecurity among the public and even tempo of life especially in urban areas has frequently been disrupted because of such persons. Section 2(g) of the Act defines the expression 'goonda' who either by himself or as a member of or leader of a gang, habitually commits or attempts to commit or abets the commission of offences punishable (under 8 Chapter VIII, Chapter XV, Chapter XVI), Chapter XVII or Chapter XXII of the Indian Penal Code (Central Act XLV of 1860). Section 3 provides that the State Government on being satisfied that with a view to prevent a person from acting in any manner prejudicial to maintenance of public order, it is necessary so to do, it may pass an order of detention. The order of detention has to be approved by the State Government under Section 3(3) of the Act. Section 8 confers a right on the detenue to submit a representation to the State Government.
6. It is well settled in law that preventive detention is not punitive but is a precautionary measure and its object is not to punish a person but to prevent him from doing any illegal activity which may be prejudicial to maintenance of public order. The power of preventive detention is invoked as an anticipatory measure and the same does not relate to an offence in respect of which criminal proceeding is pending to punish a person for the 9 offence committed by him. It is equally well settled legal proposition that action of the authority in detaining a person being only precautionary, the matter has to be necessarily left to the discretion of the authority. However, since preventive detention essentially deals with curtailment of person's liberty, therefore, the procedural safeguard laid down by the statute have to be strictly complied with. (See: 'UOI Vs. PAUL MANICKAM' AIR 2003 SC 4622, 'GIMIK PIOTR Vs. STATE OF TAMIL NADU' (2010) 1 SCC 609).
7. In the backdrop of aforesaid well settled principles, the facts of the case in hand may be seen. The Supreme Court in 'DIMPLE HAPPY DHAKAD', supra has held that even if a detenue is in custody, an order of detention can be passed provided the detaining authority is satisfied that if the detenue is released from the custody, he is likely to indulge in activities which are prejudicial to maintenance of public order. From perusal 10 of the order of detention dated 13.12.2019, it is evident that the detaining authority was conscious of the fact that the detenue is in custody and the nature of activities of the detenue indicate that if he is released on bail, he is likely to indulge in activities which are prejudicial to the maintenance of public order. Thus, the aforesaid satisfaction has been recorded by the detaining authority. Therefore, the contention of the detenue that since he is in custody therefore, order of detention could not have been passed, does not deserve acceptance.
8. It is pertinent to mention here that the detenue has submitted a representation to the State Government. However, in the representation, the detenue did not make any grievance that the documents which were supplied to him are illegible. Therefore, the grievance put forth in the petition in this regard is obviously an after thought. There are nine cases 11 pending against the detenue. The details of which are as under:
(i) Crime No.107/2012 under Sections 384, 436, 307, 107, 120(B) r/w 34 of Indian Penal Code (Kumaraswamy Layout police station);
(ii) Crime No.453/2013 under Sections 443, 144, 148, 149, 448, 307, 363 of Indian Penal Code (Kumaraswamy Layout police station);
(iii) Crime No.284/2018 under Sections 504, 506, 341, 307 r/w 34 of Indian Penal Code (Kumaraswamy Layout police station);
(iv) Crime No.296/2018 under Sections 448, 363, 307, 397, 504 r/w 34 of Indian Penal Code (Kumaraswamy Layout police station);
(v) Crime No.84/2019 under Section 435 of Indian Penal Code and Section 2 of PDLP Act (Kumaraswamy Layout police station);
(vi) Crime No.139/2019 under Sections 143, 147, 427, 504, 506 r/w 34 of Indian Penal Code (Kumaraswamy Layout police station);
(vii) Crime No.171/2019 under Sections 399, 402 of Indian Penal Code (Kumaraswamy Layout police station);12
(viii) Crime No.235/2019 under Sections 399, 402 of Indian Penal Code (Kumaraswamy Layout police station);
(ix) Crime No.292/2019 under Sections 364(A), 384, 323, 504, 506 r/w 34 of Indian Penal Code (Kumaraswamy Layout police station).
9. Thus, from perusal of the aforesaid cases it is evident that cases registered against the detenue mentioned at Sl.Nos.2 to 9, except Crime No.453/2013, have been registered in 2018-2019. Thus, on the basis of material available on record, the detaining authority has rightly arrived at the satisfaction that the activities of prejudicial to maintenance of public order and the same has rightly been affirmed. In the representation, the detenue has merely stated that he is a victim of false implication in the criminal cases. However, the aforesaid aspect of the matter cannot be gone into in this proceeding. The order of detention which was passed by the detaining authority and which has been 13 subsequently affirmed by the State Government does not suffer from any procedural infirmity warranting interference of this court in exercise of powers under Article 226 / 227 of the Constitution of India.
In view of the preceding analysis, we do not find any merit in the petition. The same fails and is hereby dismissed.
Sd/-
JUDGE Sd/-
JUDGE RV