Karnataka High Court
Smt Vijaya vs The Commissioner Of Police on 4 December, 2018
Bench: K.N.Phaneendra, K.Somashekar
1
IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 4TH DAY OF DECEMBER, 2018
PRESENT
THE HON'BLE MR.JUSTICE K.N.PHANEENDRA
AND
THE HON'BLE MR.JUSTICE K.SOMASHEKAR
WPHC No.97/2018
BETWEEN
SMT. VIJAYA,
W/O JYOTHI RAJ,
AGED ABOUT 49 YEARS,
OCC: HOUSE WIFE,
R/AT NO. 141,
SOMESHWARA COLONY,
B.T.M. LAYOUT, 2ND STAGE,
BANGALORE - 560 029. ... PETITIONER
(BY SRI. ANEES ALI KHAN, ADVOCATE)
AND
1. THE COMMISSIONER OF POLICE,
NO.1, INFANTRY ROAD,
BANGALORE.
2. STATE OF KARNATAKA
BY ITS UNDER SECRETARY,
LAW & ORDER DEPARTMENT,
VIDHANA SOUDHA,
BANGALORE - 560 001.
3. THE SUPERINTENDENT,
BANGALORE CENTRAL PRISON,
PARAPANA AGRAHARA,
BANGALORE. ... RESPONDENTS
(BY SRI.SANDESH J. CHOUTA, AAG AND
SRI. S.V. GIRI KUMAR, AGA FOR R1 TO R3.)
2
THIS WPHC IS FILED UNDER ARTICLE 226 OF
THE CONSTITUTION OF INDIA PRAYING TO ISSUE A
WRIT IN THE NATURE OF HABEAS CORPUS OR ANY
OTHER APPROPRIATE WRIT OR DIRECTION/S AND
FURTHER BE PLEASED TO: A) DECLARE THE
DETENTION OF UMAKANTH J. S/O JYOTHIRAJ BY
ORDER NO. CRM(4)DTN/16/2017 DATED 12/12/2017
VIDE ANNEXURE-A PASSED BY RESPONDENT NO.1
AND APPROVED BY THE RESPONDENT NO.2 BY ORDER
NO. HD 593 SST 2017 DATED 23.12.2017 VIDE
ANNEXURE-C, AS ILLEGAL AND SET DETENUE AT
LIBERTY.
THIS WPHC COMING ON FOR ORDERS THIS DAY,
K.N.PHANEENDRA J., MADE THE FOLLOWING:
ORDER
Heard the learned counsel for the petitioner and the learned AAG for the respondents.
2. The petitioner has sought for quashing of the detention order passed against the petitioner in CRM(4)/DTN/16/2017 dated 12.12.2017 vide Annexure- A as approved by Respondent No.2 by order No.HD 593 SST 2017 dated 23.12.2017 vide Annexure-C.
3. Though the learned counsel for the petitioner has taken up various contentions at the initial stages that the detention confirmation order was not passed by the Government within the time prescribed i.e., within 12 days from the date of detention and that no sufficient 3 opportunity was granted for the purpose of filing his statement by the accused after furnishing of the copies to the detenue with reference to the detention order passed by the first respondent. Those grounds were given up after going through the order passed by the Government of Karnataka in HD 174 SST 2016 dated 04.12.2017 which is the authorization letter to the Commissioner of Police to exercise the powers under Section 3 (2) of the Karnataka Prevention of Dangerous Activities of Boot-leggers, Drug- Offenders, Gamblers, Goondas, Immoral Traffic Offenders, Slum-Grabbers and Video or Audio Pirates Act, 1985. Further, on perusal of the orders, the procedure that has been followed by the Commissioner in passing the detention order and sending it to the Government and confirmation order passed by the Government and then submitting the same before the Advisory Board and the Advisory Board passing the orders in accordance with law, were all within the time prescribed under the statute. Therefore, after going through the materials on record and after hearing the submission made by learned AAG, perhaps the learned counsel for the petitioner has given up the above said ground and ultimately, he canvassed before this Court that the copies furnished to the accused 4 were not eligible, therefore, he had no opportunity to file objections or his statement or his representation either to the Government or to the Advisory Board. It is evident from the records that the said submission was not made either before the Advisory Board at the earliest point of time for what reason he could not make any representation to the Government or to the Advisory Board. Now the said objection has been raised before this Court. In this context, he has relied upon a decision of this Court in W.P.HC.No.212/2014 dated 01.04.2015. Similar aspect has been considered by this Court at paragraph - 7 of its order wherein it is stated that -
"it is the specific ground by the petitioner at para-8 that, the order of detention is vitiated for the reasons that from the relied upon documents furnished to the detenue, it would reveal that the documents at page Nos.605, 607, 610, 611, 613, 614, 616, 617, 619 and 620 are illegible and it violates the mandatory provisions of Article 22(5) of the Constitution of India and for failure to communicate the order of detention and thereby affecting the detenu's right to make meaningful representation." 5
4. After considering the above said grounds the Court has considered the substance in the submission made and after going through the relevant pages in the copies furnished to the judgment, the Court has come to the conclusion that, most of the pages in the copies furnished to the accused were not legible and on account of the same, detenu was not able to make proper representation before the Advisory Board to defend his case. Therefore, relying upon a decision of the Apex Court in Bhupinder Singh's case and other cases rendered by this Court, allowed the said petition on that particular ground.
5. Learned AAG countering the above said arguments also relied upon a decision passed by this Court in WPHC.No.1/2018 vide order dated 23.02.2018 wherein similar point had again come up for consideration. This court relying upon a decision of the Apex Court reported Kamrunnisa Badrunnisa Sithya Aysha vs. Union of India (1991) 1 SCC 128 has come to the conclusion that :
"it would not be sufficient to say that detenue was not supplied with the copies of documents in time on 6 demand, but it must further be shown that it has impaired detenue's right to make effective and purposeful representation. He invites the attention of the Court to the observations made in paragraph 14 of the said judgment to contend that no hard and fast rule could be laid down in that behalf, but what would be essential is that detenue must show that failure to supply documents before the meeting of the Advisory Board had impaired and prejudiced his right, however slight or insignificant it may be." He also relied upon a decision rendered by this Court in WPHC.No.96/2016 vide order dated 14.03.2017. In this case, this Court while considering the above said grounds observed that "as far as judgment regarding illegibility of certain documents are concerned what has to be noted is the extent and nature of the illegibility and its effect on the right of representation in the context of its importance or relevance in formation of subjective satisfaction for detention vide Union of India vs. Mohammed Ahmed Ibrahim and others (1993 Supp.(1) SCC 405).
6. Therefore, in view of the above said decisions cited on both the side what is relevant is that, whether the 7 illegible portions supplied to the accused was so relevant and because of that particular portion alone the accused/detenue could not able to make proper representation before the Advisory Board or to the Government. Such explanation is conspicuously absent in this particular case. As we have seen the illegible portion in the copies, they are all bail orders passed by the competent authorities to the accused. The other grounds on which the detention order was passed relying upon the conduct of detenue with reference to the pendency of the cases against the accused which are the main grounds taken for the purpose of passing the order of detention. Further added to the above, when the detenue was produced before the Advisory Board he would have atleast made a representation with regard to non-furnishing of legible copies to him so that he was prevented from making any representation. The Advisory Board would get opportunity to deal with the matter for a period of four weeks from the date of representation by the Government to the Advisory Board. Therefore, in this context also, we find no such strong material to give a definite conclusion here that the illegible portion in the document is the only reason for the detenue not to make effective 8 representation before the Advisory Board or to the Government. Therefore, in view of the above said facts and circumstances, we do not find any strong reasons to interfere with the detention order. Hence, the petition is devoid of merits and the same is liable to be dismissed. Accordingly, dismissed.
Sd/-
JUDGE Sd/-
JUDGE DKB