Telangana High Court
Chandoori Bai vs The State Of Telangana on 9 February, 2022
Author: P.Naveen Rao
Bench: P Naveen Rao, G.Radha Rani
HON'BLE SRI JUSTICE P.NAVEEN RAO
AND
HON'BLE SMT Dr.JUSTICE G.RADHA RANI
WRIT PETITION Nos.19011, 19012, 19013, 19018, 19019,
19024, 19026 & 19027 of 2021
Date:09.02.2022
W.P.No.19011 of 2021
Between:
Gulbaden W/o.Kuntan,
Aged 33 yrs, Occu : Housewife,
R/o.Village Kudo, Kudo,
Hadua Murwara Katni,
Madhya Pradesh 483501
.....Petitioner
And
The State of Telangana,
Rep., by Principal Secretary,
General Administration (Spl Law & Order) Department,
Secretariat, Hyderabad & others.
.....Respondents
The Court made the following:
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HON'BLE SRI JUSTICE P.NAVEEN RAO
AND
HON'BLE SMT DR.JUSTICE G.RADHA RANI
WRIT PETITION Nos.19011, 19012, 19013, 19018, 19019,
19024, 19026 & 19027 of 2021
COMMON ORDER :(Per Hon'ble Sri Justice P.Naveen Rao) In all these writ petitions petitioners challenge the order of preventive detention dated 02.07.2021. The advisory Board reviewed the decision of the Commissioner of Police detaining the detenues and advised the Government to confirm the said decision. By order dated 15.09.2021, the Government confirmed the decision of the Commissioner of Police to detain the detenue in W.P.No.19013 of 2021. By order dated 16.09.2021, the Government confirmed the decision of the Commissioner of Police to detain the detenues in W.P.No.19011, 19012, 19019, 19026 and 19027 of 2021. By order dated 17.09.2021, the Government confirmed the decision of the Commissioner of Police to detain the detenues in W.P.No.19018 and 19024 of 2021. Aggrieved thereby, these writ petitions are filed.
2. According to learned counsel, all the detenues were implicated in four crimes i.e., Cr.Nos.184, 173, 180 ad 181 of 2021 alleged to have been committed on the intervening night of 21/22.02.2021 and 22/23.02.2021, in different colonies of Medchal Town. The detenu in W.P.No.19011 of 2021 was arrayed as Accused No.5, the detenu in W.P.No.19012 of 2021 was arrayed as Accused No.11, the detenu in W.P.No.19013 of 2021 was arrayed as Accused No.4, the detenu in W.P.No.19018 of 2021 was arrayed as Accused No.12, the detenu in W.P.No.19019 of 2021 -3- was arrayed as Accused No.6, the detenu in W.P.No.19024 of 2021 was arrayed as Accused No.13, the detenu in W.P.No.19026 of 2021 was arrayed as Accused No.8 and the detenu in W.P.No.19027 of 2021 was arrayed as Accused No.10 in Cr.Nos.184, 173, 180 ad 181 of 2021.
3. The gravemen of allegations are that they have illegally trespassed into the private homes and stolen gold ornaments and/or cash. In the order of detention, the Commissioner also referred to the previous history of involvement of the detenues in 16 crimes registered in Balanagar, Alwal, Medchal, Pet Basheerbagh and Shameerpet Police Stations. The common thread against all the detenues is that they are accused in all these 20 crimes.
4. According to the police, the detenues belong to Pardhi tribe of Rajput Clan, Native of Madhya Pradesh State. The gang comprises of 60 persons and are habituated in committing the crimes to earn easy money.
5. Holding that by involving in these four crimes, the detenues have created state of fear and shock in the localities and the inhabitants are now scared to leave their houses locked keeping gold jewellery, cash and other valuables, as they fear of breaking locks of their homes. According to the detaining authority, such action would cause disturbance to public order requiring detention by exercising power vested in him under the Act 1 of 1986.
6. According to learned counsel for the petitioners, the offences registered against the petitioners are petty offences and the -4- accused can be subjected to trial in the regular courts under the Code of Criminal Procedure and can be sentenced if the alleged crimes are proved against them. But these crimes do not attract invoking the draconian law and to illegally detain them. According to learned counsel in all the crimes as the investigating agency did not file the charge sheet within the period prescribed, statutory bails were granted to them. After the bails were granted to them, the detention order was passed and the detenues were illegally detained for last more than seven months. The crimes reported against detenues are petty offence and even if proved, cannot result in disturbance to public order. In support of the contentions learned counsel Sri Pavan Kumar Aditya placed reliance on the following decisions rendered by this Court in W.P.No.24441 of 2019, W.P.No.9366 of 2020 and W.P.No.16921 of 2021.
7. Learned counsel Sri M.Govind Reddy appearing for the petitioner in W.P.No.19013 of 2021 would additionally submit that from the reading of the order, it would show that it was a stereo typed order passed against all the detenues. It clearly implies that there was no objective consideration of the necessity to detain a person. He points out that against Cr.No.184 of 2021 in the detention order it is recorded that from the detenue one Baarsha and three small knives were seized whereas in the seizure report at Page No.51 of the writ petition paper book, against this crime, it is recorded that Rs.5000/- was only seized from one accused. Therefore, it clearly points out that there was no application of mind and mechanically the decision to preventively detain the detenues was taken affecting their right to life and liberty. When draconian provision of law is invoked offending the right to life, -5- liberty and freedom, greater care and caution is required to be taken in analysing the nature of offences, there must be objective consideration of the facts and application of mind.
8. In reply learned Government Pleader submits that whether the detenues have actually committed the crimes or false crimes were registered against them and whether it was possible to commit many crimes within very short time on the intervening night of 21/22.02.2021 cannot be gone into when preventive detention is made and that shall be the subject of consideration by the trial Court. He would submit that on completion of investigation, police have filed charge sheets in all the twenty cases and the accused are facing trial. He would submit that as the detenues are part of Pardhi Tribe gang of Madhya Pradesh State and are in the habit of committing such crimes, releasing them at this stage would only result in facilitating to commit more crimes, creating panic situation in the general people spread over various areas in Hyderabad city and surrounding places to Hyderabad city, extending upto Medchal. According to learned Government Pleader committing of offences of this nature will definitely have an impact on the public order. He would submit that the decisions relied upon by learned counsel for the petitioners have no bearing on the cases on hand, since in these cases it is a gang which is indulging in committing crimes whereas in those cases individuals were alleged to have been involved in crimes. Therefore, those cases do not come to the aid of detenues. He would submit that as analysed by the detaining authority there is enough material for him to have satisfied that to maintain public order, it is necessary to detain the detenues.
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9. We have carefully considered the respective submissions of the learned counsel. It is not in dispute that though, the detaining authority refers to involvement in earlier crimes, but the reason for detention is only on their involvement in four crimes alleged to have been committed between 21st February and 23rd February 2021. The order of detention against all the detenues is made by referring to their implication in four crimes in which all the detenues are shown as accused and the crime registered against them are under Sections 457 and 380 of Indian Penal Code.
10. Two competing aspects throw up whenever an issue of preventive detention comes up. On the one side is the right of the individual citizen to protect his life, liberty and privacy, which are sacrosanct. On the other extreme is the sacred duty of the Government to enforce law and order, peace and tranquility in the society. Whenever a crime is reported, the law enforcing agency sets in motion criminal justice system on the offences enumerated in the Indian Penal Code and various special enactments dealing with specific crimes. In the process of investigation into the crime, the accused can be arrested, detained and can be interrogated.
11. Section 2(a)1 of the Act, 1986 defines what is meant by "acting in any manner prejudicial to the maintenance of public order". It means a person against whom several crimes are reported and is known as 'a boot legger', 'a dacoit', 'a goonda' , 'an 1
(a) "acting" in any manner prejudicial to the maintenance of public order" means when a boot- legger, a dacoit, a drug-offender, a goonda, an immoral traffic offender or a land-grabber is engaged or is making preparations for engaging, in any of his activities as such, which affect adversely, or are likely to affect adversely, the maintenance of public order :
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 calculated to cause any harm, danger or alarm or a feeling of insecurity among the general public or any section thereof or a grave wide-spread danger to life or public health :-7-
immoral trafficker' and 'a land grabber' and is engaged or is making preparations for engaging, in any of his activities as such, which affected adversely, or are likely to affect adversely, the maintenance of public order. Explanation appended to this clause explains that "public order" is deemed to have been affected adversely / likely to be affected adversely, if any of the activities of a person referred to in the clause, directly or indirectly, is causing or calculated to cause any harm, danger, or alarm or a feeling of insecurity among the general public or any section thereof or a grave of widespread danger to life or public health. Other clauses of Section 2 of the Act, 1986 defines various terms mentioned in Clause (a), including the term 'land grabber' [clause (j)2].
12. Ordinarily, no person can be arrested/detained unless crime is reported. Act 1 of 1986 makes an exception to this salutary principle. It vests extraordinary power in the Government or in its delegatee to detain a person even before a crime is committed by him. Perforce, this power of detention is not to be exercised as a matter of course. As it seeks to offend the most sacred of the rights, right to life, liberty and privacy, there are three primary requirements need to be answered by the law enforcing agency before invoking the provisions of Section 3 of the Act, 1986. Firstly, he must be a known offender and several crimes are reported against him and can be classified as 'a boot-legger', 'a dacoit', 'a goonda', 'an immoral traffic offender' or 'a land-grabber'; 2
(j) "land-grabber" means a person, who illegally takes possession of any land (whether belonging to Government, local authority or any other person) or enters into or creates illegal tenancies or lease and licence, agreements or any other agreement in respect of such lands; or who constructs unauthorised structures thereon for sale or hire, or give such lands to any person on rental or lease and licence basis or for construction or use and occupation of un-authorised structures or he knowingly gives financial aid to any person for taking illegal possession of such lands, or for construction of unauthorised structures thereon or who collects or attempts to collect from any occupier of such lands, rent, compensation or other charges by criminal intimidation or who evicts or attempts to evict any such occupier by force without resorting to the lawful procedure ; or who abets in any manner die doing of any of the above-mentioned things; -8- secondly, the person must be acting in a manner prejudicial to the maintenance of the public order; and thirdly, there must be subjective satisfaction by the authority that there is possibility of the person indulging in such activities in future also which is likely to cause disturbance to 'public order'.
13. Resort to preventively detain a person is made when the detaining authority assumes that allowing the person to be free may adversely affect or likely to adversely affect the maintenance of public order. Preventive detention of a person is an extreme measure impinging a citizen's right to life and liberty. Law enforcing agency can resort to such extreme measure only when the conduct of detenu affects or is likely to affect maintenance of public order and ordinary law enforcing mechanism is not sufficient to prevent such person from indulging in illegal activities. It being an extreme measure, the law enabling such power has to be strictly construed.
14. The decision must be a well considered decision impelled by protection of 'public order'. Even then, it is an extreme measure to be resorted in extraordinary circumstances, as a last resort and in larger public interest. It being an exception, cannot subsume the character of routine police action. It should be resorted to only when the normal course of criminal justice system has failed to discipline the individual and actions and conduct of a person has caused or is likely to cause disturbance to 'public order'. The power to detain is an exceptional power to be used under -9- exceptional circumstances. (Sudhir Kumar Saha vs. the Commissioner of Police, Calcutta3)
15. The writ Court has to keep eternal vigilance to ensure right to life and liberty is not affected by State resorting to illegal means. The Court is reminded of the fact that resort to preventive detention is on the allegation of involvement in alleged crime(s) as assessed by the detaining authority, which is/are yet to be proved. Preventive detention is largely precautionary and based on suspicion. (State of Madras Vs. V.G. Row4). It is in the realm of speculation. The Court is required to see whether procedural safeguards are strictly complied before detaining a person. A mere disturbance to law and order leading to disorder is thus not necessarily sufficient for action under the Preventive Detention Act but a disturbance which will affect public order comes within the scope of the Act. (Pushker Mukherjee Vs State of West Bengal5). Thus, what is paramount to note is whether the offence(s) complained of against detenu is/are of a nature which can be dealt with under the ordinary law of the land. If the answer is yes, the detention order is ex facie illegal.
16. It is apt to note the observations of the Hon'ble Supreme Court in I.R. Coelho Vs State of Tamil Nadu6. They read as under:
"49. Granville Austin has been extensively quoted and relied on in Minerva Mills [(1980) 3 SCC 625] . Chandrachud, C.J. observed that to destroy the guarantees given by Part III in order to purportedly achieve the goals of Part IV is plainly to subvert the Constitution by destroying 3 (1970) 1 SCC 149 4 AIR 1952 SC 196 5 (1969) 1 SCC 10 6 (2007) 2 SCC 1
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its basic structure. Fundamental rights occupy a unique place in the lives of civilised societies and have been described in judgments as "transcendental", "inalienable" and "primordial". They constitute the ark of the Constitution (Kesavananda Bharati [(1973) 4 SCC 225] at SCC pp. 991, 999). The learned Chief Justice held that Parts III and IV together constitute the core of commitment to social revolution and they, together, are the conscience of the Constitution. It is to be traced for a deep understanding of the scheme of the Indian Constitution. The goals set out in Part IV have, therefore, to be achieved without the abrogation of the means provided for by Part III. It is in this sense that Parts III and IV together constitute the core of our Constitution and combine to form its conscience. "Anything that destroys the balance between the two parts will ipso facto destroy an essential element of the basic structure of our Constitution." (emphasis supplied) (Minerva Mills [(1980) 3 SCC 625] , SCC p. 654, para 57.) Further observes the learned Chief Justice, that the matters have to be decided not by metaphysical subtlety, nor as a matter of semantics, but by a broad and liberal approach. We must not miss the wood for the trees. A total deprivation of fundamental rights, even in a limited area, can amount to abrogation of a fundamental right just as partial deprivation in every area can. The observations made in the context of Article 31-C have equal and full force for deciding the questions in these matters. Again the observations made in para 70 (SCC p. 659) are very relevant for our purposes. It has been observed that (Minerva Mills case [(1980) 3 SCC 625] , para 70, p. 659) "[I]f by a constitutional amendment, the application of Articles 14 and 19 is withdrawn from a defined field of legislative activity, which is reasonably in public interest, the basic framework of the Constitution may remain unimpaired. But if the protection of those articles is withdrawn in respect of an uncatalogued variety of laws, fundamental freedoms will become a 'parchment in a glass case' to be viewed as a matter of historical curiosity."
These observations are very apt for deciding the extent and scope of judicial review in cases wherein entire Part III, including Articles 14, 19, 20, 21 and 32, stand excluded without any yardstick.
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109. Dealing with Articles 14, 19 and 21 in Minerva Mills case [(1980) 3 SCC 625] it was said that these clearly form part of the basic structure of the Constitution and cannot be abrogated. It was observed that three articles of our Constitution, and only three, stand between the heaven of freedom into which Tagore wanted his country to awake and the abyss of unrestrained power. These articles stand on altogether different footing. Can it be said, after the evolution of the basic structure doctrine, that exclusion of these rights at Parliament's will without any standard, cannot be subjected to judicial scrutiny as a result of the bar created by Article 31-B? The obvious answer has to be in the negative. If some of the fundamental rights constitute a basic structure, it would not be open to immunise those legislations from full judicial scrutiny either on the ground that the fundamental rights are not part of the basic structure or
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on the ground that Part III provisions are not available as a result of immunity granted by Article 31-B. It cannot be held that essence of the principle behind Article 14 is not part of the basic structure. In fact, essence or principle of the right or nature of violation is more important than the equality in the abstract or formal sense. The majority opinion in Kesavananda Bharati case [(1973) 4 SCC 225] clearly is that the principles behind fundamental rights are part of the basic structure of the Constitution. It is necessary to always bear in mind that fundamental rights have been considered to be heart and soul of the Constitution. Rather these rights have been further defined and redefined through various trials having regard to various experiences and some attempts to invade and nullify these rights. The fundamental rights are deeply interconnected. Each supports and strengthens the work of the others. The Constitution is a living document, its interpretation may change as the time and circumstances change to keep pace with it. This is the ratio of the decision in Indira Gandhi case [1975 Supp SCC 1]."
17. In Rekha Vs State of Tamil Nadu7, the Hon'ble Supreme Court guides the High Courts on how to deal with cases of preventive detention. The Supreme Court held:
"30. Whenever an order under a preventive detention law is challenged one of the questions the court must ask in deciding its legality is: was the ordinary law of the land sufficient to deal with the situation? If the answer is in the affirmative, the detention order will be illegal. In the present case, the charge against the detenu was of selling expired drugs after changing their labels. Surely the relevant provisions in the Penal Code and the Drugs and Cosmetics Act were sufficient to deal with this situation. Hence, in our opinion, for this reason also the detention order in question was illegal."
18. In catena of decisions, the Hon'ble Supreme Court and this Court considered what is meant by 'law and order', 'public order' and 'security of State'. Leading case on the subject is Ram Manohar Lohia vs. State of Bihar8. It was a case of detention under the Defense of India Rules. Hon'ble Supreme Court held as under:
"54. ...... 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 7 (2011) 5 SCC 244 8 (1966) 1 SCR 709
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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 if 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 public order but not in aid of maintenance of law and order under ordinary circumstances.
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. By using the expression "maintenance of law and order" the District Magistrate was widening his own field of action and was adding a clause to the Defence of India Rules."
19. In Banka Sneha Sheela Vs. The State of Telangana9, the detenu was detained on 28.09.2020 alleging that he was involved in five crimes committed between October, 2017 to December, 2019 attracting Sections 420, 406 and 506 of IPC. It was alleged that he was luring general public to invest money with an assurance of 100% return within a short period.
19.1. After taking note of law declared by the Hon'ble Supreme Court in Ram Manohar Lohia (supra), the Hon'ble Supreme Court held, "15. There can be no doubt that for 'public order' to be disturbed, there must in turn be public disorder. Mere contravention of law such as 9 2021 SCC Online SC 530 (Crl.A.No.733 of 2021),
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indulging in cheating or criminal breach of trust certainly affects 'law and order' but before it can be said to affect 'public order', it must affect the community or the public at large.
16. There can be no doubt that what is alleged in the five FIRs pertain to the realm of 'law and order' in that various acts of cheating are ascribed to the Detenu which are punishable under the three sections of the Penal Code, 1860 set out in the five FIRs. A close reading of the Detention Order would make it clear that the reason for the said Order is not any apprehension of widespread public harm, danger or alarm but is only because the Detenu was successful in obtaining anticipatory bail/bail from the Courts in each of the five FIRs. If a person is granted anticipatory bail/bail wrongly, there are well-known remedies in the ordinary law to take care of the situation. The State can always appeal against the bail order granted and/or apply for cancellation of bail. The mere successful obtaining of anticipatory bail/bail orders being the real ground for detaining the Detenu, there can be no doubt that the harm, danger or alarm or feeling of security among the general public spoken of in Section 2(a) of the Telangana Prevention of Dangerous Activities Act is make believe and totally absent in the facts of the present case."
19.2. Taking note of the judgment in Madhu Limaye vs. Sub- Divisional Magistrate10, the Hon'ble Supreme Court held, " 20. To tear these observations out of context would be fraught with great danger when it comes to the liberty of a citizen under Article 21 of the Constitution of India. The reason for not adopting a narrow meaning of 'public order' in that case was because of the expression "in the interests of"
which occurs to Article 19(2) to 19(4) and which is pressed into service only when a law is challenged as being unconstitutional for being violative of Article 19 of the Constitution. When a person is preventively detained, it is Article 21 and 22 that are attracted and not Article 19. Further, preventive detention must fall within the four corners of Article 21 read with Article 22 and the statute in question. To therefore argue that a liberal meaning must be given to the expression 'public order' in the context of a preventive detention statute is wholly inapposite and incorrect. On the contrary, considering that preventive detention is a necessary evil only to prevent public disorder, the Court must ensure that the facts brought before it directly and inevitably lead to a harm, danger or alarm or feeling of insecurity among the general public or any section thereof at large." (emphasis supplied) 19.3. On reviewing the precedent decisions, the Hon'ble Supreme Court further held, 10 (1970) 3 SCC 746
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"34. ....... a possible apprehension of breach of law and order can be said to be made out if it is apprehended that the detenu, if set free, will continue to cheat gullible persons. This may be a good ground to appeal against the bail orders granted and/or to cancel bail, but certainly cannot provide springboard to move under a preventive detention statue. ......"
20. In Vijay Narin Singh vs State of Bihar11, the Hon'ble Supreme Court held, "32. ...It is well settled that the law of preventive detention is a hard law and therefore it should be strictly construed. Care should be taken that the liberty of a person is not jeopardized unless his case falls squarely within the four corners of the relevant law. The law of preventive detention should not be used merely to clip the wings of an accused who is involved in a criminal prosecution. It is not intended for the purpose of keeping a man under detention when under ordinary criminal law it may not be possible to resist the issue of orders of bail, unless the material available is such as would satisfy the requirements of the legal provisions authorizing such detention. When a person is enlarged on bail by a competent criminal court, great caution should be exercised in scrutinizing the validity of an order of preventive detention which is based on the very same charge which is to be tried by the criminal court."
(emphasis supplied)
21. All the four crimes registered against the detenues pertain to trespass into private homes and theft of gold ornaments and/or cash. These are normal law and order crimes which require investigation, filing of final report and conducting of trial before the competent criminal court. It cannot be said that involvement of the detenues in these crimes would lead to harm, danger or alarm or feeling of insecurity among the general public or any section thereof necessitating resorting to invoking draconian provisions of preventively detaining the detenues curtailing their right to life, liberty and freedom. Per se, by looking at the crimes reported against detenues, it cannot be said that committing of such offences would have an impact on the public order.
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(1984) 3 SCC 14
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22. It cannot be said that the police are remediless if they are of the opinion that on releasing the detenues, it would be difficult to secure their presence during the course of conducting trial in the cases pending against them as they are natives of State of Madhya Pradesh and every possibility of escaping from this State. It is also noticed that the detenues are under detention for more than seven months.
23. We are satisfied that the detaining authority erred in detaining the detenues alleging involvement in four offences of trespass and theft.
24. The writ petitions are allowed and the respondents are directed to set the detenues namely K.K.Pardhi S/o.Kuntur (W.P.No.19011 of 2021), Minsari Lal S/o.Angrej Singh (W.P.No.19012 of 2021), Seerab Lal S/o.Siri Singh (W.P.No.19013 of 2021), Ali Bagh S/o.Kunsar (W.P.No.19018 of 2021), Lele Gujjar S/o.Chattesi (W.P.No.19019 of 2021), Khankode S/o.Kunsar (W.P.No.19024 of 2021), Ansoor S/o.Kunsar (W.P.No.19026 of 2021) and Rujjan Singh @ Ruzan S/o.Ramesh Singh (W.P.No.19027 of 2021) at liberty forthwith if they are no longer required in any other criminal case. Pending miscellaneous petitions, if any, shall stand closed.
__________________ P.NAVEEN RAO,J _________________________ Dr. G.RADHA RANI, J 9th February, 2022 Rds