Telangana High Court
Vankunavath Priyanka vs The State Of Telangana And 3 Others on 11 July, 2022
Author: Shameem Akther
Bench: Shameem Akther, N.Tukaramji
THE HON'BLE Dr. JUSTICE SHAMEEM AKTHER
AND
THE HON'BLE SRI JUSTICE N.TUKARAMJI
WRIT PETITION No.36353 OF 2021
ORDER:(Per Hon'ble Dr. Justice Shameem Akther) Smt. Vankunavath Priyanka, the petitioner, has filed this Habeas Corpus petition on behalf of her husband, Vankunavath Suresh, challenging the detention order vide Proc.No.C1/7759/ 2021, dated 04.10.2021, passed by the respondent No.2-Collector and District Magistrate, Nalgonda, whereby, the detenu was detained under Section 3(2) of the Telangana Preventive Detention Act, 1986 (Act 1 of 1986), and the consequential confirmation order vide G.O.Rt.No.2763, General Administration (Spl. (Law & Order)) Department, dated 15.12.2021, passed by the respondent No.1-Principal Secretary to Government, General Administration (Spl. (Law & Order)) Department, Government of Telangana.
2. Heard the learned counsel for the petitioner, learned Assistant Government Pleader for Home representing the learned Advocate General appearing for the respondents and perused the record.
2 Dr.SA,J & NTR,J W.P.No.36353 of 2021
3. Learned counsel for the petitioner would submit that by relying on two cases viz., Crime No.31 of 2021 of Neredugommu Police Station, Nalgonda District, registered for the offences under Sections 120-B, 452, 302, 307, 506, 202, 212, 109, 147 and 148 read with 149 I.P.C. and Crime No.100 of 2021 of Neredugommu Police Station, Nalgonda District, registered for the offences under Sections 195-A and 507 I.P.C., the respondent No.2, passed the impugned detention order, dated 04.10.2021. Subsequently, the impugned detention order was confirmed by the Government, vide G.O.Rt.No.2763, dated 15.12.2021. In both the Crimes, the detenu was granted statutory bail/bail and was released from judicial custody. After release on bail, the impugned detention order was passed holding that the acts of the detenu disturb the public order at large. At the most, the accusation made against the detenu would only amount to disturbance of law and order. Since the offences alleged are under the Indian Penal Code, the detenu can certainly be tried and convicted under the Indian Penal Code. The State is not supposed to circumvent the procedure laid down under Cr.P.C. and resort to invoke the provisions under Section 3(2) of the Preventive Detention Act. Without there being any substantial material to arrive at a conclusion that the 3 Dr.SA,J & NTR,J W.P.No.36353 of 2021 accusation made against the detenu amounts to disturbance of public order, the impugned orders were passed. Hence, the impugned orders are legally unsustainable and ultimately, prayed to allow the Writ Petition, as prayed for.
4. On the other hand, the learned Assistant Government Pleader for Home appearing for the respondents supported the impugned orders and submitted that the detenu is a 'goonda'. He has been indulging in a series of sensational offences including murder, theft, threatening and affray in the limits of Neredugommu and Gudipally Police Stations of Nalgonda District, thereby creating large scale fear and panic among the people affecting the public order adversely. He was involved in series of offences, including double murder. After release on bail in Crime No.31 of 2021, he committed the offences in Crime No.100 of 2021. Apart from the above two crimes, earlier, the detenu was involved in three crimes and the same were taken as his antecedent criminal history. Thus, he has been acting in a manner prejudicial to maintenance of public order, apart from disturbing the peace, tranquility and social harmony in the society. The series of crimes allegedly committed by the detenu were sufficient to cause a feeling of insecurity in the minds of the people at large.
4 Dr.SA,J & NTR,J W.P.No.36353 of 2021 Therefore, the detaining authority and the Government are justified in passing the impugned orders. The impugned orders are legally sustainable and ultimately, prayed to dismiss the Writ Petition.
5. In view of the submissions made by both the sides, the point that arises for determination in this Writ Petition is:
"Whether the impugned detention order vide Proc.No.C1/7759/2021, dated 04.10.2021, passed by the respondent No.2, and the consequential confirmation order vide G.O.Rt.No.2763, General Administration (Spl. (Law & Order)) Department, dated 15.12.2021, passed by the respondent No.1, are liable to be set aside?"
POINT:
6. In catena of cases, the Hon'ble Supreme Court had clearly opined that there is a vast difference between "law and order" and "public order". The offences committed against a particular individual fall within the ambit of "law and order" and when the public at large is adversely affected by the criminal activities of a person, such activities of that person are said to disturb the public order. Moreover, individual cases can be dealt with by the criminal justice system. Therefore, there is no need for the detaining authority to invoke the draconian preventive detention laws against an individual. Hence, according to the Hon'ble Apex Court, 5 Dr.SA,J & NTR,J W.P.No.36353 of 2021 the detaining authority should be wary of invoking the immense power under the Act.
7. In Ram Manohar Lohia v. State of Bihar1, the Hon'ble Supreme Court has, in fact, deprecated the invoking of the preventive law in order to tackle a law and order problem. It was observed that every breach of public peace and every violation of law may create a 'law and order' problem, but does not necessarily create a problem of 'public order'. The distinction has to be borne in mind in view of what has been stated in the grounds of detention.
8. In Kanu Biswas v. State of West Bengal2, the Hon'ble Apex Court, while discussing the meaning of word 'public order,' held that the question whether a man has only committed a breach of 'law and order' or has acted in a manner likely to cause a disturbance of the 'public order', is a question of degree and extent of the reach of the act upon the Society.
9. In the present case, the detaining authority, basing on the two crimes indicated above, has passed the impugned detention order, dated 04.10.2021. We shall present them in a tabular form 1 AIR 1966 SC 740 2 (1972) 3 SCC 831 6 Dr.SA,J & NTR,J W.P.No.36353 of 2021 the date of occurrence, the date of registration of FIRs, the offences complained of and their nature, such as bailable/non- bailable or cognizable/non-cognizable.
Date of Date of Crime No. registration Offences Nature Occurrence of FIR Secs.147, 148 & 212 IPC -
Cognizable/ Bailable Secs. 120-B, Secs.120-B, 452, 452, 302, 307, 31/2021 of 302, 307, 506 & 506, 202, 212, Neredugommu 18/19.04.2021 19.04.2021 109 IPC -
109, 147 and
PS Cognizable/
148 r/w 149
Non-Bailable
I.P.C.
Sec.202 IPC -
Non-Cognizable/
Bailable
Sec.195-A IPC -
Cognizable/
Non-Bailable
100/2021 of
Prior to 195-A & 507 r/w
Neredugommu 18.08.2021
18.08.2021 34 I.P.C. Sec.507 IPC -
PS
Non-Cognizable/
Bailable
10. As seen from the material placed on record, the impugned detention order is passed by placing reliance on the aforesaid two crimes, which relate to criminal conspiracy, house trespass, murder, attempt to murder, criminal intimidation, intentional omission to give information of an offence, harbouring an offender, abetment, rioting, rioting armed with deadly weapons, threatening and criminal intimidation by anonymous communication. In Crime No.31 of 2021, the detenu was granted statutory bail under Section 7 Dr.SA,J & NTR,J W.P.No.36353 of 2021 167(2) Cr.P.C. It appears that the investigating officer had not completed investigation within the stipulated period i.e., ninety days. Therefore, the detenu was granted bail under Section 167(2) Cr.P.C. It is a grave omission on the part of the investigating officer in not completing investigation within a period of ninety days. The very purpose of enacting the provision under Section 167(2) Cr.P.C. is to expedite the investigation, so that the valuable material evidence is not lost and can be collected and produced before the Court. For the laches on the part of the investigating officer, it is not appropriate to invoke the draconian preventive detention law against the detenu. The relief granted to the detenu under Section 167(2) of Cr.P.C. cannot be scuttled by invoking the preventive detention law. Further, in Crime No.100 of 2021 also the detenu was granted bail and the offences therein are not that grave. Under these circumstances, the apprehension of the detaining authority that since the detenu was released on bail, there is imminent possibility of his resorting to similar activities, which are detrimental to public order, unless he is prevented from doing so by an appropriate order of detention, is highly misplaced. Moreover, criminal law was already set into motion against the detenu. The State is required to lead evidence and prove the guilt 8 Dr.SA,J & NTR,J W.P.No.36353 of 2021 of the detenu in the said crimes. Since the detenu has committed the offences punishable under the Indian Penal Code, the said crimes can be effectively dealt with under the provisions of the Penal Code. The two crimes relied on by the detaining authority do not add up to "disturbing the public order" and they are confined within the ambit and scope of the words "law and order". Further, the three crimes taken as the criminal history of the detenu relate to theft, wrongful confinement, criminal intimidation and affray. Hence, there was no need for the detaining authority to pass the impugned detention order. The detaining authority cannot be permitted to subvert, supplant or substitute the punitive law of land, by ready resort to preventive detention.
11. For the foregoing reasons, the impugned orders are legally unsustainable and are liable to be set aside.
12. In the result, the Writ Petition is allowed. The impugned detention order vide Proc.No.C1/7759/2021, dated 04.10.2021, passed by the respondent No.2, and the consequential confirmation order vide G.O.Rt.No.2763, General Administration (Spl. (Law & Order)) Department, dated 15.12.2021, passed by the respondent No.1, are hereby set aside. The respondents are directed to set the detenu, namely Vankunavath Suresh S/o. Late.
9 Dr.SA,J & NTR,J W.P.No.36353 of 2021 Lachya, at liberty forthwith, if he is no longer required in any other criminal case.
The Miscellaneous Petitions, if any, pending in this Writ Petition shall stand closed. There shall be no order as to costs.
______________________ Dr. SHAMEEM AKTHER, J ___________________ N.TUKARAMJI, J Date: 11.07.2022 MD