Telangana High Court
Vankudavath Kavitha vs The State Of Telangana on 27 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.14056 OF 2022
ORDER:(Per Hon'ble Dr. Justice Shameem Akther) Smt.Vankudavath Kavitha, the petitioner has filed this Habeas Corpus petition on behalf of her husband, Vankudavath Dhaku, S/o Ramulu, the detenu, challenging the detention order vide C.No.125/WRC/CSB-XI/2022, dated 04.03.2022, passed by the respondent No.2, 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.1077, General Administration (Spl. (Law & Order)) Department, dated 21.05.2022, passed by the Secretary to Government, General Administration (Spl. (Law & Order)) Department, Government of Telangana.
2. Heard the learned counsel for the petitioner, learned Special Government Pleader representing the learned Additional Advocate General appearing for the respondents and perused the record.
3. Learned counsel for the petitioner would contend that by relying on five crimes registered against the detenu during the years 2020 and 2021, viz., crime Nos.421 of 2020, 468 of 2020, Dr.SA,J & NTR,J 2 W.P.No.14056 of 2022 4 of 2021, 59 of 2021 and 316 of 2021 of Jangaon Police Station, registered for the offences under Sections 457 and 380 of IPC and Section 136(1) of Electricity Act, the respondent No.2 passed the impugned detention order, dated 04.03.2022. Subsequently, the impugned detention order was confirmed by the Government vide G.O.Rt.No.1077, dated 21.05.2022. In all the aforesaid crimes, bail was granted to the detenu and released from jail. But he was again sent to jail by invoking the draconian preventive detention laws. The apprehension of the detaining authority that there is every likelihood of the detenu indulging in similar offences, which are prejudicial to the maintenance of public order, unless he is prevented from doing so by an appropriate order of detention, is highly misplaced. Already criminal law was set into motion against the detenu. The alleged crimes do not add up to "disturbing the public order" and they are confined within the ambit and scope of the words "law and order". Since the offences alleged are under the Indian Penal Code and the Electricity Act, the detenu can certainly be tried and convicted under the penal code and the said special law. Thus, there was no need for the detaining authority to invoke the draconian preventive detention law against the detenu. The impugned orders are legally unsustainable and ultimately, prayed to allow the Writ Petition, as prayed for.
Dr.SA,J & NTR,J 3 W.P.No.14056 of 2022
4. On the other hand, the learned Special Government Pleader appearing for the respondents supported the impugned orders and submitted that the detenu is a 'goonda'. He along with associates in an organized manner has been habitually indulging in grave and dangerous offences such as theft of copper wire/coils by damaging the agricultural electric transformers, copper wire attached to bore wells and theft of copper wire from the stores of electrical sub stations in the limits of Warangal Police Commissionerate and thus creating large scale of fear and panic among the farmers and general public adversely affecting the public order. Under these circumstances, the apprehension of the detaining authority is not misconceived. Therefore, the detaining authority and the Government were legally 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 C.No.125/WRC/CSB-XI/2022, dated 04.03.2022, passed by the respondent No.2, and the consequential confirmation order vide G.O.Rt.No.1077, General Administration (Spl. (Law & Order)) Department, dated 21.05.2022, passed by the Secretary to Government, General Administration (Spl. (Law & Order)) Department, Government of Telangana, are liable to be set aside?"
Dr.SA,J & NTR,J 4 W.P.No.14056 of 2022 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, 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.
1 AIR 1966 SC 740 Dr.SA,J & NTR,J 5 W.P.No.14056 of 2022
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 five (5) crimes indicated above, has passed the impugned detention order, dated 04.03.2022. We shall present them in a tabular form 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 Sections 457 & 380 Sections 457 & of IPC: Cognizable/ 421/2020 of Prior to 380 IPC and Non-Bailable 28.11.2020 Jangaon PS 26.11.2020 Section 136(1) Section 136(1) of of Electricity Act Electricity Act:
cognizable Sections 457 & Sections 457 & 380 380 IPC and of IPC: Cognizable/ 468/2020 of Section 136(1) of Non-Bailable 27.12.2020 29.12.2020 Jangaon PS Electricity Act Section 136(1) of Electricity Act:
cognizable Sections 457 & Sections 457 & 380 380 IPC and of IPC: Cognizable/ 4/2021 of Section 136(1) of Non-Bailable 02.01.2021 03.01.2021 Jangaon PS Electricity Act Section 136(1) of Electricity Act:
cognizable Sections 457 & Sections 457 & 380 380 IPC and of IPC: Cognizable/ 59/2021 of Section 136(1) of Non-Bailable 16.02.2021 17.02.2021 Jangaon PS Electricity Act Section 136(1) of Electricity Act:
cognizable 2 (1972) 3 SCC 831 Dr.SA,J & NTR,J 6 W.P.No.14056 of 2022 Sections 457 & Sections 457 & 380 380 IPC and of IPC: Cognizable/ 316/2021 of Section 136(1) of Non-Bailable
29.07.2021 30.07.2021 Jangaon PS Electricity Act Section 136(1) of Electricity Act:
cognizable
10. As seen from the material placed on record, the aforesaid five(5) crimes relied upon by the detaining authority for preventively detaining the detenu relate to theft and lurking house trespass. The detenu was arrested on 31.08.2021 in connection with Crime No.316 of 2021 and remanded to judicial custody and his arrest was regularised in the remaining four cases through separate remand reports. The detenu moved bail petitions in all the five crimes relied on by the detaining authority and he was granted bail in all the five crimes and released on bail. Under these circumstances, the apprehension of the detaining authority that there is every likelihood of the detenu indulging in similar offences, which are prejudicial to the maintenance of public order, unless he is prevented from doing so by an appropriate order of detention, is highly misplaced. It is the bounden duty of the Police to inform the learned Public Prosecutor about the conduct of the detenu and to handover the entire case record available against the detenu. The police are supposed to be vigilant in collecting the whole data against the detenu and furnish the same to the Public Prosecutor/Additional Public Prosecutor to defeat the bail application/s of the detenu. Moreover, criminal law was already set Dr.SA,J & NTR,J 7 W.P.No.14056 of 2022 into motion against the detenu. Further, since the detenu has committed the offences punishable under the Indian Penal Code and the Electricity Act, the said crimes can be effectively dealt with under the provisions of the Penal code and the said special law and there was no need for the detaining authority to invoke the draconian preventive detention law. The offences committed by the detenu in the five crimes relied on by the detaining authority do not fall within the ambit of the words "public order" or "disturbance of public order". Instead, they fall within the scope of the words "law and order". 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 C.No.125/WRC/CSB-XI/2022, dated 04.03.2022, passed by the respondent No.2, and the consequential confirmation order vide G.O.Rt.No.1077, General Administration (Spl. (Law & Order)) Department, dated 21.05.2022, passed by the Secretary to Government, General Administration (Spl. (Law & Order)) Department, Government of Dr.SA,J & NTR,J 8 W.P.No.14056 of 2022 Telangana, are hereby set aside. The respondents are directed to set the detenu, namely Vankudavath Dhaku, S/o. Ramulu, at liberty forthwith, if he is no longer required in any other criminal case.
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: 27.07.2022 ssp