Andhra HC (Pre-Telangana)
S. Murali Krishna vs Commissioner Of Police-Cum-District ... on 29 October, 1997
Equivalent citations: 1997(6)ALT563
Author: K.B. Siddappa
Bench: K.B. Siddappa
ORDER K.B. Siddappa, J.
1. The father of the detenu Sri Saripudi Venkata Naga Muralidhar O.S.V. N. Muralidhar R/o. Kabragaddavari Street, Governorpeta, Vijayawada, who is detained in Central Jail, Visakhapatnam, in pursuance of the order passed in C.No. 184/MC/97 dt. 29-7-1997 by the 1st respondent, has filed this Writ Petition questioning the order of detention.
2. The 1st respondent ordered for detention of Siripudi Venkata Naga Muralidhar O.S.V.N. Muralidhar, aged 27 years, and passed the impugned order for the following grounds :-
It is alleged that the detenu worked as an Executive in Pennar Paterson and Securities, Visakhapatnam during the period from 1993 to 1995 and that he was appointed as a Branch Manager in May 1995. The detenu collected Rs. 2,00,000/- from Radha Swaroopa Rani with a condition to repay the same with interest on or before 31-1-1997. But he did not repay the amount and thereby cheated her. On a complaint by Radha Swaroopa Rani, a case in Crime No. 25/97 was registered under Sections 420 and 406 I.P.C. and the detenu was arrested and was remanded to judicial custody on 14-7-1997.
The second incident relates to cheating of investors as well as the company by way of printing "Fully Secured Bonds" of the Company without the knowledge or consent of the Company for wrongful gain by way of misappropriation and cheating and thereby made lot of money. On a complaint a case in Crime No. 28/97 under Sections, 420,408, 468 and 471 I.P.C. was registered. The detenu was arrested on 14-7-1997 and was sent for judicial remand.
The third incident is dated 16-2-1997. The allegation is that the detenu cheated one B.R. Prasad, a resident of Madhurawada, Visakhapatnam. On a complaint, a case in Crime No. 29/97 was registered under Sections 420 and 408 I.P.C and the case is under investigation.
The fourth incident relates to the second complaint dt. 24-6-1997 by the same Dr. A. Radha Swaroopa Rani, and a case was registered under Sections 406, 420, 100-B I.P.C, r/w. Section 34 I.P.C. and Section 156 (3) Cr. P.C. He was arrested on 14-7-1997 and was sent for judicial remand.
The fifth incident is dated 12-7-1997. The allegation is that one Atluri Harinarayana Prasad, a resident of Jayaprada Apartments, Maharanipeta, Visakhapatnam lodged a complaint against the detenu that he cheated and misappropriated Rs. 6,60,000/- in short term deposits by issuing fake bonds and a case in Crime No. 129/97 was registered under Sections 406 and 408 IPC by IV Town Law & Order Police Station. The detenu was arrested on 14-7-1997 and was sent for judicial remand.
3. On the above incidents, the authority observed that the detenu is a habitual criminal committing dangerous offences like mobilisation of funds by way of "Buy back shares" contrary to the instructions of the Company and induced the investors to invest in the shares of the Companies and gave unauthorised commitments to buy back shares without the knowledge or consent of the company. He cheated the investors as well as the Company by printing "Fake Bonds". Therefore, it has become necessary to detain the detenu by invoking the special powers under A.P. Act 1 of 1986. The ordinary provisions of Penal Law will not have the immediate desired effect of preventing the detenu from further acting in a manner prejudicial to the maintenance of public order as the procedural requirements of Penal Law takes considerable long time. If the dangerous activities of the detenu are not prevented those would cause imminent danger to the maintenance of public order. Therefore it is opined that the conduct of the detenu falls under the Category of "goonda" as defined under Section 2(g) of Act 1 of 1986 and he was ordered to be detained by virtue of Section 3(2) of A.P. Prevention of Dangerous Activities of Boot Leggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986 and the detenu was detained in Central Prison, Visakhapatnam.
4. The learned Counsel appearing for the petitioner submitted that the allegations made in various Crimes mentioned above do not fall under the category to describe the detenu as a "goonda". He further submitted that the activities enumerated do not in any way constitute the acts in any manner prejudicial to the maintenance of "public order", as defined under Section 2(a) of Act 1 of 1986 and in the Explanation thereto. They do not cause directly or indirectly 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. Further, all the documents were not supplied. There is no indication in the order that the detenu is likely to be released in Criminal Cases on bail and that he would continue his illegal activities after his release. What is more is that on the date of detention, i.e., on 29-7-1997, the detenu was in the custody of police as he was already arrested on 14-7-1997. Therefore, there is no question of his committing any offences.
5. Further, the 1st respondent took into consideration the irrelevant Sections for ordering detention. Section 156 (3) Cr.P.C is also taken into consideration which can not form basic for ordering detention. Sections 468 and 471 I.P.C. do not fall under Chapters XVI, XVII or XXII of Indian Penal Code. Therefore, the detention of the detenu for the alleged offences under Sections 468 and 471 I.P.C. is illegal. Moreover, the charges are not definite. This ground alone is sufficient to set aside the order of detention.
6. For all these reasons, the learned Counsel submitted that the impugned order is illegal and the detenu is entitled to be set at liberty.
7. We see considerable force in the submission made by the learned Counsel for the petitioner, In this case, the personal liberty of the detenu is involved. A person can be deprived of his personal liberty only in accordance with law. The life and liberty of a citizen are guaranteed as fundamental rights. Personal liberty of an individual is the most precious possession of a citizen. The deprivation of personal liberty of a person is to be scrutinised by the Court with utmost care and to be decided with top most priority. In Ichudevi v. Union of India, , Justice Bhagwati observed as follows :-
"... The Court has always regarded personal liberty as the most precious possession of mankind and refused to tolerate illegal detention, regardless of the social cost involved in the release of a possible renegade. This is an area where the Court has been most strict and scrupulous in ensuring observance with the requirements of law, and even where a requirement of the law is breached in the slightest measure, the Court has not hesitated to strike down the order of detention..."
The concept of personal liberty is very dear to the American Judges and Juries. It is worth to quote a passage from Columbia Law Review, Volume 59, Page 232 which is as follows :-
"Faith in America is faith in her free institutions or it is nothing. The Constitution we adopted launched a daring and bold experiment. Under that compact, we agreed to tolerate even ideas we despise. We also agreed never to prosecute people merely for their ideas and beliefs...".
8. The concept of personal liberty is no less dearer to the Judges and Jurists of India also. Justice Venkatachaliah in Ayya Alias Ayur v. State of U.P., observed as under:-
" As to the approach to such laws which deprive personal liberty without trial, the libertatrian judicial faith has made its choice between pragmatic view and the idealistic of doctrinaire view. The approach to the curtailment of personal liberty which is an axiom of democratic faith and of all civilized life is an idealistic one for, loss of personal liberty deprives a man of all that is worth living for and builds up deep resentments. Liberty belongs what correspond to man's inmost self ".
9. Therefore, we have to see whether the activities of the detenu in this case constitute him to be a "Goonda" and if the personal liberty of the detenu was deprived for violation of the Law in force.
10. "Goonda" is defined under Section 2 (g) of the Act 1 of 1986 as follows:- "Goonda" means a person, 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 Chapter XVI or Chapter XVII of Indian Penal Code.
At once it is evident that Sections 468 and 471 IPC do not fall under the above Chapters. Taking these Sections into consideration, to place the detenu in this case, in the slot of "goonda" is irrelevant and unwarranted. Therefore, the argument of the learned Counsel for the petitioner that the authority took into consideration the irrelevant matter for ordering detention and that itself is a sufficient ground to set-aside the impugned order, is not without force. Moreover, if we scan through the impugned order, nowhere it is mentioned that the detenu is likely to be released on bail in the Crimes mentioned above. This also constitutes a ground for setting aside the impugned order.
11. In this case, it is admitted that the detenu was arrested on 14-7-1997. The impugned order was made on 29-7-1997. On the day when the detention was ordered, the detenu was already in the custody of the Police. 'It is not known how he would commit the activities which constitute him to be described as a "goonda". The impugned order is silent on this aspect. In B. Srinivasa Rao v. Commissioner of Police & Additional District Magistrate, Visakhapatnam City and Ors., , it was held as follows :-
"11. There is force in this submission. The order of detention says that it was necessary to make an order invoking the power under Section 3 (2) of the Act directing the detenu, who was then remand prisoner, with a view to prevent him from acting in a prejudicial manner to the 'public order'. The grounds of detention also mentions that the detenu was under judicial custody as a remand prisoner. The purpose of the order was therefore to prevent him from engaging in his activities, which were harmful to the society. At this stage it should be noticed that the detenu's bail application has been already dismissed before the Court below and normally in cases of rape the High Court will not grant bail to the accused. When if he was already under custody, there is no justification for the authority to exercise his power, unless he was satisfied that there was likelihood of his being released on bail or for any other such reason. A person is detained by prevention detention without conducting any trial. Such a power, therefore, should be exercised only in exceptional cases and with great circumspection. There must be awareness on the part of the authorities that the detenu's release was imminent in view of the fact that he might be released on bail and thereby continue his illicit acts. With-out such satisfaction indicated in the order, since person was already under judicial custody, the order directing preventive detention should be struck down as an improper exercise of power".
Therefore, this infirmity also should go to the benefit of the detenu.
12. The impugned order was passed with a view to prevent the detenu from acting in a prejudicial manner to the " Public Order". The phrase " Public Order" is amply explained in the explanation to Section 2 (a) of the Act. It is as follows : -
"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 of wide spread danger to life or public health".
Further, the difference between " public order " and "law and order " was the subject matter of a number of decisions of the Supreme Court , , & 1997 (3) A.L.D. 215).
13. In Pilli Venkteswari and Anr. v. Govt. of A.P., Hyderabad and Ors., 1997 (1) ALT (Crl.) 184 (A.P.), a Bench of this Court observed:-
"...It is suffice to observe that no action becomes one as affecting public order unless it affects the even tempo of public life, the life of the community, even though it may create a situation of law and order. The distinction lies in the degree and reach of the offence rather than in its nature as the same action under a given circumstance may become a question of public order and yet only a situation affecting law and order ..."
The Bench also relied upon the Judgments , A.I.R. 1988 S.C. 474, and A.I.R. 1996 S.C. 740.
14. In the present case, the incidents do not show that they are grave and cause harm and danger or alarm or a feeling of insecurity among general public. As stated earlier, they are individual offences and they can effectively be dealt with under the provisions of Penal Law. Therefore, the activities enumerated fall short of the requirements of definition under Section 2(a) and Explanation thereto, of Act 1 of 1986. Therefore, the detenu is entitled to be set at liberty and accordingly we set him at liberty.
15. The Writ Petition is accordingly allowed and in the circumstances without costs.