Telangana High Court
G. Bargavi vs The State Of Telangana on 1 September, 2022
Author: Shameem Akther
Bench: Shameem Akther
THE HON'BLE Dr. JUSTICE SHAMEEM AKTHER
AND
THE HON'BLE SRI JUSTICE E.V.VENUGOPAL
WRIT PETITION No.26490 OF 2022
ORDER:(Per Hon'ble Dr. Justice Shameem Akther) Smt.G.Bargavi, the petitioner, has filed this Habeas Corpus petition on behalf of her brother, Edama Sai Kumar, S/o late Mallesh, the detenu, challenging the detention order vide SB(I) No.319/PD/SDPT/2022, dated 05.05.2022, passed by the respondent No.2-Commissioner of Police, Siddipet, Siddipet District, 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.1376, General Administration (Spl. (Law & Order)) Department, dated 02.07.2022 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.
2 Dr.SA,J & EVV,J W.P.No.26490 of 2022
3. Briefly, the facts of the case are that by relying on three crimes viz., Crime No.342 of 2021 of Siddipet I Town Police Station, registered for the offences under Sections 363, 366-A, 109, 202 and 376(ii)(n) of IPC and Section 5 r/w 6, 17 and 18 of Protection of Children from Sexual Offences Act, 2012 (for short, 'POCSO Act'), Crime No.9 of 2022 of Siddipet III Town Police Station, registered for the offence under Section 379 of IPC and Crime No.54 of 2022 of Siddipet I-Town Police Station, registered for the offences under Sections 392, 394, 307, 427, 201, 212, 411 r/w 34 of IPC and Section 25(1)(a) and 27 of Indian Arms Act, 1959, the respondent No.2, passed the impugned detention order, dated 05.05.2022. According to the respondent No.2, the detenu is a 'Goonda' and that he has been habitually committing offences including grave and dangerous offence of robbery using fire arm, rape of a minor girl and theft of two wheeler vehicle in the limits of Siddipet Police Commissionerate along with his associate. He has been causing large scale fear, terror and panic among the general public by committing such offences and thus, he has been acting in a manner prejudicial to the maintenance of public order apart from disturbing the peace, tranquility and social harmony in the society. With a view to prevent the detenu from acting in a manner 3 Dr.SA,J & EVV,J W.P.No.26490 of 2022 prejudicial to the maintenance of public order, the impugned detention order, dated 05.05.2022, was passed. The impugned detention order was confirmed by the Secretary to Government, General Administration (Spl. (Law & Order)) Department, Government of Telangana, vide G.O.Rt.No.1376, dated 02.07.2022. Hence, this writ petition before this Court.
4. Learned counsel for the petitioner would submit that the accusation in crime No.342 of 2021 relates to commission of offences under Sections 363, 366-A, 109, 202 and 376(ii)(n) of IPC and Section 5 r/w 6, 17 and 18 of POCSO Act. In the said crime, the victim had stated in her statement under Section 164 Cr.P.C. that there was a marriage between her and the detenu. The victim is pursuing second year graduation course. She is major. No offence is made out against the detenu in respect of crime No.342 of 2021. The second and third crimes viz., crime Nos.9 of 2022 and 54 of 2022 relate to commission of theft and attempt to murder respectively. Even those are considered, they would not disturb the public order at large. The detenu was granted conditional bail in all the three cases relied upon by the detaining authority. The impugned detention order was passed immediately after eight days of release of the detenu from jail.
4 Dr.SA,J & EVV,J W.P.No.26490 of 2022 Therefore, the apprehension of the detaining authority that there is every possibility of his violating bail conditions and committing similar offences adversely affecting the public order, unless he is prevented from doing so by an appropriate order of detention, is highly misplaced. The three 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". Since the offences alleged are under the Indian Penal Code, Indian Arms Act and POCSO Act, the detenu can certainly be tried and convicted under the Penal Code and the said special laws. Thus, there was no need for the detaining authority to invoke the draconian preventive detention law against the detenu. Hence, the impugned orders are legally unsustainable and ultimately, prayed to allow the Writ Petition, as prayed for.
5. On the other hand, the learned Special Government Pleader appearing for the respondents supported the impugned orders and submitted that the victim in crime No.342 of 2021 is under the age of 18 years. There is a certificate from the college to substantiate the same. She is pursuing first year graduation. The manner in which all the three crimes were committed clearly demonstrates that the gravity of the accusation is high. Thus, the acts of the 5 Dr.SA,J & EVV,J W.P.No.26490 of 2022 detenu are prejudicial to the maintenance of public order. Therefore, the satisfaction recorded by the detaining authority is not misconceived. 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.
6. 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 SB(I) No.319/PD/SDPT/2022, dated 05.05.2022, passed by the respondent No.2 and the consequential confirmation order vide G.O.Rt.No.1376, General Administration (Spl. (Law & Order)) Department, dated 02.07.2022 passed by the Secretary to Government, General Administration (Spl. (Law & Order)) Department, Government of Telangana, are liable to be set aside?"
POINT:
7. 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 6 Dr.SA,J & EVV,J W.P.No.26490 of 2022 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.
8. 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.
9. 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.
10. In the present case, the detaining authority, basing on three crimes indicated above, has passed the impugned detention order, 1 AIR 1966 SC 740 2 (1972) 3 SCC 831 7 Dr.SA,J & EVV,J W.P.No.26490 of 2022 dated 05.05.2022. 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
Crime Date of
registration Offences Nature
No. Occurrence
of FIR
Sec.363 IPC-
Sections
Cognizable/Bailable
363, 366-A,
109, 202 and
Sec.366-A, 376(ii)(n) IPC &
342/2021 of 376(ii)(n) of
Sec.5, 17 & 18 of POCSO
Siddipet I- 12.08.2021 14.08.2021 IPC and
Act-Cognizable/Non-
Town PS Section 5 r/w
Bailable
6, 17 and 18 of
POCSO Act
Sec.202 IPC-
Non-Cognizable/Bailable
9/2022 of
Section Sec.379 IPC-
Siddipet III 16.01.2022 17.01.2022
379 IPC Cognizable/Non-Bailable
Town PS
Sections 392, 394, 307 &
411 IPC-
Cognizable/Non-Bailable
392, 394, 307,
427, 201, 212,
Sections 427, 201 IPC-
411 r/w 34 of
Non-cognizable/Bailable
54/2022 of IPC and
Prior to
Siddipet I- 31.01.2022 Section
31.01.2022 Section 212 IPC-
Town PS 25(1)(a) and
Cognizable/Bailable
27 of Indian
Arms Act,
Section 25(1)(a) of Arms
1959,
Act:
Bailable
11. As seen from the material placed on record, the three crimes relied upon by the detaining authority for preventively detaining the detenu relate to kidnap, procuration of minor girl, rape, theft, robbery, voluntarily causing hurt, attempt to murder, mischief, causing disappearance of evidence, harbouring an offender and 8 Dr.SA,J & EVV,J W.P.No.26490 of 2022 dishonestly receiving stolen property. The detenu was arrested in connection with crime No.342 of 2021 of Siddipet I-Town Police Station. His arrest was regularized in Crime No.9 of 2022 through PT warrant. The accusation against the detenu in crime No.342 of 2021, is that he has indulged in commission of offences under Sections 363, 366-A, 109, 202 and 376(ii)(n) of IPC and Section 5 r/w 6, 17 and 18 of POCSO Act. Learned counsel for the petitioner has brought to the notice of this Court that in the statement recorded under Section 164 Cr.P.C., the victim has stated that she married the detenu. The second crime viz., crime No.9 of 2022 relates to commission of theft of motorcycle, for which the detenu is being prosecuted for the offence under Section 379 IPC only. As far as third crime viz., Crime No.54 of 2022 is concerned, the role of the detenu is that he opened the door of the car and took cash of Rs.43,50,000/- from the car and fled away from the scene of offence on the motorcycle driven by the associate of the detenu. In all three crimes relied upon by the detaining authority, the detenu was granted conditional bail and released from jail. The conditional orders of bail restrict the movement of the detenu and require him to appear before the officer concerned periodically. Furthermore, if it is found that the detenu had violated the bail 9 Dr.SA,J & EVV,J W.P.No.26490 of 2022 conditions or involved in further crimes, the prosecution can apprise the same to the Court concerned and seek cancellation of bail. Therefore, the apprehension of the detaining authority that there is every possibility of the detenu violating bail conditions and committing similar offences adversely affecting the public order, unless he is prevented from doing so by an appropriate order of detention, is highly misplaced. Here, it is also pertinent to state that at the first instance, the State is unsuccessful in defending the bail applications filed by the detenu. Secondly, the bail is granted on conditions and the State did not take any legal recourse under Section 439(2)Cr.P.C. to cancel the bail granted in favour of the detenu. Without adverting to the procedure established under law, the State is pleased to pass the impugned orders. Nothing is borne by record to prove that the detenu had violated the conditions of bail. There is no record to establish that the State is contemplating to take steps to cancel the bail orders granted in favour of the detenu. It is also relevant to state that regular legal recourse is already initiated against the detenu in all the aforementioned three crimes. It is open to the State to complete investigation and file charge sheet, if not filed, and thereafter, lead evidence in accordance with law in the said three crimes and prove the guilt of 10 Dr.SA,J & EVV,J W.P.No.26490 of 2022 the detenu. Since the detenu has committed the offences punishable under the Indian Penal Code, Indian Arms Act and POCSO Act, the detenu can certainly be tried and convicted under the Penal Code and the said special laws. The offences committed by the detenu in all the three 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". Moreover, criminal law was already set into motion against the detenu. 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. The criminal courts concerned shall not get influenced by any of the observations made herein above.
12. For the foregoing reasons, the impugned orders are legally unsustainable and are liable to be set aside.
13. In the result, the Writ Petition is allowed. The impugned detention order vide SB(I) No.319/PD/SDPT/2022, dated 05.05.2022, passed by the respondent No.2 and the consequential confirmation order vide G.O.Rt.No.1376, General Administration 11 Dr.SA,J & EVV,J W.P.No.26490 of 2022 (Spl. (Law & Order)) Department, dated 02.07.2022 passed by the Secretary to Government, General Administration (Spl. (Law & Order)) Department, Government of Telangana, are hereby set aside. The respondents are directed to set the detenu, namely Edama Sai Kumar, S/o late Mallesh, at liberty forthwith, if he is no longer required in any 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 ______________________ E.V.VENUGOPAL, J Date: 01.09.2022 ssp