Telangana High Court
Vasamsetti Vineela Rani vs The State Of Telangana on 26 April, 2022
Author: Shameem Akther
Bench: Shameem Akther, Juvvadi Sridevi
THE HON'BLE Dr. JUSTICE SHAMEEM AKTHER
AND
THE HON'BLE SMT. JUSTICE JUVVADI SRIDEVI
WRIT PETITION No.14419 OF 2022
ORDER:(Per Hon'ble Dr. Justice Shameem Akther) Smt. Vasamsetti Vineela Rani, the petitioner, has filed this Habeas Corpus petition on behalf of her husband, Rishabh Upadhyay @ Chandan, S/o. Krishna Chandra Upadhyay, the detenu, challenging the detention order vide No.02/PD-CELL/CYB/2022, dated 21.01.2022, 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.847, General Administration (Spl. (Law & Order)) Department, Government of Telangana, dated 13.04.2022, passed by the Chief Secretary to Government, General Administration (Spl. (Law & Order)) Department, Government of Telangana.
2. Heard the learned counsel for petitioner, learned Assistant Government Pleader for Home representing the learned Additional Advocate General appearing for the respondents and perused the record.
3. The case of the petitioner is that out of nine criminal cases registered against the detenu in the year 2021, basing on four Dr.SA, J & JS, J 2 W.P.No.14419 of 2022 crimes viz., Crime Nos.213 of 2021, 218 of 2021 and 247 of 2021 of Raidurgam Police Station and Crime No. 501 of 2021 of Madhapur Police Station of Cyberabad Commissionerate, the respondent No.2 passed the impugned detention order, dated 21.01.2022. According to respondent No.2, the detenu is a 'Cyber Crime Offender', as he has been engaging himself in cheating innocent job seekers under the guise of providing job visas abroad and linking their bank account credentials to fake websites developed by him for online payment gateway and collecting money from innocent people luring with supplying of groceries at cheaper rates through his fake website in an organized way in the limits of Cyberabad Police Commissionerate and thereby, creating large scale fear and insecurity among the public, which are prejudicial to the maintenance of public order. Subsequently, the impugned detention order was confirmed by the Government, vide G.O.Rt.No.847, dated 13.04.2022.
4. Learned counsel for the petitioner would contend that the impugned detention order has been passed in a mechanical manner and without application of mind. Already criminal law was set into motion against the detenu. The detenu was granted statutory/conditional bail by the Courts concerned in all the four (4) crimes relied upon by the detaining authority. But he was again sent Dr.SA, J & JS, J 3 W.P.No.14419 of 2022 to jail by invoking the draconian preventive detention law on the apprehension that free movement of the detenu is not safe to the society, as there is imminent possibility of the detenu indulging in similar offences, in a manner prejudicial to maintenance of public order, which is unjustified. The alleged crimes do not add up to "disturbing the public order" and they are confined within the ambit and scope of the word "law and order". Since the offences alleged are under the Indian Penal Code and the Information Technology Act (for short, 'IT 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. Hence, the impugned orders tantamount to colourable exercise of power. The impugned orders are legally unsustainable and ultimately, prayed to allow the Writ Petition, as prayed for.
5. 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 'Cyber Crime Offender'. He has been engaging himself in cheating innocent job seekers under the guise of providing job visas abroad and linking their bank account credentials to fake websites developed by him for online payment gateway and collecting money from innocent people luring with Dr.SA, J & JS, J 4 W.P.No.14419 of 2022 supplying of groceries at cheaper rates through his fake website in an organized way in the limits of Cyberabad Police Commissionerate and thereby, creating large scale fear and insecurity among the public, which are prejudicial to the maintenance of public order. Since the detenu was granted statutory/conditional bail in all the four (4) crimes relied upon by the detaining authority, the apprehension of the detaining authority that free movement of the detenu is not safe to the society as there is imminent possibility of the detenu indulging in similar offences, is not misconceived. 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. Since the modus of committing the crimes was cheating innocent job seekers and collecting money from innocent people luring with supplying of groceries at cheaper rates through his fake website in an organized way, it has created sufficient panic in the minds of the general public. Therefore, the detaining authority was legally justified in passing the impugned detention order. Further, the Advisory Board rendered its opinion that there is sufficient cause for detention of the detenu and on considering the same along with the entire material, the Government confirmed the impugned detention order vide G.O.Rt.No.847, dated 13.04.2022. All the mandatory requirements were strictly followed by the detaining authority while passing the Dr.SA, J & JS, J 5 W.P.No.14419 of 2022 impugned detention order. 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 No.02/PD- CELL/CYB/2022, dated 21.01.2022, passed by the respondent No.2 and the consequential confirmation order vide G.O.Rt.No.847, General Administration (Spl. (Law & Order)) Department, Government of Telangana, dated 13.04.2022, passed by the Chief 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 against an individual. Hence, according to the Hon'ble Apex Court, the Dr.SA, J & JS, J 6 W.P.No.14419 of 2022 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 four crimes indicated above, has passed the impugned detention order, dated 21.01.2022. We shall present them in a tabular form the date of occurrence, the date of registration of FIR, the offence complained 1 AIR 1966 SC 740 2 (1972) 3 SCC 831 Dr.SA, J & JS, J 7 W.P.No.14419 of 2022 of and its nature, such as bailable/non-bailable or cognizable/non- cognizable.
Date of Date of Crime No. registration Offences Nature Occurrence of FIR Section 419 of IPC and Sections 66C & 66D of IT Act -
Sections 419 & 420
Cognizable/
of IPC and
213/2021 of Bailable
19.04.2021 27.04.2021 Sections 66C and
Raidurgam PS
66D of IT Act
Section 420 of
IPC
Cognizable/
Non-bailable
Section 419 of
IPC and
Sections 66C &
66D of IT Act -
Sections 419 & 420
Cognizable/
of IPC and
218/2021 of Bailable
28.04.2021 28.04.2021 Sections 66C &
Raidurgam PS
66D of IT Act
Section 420 of
IPC
Cognizable/
Non-bailable
Section 419 of
IPC and
Sections 66C &
66D of IT Act -
Sections 419 & 420
Cognizable/
of IPC and
247/2021 of Bailable
20.04.2021 10.05.2021 Sections 66C &
Raidurgam PS
66D of IT Act
Section 420 of
IPC
Cognizable/
Non-bailable
Section 420 of
IPC
Section 420 of IPC Cognizable/
501/2021 of and Non-bailable
23.04.2021 28.04.2021
Madhapur PS Section 66C of IT Section 66C of
Act IT Act-
Cognizable/
Bailable
11. As seen from the material placed on record, the crimes relied upon by the detaining authority for preventively detaining the detenu Dr.SA, J & JS, J 8 W.P.No.14419 of 2022 relate to cheating by personation, cheating and identity theft. The detenu was arrested on 07.07.2021 in Crime No.218 of 2021 of Raidurgam Police Station and remanded to judicial custody and his arrest was regularized through P.T. warrants in Crime No.501 of 2021 of Madhapur Police Station and Crime Nos.213 and 247 of 2021 of Raidurgam Police Station. Subsequently, in Crime No.218 of 2021 of Raidurgam Police Station and Crime No. 501 of 2021 of Madhapur Police Station, the first two bail applications moved by the detenu were dismissed and in the third bail application, he was granted statutory bail on certain conditions. In Crime Nos.213 and 247 of 2021 of Raidurgam Police Station, the first bail application moved by the detenu was dismissed and in the second bail application, the detenu was granted bail on certain conditions. The conditional order of bails restricts the movement of the detenu and requires him to appear before the officer concerned periodically and the detenu would be under the surveillance of the police and the Court. Under these circumstances, the apprehension of the detaining authority that since the detenu was released on bail, there is imminent possibility of his involving in similar offences 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 hand over the entire case record available against the detenu. The police are supposed to be Dr.SA, J & JS, J 9 W.P.No.14419 of 2022 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. Further, in the instant case, since the detenu was granted statutory/conditional bail in all the four crimes relied upon by the detaining authority, if it is found that the detenu had violated the bail conditions or involved in further crimes, the prosecution can apprise the same to the Courts concerned and seek cancellation of bail. Moreover, criminal law was already set into motion against the detenu. Since the detenu has allegedly committed offences punishable under the Indian Penal Code and the I.T. Act, the said crimes can be effectively dealt with under the provisions of the Indian Penal Code and the said special law and there was no need for the detaining authority to invoke draconian preventive detention laws. The offences allegedly committed by the detenu in all the four crimes relied upon 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 word "law and order". Hence, there was no need for the detaining authority to pass the impugned detention orders. The detaining authority cannot be permitted to subvert, supplant or substitute the punitive law of land, by ready resort to preventive detention.
Dr.SA, J & JS, J 10 W.P.No.14419 of 2022
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 No.02/PD-CELL/CYB/2022, dated 21.01.2022, passed by the respondent No.2, and the consequential confirmation order vide G.O.Rt.No.847, General Administration (Spl. (Law & Order)) Department, dated 13.04.2022, passed by the Chief 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 Rishabh Upadhyay @ Chandan, S/o. Krishna Chandra Upadhyay, 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 __________________ JUVVADI SRIDEVI, J Date: 26-04-2022 MD