Karnataka High Court
Smt Prema vs State Of Karnataka on 6 August, 2012
Author: D.V. Shylendra Kumar
Bench: D.V. Shylendra Kumar
®
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 6TH DAY OF AUGUST 2012
PRESENT
THE HON'BLE MR.JUSTICE D.V. SHYLENDRA KUMAR
AND
THE HON'BLE MR.JUSTICE B.V. PINTO
WRIT PETITION (HC) No.102/2012
BETWEEN:
Smt. Prema
W/o. Late Gopinath
Aged about 51 years
R/at No.142
Muneshwara Block
Mahalakshmi Layout
Bangalore. ...Petitioner.
(By Sri.V. Lakshmikanth Rao & M. Sathish, Advs.)
AND:
1. State of Karnataka
By Senior Secretary
Department of Law and Order
Vidhana Soudha
Bangalore - 560 001.
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2. The Commissioner of Police
Bangalore City
Infantry Road
Bangalore - 560 001.
3. Asst. Commissioner of Police
Vijaynagar Sub-Division
Vijaynagar
Bangalore
4. Senior Superintendent
Central Prison
Bangalore Central Jail
Parappana Agrahara
Bangalore. ...Respondents.
(By SriE.S. Indiresh, HCGP)
*******
This Writ Petition is filed under Article 226 of the
Constitution of India with a prayer to declare the
detention of Vinod Kumar @ Kathlu by order No.CRM
[4]/DTN/01/2012 dated 17.3.2012 Annexure-A passed
by respondent No.2 and confirmed by respondent No.1
by order HD 137 SST 2012 dated 9.5.2012 Annexure B
as illegal and void abinitio.
This Writ Petition coming on for hearing this day,
Shylendra Kumar, J., made the following:
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ORDER
This writ petition is presented by the mother of one Vinod Kumar who is detained pursuant to an order dated 17.3.2012 passed by respondent No.2 - the Commissioner of Police, Bangalore City, under provisions of the Karnataka Prevention of Dangerous Activities of Boot-Leggers, Drug Offenders, Gamblers, Goondas, Immoral Traffic Offenders and Slum Grabbers Act, 1985 (hereinafter referred to as 'the Act' ) and he is under detention at the Central Prison at Bangalore. It is for issue of a writ in the nature of habeas corpus to quash the order of detention and to secure the freedom of the detenue, on the premise that detention is not valid in law, is not sustainable and therefore, the petition deserves to be allowed.
2. The detaining authority passed the detention order and in the grounds of detention, copy of which is furnished to the detenue it is inter alia indicated that -4- the detenue had been indulging in criminal activities ever since he was of the age of 22 years; that he is indulged in the criminal activities from the year 2003 onwards; that the detenue along with his other associates such as Cycle Ravi, Mahesh @ Paisa, Satisha, chandrasekara, Raghevendra, Ananda, Venkatesh, Hanumantharaju, Rama, Somshekar, Sanjay, Saravana, Arun Kumar, have been systematically indulged in crime punishable under Sections 364-A, 365, 387, 307, 399, 402, 365, 344, 323, 320 506 and even under Section 302 of IPC etc., that the detenue was involved in as many as ten criminal cases over a period of time; that many of the criminal cases have resulted in acquittal for want of supporting evidence as witnesses being scared of the criminal and goonda activities of the detenue, were not coming forward to give evidence; that there are some criminal cases still pending against the detenue; that CC No.8505/2003 is still pending on the file of the -5- Court of VII Addl. CMM Court, Bangalore, and likewise another case in SC. No.186/2011 is also pending before the V ACMM Court and likewise investigation is in progress in criminal case No.44/2012 for the offences punishable under Sections 399 and 402 of IPC and registered by K.P. Agrahara Police Station, Bangalore. The accused is on bail in the case of the year 2003 and so also in the S.C. No.186/2011 that in criminal case No.44/2012 detenue having been produced before the V Addl. CMM Court, has been remanded to the police custody and that the case is under investigation; that a rowdy sheet is opened against the detenue on 8.10.2011 due to such repeated criminal and goonda activities; that the conduct of the detenue not only disturbs the public order but was prejudicing the peace and order in the society; that the detenue while on bail was in the habit of threatening the witness because of which the witnesses were not coming forward to tender evidence -6- and therefore, there was need to pass the order of detention.
3. It is questioning this order, the present writ petition (HC) on several grounds inter alia indicating that the detaining authority has not applied his mind before passing the order, although relevant materials were placed before the detaining authority, before the order came to be passed. But, there was non application of mind to the material, which was available before him; that the order passed by the detaining authority has not been properly approved by the government within 12 days by the State Government as per the provisions of Section 3(3) of the Act for the detenue has not been properly apprised as regards his representations to be submitted against the order of detention. But even the confirmation of the order of detention by the State Government as on 9.5.2012 is also vitiated, though the advisory board had not advised -7- the State Government against the order of detention that the detenue had been released on bail by the Court of Presiding Officer Fast Track Court II, Bangalore, in Criminal Miscellaneous No.1228/2012 as per the order dated 9.3.2012 relating to crime No.44/2012 registered by the K.P. Agrahara Police that copy of this order has not been placed before the detaining authority about the bail granted and release of the detenue and therefore, the order passed by the detaining authority is vitiated due to non-application of mind etc.
4. Petition had been admitted and State Government had been put on notice. Sri E.S. Indiresh, learned HCGP appears and statement of objections has been placed before the Court.
5. Sri E.S. Indiresh, learned HCGP submits that while the grounds raised in writ petition in support of the petitioner are all disputed and not tenable, it is averred that all relied upon documents have also been -8- furnished to the detenue after complying with the procedural requirements as contemplated under Article 22 of the Constitution of India; that all procedural safeguards have been duly observed; that the detention order having been duly approved on 26.3.2012 and the advisory board in its representation dated 23.4.2012 having been affirmed the order of the State Government in pursuance thereto has confirmed the order of detention for a period of 12 months from the date of detention and therefore, no need for interference and urges for dismissal of the writ petition.
6. We have heard Sri Lakshmikanth Rao, learned counsel for the petitioner and Sri E.S. Indiresh, learned HCGP appearing for the respondent - State.
7. Sri Lakshmikanth Rao, learned counsel has raised two points viz., one to submit that the detention order could have been affirmed only for a period of three months and thereafter it should be revalidated for -9- periods of three months at a time, but confirmation by the State Government being for a period 12 months at one go, is clearly in contravention of the proviso to Section 3(2) of the Act and therefore, the detention order is vitiated. The second point urged by Sri Lakshikanth Rao, learned counsel is that the detaining authority being totally oblivious to the bail order granted in favour of the detenue on 9.3.2012 i.e., about eight days prior to the issue of the detention order and not showing awareness but being under impression that the detenue was still under judicial custody has also vitiated the order for relevant material being not placed before the detaining authority and that affecting the satisfaction in the formation of his opinion etc.
8. In support of the same Mr. Lakshmikanth Rao, learned counsel has placed reliance on the judgment of the Supreme Court in the case of RUSHIKESH TANAJI BHOITE VS. STATE OF MAHARASHTRA AND OTHERS
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reported in (2012) 1 SCC (Cri) 693 which was followed and applied by this court in a similar situation in the case of SMT. SARASWATHI VS. THE COMMISSIONER OF POLICE as per order dated 24.5.2012 passed in WP (HC) No.6/2012. It is submitted that Supreme Court in the case of RUSHIKESH TANAJI BHOITE noticing that a bail order, which had not been placed before the detaining authority, has held that the order of detention gets vitiated. In an identical situation, this Court also, in SMT. SARASWATHI's case [supra] found that the bail order had not been placed before the detaining authority, and therefore the petition came to be allowed.
9. On the other hand, Sri E.S. Indiresh, learned HCGP appearing for the respondent - State, has pointed out that insofar as the submission relating to the detaining authority getting vitiated due to the contravention of the proviso to Section 3(2) of the Act, is concerned, the detention order is not affected; that the
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period of limitation of three months is in respect of an order of the State Government, delegating its powers under section 3(1) in favour of a district magistrate or a commissioner of police; that such an order requires to be renewed or re-issued by the State Government, every three months; that this limitation of three months is not with reference to the order of detention and therefore, that cannot be a ground to hold that the detention order is illegal.
10. However, with regard to the second point urged by Sri Lakshmikanth Rao, learned counsel for the petitioner that the order of bail granted in favour of the detenue as on 9.3.2012, was not placed before the detaining authority is a fact as even conceded by the learned government pleader, and if the law as understood in RUSHIKESH TANAJI BHOITE'S case is to be applied the detention order can not be sustained.
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11. Though we find in the present case that insofar as the effect of the bail order dated 9.3.2012 is concerned, it is not of much difference from the situation as it prevailed in the case of other pending criminal cases against the detenue and wherein he has been enlarged on bail and the observation by the detaining authority is that the detenue was in the habit of threatening and terrorising the witnesses, while on bail and that is the ground for passing the order of detention, the question for examination in a petition for issue of a writ of habeas corpus being as to whether the safeguards provided to a citizen under Article 22 of the Constitution of India have been duly observed, when once it is conceded that the bail order dated 9.3.2012 relating to criminal case No.44/2012 registered by the K.P. Agrahara Police had not been placed and the detaining authority was not aware of the same, there cannot be any two opinions that all relevant material required to be placed, based on which the detaining authority could
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have been arrived at the satisfaction for passing an order of detention, was not before the detaining authority. It is speculative to hazard the outcome, as to how it could have affected the mind of the detaining authority notwithstanding the fact a similar situation prevailed in respect of other criminal cases.
12. However, insofar as first point urged by Sri Rao is concerned, we find Section 3 of the Act reading as under :-
"3. Power to Make Orders Detaining Certain Persons.- (1) The State Government may, if satisfied with respect to any bootlegger or drug offender or gambler or goonds or immoral trafic offender or slum-grabber that with a view to prevent him from acting in any manner prejudicial to the maintenance of public order, it is necessary so to do make an order directing that such persons be detained.
(2) If, having regard to the circumstances prevailing or likely to prevail in any area within the local limits of the jurisdiction of a District Magistrate or a Commissioner of Police, the State Government is satisfied that is is necessary so to do, it may, by order in writing, direct that during such period as may be specified in the order, such District
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Magistrate of Commissioner of Police may also, if satisfied as provided in sub-section (I) Exercise the power conferred by the sub- section.
Provided that the period specified in the order made by the State Government under this sub-section shall not, in the first instance, exceed three months, but the State Government may if satisfied as aforesaid that it is necessary so to do, amend such order to extend such period from time to time by any period not exceeding three months at any one time.
(3) When any order is made under this section by an officer mentioned in sub-section (2), he shall forthwith report the fact to the State Government together with the grounds on which the order has been made and such other particulars as, in his opinion, have a bearing on the matter and no such order shall remain in force for more than twelve days after the making thereof, unless, in the meantime, it has been approved by the State Government."
the proviso to sub-section (2) of Section 3 clearly qualifies the situation as contemplated in sub-section (2) of section 3 of the Act and cannot be telescoped into provisions of Section 3(1) of the Act.
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13. Insofar as duration of the detention is concerned it is only with reference to the provisions of Section 13 of the Act reading as under:-
"Section 13 : Maximum period of Detention:-
The maximum period for which any person may be detained, in pursuance of any detention order made under this Act which has been confirmed under Section 12, shall be twelve months from the date of detention."
which is a maximum period of 12 months from the date of detention. Even assuming that the order of detention has not mentioned the duration, the detention order in terms of Section 13 will be valid only for a maximum period of 12 months even if the order should indicate a longer period or any other period and subject to observations of other requirements that order of detention will be for a period of 12 months unless a shorter period is specifically indicated. However, on the second point this petition succeeds and the order of detention dated 17.03.2012 is hereby quashed for the reason we have already discussed above.
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14. This Writ Petition (HC) is allowed. Rule made absolute. We direct the detenue be set at liberty forthwith, unless the detenue is required in any other case for detention or custody.
Sd/-
JUDGE Sd/-
JUDGE NG*