Telangana High Court
Shaheen Fatima vs The State Of Telangana on 29 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.23760 OF 2022
ORDER:(Per Hon'ble Dr. Justice Shameem Akther) Smt. Shaheen Fatima, the petitioner, has filed this Habeas Corpus petition on behalf of her brother, Amer Khan, the detenu, challenging the detention order vide SB(I).No.69/PD-3/HYD/2022, dated 05.04.2022, passed by the respondent No.2-Commissioner of Police, Hyderabad City, 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.1369, General Administration (Spl. (Law & Order)) Department, dated 01.07.2022, 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.
3. Learned counsel for the petitioner would submit that out of nine crimes registered against the detenu in the year 2021, by 2 Dr.SA,J & NTR,J W.P.No.23760 of 2022 relying on six crimes viz., Crime No.260 of 2021 of Kalapathar Police Station registered for the offence under Section 380 I.P.C.; Crime No.412 of 2021 of Chaderghat Police Station, Crime No.181 of 2021 of Dabeerpura Police Station and Crime No.414 of 2021 of Chaderghat Police Station, registered for the offence under Section 379 I.P.C.; Crime No.268 of 2021 of Kanchanbagh Police Station, registered for the offence under Section 379 read with 34 I.P.C.; and Crime No.169 of 2021 of Marredpally Police Station, registered for the offences under Sections 420 and 379 I.P.C., the respondent No.2, passed the impugned detention order, dated 05.04.2022. Subsequently, the impugned detention order was confirmed by the Government, vide G.O.Rt.No.1369, dated 01.07.2022. The 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, the detenu can certainly be tried and convicted under the Indian Penal Code. Further, the detenu was granted bail/conditional bail by the Courts concerned in all the crimes relied on by the detaining authority and was released from jail. But, the detenu was again sent to jail by invoking the draconian preventive detention law. Therefore, the finding 3 Dr.SA,J & NTR,J W.P.No.23760 of 2022 recorded by the detaining authority that since the detenu was released on bail in all the ground cases, there is imminent possibility of the detenu committing similar offences, which would be detrimental to public order, unless he is prevented from doing so by an appropriate order of detention, is highly misplaced. Hence, the impugned orders are legally unsustainable and ultimately, prayed to allow the Writ Petition, as prayed for.
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' and that he along with his associates has been habitually committing theft of mobile phones from the passengers travelling in auto rickshaws by diverting their attention and also from other places in the limits of Hyderabad Police Commissionerate. He has been causing widespread fear 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. 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. Therefore, the finding recorded by the detaining authority is not misconceived. The crimes relied on 4 Dr.SA,J & NTR,J W.P.No.23760 of 2022 by the detaining authority amounts to disturbance of public order at large. Therefore, 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.
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 SB(I).No.69/PD-3/HYD/2022, dated 05.04.2022, passed by the respondent No.2, and the consequential confirmation order vide G.O.Rt.No.1369, General Administration (Spl. (Law & Order)) Department, dated 01.07.2022, passed by the Secretary to Government, General Administration (Spl. (Law & Order)) Department, Government of Telangana, are liable to be set aside?"
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 5 Dr.SA,J & NTR,J W.P.No.23760 of 2022 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.
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 six crimes indicated above, passed the impugned detention order, 1 AIR 1966 SC 740 2 (1972) 3 SCC 831 6 Dr.SA,J & NTR,J W.P.No.23760 of 2022 dated 05.04.2022. 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
260/2021 of Prior to Cognizable/
23.11.2021 Section 380 of IPC
Kalapathar PS 23.11.2021 Non Bailable
412/2021 of Cognizable/
19.09.2021 23.11.2021 Section 379 of IPC
Chaderghat PS Non Bailable
181/2021 of Cognizable/
03/04.10.2021 22.11.2021 Section 379 of IPC
Dabeerpura PS Non Bailable
414/2021 of Cognizable/
27.10.2021 24.11.2021 Section 379 of IPC
Chaderghat PS Non Bailable
268/2021 of Section 379 r/w Cognizable/
28.10.2021 23.11.2021
Kanchanbagh PS 34 of IPC Non Bailable
169/2021 of 420 and 379 of Cognizable/
15.11.2021 24.11.2021
Maredpally PS IPC Non Bailable
10. As seen from the material placed on record, all the crimes relied upon by the detaining authority for preventively detaining the detenu relate to theft and cheating. The detenu was arrested on 25.11.2021 in connection with Crime No.268 of 2021 of Kanchanbagh Police Station and remanded to judicial custody. His arrest was regularized in the remaining cases through PT warrants. The detenu was granted bail/conditional bail in all the ground cases and was released from jail. Thereafter, the impugned detention 7 Dr.SA,J & NTR,J W.P.No.23760 of 2022 order was passed. 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. Further, the conditional order of bail restricts the movement of the detenu and requires him to appear before the officer concerned periodically. Since conditional bail was granted to the detenu in some of the ground cases, 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 Court concerned and seek cancellation of bail in terms of the mandate given under Section 439 (2) Cr.P.C. Under these circumstances, the finding recorded by the detaining authority that since the detenu was released on bail, there is imminent possibility of his committing similar offences, which would be detrimental to public order, unless he is prevented from doing so by an appropriate order of detention, is highly misplaced. Moreover, criminal law was already set into motion against the detenu. Since the detenu has committed the offences punishable under the Indian Penal Code, the said crimes 8 Dr.SA,J & NTR,J W.P.No.23760 of 2022 can be effectively dealt with under the provisions of the Penal Code and there was no need for the detaining authority to invoke the draconian preventive detention law. The offences committed by the detenu in all the 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 SB(I).No.69/PD-3/HYD/2022, dated 05.04.2022, passed by the respondent No.2, and the consequential confirmation order vide G.O.Rt.No.1369, General Administration (Spl. (Law & Order)) Department, dated 01.07.2022, 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 9 Dr.SA,J & NTR,J W.P.No.23760 of 2022 Amer Khan, S/o. late Sardar Khan, 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: 29.07.2022 MD