Telangana High Court
Mamidi Devi vs The State Of Telangana on 26 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 Nos.22945 AND 22966 OF 2022
COMMON ORDER:(Per Hon'ble Dr. Justice Shameem Akther) Though the petitioners/detenues in both these Writ Petitions are different, since the issue involved is one and the same, both the Writ Petitions are being taken up together and disposed of by way of this common order.
2. These Writ Petitions are filed by the petitioners/detenues, Smt. Shaik Kaneez Fathima and Smt. Mamidi Devi, respectively, challenging the separate detention orders vide No.41/PD- CELL/CCRB/RCKD/2022 and No.40/PD-CELL/CCRB/RCKD/2022, of even date, dated 14.03.2022, passed by the respondent No.2, whereby, the detenues were detained under Section 3(2) of the Telangana Preventive Detention Act, 1986 (Act 1 of 1986), and the consequential confirmation orders vide G.O.Rt.Nos.1103 and 1102, General Administration (Spl. (Law & Order)) Department, of even date, dated 26.05.2022, passed by the respondent No.1.
3. Heard the learned counsel for the petitioners/detenues, learned Special Government Pleader representing the learned 2 Dr.SA,J & NTR,J W.P.Nos.22945 & 22966 of 2022 Additional Advocate General appearing for the respondents and perused the record.
4. Learned counsel for the petitioners would submit that the impugned detention orders were passed by the respondent No.2 by relying on a recent solitary crime registered against the detenues viz., Crime No.554 of 2021 of Saroornagar Police Station, registered for the offences under Sections 372, 376(3), 376(2)(j), 343, 366(a), 370, 370A(1) of I.P.C., Section 75 of Juvenile Justice (Care and Protection of Children) Act, 2015 (for short, 'JJ Act'), Sections 5 r/w 6 and 17 of the Protection of Children from Sexual Offences Act, 2012 (for short, 'POCSO Act'), Sections 3, 4, 5 and 6 of Immoral Traffic (Prevention) Act, 1956 (for short, 'PITA'), Section 3(2)(v) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2015 (for short, 'SCs. & STs. (POA) Amendment Act') read with 34 and 114 I.P.C. and Sections 9 and 10 of Prohibition of Child Marriage Act, 2006. Subsequently, the impugned detention orders were confirmed by the Government vide G.O.Rt.Nos.1103 and 1102, of even date, dated 26.05.2022. There is no criminal history of the detenues committing similar offence in the past. The solitary crime relied on 3 Dr.SA,J & NTR,J W.P.Nos.22945 & 22966 of 2022 by the detaining authority does not add up to "disturbing the public order" and it is confined within the ambit and scope of the words "law and order". Since the offences alleged are under the Indian Penal Code, JJ Act, POCSO Act, PITA, SCs. & STs. (POA) Act and Prohibition of Child Marriage Act, the detenues can certainly be tried and convicted under the Penal Code and the said special laws. Since charge sheet was not filed in the said crime within the time stipulated, the detenues were granted statutory bail by the Court concerned. Therefore, the detaining authority ought not have passed the impugned detention order under Section 3(2) of the Act 1 of 1986. Hence, the impugned orders are legally unsustainable and ultimately, prayed to allow the Writ Petitions, 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 detenues are 'Immoral Traffic Offenders'. They along with their associates have been indulging in human trafficking for the sake of prostitution and running organized prostitution business with trafficked women/girls in their houses for getting pecuniary benefits. They also induced minor girls, who 4 Dr.SA,J & NTR,J W.P.Nos.22945 & 22966 of 2022 are not having food and shelter, under the guise of providing livelihood in Hyderabad and forced them to indulge in the activities of prostitution, thereby affecting the maintenance of public order and disturbing the peace and tranquillity in the society. Thus, 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 Petitions.
6. In view of the submissions made by both the sides, the point that arises for determination in these Writ Petitions is:
"Whether the impugned detention orders vide No.41/PD- CELL/CCRB/RCKD/2022 and No.40/PD-CELL/CCRB/RCKD/2022 of even date, dated 14.03.2022, passed by the respondent No.2, and the consequential confirmation orders vide G.O.Rt.Nos.1103 and 1102, General Administration (Spl. (Law & Order)) Department, of even date, dated 26.05.2022, passed by the respondent No.1, 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 5 Dr.SA,J & NTR,J W.P.Nos.22945 & 22966 of 2022 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 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.
1AIR 1966 SC 740 2 (1972) 3 SCC 831 6 Dr.SA,J & NTR,J W.P.Nos.22945 & 22966 of 2022
10. In the present cases, the detaining authority, basing on a solitary crime indicated above, has passed the impugned detention orders of even date, dated 14.03.2022. We shall present it in a tabular form the date of occurrence, the date of registration of FIR, 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
Secs.372,
376(3),
1) Secs. 372, 376(3), 376(2)(j), 366,
376(2)(j), 343, 370 & 370A(1) of
366(a), 370, 370A(1) IPC,
of IPC Sec.75 of JJ Act,
Secs.5 & 17 of
2) Sec. 75 of JJ Act POCSO Act,
Sec.3(2)(v) of
3) Secs.5 r/w 6 and the SCs. & STs.
17 of POCSO Act (POA)
Amendment Act,
554/2021 of Prior to 4) Secs.3,4, 5 & 6 of Secs.9 & 10 of
02.10.2021
Saroornagar PS 02.10.2021 PITA Prohibition of
Child Marriage
5) Sec.3(2)(v) of the Act
SCs. & STs. (POA) : Cognizable/
Amendment Act r/w Non-Bailable
34 & 114 IPC and
Sec.343-
6) Secs.9 & 10 of Cognizable/
Prohibition of Child bailable
Marriage Act
Sections 3, 4, 5 &
6 of PITA:
Cognizable
11. As seen from the material placed on record, the solitary crime relied upon by the detaining authority for preventively 7 Dr.SA,J & NTR,J W.P.Nos.22945 & 22966 of 2022 detaining the detenues relates to selling or letting to hire a minor for the purpose of prostitution, rape, wrongful confinement, kidnap, immoral trafficking, exploitation of trafficked child, cruelty on child, aggravated penetrative sexual assault, solemnizing a child marriage. There is no criminal history of the detenues committing similar offences in the past. Here, it is appropriate to refer to the decision rendered by the Honourable Supreme Court in Vijay Narain Singh v. State of Bihar3, wherein it was held that a single act or omission cannot be characterized as a habitual act or omission because the idea of 'habit' involves an element of persistence and a tendency to repeat the acts or omissions of the same class or kind, if the acts or omission in question are not of the same kind or even if they are of the same kind when they are committed with a long interval of time between them, they cannot be treated as habitual ones. In the instant cases, there is no record to substantiate that there is tendency of repetition of commission of similar offence by the detenues. Further, the detenues were arrested in connection with the said crime and subsequently, they were granted statutory bail under Section 167(2) Cr.P.C. vide order, dated 11.03.2022, passed in 3 (1984) 3 SCC 14 8 Dr.SA,J & NTR,J W.P.Nos.22945 & 22966 of 2022 Crl.M.P.No.455 of 2022 by the learned Fast Track Special Sessions Judge for Trial and Disposal of Cases under POCSO Act, Ranga Reddy District at L.B. Nagar. It appears that the investigation officer had not completed investigation within the stipulated period. Therefore, the detenues were granted bail under Section 167(2) Cr.P.C. It is a grave omission on the part of the investigation officer in not completing investigation within the stipulated period. The very purpose of enacting the provision under Section 167(2) Cr.P.C. is to expedite the investigation, so that the valuable material evidence is not lost and can be collected and produced before the Court. For the laches on the part of the investigation officer, it is not appropriate to invoke the draconian preventive detention law against the detenues. The relief granted to the detenues under Section 167(2) Cr.P.C. cannot be scuttled by invoking the preventive detention law. Under these circumstances, the satisfaction reached by the detaining authority is misconceived. Moreover, criminal law was already set into motion against the detenues. Since the detenues have committed the offences punishable under the Indian Penal Code, JJ Act, POCSO Act, PITA, SCs. & STs. (POA) Amendment Act and Prohibition of Child 9 Dr.SA,J & NTR,J W.P.Nos.22945 & 22966 of 2022 Marriage Act, the said crime can be effectively dealt with under the provisions of the Penal Code and the said special laws. The offences committed by the detenues in the solitary crime 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 invoke the draconian preventive detention law. The detaining authority cannot be permitted to subvert, supplant or substitute the punitive law of land, by ready resort to preventive detention.
12. For the foregoing reasons, the impugned orders are legally unsustainable and are liable to be set aside.
13. In the result, the Writ Petitions are allowed. The impugned detention orders vide No.41/PD-CELL/CCRB/RCKD/2022 and No.40/PD-CELL/CCRB/RCKD/2022, of even date, dated 14.03.2022, passed by the respondent No.2, and the consequential confirmation orders vide G.O.Rt.Nos.1103 and 1102, General Administration (Spl. (Law & Order)) Department, of even date, dated 26.05.2022, passed by the respondent No.1, are hereby set aside. The respondents are directed to set the 10 Dr.SA,J & NTR,J W.P.Nos.22945 & 22966 of 2022 detenues, namely Smt. Shaik Kaneez Fathima, W/o. Ghouse Khan, and Smt. Mamidi Devi, W/o. Prem Kumar, at liberty forthwith, if they are no longer required in any other criminal case.
The Miscellaneous Petitions, if any, pending in these Writ Petitions shall stand closed. There shall be no order as to costs.
______________________ Dr. SHAMEEM AKTHER, J ________________ N. TUKARAMJI, J Date: 26.07.2022 MD