Telangana High Court
Kaushal Tyagi vs The State Of Telangana on 23 February, 2022
Author: P.Naveen Rao
Bench: P Naveen Rao, G.Radha Rani
HON'BLE SRI JUSTICE P.NAVEEN RAO
AND
HON'BLE SMT Dr.JUSTICE G.RADHA RANI
WRIT PETITION No.29162 of 2021
Date:23.02.2022
Between:
Kaushal Tyagi S/o.Arun Kumar Tyagi,
Aged about 22 yrs, Occu : Business,
R/o.H.No.1-14/1, Gayatri Nivas,
Ex-Servicemen Colony, Balaji Nagar,
Jawaharnagar, Medchal-Malkajgiri District
.....Petitioner
And
The State of Telangana,
Through its Principal Secretary,
General Administration (Spl.(Law & Order) Department,
Secretariat, Hyderabad & others.
.....Respondents
The Court made the following:
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HON'BLE SRI JUSTICE P.NAVEEN RAO
AND
HON'BLE SMT Dr.JUSTICE G.RADHA RANI
WRIT PETITION No.29162 of 2021
ORDER:(per Hon'ble Sri Justice P.Naveen Rao) This writ petition is filed seeking the following relief :
"...declaring the order of detention bearing No.136/PD- CELL/CCRB/RCKD/2021, dated 29.10.2021 dated 29.10.2021 passed by the Second respondent as being illegal, arbitrary and violative of Article 21 and 22 of the Constitution of India and to consequently set- aside the same by directing the second respondent to produce the detenue Arun Kumar Tyagi, S/o.Rajender Kumar Tyagi, Aged 47 yrs, Occu : Ex-Service man, R/o.Plot No.6/7, Santosh Nagar Colony, Balaji Nagar, Jawahar Nagar, Kapra Mandal, Medchal District, Father of petitioner, who has been detained in Prison and forthwith release the detenu from prison and be pleased to pass such other order..."
2. This writ petition is instituted by the son of detenu Arun Kumar Tyagi, challenging the order of detention dated 29.10.2021 made under Section 3 (2) of the Telangana Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug-Offenders, Goondas, Immoral Traffic Offenders, Land-Grabbers, Spurious Seed Offenders, Insecticide Offenders, Fertilizer Offenders, Food Adulteration Offenders, Fake Documents Offenders, Scheduled Commodities Offenders, Forest Offenders, Gaming Offenders, Sexual Offenders, Explosive Substances Offenders, Arms Offenders, Cyber Crime offenders and White Collar or Financial Offenders (Amendment) Act, 1986 (Act 13 of 2018).
3. Heard Sri R.Sushanth Reddy, learned counsel for the petitioner and learned Government Pleader for home representing learned Additional Advocate General appearing for the respondents. -3-
4. The order of detention is resorted to on the ground that the detenu is involved in three crimes recently registered in Jawaharnagar Police Station. Cr.No.491 of 2021 was registered on 26.06.2021 and Cr.No.749 of 2021 was registered on 02.09.2021. These two crimes were registered on a complaint given by a lady working with the detenu in a news channel. It appears the complainant was also working together with the son of detenu in another news channel. Cr.No.767 of 2021 was registered on 06.09.2021 based on a complaint lodged by a lady by name Sai Prashanthi Kondaparthy. This complainant alleged that the detenu called her on her mobile phone informing that the phone number was given to him by a fellow police station journalist and they were interacting. However, later, she realized that his behaviour and conduct was not good and he forcibly tried to take her alone to spend time together secludedly. It appears, police are investigating into all the three crimes. By referring to these three crimes and also taking note of the involvement of detenu in 11 crimes earlier between 2012 and 2020, the detention order is passed.
5. Learned counsel for the petitioner submits that the order of detention is vitiated on two grounds. Firstly, it is not permissible to refer to stale and old crimes while undertaking detention. Detention can be resorted to under Act 1 of 1986 only with reference to the offences committed proximate to the decision to detain and depending on the seriousness of the crimes registered against the detenu in the recent past. Secondly, the three crimes alleged against the detenu are -4- normal crimes which can be investigated and prosecuted in the normal course of enforcement of law and order and do not require extreme measure of detaining the detenu affecting his life and liberty.
6. In support of his contention that previous history cannot be taken into consideration, while resorting to detention, learned counsel placed reliance on the decision of Hon'ble Supreme Court in Khaja Bilal Ahmed Vs State of Telangana1.
7. Learned Government Pleader justifies the decision to detain the detenu on the ground that the allegations levelled against him by two women in three crimes recently registered against the detenu are very grave and warrants serious action and there is every possibility of detenu indulging in similar crimes, if he is released. He further submits that in order to understand the criminal bent of mind of a person against whom proposal to detain is undertaken while looking into the previous criminal history and only for that purpose, 11 crimes registered against the detenu were recorded in the order of detention, but as recorded therein, the said crimes were not taken into consideration to resort to preventive detention.
8. We have carefully considered the respective submissions. It is not in dispute that two persons who filed three complaints which are the basis for resorting to preventive detention appear to be very well known to the detenu. The complainant in Cr.Nos.491 and 749 of 2021 was working together with the detenu in a news channel stated to have 1 2020 (13) SCC 632 -5- been floated by him and she is also associated with the son of detenu in another news channel. Therefore, the complainant and the detenu are very well known to each other. The alleged crimes concern the issues arising out of their news channel. Similarly, the complainant in Cr.No.767 of 2021 also appears to be known to the detenu. Though the allegations made in the complaints appear to be grave and require thorough investigation taking them to the logical end, the only issue for consideration is whether involvement in those three crimes would result in affecting the public order necessitating resorting to the extreme measure of preventively detaining the detenu under the Act 1 of 1986.
9. Before answering this issue, we refer to the decision relied upon by learned counsel for the petitioner, on the issue of considering the previous history of involvement of detenu in the crimes.
10. In Khaja Bilal Ahmed also the detaining authority referred to previous crimes of the detenu but also stated that those crimes are only referred to ascertain whether the detenu was in the habit of involving in crimes, but they were not relied upon to resort to preventive detention. In Paragraph No.23 the Hon'ble Supreme Court noted that according to detaining authority, the detenu was involved in crimes between 2007 and 2016. The Hon'ble Supreme Court held as under :
"23. In the present case, the order of detention states that the fourteen cases were referred to demonstrate the "antecedent criminal history and conduct of the appellant".
The order of detention records that a "rowdy sheet" is being maintained at PS Rain Bazar of Hyderabad City and the appellant "could not mend his criminal way of life" and continued to indulge in similar offences after being released on bail. In the counter- affidavit filed before the High Court, the detaining authority recorded that these cases were "referred by way of his criminal background ... (and) are not relied upon". The -6- detaining authority stated that the cases which were registered against the appellant between 2009 and 2016 "are not at all considered for passing the detention order" and were "referred by way of his criminal background only". This averment is plainly contradictory. The order of detention does, as a matter of fact, refer to the criminal cases which were instituted between 2007 and 2016. In order to overcome the objection that these cases are stale and do not provide a live link with the order of detention, it was contended that they were not relied on but were referred to only to indicate the antecedent background of the detenu. If the pending cases were not considered for passing the order of detention, it defies logic as to why they were referred to in the first place in the order of detention. The purpose of the Telangana Offenders Act, 1986 is to prevent any person from acting in a manner prejudicial to the maintenance of public order. For this purpose, Section 3 prescribes that the detaining authority must be satisfied that the person to be detained is likely to indulge in illegal activities in the future and act in a manner prejudicial to the maintenance of public order. The satisfaction to be arrived at by the detaining authority must not be based on irrelevant or invalid grounds. It must be arrived at on the basis of relevant material; material which is not stale and has a live link with the satisfaction of the detaining authority. The order of detention may refer to the previous criminal antecedents only if they have a direct nexus or link with the immediate need to detain an individual. If the previous criminal activities of the appellant could indicate his tendency or inclination to act in a manner prejudicial to the maintenance of public order, then it may have a bearing on the subjective satisfaction of the detaining authority. However, in the absence of a clear indication of a causal connection, a mere reference to the pending criminal cases cannot account for the requirements of Section 3. It is not open to the detaining authority to simply refer to stale incidents and hold them as the basis of an order of detention. Such stale material will have no bearing on the probability of the detenu engaging in prejudicial activities in the future."
(Emphasis supplied)
11. One of the reasons given by the Hon'ble Supreme Court to set aside the order of detention is that there was reference to stale and irrelevant cases. Such reference may be undertaken if they have a direct nexus or link. In the case on hand they were stale and do not appear to have a link to present crimes. Thus, the order of detention made on this ground is not sustainable.
12. Even otherwise, the three crimes relied to preventively detain cannot be said as amounting to disturbing the public order. They are the crimes which can be investigated in the normal process of enforcement of law and order.
13. For the aforesaid reasons, the order of detention is not sustainable and the same is liable to be set aside.
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14. The impugned detention order passed by the Office of the Commissioner of Police, Rachakonda Commissionerate-2nd respondent vide No.136/PD-CELL/CCRB/RCKD/2021 dated 29.10.2021 and the consequential confirmation order of the Principal Secretary to Government, General Administration (SPL.(Law & Order) Department, Secretariat, Hyderabad-1st respondent confirming the detention vide G.O.Rt.No.164, General Administration (SPL.(Law & Order) Department dated 25.01.2022, are hereby set aside and the writ petition is allowed. The respondents are directed to set the detenu, namely Arun Kumar Tyagi S/o.Rajender Kumar Tyagi, Age: 47 yrs, Occu : Ex-Service man, R/o.Plot No.6/7, Santhosh Nagar Colony, Balaji Nagar, Jawahar Nagar, Kapra Mandal, Medchal District, at liberty forthwith if he is no longer required in any other criminal case. Pending miscellaneous petitions, if any, shall stand closed.
__________________ P.NAVEEN RAO,J ______________________ Dr. G.RADHA RANI,J 23rd February, 2022 Rds