Kommire Pochaiah v. The State Of Telangana

HI GH COURT FOR THE STATE OF TELANGANA THE HON'BLE THE CHI EF JUSTI CE RAGHVENDRA SI NGH CHAUHAN AND THE HON'BLE Dr . JUSTI CE SHAMEEM AKTHER W r it Pet it ion No.1 4 5 7 of 2 0 1 9 Date: 18.07.2019 Between:

Kommire Pochaiah

...Petitioner

And The State of Telangana, Rep.by the Principal Secretary, General Administration (Spl. (Law & Order) Department, Secretariat Building, at Hyderabad, and others.

...Respondents

Counsel for the petitioner : Sri Pasham Trivikram Reddy Counsel for the respondents: Special Government Pleader The Advocate General Th e Cou r t m ade t h e follow in g:

ORDER: (Per the Hon'ble Dr.Justice Shameem Akther) Mr. Kommire Pochaiah @ Vadde Pochaiah @ Raju, S/ o. Late K. Yellaiah, the detenu, has filed the present Habeas Corpus Petition, inter alia, on the ground that for the offences of theft and cheating in which the detenu is allegedly involved, the Commissioner of Police, Hyderabad city, the respondent No.2, has passed a preventive detention order on 04.08.2018. The said order was subsequently confirmed by the order, dated 24.10.2018, passed by the Principal Secretary to Government, (General Administration (Spl. (Law and Order) Department, Government of Telangana, the respondent No.1. Heard the learned counsel for the parties, and perused the impugned orders.

The petitioner submits that on 04.08.2018, the respondent No.2 had passed the impugned detention order ostensibly on the ground that the detenu was involved in five cases falling under Sections 379, 380 & 420 of IPC, which were registered against him in the year 2018. Subsequently, the said detention order was confirmed by the order, dated 24.10.2018, by the respondent No.1. Hence, the present petition before this Court. Sri Pasham Trivikram Reddy, the learned counsel for the petitioner, has vehemently contended that a distinction has to be made between "law and order" and "disturbance of public order". The detenu is alleged to have committed offences of theft and cheating. However, the detenu is so poor that he has not even managed to submit the sureties, despite the fact that bail was granted by the Court concerned in four crimes vide Crime

Nos.101/ 2018, 145/ 2018, 36/ 2018 and 251/ 2018. Therefore, according to the learned counsel, individual cases of offences of theft and cheating would fall within the ambit of 'law and order problem', as such cases can be dealt with easily under the normal criminal justice system. In order to deal with these cases, the draconian preventive detention laws need not be invoked. Therefore, the invoking of the provisions of the Telangana Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act is an abuse of the process of law, and the action smacks of colourable exercise of power. Secondly, it is a classic case where the defenseless and voiceless persons may have been arrested, and may have been falsely implicated by the Police in order to claim that it has "cracked a large number of cases".

Lastly, that such indiscriminating use of the preventive detention laws are in violation of right to life and personal liberty, which is guaranteed by the Article 21 of the Constitution of India. Hence, both the impugned orders deserve to be set aside by this Court.

On the other hand, Mr. S.Sharath, the learned Special Government Pleader, submits that even a series of offences of theft in temples and cheating are likely to cause panic and insecurity in the minds of the people. Since the alleged five offences of temple thefts and cheating were committed by the detenu during the year 2018, the detaining authority was legally justified in passing the impugned orders. Hence, the learned Counsel has supported the impugned orders.

In view of the submissions made by both the sides, the point that arises for determination in this Writ Petition is: " W h et h er t h e det en t ion or der , dat ed 0 4 .0 8 .2 0 1 8 , passed by t h e r espon den t No.2 an d t h e con fir m at ion or der , dat ed 2 4 .1 0 .2 0 1 8 , passed by t h e r espon den t No.1 ar e liable t o be set aside?" Poin t :- In the case of Ram Man oh ar Loh ia v. St at e of Bih ar 1, the Hon'ble Supreme Court has, in fact, deprecated the invoking of the preventive law in order to tackle a law and order problem. The Hon'ble Supreme Court has observed as under:

"54.

We have here a case of detention under Rule 30 of the Defence of India Rules which permits apprehension and detention of a person likely to act in a manner prejudicial to the maintenance of public order. It follows that if such a person is not detained public disorder is the apprehended result. Disorder is no doubt prevented by the maintenance of law and order also but disorder is a broad spectrum which includes at one end small disturbances and at the other the most serious and cataclysmic happenings. Does the expression "public order' take in every kind of disorders or only some of them? The answer to this serves to distinguish "public order" from "law and order" because the latter undoubtedly takes in all of them. Public order if disturbed, must lead to public disorder. Every breach of the peace does not lead to public disorder.

When two drunkards quarrel and fight there is disorder but not public disorder. They can be dealt with under the powers to maintain law and order but cannot be detained on the ground that they were disturbing public order.

were of rival communities and one of them tried to raise communal passions. The problem is still one of law and order but it raises the apprehension of public disorder. Other examples can be imagined. The contravention of law always affects order but before it can be said to affect public order, it must affect the community or the public at large. A mere disturbance of law and order leading to disorder is thus not necessarily sufficient for action under the Defence of India Act but disturbances which subvert the public order are. A District Magistrate is entitled to take action under Rule 30(1)(b) to prevent subversion of public order but not in aid of maintenance of law and order under ordinary circumstances."

In the case of Kan u Bisw as v . St at e of W est Ben gal 2, the Supreme Court has opined as under:

"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 the extent of the reach of the act upon the society. Public order is what the French call 'order publique' and is something more than ordinary maintenance of law and order. The test to be adopted in determining whether an act affects law and order or public order, as laid down in the above case, is: Does it lead to disturbance of the current of life of the community so as to amount to a disturbance of the public order or does it affect merely an individual leaving the tranquility of the society undisturbed?"

In the present case, the detenu is allegedly involved in five criminal cases vide Crime Nos.66/ 2018, 101/ 2018, 145/ 2018, 36/ 2018 and 251/ 2018. We shall present in a tabular column the 2 (1972) 3 SCC 831

date of occurrence, the date of registration of FIRs, the offence complained of and their nature, such as bailable/ non-bailable or cognizable/ non-cognizable.

Sl.

No.

Cr im e No.

Dat e of occu r r en ce Dat e of r egist r at ion of FI R Offen ces Nat u r e 1.

66/ 2018 of Gandhinagar PS 10.03.2018 29.03.2018 Section 380 of IPC Cognizable/ Non-Bailable 2.

101/ 2018 of Musheerabad PS 13.03.2018 13.03.2018 Section 380 of IPC Cognizable/ Non-Bailable 3.

145/ 2018 of Panjagutta PS 16.03.2018 29.03.2018 Section 380 of IPC Cognizable/ Non-Bailable 4.

36/ 2018 of Dabeerpura PS 19.03.2018 30.03.2018 Section 380 of IPC Cognizable/ Non-Bailable 5.

251/ 2018 of Banjarahills PS 29.03.2018 29.03.2018 Section 379 & 420 of IPC Cognizable/ Non-Bailable There are two glaring facets of this case which have drawn the attention of this Court: firstly, the detenu was arrested on 05.04.2018 in Crime No.145/ 2018 of Panjagutta Police Station and remanded to judicial custody. On interrogation, the detenu confessed to have committed the other four crimes, viz., Crime Nos.66/ 2018, 101/ 2018, 36/ 2018 and 251/ 2018. Subsequently, the detenu moved bail petitions in Crime Nos.101/ 2018, 145/ 2018, 36/ 2018 and 251/ 2018, and he was granted bail in these four cases by the Courts concerned. Despite of the fact that the detenu was granted bail in aforesaid four crimes by the Courts concerned, he could not be released on the bail, as he was unable to furnish the sureties required.

Thus, the detenu happens to be an extremely poor person, who could not be set at liberty, only because of his poverty. Instances are not lacking where the voiceless and defenseless persons are rounded up by Police, and are forced "to confess" their involvement in crime.

them. Such "confessions" are merely a means to escape the torture to which they are subjected. At times, the Police use certain means, which although are illegal, but help the Police in "cracking a case" and in claiming that they have "solved the crime". Therefore, prima facie, a grave possibility does exist that the detenu has been forced to confess to his involvement in cases of the year 2018. Even otherwise, the cases of theft and cheating can easily be dealt within the ambit and scope of the general criminal justice administration.

In catena of cases the Apex Court had already opined that the draconian power of preventive detention, which instantly deprives a person of his personal liberty, forces a person to be kept in custody without a fair trial and, that too, only on presumptions and suppositions, such powers should be exercised with great care and caution. Since the alleged criminal cases are against particular individuals, clearly such cases fall within the ambit of "law and order problem". Therefore, the respondent No.2 was unjustified in issuing the preventive detention order, dated 04.08.2018. Even while passing the confirmation order, dated 24.10.2018, the respondent No.1 has failed to notice that the detenu continues to languish as an under-trial in the jail, as he could not furnish the sureties asked for in the bail order(s).

Once the detenu was already confined, the question of confirming the detention order would not even arise.

For the foregoing reasons, the Writ Petition is allowed. The impugned detention order dated 04.08.2018, passed by respondent No.2, and the confirmation order dated 24.10.2018, passed by respondent No.1 are set aside. The respondents are directed to set

the detenu, namely, Mr. Kommire Pochaiah @ Vadde Pochaiah @ Raju, S/ o. Late K. Yellaiah, at liberty forthwith, if he is no longer detained in judicial custody in the criminal cases, which have been so far registered against him.

The miscellaneous petitions pending in this Writ Petition, if any, shall stand closed. There shall be no order as to costs. _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ RAGHVENDRA SI NGH CHAUHAN, HCJ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ Dr . SHAMEEM AKTHER, J 18th July, 2019 Bvv