Kaluvala Ramamma v. The State Of Telangana
HIGH COURT FOR THE STATE OF TELANGANA THE HON'BLE THE CHIEF JUSTICE RAGHVENDRA SINGH CHAUHAN AND THE HON'BLE Dr. JUSTICE SHAMEEM AKTHER Writ Petition No.5847 of 2019 Date: 08.08.2019 Between:
Smt. Kaluvala Ramamma
...Petitioner
And The State of Telangana, Rep by its Principal Secretary General Administration (Law and Order) Department Secretariat, Hyderabad and others
...Respondents
Counsel for the petitioner : Sri S. Surender Reddy Counsel for the respondents : The Advocate General The Court made the following:
ORDER: (Per the Hon'ble Dr. Justice Shameem Akther) Smt. Kaluvala Ramamma, the petitioner, has filed this present petition on behalf of her grandson, Mr. Pulipaka Srikanth, S/o. P. Madhunaiah, the detenu, challenging the detention order, dated 29.11.2018, passed by the Commissioner of Police, Ramagundam Police Commissionerate, the respondent No.2, and the confirmation order, dated 21.01.2019, passed by the Principal Secretary to Government (POLL), 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.
Briefly, the facts of the case are that by relying on the three recent criminal cases registered against the detenu in the year 2018, Commissioner of Police, Ramagundam Police Commissionerate, the respondent No.2, passed the detention order dated 29.11.2018. According to the respondent No.2, the detenu is a 'Goonda' and has been indulging in a series of bodily offences in the limits of Godhavarikhani I Town Police Station, Ramagundam Police Commissionerate.
Subsequently, by order, dated 21.01.2019, the detention order was confirmed by the Principal Secretary to Government (POLL), General Administration (Spl. (Law and Order) Department, Government of Telangana, the respondent No.1. Hence, this writ petition before this Court. Sri S. Surender Reddy, learned counsel for the petitioner, has raised the following contentions before this Court:
Firstly, that relying only on the three cases registered against the detenu in the year 2018, the detention order is passed. Secondly, the alleged cases do not add up to "disturbing the public order". They are confined within the ambit and scope of the word "law and order". Since the offences alleged are under the Indian Penal Code, the detenu can certainly be tried and convicted under the Penal Code. Thus, there was no need for the detaining authority to invoke the draconian preventive detention laws. Hence, the impugned order tantamount to the colourable exercise of power. Thus, the impugned orders are legally unsustainable. On the other hand, Mr. S. Sharath, the learned Special Government Pleader, pleads that in one case relied by the detaining authority, the detenu managed to get bail from the Court concerned.
The series of crimes allegedly committed by him were sufficient to cause a feeling of insecurity in the minds of the people at large. Since the modus of committing the crime was Murder, Grievous Hurt, Rioting and Criminal Intimidation, it has created sufficient panic in the minds of the general public. Therefore, the detaining authority was legally justified in passing the impugned orders. Hence, the learned Government Pleader 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: "Whether the detention order, dated 29.11.2018, passed by respondent No.2, and confirmation order, dated 21.01.2019, passed by Principal Secretary to Government, General
Administration (Spl. (Law and Order) Department, Government of Telangana, the respondent No.1, are liable to be set aside?"
POINT:
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 which are committed against a particular individual fall within the ambit of "law and order". It is only when the public at large is adversely affected by the criminal activities of a person, is the conduct of a person 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 authority to invoke the draconian preventive detention laws against an individual. For the invoking of such law adversely effects the fundamental right of personal liberty, which is protected and promoted by Article 21 of the Constitution of India.
Hence, according to the Apex Court, the detaining authority should be wary of invoking the immense power under the Act. In the case of 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.
"54.
We have here a case of detention under Rule 30 of 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 1 AIR 1966 SC 740
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.
Suppose that the two fighters 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 Kanu Biswas v.
"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 2 (1972) 3 SCC 831
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 detaining authority relied on three cases registered against the detenu for preventively detaining him vide Crime Nos.276/2018, 398/2018 and 516/2018. We shall present them in a tabular column 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 registration of FIR Offences Nature Crime No.
Date of Occurrence Sections 324, 326 r/w 34 of IPC 276/2018 of Godavarikhani I Non-bailable/ Town PS 30.05.2018 30.05.2018 cognizable Section 302 :
Non-bailable/ Sections 148, 302, 109 r/w 149 of IPC 398/2018 of Godavarikhani I Cognizable Section 148 :
Bailable/ Cognizable Town PS 08.08.2018 09.08.2018 Section 294B : Cognizable/ Bailable Section 506 :
Noncognizable/ Bailable 516/2018 of Godavarikhani I Town PS 10.10.2018 16.10.2018 294B, 506 r/w 34 of IPC A bare perusal of the detention order clearly reveals that the detaining authority is concerned by the fact that in one case relied upon by the detaining authority (Crime No.398/2018), the detenu was granted statutory bail under Section 167(2) of Cr.P.C. by the
Court concerned and was released on bail on 16.11.2018. So, it appears that investigating officer had not completed investigation within a period of ninety days. Therefore, the detenu was granted bail under Section 167(2) of Cr.P.C. It is a grave omission on the part of the investigating officer in not completing the investigation within a period of ninety days. The very purpose of enacting the provision under Section 167(2) of 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 investigating officer, it is not appropriate to invoke draconian preventive detention laws against the detenu. The relief granted to the detenu under Section 167(2) of Cr.P.C. cannot be scuttled by invoking the preventive detention laws.
Moreover, in the cases relied on by the detaining authority, the detenu alleged to have committed offences punishable under the Penal Code. So, it can be safely concluded that the said crimes can be dealt with under the provisions of the Penal Code. For the inaction of the Police, the detaining authority cannot be permitted to invoke the preventive detention laws, in order to breach the liberty of an individual.
Grave as the offences may be, they are bodily offences. So, no inference of disturbance of public order can be drawn. This type of case can certainly be tried under the normal criminal law. And, if convicted, can certainly be punished by the Court of law. Thus, these cases do not fall within the ambit of the words "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 detention order. Therefore, for the reasons stated above, the impugned orders are legally unsustainable. In the result, the Writ Petition is allowed. The impugned detention order, dated 29.11.2018, and the confirmation order, dated 21.01.2019, are hereby set aside. The respondents are directed to set the detenu, namely, Pulipaka Srikanth, S/o. Madhunaiah, 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 SINGH CHAUHAN, HCJ _____________________________________ Dr. SHAMEEM AKTHER, J 08th August, 2019 Bvv