Kondaveeti Venkatesh 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.6 0 8 8 of 2 0 1 9 Date: 18.07.2019 Between:

Kondaveeti Venkatesh

...Petitioner

And The State of Telangana, Rep by its Principal Secretary to Government, Home Department, Secretariat, Hyderabad and others

...Respondents

Counsel for the petitioner : Sr i K. Sai Babu Counsel for the respondent Nos.1 to 3 & 6 : G. P. for Hom e Counsel for respondent Nos.4 & 5 : Non e appear ed Th e Cou r t m ade t h e follow in g:

ORDER: (Per the Hon'ble Dr. Justice Shameem Akther) Sri Kondaveeti Venkatesh, the petitioner, has filed this present petition on behalf of his son, Kondaveeti Sai Kiran @ Tinku @ Kodi @ K. Ramu, the detenu, challenging the detention order, dated 22.01.2019, passed by the Commissioner of Police, Cyberabad Police Commissionerate, the respondent No.3, and the confirmation order dated 16.03.2019 passed by the Principal Secretary to Government (POLL), General Administration (Spl. (Law and Order) Department, Government of Telangana.

Heard the learned counsel for the parties, and perused the impugned orders.

Briefly, the facts of the case are that by relying on a single criminal case registered against the detenu in the year 2018 (Crime No.134/ 2018 of Balanagar Police Station), the Commissioner of Police, Cyberabad Police Commissionerate, the respondent No.3, passed the detention order dated 22.01.2019. According to the respondent No.2, the detenu is a 'Sexual Offender' and he has committed gruesome gang rape and brutal murder of a begger by name Kum. Boyina Lakshmamma, aged 35 years, and continued to rape even after knowing that she died, which is a barbarous act known as Necrophilia, in the limits of Cyberabad Police Commissionerate. Subsequently, by order dated 16.03.2019, the detention order was confirmed by the Principal Secretary to Government (POLL), General Administration (Spl. (Law and Order) Department, Government of Telangana. Hence, this writ petition before this Court.

Sri K. Sai Babu, learned counsel for the petitioner, has raised the following contentions before this Court:

Firstly, that relying only on single case registered against the detenu in the year 2018, the detention order is passed. Secondly, the alleged case does 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, the learned Government Pleader for Home appearing for respondent Nos.

1 to 3 & 6, pleads that in the single case relied by the detaining authority for preventively detaining the detenu, he managed to get bail from the Court concerned. The crime allegedly committed by him was sufficient to cause a feeling of insecurity in the minds of the people at large. Since the modus of committing the crime was gruesome rape, brutal murder 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.

" W h et h er t h e det en t ion or der , dat ed 2 2 .0 1 .2 0 1 9 , passed by t h e r espon den t No.3 an d t h e con fir m at ion or der , dat ed 1 6 .0 3 .2 0 1 9 , passed by t h e Pr in cipal Secr et ar y t o Gover n m en t ( POLL) , Gen er al Adm in ist r at ion ( Spl.

( Law an d Or der ) Depar t m en t , Gov er n m en t of Telan gan a, ar e liable t o be set aside?"

POI NT:

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 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 1 AIR 1966 SC 740

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

2 (1972) 3 SCC 831

"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 a single criminal case in Crime No.134/ 2018. We shall present it in a tabular column the date of occurrence, the date of registration of FIR, the offences complained of and their nature, such as bailable/ nonbailable or cognizable/ non-cognizable. Dat e of r egist r at ion of FI R Offen ces Nat u r e Sl.

No.

Cr im e No.

Dat e of Occu r r en ce Sections 302 & 376 :

Cognizable/ Non-Bailable Section 506 :

Intervening night of 09/ 10.04.2018 10.04.2018 Sections 302, 376 & 506 of IPC 1.

134/ 2018 of Balanagar PS NonCognizable/ Bailable It is appropriate to refer the decision rendered by the Hon'ble Apex Court in Vij ay Nar ain Sin gh v. St at e of Bih ar 3, 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 3 (1984) 3 SCC 14

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. A bare perusal of the detention order clearly reveals that the detaining authority is concerned by the fact that in the case relied upon it for preventively detaining the detenu, the detenu was granted bail by the Court concerned and he was released from prison on 25.07.2018. However, the apprehension of the detaining authority that since the detenu was already enlarged on bail, there is genuine possibility of his indulging in similar prejudicial activities unless he is prevented from doing so by an appropriate order of detention, is highly misplaced.

It is the bounden duty of the Police to inform the learned Public Prosecutor about the conduct of an accused and to handover the history-sheet of the accused. If the Police were vigilant enough to collect the data on the alleged offenders, and to furnish the relevant information to the learned Public Prosecutors, the same could be placed by the learned Public Prosecutors before the concerned Court. However, it is the Police that have to take required measures to inform the Public Prosecutor about the criminal history of the offender. As held in Vij ay Nar ain Sin gh 's case (3 supra), a single act or omission cannot be characterized as a habitual act because, the idea of 'habit' involves an element of persistence and a tendency to commit or repeat similar offences, which is patently not present in the instant case.

Moreover, when bail is granted for the offences alleged under Sections 302, 376 & 506 of IPC, the matter ought to have been carried before appropriate Court for cancellation of bail.

be permitted to invoke the preventive detention laws, in order to breach the liberty of an individual.

Grave as the offences may be, they relate to rape, murder and criminal intimidation. So, no inference of disturbance of public order can be drawn. These cases can be tried under the normal criminal law. 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 22.01.2019 and the confirmation order dated 16.03.2019 are hereby set aside. The respondents are directed to set the detenu, namely, Mr. Kondaveeti Sai Kiran @ Tinku @ Kodi @ K. Ramu, S/ o. Kondaveeti Venkatesh, 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