Meena Rani 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.9053 of 2019 Date: 08.08.2019 Between:

Smt. Meena Rani

...Petitioner

And The State of Telangana, Rep by its Principal Secretary, General Administration (Spl. (Law and Order) Dept., Secretariat, Hyderabad and others

...Respondents

Counsel for the petitioner : Sri P. Trivikram Reddy Counsel for the respondents : The Advocate General The Court made the following:

ORDER: (Per the Hon'ble Dr. Justice Shameem Akther) Smt. Meena Rani, the petitioner, has filed this present Habeas Corpus petition on behalf of her son-Balija Vicky @ Nandi Vicky @ Vicky Raj, S/o. Late Venu Kumar, aged 25 years, the detenu, challenging the detention order, dated 17.09.2018, passed by the Commissioner of Police, Hyderabad City, the respondent No.2, and the confirmation order, dated 01.02.2018, 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 six recent criminal cases registered against the detenu during the year 2018, the Commissioner of Police, Hyderabad City, the respondent No.2, passed the detention order, dated 17.09.2018. According to the respondent No.2, the detenu is involved in as many as fifteen (15) offences of Lurking House Trespass and Theft. But, relying on six recent cases registered against the detenu in the year 2018, the detention order is passed. According to the respondent No.2, the detenu is a 'Goonda' and has been habitually and continuously committing house burglaries in the limits of Hyderabad and Rachakonda Police Commissionerates to acquire easy money to lead lavish life. Subsequently, by order, dated 01.12.2018, 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 Pasham Trivikram Reddy, learned counsel for the petitioner, has raised the following contentions before this Court:

Firstly, that relying only on the six recent 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 out of the six cases relied by the detaining authority for preventively detaining the detenu, the detenu managed to get bail in four cases from the Courts 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 Lurking House Trespass and Theft, 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 17.09.2018, passed by the Commissioner of Police, Hyderabad City, the respondent No.2, and the confirmation order, dated 01.12.2018, passed by the Principal Secretary to Government (POLL), 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. 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. 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.

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. State of West Bengal2, 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 instant case, the detention authority relied on six cases registered against the detenu for preventively detaining him vide Crime Nos.10/2018, 202/2018, 265/2018, 389/2018, 246/2018 and 286/2018. 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. 2 (1972) 3 SCC 831

Date of registratio n of FIR Date of Occurrence Sl.

No.

Crime No.

Offences Nature 01.

10/2018 of Nallakunta PS 07.01.2018 09.01.2018 Sections 457 & 380 of IPC Cognizable/ NonBailable Cognizable/ 02.

265/2018 of Kushaiguda PS 19.04.2018 19.04.2018 Sections 454 & 380 of IPC NonBailable 03.

389/2018 of Kushaiguda PS 06.06.2018 06.06.2018 Sections 454 & 380 of IPC Cognizable/ NonBailable Cognizable/ 04.

246/2018 of Keesara PS 27.06.2018 27.06.2018 Sections 454 & 380 of IPC NonBailable 05.

202/2018 of Osmania University PS 26.07.2018 27.07.2018 Section 380 of IPC Cognizable/ NonBailable Cognizable/ 06.

286/2018 of Keesara PS 30.07.2018 30.07.2018 Sections 454 & 380 of IPC NonBailable A perusal of the detention order reveals that the detenu moved bail petitions in all the six cases relied by the detaining authority before the Courts concerned and he was granted bail by the Courts concerned in four cases, i.e., in Crime Nos.10/2018, 202/2018, 246/2018 and 286/2018. The bail petitions moved by the detenu in the remaining two cases are pending consideration before the Courts concerned and hence, he continues to be in judicial custody. Under these circumstances, the apprehension of the detaining authority that since the detenu was granted bail in four crimes, there is every possibility of his getting bail in the remaining cases and in the event of his release on bail, there is imminent possibility of committing similar offences, which are detrimental to the public order, 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. The police ought to have been vigilant in collecting the whole data against the detenu and to furnish the same to the Public Prosecutor/Additional Public Prosecutor to defeat the bail application/s of the detenu. However, it is the Police that have to take required measures to inform the Public Prosecutor about the criminal history of the offender. 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 relate to Lurking House Trespass and Theft. So, no inference of disturbance of public order can be drawn. These type of cases can certainly be tried under the normal criminal justice system. 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.

Even while passing the confirmation order, dated 01.12.2018, the Principal Secretary to Government (POLL), General Administration (Spl. (Law and Order) Department, Government of Telangana, the respondent No.1, has failed to notice that the detenu continues to languish as under-trial in the jail. Once the detenu was already confined, the question of confirming the detention order would not even arise.

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 17.09.2018, passed by the respondent No.2 and the confirmation order, dated 01.12.2018, passed by the respondent No.1, are hereby set aside. The respondents are directed to set the detenu, namely, Balija Vicky @ Nandi Vicky @ Vicky Raj, S/o. Late Venu Kumar, 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