Allowed

Smt Jayamma v. Commissioner of Police

Karnataka HC4 Mar 2024WPHC/1/2024

Case brief

AI extract

What is this about?

The High Court allowed a writ petition challenging a detention order under the Goonda Act, holding that non-communication of relied documents in the detenue's known language violated Article 22(5) and the Act. The court quashed the detention and directed the immediate release of the detenue.

What did the court decide?

Writ petition allowed; detention orders quashed and detenue directed to be released forthwith.

Smt Jayamma Vs Commissioner of Police — Writ and Judicial Review | Karnataka HC (2024)

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NC: 2024:KHC:8965-DB WPHC No. 1 of 2024

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 4^TH DAY OF MARCH, 2024

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PRESENT

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THE HON'BLE MR JUSTICE K.SOMASHEKAR

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AND

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THE HON'BLE MR JUSTICE RAJESH RAI K

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WPHC NO. 1 OF 2024

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BETWEEN:

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SMT.JAYAMMA, W/O LATE RAMANNA, AGED ABOUT 69 YEARS, RESIDING AT SHETTIPURA, HALAGERE POST, AMRUTHUR HOBLI, KUNIGAL TALUK, TUMKUR DISTRICT-572 111.

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…PETITIONER

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(BY SRI. KIRAN S JAVALI, SENIOR COUNSEL

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Digitally signed by K S RENUKAMBA Location: HIGH COURT OF KARNATAKA

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SRI. CHANDRASHEKARA K, ADVOCATE)

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AND:

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COMMISSIONER OF POLICE, NO.1, INFANTRY ROAD, BENGALURU-560 001. BY SRI B DAYANANDA, IPS.

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STATE OF KARNATAKA BY SECRETARY, HOME DEPARTMENT(LAW & ORDER) VIDHANA SOUDHA, BENGALURU-560 001.

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NC: 2024:KHC:8965-DB WPHC No. 1 of 2024

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SENIOR SUPERINTENDENT, CENTRAL PRISON, BENGALURU-560 100.

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…RESPONDENTS

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(BY SRI. ANOOP KUMAR, HCGP)

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THIS WPHC IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA, PRAYING TO a) DECLARE THE DETENTION OF SRI. S.R. JAGADISHA @ JAGGA @ TAMIL, S/O LATE RAMANNA, BY ORDER NO.13/CRM(4)/DTN/2023 DATED 23.11.2023 (ANNEXURE-A AND B) PASSED BY RESPONDENT NO.1 AND APPROVED BY THE RESPONDENT NO.2 BY ORDER NO.HD 502 SST 2023 DATED 02.12.2023 (ANNEXURE-E) AND CONFIRMED BY THE RESPONDENT NO.2 BY ORDER NO.HD SST 2023 DATED 18.12.2023 (ANNEXUR-F ) AS ILLEGAL AND VOID ABINITIO.

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THIS PETITION, COMING ON FOR ORDERS, THIS DAY, RAJESH RAI K, J., MADE THE FOLLOWING:

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ORDER

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Petitioner being the mother of the detenue namely, Sri.

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S.R Jagadisha @ Jagga @ Tami has approached this Court praying for a Writ in the nature of Habeas Corpus, by declaring the detention order No.13/CRM(4)/DTN/2023 dated 23.11.2023 and approved by respondent No.2 by order No.HD 502 SST 2023 dated 02.12.2023 and confirmed by respondent No.2 by order No.HD 502 SST 2023 dated 18.12.2023 as illegal and void ab initio.

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Brief factual matrix of the case are as follows:-

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NC: 2024:KHC:8965-DB WPHC No. 1 of 2024

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One Sri. S.R Jagadisha @ Jagga @ Tami (hereinafter called as 'detenue') who is alleged to be an offender and also a threat to the society, as he was involved in several crimes since 2005, the respondent No.1 passed an order of detention in consonance with the provisions of The Karnataka Prevention

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Of Dangerous Activities Of Bootleggers, Drug-Offenders, Gamblers, Goondas, [Immoral Traffic Offenders, SlumGrabbers And Video or Audio Pirates] Act, 1985 (hereinafter referred as 'Goonda Act') vide order bearing No.13/CRM(4)/DTN/2023 dated 23.11.2023, as per Annexures-'A' and 'B' which was approved by respondent No.2 by order No.HD 502 SST 2023 dated 02.12.2023 as per Annexure-'E' and confirmed by respondent No.2 by order No.HD 502 SST 2023 dated 18.12.2023 as per Annexure-'F'. The same was communicated to the detenue along with the compilation of documents explaining his detention on 23.11.2023. He was also detained in Central Prison, Parappana Agrahara, Bengaluru.

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Subsequently, the detention order passed by the respondent No.1 was confirmed by respondent No.2 as stated above and subsequently on 04.12.2023, the respondent-

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authority placed the detention order and approval order before the Advisory Board so also the detenue made the representation to the Advisory Board. The respondent No.2 has forwarded the said representation to the Advisory Board on 04.12.2023. Later, on 07.12.2023, the detenue was produced before the Advisoy Board and the proceedings was conducted by the Advisory Board and rejected the application filed by the detenue and the same was informed to him on 08.12.2023. In addition to that, the Advisory Board forwarded the proceedings dated 07.12.2023 along with report dated 08.12.2023. Thereafter, respondent No.2, upon the receipt of the opinion of the Advisoty Board, confirmed the detention order passed on the detenue vide order dated 18.12.2023. Though, the detenue submitted a representation to respondent No.2, thereafter the same was rejected by respondent No.2 vide order dated 22.12.2023. Hence, the mother of the detenue challenged the detention order passed by the respondent Nos.1 and 2 under this writ petition.

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We have heard the learned Senior counsel Sri.Kiran S Jawali for Sri. Chandrashekara K, for petitioner so also the learned HCGP Sri. Anoop Kumar for respondents.

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NC: 2024:KHC:8965-DB WPHC No. 1 of 2024

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The primary contention urged by the learned Senior counsel for petitioner is that, the detenue has been furnished a bound volume of documents which runs hundreds of pages in respect of the grounds of detention. The detaining authority in the order of grounds of detention specifically stated that, the detenue knew only kannada language which is forthcoming in Annexure-'C' to the writ petition. In such circumstance, the detaining authority ought to have furnished all the said relied documents in Kannada language to the detenue for submitting a better representation. However, the documents at Page Nos.5-11, 14, 24, 25, 35, 38-55, 94, 97104, 103-131, 153, 154, 159-164, 165, 179-195, 215-239, 255-282, 315-321, 322-328 are in English language and the translation thereof in Kannada language have not been furnished. Therefore, non furnishing of the documents relied upon by the detaining authority in a language known to the detenue, would vitiate the order of detention, since the same amounts to violation of Article 22(5) of the Constitution of India, but also in violation of Section 8 of the Goonda Act, thereby ceasing his right to file a representation against the

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order of detention. In support of his contention, the learned

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Senior counsel relies the following judgment:

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AIR 1981 SC 814 Kamala Kanhaiyalal Khushalani vs. State of Maharastra.

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AIR 1969 SC 43 Hadibadhi Das vs. District Magistrate.

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1982 (3) SCC 440 - AIR 1982 SC 1500 Ibrahim Ahmed Batti vs. State of Gujarat.

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W.P.HC No.129/2006 - Smt.Doulath Unnissa vs. Commissioner of Police.

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W.P.HC No.97/2015 - Smt. P. Vijayalakshmi vs. Comissioner of Police.

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W.P.HC No.41/2017 - Haji T.P Adbul Azeez vs. State of Karnataka.

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W.P.HC No.87/2017 - Smt.Jayamma vs. Commissioner of Police.

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Per contra , the learned HCGP would vehemently

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contends that even though some of the documents relied by the detaining authority have not been furnished in a language known to the detenue, those documents are totally irrelevant. As such, he would submit that, it is not necessary that each and every documents relied upon by the detaining authority requires to be translated in the language known to the

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detenue. He would further contend that the detaining authority has relid upon various criminal cases which depicts that, the detenue involved in 16 criminal cases previously and

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was detained under 'Goonda' Act in the year 2017 and subsequently, he approached this Court in WPHC No.89/2017 and this Court quashed the detention order dated 06.09.2017. In spite of that, the detenue continued his criminal activites and again indulged in 6 criminal cases under different heads of crime. As such, the detaining authority rightly passed the detention order since due to the act of the detenue, 'the public order is affected'. Accordingly, the learned AGA prays to dismiss the writ petition.

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We have bestowed our anxious consideration to the

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submission made by both the counsel and having heard the learned counsel appearing for the petitioner and learned HCGP for respondents, the point that would arise for our consideration is;

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"Whether the order of detention i.e., order No.13/CRM(4)DTN/2023 dated 23.11.2023 and approved by respondent No.2 by order No.HD 502 SST 2023 dated 02.12.2023 and confirmed by respondent No.2 by order

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No.HD 502 SST 2023 dated 18.12.2023 is sustainble under law?”

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8. The impugned orders supra are passed keeping in

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view Sections 3, 8, 10, 11 and 13 of Goonda Act. For the sake of convenience same are produced herewith -

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"3 . Power to make orders detaining certain persons .- (1) The State Government may, if satisfied with respect to any bootlegger or drug-offender or gambler or goonda or 1 [Immoral Traffic Offender or Slum-Grabber or Video or Audio pirate] 1 that with a view to prevent him from acting in any manner prejudicial to the maintenance of public order, it is necessary so to do, make an order directing that such persons be detained.

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(2) If, having regard to the circumstances prevailing or likely to prevail in any area within the local limits of the jurisdiction of a District Magistrate or a Commissioner of Police, the State Government is satisfied that it is necessary so to do, it may, by order in writing, direct that during such period as may be specified in the order, such District Magistrate or Commissioner of Police may also, if satisfied as provided in sub-section (1), exercise the powers conferred by the sub-section :

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Provided that the period specified in the order made by the State Government under this sub-section shall not, in the first instance, exceed three months, but the State Government may, if satisfied as aforesaid that it is necessary so to do, amend such order to extend such period from time to time by any period not exceeding three months at any one time.

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(3) When any order is made under this section by an officer mentioned in sub-section

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(2), he shall forthwith report the fact to the State Government together with the grounds on which the order has been made and such other particulars as, in his opinion, have a bearing on the matter and no such order shall remain in force for more than twelve days after the making thereof, unless, in the meantime, it has been approved by the State Government.

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8. Grounds of order of detention to be disclosed to persons affected by the order- (1) When a person is detained in pursuance of a detention order, the authority making the order shall, as soon as may be, but not later than five days from the date of detention, communicate to him the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order to the State Government.

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(2) Nothing in sub-section (1) shall require the authority to disclose facts which it considers to be against the public interest to disclose.

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10. Reference to Advisory Board - In every case where a detention order has been made under this Act the State Government shall within three weeks from the date of detention of a person under the order, place before the Advisory Board constituted by it under section 9, the grounds on which the order has been made and the representation, if any, made against the order, and in case where the order has been made by an officer, also the report by such officer under sub-section (3) of section 3.

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11. Procedure of Advisory Board - (1) The Advisory Board shall after considering the materials placed before it and, after calling for such further information as it may deem necessary from the State Government or from any person called for the purpose through the State Government or from the person concerned, and if, in any particular case, the Advisory Board considers it essential so to do or if the person concerned desire to be heard, after

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hearing him in person, submit its report to the State Government, within seven weeks from the date of detention of the person concerned.

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(2) The report of the Advisory Board shall specify in a separate part thereof the opinion of the Advisory Board as to whether or not there is sufficient cause for the detention of the person concerned.

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(3) When there is a difference of opinion among the members forming the Advisory Board, the opinion of the majority of such members shall be deemed to be the opinion of the Board.

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(4) The proceedings of the Advisory Board and its report, excepting that part of the report in which the opinion of the Advisory Board is specified, shall be confidential.

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(5) Nothing in this section shall entitle any person against whom a detention order has been made to appear by any legal practitioner in any matter connected with the reference to the Advisory Board.

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13. Maximum period of detention - The maximum period for which any person may be detained, in pursuance of any detention order made under this Act which has been confirmed under section 12 shall be twelve months from the date of detention.

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( emphasis supplied by me)

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On careful perusal of these statutory provisions, it

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is the contention of the petitioner that, huge number of documents were relied upon by the detaining authority and a number of documents specified by him i.e., Page Nos.5-11, 14,

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24, 25, 35, 38-55, 94, 97-104, 103-131, 153, 154, 159-164, 165, 179-195, 215-239, 255-282, 315-321, 322-328 are in English language and the translation thereof in Kannada language have not been furnished.

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We have carefully perused the grounds of detention dated 23.11.2023, wherein, it is stated that the detenue has studied upto fourth standard in Government Primary School, Shettipura, Amruthur Hobli, Kunigal Taluk, Tumkur District and he can speak, read, write and understand only Kannada language. This being the scenario, as rightly contended by the learned Senior counsel, non furnishing of relied upon documents in the language known to the detenue, has constituted non communication of the relied documents which violates Article 22(5) of Constitution of India. Though, the learned HCGP would submit that those documents are not primary documents and non furnishing of the same does not violate the facet of Article 22(5) of Constitution of India. On careful persual, the respondent-authority failed to supply not only the copy of the judgment, but also the rowdy sheet permission memo, FIR, Wound Certificate, Bail Orders, FSL reports, Court order sheets pertaining to different crime

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numbers. In such circumstances, when the detenue knows only Kannada language, certainly, the rights of detenue will be affected to submit a effective representation before the respondent-autority so also before the Advisory Board by reading the entire documents relied by the authority for his detention. The Hon'ble Apex Court and this Court, time and again held that, if there is a failure by the State in furnishing the translated copies of the relevant material to the detenue, the same is illegal.

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Nevertheless, the detenue was previously detained under Goonda Act in the year 2017 and this Court in WPHC No.89/2017 quashed the said order on 06.09.2017 for the very same reason that, the detaining authority failed to provide the translated copies of the documents relied upon by the detaining authority to the language known to the detenue. In spite of the same, the respondent Nos.1 and 2 though passed a similar order of detention and committed the same error by not furnishing the translated copies as discussed supra . This being the settled position of law, viewed from the facet of the Goonda Act, so also the constitutional mandates, the impugned order deserves to be quashed. Accordingly, we hold

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the point raised above in favour of the petitioner and pass the

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following:-

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ORDER

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i. The petition is allowed .

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ii. The impugned detention order passed by respondent No.1 in No.13/CRM(4)/DTN/2023 dated 23.11.2023 and approved by respondent No.2 by order No.HD 502 SST 2023 dated 02.12.2023 and confirmed by respondent No.2 by order No.HD 502 SST 2023 dated 18.12.2023 stand quashed.

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iii. Consequently, the detenue-Sri.S.R Jagadisha @ Jagga @ Tami S/o Late Ramanna is directed to set at liberty forthwith.

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iv. However, the Registry is directed to communicate this order to respondent No.3 to release the detenue forthwith, in case if he has not needed in any other cases.

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Sd/JUDGE

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Sd/JUDGE

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HKV List No.: 1 Sl No.: 8

Smt Jayamma v. Commissioner of Police

Case brief

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Smt Jayamma v. Commissioner of Police

Case brief

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