Allowed

Smt. Dayavathi v. the State of Karnataka

Karnataka HC3 Sept 2024WPHC/50/2024

Case brief

AI extract

What is this about?

Habeas corpus petition by mother of a detenue detained under the Karnataka Goonda Act. Court found no proximate link between the last crime (a year earlier) and the detention order, no public-order impact, and quashed the detention, confirmation and extension orders, directing release.

What did the court decide?

Detention order dated 19.03.2024, confirmation order dated 26.03.2024 and extension order dated 22.04.2024 quashed; respondents directed to set the detenue at liberty forthwith.

Smt. Dayavathi Vs the State of Karnataka — Quashing and FIR | Karnataka HC (2024)

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NC: 2024:KHC:35857-DB WPHC No. 50 of 2024

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 3^RD DAY OF SEPTEMBER, 2024

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PRESENT

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THE HON'BLE MR JUSTICE V KAMESWAR RAO

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AND

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THE HON'BLE MR JUSTICE RAJESH RAI K

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WPHC NO. 50 OF 2024

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BETWEEN:

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SMT. DAYAVATHI W/O RAVINDRA POOJARY AGED ABOUT 56 YEARS, NO.9-63, PRASHANTI ROAD, PADAVVU SHAKTHINAGAR, NEAR PRASHANTH CLINIC, SHAKTHINAGAR, MANGALURU TALUK, DK DISTRICT-575016 DETENUE. SRI JAYAPRASHANTH @ J P

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…PETITIONER

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(BY SRI. ARUN SHYAM, SENIOR COUNSEL FOR

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Digitally signed by HARIKRISHNA V Location: HIGH COURT OF KARNATAKA

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SRI. SUYOG HERELE.E, ADVOCATE)

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AND:

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THE STATE OF KARNATAKA REPRESENTED BY ITS ADDITIONAL CHIEF SECRETARY TO GOVERNMENT, HOME DEPARTMENT, VIDHANA SOUDHA, BENGALURU-560 001.

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THE UNDER SECRETARY TO GOVERNMENT (LAW AND ORDER) GOVERNMENT OF KARNATAKA, HOME DEPARTMENT, VIDHANA SOUDHA, BENGALURU-560 001.

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THE COMMISSIONER OF POLICE, MANGALURU-575 001.

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THE SUPERINTENDENT CENTRAL PRISON BENGALURU PARAPPANA AGRAHARA, BENGALURU-560 068.

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…RESPONDENTS

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(BY SRI. BELLIAPPA, SPP-I FOR SRI. ANOOP KUMAR, HCGP FOR R1 TO R4)

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THIS WPHC IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT IN THE NATURE OF HABEAS CORPUS OR ANY OTHER WRIT OR ORDER OR DIRECTION, QUASHING OF THE DETENTION ORDER DATED 19.03.2024 PASSED IN NO.NO.MAG/02/MAM NA/2024 AND ORDER DATED 19.03.2024 PASSED IN NO.MAG/01/02/MGC/2024 PASSED BY RESPONDENT NO.3 THE CONFIRMATION ORDER DATED 26.03.2024 IN GO NO.HD 130 SST 2024, BENGALURU PASSED BY RESPONDENT NO.2, THE ORDER DATED 28.03.2024 PASSED IN NO.HD 130 SST 2024 BY RESPONDENT NO.2 AND THE ORDER DATED 05.04.2024 PASSED IN NO.M.A.G. - 1/02(1)/MAM NA/2024 PASSED BY RESPONDENT NO.3 WHEREBY THE REPRESENTATION MADE BY THE DETENUE SRI.JAYPRASHANTH @JP CAME TO BE REJECTED AND THE ALSO THE ORDER DATED 22.04.2024 PASSED BY THE RESPONDENT NO.2 IN NO.HD 130 SST 2024 THEREBY DETAINING THE DETENUE IN CENTRAL PRISON, PARAPPANA AGRAHARA, BENGALURU FOR A PERIOD OF ONE YEAR BEGINNING FROM 19.03.2024 UNDER THE PROVISIONS OF KARNATAKA PREVENTION OF DANGEROUS ACTIVITIES, BOOTLEGGERS, DRUG OFFENDERS, GAMBLERS, GOONDAS, IMMORTAL TRAFFICKING OFFENDERS, SLUM GRABBERS AND VIDEO OR AUDIO PIRATES ACT, 1985 (HEREAFTER REFERRED TO AS THE 'ACT' FOR SHORT) A/W CERTAIN OTHER CONSEQUENTIAL RELIEFS (PRODUCED AT ANNEXURE - A, B, C, D AND E).

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THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE V KAMESWAR RAO and

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HON'BLE MR JUSTICE RAJESH RAI K

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ORAL ORDER

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(PER: HON'BLE MR JUSTICE RAJESH RAI K)

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Petitioner in this writ petition has assailed the order of detention dated 19.03.2024 passed by respondent No.3 bearing No.MAG/02/MAM NA/2024, subsequent confirmation order dated 26.03.2024 bearing No.HD 130 SST 2024 and extension order dated 22.04.2024 bearing No.HD 130 SST 2024 passed by respondent No.2.

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Petitioner, who is the mother of the detenu-Sri. Jayaprashanth @ JP, is knocking the doors of the writ Court, seeking relief in the nature of Habeas Corpus, aggrieved by the orders referred supra.

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The facts-in-brief that are apposite for consideration of the case on hand as borne out from the pleadings are as follows:

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The son of the petitioner namely Sri Jayaprashanth @ JP is indulged in anti-social and criminal activities and he is a nuisance to the law and order, which are in violation of public peace by committing offences endangering the human body and also property so also communal violence. From the year 2016 to 2023, the detenue involved in as many as 8 criminal

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cases under different heads of crime within the jurisdiction of Mangalore City. The acts of detenue adversely affect the maintenance of ‘public order’ and in spite of sufficient opportunity by the Courts so also by the respondent-Authorities for his reformation, he failed to change his behaviour. As such, without any alternative, the respondent-Police opened 'A’ rowdy sheet against him bearing No.75/RS/MSSD/2021 on 24.08.2021 in Kankanady Town Police Station, Mangalore and subsequently, ‘B’ rowdy sheet bearing No.08/RR/CSD/23 on 09.06.2023 in Mangalore East Police Station was also opened. Hence, in order to curb his illegal activity, on 19.03.2024, respondent No.3-Commissioner of Police, Mangalore passed an order of detention bearing No.MAG/02/MAM NA/2024 against the detenue under Sections 3(2)(1) of the Karnataka Prevention of Dangerous Activities of Bootleggers, DrugOffenders, Gamblers, Goondas, [Immoral Traffic Offenders, Slum-Grabbers And Video Or Audio Pirates] Act, 1985 (for short ‘Goonda Act’) and the same was communicated to the detenue on the same day i.e., on 19.03.2024. Being aggrieved by the detention order, the detenue submitted a representation dated 23.03.2024 to (i) Commissioner, Mangalore City (ii) Chairperson of Advisory Commissioner (iii) The Secretary Home

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Department and (iv) The Chairperson, Human Rights Committee and the same was communicated to the respondents on 26.03.02024. In the meantime, the State Government has confirmed the detention order on 26.03.2024 and the same was communicated to the detenue on 27.03.2024. Subsequently, on 28.03.2024, the State Government rejected the representation of the detenue. Thereafter, on 08.04.2024, the detenue was produced before the Advisory Board along with the detention order. The Advisory Board, after considering the oral and written submission of the detenue, confirmed the detention order passed by respondent No.2 vide order dated 22.04.2024. The said order also communicated to the detenue on the same day. It is in this background, pleading, violation of Fundamental Rights enshrined under Article 22(5) of the Constitution of India, the petitioner has approached this Court.

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We have heard Sri Arun Shyam, learned Senior counsel appearing for Sri Suyog Herele E, learned counsel for the petitioner and Sri B.A. Belliappa, learned SPP-I for Sri Anoop Kumar, learned HCGP for respondent Nos.1 to 4 so also perused the documents placed before us.

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It is the primary contention of learned Senior counsel for the petitioner that, as on the date of invocation of detention order, there are only 3 cases pending against the detenue and the last offence that was alleged to be committed by the detenue is one in Crime No.26/2023 registered on 26.03.2023 by Kankanady Town Police Station for the Offences punishable under Sections 143, 147, 447, 427, 341, 504, 506 r/w Section 149 of IPC. The detention order was passed against the detenue on 19.03.2024 i.e., after lapse of one year. It is on this ground, the learned Senior counsel contends that there is no nexus between last committed crime and the detention order as the detention order is passed after a lapse of one year of detenue being alleged to be involved in committing the crime. Hence, he would submit that, every order of detention shall bear proximate link to the crime committed as preventive detention is a device that is used only for protection of the society, but not with an object to punish a man who is involved in harming any private persons. Any delay caused in passing the detention order from the date of involvement in the last alleged crime would be vital and also if not properly reasoned,

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would prove the detention order dehors the Constitutional mandates.

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The learned Senior counsel would further vehemence his contention that the acts alleged to have been committed by the detenue as per the detention order would not fall within the wider spectrum of prejudicial to the maintenance of 'Public Order', but the same falls within the ambit of 'Law and Order', for which preventive detention measures cannot be invoked. The learned Senior counsel would also contend that the alleged acts of the detenue do not fit into the definition of 'Goonda' as defined under Section 2(g) of the Act, since the offences alleged to have been committed by the detenue would not fall within the Chapters XVI, XVII and XXII of IPC for the reason that the offences alleged against the detenue are minor in nature for which, maximum punishment prescribed is one year.

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In order to buttress his argument, he relied upon the judgments of Hon’ble Apex Court in the cases of Suresh B. Shetty v. The State of Karnataka and Ors in WPHC No.73/2018 ; Smt. Jayamma v. Commissioner of Police, Bengluru reported in ILR 2019 KAR 1543; Sri Mohammed

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Shaifulla v. The D.G and I.G.P of Police and Others in WPHC No.75/2023; Sri Chandru @ Chandrahas Shetty v. The State and Others in WPHC No.40/2016; Banka Sneha Sheela v. State of Telangana and Others reported in (2021) 9 SCC 415; Mallada K Sri Ram v. State of Telangana and Others reported in 2022 SCC OnLine SC 424, Shaik Nazneen v. State of Telangana and Others reported in (2023) 9 SCC 633; Ameena Begum v. State of Telangana and Others reported in (2023) 9 SCC 587 and Pramod Singh v. Union of India and Others reported in 2023 SCC OnLine SC 374 and prays to allow the petition.

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Per contra , learned SPP-I for the respondents has filed his statement of objection, similarly, has placed the entire records along with list of authorities in support of his case and submits that, the detention order was passed on account of detenue being the habitual offender, who was involved in offences affecting the public at large and ‘A’ rowdy sheet was already opened against him by the Kankanady Town Police. In spite of the same, he continued his illegal activity. As such, without any alternative, the impugned detention order is being passed and the same has withstood the test of legality before

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Advisory Board and hence, he prays for dismissal of the petition.

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Having heard the learned Senior counsel for the petitioner and learned SPP-I, the only point that would arise for our consideration is:

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"Whether the order of detention dated 19.03.2024 passed by respondent No.3 bearing No.MAG/02/MAM NA/2024, subsequent confirmation order dated 26.03.2024 bearing No.HD 130 SST 2024 and extension order dated 22.04.2024 bearing No.HD 130 SST 2024 passed by respondent No.2 are sustainable under law?"

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10. In address to the first limb of argument advanced

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by the learned Senior counsel, there is no occasion to detain the accused as there is no 'proximate link' between the date of detention and the date of commission of last crime since the same is passed after an inordinate delay of one year; we find it relevant to delve into the factual aspects of the case i.e., the last crime alleged to be committed by the detenu, which was registered by the Kankanady Town Police Station, Mangalore in Crime No.26/2023 dated 26.03.2023 for the offences punishable under Sections 143, 147 ,447, 427, 341, 504, 506 r/w Section 149 of IPC. Further, the said criminal case is pending before the VII JMFC Court in Mangalore in

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C.C.No.914/2023. The detenue was already enlarged on bail in the said case. As could be seen from the detention order, besides this case, two other cases are pending against the detenue in Crime No.17/2023 dated 10.03.2023 and Crime No.32/2020 dated 14.06.2020. The detenue has also enlarged

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on bail in those cases. When this being the scenario, the detenue was taken to custody after passing the detention order on 19.03.2024. Further, if the order of detention is perused carefully, we find that the order of detention was passed by respondent No.3 at the behest of detailed report addressed by the Police Inspector, Mangalore East Police Station and the Deputy Commissioner of Police, Law and Order, Mangalore. Admittedly, the detenue was acquitted in all other 5 cases filed against him and the same are relied in the detention order. The active cases pending against him are punishable only for a maximum period of one year. Further, the detention order is passed after lapse of one year from the date of commission of last crime. We find neither any complaint nor any allegations of violation of undertaking given by him in the bail bond or influencing the witnesses involved in any crimes. These material facts are unnoticed by both the respondents and also the Advisory Board while considering the case on hand.

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In order to further substantiate the case on hand, we deem it appropriate to refer to the judgment of the Hon'ble Apex Court in the case of Ameena Begum v. State of Telangana reported in (2023) 9 SCC 587 wherein, the Hon'ble Apex Court has laid down the parameters to be considered while deciding legality of detention order, which reads as under -

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" 28 . In the circumstances of a given case, a constitutional court when called upon to test the legality of orders of preventive detention would be entitled to examine whether:

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28.1 . The order is based on the requisite satisfaction, albeit subjective, of the detaining authority, for, the absence of such satisfaction as to the existence of a matter of fact or law, upon which validity of the exercise of the power is predicated, would be the sine qua non for the exercise of the power not being satisfied;

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28.2 . In reaching such requisite satisfaction, the detaining authority has applied its mind to all relevant circumstances and the same is not based on material extraneous to the scope and purpose of the statute;

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28.3 . Power has been exercised for achieving the purpose for which it has been conferred, or exercised for an improper purpose, not authorised by the statute, and is therefore ultra vires;

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28.4 . The detaining authority has acted independently or under the dictation of another body;

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28.5 . The detaining authority, by reason of self-created rules of policy or in any other manner not authorised by the governing statute, has disabled itself from applying its mind to the facts of each individual case;

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28.6 . The satisfaction of the detaining authority rests on materials which are of rationally probative value, and the detaining authority has given due regard to the matters as per the statutory mandate;

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28.7 . The satisfaction has been arrived at bearing in mind existence of a live and proximate link between the past conduct of a person and the imperative need to detain him or is based on material which is stale;

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28.8 . The ground(s) for reaching the requisite satisfaction is/are such which an individual, with some degree of rationality and prudence, would consider as connected with the fact and relevant to the subject-matter of the inquiry in respect whereof the satisfaction is to be reached;

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28.9 . The grounds on which the order of preventive detention rests are not vague but are precise, pertinent and relevant which, with sufficient clarity, inform the detenu the satisfaction for the detention, giving him the opportunity to make a suitable representation; and

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28.10 . The timelines, as provided under the law, have been strictly adhered to.”

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(Emphasis supplied by us)

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Hence, if the impugned order passed is perused keeping in view the order passed by the Hon'ble Apex Court, we do not find any specific reason forthcoming in the impugned detention order as to what transpired on the Authorities to pass the detention order even after an inordinate delay of one year of registration of case in Crime No.26/2023, which is alleged to be the last crime committed by the detenu herein.

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Hence, on perusal of the guidelines issued by the Hon'ble Apex Court in the above judgment, it is clear that the order of detention cannot be mechanically passed by the Authority when there is an inordinate delay while invoking the order of detention and last crime committed by the detenue i.e., the proximate link. Hence, we answer the primary contention of the learned Senior counsel in favour of the detenue.

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As far the second limb of argument of the learned Senior counsel is concerned, the Hon'ble Apex Court in the case of Nenvathi Bujji v. State of Telangana reported in 2024 SCC OnLine SC 367 and also in the case of Ameena Begum referred supra, drawn a distinction between ‘Public Disorder’ and ‘Law and Order’. The Hon'ble Apex Court by distinguishing

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the above two terms held that, in order to detain any person under the Act, his/her illegal activities must affect the community or public at large and a mere disturbance of law and order leading to disorder is thus not necessarily sufficient to invoke the provision of the Act. Further, for an act to qualify as a disturbance to public order, the specific activity must have an impact on broader community or the general public, evoking feelings or fear, panic, or insecurity. Not every case of a general disturbance to public tranquillity affects the public order.

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Applying the above principles to the case on hand, it could be seen, out of 8 cases registered against the detenue, all the 5 cases were ended with an acquittal and the remaining 3 pending cases are punishable maximum for a period of one year. Hence, we are of the view that, in such circumstance, the detention order does not pass the test of guidelines issued by the Hon'ble Apex Court in the cases of Nenavath Bujji and Ameena Begum referred supra and the respondent-Police Authorities are duty bound and at liberty to expend appropriate legal action against the detenue for his alleged illegal activities beside to file application for cancellation of bail granted to the

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detenue. Having been failed to exhaust such remedy, invoking the provisions of the Act and keeping the detenue under illegal

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detention violates the Fundamental Rights of the detenue enshrined under the Constitution. There is no proper justification or rationale is forthcoming from the order of detention or the subsequent orders. Hence, we answer the point raised above in the negative and proceed to pass the following:

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ORDER

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a) Writ petition is Allowed .

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b) The order of detention dated 19.03.2024 passed by respondent No.3 bearing No.MAG/02/MAM NA/2024, subsequent confirmation order dated 26.03.2024 bearing No.HD 130 SST 2024 and extension order dated 22.04.2024 bearing No.HD 130 SST 2024 passed by respondent No.2 stand quashed.

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