Allowed

Gunduru Krishna v. The State of Telangana

Telangana HC5 Mar 2020WP/2262/2020

Case brief

AI extract

What is this about?

High Court of Telangana allowed a writ petition under Article 226, setting aside detention orders against Gunduri Kiran. The court held that property burglaries constitute 'law and order' issues manageable via criminal justice, not 'public order' sufficient for preventive detention.

What did the court decide?

Impugned detention and confirmation orders set aside; detenu ordered to be released forthwith rather than denied bail.

Gunduru Krishna Vs The State of Telangana — Pension and Retirement Benefits | Telangana HC (2020)

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HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD

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(Special Original Jurisdiction)

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THURSDAY, THE FIFTH DAY OF I\4ARCH TWO THOUSAND AND TWENTY

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PRESENT

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THE HON'BLE THE CHIEF JUSTICE SRI RAGHVENDRA SINGH CHAUHAN AND THE HON'BLE SRI JUSTICE A. ABHISHEK REDDY

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WRIT PETITION NO: 2262 OF 2020

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Between:

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Gunduru Krishna, S/o. Gunduru Kistana, age 53 years, Watchmen, R/o. 1-521164, It/alathi Apartments, W Nagar, St.No.B, Habsiguda, Hyderabad, Telangana state'

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...PETrroNER

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AND

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1 The State of Telangana, Rep. by its Principal Secretary. General Administration (Spl. (Law and Order) Department, Secretariat, Hyderabad. The Commissioner of Police and Addl District Magistrate (Executive), Rachakonda Commisionerate, Rachakonda.

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2 The Superintendent, CentraI Prison Cherlapally, Medchal - rr,nrig'{L!ir3r,l,$.r*

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Petition under Article 226 of lhe Constitution of lndia praying that in the circumstances stated in the affidavit filed therewith, the High Court may be pleased to issue an appropriate Writ, Order or Direction, more particularly one in the nature of Writ of Habeas Corpus, directing 3rd Respondent to produce the detenue viz., Gunduri Kiran now detained in Central Prison Cherlapally, Ir,4edchal - IVlalkajgiri District, before this Honble Court and set-aside the impunged detention order passed by the 2nd Respondent No. 39/ PD-CELL/ CCRB/ RKD/ 2019, dl. 17-10-2019 and confirmation order passed by the 1st Respondent vide G.O.Rt.No. 3313, dated 13-12-2019 as being illegal, arbitrary, improper, unilateral, unconstitutional and violative of Article 21 and 22 of the Constitution of lndia, and to forthwith release the Detenue

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Counsel for the Petitioner: SRI PASHAM TRIVIKRAM REDDY

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Counsel for Respondents: SRI S. SHARATH KUMAR,

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SPECIAL GOVERNMENT PLEADER

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THE ADVOCATE GENERAL

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The Court made the following : ORDER

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I.ICJ & AAR,J 'NP^{N't.2262of2O2O}

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ORDER: (Per the I{on'ble Sri Justice A.Abhishek Reddy)

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Mr.Gundr-rru Krishna, the father of the detenu, viz., Gunduri Kiran, has fi1ed the present Writ Petition, challenging the Detention Order passed br. the 2nd respondent, who by exercising the powers conferred under Section 3 (2) of the Telangana Pre'rention of Dangerous Activities of Bootleggers, Dacoits, Drug-Offenders, Goondas, Imrn,:ral Traffic Offenders, Land Grabbr:rs, Spurious Seed Offenders, Insecticide Offenders, Fertiliser Offentlers, Food Adulteration Cflenders, Fake Document Offenders, Scheduled Commodities^()ffenders, Forest Offenders, Gaming Offenders, Sexual Offenrlers, Explosive Substances Offenders, Arms Offenders, Cyher Crime Offenders and White Collar o:' Financial Offenders Act. 1986 (in short, 'the ActJ, vidr: proceedings No.39/PD-ACT/CCRB/RKDl2019, dated 17.1O.2C19, and confirmed b1, the 1st respondent vide G.O.Rt.No.il3 13, General Administration (Spl. (Law & Order) Department, dated 13. 12.2019, alleging that Gunduri Kiran has been indulginpl irL series of property offences of house burglaries, and therebl' creating large scale fear eir-rd panic among the general public, which are prejudicial to the maintenance of public order. l'he ground on which the impugned detention order is passe,l by the 2nd respondent is that during the year 2Ol9, the^(letenu was involved in si:r similar offences uiz., (ll crime No.36 I12019, (21 crime No.368/2019, (3) crime No.467 l2}1tt, (4) crime No.523/2019 of Medipally PS, (5) crime No.679r2O19, and (6) crime No.686 ,'2019 of Uppal PS.

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It is lhe case of the petitioner that the detenu was falsely impiicated in 1.he above referred cases. Even thougl-r, the detenu is

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HCJ & AAR,J WP No.2262 ol 2O2O

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likely to get bail in the above referred cases, he is likely to be continued in judicial custody, due to passing of the impugned detention order and the same is passed only to see that he does not come out of the^jail. Hence, the present writ petition.

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Heard the learned Counsel for the parties, and perused the impugned order.

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Sri P.Trivikram Reddy, the learned counsel appearing for the petitioner, submits that relying only on six cases registered against the detenu in the year 2019, the impugned detention order is passed. He further submits that the alleged cases do not amount to 'disturbing the public order'. They are confined within the ambit and scope of the word 1aw and order'. Since the offences alleged are under the provisions of Indian Penal Code, the detenu can certainly be tried and convicted under the provisions of the Indian Penal Code. Thus, there was no need for the detaining authority to invoke the draconian preventive detention laws. Hence, the impugned order tantamounts to the colourable exercise power. Thus, the impugned orders are legally unsustainable.

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On the other hand, Mr.S.Sharath Kumar, the learned Special Government Pleader, pleads that in crime No.467 l2Ol9 of Medipally PS, the detenu obtained bail from the concerned Court, and in the remaining cases, the bail applications moved by the detenu are pending consideration before the concerned Courts. However, the series of crimes a11eged1y committed by him were sufllcient to cause a feeling of insecurity and fear in the minds of the people at large. Since the modus of the crime is committing theft of Idols, gold and silver ornaments, from temples/ houses

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HCJ & AAR.J "l^{I' No.2262of 2O2O}

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during night hours duly breaking the locks of the clo rr, it has created sufficient panic and fear in the minds of gr:nera1 public. Therefore, the d etaining authority was legally justifi,:d in passing the impugned detention order. Hence, the learneC Special Government Ple.ader has supported the impugned orders.

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In vieu' of the submissions made by both l,he sides, the point that rises lor determination in this Writ Petition is:

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"Whether the detention Order, dated 17.lO.2A 19, passed by respondent No.2, and the Confirmation Crder, dated 13.12.2019, passed by the respondent No. 1, are l.ab1e to be set aside rr not?"

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POINT:

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In cat€na of decisions the Hon'ble Supreme Co.rrt as well as this Court hrlve held that there is a vast difference between "law and order, and "public order". The offences which ;lre committed against a parl.icular individual fall within the ambit oi "law and order". It is or1y when the public at large is advers:ly affected by the criminal ar:tlvities of a person, the conduct of a person is said to disturb "the public orde/'. Moreover, individual car;es can be deait with by :he criminal justice system. Therefore, there is no need for the detaining authority to invoke the dracorrian preventive detention laws against an individuai. The invokin g o i such law adversely effect-s the fundamental right of personal liberty which is guaranteed anri protected by Article 21 of the Constirlltitn oI India. Hence, according to the Apex Court, the detaining aq11[6rrit] should be wary of inv,:,king the immense power under the A<:t.

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HCJ & AAR,J WP No.2262 ol 2O2O

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The Honble Supreme Court in V.Shantha v' State of Telangana and Othersr while considering the various^provisions of the Act has held as under:

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TI'Le detenu u.tas the otuner of Laxmi Bhargaui Seeds, distrtct distibutor of Jeeua Aggn Genetic Seeds. Three FIRs u:ere lodged against the detenu and others under Sections 420, 120-8, 34 IPC and Sections 19 ond 21 of the Seeds Act, 1966. It tuas alleged that chilli seeds sold u;ere spuious, as theg did not gield sufficient crops, thus causing wrongful loss to the farmers, and itlegat gains to the accused. Whether the seeds u-tere genuine or not, the ertent of the gield, are matters to be inuestigated in the FIRs. Section 19 of the Seeds Act prouides for penoltg bg conuiction and sentence olso. Likeuise, Section 2O prouides for forfeiture. Sulftcient remedies for the offence alleged utere, therefore, auaiLable and had been inuoked also under the ordinary latus of the land for the offence atleged.

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The order of preuentiue detention passed again st the detenu states that his illegal actiuities uere cousing danger to poor and small farmers and their safetg and financial tueltbeing. Recourse to normal legal procedure would be time-consumtng, and uould not be an effectiue deterrent to preuent the detenu from^indulgingin further^{prejudicial actiuities in the businessof} spuious seeds, affecting maintenctnce of public order, and that there was no other option except to inuoke the prouisions of the Preuentiue Detention Act as an ertreme measure to tnsulate the societg from hts euil deeds. The rhetoicaL incantation of the tuords "goonda" or "prejudiciol to maintenance of public order" cannot be sulficient^{justification} to inuoke the Draconian pouers of preuentiue detention. To classifg the detenu as a "goonda" affecting public order, because of inadequate gietd from the chilli seed sold bg him and preuent him from mouing for bail euen is a gross abuse of the statutory power of preuentiue detention. The grounds of detention are ex facie ertraneous to the Act.

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The Hon'ble Supreme Court further held that preventive detention involves detaining of a person without trial in order to prevent

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t {2or7l 4 scc 577

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HCJ & AAR,J wF No.2262 of 2O2O

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him/her frorr committing certain types of offenc,:s. But such detention cannot be made a substitute for the ordina:1' law, and absolve the irLvestigating authorities of their normal functions of investigating r:iimes which the detenu may have cornmitted. After all, preventivr' detention in most cases is for a ',ear only, and cannot be usr:d as an instrument to keep a person irr perpetual custody witho -tl. trial.

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In tht: case of Ram Manohar Lohia v. State of Biharz, the Hon'ble Sr"rpreme Court has, in fact, deprecated lhe invoking of the preventive law in order to tackle a 1aw and order problem. The Hon'ble Supre:ne Court has observed as under:

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W':. haue here a case of detention under Rute 30 of the Deknce tf India Rutes uthich permits apprehensicn and detentiort of a person likely to act in o manner przjuaiciat to the main; enance of pubtic order. It fo outs that if .;uch a person is not detained pubtic dborder b the ap preiended result, Dt:;order is no doubt preuented bg the mair,.tenonce of law and crder also but disorder is a broad spectrum uLhich includes et one end small disturbonces and at the otner the most serious and cataclgsmic happenings. Does the expressiort "public order' take in euery kind of dtsorders or onlg somr: of them? The ansuer to this serues to ,Tisttnguish "public o:der" from "lau and order" because the lotter undoubtedlg takes in all of them. Public order if disrurbed, must lead to public disorder. Euery breach of the trteace does not lead tt public disorder. When tuo drunkards quanel and fight^{there is disorder but not public disorder. Theycanbe} dealt will'. under the pouers to maintain lana and orct.er but cannot be detained on the ground that theg uere dtsturbing publtc orcler. Suppose that the two ftghters uere a.f iual communtties and one of them tied to raise cor,munal passion.s. The problem is still one of latu and order but it raises the apprehension of public di.sorder. Other exttmples con be in'tagined. The contrauention of law alwags zffects

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2 RIn t966 sc 710

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HCJ & AAR,J WP No.2262 of 2020

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order but before it can be said to affect public order, it must affect the communitg or the public at large. A mere disturbance of latt and order leading to disorder is thus nol necessaily sulfi.cient for oction under the Defence of India Act but disturbances uhich subuert the public order are. A Distict Magistrate is entitled to take action under Rule 3O(1)(b) to preuent subuersion of public order but not in aid of maintenance of tow and order under ordinary circumstances.

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In the case of Kanu Biswas v. State of West Bengal3,

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the Hon"bie Supreme Court has opined as under:

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The questton uhether a man has onlg committed a breach of lau-t and order or has acted in a manner likelg to cause a disturbance of the public order is a question of degree and tl'te extent of the reaclt of the act upon the societg. Public order is what the French call 'order publique' and is something more than ordinary maintenance of lanu and order. The test to be adopted in determining whether an act affects law and order or publtc order, as laid dou.tn in the aboue case, is; Does it lead to disturbance of the current of life of the communitg so as to amount to a di,sturbance of the pubtic order or does it affect merelg an indiuidual leauing the tranquility of the societg undi.sturbed?

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1 1) In the instant case, the detaining authority relied on six cases registered against the detenu for preventively detaining him. The below tabular form shows the date of occurrence, the date of registration of FIRs, the offence complained of and their nature,

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such as bailable/ non-bailable or cognizable / non-cognizable.

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sl. No.	CrimeNo.	Dateof occurrence	Dateof registratlon of FIR	Offences	Nature
1	361 I20 19of MedipallyPS	07.06.20t9	08.06.2019	457,380IPC	Cognrzable/ Non-Bailable
2	368/2019of MedipallyPS	Between 04.06.2019aid 09.06.2019	10.06.2019	457,380rPC	CognizableI Non-Bailable
3	467/2019of MedipallyPS	Between 15.07.2019 to t6.o7.20t9	1,6.07.2019	457, 380IPC	C,ogr\izableI Non-Bailable

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3 gezzl s scc 831

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HCJ & AAR,J WP No.2262 of 2020

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4	52312019ot MedipalllPS	Between 04 08.2019end 14.08.2019	14.08.2019	457, 3iloIPI	CognrzableI Non Bailable
5.	679l2Qrt)ot Uppal Irii	Between 28.07.2019 alrd 29.07.2019	29.O7 .20t9	457, 3trotPl	Cognizable/ Non-Bailable

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A pc:rusal of the impugned detention ord:r reveals that only in crimc No.467 l2Ol9 of Medipally PS, th: detenu was granted bail b1' the concerned Court, and in the rernaining cases, the bail app lications moved by the detenu are pending consideration before the concerned Courts. F ence, the apprehension c,f the detaining authority that if the detenu is granted bail ar-rd comes out of the jail on bail, the::e irl imminent possibility of his committing similar offences, un..ess he is prevented frorn doing so by an appropriate order of detention, is highly misplac,:d. If the detenu is eniarged on bail and violates the conditions ol bail or indulges in similar crimes whrle on bail, the concerned authority/ Public Prosecutor is free to move the concerned Cor-Lrt for getting the bail cancelled. It is the bounden duty of the police concerned to hand over the r:ntire material record availe cle to the Public Prosecutor/Asr;istirnt Public Prosecutor to see that the bail application of the detenu is dismissed. IJ' the Police are vigilant enough to cr1le,:t the data relating to tf.c alleged offences, and to furnistr tlte relevant information to the learned Public Prosecutors, the sanre could be placed by thr: learned Public Prosecutors before the concerned Court. It is J-re Police that have to take required nleasures to inform the P.rblic Prosecutor about the criminal history of the offender. For the inaction of the Police, the deta.ning authority cannot be permitted to invoke the preventive detonti,)n laws, in order to breach the libertv of an individual.

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HCJ & AAR,J WP No.2262 of 2O2O

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In State of Maharashtra and Ors. v. Bhaurao Punjabrao Gawande+ the Honble Supreme Court has held as follows:

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23....personat libertg is a precious riglrt. So did the Founding Fathers belieue because, uthile their first object u.tas to giue unto the people a Constitution whereby a gouemment Luas establi.shed, their second object, equallg important, was to protect the people agoinst the gouemment. That is uhg, white confening ertensiue pou.ters on the gouentment like the pouer to dectare an emergencA, the pouer to suspend the enforcement of fundamental rights or the pou-ter to issue ordinances, theg assured to the people a Bilt of Rights by Parl III of the Constitution, protecting against executiue and legtslatiue despotism those human ights u-thich they regarded as fundamentaL^{The imperatiue necessitgto protect these ights is a} lesson taught bg atl history and all human experience. Our Constitution-makers had liued through bitter years and seen an alien Gouemment tra.mple upon human rights tuhich the country had fought hard to preserue. Theg belieued like Jefferson that^"an electiue despotism was not the Gouemment ue fought for". And, therefore, tuhile arming the Gouemment u.tith large pouers to preuent anarchg from tuithin and conquest from without, theg took care to ensure that those pouers Luere not abused to mutilate the liberties of the people.

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In the Nine-Judge Constitution Bench decisron in I.R. Coelho v. State of T.N.s the Hon'ble Supreme Court has observed as follows:

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......h is necessary to ahuags bear in mind that fundamental^{rightshaue been considered to be (the) heartand soul} of the Constitution

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..... Fundamental ights ocd)pA a unique place in the liues of ciuilized societies and haue been descibed in^judgments as "transcendental", "inalienable", and pimordial.

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4 (2008) 3 SCC 613 s (2007) 2SCC1

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HCJ & AAR,J WP No.2262 of 2o2O

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It is also appropriate to refer to the c.ecir;ion of the Hon'ble Apex Oourt in Rekha Vs. State of Tamll Nadu6, wherein it is held as follorvs:

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....cnrninal cases are alreadg going on against the cletenu under uaious ltrouisions of the Indian Penal Code as well os under the Drugs ctn.'7 Cosmetics Act, 1940 and if he is found guiltg, he tuilt be conuicted. and giuen appropiate sentence. In <tur optnion, the ordinary lato of the land was sulficient to deal with tnis situation, and hen<:e, recourse to the preuentiue detention lant-t tuas illegal."

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Wheneuer an order under a preuentiue dete-ntion lau is challenged one of the questions the court must ask in deciding its tegality i:;: ulas the ordinary latu of the land suJficient to deat tuith the situalion? If the onsu.ter b in the affirmatiue, the detention order uill be il;,zqal.

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i6) Gravt' as the offences may be, they relat,r to burglaries. So, no inference of disturbance of public order :an be drarvn. These types o1' cases can certainly be tried und.er the normal criminal justice system. And, if convicted, can certainly be punished by the Court of law. Hence, there was no need for the detaining auth.ority to pass the detention order.

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Thi ru'fore, for the reasons stated above, th: impugned detention ord,- r is legally unsustainable.

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In the result, the Writ Petition is allowed. The impugned detention order, dated I7.lO.2Ol9 and the Confirmation Order, dated 13.12.:1019 are hereby set aside. The r(rspondents are directed to set the detenu, namely Mr.Guncluri Kiran, S/o.Krishnaiah, at liberty forthwith, in case hr: isr no longer detained in tee criminal cases, which have been regis;tered so far against him. It is needless to observe that the Trial Court shall

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6 (2011) 5 SCC

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't44

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, HCJ & AAR,J wP No.2262^of2O2O

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deal with^{the bail applicationsfiled by the detenu/accused} independently^{on its ownmerits, uninfluencedby any observations} made in^{this order.}

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Themiscellaneouspetitionspending,ifany,shallstand

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closed. There^{shallbe no orderas to costs'}

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SDi.B,SATYAVATHI ASSISTANT REGIS

//TRUE COPY'

S ECTIO OFFICER

To,

The Principal Secretary. General Administration (Spl. (Law and Order) Department, State of Telangana Secretariat, Hyderabad.

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The Commissioner of Police and Addl District Magistrate (Executive), Rachakonda Commisionerate, Rachakonda.

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3 The Superintendent, Central Prison Cherlapally, It/edchal - Malkajgiri District 4 One CC to Sri Pasham Trivikram Reddy Advocate [OPUC]

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5 Two CCs to the Advocate General, High Court for the State of Telangana (OUT) o Two CCs to Sri S. Sharath Kumar, Special Government Pleader, High Court for the State of Telangana (OUT)

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