Allowed

Kammati Sai Kumar v. The State of Telangana and 2 Others

Telangana HC8 Feb 2021WP/15811/2020

Case brief

AI extract

What is this about?

In a habeas corpus petition, a two-judge bench quashed the preventive detention order and confirmation order. The court held that the detenu's involvement in theft and trespass cases fell under 'law and order', not 'public order'. Consequently, the detaining authority could not bypass the normal criminal justice system by invoking preventive detention laws.

What did the court decide?

The impugned detention order and confirmation order set aside; the detenu Manupati Shekhar directed to be set at liberty forthwith.

Kammati Sai Kumar Vs The State of… — Pension and Retirement Benefits | Telangana HC (2021)

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H'G H couR r'F3,11,3i,:,ti1 31ffi^{o, oo*o}

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"i,i,TI;ItEiiJlT^f h"Lff"%fl l-"

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PRESENT

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THE HON'BLE SRIJUSTICE A. RAJASHEKER REDDY THE H.N,BLE o*. rr$ll3E SHAMEEM AKTHER

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WRIT PE TITION NO: 1581 10F2020

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Between:

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Kammati . Sat J(umar, S/o.Anjaiah. Age 23 years, Occ Penchikatpet (Rural), Etkatapairi. xarimiisL _,sb6 i,aal Driver, R/o.H.No.4-1 Og,

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AND

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...PET|T|oNER

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The State of Telanoana, Rep. by its principal Secretary, Home Department, Secretariat, Hyderaibad.

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The Commissioner of police, Ramagundam.

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The Jail Superintendent, Central prison Warangal, Telangana State.

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...RESPONDENTS

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Petition under Article 226 of the constitution of lndia praying that in the circumstances stated in the affidavit filed therewith, the High colrt ha"y be pleased to issue any appropriate writ, order or direction more particularly one in the nature of^"writ of Habeas corpus" under Article 226 of the constitution of lndia directing the respondents to produce "Manupati Shekhar S/o.yellaiah,,, now detained a1 central Prison warangal, warangal District, before this Hon'ble court and he may be ordered to he released forthwith / set at Iiberty after declaring his detention vide C.No.11IPDCELL/CCRB/RGM/2020 dated: 11tBt2O2O passed by the 2nd respondent and consequential confirmation order passed by the 1'r respondent as illegal, u nconstitutiona I void.

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Counsel for the Petitioner: SRI SUJATHA KURAPATT

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Counsel forthe Respondents: SRI T. SRIKANTH REDDY, GP FOR HOME,

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ADDITIONAL ADVOCATE GENERAL

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The Gourt made the following: ORDER

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RA]ASHEKER^REDDY rH E^{HO N', BLE sRI]U STICNE;A'} SHAMEEM^AKTHER THE^{HON,BLEDT. ]USTICE}

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ORDER:^{(Per Hon'ble Dr'SA'l)}

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Kammati^{Sai Kumar'S/o'Anjaiah' the petitioner'has filed the} present^{HabeasCorpus petition'on behalf of his cousin brother'} Manupati^{shekhar, s/o.yeilaiah, chailenging the detentionorder'} dated^{11.08.2020, passed by the CommissionerofPolice'} Ramagundam,^{respondent No'2' and theconsequential} confirmation^{order vide G'O'Rt'No'1216' General Administration} (Spl.^{(Law & Order)) Department'Government of Telangana' dated} 20.08.2020.

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We^{have heardthe learned counsel for both sides and} perused the^record'

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Briefly,^{the facts of the case are that by relying on three} recent^{criminal casesregisteredagainst lhe detenu during the year} 2O2O in^{the limits ofRamagundam and KarimnagarPolice} Commissionerates,^{the Commissionerof Police' Ramagundam' the} respondent^{No.2, passedthe detention order' dated 11'08'2020'} According^{to the respondentNo'2' the detenu indulged in the acts} of^{goondaism by committing seriesof offencessuch as Burglarles} and Automobile^{Thefts and createdfear in the minds of general} public. With^{a view to prevent the detenufrom acting in a manner} prejudicial to^{the maintenance of public order' the impugned} detention^{order, dated 11'08'2020' was passed'The detention}

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ARR,J & DT.SAJ W P.No. t5a1 | of 2020

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order was conFirmed by the Principal Secretary to Government, General Administration (Spl. (Law and Order)) Department, Government of Telangana, respondent^N0.1,vide G.O.Rt.No.1216, dated 20.08.2020. Hence, this Writ Petition before this Court.

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Ms. Sujatha Kurapati, learned counsel for the^petitioner, has vehemently contended that the impugned detention order was passed by relying on three cases vide Crime No.223 of 2020 of Peddapalli Police Station and Crime No.270 of 2020 of^Mancherial Town Police Station, registered against the detenu for the offence punishable under Section 379 I.P.C. and Crime No.133 of 2020 of Basanthnagar Police Station, registered for the offences^punishable under Sections 457 and 380 I.P.C.^The offences alleged^{against the} detenu in the said cases do not amount to disturbing the^public order. They fall within the ambit and^scope of^{law and order.The} bail^petitions moved in Crime Nos.223 of^2O2O and¹³³ of²⁰²⁰ were dismlssed on 04.08.2020, but in Crime^No.270 of^{2020 the} detenu was^granted bail on 04.08.2020 and again on 07.08,2020, Lhe detenu moved bail^petitions in Crime Nos.223 of 2020 and¹³³ of 2020 and the same are^pending consideration.^{Admittedly, the} detenu is in^judicial custody since 06.07.2020 and the detaining authority, on the apprehension that if^{he is released on bail, there} is every likelihood of his indulging in similar offences,^whichare prejudicial to the maintenance of public order,^passed the impugned detentlon order. Since the offences^{allegedagainst the} detenu are under the Indian^{Penal Code, he can certainly be tried} and convicted under the^{Indian Penal Code.The ordinarylaw was} already invoked against tne^detenuto curb^{his illegal activitiesand}

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ARR,J &^DT,SAJ W.P No 1s811of2020

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invoking the^preventive detention^{law, as an alternative method,is} abuse of^process of law.^{Further, the representation submitted by} the detenu to the Advisory Board^{is pending. Therefore, the} impugned detention order and the^{consequential confirmation} order are unsustainable and^{the same are liableto be set aside.}

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On the other hand, Sri^{T.SrikanthReddy,learned} Government Pleader for^{Home, appearingon behalf of the learned} Additional Advocate General, would submit^{that the detenu has} involved in as many as fourteen⁽ 14)^cases of^{Robbery, House} Burglaries, Automobile Thefts and Cattle^{Thefts. The series of} crimes allegedly committed by him^{were sufficient to causea} feeling of insecurity in the minds of the^people at^{large' While} passing the impugned detention order, the detaining authority^is t.i well aware of the fact that the detenu is^{in judicial custody.The} detenu was^granted bail in one case^{and if he is released on bail in} other two cases also, there is every^{likelihood of his indulging in} similar offences, which are^prejudicial to^{the maintenanceof public} order. The recourse to normal law may not be an^effective deterrent in^preventing him from indulging in further^unlawful activities. The case oF the defenu was reFerred to the Advisory Board. After hearing the deteru and the investigating officer, the Advisory Board rendered its report/opinion, whereby and whereunder, the Advisory Board opined that there is sufficient cause lor detention of the detenu. The Government, upon receipt of thei report/opinion from the Advisory Board and upon considering the entire materia{, confirmed the detention of the detenu vide order, dated 20.08.2020. The detaining authority was

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ARR,J & DT.SAJ W.P.No.I5Al I of 2O2O

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leqally^justified in^{passing the impugnedorders.There areno} grounds to grant the relief sought^by the^{petitioner and ultimately} prayed to dismiss the Writ Petition.

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In view of the submissions^{made by both the sides, the point} that arises for determination^{in this Writ Petition is:}

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"Whether the detention^{order,dated 77.O8.2O2O,} passed by respondent No.2 and^{the consequential} confirmation order,^{dated20.O8.2020, passed bY} respondent No.7 are^{liable to be set aside?"}

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POINT:

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7, 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^{offenceswhichare committed againsta} particular individual fall within^{the ambit of "law and order"' It is} only when the^{public at large is adverselyaffected by the criminal} activities of a^{person, the conduct of a person is said to disturb the} public order. Moreover, individual^{casescan be dealtwith by the} criminal^justice system.^{Therefore,there is no need for the} detaining authority^{to invoke the draconianpreventive detention} laws against an^{individual.For the invoking of such law adversely} effects the^{fundamentalright of personal liberty which is protected} andpromotedbyArticle2loftheconstitutionoflndia.Hence, accordingtotheHonourableApexCourt,thedetainingauthority should be wary^{of invokingthe immense power under the Act'}

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ARR,J &^DT.SAJ W.P.No 15811of2020

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In the case^{of Ram Manohar Lohia v' State of Biharl' the} Honourable^{Supreme Court has, in fact, deprecatedthe invokingof} the^{preventive law in order to tacklea law and orderproblem'The} Hon'ble Supreme^{Courthas observed as under:}

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"54. We^{have here a case of detention under Rule 30} of the Defence^{ofIndiaRuleswhich permits} apprehension^{and detention of a personlikely to act in} a manner^{prejudiciat to the maintenance of public} order. It^{foltows that if such a person is not detained} public disorder is the^{apprehended result'Disorderis} no doubt^{preventedby the maintenanceof law and} order also but^disorder .is^{a broad spectrum which} includes at^{one end small disturbancesand at the} other the most^{serious and cataclysmichappenings'} Does the expression^{"public order'takein 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} deatt with under the^{powersto maintain law and order} but cannot be^{detainedon the ground that they were} disturbing^{pubtic order. Supposethat 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 apprehensionof public} disorder. other examples^{can be imagined' The} contravention of^{taw alwaysaffects orderbut before it} can be said to^{affect pubticorder, it must affect the} community or^{the public at large. A mere disturbance} of law and order^{leading to disorder is thus not}

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I AIR 1966 sc 740

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ARR,J & DT.SAJ W.P.No.l58l I of2020

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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 ordina ry circumstances."

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In the case of Kanu Biswqs v. State of West Bengal2, the Honourable Supreme Court has opined as under;

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"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 u ndisturbed?"

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10.'In the present case, the detenu is said to be involved in three criminal cases in Crime Nos.223/2020, 270/2020 and 133/2020 and the detaining authority relying upon the said crimes, passed the impugned detention order. 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 cog n iza ble/non^-cog n iza ble,

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'^{(1972)3 scc 831}

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ARR,J & Dr'SAJ W.P.No.158I I of2020

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CrimeNo.	Dateof Occurrence	Dateof registration OfFIR	offences	Nature
Cr.No.223/2020 ofPedapalliPS	22/23.05.2024	06.06.2020	379LP.C.	Non^- ba ilablel coqnizable
Cr,No.27Ol2020 ofManche ria^I TownPS	25/26.06.2020	04.07.2020	379 t.P.C.	Non- bailablel co nizable
Cr.No.133/2020 ofBasanthnagar PS	30.06.2020/ 0t.o7.2020	07 .07.2020	457 and380 I. P.C,	Non- ba ilablel co nizable

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11, A^perusal of the impugned detention^{orderreveals that the} detenu moved bail^petitions in all the three^{cases relied by the} detaining authority before the Courts concerned and^{he was} granted bail by the Court concerned in one case i.e./ in Crime No.27O/2020. The bail petitions moved by the defenu 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 one crime,^{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

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ARR,J & DT.SAJ W.P.No.l58I I of2020

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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.

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t2. Grave as the offences may be, they relate to theft and lurking house trespass 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.

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For the reasons stated above, the^impugned orders^are legally unsustainable and are liable to be set aside.

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L4. In the result, the Writ Petition is allowed. The^impugned detention order vide C.No.10/PDCELL/CCRB/RGM/2020,^dated 11.08.2020,^passed by respondent^No.2, and the^{consequential} confirmation order vide G.O.Rt.No.1216,^{GeneralAdministration} (Spl. (Law & Order)) Department, Government of Telangana, dated 20.08.2020, are hereby set aside. The^{respondents are directed to} set the detenu, namely Manupati Shekhar, S/o.^Yellaiah, at^liberty forthwith, if he is no Ionger requiredⁱⁿ any other^{criminal case.}