Allowed

Pedavalli Uma Maheshwari v. The State of Telangana

Telangana HC1 Feb 2021WP/17567/2020

Case brief

AI extract

What is this about?

The High Court allowed writs filed by next-of-kin challenging preventive detention orders. The Court set aside orders detaining four individuals released on bail, holding that fraud cases against individuals did not disturb public order and the detention lacked application of mind. Relied on Supreme Court precedents regarding public versus law and order.

What did the court decide?

Writ petitions allowed; impugned detention orders and confirmation orders set aside; respondents directed to set detenus at liberty.

Pedavalli Uma Maheshwari Vs The… — Constitutional and Fundamental Rights | Telangana HC (2021)

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HIGH COURT FOR THE S] (so;Hi 3l:,3i l5l3lis,flf Ar HYDERABAD

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A/ONDAY, THE TW O T; O U-S T iH I,?A T,fl E,5i9 BiA- "

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PRESENT

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THE HONOURABLE SRIJ rH E H o N o u Ror.. r,.'f,t:,:: ffi ::ffi :'-'"

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WRIT PE TITION Nos.1 7566.17 567. 17588 & 17594 oF 2020

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WP^No.17sg6 of 2020

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Between:

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P. Rama Krishna. S/o Venkataswamy, Aged about 40 years, Occ. Agriculture, R/o. PradeshPedd iva ripa lem, Ko mmuru post, xa t<'uma",iJvI Ii, Lli'rv,rno, r, c u ntur Dist. And h ra

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AND

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..,PETITIONER

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1 Ilill:1-"^gl]"Iqry"na,^{Repby its principat Secretaryto covernment,} Generat Aomtnrsrratron IJepartment (poll), Secretariat, Hvdera6ad.

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2 rne uommissioner of police. Cyberabad, Gachi6owli. 3 ]fe^{Superintendentof Jairs, cehtratpriiion,} cr,"rripirrv, IVedcahr-r,/arkajgiri District.

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Petition under Articte 226 of the Constitution of lndia ,r;rf"ls?flTi:T: circumstances stated in the affidavit filed therewith, the High court may be pleased to issue writ, order, direction particularly in the nature of writ of Habeas corpus directing the respondents to produce the detenue by name Kandru Harish @ Vishnu Kumar @ Abhishek Anand S/o Kandru Venkateshwarlu, Aged about 25 years, Occ. Food Delivery, R/o. Sai Krupa Colony, RC Puram, N/o. H.No.1-46, B K palem, Kakumanu Mandal, Guntur, Andhra Pradesh before this Hon'ble Court and set him at liberty by declaring the detention order 0710812020 issued in Proceedings No. 26/PDCELLlCYBI2}2O passed by the 2nd respondent and the consequential orders i.e., G.O.Rt.No.1206 General Administration (SPL) Law and Order Department dated 1710812020 issued by the^'1 st respondent as illegal, arbitrary and violative of the rights guaranteed under Article-21 of The Constitution of lndia.

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LA.NO.1 F 2020:

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Petition under Section 151 CPC^praying thatⁱⁿ the circumstances^{statedin the} affidavit fited in support of the^petition, the^{High Court maybe pleasedto permit the} petitioner to file the copy of the G.o.Rt.No.1463, dated 05.10.2020^{as additional} document in w.P.No.17566 ol^{2O2Owhich is just and necessaryto adjudicatethe} matter effectively.

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WP NO: 17567 OF 2020

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Between:

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Pedavalli Uma Maheshwari,^{w/o.Pedavalli srinivasaRao, Aged about 31 ye_ars,} occ Housewife, R/o.H.No.5-6,^{GottipaduVillage, Prathipadu Mandal,Gunlururst.} AP

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...PETtrtoNER

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a-'->

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" ^.liir'g;r**iffi:mgl.:Lli,lHgid'*n',ffi ::'.ffi ff

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..'RESPONDENTS

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)n of^{lndia PraYing that in the} court^{mav be preased to} d*,.:,"jl;';^{il::: :T""";:ili'I"t;:J;'L:'";";;'^} issue^{Writ, order' directionpurtitutu'tyin the nature^ofwrit of Habeas Corpus directing} the^{respondentt to p'oo"Jir'"-i*""'" by name Peddavalti Srinivas Rao S/o Samba} *^'^{HNo'5-6'GottipaduVillage' Prathipadutvlandal'} Shiva^{Rao, Aged33} '"u-"' Gunturdistrict'AndhraPradeshbeforethisHonourableCourtandsethimatlibertyby declaring^{the detentionorder 07/08/2020 issued inProceedingsNo 25lPD-} respondent,^{and the consequential orders i e '} CELLICYB|2O2O^{passedO' tn"} 'nO G.O.Rt.No^{1205 GeneralRdministration(SPL) Law and OrderDepartmentdated} 17 toSr2o2oissued^{by the 1st respondent as ilegal,arbitrary and violativeof the rights} guaranteed^{underArticle-21 of the Constitution of lndia}

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A.N o.1^oF2020i n^'1 51^{CPC praying thatin the circumstances stated in the} Petitio^{n underSectio} the^{petition,the HighCourtmaybe pleasedto permitthe} affidavit^{filed in suPPortof} of the^{G.O.Rt No'1513'dated '12 10'2020 as additional} petitioner to^{file thecoPY} Tol2O2Owhichisjustandnecessarytoadjudicatethe document^{in W.P No'1756} matter^effectivelY'

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WP NO:^{17588 OF 2020}

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Between:

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,""ffl ""::I;::X': 'Ai.:ti,',i1:X),fl?J3X,ifi^{f;r",,iAXi[?"d]YXi'S'l#f}

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AND

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The State Administration^{of Telangana, Rep Departmentip6'nt''s"tt"tdtiat' by its Principal Secretary Hyderabad'to GovernmentGeneral} 2.) +ffi Silxxi1#ffioj'';jn:garB?.[;"?lS3:;l;a,v'Niredcahr-tr'4arkalsiri District. .,,RESPONDENTS

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PetitionunderArticle226otlheConstitutionoflndiaprayingthatinthe circumstances^{statedin the affidavit filedtherewith' the High Court maybe pleased to} issue^{Writ, order, direction particularly in the nature of writ of Habeas Corpus directing} the respondents^{to producethe detenue by namelkkruthi Veera Shekhar Rao @ Chinta} srinivas^Rao @^{Shekhars/o Venkat Rao Aged 2g years,occ. Farmer,R/o.} H.No.280/A,^{Vellaluru (v), Ponnuru(m)' Guntur Dist'' AndhraPradeshbefore this} Honourable^{court and set him at liberty by declaringthe detentiono"det 07logl2o20} issued in^{proceedings No. 2glpD-CELLtcyBl2ozopassed by the 2nd respondentand} theconsequentialordersi.e.,G.o.Rt.No.l20BGeneralAdministration((SPL)Lawand

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-^3--

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Order) Department dated and viorative orth",is;;l::::::i,'.::.:Jj:11st respondent as iresar, arbitary of the Constitution of lndia

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t.A. N o.1 oF2020:

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Petition under Section 151 CpC praying that in the ci affidavit filed i rcumstances stated in the n support of the petition, the High Court may be pleased to permit the petitioner to file the copy of the G.O Rt.No.1514, dated 1 2.10.2020 as additional document in W.p.No.175BB of 2O2O which is just and nec matter effectively essary to adjudicate the

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WP No. 17594 gF 2o2o

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Between:

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It4. Srrnivasa Rao, S/o Ran Kommu,.u, Ka[;;;;;;"il;13[",]?i!;,igi,L,i?By:,:%x3f;i:,fjlaericurture, R/o

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AND ...PETITIONER

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1 The State of Telangana, Re Generai 2 3 ka iri District trr$'ffitl,+#,'J,,#':liffi llift :;:#,; ...RESP Jgo NDENTS

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Petition under Articre 226 0f the constitution of rndia praying that in the crrcumstances stated in the affidavit fired therewith, the High court may be preased to issue writ, order, direction perticurarry in the nature of writ of Habeas corpus directing the respondents to produce the detenue by name lvlandava Swaroopnath @ IVSN S/o Srinivas Rao, Aged about 34 years, occ Weigh Bridge owner, R/o.prot No.4g8, Hr,47 Hills, Near Ramarayam, pragathi Nagar Road, Kukatpary, Hyderabad, N/o Kommuru (p), Kakumanu (m), Guntur District, Andhra pradesh before this Hon,bre court and set him at liberty by decraring the detention order 07rogr2020 issued in proceedings No 24lPD-cELLlcYBl2)21 passed by the 2nd respondent and .he consequentiar orders i.e., G.o.Rt.No.1204 General Administration (spL) Law and order Department dated 1710812020 issued by the 1st respondent as illegal, arbitrary and violative of the rights guaranteed under Article-21 of The Constitution of lndia

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r.A.NO.1 0F 2 020:

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Petition under section 151 cPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High court may be pleased to permit the petitioner to file the copy of the G.O.Rt.No.1512, dated 12.10.2020 as additional document in W.P.No.17594 ol 2020 which is just and necessary to adjudicate the matter effectively.

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Counsel for the Petitioner(in all WPs): Smt. B.MOHANA REDDY

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Gounsel for the Respondents(in all WPs): AGP FOR HOME FOR

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ADDL. ADVOCATE GENERAL

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The Court made the following: COMMON ORDER

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THE HON'BLE^{SRI ]USTICE A' RA]ASHEKERREDDY} AND THE HON,BLE^{OT, :U6iiCE SHAMEEM AKTHER}

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RITP TI ON^No 1 75 6.^t7 6',7 1 5 I N 1 s94 F o o

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c M o o D Ri^(Per Hon'ble^Dr.SA,l) Though the^{petitioners in these Writ Petitions are different'} the issue^{involved arlses out of impugnedorders of even date is} same and^{therefore,all the Writ Petitions are being taken up} together^{and disposed of by way of this commonorder'}

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2.W.P.No.lT566of2o2oisfiledbyP.RamaKrishna,whoisthe brother-in-law^{of the detenus, namely, Kandru Harish @ Vishnu} Kumar @ Abhishek^{Anand, W.P.No'17567 of 2020 is filed by} Pedavalli Uma Maheshwari,^{who is the wife of the detenus, namely,} Peddavalli Srinivas Rao,^{W.P'No.l75BB of 2020 is filed by Ikkurthi} Bhava Narayana, who is the^{brotherof the detenus,namely,} Ikkruthi Veera Shekhar Rao @ Chinta^SrinivasRao @^Shekhar,and W.P.No.17594 of 2020 is filed by M. Srinivasa^{Rao, who is the} father of detenus, namely, Mandava Swaroopnath @ l4SN.^The petitioners herein filed the present Habeas Corpus petitions challenging the separate detention orders of even date, dated 07.08.2020, passed by the respondent No.2, Commissioner of Police, Cyberabad, and the consequential confirmation orders of even date, dated 17.08.2020, passed by the respondent No.1, Principal Secretary to Government, General Administration Department (Poll), Government of Telangana.

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We have heard the learned counsel for both sides and perused the record.

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*^p.r,o ,rsuo "i)riio1i,",J

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Briefly, the facts of the case are that by relying on three recent criminal cases registered against the detenus during the year 2020 in the limits of Cyberabad police Cornmissionerate, the respondent No.2, Commissioner of police, Cyberabad, passed the impugned detention orders of even date, dated 07.08.2020. According to the respondent No.2, the detenus are White Collar Offenders habitually and continuously engaging themselves in series of unlawful activities by committing forgery and opening of various bank accounts by impersonation and obtaining credit cards and loans on the names of software employees, who died in accidents, thereby creating large scale fear and insecurity in the minds of general public. With a view to prevent the detenus from acting in a manner prejudiciar to the maintenance of pubric order, the impugned detention orders of even date, dated 07.08.2020, were passed. The lmpugned detention orders were confirmed by the respondent No.1-Principal Secretary to Government, General Administration Department (Poll), Government of Telangana, vide orders of even date, dated 1.7.08.202A. Hence, these Writ Petitions before this Court.

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Ms. B. Mohana Reddy, learned counsel for the petitioners, has vehemently contended that impugned detention orders were passed by relying on three cases i.e./ 1) Crime No.3 of 2O2O of Cyber Crime Police Station, Hyderabad,^{registered for the offences} punishable under Sections 419 and 420 i'P.C. and Section^66Cand 66D of IT Act, 2) Crime^{No.255of 2020 of Cyber CrimePolice} Station, Hyderabad,^{registeredfor the offences punishable under}

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ARR J &^DI'SAJ w.P.No^{17566oi 2O2O& batch}

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Sections^{419 and 420 I'P'C' and Section 66C & 66D of IT Act'and} 3) Crime^{No.331 of ZOZOofCyber Crime PoliceStation'Hyderabad'} registered^{for the offences punishableunder Sections 419 and 420} I.P.C. and^{Section66C& D of 1T Act' The detenuswere released on} bair in a,^{the aforesaidcrimes by 26.03.2020on certain conditions} and the^{impugned detention orders were passed on 07'08'2020} i.e., four^{monthsafter the detenus weregranted bail' Thereis no} allegation^{that during this period the detenus involved in any} prejudicial activity^{or that they have violated the bail conditions'} The state never^{sought cancellationof bails at any point of timein} any of the cases.^{The detenus were falselyimplicatedin the} crimes referred^{above, which were registered based on the alleged} confession statements^{of the detenus, There is no materialto} substantiate and^{justify that the detenus are whitecollar offenders.} The documents enclosed^{with the impugneddetention orders were} furnished in English language^{and tlre groundsof detentionand the} contents of detention orders^{werenot explained to the detenusin} their mother tongue i.e., Telugu, so^as to^{enable them to make} representations to the Government as well as the^detaining authority. The detaining authority/ without appreciating the material on record, mechanically passed the impugned detention orders. The three criminal cases registered against the detenus cannot be termed as disturbance to public order. The detaining authority, without there being any material on record, was of the apprehension that sirrce the detenus were released on bail in the aforesaid three criminal cases, there is every possibility of the detenuS* violating ine bail conclitions and committing simitar

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lv P N. 1rs66li;1f&";;:t

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ofFences. The detaining authority/ without there being any fresh crime registered against the detenus, after their release on bail in the aforesaid crimes, passed the impugned cletention orders. The ordinary law was already invol<ed against the detenus to curb their illegal activities and invoking the preventive detention raw, as an alternative method, is abuse of process of law. The impugned detention orders and the consequentiar confirmation orders are unsustainable and the same are liable to be set aside. 6. On the other hand, Sri G. Mallareddy, learned Assistant Government pleader for Home, appearing on behalf of the learned Additional Advocate General, yvould submit that the detenus are involved in as many as three qrave and dangerous offences such as cheating, forgery and impersonation in an organized way in the limits of cyberabad and Hyderabad porice commissionerates creating fear and insecurity in the minds of general public, apart from disturbing the peace and tranquility in the society. The detaining authority considering the facts that the cases registered against the detenus under the ordinary law had no deterrent effect in curbing their prejudicial activities; that they were already granted bail in all the cases and that there is every possibility of they indulging in similar prejudicial activlties, passed the impugned detention orders in the interest of public at large. At the time of service of the impugned detention orders and grounds of detention, the contents of the same were read over and explained to the detenus in their vernacular language i.e., Telugu in the^presence of the^jail authorities and while acknowledging the receipt of the

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ARR,J^{& Df,SAJ} W.P.No^{17566 of 2020& batch}

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)

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hand^{writing that they} same,^{they have endorsed in their own} English^{and hence,no} know^{readingand writing in Telugu and} in making^effective was caused^{tothe detenus} prejudice representations^{to the Government'Further' the aforesaid crimes} were^{registered against the detenusfor the offences punishable} under^{Sections 419 and 420 I'P'C' and Section66C & 66D of IT Act} and therefore,^{the detenusare'white collar offenders''The detenus} are habitual^{offenders committingseriesof offenceslike forgery'} cheating^{and impersonation' Further, due to lock-down on account} of COVID-19^{pandemic, some delay has occurred in collecting the} documents and^{as such, the impugneddetention orders were} passed four months after the^{detenus were releasedon bail' The} casesofthedetenuswerereferredtotheAdvisoryBoard.After hearing the detenus^{and the investigatingofficer,the Advisory} Board rendered its^{report/opinion,wherebyand whereunder,the} Advisory Board opined^{that there is sufficient cause for detention of} the detenus. The Government,^{upon receipt oF the report/opinion} from the Advisory Board and upon^{consideringthe entirematerial,} confirmed the detention of the detenus vide orders of^evendate, dated 17,08.2020. The detaining authority^{was legally justiFiedin} passing the impugned detention orders. There are no grounds to grant the relief sought by the petitioners and ultimately prayed to dismiss the Writ Petitions.

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In view of the submissions made by both the sides, the^point that arises for determination in these Writ Petitions is:

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w.p N" r ?s66 :lIdrf&9;^s,H

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"Whether the detention orders of even datel dated O7.Og.2020, passed by the respondent No.2 and the confirmation ri rj,l i 7. o B. 2 o 2 o, p a s s e d r;'' : : :, : : r",ii li ;. f liable to be set aside?,,

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POINT:

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8, 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 particurar individuar fa, within the ambit of ..raw and order.,. It is only when the pubric at rarge is adversery affected by the criminar activities of a person, the conduct of a person is 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 Honourable r:ipex Court, the detaining authority should be wary of invoking the irnmense power under the Act.

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In the case of Ram Manohar Lohia v. State of Biharl, the Honourable Supreme Court has, in fact, deprecated the invoking of the preventive law in order to tackle a Iaw and order problem. The Hon'ble Supreme Court has observed as under:

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"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

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'^{atp 1966 sc 740}

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ARR J^{& Dr'sAJ} W.P.No.l7566^{of 2O2O& batch}

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the maintenance^{of public order' It follows that if such a} person is^{not detained public disorder is the apprehended} result.^{Disorderis no doubt preventedbY the maintenance} of law^{and order also but disorder is a broadspectrum} which includes^{at one end smatldisturbancesand at the} other the^{most serious and cataclysmichappenings'Does} the expression^{"publicorder' take in every kind of disorders} or only^{some ofthem? The answer to this serves to} distinguish^{"publicorder"from "law and order"because the} latter undoubtedly^{takes in all of them' Public order if} disturbed,^{mustlead to public disorder' Every breachof the} peace does not^{leadto public disorder'When two drunkards} quarrel and fight^{there is disorder but not public disorder'} They can be^{dealt with under the powersto maintainlaw} and order but^{cannotbe detained on the groundthat they} were disturbing^{pubtic 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 apprehensionof publicdisorder'} Other examples can be^{imagined'The contraventionof law} always affects order but^{before it can be said to affect} public order, it must affect the community^{or the public at} large. A mere disturbance of^{law and order leading to} disorder is thus not necessarily sufficient^{for action under} the Defence of India Act but distLtrbances^{which subvertthe} 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 ord i na ry ci rcu msta nces. "

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In the case of Kanu Biswas v. State of West Bengal2, the

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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

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' ltoz^{z1 s scc831}

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,. r. r.., r.uu ll*i#*T""#

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society.^pubtic order is what the French ca ,order pubtjque, and is something more than ordinary maintenance of raw and order. fhe 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 tranquitity of the society undisturbed?,,

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In the present cases, the detenus are said to be involved in three criminal cases i.€., Crirne Nos.3/2020, ZSS/2020 and 331/2020 and the detaining authority relying upon the said crimes, passed the impugned detention orders. We shall present it in a tabular column the date of occuri-ence, the date of registration of FIR, the offences complained of and their nature, such as bailable/non-baila ble or cognizable/non-cognizable.

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CrimeNo.	Dateof Occurrenc e	Dateof registrati on ofFIR	Offences	Nature
Cr.No.3/202 0ofCyber crimePS	28.10.201 9	a20L.202 0	419and 420r.P.C. and Section 66(c)& (D) ofIr Act	1.419 I.P.C.& Sec.66C&66Dof IT Act -bailable/ cognizable 2.420IPC-Non- ba ilablel co nizable
Cr.No.255/2 020 of Cyber Crlme OC	Prior to 22.O2.2020	22.02.202 0	419and 420l.P.C. and Section 66(C)& (D) ofIr Act	1.419 LP.C.& Sec.66C&66Dof ITAct-ba ilablel cognizable 2. 420IPC-Non- bailable/ co nizable
Cr.No.331/2 020 of Cyber Crime PS	Priorto 14.02.2020	74.02.202 0	419and 420r.P.C. and Section 66(c)& (D)of IT Act	1.419 I.P.C.& Sec.66C&66Dof IT Act^-bailable/ cognizable 2. 420rPC- Non-bailable/ cognizable

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ARR,J &^DT.SAJ W.P.No.17566^{oi 2O2O& batch}

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L2. A bare^{perusalof the impugneddetention ordersclearly} reveals that the^{detenus were granted bail in all the aforesaid three} crimesby26'o3.2020.Thereisnoallegationthatafterreleaseon bail in the aforesaid^{crimes,the detenus have involved in any crime} or criminal activity.^There are^{no attemptsor commission of the} offences of the nature for^{whichthe detenus are being prosecuted.} Grave as the offence may be, it has been committed^against particular individuals. So, no inference of disturbance of public order can be drawn. The instant cases can be tried under the normal criminal law. The detention orders were passed on 07.08.2020 i.e., about four months after the release of the detenus on bail. As per the submissions made on behalf of the petitioners/detenus, bails were gra:nted on certain conditions and those conditions were not violated by the detenus. Under these circumstances, there was no neecl for the detaining authority to pass the impugned detention orders. The impugned detention orders of even date, dated 07.08.2020, suffer from non_application of mind. Therefore, for the reasons stated above, the impugned detention orders and the consequentiar confirmation orders are legally unsusta ina ble.

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In the result, the Writ petition Nos.17566, 17567,17588 and 17594 0f 2020 are ailowed. The impugned detention orders of even date, dated 07.08.2020, passed by respondent No.2, and the confirmation Government Orders of even date, dated L7.OB,ZO2O, passed by the respondent No.1, are set aside. The respondents are directed to set the detenuss, namely Kandru Harish @ Vishnu

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'v.P.N..17s66;;;ijrt& b3r";

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Kumar @ Abhishek Anand, S/o, iGndru Venkateshwa rtu, peddavaili Srinivas Rao, S/o, Samba Shiva Rao, Ikkruthi Veera Shekhar Rao @ Chinta Srinivas Rao @ Shekhar, S/o. Venkat Rao and Mandava Swaroopnath Chowdary @ MSi, S/o. Srinivas Rao, at liberty forthwith, if they are no longer required in any other criminal case.

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The miscellaneous petitiorrs pending in these wrlt petitions, it" any, shall stand closed. There shall be no order as to costs.

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SD/.T.KRISHNA KUMAR ASSISTANT REGISTRAR ,TRUE COPY// ( rt',

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SECTION OFFICER

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To, I Jll?Il,lgiqql !99*l_rw to Government, Generat Administration Department (polt),

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^^{State^otI elangana,Secretarrat,Hyderabad.} 2. The Commissioner of Police, Cyb6rabad, Gachibowli.

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3 The S^LPerintendent of Jaill Central Prision, Cherlapally, Ivledcahl-l/lalkajgiri District 4. Two CCs to the Advocate General, High Court for ttie Siate ot felanqan;]Ouil 5. One CC to Smt. B.IVOHANA REDDY, Advocate [OpUC] 6. Two C.D. Copies.

HIGH COURT

ARRJ^{& DRSAJ}

DATED:01^10212021

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COMMON^ORDER

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