Karnataka High Court

Tarannum vs The State Of Karnataka on 7 June, 2023

Bench: Alok Aradhe Hegde, Arhj

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                                                     WPHC No.14 of 2023




                    IN THE HIGH COURT OF KARNATAKA AT BENGALURU
                         DATED THIS THE 7TH DAY OF JUNE, 2023
                                      PRESENT
                        THE HON'BLE MR. JUSTICE ALOK ARADHE
                                          AND
                    THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
                                W.P.H.C. NO.14 OF 2023
               BETWEEN:

               1.   TARANNUM
                    W/O WASEEM AKRAM
                    AGED 22 YEARS
                    R/AT. RAZAQ MOHALLA
                    SHABBIR NAGAR
Digitally           HUNASURU TOWN
signed by           MYSURU-571105.
RUPA V                                                     ...PETITIONER
Location:
High Court     (BY SRI. MOHAMMED TAHIR, ADV.,)
of Karnataka   AND:

               1.   THE STATE OF KARNATAKA
                    BY ITS SECRETARY
                    DEPARTMENT OF HOME
                    VIDHANA SOUDHA
                    BENGLAURU-560 001.

               2.   DISTRICT COMMISSIONER AND ]
                    DISTRICT MAGISTRATE
                    OFFICE AT KRISHNARAJA BLVD RD
                    K.G.KOPPAL, KAJJIHUNDI
                    MYSURU-570001.

               3.   THE SUPERINTENDENT OF POLICE
                    OFFICE AT HYDER ALI ROAD
                    KITTUR RANI CHENNAMMA CIRCLE
                    JALAPURI, MYSURU-570019.
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                                       WPHC No.14 of 2023




4.   THE DEPUTY SUPERINTENDENT OF POLICE
     HUNSUR SUB DIVISION
     MUTHUMARIYAMMAN KOVIL
     HUNSUR, MYSORE DIST-571105.

5.   INSPECTOR OF POLICE
     HUNSUR TOWN POLICE STATION
     MYSORE DISTRICT-571105.

6.   CHIEF SUPERINTENDENT OF PRISONS
     CENTRAL JAIL, HINDAGAL
     BELAGAVI-571109.

     RES. 1 TO 6 ARE
     REPRESENTED BY SPP
     OFFICE AT ADVOCATE GENERAL OFFICE
     HIGH COURT COMPLEX
     OPP TO VIDHAN SAUDA
     BANGALORE-560001.
                                          ...RESPONDENTS
(BY SRI. V.S. HEGDE, SPP-II A/W
    SRI. THEJESH P, HCGP FOR R1 TO R6)

       THIS WPHC IS FILED UNDER ARTICLE 226 AND 227 OF
THE CONSTITUTION OF INDIA, PRAYING TO A WRIT IN THE
NATURE OF HABEAS CORPUS BY QUASHING OF THE ORDER
OF DETENTION DATED 19.12.2022 PASSED BY RESPONDENT
NO.2    IN   NO.MYSDC/MAG1/MLO/62/2022        E-172833   AND
MYSDC/MAG1/MLO/62/2022        E-    215189,     WHICH     IS
PRODUCED AT ANNEXURE-B.       A WRIT IN THE NATURE OF
HABEAS CORPUS BY QUASHING THE APPROVAL ORDER
DATED 29.12.2022 PASSED BY THE RESPONDENT NO.1 IN
HD724SST2022. WHICH IS PRODUCED AT ANNEXURE-C &
ETC.
       THIS PETITION COMING ON FOR FURTHER HEARING,
THIS DAY, ALOK ARADHE J., MADE THE FOLLOWING:
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                                       WPHC No.14 of 2023




                        ORDER

The petitioner who is the wife of the detenue

viz., Wasim alias Wasim Akram alias Welding Wasim

(hereinafter referred to as 'the detenue' for short)

has assailed the validity of the order of detention

dated 19.12.2022 under the provisions of the

Karnataka Prevention of Dangerous Activities of

Bootleggers, Drug offenders, Gamblers, Goondas,

Immoral Traffic Offenders and Slum Grabbers and

also Video and Audio Pirates Act, 1985 (hereinafter

referred to as 'the Act' for short). The petitioner also

seeks quashment of order dated 29.12.2022, by

which order of detention has been affirmed by the

State Government. The petitioner also seeks

quashment of order of confirmation dated

21.01.2013 passed by the State Government and

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seeks a writ of habeas corpus to release the detenue

forthwith.

2. Facts leading to filing of this petition

briefly stated are that an order of detention was

passed against the detenue on 19.12.2022 under

the Act on the ground that the detenue started

criminal activities since, 2014 in Hunsur Town,

Mysore District. The allegation against the detenue

is that he is indulged in several cases pertaining to

physical assault, criminal intimidation, riots,

kidnapping offences against women and destruction

of public properties etc. In pursuance of order of

detention, the detenue was arrested on 19.12.2022.

On account of the criminal activities of the detenue,

a rowdy sheet was opened against him at Hunsur

Police Station on 07.03.2015. It is averred that

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since, 2015 till 2021, 10 criminal cases were

registered against the detenue. It is the case of the

respondents that activities of the detenue caused

disturbance to public order and to control his

activities and to prevent him from acting in any

manner prejudicial to the public order, an order of

detention was passed.

3. The order of detention was forwarded to

the State Government for approval, which accorded

its approval on 29.12.2022. Thereafter, an order of

corrigendum dated 29.12.2022 was issued. The

detenue submitted a representation on 02.01.2023

to respondents and the advisory board. Thereafter,

another representation was submitted on

05.01.2023 to the respondents and the advisory

board. The representation of the detenue was

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forwarded to the advisory board on 05.01.2023. The

recommendation of the advisory board dated

11.01.2013 was received on 20.01.2013 and

thereafter an order of confirmation dated

21.01.2023 has been passed. The representation

submitted by the detenue was decided by an order

dated 03.02.2023 and the same was rejected. In the

aforesaid factual background, this petition has been

filed.

4. Learned counsel for the petitioner

submitted that since, the representation submitted

on behalf of the detenue was received before the

matter was referred to the advisory board, therefore,

the respondents ought to have decided the

representation before referring the matter to the

advisory board. In support of aforesaid submission,

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reliance has been placed on decisions of Hon'ble

Supreme Court in 'ANKIT ASHOK JALAN VS.

UNION OF INDIA', (2020) 16 SCC 127 and order

dated 22.11.2022 passed by a division bench of this

court in WPHC No.74/2022.

5. On the other hand, Learned counsel for

the respondents while placing reliance on an order

dated 19.04.2023 passed by division bench of this

court at Dharwad, in WPHC No.100008/2023 has

submitted that writ of habeas corpus in a case

where the detenue is under preventive detention is

not maintainable and the petitioner should seek the

writ of certiorari. On merits, it is contended that on

receipt of the representation, the same was

forwarded to the advisory board on 05.01.2023 and

the representation of the detenue has been

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considered by the advisory board. It is urged that

after receipt of the report of the advisory board, on

20.01.2023, the representation submitted by the

detenue has been decided on 03.02.2023 and there

is no such delay in deciding the representation,

which would vitiate the order of detention. In

support of aforesaid submissions, reliance has been

placed on decisions in 'ANKIT ASHOK JALAN VS.

UNION OF INDIA', (2020) 16 SCC 127,

'K.M.ABDULLA KUNNI VS. UNION OF INDIA', and

'ANURADHA VS. JOINT SECRETARY AND

OTHERS', (2005) 5 SCC 142.

6. Learned counsel for the petitioner has

submitted that order dated 19.04.2013 passed by a

division bench of this court in WPHC

No.100008/2023 is per incuriam. It is further

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submitted that in 'HOME SECRETARY (PRISON)

AND OTHERS VS. H.NILOFER NISHA', (2020) 14

SCC 161 and in 'KANU SANYAL VS. DISTRICT

MAGISTRATE DARJEELING AND OTHERS', (1973)

2 SCC 674, it has not been held by the Hon'ble

Supreme Court that writ of habeas corpus is not

maintainable. It is submitted that the aforesaid

decision has been rendered in ignorance of the law

laid down by Hon'ble Supreme Court. In support of

aforesaid submissions, reliance has been placed on

decisions of Hon'ble Supreme Court in 'UMMU

SABEENA VS. STATE OF KERALA AND OTHERS',

(2011) 10 SCC 781 and 'T.P.MOHINUDDIN KOYA

VS. GOVERNMENT OF KERALA AND OTHERS',

(2004) 8 SCC 228 and a full bench decision of

Andhra Pradesh High Court in 'G.ARCHANA AND

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OTHERS VS. THE STATE OF ANDHRA PRADESH

AND OTHERS', (2015) CRI L.J. 3946.

7. We have considered the rival submissions

made on both sides and have perused the record.

Before proceeding further, we may advert to the

preliminary objection raised by learned Special

Public Prosecutor - II with regard to maintainability

of the writ of habeas corpus. The Hon'ble Supreme

Court in DEEPAK BAJAJ VS. STATE OF

MAHARASHTRA AND OTHERS', AIR 2009 SC 628,

while dealing with the scope of writ petition under

Article 226 of the Constitution of India has held as

under:

28. Learned counsel for the respondent submitted that a writ of habeas corpus lies only when there is illegal detention, and in the present

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case since the petitioner has not yet been arrested, no writ of habeas corpus can be issued. We regret we cannot agree, and that for two reasons. Firstly, Article 226 and Article 32 of the Constitution permit the High Court and the Supreme Court to not only issue the writs which were traditionally issued by British Courts but these Articles give much wider powers to this Court and the High Court. This is because Article 32 and Article 226 state that the Supreme Court and High Court can issue writs in the nature of habeas corpus, mandamus, certiorari, etc. and they can also issue orders and directions apart from issuing writs. The words `in the nature of' imply that the powers of this Court or the High Court are not subject to the traditional restrictions on the powers of the British Courts to issue writs.

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Thus the powers of this Court and the High Court are much wider than those of the British Courts vide Dwarka Nath vs. Income-tax Officer, Special Circle, D Ward, Kanpur & Anr. AIR 1966 SC 81 (vide para 4), Shri Anadi Mukta Sadguru Shree Muktajee Vandasjiswami Suvarna Jayanti Mahotsav Smarak Trust & Ors. vs. V.R. Rudani & Ors. AIR 1989 SC 1607 (vide para 16 to 18), etc. Secondly, what the petitioner really prays for is a writ in the nature of certiorari to quash the impugned detention order and/or a writ in the nature of mandamus for restraining the respondents from arresting him. Hence even if the petitioner is not in detention a writ of certiorari and/or mandamus can issue.

29. The celebrated writ of habeas corpus has been described as `a great constitutional privilege of the citizen' or

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`the first security of civil liberty'. The writ provides a prompt and effective remedy against illegal detention and its purpose is to safeguard the liberty of the citizen which is a precious right not to be lightly transgressed by anyone. The imperative necessity to protect those precious rights is a lesson taught by all history and all human experience. Our founding fathers have lived through bitter years of the freedom struggle and seen an alien government trample upon the human rights of our citizens. It is for this reason that they introduced Article 21 in the Constitution and provided for the writs of habeas corpus, etc.

8. In UMMU SABEENA supra the Hon'ble

Supreme Court has held that in dealing with writ of

habeas corpus, a technical objection cannot be

entertained. The Hon'ble Supreme Court in the

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aforesaid decision has dealt with the case of a

detenue who was in preventive detention and in

para 19 and 20 has held as under:

19. Reference in this connection may be made to the Law of Habeas Corpus by James A. Scott and Charles C. Roe of the Chicago Bar [T.H. Flood & Company, Publishers, Chicago, Illinois, 1923] where the learned authors have dealt with this aspect in a manner which we should reproduce as we are of the view that the same is the correct position in law:

"A writ of habeas corpus is a writ of right of very ancient origin, and the preservation of its benefit is a matter of the highest importance to the people, and the regulations provided for its employment against an alleged unlawful restraint are not to be

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construed or applied with overtechnical nicety, and when ambiguous or doubtful should be interpreted liberally to promote the effectiveness of the proceeding. [Ware v. Sanders, 146 Iowa, 233, 124 N.W.

958]".

20. In this connection, if we may say so, the writ of Habeas Corpus is the oldest writ evolved by the Common Law of England to protect the individual liberty against its invasion in the hands of the Executive or may be also at the instance of private persons. This principle of Habeas Corpus has been incorporated in our Constitutional law and we are of the opinion that in a democratic republic like India where Judges function under a written Constitution and which has a chapter on Fundamental Rights, to protect individual liberty, the

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Judges owe a duty to safeguard the liberty not only of the citizens but also of all persons within the territory of India. The most effective way of doing the same is by way of exercise of power by the Court by issuing a writ of Habeas Corpus.

9. The aforesaid two judgments of Hon'ble

Supreme Court have not been noticed by a division

bench of this court while passing the order dated

19.04.2023 in WPHC No.100008/2023. In HOME

SECRETARY (PRISON) AND OTHERS supra, the

issue involved before the Hon'ble Supreme Court

was whether a High Court can direct the release of a

petitioner under the Government Order dated

01.02.2018. However, in the aforesaid decision, an

objection was raised to the maintainability of the

writ of habeas corpus in the light of the provisions

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contained in the Rules. The Hon'ble Supreme Court

dealt with the aforesaid objections and held in para

30 as under:

30. As already mentioned above, it is well settled law that even if the detenu is in private detention then also a writ of habeas corpus would lie. If the Rules are to be the masters and not the Constitution, then, probably in the Madras High Court no writ of habeas corpus would be entertained in the case of private detention. This would be against the spirit of the Constitution of India. Therefore, we are clearly of the view that reference to the Rules is of no aid whatsoever.

10. Thus, it is evident that the Hon'ble

Supreme Court has held that a writ of habeas

corpus is maintainable even in a case where the

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detenue is in preventive detention. Similarly in

KANU SANYAL supra, a constitution bench of

Hon'ble Supreme Court has dealt with the nature

and scope of writ of certiorari and it has no where

been held that the writ of habeas corpus does not lie

in case a detenue is in preventive detention. A

division bench of this court by placing reliance on

the decision in HOME SECRETARY (PRISON) AND

OTHERS AND KANU SANYAL supra has held that

in case of a preventive detention, writ of habeas

corpus does not lie. Even from the portions of

judgment extracted in the order dated 19.04.2023 it

cannot be gathered that Hon'ble Supreme Court in

HOME SECRETARY (PRISON) AND OTHERS AND

KANU SANYAL supra has anywhere held that writ

of habeas corpus is not maintainable in case of a

preventive detention. Therefore, the order dated

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19.04.2023 passed by division bench of this court in

WPHC No.100008/2023 is held to be per incuriam

and it is held that a writ of habeas corpus is

maintainable in case of preventive detention.

11. We may now advert to the case in hand.

In the instant case, the detenue's wife submitted a

representation on 02.01.2023 to the detaining

authority as well as the State Government. The

matter as referred to the Advisory Board on

02.01.2023. Thereafter, the detenue submitted a

representation on 05.01.2023 to the detaining

authority and the State Government. The

representation submitted by the detenue was

admittedly received by the State Government on

06.01.2023. the representation submitted by the

detneue's wife was also forwarded to the Advisory

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Board on 05.01.2023. However, it is pertinent to

note that even though, the State Government had

received the representation on 06.01.2023, no

decision on the representation was taken.

12. In ANKIT ASHOK JALAN supra, the

representation was received by the detaining

authority on 27.11.2019 and the matter was

referred to the Advisory Board on 05.12.2019.

Thereafter, the opinion of the Central Advisory

Board was submitted on 06.01.2020 and

14.01.2020 an order of confirmation of detention

was passed on representation submitted by the

detenue was rejected. The Hon'ble Supreme Court

while taking note of the decision in case of

'K.M.ABDULLA KUNHI VS. UNION OF INDIA',

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(1991) 1 SCC 476, in para 29 in ANKIT ASHOK

JALAN has held as under:

29. We now come to the 3rd question. The facts in the instant case indicate that the comments of the Sponsoring Authority in respect of the Writ Petition (Criminal) No.362 of 2019 Ankit Ashok Jalan vs. Union of India & Ors.representation were already received by the Detaining Authority. After receipt of letter on 27.11.2019 that the detenues were received in custody, the time for considering the representation started ticking for the Detaining Authority. But the representation was considered only on 14.01.2020 and the reason for such delayed consideration is that the report of the Central Advisory Board was awaited. We have already found that the Detaining Authority was obliged to consider the representation

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without waiting for the opinion of the Central Advisory Board. Thus, there was no valid explanation for non- consideration of the representation from 27.11.2019 till 14.01.2020. We must, therefore, hold that complete inaction on part of the Detaining Authority in considering the representation caused prejudice to the detenues and violated their constitutional rights.

13. In ANKIT ASHOK JALAN supra in para

18, the Hon'ble Supreme Court has held as under:

18. There can be no difficulty with regard to the applicability of the principles in the 1st and the 4th stage of the aforesaid categories. The difficulty may arise as regards the application of principles at the 2nd and the 3rd stage. But that difficulty was dealt with sufficient clarity in

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Jayanarayan Sukul15 and Haradhan Saha16 as stated hereinabove. If it is well accepted that the representation must be considered with utmost expedition; and the power of the Government is completely independent of the power of the Advisory Board;

and the scope of consideration is also qualitatively different, there is no reason why the consideration by the Government must await the decision by the Advisory Board

14. We have carefully gone through the

statement of objections filed on behalf of the

respondent. The representation on behalf of the

detenue, which was admittedly received by the State

Government on 06.01.2023 was not decided till

03.02.2023. The State Government waited for the

response of the Advisory Board, which was received

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by it on 20.01.2023. and thereafter, an order was

passed on 03.02.2023 rejecting the representation

submitted by the detenue. The representation