Karnataka High Court
Smt. Indramma vs Commissioner Of Police on 16 April, 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF APRIL, 2024
PRESENT
THE HON'BLE MRS. JUSTICE ANU SIVARAMAN
AND
THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
W.P.H.C. NO.23 OF 2024
BETWEEN:
SMT. INDRAMMA
W/O NARASIMHEGOWDA
AGED ABOUT 46 YEARS
KOTTIGEHALLI VILLAGE
JAGINAGERE POST
SANTHEBACHAHALLI HOBLI
K.R.PET TALUK
MANDYA DISTRICT-571 436 ... PETITIONER
(BY SHRI. KIRAN S. JAVALI, SENIOR COUNSEL A/W.
SHRI. K. CHANDRASHEKARA, ADVOCATE)
AND:
1. COMMISSIONER OF POLICE
NO.1, INFANTRY ROAD
BENGALURU-560 001
BY B. DAYANANDA, I.P.S.,
2. STATE OF KARNATAKA
BY SECRETARY
HOME DEPARTMENT
VIDHANA SOUDHA
BANGALORE-560 001
2
3. THE SUPERINTENDENT
CENTRAL PRISON
BENGALURU-560 300 ... RESPONDENTS
(BY SHRI. B.A. BELLIAPPA, SPP-I A/W.
SHRI. M.V. ANOOP KUMAR, HCGP)
THIS WPHC IS FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA, PRAYING TO DECLARE THE DETENTION
OF SHRI MANJUNATHA C.N @ SANJU @ S/O NARASIMHEGOWDA,
BY ORDER NO.14/CRM(4)/DTN/2023 DATED 21.12.2023
(ANNEXURES-A AND B) PASSED BY RESPONDENT NO.1 AND
APPROVED BY RESPONDENT NO.2 BY ORDER NO.HD 541 SST
2023 DATED 28.12.2023 (ANNEXURE-E) AND CONFIRMED BY
RESPONDENT NO.2 BY ORDER NO.HD 541 SST 2023 DATED
30.01.2024 (ANNEXURE-F) AS ILLEGAL AND VOID ABINITIO.
THIS WPHC HAVING BEEN HEARD AND RESERVED FOR
ORDERS ON 05.04.2024 AND COMING ON FOR PRONOUNCEMENT
OF ORDERS THIS DAY, ANU SIVARAMAN J., PRONOUNCED THE
FOLLOWING:-
ORDER
This writ petition is filed seeking a writ of habeus corpus
in respect of Shri. Manjunatha C.N @ Sanju
S/o. Narasimhegowda, who is detained in the Central Prison,
Bengaluru, in pursuance of an order of detention issued under
Section 2(h) read with Section 2(a)(v) of the Karnataka
Prevention of Dangerous Activities of Bootleggers,
Drug-Offenders, Gamblers, Goondas, Immoral Traffic
Offenders and Slum-Grabbers Act, 1985 (hereinafter referred
to as 'Goonda Act') - Annexure 'A' detention order passed by
the first respondent - Commissioner of Police, Bengaluru
dated 21.12.2023. (It's true English translation being
produced as Annexure 'B'). The Grounds of Detention, which
were furnished to the detenue, are produced as Annexure 'C'
and it's English translation at Annexure 'D'. The copy of the
documents furnished in Kannada Language is also furnished
as Annexure 'E' along with their English translation. The
order of detention was confirmed by the Government for a
period of 12 months by Annexure 'F' - Order dated
30.01.2024.
2. We have heard Shri. Kiran S. Javali, learned Senior
counsel appearing for the petitioner as instructed by
Shri. K. Chandrashekara, Advocate for the petitioner as well
as Shri. B.A. Belliappa, learned SPP-I along with
Shri. M.V. Anoop Kumar, learned High Court Government
Pleader appearing for the respondents.
3. The mother of the detenue is the petitioner before
us. Though several grounds are urged in the writ petition, at
the time of hearing of the writ petition, the learned senior
counsel appearing for the petitioner limited his contention to
a sole ground, which according to him vitiates the prevented
detention of the petitioner's son. It is contended that, it is
well settled law that a person, who is placed under preventive
detention has a right to make a representation to the
detaining authority against his detention. It is submitted that
this right to make a representation to the detaining authority
is different and distinct from the right to make the
representation before the Government and the Advisory
Board. It is contended that in a case where the detaining
authority is not the Government, Article 22(5) of the
Constitution of India specifically provides that there has to be
an opportunity given to the detenue to make a representation
against the detention to the detaining authority. The
provisions of the Goonda Act, provides for an opportunity to
file a representation before the Government as well as the
Advisory Board.
4. Relying on the judgments of the Apex Court as
also of this Court, the learned senior counsel appearing for
the petitioner contends that where the right to submit the
representation before the detaining authority and the State
Government is not made known to the detenue specifically,
separately and distinctly, the order of detention would stand
vitiated. It is submitted that the right to submit a
representation can, under no circumstances, be seen as a
formality and no prejudice need be proved by the petitioner
in a case where what is under challenge is an order of
preventive detention. It is contended that in the instant case,
the detenue was provided with the grounds of detention, but
he was informed only that he would have a right to make a
representation to the detaining authority "or" to the State
Government and that his right to make an effective
representation before the detaining authority was defeated by
the said wording since he was not told that he had a right to
make a representation both before the detaining authority
and the Government. It is submitted that the right to make a
representation before the detaining authority flows from
Article 22(5) of the Constitution of India and in a case where
such right is not specifically informed to the detenue, the
order of detention would stand vitiated on that count alone
and nothing further need be established by the petitioner.
5. In support of the said contention, the learned
senior counsel appearing for the petitioner placed reliance on
the decisions of the Apex Court in the cases of
Kamleshkumar Ishwardas Patel v. Union of India and
Others1; State of Maharashtra and others v. Santosh
Shankar Acharya2; and a Bench decision of this Court in
Syed Abdul Madani v. The State of Karnataka and
others3. The earlier judgments of the Apex Court in
Smt. Icchu Devi Choraria v. Union of India and Others4
and Smt. Shalini Soni v. Union of India and others5 are
also relied on.
6. The learned High Court Government Pleader
appearing for the respondents, on the other hand, contends
that the grounds raised in the writ petition against the order
of detention are absolutely untenable and all the legal
formalities that are required to be complied with had been
complied with, in full, by the respondents in the instant case.
With regard to the specific grounds urged by the learned
(1995) 4 SCC 51
(2000) 7 SCC 463
WP HC No.51/2023 Disposed on 07.09.2023
(1980) 4 SCC 531
(1980) 4 SCC 544
senior counsel, the learned High Court Government Pleader
contends that the grounds of detention and all copies of the
documents supporting the same had been made available to
the detenue in the language in which he is conversant in
Kannada and that he was also specifically told of his right to
make a representation to the detaining authority, to the State
Government as well as to the advisory board. It is submitted
that the detenue was very well aware that he could make the
representation against his detention before the detaining
authority. It is stated that he chose not to make a
representation either before the detaining authority or the
State Government and had made a representation only
before the advisory board. It is stated that the records of
the case would reveal that the Advisory Board had considered
the representation made by the detenue and had found that
there was no error in the order of detention. It is submitted
that the contention that the detenue was confused by the
language employed by the detaining authority and that he did
not know that he could make a representation before the
detaining authority as well as before the State Government is
absolutely baseless and is only a hypertechnical plea taken on
an experimental basis. It is contended that the specific right
to make a representation before the detaining authority
having been highlighted and informed to the detenue, the
fact that he did not choose to make a representation was a
conscious decision and that cannot now be used to attempt to
challenge an order of detention which is made in public
interest and is perfectly legal and sustainable. It is
contended that in his representation made before the
advisory board, the detenue had not raised any contention as
to any confusion which arose in his mind and therefore it is
clear that the said contention is only an after thought which is
made for the purpose of filing of this writ petition.
7. We have considered the contentions advanced on
either side, we have also perused the judgments relied on by
the learned senior counsel appearing for the petitioner, the
pleadings of the parties and the materials placed on record by
the respondents i.e., the original file of the detention. We
notice that the order of detention was served on the detenue.
The grounds of detention were also made available to the
detenue in Kannada Language in which he is conversant. The
copies of documents have also been served to the detenue.
In the grounds of detention dated 21.12.2023, the detenue is
specifically informed that if he wishes to make any
representation to the detaining authority, he may do so and
forward the same through the Jail Superintendent of the
Central Prison where he is detained or if he desires to make
any representation through the Government with regard to
his detention he may do so through the Jail Superintendent of
the Central Prison, Bengaluru. He is further informed that if
he wishes to make a representation to the advisory board
against the detention order, he may do so and address it to
the Chairman, Advisory Board, constituted under the Act and
submit it through the Jail Superintendent of the Central
Prison, Bengaluru. It is therefore clear that the detenue had
been informed of his right to make the representation before
the detaining authority as well as before the State
Government and the advisory board.
8. The only contention raised by the learned senior
counsel appearing for the petitioner is that the use of the
word 'or' in reference to the right to make the representation
before the detaining authority as well as the State
Government instead of the word 'and' has led to a situation
where the detenue was confused as to the person to whom
he should address in his representation.
9. The judgment of a co-equal Bench of this Court in
Syed Abdul Madani's case (supra), which was relied on by the
learned counsel for the petitioner is delivered in a case where
the detenue had not been informed of his right to make
representations both before the State Government as well as
the Advisory Board. The detenue therefore, was not aware of
his right to make such representations and had therefore
make a representation only before the Advisory Board. In
the instant case, the right to make the representation before
the detaining authority, the Government as well as before the
Advisory Board are specifically informed to the detenue.
10. Having considered the contentions advanced and
having gone through the judgments relied upon, we are of
the definite opinion that the detenue having been given the
right to make his representation before the detaining
authority, the Government and the advisory board cannot be
said to have been deprived of any of his legal rights only on
account of using of the word 'or' instead of the word 'and' in
the grounds of detention, which was served on him. He has
been specifically informed of his right to make the
representations before all the three authorities. He
consciously chose to make the representation only before the
advisory board. In the representation made before the
advisory board also, he has not raised any contention as to
the reason why he did not make a representation before the
detaining authority or the Government.
11. In the above factual situation, we are of the
opinion that the contentions raised to the effect that the
wording used by the detaining authority while serving the
grounds of detention has led to his inability to make a
representation before the detaining authority cannot be
accepted. We are well aware of the facts that the decisions
of the Apex Court hold that prejudice need not be proved
where procedural safeguards are not complied with in cases
of preventive detention. However, in a case like a present
one, where the separate rights to make a representation are
specifically informed to the detenue, we are not inclined to
hold that the mere use of the word 'or' in reference to the
representation before the detaining authority and the
Government would lead to a situation where the detenue's
rights to make a representation are defeated.
12. In the above view of the matter, we are of the
opinion that the grounds raised in challenge of the order of
detention are devoid of merits. The writ petition therefore
fails and the same is accordingly dismissed.
Sd/-
JUDGE
Sd/-
JUDGE
cp*
