Karnataka High Court

Sri. Krishnappa vs State Of Karnataka on 9 January, 2024

Author: K.Somashekar

Bench: K.Somashekar

                               1


     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 9TH DAY OF JANUARY, 2024

                          PRESENT

            THE HON'BLE MR JUSTICE K.SOMASHEKAR

                            AND

            THE HON'BLE MR JUSTICE UMESH M ADIGA

     WRIT PETITION (HABEAS CORPUS) NO. 118 OF 2023


BETWEEN:

SRI. KRISHNAPPA
S/O LATE HUCHALLAPPA
AGED ABOUT 62 YEARS,
PERMANENT RESIDENT OF
GARATIGANA BELE VILLAE,
KASABA HOBLI, ANEKAL TALUK,
PRESENTLY R/AT 7TH CROSS,
MARAIYAPPA LAYOUT,
ANEKAL TOWN,
BENGALURU DISTRICT - 562 107                   ...PETITIONER

(BY SRI G M SRINIVASAREDDY, ADVOCATE)

AND:

1.     STATE OF KARNATAKA
       REPRESENTED BY ITS ADDITIONAL CHIEF SECRETARY,
       DEPARTMENT OF HOME,
       VIDHANA SOUDHA,
       BENGALURU - 560 001.

2.     THE UNDER SECRETARY TO
       GOVERNMENT OF KARNATAKA
       (LAW AND ORDER)
       VIDHANA SOUDHA,
       BENGALURU - 560 001

3.     THE DEPUTY COMMISSIONER AND
       DISTRCT EXECUTIVE MAGISTRATE,
       BENGALURU DISTRICT,
       K G ROAD,
                               2


     BENGALURU 560 009.

4.   THE COMMISSIONER OF POLICE
     BENGALURU DISTRICT,
     BENGALURU - 560 001.

5.   THE DEPUTY COMMISSIONER OF POLICE
     ANEKAL SUB DIVISION,
     HEBBAGODI,
     BENGALURU DISTRICT - 560 099.

6.   THE POLICE INSPECTOR
     ATTIBELE POLICE STATION,
     ATTIBELE, ANEKAL TALUK,
     BENGALURU DISTRICT - 562 107.
                                             ...RESPONDENTS
(BY SRI ANOOP KUMAR, HCGP)

     THIS WRIT PETITION HABEAS CORPUS IS FILED UNDER
ARTICLES ARTICLE 226 AND 227 OF THE CONSTITUTION OF INDIA,
PRAYING TO ISSUE A WRIT IN THE NATURE OF HABEAS CORPUS
OR ANY OTHER WRIT OR ORDER OR DIRECTION TO PRODUCE
DETENUE MANOJ KUMAR @ MANU TO QUASH THE DETENTION
ORDER DATED 11.08.2023 PASSED BY THE RESPONDENT NO.3
HEREIN   IN   NO.MAG(4)      GOO.KAYDHE/CR-1/2023-24   VIDE
ANNEXURE-A AND THE CONFIRMATION ORDER PASSED BY THE
2ND RESPONDENT IN NO.HD 399 SST 2023 DATED 21.09.2023
VIDE ANNEXURE-B.



     THIS WRIT PETITON HABEAS CORPUS COMING ON FOR
ORDERS    HAVING     BEEN     HEARD    THROUGH    PHYSICAL
HEARING/VIDEO CONFERENCE AND RESERVED FOR JUDGMENT ON
03.01.2024, COMING   ON FOR PRONOUNCEMENT, THIS        DAY,
UMESH M. ADIGA J., DELIVERED THE FOLLOWING:
                                   3


                              ORDER

1. One Krishnappa, who is the Father of the detenue by

name Sri. Manoj Kumar (hereinafter for short referred to as

'detenue') has filed this writ petition under Articles 226 and

227 of Constitution of India, challenging impugned detention

order passed by the respondents and sought for following

relief:

i. Issue a writ in the nature of Habeas Corpus or any other writ or order or direction/to produce detenue Manoj Kumar @ Manu and to quash the Detention Order dated 11.08.2023 passed by the Respondent No.3 herein in No.MAG(4) Goo.Kaydhe/CR-1/2023-24 vide Annexure - A. And the confirmation order passed by the 2nd respondent in No.HD 399 SST 2023 dated 21.09.2023 vides Annexure-B. ii. Pass such other order/orders as this Hon'ble Court deems fit, in the facts and circumstances of the case, including an order as to costs, in the interest of justice.

2. The grounds challenged as narrated in the writ petition

are that respondent - authority without application of mind

and only to harass detenue, illegally passed the impugned

detention order. The mother tongue of detenue is Kannada

and the documents furnished to him were in English and

translated copies were not furnished, therefore, he could not

represent his case properly. Detenue was arrested and

detained in judicial custody in Cr.No.176/2020 of

Kumabalagodu Police Station, registered for the offences

punishable under Section 143, 147, 148, 427, 341, 302, 307,

120(b), 201 and 212 read with Section 149 of IPC. The said

case is pending on the file of VII Additional Sessions court in

Bengaluru Rural District in S.C.No.154/2020 and till the date

of filing of the writ petition, he has been in judicial custody.

3. It is further contended that he submitted representation,

however, without hearing him, the said representation was

rejected by order dated 12.09.2023 vide Annexure - D.

Material documents relied by the respondents were not

supplied to the detenue, therefore, detenue could not defend

his case properly. With these reasons, writ petitioner prayed

to quash the impugned detention order passed by the

respondents and ordered to release the detenue.

4. The respondent - State, filed objections, denying the

contentions of the petitioner. The respondents have contended

that the respondents have considered in detail the facts of the

case and law on this point and passed impugned detention

order. The required documents, which were relied by the

respondents, were supplied to the detenue, which consists of

three volumes. Hence, it is incorrect contention of petitioner

that relevant documents were not supplied, to detenue.

Detenue has knowledge of speaking English and Kannada; and

he made representation to the respondent in English,

therefore, the contention that translated copies of documents

were not supplied to him is incorrect.

5. Respondents admitted that detenue was arrested on

13.08.2020 and been in custody. However, he being in the

Central Prison, through his henchmen, created law and order

problem and committed illegal acts for which the criminal

cases were registered against detenue and others. Detenue

has been disturbing public peace and public order. He is a

threat to the society and public order. With these reasons,

prayed to reject the writ petition.

6. We have heard the arguments of learned Advocate for

petitioner and learned High Court Government Pleader.

7. The learned advocate for petitioner would submit that

merely, 19 criminal cases were registered and out of them 3

cases were acquitted, is not a ground to detain the detenue

under the provisions of The Karnataka Prevention of

Dangerous Activities of Bootleggers, drug offenders, gamblers,

goondas, immoral traffic offenders and slum grabbers, video

and audio pirates Act, 1985 (hereinafter for short referred to

as 'Act 1985'). The said cases are for the period from 2013 to

2023 i.e., over a period of 10 years and the said cases are

falsely filed against detenue. Even when he has been in

judicial custody, four cases were registered against him. It

indicates that, the Police have prejudiced against him and

unnecessarily and falsely implicating him in the criminal cases.

Since 13.08.2020, he has been in judicial custody i.e., for last

about more than 3 years, he has been in judicial custody.

Therefore, question of detaining him again under Act, 1985 do

not arise. It clearly indicates that, without application of mind,

impugned orders are passed by the respondents. Even it is

not stated in the impugned order that respondents

apprehending release of detenue on bail. Even it is not stated

in the impugned order that respondents apprehending release

of detenue on bail.

8. The learned advocate for the petitioner further submits

that material documents relied by the respondents were not

supplied to the detenue, therefore, detenue could not defend

his case properly. The mother tongue of detenue is Kannada

and the documents furnished to him were in English and

translated copies were not furnished. Therefore, he could not

represent his case before respondents properly. With these

reasons, the learned advocate for the petitioner prayed for

allowing the writ petition.

9. The learned HCGP for the State has submitted that the

impugned detention order itself speaks of application of mind

by the concerned authority. All the necessary documents,

were furnished to the detenue, which were relied by the

respondents while passing the impugned orders. Detenue is a

notorious and criminal minded person. He has been creating

lot of disorders in the society. he and his team has been

committing several offences and creating terror in the mind of

the people, so that, whatever, he demands should be satisfied

by the public. He operates through his henchmen, indulge in

all sorts of criminal activities in and around Anekal Taluk.

Considering all these facts, the impugned orders were passed

and it does not call for interference by this Court. With these

reasons, prayed to dismiss the writ petition.

10. The learned Advocate for petitioner relied on the

judgment of Hon'ble Apex Court in the case of Ameena

Begaum vs. State of Telangana and others1.

In the above said judgment, it is observed by Hon'ble

Apex Court, that whenever a detention order is challenged

before the Constitutional Court, its legality has to be

considered on the following points:

(i) the order is based on the requisite satisfaction, albeit subjective, of the detaining authority, for, the absence of such satisfaction as to the existence of a matter of fact or law, upon which validity of the exercise of the power is predicated, would be the sine qua non for the exercise of the power not being satisfied;

(ii) in reaching such requisite satisfaction, the detaining authority has applied its mind to all relevant circumstances and the same is not based on material extraneous to the scope and purpose of the statute;

(iii) power has been exercised for achieving the purpose for which it has been conferred, or exercised for an improper purpose, not authorised by the statute, and is therefore ultra vires;

AIR 2023 Supreme Court 4273

(iv) the detaining authority has acted independently or under the dictation of another body;

(v) the detaining authority by reason of self- created rules of policy or in any other manner not authorised by the governing statute has disabled itself from applying its mind to the facts of each individual case;

(vi) the satisfaction of the detaining authority rests on material which is of rationally probative value, and the detaining authority has given due regard to the matters as per the statutory mandate;

(vii) the satisfaction has been arrived at bearing in mind existence of a live and proximate link between the past conduct of a person and the imperative need to detain him or is based on material which is stale;

(viii) the ground(s) for reaching the requisite satisfaction is/are such which an individual, with some degree of rationality and prudence, would consider as connected with the fact and relevant to the subject-matter of the inquiry in respect whereof the satisfaction is to be reached;

(ix) the grounds on which the order of preventive detention rests are not vague but are precise, pertinent and relevant which, with sufficient clarity, inform the detenu the satisfaction for the detention, giving him the

opportunity to make a suitable representation; and

(x) the timelines, as provided under the law, have been strictly adhered to.

In the above said judgment, it is also observed by their

Lordships that:

40. On an overall consideration of the circumstances, it does appear to us that the existing legal framework for maintaining law and order is sufficient to address like offences under consideration, which the Commissioner anticipates could be repeated by the Detenue if not detained. We are also constrained to observe that preventive detention laws-an exceptional measure reserved for tackling emergent situations-ought not to have been invoked in this case as a tool for enforcement of "law and order". This, for the reason that, the Commissioner despite being aware of the earlier judgment and order of the High Court dated 16th August, 2021 passed the Detention Order ostensibly to maintain "public order" without once more appreciating the difference between maintenance of "law and order" and maintenance of "public order". The order of detention is, thus, indefensible".

11. In this case, detention order was passed on the basis of

19 criminal cases were registered against the detenue for

various and different offences punishable under Sections 379,

326, 427, 504, 506, 384, 386, 387, 307, 302 of IPC, over a

period from 2013 to 2023. No materials are produced and no

reasons stated in the impugned order that whether the

concerned police seriously objected for grant of the bail

irrespective cases filed by the detenue in the 19 criminal cases

registered against the detenue and whether the bail orders

granted by the trial Court were challenged by the police in the

appellate forum.

It is mentioned in the impugned order that, condition of

bail were violated by the detenue, but no materials were

produced before the detention authority in this regard. As

held in the above said judgment, merely, the acts of the

detenue is affecting law and order situation is not sufficient. It

should disturb public order, then only, detention order could

be passed under the provisions of Act, 1985. Considering facts

and circumstances of present case, the law laid down by the

Hon'ble Apex Court is applicable and impugned detention order

passed by the respondent, is not tenable.

12. The learned advocate for petitioner has relied on the

judgment of Co-ordinate Bench of this Court, in the case of

Smt. R. Latha Vs. T. Madiyal, Commissioner of Police,

Bangalore City and others2 and others and would submit

that, in this case also, copy of the bail orders were not

supplied to the detenue and detenue filed list of cases,

2000(5) Kar. L.J 304 (DB)

wherein, such documents were not furnished. Provision of

Article 22(5) of Constitution of India, is not strictly followed,

hence, the impugned order needs to be quashed. The learned

HCGP would submits that all the copies of the documents were

supplied to the detenue, but he could not file list of

documents, which was supplied to detenue. Moreover, as per

the contention of the detenue, none of the copy of the bail

orders, in the criminal cases registered against the detenue

were supplied to him. There is no response to the said list by

the learned HCGP, that indicate that said documents were not

supplied.

13. In the judgment, the case of Smt.R. Latha T. Madiyal

(referred supra) the Co-ordinate Bench of this Court, observed

that:

"KARNATAKA PREVENTION OF DANGEROUS ACTIVITIES OF BOOTLEGGERS, DRUG-

OFFENDERS, GOONDAS, IMMORAL TRAFFIC OFFENDERS AND SLUM GRABBERS ACT, 1985, Section 3(2)- Constitution of India, Article 22(5)

- Preventive detention - Subjective satisfaction of authority making order for - Vital documents to be relied upon by detaining authority to satisfy itself that detention of person is necessary to prevent him from acting in manner prejudicial to maintenance of public order - In case of person who is on bail at time of passing detention order, his bail application and bail order passed thereon are vital documents and same should necessarily be placed before detaining authority and copies thereof should be

supplied to person against whom detention order is passed - Non-compliance with requirement would render detention order illegal and void ab initio".

In the above said case, the copies of the bail application

and the order passed thereon with the conditions, are not

supplied to the detenue. In the impugned order, it is

mentioned that, detenue had violated conditions of the bail

and continued to commit the offences. Under such

circumstances, the said bail orders are relevant documents to

be considered by detaining authority and such documents

were not placed before the detaining authority. Hence, the

impugned order, is not tenable.

14. The detenue has been in judicial custody since

13.08.2020. This fact is not disputed by the respondents. It

is not the apprehension of the respondents that detenue may

get bail in the said criminal case. Undisputedly, detenue is in

a custody for last about 3 years 4 months. when he is already

in the custody, question of detaining him under Act, 1985 was

not warranted. It indicates non-application of mind by the

concerned authorities. In the case of Dharmendra

Suganchand Chelawat and another V/s. Union of India

and others3.

In the above case, it is observed by Hon'ble Apex court

that:

"An order for detention can be validly passed against a person in custody and for that purpose it is necessary that the grounds of detention must show that (i) the detaining authority was aware of the fact that the detenu is already in detention; and (ii) there were compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression "compelling reasons" in the context of making order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied (a) the detenu is likely to be released from custody in the near future and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities".

The impugned orders of detention is contrary to the law

laid down in the above said judgment of the Hon'ble Apex

AIR (1990) 3 SCC 1196

Court. On this count also, the impugned detention order is not

tenable. The learned advocate for petitioner would submit

that under Section 3(2) of Act, 1985 at a time, the detention

cannot be ordered for one year but it should be for three

months each. In this case, detention order was passed for one

year and hence not tenable. Said argument is not acceptable.

In this case, learned District Magistrate recommended for

passing of detention order by the State Government and

submitted his order with materials to State Government

following procedure as provided under the provisions of Act

1985 and passed impugned order of detention for one year

under Section 13 of Act, 1985. The State Government has

such jurisdiction. Hence, on that ground, impugned order

cannot be quashed.

15. For the aforesaid discussions, we pass the following:

ORDER

i. The writ petition is allowed.

ii. The impugned order dated 11.08.2023 passed by Respondent No.3 in No.MAG(4) Goo.Kaydhe/CR- 1/2023-24 vide Annexure - A and the confirmation order dated 21.09.2023 in No.HD 399 SST 2023 passed by Respondent No.2 vide Annexure-B are hereby quashed.

iii. The Respondents are directed to release the detenue, viz., Manoj Kumar Manu @ Jackie S/o Krishnappa, 27 years, in MAG(5) Goonda Act/CR- 01/2023-24 dated 11.08.2023 (Annexure -C) forthwith in this case, if not required to be detained in the prison, in any other case.

iv. Registry is directed to send the operative portion of this order to the concerned Jail Authority and learned Distirct Magistrate, forthwith for compliance.