Karnataka High Court
Smt Jayamma vs Commissioner Of Police on 4 March, 2024
Author: K.Somashekar
Bench: K.Somashekar
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NC: 2024:KHC:8965-DB
WPHC No. 1 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF MARCH, 2024
PRESENT
THE HON'BLE MR JUSTICE K.SOMASHEKAR
AND
THE HON'BLE MR JUSTICE RAJESH RAI K
WPHC NO. 1 OF 2024
BETWEEN:
SMT.JAYAMMA,
W/O LATE RAMANNA,
AGED ABOUT 69 YEARS,
RESIDING AT SHETTIPURA,
HALAGERE POST,
AMRUTHUR HOBLI,
KUNIGAL TALUK,
TUMKUR DISTRICT-572 111.
...PETITIONER
(BY SRI. KIRAN S JAVALI, SENIOR COUNSEL
SRI. CHANDRASHEKARA K, ADVOCATE)
Digitally signed by
K S RENUKAMBA
Location: HIGH AND:
COURT OF
KARNATAKA
1. COMMISSIONER OF POLICE,
NO.1, INFANTRY ROAD,
BENGALURU-560 001.
BY SRI B DAYANANDA, IPS.
2. STATE OF KARNATAKA
BY SECRETARY,
HOME DEPARTMENT(LAW & ORDER)
VIDHANA SOUDHA,
BENGALURU-560 001.
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WPHC No. 1 of 2024
3. SENIOR SUPERINTENDENT,
CENTRAL PRISON,
BENGALURU-560 100.
...RESPONDENTS
(BY SRI. ANOOP KUMAR, HCGP)
THIS WPHC IS FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA, PRAYING TO a) DECLARE THE
DETENTION OF SRI. S.R. JAGADISHA @ JAGGA @ TAMIL, S/O
LATE RAMANNA, BY ORDER NO.13/CRM(4)/DTN/2023 DATED
23.11.2023 (ANNEXURE-A AND B) PASSED BY RESPONDENT
NO.1 AND APPROVED BY THE RESPONDENT NO.2 BY ORDER
NO.HD 502 SST 2023 DATED 02.12.2023 (ANNEXURE-E) AND
CONFIRMED BY THE RESPONDENT NO.2 BY ORDER NO.HD SST
2023 DATED 18.12.2023 (ANNEXUR-F ) AS ILLEGAL AND VOID
ABINITIO.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY,
RAJESH RAI K, J., MADE THE FOLLOWING:
ORDER
Petitioner being the mother of the detenue namely, Sri.
S.R Jagadisha @ Jagga @ Tami has approached this Court
praying for a Writ in the nature of Habeas Corpus, by declaring
the detention order No.13/CRM(4)/DTN/2023 dated
23.11.2023 and approved by respondent No.2 by order No.HD
502 SST 2023 dated 02.12.2023 and confirmed by respondent
No.2 by order No.HD 502 SST 2023 dated 18.12.2023 as
illegal and void ab initio.
2. Brief factual matrix of the case are as follows:-
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One Sri. S.R Jagadisha @ Jagga @ Tami (hereinafter
called as 'detenue') who is alleged to be an offender and also a
threat to the society, as he was involved in several crimes
since 2005, the respondent No.1 passed an order of detention
in consonance with the provisions of The Karnataka Prevention
Of Dangerous Activities Of Bootleggers, Drug-Offenders,
Gamblers, Goondas, [Immoral Traffic Offenders, Slum-
Grabbers And Video or Audio Pirates] Act, 1985 (hereinafter
referred as 'Goonda Act') vide order bearing
No.13/CRM(4)/DTN/2023 dated 23.11.2023, as per
Annexures-'A' and 'B' which was approved by respondent No.2
by order No.HD 502 SST 2023 dated 02.12.2023 as per
Annexure-'E' and confirmed by respondent No.2 by order
No.HD 502 SST 2023 dated 18.12.2023 as per Annexure-'F'.
The same was communicated to the detenue along with the
compilation of documents explaining his detention on
23.11.2023. He was also detained in Central Prison,
Parappana Agrahara, Bengaluru.
3. Subsequently, the detention order passed by the
respondent No.1 was confirmed by respondent No.2 as stated
above and subsequently on 04.12.2023, the respondent-
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authority placed the detention order and approval order before
the Advisory Board so also the detenue made the
representation to the Advisory Board. The respondent No.2
has forwarded the said representation to the Advisory Board
on 04.12.2023. Later, on 07.12.2023, the detenue was
produced before the Advisoy Board and the proceedings was
conducted by the Advisory Board and rejected the application
filed by the detenue and the same was informed to him on
08.12.2023. In addition to that, the Advisory Board forwarded
the proceedings dated 07.12.2023 along with report dated
08.12.2023. Thereafter, respondent No.2, upon the receipt of
the opinion of the Advisoty Board, confirmed the detention
order passed on the detenue vide order dated 18.12.2023.
Though, the detenue submitted a representation to respondent
No.2, thereafter the same was rejected by respondent No.2
vide order dated 22.12.2023. Hence, the mother of the
detenue challenged the detention order passed by the
respondent Nos.1 and 2 under this writ petition.
4. We have heard the learned Senior counsel Sri.Kiran
S Jawali for Sri. Chandrashekara K, for petitioner so also the
learned HCGP Sri. Anoop Kumar for respondents.
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5. The primary contention urged by the learned
Senior counsel for petitioner is that, the detenue has been
furnished a bound volume of documents which runs hundreds
of pages in respect of the grounds of detention. The detaining
authority in the order of grounds of detention specifically
stated that, the detenue knew only kannada language which is
forthcoming in Annexure-'C' to the writ petition. In such
circumstance, the detaining authority ought to have furnished
all the said relied documents in Kannada language to the
detenue for submitting a better representation. However, the
documents at Page Nos.5-11, 14, 24, 25, 35, 38-55, 94, 97-
104, 103-131, 153, 154, 159-164, 165, 179-195, 215-239,
255-282, 315-321, 322-328 are in English language and the
translation thereof in Kannada language have not been
furnished. Therefore, non furnishing of the documents relied
upon by the detaining authority in a language known to the
detenue, would vitiate the order of detention, since the same
amounts to violation of Article 22(5) of the Constitution of
India, but also in violation of Section 8 of the Goonda Act,
thereby ceasing his right to file a representation against the
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order of detention. In support of his contention, the learned
Senior counsel relies the following judgment:
1. AIR 1981 SC 814 Kamala Kanhaiyalal
Khushalani vs. State of Maharastra.
2. AIR 1969 SC 43 Hadibadhi Das vs.
District Magistrate.
3. 1982 (3) SCC 440 - AIR 1982 SC 1500
Ibrahim Ahmed Batti vs. State of
Gujarat.
4. W.P.HC No.129/2006 - Smt.Doulath
Unnissa vs. Commissioner of Police.
5. W.P.HC No.97/2015 - Smt. P.
Vijayalakshmi vs. Comissioner of Police.
6. W.P.HC No.41/2017 - Haji T.P Adbul
Azeez vs. State of Karnataka.
7. W.P.HC No.87/2017 - Smt.Jayamma vs.
Commissioner of Police.
6. Per contra, the learned HCGP would vehemently
contends that even though some of the documents relied by
the detaining authority have not been furnished in a language
known to the detenue, those documents are totally irrelevant.
As such, he would submit that, it is not necessary that each
and every documents relied upon by the detaining authority
requires to be translated in the language known to the
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detenue. He would further contend that the detaining
authority has relid upon various criminal cases which depicts
that, the detenue involved in 16 criminal cases previously and
was detained under 'Goonda' Act in the year 2017 and
subsequently, he approached this Court in WPHC No.89/2017
and this Court quashed the detention order dated 06.09.2017.
In spite of that, the detenue continued his criminal activites
and again indulged in 6 criminal cases under different heads of
crime. As such, the detaining authority rightly passed the
detention order since due to the act of the detenue, 'the public
order is affected'. Accordingly, the learned AGA prays to
dismiss the writ petition.
7. We have bestowed our anxious consideration to the
submission made by both the counsel and having heard the
learned counsel appearing for the petitioner and learned HCGP
for respondents, the point that would arise for our
consideration is;
"Whether the order of detention i.e., order
No.13/CRM(4)DTN/2023 dated 23.11.2023
and approved by respondent No.2 by order
No.HD 502 SST 2023 dated 02.12.2023 and
confirmed by respondent No.2 by order
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No.HD 502 SST 2023 dated 18.12.2023 is
sustainble under law ?"
8. The impugned orders supra are passed keeping in
view Sections 3, 8, 10, 11 and 13 of Goonda Act. For the sake
of convenience same are produced herewith -
"3. Power to make orders detaining
certain persons.- (1) The State Government
may, if satisfied with respect to any bootlegger
or drug-offender or gambler or goonda or 1
[Immoral Traffic Offender or Slum-Grabber or
Video or Audio pirate] 1 that with a view to
prevent him from acting in any manner
prejudicial to the maintenance of public order, it
is necessary so to do, make an order directing
that such persons be detained.
(2) If, having regard to the circumstances
prevailing or likely to prevail in any area within
the local limits of the jurisdiction of a District
Magistrate or a Commissioner of Police, the
State Government is satisfied that it is
necessary so to do, it may, by order in writing,
direct that during such period as may be
specified in the order, such District Magistrate or
Commissioner of Police may also, if satisfied as
provided in sub-section (1), exercise the powers
conferred by the sub-section :
Provided that the period specified in the
order made by the State Government under this
sub-section shall not, in the first instance,
exceed three months, but the State Government
may, if satisfied as aforesaid that it is necessary
so to do, amend such order to extend such
period from time to time by any period not
exceeding three months at any one time.
(3) When any order is made under this
section by an officer mentioned in sub-section
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(2), he shall forthwith report the fact to the
State Government together with the grounds on
which the order has been made and such other
particulars as, in his opinion, have a bearing on
the matter and no such order shall remain in
force for more than twelve days after the
making thereof, unless, in the meantime, it has
been approved by the State Government.
8. Grounds of order of detention to be
disclosed to persons affected by the order-
(1) When a person is detained in pursuance of a
detention order, the authority making the order
shall, as soon as may be, but not later than five
days from the date of detention, communicate
to him the grounds on which the order has been
made and shall afford him the earliest
opportunity of making a representation against
the order to the State Government.
(2) Nothing in sub-section (1) shall require
the authority to disclose facts which it considers
to be against the public interest to disclose.
10. Reference to Advisory Board- In
every case where a detention order has been
made under this Act the State Government shall
within three weeks from the date of detention of
a person under the order, place before the
Advisory Board constituted by it under section 9,
the grounds on which the order has been made
and the representation, if any, made against the
order, and in case where the order has been
made by an officer, also the report by such
officer under sub-section (3) of section 3.
11. Procedure of Advisory Board- (1) The
Advisory Board shall after considering the
materials placed before it and, after calling for
such further information as it may deem
necessary from the State Government or from
any person called for the purpose through the
State Government or from the person
concerned, and if, in any particular case, the
Advisory Board considers it essential so to do or
if the person concerned desire to be heard, after
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hearing him in person, submit its report to the
State Government, within seven weeks from the
date of detention of the person concerned.
(2) The report of the Advisory Board shall
specify in a separate part thereof the opinion of
the Advisory Board as to whether or not there is
sufficient cause for the detention of the person
concerned.
(3) When there is a difference of opinion
among the members forming the Advisory
Board, the opinion of the majority of such
members shall be deemed to be the opinion of
the Board.
(4) The proceedings of the Advisory Board
and its report, excepting that part of the report
in which the opinion of the Advisory Board is
specified, shall be confidential.
(5) Nothing in this section shall entitle any
person against whom a detention order has
been made to appear by any legal practitioner in
any matter connected with the reference to the
Advisory Board.
13. Maximum period of detention- The
maximum period for which any person may be
detained, in pursuance of any detention order
made under this Act which has been confirmed
under section 12 shall be twelve months from
the date of detention.
(emphasis supplied by me)
9. On careful perusal of these statutory provisions, it
is the contention of the petitioner that, huge number of
documents were relied upon by the detaining authority and a
number of documents specified by him i.e., Page Nos.5-11, 14,
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24, 25, 35, 38-55, 94, 97-104, 103-131, 153, 154, 159-164,
165, 179-195, 215-239, 255-282, 315-321, 322-328 are in
English language and the translation thereof in Kannada
language have not been furnished.
10. We have carefully perused the grounds of
detention dated 23.11.2023, wherein, it is stated that the
detenue has studied upto fourth standard in Government
Primary School, Shettipura, Amruthur Hobli, Kunigal Taluk,
Tumkur District and he can speak, read, write and understand
only Kannada language. This being the scenario, as rightly
contended by the learned Senior counsel, non furnishing of
relied upon documents in the language known to the detenue,
has constituted non communication of the relied documents
which violates Article 22(5) of Constitution of India. Though,
the learned HCGP would submit that those documents are not
primary documents and non furnishing of the same does not
violate the facet of Article 22(5) of Constitution of India. On
careful persual, the respondent-authority failed to supply not
only the copy of the judgment, but also the rowdy sheet
permission memo, FIR, Wound Certificate, Bail Orders, FSL
reports, Court order sheets pertaining to different crime
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numbers. In such circumstances, when the detenue knows
only Kannada language, certainly, the rights of detenue will be
affected to submit a effective representation before the
respondent-autority so also before the Advisory Board by
reading the entire documents relied by the authority for his
detention. The Hon'ble Apex Court and this Court, time and
again held that, if there is a failure by the State in furnishing
the translated copies of the relevant material to the detenue,
the same is illegal.
11. Nevertheless, the detenue was previously detained
under Goonda Act in the year 2017 and this Court in WPHC
No.89/2017 quashed the said order on 06.09.2017 for the very
same reason that, the detaining authority failed to provide the
translated copies of the documents relied upon by the
detaining authority to the language known to the detenue. In
spite of the same, the respondent Nos.1 and 2 though passed
a similar order of detention and committed the same error by
not furnishing the translated copies as discussed supra. This
being the settled position of law, viewed from the facet of the
Goonda Act, so also the constitutional mandates, the
impugned order deserves to be quashed. Accordingly, we hold
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the point raised above in favour of the petitioner and pass the
following:-
ORDER
i. The petition is allowed.
ii. The impugned detention order passed by
respondent No.1 in
No.13/CRM(4)/DTN/2023 dated
23.11.2023 and approved by respondent
No.2 by order No.HD 502 SST 2023
dated 02.12.2023 and confirmed by
SST 2023 dated 18.12.2023 stand
quashed.
iii. Consequently, the detenue-Sri.S.R
Jagadisha @ Jagga @ Tami S/o Late
Ramanna is directed to set at liberty
forthwith.
iv. However, the Registry is directed to
communicate this order to respondent
No.3 to release the detenue forthwith, in
case if he has not needed in any other
cases.
Sd/-
JUDGE
Sd/-
JUDGE
HKV
