Karnataka High Court

Smt. Dayavathi vs The State Of Karnataka on 3 September, 2024

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                                                          NC: 2024:KHC:35857-DB
                                                           WPHC No. 50 of 2024



                           IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                             DATED THIS THE 3RD DAY OF SEPTEMBER, 2024

                                              PRESENT

                              THE HON'BLE MR JUSTICE V KAMESWAR RAO

                                                 AND

                                THE HON'BLE MR JUSTICE RAJESH RAI K

                                        WPHC NO. 50 OF 2024

                      BETWEEN:

                            SMT. DAYAVATHI
                            W/O RAVINDRA POOJARY
                            AGED ABOUT 56 YEARS,
                            NO.9-63, PRASHANTI ROAD,
                            PADAVVU SHAKTHINAGAR,
                            NEAR PRASHANTH CLINIC,
                            SHAKTHINAGAR, MANGALURU TALUK,
                            DK DISTRICT-575016
                            DETENUE. SRI JAYAPRASHANTH @ J P
                                                                  ...PETITIONER
                      (BY SRI. ARUN SHYAM, SENIOR COUNSEL FOR
Digitally signed by       SRI. SUYOG HERELE.E, ADVOCATE)
HARIKRISHNA V
Location: HIGH        AND:
COURT OF
KARNATAKA
                      1.    THE STATE OF KARNATAKA
                            REPRESENTED BY ITS
                            ADDITIONAL CHIEF SECRETARY TO GOVERNMENT,
                            HOME DEPARTMENT, VIDHANA SOUDHA,
                            BENGALURU-560 001.

                      2.    THE UNDER SECRETARY TO GOVERNMENT
                            (LAW AND ORDER)
                            GOVERNMENT OF KARNATAKA,
                            HOME DEPARTMENT,
                            VIDHANA SOUDHA,
                            BENGALURU-560 001.
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                                   NC: 2024:KHC:35857-DB
                                    WPHC No. 50 of 2024



3.   THE COMMISSIONER OF POLICE,
     MANGALURU-575 001.

4.   THE SUPERINTENDENT
     CENTRAL PRISON BENGALURU
     PARAPPANA AGRAHARA,
     BENGALURU-560 068.
                                           ...RESPONDENTS
(BY SRI. BELLIAPPA, SPP-I FOR
    SRI. ANOOP KUMAR, HCGP FOR R1 TO R4)

     THIS WPHC IS FILED UNDER ARTICLES 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, QUASHING OF THE DETENTION ORDER
DATED 19.03.2024 PASSED IN NO.NO.MAG/02/MAM NA/2024
AND     ORDER     DATED    19.03.2024    PASSED     IN
NO.MAG/01/02/MGC/2024 PASSED BY RESPONDENT NO.3 THE
CONFIRMATION ORDER DATED 26.03.2024 IN GO NO.HD 130
SST 2024, BENGALURU PASSED BY RESPONDENT NO.2, THE
ORDER DATED 28.03.2024 PASSED IN NO.HD 130 SST 2024
BY RESPONDENT NO.2 AND THE ORDER DATED 05.04.2024
PASSED IN NO.M.A.G. - 1/02(1)/MAM NA/2024 PASSED BY
RESPONDENT NO.3 WHEREBY THE REPRESENTATION MADE BY
THE DETENUE SRI.JAYPRASHANTH @JP CAME TO BE REJECTED
AND THE ALSO THE ORDER DATED 22.04.2024 PASSED BY THE
RESPONDENT NO.2 IN NO.HD 130 SST 2024 THEREBY
DETAINING THE DETENUE IN CENTRAL PRISON, PARAPPANA
AGRAHARA, BENGALURU FOR A PERIOD OF ONE YEAR
BEGINNING FROM 19.03.2024 UNDER THE PROVISIONS OF
KARNATAKA PREVENTION OF DANGEROUS ACTIVITIES,
BOOTLEGGERS, DRUG OFFENDERS, GAMBLERS, GOONDAS,
IMMORTAL TRAFFICKING OFFENDERS, SLUM GRABBERS AND
VIDEO OR AUDIO PIRATES ACT, 1985 (HEREAFTER REFERRED
TO AS THE 'ACT' FOR SHORT) A/W CERTAIN OTHER
CONSEQUENTIAL RELIEFS (PRODUCED AT ANNEXURE - A, B, C,
D AND E).
    THIS PETITION, COMING ON FOR ORDERS, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:

CORAM:   HON'BLE MR JUSTICE V KAMESWAR RAO
         and
         HON'BLE MR JUSTICE RAJESH RAI K
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                                            NC: 2024:KHC:35857-DB
                                             WPHC No. 50 of 2024



                        ORAL ORDER

(PER: HON'BLE MR JUSTICE RAJESH RAI K)

Petitioner in this writ petition has assailed the order of

detention dated 19.03.2024 passed by respondent No.3 bearing

No.MAG/02/MAM NA/2024, subsequent confirmation order

dated 26.03.2024 bearing No.HD 130 SST 2024 and extension

order dated 22.04.2024 bearing No.HD 130 SST 2024 passed

by respondent No.2.

2. Petitioner, who is the mother of the detenu-Sri.

Jayaprashanth @ JP, is knocking the doors of the writ Court,

seeking relief in the nature of Habeas Corpus, aggrieved by the

orders referred supra.

3. The facts-in-brief that are apposite for

consideration of the case on hand as borne out from the

pleadings are as follows:

The son of the petitioner namely Sri Jayaprashanth @ JP

is indulged in anti-social and criminal activities and he is a

nuisance to the law and order, which are in violation of public

peace by committing offences endangering the human body

and also property so also communal violence. From the year

2016 to 2023, the detenue involved in as many as 8 criminal

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cases under different heads of crime within the jurisdiction of

Mangalore City. The acts of detenue adversely affect the

maintenance of 'public order' and in spite of sufficient

opportunity by the Courts so also by the respondent-Authorities

for his reformation, he failed to change his behaviour. As such,

without any alternative, the respondent-Police opened 'A' rowdy

sheet against him bearing No.75/RS/MSSD/2021 on

24.08.2021 in Kankanady Town Police Station, Mangalore and

subsequently, 'B' rowdy sheet bearing No.08/RR/CSD/23 on

09.06.2023 in Mangalore East Police Station was also opened.

Hence, in order to curb his illegal activity, on 19.03.2024,

respondent No.3-Commissioner of Police, Mangalore passed an

order of detention bearing No.MAG/02/MAM NA/2024 against

the detenue under Sections 3(2)(1) 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 (for short

'Goonda Act') and the same was communicated to the detenue

on the same day i.e., on 19.03.2024. Being aggrieved by the

detention order, the detenue submitted a representation dated

23.03.2024 to (i) Commissioner, Mangalore City (ii)

Chairperson of Advisory Commissioner (iii) The Secretary Home

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Department and (iv) The Chairperson, Human Rights

Committee and the same was communicated to the

respondents on 26.03.02024. In the meantime, the State

Government has confirmed the detention order on 26.03.2024

and the same was communicated to the detenue on

27.03.2024. Subsequently, on 28.03.2024, the State

Government rejected the representation of the detenue.

Thereafter, on 08.04.2024, the detenue was produced before

the Advisory Board along with the detention order. The

Advisory Board, after considering the oral and written

submission of the detenue, confirmed the detention order

passed by respondent No.2 vide order dated 22.04.2024. The

said order also communicated to the detenue on the same day.

It is in this background, pleading, violation of Fundamental

Rights enshrined under Article 22(5) of the Constitution of

India, the petitioner has approached this Court.

4. We have heard Sri Arun Shyam, learned Senior

counsel appearing for Sri Suyog Herele E, learned counsel for

the petitioner and Sri B.A. Belliappa, learned SPP-I for

Sri Anoop Kumar, learned HCGP for respondent Nos.1 to 4 so

also perused the documents placed before us.

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5. It is the primary contention of learned Senior

counsel for the petitioner that, as on the date of invocation of

detention order, there are only 3 cases pending against the

detenue and the last offence that was alleged to be committed

by the detenue is one in Crime No.26/2023 registered on

26.03.2023 by Kankanady Town Police Station for the Offences

punishable under Sections 143, 147, 447, 427, 341, 504, 506

r/w Section 149 of IPC. The detention order was passed against

the detenue on 19.03.2024 i.e., after lapse of one year. It is on

this ground, the learned Senior counsel contends that there is

no nexus between last committed crime and the detention

order as the detention order is passed after a lapse of one year

of detenue being alleged to be involved in committing the

crime. Hence, he would submit that, every order of detention

shall bear proximate link to the crime committed as preventive

detention is a device that is used only for protection of the

society, but not with an object to punish a man who is involved

in harming any private persons. Any delay caused in passing

the detention order from the date of involvement in the last

alleged crime would be vital and also if not properly reasoned,

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would prove the detention order dehors the Constitutional

mandates.

6. The learned Senior counsel would further

vehemence his contention that the acts alleged to have been

committed by the detenue as per the detention order would not

fall within the wider spectrum of prejudicial to the maintenance

of 'Public Order', but the same falls within the ambit of 'Law

and Order', for which preventive detention measures cannot be

invoked. The learned Senior counsel would also contend that

the alleged acts of the detenue do not fit into the definition of

'Goonda' as defined under Section 2(g) of the Act, since the

offences alleged to have been committed by the detenue would

not fall within the Chapters XVI, XVII and XXII of IPC for the

reason that the offences alleged against the detenue are minor

in nature for which, maximum punishment prescribed is one

year.

7. In order to buttress his argument, he relied upon

the judgments of Hon'ble Apex Court in the cases of Suresh B.

Shetty v. The State of Karnataka and Ors in WPHC

No.73/2018; Smt. Jayamma v. Commissioner of Police,

Bengluru reported in ILR 2019 KAR 1543; Sri Mohammed

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Shaifulla v. The D.G and I.G.P of Police and Others in

WPHC No.75/2023; Sri Chandru @ Chandrahas Shetty v.

The State and Others in WPHC No.40/2016; Banka Sneha

Sheela v. State of Telangana and Others reported in

(2021) 9 SCC 415; Mallada K Sri Ram v. State of

Telangana and Others reported in 2022 SCC OnLine SC

424, Shaik Nazneen v. State of Telangana and Others

reported in (2023) 9 SCC 633; Ameena Begum v. State of

Telangana and Others reported in (2023) 9 SCC 587 and

Pramod Singh v. Union of India and Others reported in

2023 SCC OnLine SC 374 and prays to allow the petition.

8. Per contra, learned SPP-I for the respondents has

filed his statement of objection, similarly, has placed the entire

records along with list of authorities in support of his case and

submits that, the detention order was passed on account of

detenue being the habitual offender, who was involved in

offences affecting the public at large and 'A' rowdy sheet was

already opened against him by the Kankanady Town Police. In

spite of the same, he continued his illegal activity. As such,

without any alternative, the impugned detention order is being

passed and the same has withstood the test of legality before

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Advisory Board and hence, he prays for dismissal of the

petition.

9. Having heard the learned Senior counsel for the

petitioner and learned SPP-I, the only point that would arise for

our consideration is:

"Whether the order of detention dated 19.03.2024 passed by respondent No.3 bearing No.MAG/02/MAM NA/2024, subsequent confirmation order dated 26.03.2024 bearing No.HD 130 SST 2024 and extension order dated 22.04.2024 bearing No.HD 130 SST 2024 passed by respondent No.2 are sustainable under law?"

10. In address to the first limb of argument advanced

by the learned Senior counsel, there is no occasion to detain

the accused as there is no 'proximate link' between the date of

detention and the date of commission of last crime since the

same is passed after an inordinate delay of one year; we find it

relevant to delve into the factual aspects of the case i.e., the

last crime alleged to be committed by the detenu, which was

registered by the Kankanady Town Police Station, Mangalore in

Crime No.26/2023 dated 26.03.2023 for the offences

punishable under Sections 143, 147 ,447, 427, 341, 504, 506

r/w Section 149 of IPC. Further, the said criminal case is

pending before the VII JMFC Court in Mangalore in

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C.C.No.914/2023. The detenue was already enlarged on bail in

the said case. As could be seen from the detention order,

besides this case, two other cases are pending against the

detenue in Crime No.17/2023 dated 10.03.2023 and Crime

No.32/2020 dated 14.06.2020. The detenue has also enlarged

on bail in those cases. When this being the scenario, the

detenue was taken to custody after passing the detention order

on 19.03.2024. Further, if the order of detention is perused

carefully, we find that the order of detention was passed by

respondent No.3 at the behest of detailed report addressed by

the Police Inspector, Mangalore East Police Station and the

Deputy Commissioner of Police, Law and Order, Mangalore.

Admittedly, the detenue was acquitted in all other 5 cases filed

against him and the same are relied in the detention order. The

active cases pending against him are punishable only for a

maximum period of one year. Further, the detention order is

passed after lapse of one year from the date of commission of

last crime. We find neither any complaint nor any allegations of

violation of undertaking given by him in the bail bond or

influencing the witnesses involved in any crimes. These

material facts are unnoticed by both the respondents and also

the Advisory Board while considering the case on hand.

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11. In order to further substantiate the case on hand,

we deem it appropriate to refer to the judgment of the Hon'ble

Apex Court in the case of Ameena Begum v. State of

Telangana reported in (2023) 9 SCC 587 wherein, the

Hon'ble Apex Court has laid down the parameters to be

considered while deciding legality of detention order, which

reads as under -

"28. In the circumstances of a given case, a constitutional court when called upon to test the legality of orders of preventive detention would be entitled to examine whether:

28.1. 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;

28.2. 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;

28.3. 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;

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28.4. The detaining authority has acted independently or under the dictation of another body;

28.5. 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;

28.6. The satisfaction of the detaining authority rests on materials which are of rationally probative value, and the detaining authority has given due regard to the matters as per the statutory mandate;

28.7. 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;

28.8. 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;

28.9. 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

28.10. The timelines, as provided under the law, have been strictly adhered to."

(Emphasis supplied by us)

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12. Hence, if the impugned order passed is perused

keeping in view the order passed by the Hon'ble Apex Court,

we do not find any specific reason forthcoming in the impugned

detention order as to what transpired on the Authorities to pass

the detention order even after an inordinate delay of one year

of registration of case in Crime No.26/2023, which is alleged to

be the last crime committed by the detenu herein.

13. Hence, on perusal of the guidelines issued by the

Hon'ble Apex Court in the above judgment, it is clear that the

order of detention cannot be mechanically passed by the

Authority when there is an inordinate delay while invoking the

order of detention and last crime committed by the detenue

i.e., the proximate link. Hence, we answer the primary

contention of the learned Senior counsel in favour of the

detenue.

14. As far the second limb of argument of the learned

Senior counsel is concerned, the Hon'ble Apex Court in the case

of Nenvathi Bujji v. State of Telangana reported in 2024

SCC OnLine SC 367 and also in the case of Ameena Begum

referred supra, drawn a distinction between 'Public Disorder'

and 'Law and Order'. The Hon'ble Apex Court by distinguishing

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the above two terms held that, in order to detain any person

under the Act, his/her illegal activities must affect the

community or public at large and a mere disturbance of law

and order leading to disorder is thus not necessarily sufficient

to invoke the provision of the Act. Further, for an act to qualify

as a disturbance to public order, the specific activity must have

an impact on broader community or the general public, evoking

feelings or fear, panic, or insecurity. Not every case of a

general disturbance to public tranquillity affects the public

order.

15. Applying the above principles to the case on hand,

it could be seen, out of 8 cases registered against the detenue,

all the 5 cases were ended with an acquittal and the remaining

3 pending cases are punishable maximum for a period of one

year. Hence, we are of the view that, in such circumstance, the

detention order does not pass the test of guidelines issued by

the Hon'ble Apex Court in the cases of Nenavath Bujji and

Ameena Begum referred supra and the respondent-Police

Authorities are duty bound and at liberty to expend appropriate

legal action against the detenue for his alleged illegal activities

beside to file application for cancellation of bail granted to the

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detenue. Having been failed to exhaust such remedy, invoking

the provisions of the Act and keeping the detenue under illegal

detention violates the Fundamental Rights of the detenue

enshrined under the Constitution. There is no proper

justification or rationale is forthcoming from the order of

detention or the subsequent orders. Hence, we answer the

point raised above in the negative and proceed to pass the

following:

ORDER

a) Writ petition is Allowed.



     b)      The    order    of   detention    dated   19.03.2024
             passed     by        respondent       No.3        bearing
             No.MAG/02/MAM              NA/2024,        subsequent

confirmation order dated 26.03.2024 bearing No.HD 130 SST 2024 and extension order dated 22.04.2024 bearing No.HD 130 SST 2024 passed by respondent No.2 stand quashed.