Telangana High Court
Charakonda Chinna Chennaiah vs The State Of Telangana on 23 February, 2021
Bench: A.Rajasheker Reddy, Shameem Akther
* THE HON'BLE SRI JUSTICE A.RAJASHEKER REDDY
AND
* THE HON'BLE Dr. JUSTICE SHAMEEM AKTHER
+ Writ Petition No.18013 of 2020
% Date: 23.02.2021.
Charakonda Chinna Chennaiah
... Petitioner
Vs.
The State of Telangana and others
..Respondents
! Counsel for the Petitioner : Dr. B. Karthik Navayan
^ Counsel for the Respondent : Assistant Government Pleader for Home
>HEAD NOTE:
? Cases referred
1. AIR 1966 SC 740
2. (1972) 3 SCC 831
3. (1984) 3 SCC 14
4. AIR 1987 SC 2332
ARR, J & Dr. SA, J
THE HON'BLE SRI JUSTICE A.RAJASHEKER REDDY
AND
THE HON'BLE Dr. JUSTICE SHAMEEM AKTHER
WRIT PETITION No.18013 of 2020
ORDER: (Per Hon'ble Dr. Justice Shameem Akther)
Sri Charakonda Chinna Chennaiah, the petitioner, has filed
this present petition on behalf of his son, Charagonda Uday Kiran
@ Uday, the detenu, challenging the detention order vide
No.48/PD-CELL/CYB/2020, dated 28.09.2020, passed by the
Commissioner of Police, Cyberabad Police Commissionerate, the
respondent No.3,
2. Heard the learned counsel for the petitioner, the learned
Assistant Government Pleader for Home appearing for the
respondents and perused the record.
3. Briefly, the facts of the case are that by relying on a single
criminal case registered against the detenu in the year 2020
(Crime No.452/2020 of Shadnagar Police Station), the
Commissioner of Police, Cyberabad Police Commissionerate, the
respondent No.3, passed the detention order dated 28.09.2020.
According to the respondent No.3, the detenu is a 'Sexual
Offender' as defined in clause (v) of Section 2 of The Telangana
Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug-
Offenders, Goondas, Immoral Traffic Offenders, Land-Grabbers,
Spurious Seed Offenders, Insecticide Offenders, Fertiliser
Offenders, Food Adulteration Offenders, Fake Document
Offenders, Scheduled Commodities Offenders, Forest Offenders,
ARR, J & Dr. SA, J
Gaming Offenders, Sexual Offenders, Explosive Substances
Offenders, Arms Offenders, Cyber Crime Offenders and White
Collar or Financial Offenders Act, 1986 (Act 1 of 1986) and he
has committed penetrative aggravated sexual assault on a minor
girl by name Kum. G. Gouri, aged 13 years, for three times
throughout the night on 26.06.2020, within the limits of
Shadnagar Police Station of Cyberabad Police Commissionerate.
Subsequently, by order dated 28.11.2020, the detention order
was confirmed by the Principal Secretary to Government,
General Administration (Spl. (Law and Order) Department,
Government of Telangana. Hence, this writ petition before this
Court.
4. Dr. B. Karthik Navayan, learned counsel for the petitioner,
has raised the following contentions before this Court:
Firstly, that relying only on single case registered against
the detenu in the year 2020, the impugned detention order is
passed.
Secondly, the alleged case does not add up to "disturbing
the public order". It is confined within the ambit and scope of
the word "law and order". Since the offences alleged are under
the Indian Penal Code and a special legislation, i.e., Protection of
Children from Sexual Offences Act, 2012, the detenu can
certainly be tried and convicted under the Penal Code and the
said special legislation. Thus, there was no need for the
detaining authority to invoke the draconian preventive detention
ARR, J & Dr. SA, J
laws against the detenu. Hence, the impugned order
tantamounts to the colourable exercise of power.
Thirdly, the detaining authority is not justified in invoking a
draconian power under the preventive detention laws against the
detenu. According to the learned counsel, the detaining
authority has to be extremely careful while passing a detention
order. For detention ipso facto adversely affects the
fundamental right of personal liberty enjoyed by the people
under Article 21 of the Constitution of India.
Lastly, that the impugned detention order was passed on
stale grounds, in a mechanical manner and without application of
mind. In the impugned detention order, though it was stated
that the activities of the detenu is affecting the Public Order, but
no reasons are assigned to come to such a conclusion. Thus, the
impugned orders are legally unsustainable.
5. On the other hand, Sri G.Malla Reddy, learned Assistant
Government Pleader for Home appearing on behalf of the
Additional Advocate General for the respondents would submit
that in the single case relied by the detaining authority for
preventively detaining the detenu, the detenu managed to get
bail from the Court concerned. The crime allegedly committed
by the detenu was sufficient to cause a feeling of insecurity in
the minds of the people at large. Since the modus of committing
the crime was penetrated aggravated sexual assault on a minor
girl of 13 years, it has created sufficient panic in the minds of
the general public. Therefore, the detaining authority was
ARR, J & Dr. SA, J
legally justified in passing the impugned orders. Since the
detenu was involved in sexual offence against a minor girl, which
is heinous in nature, it cannot be said that the impugned
detention order was passed on stale grounds and without
application of mind. Further, the Advisory Board constituted
under Section 9 of Act 1 of 1986 reviewed the case and opined
that there is sufficient cause for detention of the detenu and
accordingly, the Government confirmed the detention order, vide
G.O.Rt.No.1853, dated 28.11.2020. The impugned orders are
legally sustainable. There are no grounds to grant the relief
sought by the petitioner and ultimately prayed to dismiss the
writ petition.
6. In view of the submissions made by both the sides, the
point that arises for determination in this Writ Petition is:
"Whether the detention order, dated
28.09.2020, passed by the respondent No.3 and
the confirmation order, dated 28.11.2020,
passed by the Principal Secretary to
Government, General Administration (Spl. (Law
and Order) Department, Government of
Telangana, are liable to be set aside?"
POINT:
7. In catena of cases, the Hon'ble Supreme Court had clearly
opined that there is a vast difference between "law and order"
and "public order". The offences which are committed against a
particular individual fall within the ambit of "law and order". It is
only when the public at large is adversely affected by the
ARR, J & Dr. SA, J
criminal activities of a person, is the conduct of a person said to
disturb the public order. Moreover, individual cases can be dealt
with by the criminal justice system. Therefore, there is no need
for the detaining authority to invoke the draconian preventive
detention laws against an individual. For the invoking of such
law adversely effects the fundamental right of personal liberty,
which is protected and promoted by Article 21 of the Constitution
of India. Hence, according to the Hon'ble Apex Court, the
detaining authority should be wary of invoking the immense
power under the Act.
8. In the case of Ram Manohar Lohia v. State of Bihar1,
the Hon'ble Supreme Court has, in fact, deprecated the invoking
of the preventive law in order to tackle a law and order problem.
The Hon'ble Supreme Court has observed as under:
"54. We have here a case of detention under Rule 30 of
the Defence of India Rules which permits apprehension
and detention of a person likely to act in a manner
prejudicial to the maintenance of public order. It follows
that if such a person is not detained public disorder is the
apprehended result. Disorder is no doubt prevented by
the maintenance of law and order also but disorder is a
broad spectrum which includes at one end small
disturbances and at the other the most serious and
cataclysmic happenings. Does the expression "public
order' take in every kind of disorders or only some of
them? The answer to this serves to distinguish "public
order" from "law and order" because the latter
undoubtedly takes in all of them. Public order if
disturbed, must lead to public disorder. Every breach of
the peace does not lead to public disorder. When two
drunkards quarrel and fight there is disorder but not
public disorder. They can be dealt with under the
powers to maintain law and order but cannot be detained
on the ground that they were disturbing public order.
Suppose that the two fighters were of rival communities
and one of them tried to raise communal passions. The
problem is still one of law and order but it raises the
apprehension of public disorder. Other examples can be
AIR 1966 SC 740
ARR, J & Dr. SA, J
imagined. The contravention of law always affects order
but before it can be said to affect public order, it must
affect the community or the public at large. A mere
disturbance of law and order leading to disorder is thus
not necessarily sufficient for action under the Defence of
India Act but disturbances which subvert the public order
are. A District Magistrate is entitled to take action under
Rule 30(1)(b) to prevent subversion of public order but
not in aid of maintenance of law and order under
ordinary circumstances."
9. In the case of Kanu Biswas v. State of West Bengal2,
the Hon'ble Supreme Court has opined as under:
"The question whether a man has only committed a breach
of law and order or has acted in a manner likely to cause a
disturbance of the public order is a question of degree and
the extent of the reach of the act upon the society. Public
order is what the French call 'order publique' and is
something more than ordinary maintenance of law and
order. The test to be adopted in determining whether an
act affects law and order or public order, as laid down in
the above case, is: Does it lead to disturbance of the
current of life of the community so as to amount to a
disturbance of the public order or does it affect merely an
individual leaving the tranquility of the society
undisturbed?"
10. In the present case, the detenu is allegedly involved in a
single criminal case in Crime No.452/2020. We shall present it
in a tabular column the date of occurrence, the date of
registration of FIR, the offences complained of and their nature,
such as bailable/non-bailable and cognizable/non-cognizable.
Date of
Sl. Crime Date of registratio
Occurrence Offences Nature
No. No. n
of FIR
Sections 363 &
Sec.363, 376(2)(n) :
376(2)(n) of Cognizable/
Intervening
452/2020 of IPC and Sec.5 Non-Bailable
1. night of 27.06.2020
Shadnagar PS r/w 6 of Sec. 5 & 6 of
26/27.06.2020
POCSO Act, POCSO Act:
2012 Cognizable/
Non-Bailable
(1972) 3 SCC 831
ARR, J & Dr. SA, J
11. Here, it is appropriate to refer the decision rendered by the
Hon'ble Apex Court in Vijay Narain Singh v. State of Bihar3,
wherein it was held that a single act or omission cannot be
characterized as a habitual act or omission because, the idea of
'habit' involves an element of persistence and a tendency to
repeat the acts or omissions of the same class or kind, if the acts
or omission in question are not of the same kind or even if they
are of the same kind when they are committed with a long
interval of time between them, they cannot be treated as
habitual ones.
12. A bare perusal of the impugned detention order clearly
reveals that the detaining authority is concerned by the fact that
in the case relied upon it for preventively detaining the detenu,
the detenu was granted conditional bail by the Court concerned
and he was released from prison on 22.07.2020. However, the
apprehension of the detaining authority that since the detenu
was already enlarged on bail, there is imminent possibility of his
indulging in similar prejudicial activities unless he is prevented
from doing so by an appropriate order of detention, is highly
misplaced. In the instant case, the detenu was remanded to
judicial custody in the subject criminal case on 29.06.2020. His
bail application vide Crl.M.P.No.456 of 2020 was allowed by the I
Additional Sessions Judge, Mahabubnagar, vide order, dated
22.07.2020, on conditions, i.e., on executing a personal bond for
a sum of Rs.20,000/- with two sureties for a like sum each to
the satisfaction of learned Judicial Magistrate of First Class,
(1984) 3 SCC 14
ARR, J & Dr. SA, J
Shadnagar and that he shall not leave the country without
permission of the Court and that he shall not resort to any acts
of influencing the witnesses or tampering with the evidence
being collected by the prosecuting authority as part of the
investigation. The impugned detention order was passed on
28.09.2020, i.e., after more than two months from the date of
release of detenu on bail from judicial custody. Till the date of
passing of the impugned detention order, there is no mention of
violation of conditions of bail by the detenu. Here, it is apt to
refer to Section 29 of the POCSO Act, 2012, which reads as
under:
"29. Presumption as to certain offences:- When a person
is prosecuted for committing or abetting or attenuating
to commit any offence under Sections 3, 5, 7 and 9 of this
Act, the Special Court shall presume, that such person
has committed or abetted or attempted to commit the
offence, as the case may be, unless the contrary is
proved."
13. In the instant case, a bare perusal of the bail order of the
detenu, dated 22.07.2020, reveals that the prosecuting authority
has not brought the aforementioned proviso to the notice of the
learned Sessions Judge who granted bail to the detenu. For the
inaction of the Police, the detaining authority cannot be
permitted to invoke the draconian preventive detention laws, in
order to breach the liberty of an individual. The detenu is being
prosecuted for committing a heinous offence of penetrative
aggravated sexual assault on a girl aged 13 years. He was
granted bail by the Court of Session as indicated above on
conditions. If the state of aggrieved by the grant of bail to the
detenu, nothing prevented the State to move higher Court to
ARR, J & Dr. SA, J
seek cancellation of bail. The State did not choose to resort to
such cancellation of bail, instead passed the impugned detention
order. All the cases under POCSO Act are being put on fast
track. It is brought to the notice of this Court that no charge-
sheet has been filed. The State could have expedited the
investigation and filed charge-sheet. The minimum sentence of
imprisonment prescribed for the alleged offence is ten years. As
held in Vijay Narain Singh's case (3 supra), a single act or
omission cannot be characterized as a habitual act because, the
idea of 'habit' involves an element of persistence and a tendency
to commit or repeat similar offences, which is patently not
present in the instant case. The detenu is second year
intermediate student. In our opinion, the bald statement made
in the grounds of detention that considering the detenu's
involvement in heinous activities and his release from prison on
bail, there is imminent possibility of his indulging in similar
shameful and inhuman acts of sexual assault on minor girls and
women exploiting their innocence in a deceptive manner which
are detrimental to public order, would not justify the impugned
detention order.
14. Further, in Gulab Mehra Vs. State of UP and others4,
the Hon'ble Apex Court, relying on its earlier judgment rendered
in Kanchanlal Maneklal Chokshi Vs. State of Gujarat {AIR
1979 SC 1945}, held as follows:
"The ordinary criminal process is not to be circumvented
or short-circuited by ready resort to preventive detention,
but that the possibility of launching a criminal prosecution
AIR 1987 SC 2332
ARR, J & Dr. SA, J
is not an absolute bar to an order of preventive detention.
Nor is it correct to say that if such possibility is not
present to the mind of the detaining authority the order of
detention is necessarily bad. However, the failure of the
detaining authority to consider the possibility of launching
a criminal prosecution may, in the circumstances of a
case, lead to the conclusion that the detaining authority
had not applied its mind to the vital question whether it
was necessary to make an order of preventive detention.
Where an express allegation is made that the order of
detention was issued in a mechanical fashion without
keeping present to its mind the question whether it was
necessary to make such an order when an ordinary
criminal prosecution could well serve the purpose, the
detaining authority must satisfy the court that the
question too was borne in mind before the order of
detention was made. If the detaining authority fails to
satisfy the court that the detaining authority so borne the
question in mind the court would be justified in drawing
the inference that there was no application of the mind of
the detaining authority to the vital question whether it
was necessary to preventively detain the detenu."
15. In the present case, further, the detaining authority failed
to demonstrate the necessity to pass the impugned detention
order invoking the draconian preventive detention laws, when
recourse to normal criminal justice system is available for
curbing the alleged illegal activities of the detenu. Even
otherwise, there is nothing on record to show that there is
'imminent possibility' of the detenu indulging in similar offence/s
which are detrimental to public order. It is true that the offence
alleged against the detenu is heinous in nature. But, it is also
equally true that the detenu has no criminal antecedents or
criminal history, which could have formed the basis for recording
'subjective satisfaction' while passing the order of detention. In
the instant case, there is only a solitary case in Crime No.452 of
2020 of Shadnagar Police Station registered for the offences
punishable under Sections 363, 376(2)(n) of IPC and Sections 5
& 6 of POCSO Act for which the detenu was arrested and
ARR, J & Dr. SA, J
remanded to judicial custody and later released on conditional
bail. Lastly, it is also relevant to state that the detenu developed
acquaintance/friendship with the victim girl who is 13 years old
as she was studying in the school, where the sister of the detenu
was also studying. Due to the acquaintance/friendship, the
detenu took the victim girl to a secluded place where he has
committed sexual intercourse and thus fulfilled his sexual desire
and on the next day morning, i.e., on 27.06.2020, he let off the
victim girl. Therefore, it cannot be held that the detenu would
indulge in similar prejudicial activities in future. Under these
circumstances, the detaining authority is not justified in passing
the order of detention, which tantamounts to colourable exercise
of power.
16. Grave as the offence may be, it relates to penetrative
aggravated sexual assault on a minor girl. So, no inference of
disturbance of public order can be drawn. This case can be tried
under the normal criminal law and/or special legislation. And, if
convicted, can certainly be punished by the Court of law. Thus,
the case does not fall within the ambit of the words "public
order". Instead, it falls within the scope of the words "law and
order". Hence, there was no need for the detaining authority to
pass the detention order.
17. For the reasons stated above, the impugned orders are
legally unsustainable and are liable to be set aside.
18. In the result, the Writ Petition is allowed. The impugned
detention order vide No.48/PD-CELL/CYB/2020, dated
ARR, J & Dr. SA, J
28.09.2020, passed by respondent No.3, and the consequential
confirmation order, vide G.O.Rt.No.1853, dated 28.11.2020,
passed by the Principal Secretary to Government, General
Administration (Spl. (Law and Order) Department, Government
of Telangana, are set aside. The respondents are directed to set
the detenu, namely, Charagonda Uday Kiran @ Uday, at liberty
forthwith, if he is no longer required in any other criminal case.
Miscellaneous petitions, if any, pending in this writ petition,
stand disposed of in terms of this order. There shall be no order
as to costs.
___________________
A.RAJASHEKER REDDY, J
___________________
Dr. SHAMEEM AKTHER, J
23rd February, 2021
Note:-
Mark L.R. Copy
(B/O)
Bvv.
