Telangana High Court
Farhat Kausar vs The State Of Telangana And 3 Others on 14 June, 2021
Bench: A.Rajasheker Reddy, Shameem Akther
HIGH COURT FOR THE STATE OF TELANGANA
*****
Writ Petition No.19999 of 2020
Between:
Smt. Farhat Kausar
... Petitioner
and
The State of Telangana,
Rep. by its Principal Secretary to Home Dept.,
Secretariat Buildings, Hyderabad
and others
... Respondents
DATE OF JUDGMENT PRONOUNCED: 14.06.2021
SUBMITTED FOR APPROVAL:
THE HON'BLE SRI JUSTICE A.RAJASHEKER REDDY
AND
THE HON'BLE Dr. JUSTICE SHAMEEM AKTHER
1 Whether Reporters of Local
newspapers may be allowed to see
Yes/No
the Judgment?
2 Whether the copies of judgment may
be marked to Law Yes/No
Reporters/Journals
3 Whether Their Lordships wish to see
the fair copy of the Judgment? Yes/No
____________________
A. RAJASHEKER REDDY, J
____________________
Dr. SHAMEEM AKTHER, J
ARR,J & Dr. SAJ
* THE HON'BLE SRI JUSTICE A.RAJASHEKER REDDY
AND
* THE HON'BLE Dr. JUSTICE SHAMEEM AKTHER
+ Writ Petition No.19999 of 2020
% Date: 14th June, 2021
Between:
Smt. Farhat Kausar
... Petitioner
and
The State of Telangana,
Rep. by its Principal Secretary to Home Dept.,
Secretariat Buildings, Hyderabad
and others
... Respondents
! Counsel for the Petitioner : Sri K.Venu Madhav
^ Counsel for the Respondents : Sri G. Malla Reddy, Assistant
Government Pleader for Home
>HEAD NOTE:
? Cases referred
1. (1970) 3 SCC 746
2. (2004) 7 SCC 467
3. (2006) 6 SCC 14
ARR,J & Dr. SAJ
THE HON'BLE SRI JUSTICE A.RAJASHEKER REDDY
AND
THE HON'BLE Dr. JUSTICE SHAMEEM AKTHER
WRIT PETITION No.19999 OF 2020
ORDER: (Per Hon'ble Dr. Justice Shameem Akther)
Smt. Farhat Kausar, the petitioner, has filed this Habeas
Corpus petition on behalf of her husband, Mohd. Jumman,
S/o Mohd. Alam, aged about 33 years, the detenu, challenging the
detention order, dated 21.08.2020, passed by the Commissioner of
Police, Cyberabad Commissionerate, the respondent No.2, wherein,
the detenu was detained under Section 3(2) of the Telangana
Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug-
Offenders, Goondas, Immoral Traffic Offenders, Land-Grabbers,
Spurious Seed Offenders, Insecticide Offenders, Fertilizer
Offenders, Food Adulteration Offenders, Fake Document Offenders,
Scheduled Commodities Offenders, Forest Offenders, Gaming
Offenders, Sexual Offenders, Explosive Substances Offenders, Arms
Offenders, Cyber Crime Offenders & White Collar or Financial
Offenders Act, 1986 (for short "P.D. Act") and the confirmation
order vide G.O.Rt.No.1631, General Administration (Spl. (Law &
Order)) Department, dated 28.10.2020, passed by the Principal
Secretary to Government, General Administration (Spl. (Law &
Order) Department, Government of Telangana.
2. Heard the submissions of Sri K.Venu Madhav, learned counsel
for the petitioner, Sri G.Mallareddy, learned Assistant Government
Pleader for Home representing the learned Additional Advocate
General for the respondents, and perused the record.
ARR,J & Dr. SAJ
3. The learned counsel for the petitioner would submit that the
impugned detention order is illegal, arbitrary, unconstitutional,
improper and against the principles of natural justice and has been
passed in a mechanical manner and without application of mind.
The detenu is implicated in the solitary case relied upon by the
detaining authority for preventively detaining him basing upon his
confession. Admittedly, in the solitary case relied upon by the
detaining authority, the detenu was granted bail by the Court
concerned. But, the detenu was again sent to judicial remand by
invoking the draconian preventive detention laws. Preventive
detention shall not be made a substitute for punitive detention.
There is no prejudicial activity attributed to the detenu after his
release on bail in the alleged criminal case. The material papers
served on the detenu were not in the language known to the detenu
and as such, the detenu is unable to know the contents of the same
so as to make an effective representation. The detaining authority
erroneously formed an opinion and came to conclusion that the
activities of the detenu are creating large scale fear and panic
among the general public and adversely affecting the public order.
Further, the criminal case alleged against the detenu 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 the Protection of Children from
Sexual Offences Act, 2012 (for short 'the POCSO' Act) and Epidemic
Diseases Act, 1987, the said case can certainly be dealt with under
the Penal Code and the said special legislations. Thus, there was
no need for the detaining authority to invoke the draconian
ARR,J & Dr. SAJ
preventive detention laws. Hence, the impugned order tantamount
to the colourable exercise of power. The detaining authority has to
be extremely careful while passing the detention order, since the
detention ipso facto adversely affects the fundamental right of
personal liberty enjoyed by the people under Article 21 of the
Constitution of India. Further, the detenu was not supplied with the
documents relied upon by the detaining authority in the language
known to him, i.e., Hindi. Thus, the impugned orders are legally
unsustainable and ultimately prayed to set aside the same and
allow the writ petition as prayed for.
4. On the other hand, Sri G.Mallareddy, learned Assistant
Government Pleader for Home appearing for the respondents would
submit that the detenu is a 'Sexual offender'. He has engaged
himself in a heinous offence of penetrative sexual gang assault on
mentally challenged minor girl in the limits of Cyberabad Police
Commissionerate, in an organized way and acted in a manner
prejudicial to the maintenance of public order. The heinous offence
committed by the detenu was sufficient to create large scale fear
and insecurity in the minds of the people at large, which certainly
affects the even tempo of the society. Further, in the criminal case
relied upon by the detaining authority for detaining the detenu, the
detenu made persistent efforts for getting bail and he was granted
bail by the Court concerned. Since there is an imminent possibility
of the detenu committing similar offences which are prejudicial to
the maintenance of public order, the impugned detention order was
passed. All the mandatory provisions and the safeguards envisaged
under the Constitution of India were strictly followed while passing
ARR,J & Dr. SAJ
the impugned detention order and hence, the impugned detention
order does not suffer from illegality or impropriety. Launching
criminal prosecution is not an absolute bar to pass an order of
detention. The order of detention together with grounds of
detention and the material referred to and relied upon in the
grounds of detention were supplied to the detenu in the language
known to him. Further, the Advisory Board, in its review meeting,
upon hearing the detenu and the concerned investigating officials
and upon considering the entire material placed before it, rendered
its opinion that there is sufficient cause for detention of the detenu.
On considering the opinion of the Advisory Board and upon
considering the entire material, the Government confirmed the
impugned detention order, vide G.O.Rt.No.1631, General
Administration (Spl. (Law & Order)), Government of Telangana,
dated 28.10.2020. Therefore, the detaining authority was legally
justified in passing the impugned detention order and ultimately,
prayed to dismiss the writ petition.
5. In view of the submissions made by both sides, the point that
arises for determination in this Writ Petition is:
"Whether the impugned detention order, dated
21.08.2020, passed by the Commissioner of
Police, Cyberabad Commissionerate, respondent
No.2, and the confirmation order, dated
28.10.2020, passed by the Principal Secretary to
Government, General Administration (Spl. (Law &
Order) Department, Government of Telangana,
are liable to be set aside?"
ARR,J & Dr. SAJ
POINT:
6. Briefly, the facts of the case are that by relying on a solitary
case registered against the detenu in Crime No.290 of 2020 of
Dundigal Police Station, the respondent No.2-Commissioner of
Police, Cyberabad Commissionerate, passed the detention order,
dated 21.08.2020. According to the respondent No.2, the detenu
is a "Sexual Offender" and he engaged himself in a heinous crime
of penetrative sexual gang assault on mentally challenged minor
girl in the limits of Dundigal Police Station of Cyberabad Police
Commissionerate in an organized way and created fear, panic and
a feeling of insecurity among the innocent minor girls, school going
girls, their parents, relatives, locality people and general public,
thereby adversely affecting the public order leaving large section of
people under the grip of fear and trauma, and disturbing peace and
tranquility in the society, which are prejudicial to the maintenance
of public order. In the solitary case relied by the detaining
authority for preventively detaining the detenu, the detenu got bail
from the Court concerned. In order to prevent the detenu from
indulging in similar shameful and inhuman acts of sexual assault on
minor girls and women exploiting their innocence in a deceptive
manner in due course, which is detrimental to the public order, the
impugned detention order, dated 21.08.2020, was passed, which
was confirmed by the Government by order, dated 28.10.2020.
7. The material placed on record reveals that the detenu-Mohd.
Jumman, S/o. Mohd. Alam, who is a 'sexual offender', has
committed a heinous offence of penetrative sexual gang assault on
ARR,J & Dr. SAJ
mentally challenged minor girl in the limits of Dundigal Police
Station of Cyberabad Police Commissionerate. The detaining
authority relied on a solitary case registered against the detenu for
preventively detaining him. We shall present it in a tabular
column, the date of occurrence, the date of registration of FIR, the
offences complained of and its nature, such as bailable/non-
bailable or cognizable/non-cognizable.
Date of
Date of
Crime No. Occurrence registration Offences Nature
of FIR
Section 376-
DA IPC and
Section
5(l)(g) read
with Section 6
Sections 376 DA, of POCSO Act
363, 188, 269, 270 -Cognizable/
of IPC, Section Non-Bailable,
5(l)(g) read with
290/2020 of
23.04.2020 23.04.2020 Section 6 of POCSO Sections 363,
Dundigal PS Act read with 188, 269, 270
Section 3 of IPC and
Epidemic Diseases Section 3 of
Act, 1897 Epidemic
Diseases Act,
1897-
Cognizable/
Bailable,
8. As seen from the material placed on record, in the solitary
crime relied upon by the detaining authority for preventively
detaining the detenu, the allegation is that on 22.04.2020 evening
hours while the victim minor girl, who is mentally challenged, was
moving on the roads, the detenu hatched a plan to enjoy with her
sexually and by saying gullible words to her, took her along with
him to a lonely room near his house and forcibly participated in the
sexual intercourse with the victim girl along with his friends
repeatedly, and thereafter, left the victim girl near Khaja Panshop,
Rodamastrynagar Road. The nature of the offence and the manner
in which the alleged offence has been committed by the detenu
ARR,J & Dr. SAJ
certainly causes panic and a feeling of insecurity among the general
public. It is evident from the material placed on record that in the
alleged solitary case, the detenu made persistent efforts to get bail
and he was granted bail by the Court concerned and released from
prison. Under these circumstances, the contention of the
respondents that there is imminent possibility of the detenu again
indulging in similar shameful and inhuman acts of sexual assault on
minor girls and women exploiting their innocence in a deceptive
manner, cannot be brushed aside.
9. It is apt to state that preventive detention is different from
punitive detention. While punitive detention could be enforced
under ordinary criminal law, the law of preventive detention can be
enforced against habitual offenders to prevent them from
committing the further offences. The legal parameters for testing
the validity of 'preventive detention' fundamentally vary from that
of 'punitive detention'. Also, 'Public order' is distinct from 'law and
order'. While individual offences without affecting public at large
could be considered as violating 'law and order', the offences that
affect larger public and disturbs the even tempo of public life fall
under the category of disturbance to public order and only in the
latter category of cases, the law of preventive detention must be
enforced.
10. In the case of Madhu Limaye v. Sub-Divisional
Magistrate1. the Apex Court held as follows:
(1970) 3 SCC 746
ARR,J & Dr. SAJ
"The acts which disturb public tranquility or are
breaches of the peace should not be given a narrow
meaning, but should be given a liberal interpretation.
For the expression 'in the interest of public order' is
very wide amplitude."
11. In Commissioner of Police & Others Vs. C.Anita (Smt.)2,
the Apex Court examined the issue of "public order" and "law and
order" and observed as follows:
"The crucial issue is whether the activities of the
detenu were prejudicial to public order. While the
expression "law and order" is wider in scope inasmuch
as contravention of law always affects order, "public
order" has a narrower ambit, and public order could
be affected by only such contravention which affects
the community or the public at large. Public order is
the even tempo of life of the community taking the
country as a whole or even a specified locality. The
distinction between the areas of "law and order" and
"public order" is one of the degree and extent of the
reach of the act in question on society. It is the
potentiality of the act to disturb the even tempo of life
of the community which makes it prejudicial to the
maintenance of the public order. If a contravention in
its effect is confined only to a few individuals directly
involved as distinct from a wide spectrum of the
public, it could raise problem of law and order only. It
is the length, magnitude and intensity of the terror
wave unleashed by a particular eruption of disorder
that helps to distinguish it as an act affecting "public
order" from that concerning "law and order". The
question to ask is: "Does it lead to disturbance of the
current life of the community so as to amount to a
disturbance of the public order or does it affect
(2004) 7 SCC 467
ARR,J & Dr. SAJ
merely an individual leaving the tranquility of the
society undisturbed?" This question has to be faced
in every case on its facts."
12. In R. Kalavathi v. State of Tamil Nadu3, the Apex Court,
while dealing with the case affecting the public order observed that
even a single act which has the propensity of affecting the even
tempo of life and public tranquility would be sufficient for detention.
13. Here, it is apt to state that the power of preventive detention
is qualitatively different from punitive detention. The power of
preventive detention is a precautionary power exercised in
reasonable anticipation. It may or may not relate to an offence. It
is not a parallel proceeding. It does not overlap with prosecution,
even if it relies on certain facts for which prosecution may be
launched or may have been launched. An order of preventive
detention may be made before or during prosecution. An order of
preventive detention may be made with or without prosecution and
in anticipation or after discharge or even acquittal. The pendency
of prosecution is not a bar to an order of preventive detention and
an order of preventive detention is also not a bar to prosecution. It
cannot be considered to be a parallel proceeding. The anticipated
behaviour of a person based on his past conduct in the light of
surrounding circumstances may provide sufficient ground for
detention. The basis of preventive detention is suspicion and its
justification is necessary.
14. As per the clause (v) of Section 2 of the P.D. Act, a "sexual
offender" means a person who commits or abets the commission of
(2006) 6 SCC 14
ARR,J & Dr. SAJ
offences in contravention of any of the provisions under the
Protection of Child from Sexual Offences Act, 2012, or the offences
punishable under Sections 354, 354A, 354B, 354C, 354D, 376,
376A, 376B, 376D, 377 or 509 of the Indian Penal Code, 1980.
15. It is evident from the material placed on record that in the
aforesaid crime relied by the detaining authority, the detenu and his
friends forcibly committed penetrative sexual intercourse with a
mentally challenged minor girl several times by tying her hands and
blindfolding her. The nature of offences alleged and the modus of
committing the same would certainly create fear, panic and a
feeling of insecurity among the innocent minor girls, their parents,
relatives and also in the minds of the general public, disturbing the
public peace and tranquility. So, it is imperative upon the officers
concerned to pass the order of detention, since the acts of the
detenu are prejudicial to the maintenance of public order. The
contention of the learned counsel for the petitioner is that the
detaining authority had relied over a single case and passed the
impugned detention order and that the apprehension that the
detenu would repeat similar offences in future is untenable and
hence, the impugned detention order is unsustainable. Though the
detaining authority had relied over a single case, the material
placed on record, as indicated above, reveals that a mentally
challenged minor girl was repeatedly sexually assaulted by the
detenu and others, the manner in which the sexual assault was
committed repeatedly would certainly cause fear in the minds of the
public at large. In view of the material on record, the apprehension
of detaining authority is justified. Therefore, the contention raised
ARR,J & Dr. SAJ
by the petitioner is unsustainable. The detaining authority had
sufficient material to record subjective satisfaction that the
detention of the detenu was necessary to maintain public order and
even tempo of life of the community. The order of detention does
not suffer from any illegality. The grounds of detention, as
indicated in the impugned order, are found to be relevant and in
tune with the provisions of the P.D. Act. Since the detenu was
granted bail in the aforesaid case relied by the detaining authority,
there is nothing wrong on the part of the detaining authority in
raising an apprehension that there is possibility of the detenu
indulging in similar shameful and inhuman acts of sexual assault on
minor girls and women exploiting their innocence in a deceptive
manner in due course, which would again certainly affect the public
morale at large. The manner in which the alleged offence
committed by the detenu makes it amply clear that there is every
possibility of detenu committing similar offences in future, which
are prejudicial to the maintenance of public order. The subjective
satisfaction of the detaining authority is not tainted or illegal on any
account. Further, the material placed on record reveals that the
detenu was supplied with the material relied upon by the detaining
authority in the language known to him, i.e., Hindi apart from
'English'. The acts of the detenu cannot be effectively dealt with
under ordinary criminal law. Under these circumstances, the
detaining authority is justified in passing the impugned detention
order. Therefore, the impugned orders are legally sustainable. We
do not see any merit in this Writ Petition and as such, it is liable to
be dismissed.
ARR,J & Dr. SAJ
16. The Writ Petition is, accordingly, dismissed. There shall be no
order as to costs.
The miscellaneous petitions pending, if any, in this Writ
Petition, shall stand closed.
______________________
A.RAJASHEKER REDDY, J
______________________
Dr. SHAMEEM AKTHER, J
14th June, 2021
Note:-
Mark LR Copy.
(B/O)
SSP
