Kallepalli Uppamma Krupa vs The State Of Telangana And 2 Others
2022 Latest Caselaw 852 Tel

        HONOURABLE SRI JUSTICE P.NAVEEN RAO
                         &
        HONOURABLE DR. JUSTICE G.RADHA RANI


            WRIT PETITION NO.18680 OF 2021

                      Date:23.02.2022

Between:

Kallepalli Uppamma @ Krupa,
W/o. Narsimha Rao, Aged about 42 years,
Occu : Coolie, r/o. Ramanagutta,
Khammam District, Telangana district.

                                                 ..... Petitioner
     and

The State of Telangana, rep.by the
Principal Secretary, Home Department (POLL),
Secretariat Building, at Hyderabad and
two others.

                                               .....Respondents

The Court made the following:

PNR,J & Dr.GRR,J WP No.18680 of 2021

HONOURABLE SRI JUSTICE P.NAVEEN RAO & HONOURABLE DR. JUSTICE G.RADHA RANI

WRIT PETITION NO.18680 OF 2021

ORDER: (per Hon'ble Sri Justice P.Naveen Rao)

On 09.02.2021 complaint was filed with the Inspector of

Police, Khanapuram Haveli Police Station alleging that the

daughter of the complainant, aged 12 years, studying 5th class,

was raped by the accused on 07.02.2021, beat her and

threatened with dire consequences if she discloses committing

of offence. Based on the said complaint, Crime No.70 of 2021

was registered under Sections 376-AB, 366, 294(b), 323, 506,

109 of IPC and Sections 4 and 17 of the Protection of Child

from Sexual Offences Act, 2012 (POCSO Act, 2012). The

accused was kept in judicial custody. By order dated

20.04.2021 made in Crl.M.P.No.348 of 2021 in Crime No.70 of

2021, the learned I Additional Sessions Judge at Khammam

granted bail and accordingly, accused was released on

27.04.2021.

2. Taking due note of involvement of accused in heinous

crime, the Commissioner of Police, Khammam, exercised powers

under Section 3(2) of "The Telangana Prevention of Dangerous PNR,J & Dr.GRR,J WP No.18680 of 2021

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, Gaming Offenders,

Sexual Offenders, Explosive Substances Offenders, Arms

Offenders, Cyber Crime Offenders and White Collar or Financial

Offenders Act, 1986 (Act No.1 of 1986), ordering preventive

detention of the accused. Challenging the said order, this writ

petition is filed by the mother of the detenu.

3. Heard Mr. Arun Kumar Mudi learned counsel for

petitioner and the learned Government Pleader for Home on

behalf of the learned Additional Advocate General.

4. The order of detention is based on involvement of detenu

in solitary crime under the POCSO Act, 2012. However, Court is

informed that detenu was earlier involved in five crimes, i.e.,

Crime Nos. 147/2019 under Sections 457 and 380 IPC,

165/2019 under Sections 454 and 380 IPC, 217/2019 under

Sections 457 and 380 IPC, 218/2019 under Sections 457 and

380 IPC, and 192/2019 under Sections 457 and 380 of IPC, of

Khanapuram Haveli Police Station, and based on his PNR,J & Dr.GRR,J WP No.18680 of 2021

involvement in the said crimes, an order of detention was

passed on 25.10.2019. Challenging the said order of detention,

W.P.No.1121 of 2020 was filed. This Court holding that

involvement of the detenu in five crimes cannot impact in any

manner the public order and therefore order of detention was

illegal, allowed the writ petition setting aside the order of

detention.

5. Learned counsel for petitioner contends that resort to

preventive detention is not permissible if detenu alleged to have

been involved in solitary crime and in the instant case, only on

the ground that detenu was involved in one crime of alleged

committing of rape of minor girl, he could not have been

detained. In support of his contention, he placed reliance on

decision of Division Bench of this Court in W.P.No.18013 of

2020.

6. By referring to the order granting the bail, he would

submit that learned Criminal Court has assessed the issue in

right perspective and granted bail. He would submit that the

POCSO Act 2012 enables to release accused on bail, on due

consideration by the competent Court and once bail is granted

referring to the very same incident, it is not permissible to resort PNR,J & Dr.GRR,J WP No.18680 of 2021

to draconian provision of law to preventively detain the accused.

He would submit that nothing prevented the prosecution to

challenge the order granting bail and as long as bail is in force,

accused is entitled to be set free and cannot be detained.

7. Per contra, learned Government Pleader submits that as

held by the Hon'ble Supreme Court in Arun Ghosh vs. State of

West Bengal1, committing of grave offences of rape and that to

committing offence against girls in isolated place create

constant danger and fear to girls, causes disturbance in the

even tempo of living, which is the first requirement of public

order and in the case on hand, the crime was committed by

taking a girl to an isolated place, beat her and threatened her

with dire consequences and, therefore, the crime committed by

the detenu is egregious in nature and does not require any

consideration.

8. By placing reliance on the decision of the Division Bench

of this Court in Bhimsen Tyagi Vs. State of Telangana, rep.by its

Principal Secretary to Government (Poll), Home Department and

another , learned Government Pleader contended that even

when a person is involved in one crime, it is permissible to

1970 (1) SCC 98

2020 SCC Online TS 3272 PNR,J & Dr.GRR,J WP No.18680 of 2021

resort to detention to ensure that the person does not indulge in

committing such crimes. Learned Government Pleader

submitted that as noticed by this Court, offences under the

POCSO Act, 2012 stand on different footing, that the act of

sexual offences against minors shakes the conscience of the

society and creates sense of fear and insecurity and that is a

good ground to resort to preventively detain a person indulging

in such crimes.

9. Learned Government Pleader further submitted that order

of detention is not punitive, it is nothing to do with the alleged

crime, but what is alleged in the crime is required to be seen by

the detaining authority to assess whether such act of individual

would cause disturbance to public order. He relied on judgment

of Hon'ble Supreme Court in Haradhan Saha vs. State of West

Bengal3.

10. Issue for consideration is whether detention of detenu on

involvement in one crime is justified.

11. Admittedly, the reason to exercise power under Section

3(2) of the Act 1 of 1986 was due to crime registered against

detenu under Sections 4 and 17 of POCSO Act 2012, in addition

(1975) 3 SCC 198 PNR,J & Dr.GRR,J WP No.18680 of 2021

to crimes under Indian Penal Code. What is relied to detain is

involvement in solitary crime. The decisions of this Court relied

by the learned counsel for petitioner and the learned

Government Pleader respectively, deal with solitary crime

committed under POCSO Act 2012. While in Bhimsen Tyagi

(supra), Division Bench upheld detention, in Charakonda

Chinna Chennaiah vs. the State of Telangana and others

(W.P.No.18013 of 2020, dated 23.02.2021), the Division Bench

sets aside the detention.

12. In Bhimsen Tyagi (supra) similar issue fell for

consideration before this Court. The Division Bench held that

depending on the propensity and potential to disturb the peace

and tranquillity, it is permissible to resort to preventive

detention even when one crime is committed. The Division

Bench held,

"14. A crime is considered to be a wrong against a society. It is not the individual victim or family of the victim, who is/are only affected by the criminal act but public at large in a way are affected. It is for such reason the State takes up the responsibility to prosecute an offender. Even if the victim does not lodge a complaint, the person, who is actually not affected can be an informant and upon such information of commission of cognizable offence an FIR can be registered and prosecution can be launched by the State, the underlying purpose being to protect law and order, which is the primary responsibility of the State. Even in grave offences like murder (Section 302 IPC), attempt to murder (Section 307 IPC), criminal acts are committed against specific individuals and in many cases it is the individuals, who are actually the affected PNR,J & Dr.GRR,J WP No.18680 of 2021

parties. However, offences relating to POCSO stand on a different footing. The act of sexual offences against children/minors shakes the conscience of the society and creates sense of fear and insecurity. In spite of IPC dealing with sexual offences under Chapter XVI which also include offences committed against minor children, a need was felt to enact POCSO Act, 2012, which deals with various forms of aggravated penetrative sexual assault as enumerated under Section 5 therein. Section 6 of the said Act deals with punishment for aggravated sexual assault and prescribes rigorous imprisonment which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for remainder of natural life of that person and shall also liable for fine or death. It can be presumed from greater degree of punishment provided under the POCSO Act, that the menace of sexual offences against children has reached enormous proportions and same needs to be tackled with an iron hand, so as to be deterrent on the offenders.

15. Giving protection and safeguarding a child, more particularly a girl child, is not the sole responsibility of the parents, relatives or guardians as the case may be, but it is the social responsibility of every citizen. Today's children are the future of our country. If a child is subjected to a sexual offence at a tender age of three years, the amount of trauma that the child undergoes cannot be described in normal words. Further, the impact of such incident on the parents and family members will be enormous. The child will have to suffer such mental stress for the rest of her life. The sufferance of the victim child may possibly affect her prospects in life.

16. It will be useful to quote from the research papers/articles published by the child psychologists and experts about the impact of trauma on account of sexual abuse.

"The trauma that results from sexual abuse is a syndrome that affects not just the victim and their family, but all of society. Because sexual abuse, molestation, and rape are such shame-filled events, our culture tends to suppress information about them." (Trauma : Childhood Sexual Abuse by Susanne Babbel MFT, PhD., Somatic Psychology). Posted on sychologytoday.com on 13th March, 2013 and updated in the website in the year 2020.

Consequences:

Sexual assault in childhood or adulthood impacts not only the victim, but also the victim's family and PNR,J & Dr.GRR,J WP No.18680 of 2021

friends as well as society as a whole. In this regard, sexual assault is a public health problem that concerns everyone. Sexual assault has numerous potential consequences that can last a lifetime and span generations, which serious adverse effects on health, education, employment, crime, and the economic wellbeing of individuals, families, communities and societies."(Understanding sexual assault by INSPQ, Institute National de Santé Publique du Québec (French : National Public Health Institute of Quebec; Canada) ... Available in the website-mobile.inspq.ac.ca of INSPQ in 2020."

13. The documents placed on record disclose that detenu

developed an evil eye on the victim girl, was regularly observing

the moments of the victim girl at the family owned kirana shop.

On 07.02.2021, the detenu along with his associate followed the

victim minor girl when she was walking on the road with a

friend to go to friends' house, obstructed both the girls, offered

cake and requested them to come with them. The girls refused

to go with them. Later, the associate of the detenu caught hold

of hand of the victim girl and both fled away along with the

victim minor girl on two wheeler motorcycle. On the way, they

purchased snacks and water bottle from a pan shop. They

threatened the victim girl to kill her if she makes any noise. The

detenu took the minor girl to hill area. When victim resisted

removing her cloths, he threatened her. She became panic, cried

loudly, and pleaded to let her. Detenu did not heed to the

victim girl's prayers, abused her in filthy language, beat her PNR,J & Dr.GRR,J WP No.18680 of 2021

with hands, threatened the victim girl to kill if she does not

cooperate with him in sexual intercourse and raped her. After

committing rape, he warned her not to disclose, or else he

would kill her. The associate dropped the victim girl nearer to

her house. Police have recorded the movements of two wheeler

vehicle used by the detenu from the time of kidnapping the

minor girl till dropping her at her residence.

14. These facts clearly disclose criminal bent of mind to

commit rape and threatening the victim girl with dire

consequences. The record does not disclose any kind of

acquaintance of victim girl with the detenu. It appears, the

detenu is a stranger and following the victim girl with an evil

intention to commit rape.

15. In Charakonda China Chennaiah (supra), the Division

Bench noticed that detenu is known to the victim. Sister of

detenu was also a student in the same school where the victim

was studying. Detenu developed intimacy with the girl. Due to

the acquaintance/friendship, the detenu could persuade the

victim girl to accompany him and took her to a secluded place

where he committed crime. The crime was committed by the

detenu on a minor girl very well known to him. He was not a PNR,J & Dr.GRR,J WP No.18680 of 2021

stranger to the victim. In the above factual background, the

Division Bench observed that though the offence is grave, it

cannot be said that the detenu would indulge in similar

prejudicial activities in future and therefore, quashed the order

of detention. The Division Bench also noticed that it took more

than two months to take recourse to preventive detention after

the bail was granted and in the meantime, the detenu did not

commit any further crime. In the peculiar facts of the case,

Division Bench held that preventive detention was not

warranted.

16. A careful look at the facts and reasons assigned by the

Division Bench, it is clear that the detenu had close

acquaintance with the victim and in the interregnum period,

after he was granted bail, he did not commit any crime. The

Division Bench noted that,

"15. ......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 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 PNR,J & Dr.GRR,J WP No.18680 of 2021

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."

17. In the instant case, the order of detention was passed

within four weeks from the date of securing bail. In this case,

the detenu was a stranger to the victim. The facts in this case

are somewhat similar to the facts noticed in Bhimsen Tyagi

(supra).

18. Dealing with these kinds of crimes, in Arun Ghosh

(supra), the Hon'ble Supreme Court observed as under:

"3. A guest at a hotel may kiss or make advances to half a dozen chamber maids. He may annoy them and also the management but he does not cause disturbance of public order. He may even have a fracas with the friends of one of the girls but even then it would be a case of breach of law and order only. Take another case of a man who molests women in lonely places. As a result of his activities girls going to colleges and schools are in constant danger and fear. Women going for their ordinary business are afraid of being waylaid and assaulted. The activity of this man in its essential quality is not different from the act of the other man but in its potentiality and in its affect upon the public tranquillity there is a vast difference. The act of the man who molests the girls in lonely places causes a disturbance in the even tempo of living which is the first requirement of public order. He disturbs the society and the community. His act makes all the women apprehensive of their honour and he can be said to be causing disturbance of public order and not merely committing individual actions which may be taken note of by the criminal prosecution agencies. It means therefore that 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. The French distinguish law and order and public order by designating the latter as order publique. The latter expression has been recognised as meaning something more than ordinary maintenance of law and order. Justice Ramaswami in Writ PNR,J & Dr.GRR,J WP No.18680 of 2021

Petition No. 179 of 1968 drew a line of demarcation between the serious and aggravated forms of breaches of public order which affect the community or endanger the public interest at large from minor breaches of peace which do not affect the public at large. He drew an analogy between public and private crimes. The analogy is useful but not to be pushed too far. A large number of acts directed against persons or individuals may total up into a breach of public order. In Dr Ram Manohar Lohia case examples were given by Sarkar and Hidayatullah, JJ. They show how similar acts in different contexts affect differently law and order on the one hand and public order on the other. It is always a question of degree of the harm and its affect upon the community. The question to ask is: Does it lead to disturbance of the current of life of the community so as to amount a disturbance of the public order or does it affect merely an individual leaving the tranquillity of the society undisturbed? This question has to be faced in every case on facts. There is no formula by which one case can be distinguished from another."

(emphasis supplied)

19. In addition to the heinous crime committed against minor

girl, the detenu is a known offender. Having regard to his

criminal background, earlier also Act 1 of 1986 was invoked to

preventively detain him vide order dated 25.10.2019. Which

was later set aside by this Court holding that crimes alleged

against him did not warrant extreme measure of detaining the

detenu. After he was set free, his wicked mind started working

to trap the victim. Detenu committed heinous crime on a minor

girl who was a stranger.

20. We are reminded of view expressed by Hon'ble Supreme

Court in Haradhan Saha (supra). The Hon'ble Supreme Court

held as under:

"32. The power of preventive detention is qualitatively different from punitive detention. The power of preventive detention is a PNR,J & Dr.GRR,J WP No.18680 of 2021

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 no bar to an order of preventive detention. An order of preventive detention is also not a bar to prosecution.

33. Article 14 is inapplicable because preventive detention and prosecution are not synonymous. The purposes are different. The authorities are different. The nature of proceedings is different. In a prosecution an accused is sought to be punished for a past act. In preventive detention, the past act is merely the material for inference about the future course of probable conduct on the part of the detenu."

21. In the peculiar facts of this case, it cannot be said that

the detaining authority exceeded his jurisdiction and committed

illegality in resorting to preventively detain the detenu

warranting interference of this Court. Writ Petition is

accordingly dismissed. Pending miscellaneous petitions if any

shall stand closed.

_______________________________ JUSTICE P.NAVEEN RAO

_______________________________ DR. JUSTICE G.RADHA RANI Date: 23.02.2022 Kkm PNR,J & Dr.GRR,J WP No.18680 of 2021

HONOURABLE SRI JUSTICE P.NAVEEN RAO & HONOURABLE DR. JUSTICE G.RADHA RANI

WRIT PETITION No.18680 of 2021

Date: 23.02.2022 kkm