1. The Commissioner of Police No.1, Infantry Road Bangalore.

Transcription

1 1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27 TH DAY OF APRIL 2015 PRESENT THE HON BLE MR. JUSTICE N.K. PATIL AND THE HON BLE MRS. JUSTICE RATHNAKALA WRIT PETITION (HABEAS CORPUS) NO.12/2015 BETWEEN: Smt.Vinutha Lakshmi Wife of A.N.Mohan Aged about 56 years R/a No.2, 12 th Main Road Vasanth Nagar Bangalore PETITIONER (By Sri.Younous Ali Khan, Adv.) AND: 1. The Commissioner of Police No.1, Infantry Road Bangalore. 2. State of Karnataka by its Under Secretary Law & Order Department Vidhana Soudha Bangalore

2 2 3. The Superintendent Bangalore Central Prison Parapana Agrahara Bangalore. RESPONDENTS. (By Sri.H.V.Manjunatha, AGA) THIS WRIT PETITION (HABEAS CORPUS) IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT IN THE NATGURE OF HABEAS CORPUS AND TO DECLARE THE DETENTION OF JACKY, S/O SHRI.MOHAN BY ORDER NO.CRM(4)DTN/16/2014 DT VIDE ANNEXURE-A PASSED BY RESPONDENT NO.1 AND APPROVED BY THE RESPONDENT NO.2 BY OREDER NO.HD 530 SST 2014 DT AND DATED VIDE ANNEXURE-C AND D, AS ILLEGAL AND SET THE DETENU AT LIBERTY. THIS WRIT PETITION (HC) HAVING BEEN HEARD AND RESERVED FOR ORDERS ON AND COMING ON FOR PRONOUNCEMENT OF ORDER THIS DAY, RATHNAKALA J., MADE THE FOLLOWING:- O R D E R The petitioner is challenging the detention of her son Jacky, son of Sri.Mohan, in view of the detention order dated passed by the first respondent vide Annexure-A and approved by the second respondent/government of Karnataka vide Annexure-C dated and Annexure-D dated , by invoking the provisions of the Karnataka Prevention of Dangerous Activities of Bootleggers, Drug-Offenders,

3 3 Gamblers, Goondas, Immoral Traffic Offenders and Slum- Grabbers Act, 1985 ( the Act for short). 2. Sri.Younous Ali Khan, learned Counsel appearing for the petitioner submits that the detenu voluntarily surrendered before III A.C.M.M., Bangalore, in connection with Crime No.1418/14 of Madivala Police Station registered in respect of the offences punishable under Sections 427, 109, 120B, 143, 147, 148, 149, 448, 302 and 307 of IPC. Now he is in judicial custody and has not moved any bail application. Under the circumstance, there was no reason for the respondent to apprehend that he will be released on bail. In the grounds of detention, the respondent has referred to his involvement in four cases. Out of other three cases registered against him, one case was in respect of a petty offence; on his admission of the offence, he was imposed fine; other two cases are under Sections 399 and 402 of IPC, which were registered suo moto by the Police falsely alleging that he was conspiring to commit dacoity along with the coaccused. The detention order is signed by the Under Secretary, who has no authority to pass the confirmation

4 4 order. The detention order is not approved by the State within twelve days of passing of the order by the Police Commissioner. The documents which are referred by the Police Commissioner in the detention order for forming his opinion are not furnished to him to have his say in the matter, hence, violative of the Article 22(5) of the Constitution of India. Vaguely it is stated in the grounds of detention that the detenu involved himself at the age of 19 years in criminal cases and also forming group, etc. is only imaginary, without the proof of documentary material. He is in custody from He is on bail in two pending cases registered against him in respect of offence punishable under Sections 399 and 402 of IPC. The prosecution in either of the cases has not sought for cancellation of his bail for violation of the bail order. The detention order passed by the Commissioner, so also the confirmation of the detention order are illegal and unconstitutional. 3. In reply, learned Additional Government Advocate submits that the detention order was approved on The report of the Advisory Board was received

5 5 on ; on , period of detention has been specifically mentioned and there is no merit in the petition and the same is liable to be rejected. 4. Admittedly, the detenu was in judicial custody in a criminal case as on the date the detention order was passed; there was no reason to presuppose that he will be enlarged on bail, since he had not moved any application for his release on bail in the concerned Court. It is not the case of the respondent that the co-accused/similarly placed to the detenu were enlarged on bail probabalizing that detenu also may be enlarged on bail on the ground of parity. The Apex Court in 2011 SAR (Crl) 390 in the matter of REKHA vs- State of Tamil Nadu Tr. Sec. to Govt. & Anr. held that if no bail application was pending and the detenu is in jail, the detention order is illegal. In AIR 1989 SC 2274 in the matter of Ahmedhussain Shaikhhusain alias Ahmed Kalio vs- Commissioner of Police, Ahmedabad and another, it was held that when a detenu is in jail in connection with the criminal case, the detaining authority must disclose that there is cogent and relevant material

6 6 constituting fresh facts to necessitate making order of detention. The possibility that the detenu may be released from the jail is not a ground for detention. The same view was taken in AIR 1986 SC 315 in the matter of Ramesh Yadav vs- District Magistrate, Etah and others; AIR 1988 SC 596 in the matter of Smt.Shashi Aggarwal vs- State of U.P. and others and in AIR 1986 SC 2090 in the matter of Binod Singh vs- District Magistrate, Dhanbad, Bihar and others. 5. In the grounds of detention, the first respondent indicates that the detenu is not amenable to the ordinary laws of the land and his goonda activities had disturbed the tempo of the public life of the locality and detrimental to the maintenance of public order in Bangalore city, etc., but without producing what are those material which prompted the Commissioner to form such opinion. Out of the previous cases referred in the grounds of detention, two of them are pending trial and in one petty case, on his admission of the accusation he is enlarged on bail. In the light of the judgment of the Apex Court, the detention order passed

7 7 against the detenu while in custody, on a presupposition that he will take law into his hands by obtaining bail was skeptical and in violence of the personal liberty protected under Article 21 of the Constitution and also violative of the Section 22 sub-section (5) of the Constitution of India also. Though the confirmation order is passed within 12 days of the detention order and subsequently the State Government on the recommendation of the advisory board extended the detention for 12 months subject to renewal for every three months, for the discussion supra, the detention order is vitiated. Accordingly, the Writ Petition is allowed. The detention order dated passed by the first respondent vide Annexure-A and approved by the second respondent/government of Karnataka vide Annexure-C dated and Annexure-D dated , are quashed.

8 8 Since the detenu is in judicial custody in respect of Crime No. No.1418/14 of Madivala Police Station, no further order for his release is necessary. Sd/- JUDGE Sd/- JUDGE KNM/-