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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
B. VEERAPPA, K.S. HEMALEKHA, JJ.
SHIVARAJA @ KULLA SHIVARAJA S/O RAVIKUMAR – Petitioner
Versus
COMMISSIONER OF POLICE, BENGALURU – Respondent
Writ Petition No. 39 of 2022
Decided On : 19-09-2022
Karnataka Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Gamblers, Goondas, Immoral Traffic Offenders, Slum- Grabbers and Video or Audio Pirates Act, 1985 - Section 3(1), (3), 12, 13, 14, 9, 2(G) - Constitution of India, 1950 - Articles 14, 21, 22, (4) and (5) - Indian Penal Code, 1860 - Sections 143, 147, 148, 323, 307,324, 504, 506, 34, 353 - Code of Criminal Procedure, 1973 - Section 110 - Karnataka Money Lenders Act, 1961 – Section 5, 38 and 39 - Vacate Residential House - Circle Inspector Harassing Family Members - Whether, if a representation is submitted to Advisory Board and representation is within knowledge of State Government, was it duty of State Government to decide on representation independently with opinion of Advisory Board as contemplated under Article 22 (5) of Constitution. [Para 8]
Finding of the Court: In decision in Smt. Gracy, representation of detenu was addressed to Advisory Board - Advisory Board considered representation and enclosed same along with its report to Central Government - In that case, Central Government accepted report of Advisory Board, without independently applying its mind to representation of detenu that was found in file - It was in this backdrop that Apex Court held that, Central Government was under a constitutional duty under Article 22(4) and (5) to consider representation which was part of report of Advisory Board, though representation was not addressed to Central Government - Thus, in light of judgment of Apex Court in case of Smt. Gracy and judgment of Co-ordinate Bench in case of Makuko Chukwuka Moulowo stated supra wherein judgment of Smt. Gracy and R. Keshava were distinguished and is squarely applicable to facts of present case and representation was very well within knowledge of State Government and non-consideration of said representation which was received by State, detaining authority cannot plead ignorance of representation and accordingly, principles laid down in judgment of Apex court in case of Smt. Gracy is squarely applicable to present facts and circumstances of case and therefore, rights of detenue has been violated as conferred upon the petitioner under clause 5 of Article 22 of the Constitution and hence, the order of detention to be continued is rendered illegal and point framed for consideration is answered in favour of petitioner - Impugned order passed by respondent No. 1 is hereby set aside and consequent order passed by respondent No. 2 under Section 3(3) of Goonda Act and Order is hereby set aside – Court direct respondent No. 3/Senior Superintendent Central Prison, to set at liberty petitioner No. 1 forthwith, if he is not required in any other case.
Result: Petition allowed.
ORDER :
“As the proverb goes “use it or lose it” like unused knowledge becomes a burden, unused time dies “what is not used, is abused.”
1. Petitioner No. 1 being the detenue and petitioner No. 2 the wife of the detenue/petitioner No. 1 assail the order bearing reference No. 26/CRM/(4)/DTN/2021 dated 28.12.2021 (Annexure-A) passed by respondent No. 1 under the provision of Section 3(1) of the Goonda Act, the order bearing No. HD 1 SST 2022 dated 06.01.2022 passed by respondent No. 2 under Section 3(3) of the Goonda Act (Annexure-B) and order bearing reference No. HD 1 SST 2022 dated 14.02.2022 (Annexure-C) passed by respondent No. 2 under the provisions of Section 12 of the Goonda Act and sought to call for records of the order bearing reference No. 26/CRM/(4)/DTN/2021 dated 28.12.2021 (Annexure-A) from the respondent.
2. It is stated in the writ petition that petitioner No. 1 has been preventively detained from 28.12.2021 for one year under the Karnataka Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Gamblers, Goondas, Immoral Traffic Offenders, Slum- Grabbers and Video or Audio Pirates Act, 1985 (“Goonda Act” for short) and resulted in the violation of the fundamental rights of petitioner No. 1 under Articles 14, 21 and 22 of the Constitution of India being infringed.
(I) Facts:
3. The facts leading to the filing of the present writ petition are as under:
(b) One Jagadeesh, Inspector of the Karnataka State Police, who was later posted at Tavarekere Police Station as a Circle Inspector and since 2021 he has been constantly harassing the petitioner and his family members and the said inspector would often come near the house and workplace of petitioners and threatened to eliminate petitioner No. 1 in an encounter and further threatened petitioner No. 1 with dire consequences if he did not vacate his residential house and move out of Bengaluru City and being aggrieved by the said Act of the inspector, the petitioner complained with the Karnataka State Human Rights Commission on 20.04.2021.
(c) The lodging of a complaint by petitioner No. 1 with the State Human Rights Commission came to the knowledge of said inspector Jagadish, who summoned petitioner No. 1 and his family members on 21.04.2021 and abused them in filthy language and obtained the identification marks of petitioner No. 1. It is stated that in the presence of the petitioners, the said inspector Jagadish telephoned to the police at Byadarahalli Police Station and directed them to implicate petitioners in 2 to 3 false cases. Further, in blatant abuse of his power, on 23.04.2021, the said inspector coaxed his fellow policemen to seek permission from the higher police authorities for the opening of “A” Rowdy Sheet against the petitioners and on 06.05.2021 permission was granted and apart from this, several false cases came to be registered against petitioner No. 1.
(d) On 11.08.2021, the Byadarahalli Police registered Cr. No. 329/2021 for the offences punishable under Sections 324, 504, 506 read with Section 34 of the Indian Penal Code, 1860 (“IPC”) on the false ground that the petitioner has assaulted one Sri Darmesh and on 12.08.2021 i.e. on the next day Cr. No. 331/2021 another case was registered for the offence punishable under Section 353 read with Section 34 of the IPC on the false ground that petitioner No. 1 and his associates sprayed pepper spray in the eyes of the PSI Harish when he attempted to arrest petitioner No. 1 and that the police officer Jagadish threatened to lodge additional false cases against petitioner No. 1.
(e) When the facts stood thus, it is stated that on 28.12.2021, respo
Article 22(5) casts an important duty on the detaining authority to communicate the grounds of detention to the detenu at the earliest to afford him the earliest opportunity of making a representatio....
Point of law : words 'shall afford him the earliest opoortunity of making a representation against the order' in Article 22(5) of the Constitution suggest that the obligation of the Government is to ....
The court established that compliance with procedural requirements under the Goonda Act is mandatory for the validity of detention orders, and failure to provide necessary documentation and translati....
(1) Law of preventive detention must not only comply with Article 22 of Constitution, but also fulfill mandate of Articles 21 and 14.(2) Preventive detention – If consideration of representation made....
Point of law : If for any reason, the detenue has to be released temporary, it is always open for him to approach the State Government to get the release order subject to conditions prescribed under ....
The violation of a detenue's rights under Article 22(5) leads to the quashing of detention orders when there is inordinate delay in considering representations.
The court established that strict compliance with procedural requirements in preventive detention laws is essential to protect individual liberties, and any failure to do so renders the detention ord....
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