Law Web: Whether police can detain sexual offender in preventive detention?

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

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 chargesheet 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.

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

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.

TELANGANA HIGH COURT

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 Vs. The State of Telangana a

Cases referred

1. AIR 1966 SC 740

2. (1972) 3 SCC 831

3. (1984) 3 SCC 14

4. AIR 1987 SC 2332

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,

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

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

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

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

1 AIR 1966 SC 740

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.

Sl.

No.

Crime

No.

Date of

Occurrence

Date of

registratio

of FIR

Offences Nature

1. 452/2020 of

Shadnagar PS

Intervening

night of

26/27.06.2020

27.06.2020

Sec.363,

376(2)(n) of

IPC and Sec.5

r/w 6 of

POCSO Act,

2012

Sections 363 &

376(2)(n) :

Cognizable/

Non-Bailable

Sec. 5 & 6 of

POCSO Act:

Cognizable/

Non-Bailable

2 (1972) 3 SCC 831

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,

3 (1984) 3 SCC 14

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