Showing posts with label habit. Show all posts
Showing posts with label habit. Show all posts

Saturday, 27 February 2021

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

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