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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