D.M. Nagaraja Vs. The
Government of Karnataka & Ors.
J U D G M E N T
appellant has filed this appeal against the final judgment and order dated 28.03.2011
passed by the High Court of Karnataka at Bangalore in a writ of Habeas Corpus
being Writ Petition No. 220 of 2010 whereby the High Court dismissed the writ
petition filed against the order of detention dated 22.09.2010 passed by the Commissioner
of Police, Bangalore City, vide CRM(4)/DTN/10/2010.
a. According to the Detaining
Authority, the appellant-detenue, when he was 30 years old, started his career in
criminal field by committing offences like murder, attempt to murder, dacoity, rioting,
assault, damaging the public property, provoking the public, attempt to grab
the property of the public, extortion while settling land disputes and
possessing of illegal weapons etc.
b. By the date of the detention
order, i.e. on 22.09.2010, eleven cases had been filed against the detenue and out
of them, four cases were pending trial before the respective Courts and records
have been destroyed as time barred in four cases. In two cases, he has been
acquitted. In pending cases, he was granted bail from the courts and in one case
he has been convicted and sentenced to undergo rigorous imprisonment for a term
of nine years by the Sessions Court, Bangalore. The detention order further
shows that because of his habituality in committing crimes, violating public
order by threatening the public, causing injuries to them and damaging their
properties and he was not amenable and controllable by the normal procedure,
detained him as `goonda' under Section 2(g) of the Karnataka Prevention of Dangerous
Activities of Bootleggers, Drug-Offenders, Gamblers, Goondas, Immoral Traffic Offenders
and Slum-Grabbers Act, 1985 (hereinafter referred to as "the Karnataka Act")
(Act No. 12 of 1985) for a period of 12 months.
c. The appellant himself
challenged the detention order before the High Court of Karanataka by filing a
writ of Habeas Corpus. Before the High Court, the only contention put-forth by the
appellant was that there was enormous delay in considering his representation made
on 06.10.2010 to the Advisory Board for withdrawal of the detention order. While
negating the said contention, the Division Bench of the High Court has gone
into the validity or otherwise of the detention order and after finding that
the Detaining Authority was fully justified in clamping the detention order, dismissed
the writ petition filed by the appellant-detenue vide order dated 28.03.2011. The
said order is under challenge before us by way of special leave petition.
Mr. C.B. Gururaj, learned counsel for the appellant-detenue and Ms. Anitha
Shenoy, learned counsel for the State of Karanataka.
point for consideration in this appeal is whether the Detaining Authority is
justified in passing the detention order dated 22.09.2010 and the High Court is
right in confirming the same and dismissing the writ petition filed by the
Statement of Objects and Reasons of the Karnataka Act No. 12 of 1985 shows that
the activities of certain anti-social elements like bootleggers, drug-offenders,
gamblers, goondas, immoral traffic offenders and slum grabbers have from time to
time caused a feeling of insecurity and alarm among the public and tempo of life
especially in urban areas has frequently been disrupted because of such persons.
In order to ensure that the maintenance of public order in the State of
Karnataka is not adversely affected by the activities of these known
anti-social elements, it is considered necessary to enact a special legislation.
The following provisions of Karnataka Act 12 of 1985 are relevant :
: - In this Act, unless the context otherwise requires, - (a) "acting in
any manner prejudicial to the maintenance of public order" means, -
the case of a goonda when he is engaged, or is making preparations for engaging,
in any of his activities as a goonda which affect adversely or are likely to affect
adversely the maintenance of public order;
Explanation - For the
purpose of this clause, public order shall be deemed to have been affected
adversely or shall be deemed likely to be affected adversely inter alia if any
of the activities of any of the persons referred to in this clause directly or
indirectly, is causing or is calculated to cause any harm, danger or alarm or a
feeling of insecurity, among the general public or any section thereof or a grave
or widespread danger to life or public health.
order" means an order made under Section 3;
means a person detained under a detention order;
means a person who either by himself or as a member of or leader of a gang,
habitually commits or attempts to commit or abets the commission of offences punishable
under Chapter VIII, Chapter XV, Chapter XVI, Chapter XVII or chapter XXII of
the Indian Penal Code (Central Act XLV of 1860)"Section 3 empowers the State
Government to detain certain persons with a view to prevent them from acting in
any manner prejudicial to the maintenance of public order. If the
is able to satisfy that a person either by himself or in association with other
members habitually commits or attempts or abets such commission of offence punishable
under the Indian Penal Code, 1860 (in short `IPC') and subject to satisfying Section
3 of the Karnataka Act No. 12 of 1985, he can be detained in terms of the said
essential concept of preventive detention is that the detention of a person is not
to punish him for something he has done but to prevent him from doing it. Even,
as early as in 1975, the Constitution Bench of this Court considered the
procedures to be followed in view of Articles 19 and 21 of the Constitution. In
Haradhan Saha vs. State of West Bengal & Ors. (1975) 3 SCC 198, the Constitution
Bench of this Court, on going through the order of preventive detention under Maintenance
of Internal Security Act, 1971 laid down various principles which are as
follows:- ".....First; merely because a detenue is liable to be tried in a
criminal court for the commission of a criminal offence or to be proceeded against
for preventing him from committing offences dealt with in Chapter VIII of the Code
of Criminal Procedure would not by itself debar the Government from taking
action for his detention under the Act.
Second; the fact that
the Police arrests a person and later on enlarges him on bail and initiates steps
to prosecute him under the Code of Criminal Procedure and even lodges a first information
report may be no bar against the District Magistrate issuing an order under the
preventive detention. Third; where the concerned person is actually in jail
custody at the time when an order of detention is passed against him and is not
likely to be released for a fair length of time, it may be possible to contend that
there could be no satisfaction on the part of the detaining authority as to the
likelihood of such a person indulging in activities which would jeopardize the security
of the State or the public order.
Fourth; the mere circumstance
that a detention order is passed during the pendency of the prosecution will not
violate (sic) the order. Fifth; the order of detention is a precautionary
measure. It is based on a reasonable prognosis of the future behaviour of a person
based on his past conduct in the light of the surrounding circumstances."
In the light of the above principles, let us test the validity of the detention
order issued under Act No. 12 of 1985 and as affirmed by the High Court.
C.B. Gururaj, learned counsel for the appellant raised the only contention that
inasmuch as action can be taken against the detenue under the ordinary laws,
there is no need to detain him under Act No. 12 of 1985. In support of his contention,
he very much relied on the recent decision of this Court in Rekha vs. State of Tamil
Nadu (2011) 5 SCC 244. On the other hand, Ms. Anitha Shenoy, learned counsel
for the State, after taking us through the entire materials, various continuous
activities of the detenue and several orders, submitted that the Detaining
Authority is fully justified in clamping the order of detention and she also pointed
out that the decision of the High Court is perfectly in order and prayed for
dismissal of the appeal.
have carefully considered the rival contentions and perused the grounds of detention
order and all the materials relied on by the Detaining Authority.
detention order refers the activities and involvement of the appellant-detenue
in as many as 11 cases. The details of which are mentioned hereunder:
"1. Sriramapura PS
Cr. No. 55/81 under Sections 143, 147, 148, 149, 348, 307 IPC : The file in this
case has been destroyed as time barred.
2. Rajajinagar PS Cr.
No. 81/81 under Section 324 r/w Section 34 IPC : The file of this case too has been
destroyed as time barred.
3. Sriramapura PS Cr.
No. 484/83 under Section 302 read with Section 149 IPC : In this case, the detenue
is the prime accused. He along with his brother Kitti and other associates committed
the offence punishable under Section 302 IPC. After trial the detenue was found
guilty and was convicted to undergo rigorous imprisonment for 9 years. However,
the records of this case have been destroyed as time barred and are not
4. Srirampuram PS Cr.
No. 624/83 under Section 307 IPC - This record also has been destroyed as time
5. Victoria Hospital PS
Cr. No. 75/87 under Sections 350, 352 and 506(B) IPC : After the detenue's
conviction in Cr. No. 484/83, he was admitted in Prisoner's ward, Victoria
Hospital, Bangalore, for treatment. On 19.12.1987 at about 11.30 a.m., the detenue
tried to escape from the prisoner's ward but, he was restricted by the official
deputed for his escort. The detenue got violent and threatened the escort saying
that he would kill him in 3 days. Thereafter, after investigation, charge sheet
was filed in CC No. 869/88. As the detenue was absconding, he was taken in judicial
custody in UTP No. 2896. The case is under trial.
6 & 7. Srirampura
PS Cr. Nos. 215/87 under Section 302 read with Sections 149 IPC, under Sections
220/89, 143, 144, 148, 324, 302 read with 109 IPC : Both these case files are
destroyed as time barred. However, according to rowdy sheet a charge sheet has
been filed in the 3rd ACMM Court, Bangalore City on 10.06.1987 and the same was
taken on file in CC No. 3738/87 for trial in Cr. No. 215/87.
8. Sriramapura PS Cr.
No. 198/03 under Section 384 IPC: On 05.08.2003, at about 6.00 a.m. the detenue
and his associate Ravi extorted Rs.200/- from one Venkatesh threatening him with
dire consequences and boasting that they were rowdies of Rajajinagar and Srirampuram.
They were arrested on 06.08.2003 and remanded to judicial custody. However, this
case ended in acquittal as the witnesses out of fear did not depose properly in
Court against them.
9. High Grounds PS Cr.
No. 341/04 under Section 302 IPC : In this case due to prior rivalry with rowdy
Rajendra @ Bekkina Kannu Rajendra, and also thinking that Rajendra was
responsible for the death of his younger brother Krishna @ Kitti, chased him in
public view and assaulted him with longs, dagger and other weapons and murdered
him. He was arrested on 09.11.2004 and remanded to judicial custody. This case ended
in acquittal since the witnesses did not depose properly against him out of
10. Yelahanka New Town
PS Cr. No. 186/09 under Sections 143, 147, 148, 120(B), 307, 302 read with Section
149 IPC : In this case also, enmity between Ravi @ Bullet Ravi, Seena, Vasu and
the detenue is the cause. Nursing a grudge over past incidents, the detenue has
done away with the life of Ravi Raj @ Bullet Raj, Seena and Vasu by assaulting them
with sickles. Seena died at the spot, whereas Ravi and Vasu died in the hospital.
The detenue was arrested on 28.08.2009 and remanded to judicial custody. He was
released on bail on 18.11.2009. A case in S.C. No. 120/10 in this regard is
11. Subramanyanagar PS
Cr. No. 32/10 under Sections 307, 353, 399, 402 IPC & 3 & 25 of the
Arms Act : On 06.02.1020 at 6.15 p.m., the detenue and his associates conspired
to murder their rival rowdy Break Jagga and were waiting in a case armed with weapons.
On receipt of this information Shri M.R. Mudvi, PI, CCB Bangalore City along with
police Inspectors and staff conducted raid and tried to arrest them. However, some
of them were able to escape. The detenue remained absconding and evaded arrest.
Later he obtained bail on 24.03.2010 in the Court of 14th FTC, Bangalore. A charge
sheet was filed against him on 17.04.2010 which was taken on file in CC No. 17160/10.
The case is pending trial."
rightly pointed out by Ms. Anitha Shenoy, learned counsel for the State, the perusal
of the records and all the above details furnished in the detention order clearly
show that the appellant-detenue started his career in criminal field when he
was 30 years old and is now about 60 years. In the beginning, he was the
follower of notorious rowdies Jairaj and Korangu Krishna. Later, he formed his
own gang consisting of his own younger brother Krishna @ Kitti along with others.
Krishna @ Kitti met his end in police encounter during 1996 in Rajajinagar P.S.
Crime No. 125 of 1996 for the offences punishable under Sections 141, 143, 147,
148, 302 read with Section 149 IPC.
The records also indicate
that the detenue has about 28 associates assisting him in his criminal
activities and a number of cases are pending against them. The detenue has no regard
for human life. The cases registered against him pertain to murder, attempt to murder,
dacoity, rioting, assault, damage to public property, provoking the public, extortion
while settling land disputes, possessing illegal weapons etc. Though he was sentenced
to undergo rigorous imprisonment for 9 years, that has not deterred him to put
a stop to his criminal activities. In fact, from the year 1981 up to 2010, he has
systematically committed these criminal activities.
the abovementioned details which have been correctly stated in the detention
order clearly show that the appellant is not amenable to ordinary course of law.
It also shows that even after his release on bail from the prison on various occasions,
he again started indulging in same type of offences, particularly, threatening the
public life, damaging pubic property etc.
All these aspects have
been meticulously considered by the Detaining Authority and after finding that
in order to maintain public order, since his activities are prejudicial to the public,
causing harm and danger, the Detaining Authority detained him as `goonda' under
the Karnataka Act No. 12 of 1985 for a period of 12 months and the same was
rightly approved by the Advisory Board and the State Government.
Inasmuch as the
Detaining Authority has taken note of all the relevant materials and strictly
followed all the safeguards as provided in the Act ensuring the liberty of the detenue,
we are in entire agreement with the decision of the Detaining Authority as well
as the impugned order of the High Court affirming the same.
counsel for the appellant very much relied on a recent decision of this Court
in Rekha (supra). In the above case, against the detention order dated 08.04.2010
imposed on Ramakrishnan under the Tamil Nadu Prevention of Dangerous Activities
of Bootleggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders,
Sand Offenders, Slum-Grabbers and Video Pirates Act, 1982 on the allegation that
he was selling expired drugs after tampering with labels and printing fresh labels
showing them as non-expired drugs, his wife filed a habeas corpus petition before
the Madras High Court.
The said writ petition
came to be dismissed on 23.12.2010. Hence, wife of the detenue therein,
approached this Court by way of special leave to appeal. In the same judgment, this
Court has extracted the detention order and the grounds for detaining him under
the Tamil Nadu Act, 1982.
The grounds show that
there is reference to one incident relating to selling expired drugs and the Detaining
Authority by pointing out that necessary steps are being taken by his relatives
to take him out on bail and since in similar cases, bails were granted by the courts
after lapse of some time and if he comes out on bail, he will indulge in further
activities which will be prejudicial to the maintenance of public health and order
and recourse to normal criminal law would not have the desired effect of
effectively preventing him from indulging in such activities, on the materials
placed and after fully satisfying the
Detaining Authority has
passed an order under the Tamil Nadu Act, 1982. In para 7, the Bench has pointed
out that in the grounds of detention, no details have been given about the
alleged similar cases in which bail was allegedly granted by the court concerned.
The grounds extracted therein also are bereft of any further details. In those
circumstances, this Court taking note of various earlier decisions came to the conclusion
that normal recourse to ordinary law would be sufficient and there is no need for
invocation of the special Act.
the case on hand, we have already extracted criminality, criminal activities
starting from the age of 30 and details relating to eleven cases mentioned in the
grounds of detention. It is not in dispute that in one case he has been
convicted and sentenced to undergo rigorous imprisonment for a term of nine
years. He had been acquitted in two cases and four cases are pending against him
wherein he was granted bail by the courts. It is the subjective satisfaction of
the Detaining Authority that in spite of his continuous activities causing
threat to maintenance of public order, he was getting bail one after another
and indulging in the same activities.
In such circumstances,
based on the relevant materials and satisfying itself, namely, that it would not
be possible to control his habituality in continuing the criminal activities by
resorting to normal procedure, the Detaining Authority passed an order
detaining him under the Act No. 12 of 1985. In view of enormous materials which
are available in the grounds of detention, such habituality has not been cited in
the above referred Rekha (supra), we are satisfied that the said decision is
distinguishable on facts with reference to the case on hand and contention
based on the same is liable to be rejected.
learned counsel for the appellant has not raised the objection i.e. delay in
disposal of his representation since that was the only contention before the
High Court, we intend to deal with the same. We have already stated that the
detention order was passed on 22.09.2010 by the Commissioner of Police, Bangalore
City. The said order was approved by the Government on 30.09.2010 and the case
was sent to Advisory Board on 08.10.2010 and the Board sat on 04.11.2010.
The Government received
the report of the Advisory Board on 10.11.2010. Confirmation detaining the
detenu for a period of 12 months was issued on 16.11.2010. Representation of
the detenu through Central Prison was sent on 06.10.2010 i.e. before passing of
the confirmation order by the Government. This Court in K.M. Abdulla Kunhi
& B.L. Abdul Khader vs. Union of India & Ors. and State of Karnataka &
Ors. (1991) 1 SCC 476 (CB) has clearly held that the authority has no constitutional
duty to consider the representation made by the detenu before the order of
confirmation of the detention order.
There is no
constitutional mandate under Clause (5) of Article 22, much less any statutory requirement
to consider the representation before confirming the order of detention. In other
words, the competent authority can consider the representation only after the order
of confirmation and as such the contentions raised by the appellant as if there
was delay in consideration is baseless and liable to be rejected. As pointed out
above, the counsel for the appellant did not raise any objection as regards to
going through the factual details, various materials in the grounds of
detention in view of continuous activities of the detenu attracting the provisions
of IPC, continuous and habituality in pursuing the same type of offences
indulging in committing offences like attempt to murder, dacoity, rioting,
assault, damaging public property, provoking the public, attempt to grab the property
of members of the public, extortion while settling land dispute, possessing illegal
weapons and also of the fact that all the procedures and statutory safeguards have
been fully complied with by the Detaining Authority, we agree with the reasoning
of the Detaining Authority as approved by the Government and upheld by the High
these circumstances, we find no merit in the appeal. Consequently, the same is
(DR. B.S. CHAUHAN)
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