Karnataka High Court
Sri. Shivakumar A vs The State Of Karnataka on 1 February, 2025
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W.P.H.C. No.111/2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF FEBRUARY, 2025
PRESENT
THE HON'BLE MRS. JUSTICE ANU SIVARAMAN
AND
THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL
W.P.H.C NO.111/2024
BETWEEN:
SRI. SHIVAKUMAR A
@ R.X. SHIVA @ KALLA SHIVA
S/O ANANDA
AGED ABOUT 25 YEARS
R/AT NO 220, 16TH CROSS
BELAVADI MAIN ROAD
Digitally signed by BELAVADI, MYSURU - 573113
ARSHIFA BAHAR
KHANAM
Location: HIGH ...PETITIONER
COURT OF
KARNATAKA (BY SRI. ROOPESHA B, ADV.,)
AND:
1. THE STATE OF KARNATAKA
UNDER SECRETARY TO GOVERNMENT
HOME DEPARTMENT (LAW AND ORDER)
VIDHANA SOUDHA
DR.B.R. AMBEDKAR VEEDHI
BENGALURU - 560001.
2. THE ADDITIONAL DISTRICT MAGISTRATE
AND THE COMMISSIONER OF POLICE
MYSURU CITY, MIRZA ROAD
NAZARBAD, MYSURU - 570010.
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3. THE DEPUTY COMMISSIONER OF POLICE
LAW AND ORDER MYSURU CITY
MIRZA ROAD, NAZARBAD
MYSURU - 570010.
4. THE ASSISTANT COMMISSIONER OF POLICE
VIJAYANAGAR SUB DIVISION
MYSURU CITY, MYSURU - 570017.
5. THE POLICE INSPECTOR
VIJAYANAGAR POLICE STATION
VIJAYANAGAR 2ND STAGE
MYSURU CITY, MYSURU - 570017.
6. THE JAIL SUPERINTENDENT
CENTRAL JAIL, JAIL ROAD
KODAILBAIL, MANGALORE - 575003.
...RESPONDENTS
(BY SRI. M.V. ANOOP KUMAR, HCGP)
THIS W.P.H.C. IS FILED UNDER ARTICLE 226 AND
227 OF CONSTITUTION OF INDIA, PRAYING TO ISSUE A
WRIT IN THE NATURE OF HABEAS CORPUS OR WRIT OR
ORDER OR DIRECTION OF APPROPRIATE NATURE AND
QUASH THE IMPUGNED DETENTION ORDER DATED
24/03/2024 PASSED IN NO/COP/MSG/G.A/02/2004
ISSUED BY THE 2ND RESPONDENT, VIDE ANNEXURE-E
AND THE IMPUGNED ORDER PASSED BY THE 1ST
RESPONDENT IN NO. HD 141 SST 2024 DATED
28/03/2024, VIDE ANNEXURE-F, PASSED 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.
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W.P.H.C. No.111/2024
THIS W.P.H.C. HAVING BEEN HEARD AND RESERVED
ON 29.01.2025, COMING ON FOR PRONOUNCEMENT OF
ORDER, THIS DAY VIJAYKUMAR A. PATIL J., MADE THE
FOLLOWING:
CORAM: HON'BLE MRS. JUSTICE ANU SIVARAMAN
and
HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL
CAV ORDER
(PER: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL)
The petitioner No.1 is the detenue and the petitioner
No.2 is the father of the detenue. They are seeking prayer
to set free the petitioner No.1-detenue by issuing a writ in
the nature of Habeas Corpus and by quashing the order
dated 24.03.2024 passed by the respondent No.2 at
Annexure-E and the order dated 28.03.2024 passed by the
respondent No.1 at Annexure-F.
2. The detention order came to be passed by the
respondent No.2 by exercising the power conferred under
sub-Section (2) of Section 3 of the Karnataka Prevention
of Dangerous Activities of Bootleggers, Drug-Offenders,
Gamblers, Goondas (Immoral Traffic Offenders, Slum-
Grabbers and Video or Audio Pirates) Act, 1985
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(hereinafter referred to as 'the Goonda Act'). The said
order has been confirmed by the respondent No.1. The
grounds of detention have been served on the detenue.
The detention order, grounds of detention and the file was
placed before the Advisory Board and the Advisory Board
forwarded its opinion to the respondent No.1. Thereafter,
the respondent No.1 passed an order dated 22.04.2024 as
required under the Goonda Act. Being aggrieved, the
petitioners have filed the present petition.
3. Sri.B.Roopesha, learned counsel appearing for
the petitioners submits that the detention order dated
24.03.2024 passed by the respondent No.2 is contrary to
the provisions of the Goonda Act. It is submitted that the
first two complaints filed against the detenue are by his
uncle and cousin brother relating to civil disputes and
other cases relied on by the Authority while passing the
detention order are stale matters and in all the cases, the
detenue was on bail. These aspects have not been
considered by the respondent No.2 while passing the
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impugned order of detention. It is further submitted that
there is no duration of detention mentioned in the
impugned order and on this ground also, interference is
called for. It is also submitted that no opportunity of
hearing was provided to the detenue and hurriedly
impugned orders were passed. Hence, he seeks to allow
the petition by setting free the detenue.
4. Per contra, Sri.M.V.Anoop Kumar, learned High
Court Government Pleader for the respondents supports
the impugned order of detention. It is submitted that the
detenue is involved in 7 crimes from 2017 to 2023. The
material on record indicates that the conduct of the
detenue was detrimental to the public peace, tranquility
and public order. The Detaining Authority has taken note
of the fact that even after getting the bail, the detenue
continued his illegal activities which has resulted in the
passing of the detention order. The 7 crimes referred in
the detention order are heinous in nature and the activities
of the detenue has created panic in the locality and
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keeping in mind his likely activities further, the detention
order has been passed. It is contended that the impugned
order passed by the respondent No.2 has been confirmed
by the respondent No.1 and the Advisory Board is also of
the opinion that there are grounds for detention. Hence,
he seeks to dismiss the writ petition.
5. We have heard the learned counsel for the
petitioners, learned High Court Government Pleader for the
respondents and perused the material available on record.
We have bestowed our anxious consideration on the
submissions advanced on both sides. The point that arises
for consideration in this petition is "Whether the order of
detention dated 24.03.2024 and the order of
confirmation dated 28.03.2024 passed by the
respondent Nos.2 and 1, respectively detaining the
petitioner No.1-detenue is sustainable under the
law?"
6. The impugned order of detention is passed by
the respondent No.2 by exercising the power conferred
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under Sections 3(2) of the Goonda Act. The relevant
Sections are extracted hereinbelow:
3. Power to make orders detaining certain
persons.- (1) The State Government may, if
satisfied with respect to any bootlegger or drug-
offender or gambler or goonda or [Immoral Traffic
Offender or Slum-Grabber or Video or Audio pirate]
that with a view to prevent him from acting in any
manner prejudicial to the maintenance of public
order, it is necessary so to do, make an order
directing that such persons be detained.
(2) If, having regard to the circumstances
prevailing or likely to prevail in any area within the
local limits of the jurisdiction of a District
Magistrate or a Commissioner of Police, the State
Government is satisfied that it is necessary so to
do, it may, by order in writing, direct that during
such period as may be specified in the order, such
District Magistrate or Commissioner of Police may
also, if satisfied as provided in sub-section (1),
exercise the powers conferred by the sub-section :
Provided that the period specified in the order
made by the State Government under this sub-
section shall not, in the first instance, exceed three
months, but the State Government may, if satisfied
as aforesaid that it is necessary so to do, amend
such order to extend such period from time to time
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by any period not exceeding three months at any
one time.
(3) When any order is made under this
section by an officer mentioned in sub-section (2),
he shall forthwith report the fact to the State
Government together with the grounds on which
the order has been made and such other particulars
as, in his opinion, have a bearing on the matter and
no such order shall remain in force for more than
twelve days after the making thereof, unless, in the
meantime, it has been approved by the State
Government.
8. Grounds of order of detention to be
disclosed to persons affected by the order.-
(1) When a person is detained in pursuance
of a detention order, the authority making the
order shall, as soon as may be, but not later than
five days from the date of detention, communicate
to him the grounds on which the order has been
made and shall afford him the earliest opportunity
of making a representation against the order to the
State Government.
(2) Nothing in sub-section (1) shall require
the authority to disclose facts which it considers to
be against the public interest to disclose.
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10. Reference to Advisory Board.-
In every case where a detention order has
been made under this Act the State Government
shall within three weeks from the date of detention
of a person under the order, place before the
Advisory Board constituted by it under section 9,
the grounds on which the order has been made and
the representation, if any, made against the order,
and in case where the order has been made by an
officer, also the report by such officer under sub-
section (3) of section 3.
11. Procedure of Advisory Board.-
(1) The Advisory Board shall after considering
the materials placed before it and, after calling for
such further information as it may deem necessary
from the State Government or from any person
called for the purpose through the State
Government or from the person concerned, and if,
in any particular case, the Advisory Board considers
it essential so to do or if the person concerned
desire to be heard, after hearing him in person,
submit its report to the State Government, within
seven weeks from the date of detention of the
person concerned.
(2) The report of the Advisory Board shall
specify in a separate part thereof the opinion of the
Advisory Board as to whether or not there is
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sufficient cause for the detention of the person
concerned.
(3) When there is a difference of opinion
among the members forming the Advisory Board,
the opinion of the majority of such members shall
be deemed to be the opinion of the Board.
(4) The proceedings of the Advisory Board
and its report, excepting that part of the report in
which the opinion of the Advisory Board is
specified, shall be confidential.
(5) Nothing in this section shall entitle any
person against whom a detention order has been
made to appear by any legal practitioner in any
matter connected with the reference to the
Advisory Board.
13. Maximum period of detention.-
The maximum period for which any person
may be detained, in pursuance of any detention
order made under this Act which has been
confirmed under section 12 shall be twelve months
from the date of detention.
7. The aforesaid Sections confer the power on the
State Government and the District Magistrate or the
Commissioner of Police, as the case may be, to pass an
order of detention on being satisfied that the detention
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order is necessary to prevent the detenue from acting in
any manner prejudicial to the maintenance of the public
order. Section 3 contemplates various procedures to be
followed on passing of the detention order. Section 8
contemplates that the grounds of detention are required to
be served on the detenue within 5 days from the date of
the detention order by providing him an opportunity to
submit the representation against the order of detention.
Section 10 makes an obligation on the State Government
to place before the Advisory Board the grounds on which
the order of detention was made, representation if any
made by the detenue, order of detention and the decision
on such representation, if any, within three weeks. Section
10 provides the procedure of the Advisory Board. Section
13 mandates that the detention order conferred on Section
12 shall be 12 months from the date of detention.
8. It would be useful to refer to the recent decision
of the Hon'ble Supreme Court in the case of AMEENA
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BEGUM Vs. STATE OF TELANGANA1 wherein the Hon'ble
Supreme Court has laid down the guidelines. The relevant
paragraph is extracted hereinbelow:
28. In the circumstances of a given case, a
constitutional court when called upon to test the
legality of orders of preventive detention would be
entitled to examine whether:
28.1. The order is based on the requisite
satisfaction, albeit subjective, of the detaining
authority, for, the absence of such satisfaction as to
the existence of a matter of fact or law, upon which
validity of the exercise of the power is predicated,
would be the sine qua non for the exercise of the
power not being satisfied;
28.2. In reaching such requisite satisfaction, the
detaining authority has applied its mind to all
relevant circumstances and the same is not based
on material extraneous to the scope and purpose of
the statute;
28.3. Power has been exercised for achieving the
purpose for which it has been conferred, or
exercised for an improper purpose, not authorised
by the statute, and is therefore ultra vires;
1
(2023) 9 SCC 587
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28.4. The detaining authority has acted
independently or under the dictation of another
body;
28.5. The detaining authority, by reason of self-
created rules of policy or in any other manner not
authorised by the governing statute, has disabled
itself from applying its mind to the facts of each
individual case;
28.6. The satisfaction of the detaining authority
rests on materials which are of rationally probative
value, and the detaining authority has given due
regard to the matters as per the statutory
mandate;
28.7. The satisfaction has been arrived at bearing
in mind existence of a live and proximate link
between the past conduct of a person and the
imperative need to detain him or is based on
material which is stale;
28.8. The ground(s) for reaching the requisite
satisfaction is/are such which an individual, with
some degree of rationality and prudence, would
consider as connected with the fact and relevant to
the subject-matter of the inquiry in respect whereof
the satisfaction is to be reached;
28.9. The grounds on which the order of preventive
detention rests are not vague but are precise,
pertinent and relevant which, with sufficient clarity,
inform the detenu the satisfaction for the detention,
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giving him the opportunity to make a suitable
representation; and
28.10. The timelines, as provided under the law,
have been strictly adhered to.
9. The detention order is required to be tested
keeping in mind the legal position and the enunciation of
law laid down by the Hon'ble Supreme Court referred
supra. We have also perused the original records made
available by the learned High Court Government Pleader.
The records indicate the following aspects:
a) Detention order was passed by the respondent
No.2 on the grounds of detention on 24.03.2024.
b) Detention order and the grounds of detention were
served on the detenue on 25.03.2024.
c) Detention order was forwarded to the State
Government on 26.03.2024.
d) Detention order was approved by the respondent
No.1 on 28.03.2024.
e) Order of approval was communicated to the
detenue on 31.03.2024.
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f) The detention order along with approval order of
the State Government as well as the records were placed
before the Advisory Board on 01.04.2024.
g) The meeting of the Advisory Board was held on
08.04.2024.
h) The Advisory Board submitted its report and
opinion on 18.04.2024.
i) The report of the Advisory Board was forwarded to
the State Government on 20.04.2024.
j) The respondent No.1 confirmed the order of
detention on 22.04.2024.
k) The order of confirmation was served on the
detenue on 23.04.2024.
10. On looking into the aforesaid dates and events,
it indicates that the mandate of Sections 3, 8, 10, 11 and
13 are followed by the Authorities. The contrary contention
of the learned counsel for the petitioners that the
procedure provided in the Goonda Act has not been
properly followed has no merit and is accordingly rejected.
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The detention order and the grounds of detention are duly
served on the detenue which is evident from the original
records. However, the detenue did not choose to submit
any representation. Hence, the contention that the order
of detention is passed hurriedly without providing an
opportunity and is in violation of law, has no merit and is
accordingly rejected.
11. Having held that the Authority has followed the
procedure provided under Section 3 and the other
provisions of the Goonda Act in passing the detention
order, if the detention order is tested on the touch stone of
the provision of law and the enunciation of law laid down
by the Hon'ble Supreme Court, we are of the considered
view that the detention order dated 24.03.2024 requires
interference for the following reasons:
(a) The respondent No.2 has passed the detention
order dated 24.03.2024 by considering the grounds of
detention. The Detaining Authority referred 7 cases
registered against the detenue and has come to the
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conclusion that the activities of the detenue falls within the
definition of "Goonda" as defined under Section 2(g) of the
Goonda Act and on being satisfied, has passed the
detention order.
b) The Detaining Authority has placed reliance on
Crime No.309/2017 registered by Vijayanagar Police,
Mysuru for the offences punishable under Sections 341,
324, 504 and 506 read with Section 34 of the Indian Penal
Code, 1860 (hereinafter referred to as 'the IPC') on
09.11.2017. On bare perusal of the averments made in
the grounds of detention, it is evident that there is a delay
of 1 day in registering the complaint and the registration
of complaint is emanated from the civil dispute between
the detenue and his uncle and cousin brother. The said
crime which is registered way back in the year 2017
cannot be termed as existence of a live and proximate link
between the past conduct of the detenue and the need of
detention. The material relied on by the Detaining
Authority is stale and cannot have nexus to the order of
detention.
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c) The second crime relied on by the Detaining
Authority is Crime No.125/2021 registered by the same
police station for the offences punishable under Sections
341, 324, 504 and 506 read with Section 34 of the IPC.
The facts of the said case indicate that the said incident is
also emanated between the family members with regard
to the property dispute. The grounds of detention indicate
that the detenue insisted to withdraw the earlier complaint
filed against him and the said complaint is also registered
after 1 day of the incident and is of the year 2021 and
hence, there cannot be any proximity with the said case to
the detention order.
d) In Crime No.401/2021 registered against the
detenue by H.D.Kote police, Mysuru for the offences
punishable under Section 307 read with Section 34 of the
IPC, the detenue is arrayed as accused No.3. The
allegation against the detenue is that he has conspired
with the other accused to commit murder. The said
complaint is also filed after a delay of 2 days from the date
of incident.
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e) In Crime No.109/2022 registered by the
Vijayanagar police, Mysuru for the offences punishable
under Sections 143, 147, 323, 324, 307, 504 and 506
read with Section 149 of the IPC, the detenue was arrayed
as accused No.3. The jurisdictional police filed the charge
sheet against the detenue and the other accused which is
pending for trial and the detenue is on bail.
f) In Crime No.74/2023 registered by the
Vijayanagar police, Mysuru for the offences punishable
under Sections 143, 144, 341, 324, 504 and 506 read with
Section 149 of the IPC, the detenue was arrayed as
accused No.2. The jurisdictional police have filed the
charge sheet against the detenue and the other accused
and the detenue is on bail.
g) In Crime No.116/2023 registered by the
Vijayanagar police, Mysuru for the offences punishable
under Sections 341, 354, 323, 504 and 506 read with
Section 34 of the IPC, the detenue was arrayed as accused
No.2. The overt act alleged against the detenue is that he
abused the complainant's son in abusive language. The
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said complaint is also registered after 2 days of the
incident.
h) In Crime No.120/2023 registered by the
Vijayanagar police, Mysuru for the offence punishable
under Section 392 of the IPC, the detenue was arrayed as
accused No.1. The said case was registered on
12.07.2023 based on the complaint of one Prajwal that on
10.07.2023 accused Varadaraju and the detenue have
beaten the complainant. The said case is under
investigation and the detenue is on bail. There is a delay
of 2 days in registration of the aforesaid complaint.
12. Considering the aforesaid cases registered
against the detenue, the Detaining Authority has come to
the conclusion that to curb the activities of the detenue
which are detrimental to the public order, the detention
order has been passed. The Hon'ble Supreme Court in the
case of AMEENA BEGUM, referred supra has clearly held
that the satisfaction arrived by the Detaining Authority is
required to bear in mind the existence of a live and
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proximate link between the past conduct of the person and
the imperative need to detain him or is based on material,
which is not stale. In other words, the Detaining Authority
cannot rely on the stale material to arrive at a satisfaction
on the act / conduct of the detenue with regard to
disturbance of the public order. In the instant case, there
is nearly 8 months gap between the last crime registered
against the detenue and the impugned order. The order of
detention and the grounds of detention are silent as to
what has transpired between the last crime which was
registered on 12.07.2023 and the detention order dated
24.03.2024 which is approximately 8 months. In the
absence of any explanation for the 8 months duration with
regard to the conduct of the detenue, we are of the
considered view that the subjective satisfaction arrived by
the Detaining Authority does not withstand the scrutiny of
the law laid down by the Hon'ble Supreme Court.
13. The Detaining Authority has considered the
cases registered against the associates of the detenue.
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However, no material is placed with regard to the said
crimes. It is not forthcoming from the aforesaid material
as to whether the detenue was the accused in the crimes
registered against the associates. If the Detaining
Authority is placing reliance on the crimes registered
against the associates of the detenue and passing an order
of detention, then the order of detention is required to be
interfered on the ground of consideration of irrelevant
material by the Detaining Authority. Hence, on this count
also the impugned detention order is required to be set
aside.
14. There is another flaw noticed in the approval
order of the State Government dated 28.03.2024 wherein
the State Government has approved the detention order of
the respondent No.2 by recording the reason that the name
of the detenue was entered in the rowdy register on
17.10.2023 by Vijayanagara police, Mysuru and thereafter
also the detenue has continued his unlawful activities. The
said finding or the observation of the respondent No.1 in
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the order dated 28.03.2024 is without any basis as the last
crime registered against the detenue is on 12.07.2023.
Hence, the confirmation order of the State Government
dated 28.03.2024 is without application of mind and
contrary to the material on record which calls for
interference in the present proceedings.
15. The Detaining Authority in its grounds has
categorically stated that the detenue by misusing the bail
granted by the Court has continued illegal activities and his
acts are detrimental to the public order. However, no
specific instances are recorded in the grounds of detention
and the order of detention. The grounds of detention are
silent as to in which case the detenue has obtained the bail
and in violation of the bail conditions, has acted
detrimental to the public order. In the absence of any
specific particulars and the material on record, the
Detaining Authority has passed an unreasoned order and
the consequential satisfaction arrived is without any basis.
Hence, the same calls for interference.
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16. On examining the original records, pleadings,
the impugned order of detention, grounds of detention,
confirmation order of the State Government and the
opinion of the Advisory Board, we are of the considered
view that the impugned order of detention and the
confirmation order of the State Government are not in
consonance with the provisions of law and the enunciation
of law laid down by the Hon'ble Supreme Court in the
aforesaid decision. Having held that the detention order
under challenge is contrary to law and requires
interference, we are of the considered view that the
impugned order of detention is passed in violation of the
fundamental rights of the detenue guaranteed under
Section 21 of the Constitution of India.
17. For the aforementioned reasons, we proceed to
pass the following:
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ORDER
i. The writ petition is allowed.
ii. The impugned detention order dated
24.03.2024 passed by the respondent No.2 at
Annexure-E and the impugned confirmation order
dated 28.03.2024 passed by the respondent No.1 at
Annexure-F are quashed.
iii. The respondents are directed to set the detenue
at liberty forthwith.
iv. Registry is directed to forthwith communicate
the operative portion of the order to the
Superintendent of Prison, Mangaluru Central Prison,
Mangaluru for compliance.
No order as to costs.
Sd/-
(ANU SIVARAMAN)
JUDGE
Sd/-
(VIJAYKUMAR A. PATIL)
JUDGE
RV
List No.: 4 Sl No.: 1