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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 27TH DAY OF APRIL 2015

PRESENT

THE HON’BLE MR. JUSTICE N.K. PATIL

AND

THE HON’BLE MRS. JUSTICE RATHNAKALA

WRIT PETITION (HABEAS CORPUS) NO.12/2015

BETWEEN:

Smt.Vinutha Lakshmi
Wife of A.N.Mohan
Aged about 56 years
R/a No.2, 12th Main Road
Vasanth Nagar
Bangalore-560 052. ..PETITIONER

(By Sri.Younous Ali Khan, Adv.)

AND:

1. The Commissioner of Police

No.1, Infantry Road
Bangalore.

2. State of Karnataka by its

Under Secretary
Law & Order Department
Vidhana Soudha
Bangalore-560 001.
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3. The Superintendent
Bangalore Central Prison
Parapana Agrahara
Bangalore. …RESPONDENTS.

(By Sri.H.V.Manjunatha, AGA)

THIS WRIT PETITION (HABEAS CORPUS) IS FILED UNDER

ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO
ISSUE A WRIT IN THE NATGURE OF HABEAS CORPUS AND TO
DECLARE THE DETENTION OF RAKESH @ JACKY, S/O
SHRI.MOHAN BY ORDER NO.CRM(4)DTN/16/2014
DT.21.11.2014 VIDE ANNEXURE-A PASSED BY RESPONDENT
NO.1 AND APPROVED BY THE RESPONDENT NO.2 BY OREDER
NO.HD 530 SST 2014 DT.28.11.2014 AND DATED 27.12.2014
VIDE ANNEXURE-C AND D, AS ILLEGAL AND SET THE DETENU
AT LIBERTY.

THIS WRIT PETITION (HC) HAVING BEEN HEARD AND

RESERVED FOR ORDERS ON 23.4.2015 AND COMING ON FOR
PRONOUNCEMENT OF ORDER THIS DAY, RATHNAKALA J.,
MADE THE FOLLOWING:-

ORDER

The petitioner is challenging the detention of her son

Rakesh @ Jacky, son of Sri.Mohan, in view of the detention

order dated 21.11.2014 passed by the first respondent vide

Annexure-A and approved by the second

respondent/Government of Karnataka vide Annexure-C

dated 28.11.2014 and Annexure-D dated 27.12.2014, by

invoking the provisions of the Karnataka Prevention of

Dangerous Activities of Bootleggers, Drug-Offenders,

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Gamblers, Goondas, Immoral Traffic Offenders and Slum-

Grabbers Act, 1985 (‘the Act’ for short).

2. Sri.Younous Ali Khan, learned Counsel appearing

for the petitioner submits that the detenu voluntarily

surrendered before III A.C.M.M., Bangalore, in connection

with Crime No.1418/14 of Madivala Police Station registered

in respect of the offences punishable under Sections 427,

109, 120B, 143, 147, 148, 149, 448, 302 and 307 of IPC.

Now he is in judicial custody and has not moved any bail

application. Under the circumstance, there was no reason for

the respondent to apprehend that he will be released on bail.

In the grounds of detention, the respondent has referred to

his involvement in four cases. Out of other three cases

registered against him, one case was in respect of a petty

offence; on his admission of the offence, he was imposed

fine; other two cases are under Sections 399 and 402 of IPC,

which were registered suo moto by the Police falsely alleging

that he was conspiring to commit dacoity along with the co-

accused. The detention order is signed by the Under

Secretary, who has no authority to pass the confirmation

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order. The detention order is not approved by the State

within twelve days of passing of the order by the Police

Commissioner. The documents which are referred by the

Police Commissioner in the detention order for forming his

opinion are not furnished to him to have his say in the

matter, hence, violative of the Article 22(5) of the

Constitution of India. Vaguely it is stated in the grounds of

detention that the detenu involved himself at the age of 19

years in criminal cases and also forming group, etc. is only

imaginary, without the proof of documentary material. He is

in custody from 17.3.2014. He is on bail in two pending

cases registered against him in respect of offence punishable

under Sections 399 and 402 of IPC. The prosecution in

either of the cases has not sought for cancellation of his bail

for violation of the bail order. The detention order passed by

the Commissioner, so also the confirmation of the detention

order are illegal and unconstitutional.

3. In reply, learned Additional Government Advocate

submits that the detention order was approved on

28.11.2014. The report of the Advisory Board was received

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on 12.12.2014; on 27.12.2014, period of detention has been

specifically mentioned and there is no merit in the petition

and the same is liable to be rejected.

4. Admittedly, the detenu was in judicial custody in a

criminal case as on the date the detention order was passed;

there was no reason to presuppose that he will be enlarged

on bail, since he had not moved any application for his

release on bail in the concerned Court. It is not the case of

the respondent that the co-accused/similarly placed to the

detenu were enlarged on bail probabalizing that detenu also

may be enlarged on bail on the ground of parity. The Apex

Court in 2011 SAR (Crl) 390 in the matter of REKHA –vs-

State of Tamil Nadu Tr. Sec. to Govt. & Anr. held that if

no bail application was pending and the detenu is in jail, the

detention order is illegal. In AIR 1989 SC 2274 in the

matter of Ahmedhussain Shaikhhusain alias Ahmed

Kalio –vs- Commissioner of Police, Ahmedabad and

another, it was held that when a detenu is in jail in

connection with the criminal case, the detaining authority

must disclose that there is cogent and relevant material

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constituting fresh facts to necessitate making order of

detention. The possibility that the detenu may be released

from the jail is not a ground for detention. The same view

was taken in AIR 1986 SC 315 in the matter of Ramesh

Yadav –vs- District Magistrate, Etah and others; AIR

1988 SC 596 in the matter of Smt.Shashi Aggarwal –vs-

State of U.P. and others and in AIR 1986 SC 2090 in the

matter of Binod Singh –vs- District Magistrate, Dhanbad,

Bihar and others.

5. In the grounds of detention, the first respondent

indicates that the detenu is not amenable to the ordinary

laws of the land and his goonda activities had disturbed the

tempo of the public life of the locality and detrimental to the

maintenance of public order in Bangalore city, etc., but

without producing what are those material which prompted

the Commissioner to form such opinion. Out of the previous

cases referred in the grounds of detention, two of them are

pending trial and in one petty case, on his admission of the

accusation he is enlarged on bail. In the light of the

judgment of the Apex Court, the detention order passed

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against the detenu while in custody, on a presupposition

that he will take law into his hands by obtaining bail was

skeptical and in violence of the personal liberty protected

under Article 21 of the Constitution and also violative of the

Section 22 sub-section (5) of the Constitution of India also.

Though the confirmation order is passed within 12 days of

the detention order and subsequently the State Government

on the recommendation of the advisory board extended the

detention for 12 months subject to renewal for every three

months, for the discussion supra, the detention order is

vitiated.

Accordingly, the Writ Petition is allowed.

The detention order dated 21.11.2014 passed by the

first respondent vide Annexure-A and approved by the

second respondent/Government of Karnataka vide

Annexure-C dated 28.11.2014 and Annexure-D dated

27.12.2014, are quashed.

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Since the detenu is in judicial custody in respect of

Crime No. No.1418/14 of Madivala Police Station, no further

order for his release is necessary.

Sd/-
JUDGE

Sd/-
JUDGE

KNM/-