Shaik Parveen vs State Of Telangana

Heard Mrs. Ravula Sowmya Reddy, learned counsel for the petitioner and Mr. Mujib Kumar Sadasivuni, learned Special Government Pleader representing learned Additional Advocate General appearing on behalf of the respondents.

This writ petition is filed to issue a writ of habeas corpus directing respondent No.3 to produce the detenu viz., Mr. Md. Nizamoddin @ Viju @ Nijju, now detained in Central Prison, Chanchalguda, Hyderabad, before this Court and set aside the detention order dated 19.04.2023 passed by respondent No.2 and the consequential confirmation order vide G.O.Rt.No.801, dated 02.06.2023 passed by respondent No.1 declaring it as illegal.

Respondent No.2 passed the impugned detention order dated 19.04.2023 against the detenu under the provisions of Section - 3 (2) of the Telangana Prevention of Dangerous Activities of Boot-leggers, Dacoits, Drug-Offenders, Goondas, Immoral Traffic Offenders Land-Grabbers, Spurious Seed Offenders, Insecticide Offenders, Fertilizer Offenders, Food Adulteration Offenders, Fake Document Offenders, Scheduled Commodities Offenders, Forest Offenders, Gaming Offenders, Sexual Offenders, Explosive Substances Offenders, Arms Offenders, Cyber Crime Offenders and White Collar or Financial Offenders Act, 1 of 1986 (Amendment Act No.13 of 2018) (for short ‘Act No.1 of 1986’), terming him as a ‘Sexual Offender’ as defined under Section - 2 (v) of the Act No.1 of 1986.

The impugned detention order was passed by respondent No.2 - detaining authority relying on solitary crime i.e., Crime No.193 of 2022 of Nalgonda Rural Police Station registered for the offences punishable under Sections - 376AB, 376 (2) (n), 448 and 506 IPC and Sections - 5j(ii), 5(m) and 5(l) read with 6 of the Protection of Children from Sexual Offences Act, 2012 (for short ‘Act, 2012’).

Mrs. Ravula Sowmya Reddy, learned counsel for the petitioner, would submit that the impugned detention order was issued without application of mind. The detaining authority did not consider the entire material properly as the offence alleged to have committed by the detenu is against an individual and pertains to law and order problem and it does not all affect any ‘public order’. Therefore, there is no subjective satisfaction by the detaining authority while issuing the impugned detention order. Thus, the detention order is liable to be set aside.

On the other hand, learned Special Government Pleader representing learned Additional Advocate General would submit that the allegations levelled against the detenu are serious and grave in nature and the offence committed by the detenu is heinous one. The detenu had engaged himself in unlawful acts and indulged in the acts of sexual offence by committing sexual assault on innocent school going minor girl multiple times, and thereby creating large scale fear, panic and a feeling of insecurity among the innocent general public of the locality in general and school girls in particular and adversely affecting the public order. Thus, the detenu has been acting in a manner prejudicial to maintenance of public order from disturbing the peace, tranquility, social harmony in the society. Therefore, he is termed as a ‘Sexual Offender’ as defined in Clause (v) of Section 2 of the Act No.1 of 1986. The detaining authority, considering the entire material available on record and after arriving at the subjective satisfaction only, passed the detention order in order to prevent the detenu from committing similar offences. There is no error in it.

Perusal of detention order, dated 19.04.2023, passed by respondent No.2 and the record would reveal that the detaining authority passed the impugned detention order relying upon the aforesaid solitary crime. The said Crime No.193 of 2022 was registered by the Rural Police Station, Nalgonda for the offences punishable under Sections - 376AB, 376 (2) (n), 448 and 506 IPC and Sections - 5j(ii), 5(m) and 5(l) read with 6 of the Act, 2012.

The case of the prosecution in the said crime is that on 19.12.2022 at 12:00 hours, the mother of the victim girl went to the Police Station and lodged a report stating that she had two daughters. In the month of June, 2022, her neighbor, namely Nizam @ Nizzu, the alleged detenu herein, misbehaved with her younger daughter (victim) on which, she admonished him. About few days back her younger daughter suffering from stomachache. She took her younger daughter to Vishwan Sai Hospital, Nalgonda for check up. Then, she came to know that her younger daughter carrying 5½ months pregnancy. On enquiry, her younger daughter revealed that after matured (Saree) function in the absence of inmates, the detenu trespassed into her house and removed her clothes forcibly participated sexual intercourse with victim girl. The detenu threatened the victim girl if she tells the matter to anyone, he would kill her. After that, the detenu also forcibly had sexual intercourse with the victim more than three (03) times by showing knife threatening to kill her if she discloses to anyone.

Basing on the said complaint, the police registered the aforesaid crime against the detenu and took up the case for investigation. During investigation, the victim girl was sent to medical examination. The Medical Officer also conducted potency test on the detenu and issued a certificate to the effect that there is nothing to suggest that the detenu is not capable of performing sexual act. Pursuant to the orders dated 23.12.2022 passed by this Court in W.P. No.54835 of 2022, the Superintendent, Government Medical College, Nalgonda constituted a Medical Board to take steps for terminating the pregnancy by a senior most Gynecologist. On 09.02.2023, the police received DNA report to the effect that the detenu is the biological father of the source. In the confessional statement made by the detenu, he admitted that while the victim girl was alone, he entered into her house and threatened on the point of knife and committed rape on her forcibly. He also confessed to have committed rape on the victim girl several times when she was alone in the house by threatening her.

In view of the above discussion, it is clear that criminal law was already set on motion. The detenu was arrested on 22.12.2022 in the aforesaid crime and he was remanded to judicial custody. The first and second bail applications moved by the detenu were dismissed on 03.02.2023 and 27.02.2023 in Crl.M.P. Nos.34 of 2023 and 140 of 2023, respectively. However, third bail application moved by the detenu was allowed vide orders dated 03.08.2023 by learned I Additional District and Sessions Judge, Nalgonda.

Perusal of the record would also reveal that the rape said to have committed by the detenu had occurred in the house of the victim when she was alone. The alleged incident did not occur in public place. Though the aforesaid offence alleged to have committed by the detenu is heinous one, there are no other offences/crimes alleged to have committed by the detenu previously to show that he has been engaged in unlawful acts and indulged in the acts of sexual offence. The nature of offence said to have committed by the detenu is within the four walls of a house and he did not commit in public place. The offence said to have committed by the detenu against an individual offence and pertains to ‘law and order’ only. The said act committed by the detenu did not disturb ‘public order’ as contended by learned counsel for the petitioner. The Investigating Officer has already completed investigation and laid the charge sheet against the detenu and the same was taken as SCPOCSO No.12 of 2023 pending on the file of learned I Additional District and Sessions Judge, Nalgonda. According to the petitioner, it is posted for arguments.

In Arun Ghosh v. State of West Bengal (1970) 1 SCC 98, the Apex Court held as under:

“3. The submission of the counsel is that "these are stray acts directed against individuals and are not subversive of public order and therefore the detention on the ostensible ground of preventing him from acting in a manner prejudicial to public order was not justified. In support of this submission reference is made to three cases of this Court: Dr. Ram Manohar Lohia v. State of Bihar [ (1966) 1 SCR 709; Pushkar Mukherjee and Others v. State of West Bengal [W.P. No.179 of 1968, decided on November 7, 1968: 1969 (1) SCC 10] and Shyamal Chakraborty v. The Commissioner of Police, Calcutta and Another [W.P. No.102 of 1969, decided on August 4, 1969: 1969 (2) SCC 426]. In Dr. Ram Manohar Lohia's case this Court pointed out the difference between maintenance of law and order and its disturbance and the maintenance of public order and its disturbance. Public order was said to embrace more of the community than law and order. Public order is the even tempo of the life of the community taking the country as a whole or even a specified locality. Disturbance of public order is to be distinguished, from acts directed against individuals which do not disturb the society to the extent of causing a general disturbance of public tranquility. It is the degree of disturbance and its effect upon the life of the community in a locality which determines whether the disturbance amounts only to a breach of law and order. Take for instance, a man stabs another. People may be shocked and even disturbed, but the life of the community keeps moving at an even tempo, however much one may dislike the act. Take another case of a town where there is communal tension. A man stabs a member of the other community. This is an act of a very different sort. Its implications are deeper and it affects the even tempo of life and public order is jeopardized because the repercussions of the act embrace large Sections of the community and incite them to make further breaches of the law and order and to subvert the public order. An act by itself is not determinant of its own gravity. In its quality it may not differ from another but in its potentiality it may be very different. Take the case of assault on girls. A guest at a hotel may kiss or make advances to half a dozen chamber maids. He may annoy them and also the management but he does not cause disturbance of public order. He may even have a fracas with the friends of one of the girls but even then it would be a case of breach of law and order only. Take another case of a man who molests women in lonely places. As a result of his activities girls going to colleges and schools are in constant danger and fear. Women going for their ordinary business are afraid of being waylaid and assaulted. The activity of this man in its essential quality is not different from the act of the other man but in its potentiality and in its affect upon the public tranquility there is a vast difference. The act of the man who molests the girls in lonely places causes a disturbance in the even tempo of living which is the first requirement of public order. He disturbs the society and the community. His act makes all the women apprehensive of their honour and he can be said to be causing disturbance of public order and not merely committing individual actions which may be taken note of by the criminal prosecution agencies. It means therefore that the question whether a man has only committed a breach of law and order or has acted in a manner likely to cause a disturbance of the public order is a question of degree and the extent of the reach of the act upon the society. The French distinguish law and order and public order by designating the latter as order publique. The latter expression has been recognised as meaning something more than ordinary maintenance of law and order. Justice Ramaswami in Writ Petition No. 179 of 1968 drew a line of demarcation between the serious and aggravated forms of breaches of public order which affect the community or endanger the public interest at large from minor breaches of peace which do not affect the public at large. He drew an analogy between public and private crimes. The analogy is useful but not to be pushed too far. A large number of acts directed against persons or individuals may total up into a breach of public order. In Dr. Ram Manohar Lohia's case examples were given by Sarkar, and Hidayatullah, JJ. They show how similar acts in different contexts affect differently law and order on the one hand and public order on the other. It is always a question of degree of the harm and its effect upon the community. The question to ask is: Does it lead to disturbance of the current of life of the community so as to amount to a disturbance of the public order or does it affect merely an individual leaving the tranquility of the society undisturbed? This question has to be faced in every case on facts. There is no formula by which one case can be distinguished from another.”

Thus, there is no disturbance to the law and order due to the said alleged act said to have committed by the detenu.

The object of the Act No.1 of 1986 is to provide for preventive detention of Bootleggers, Dacoits etc. including Sexual Offenders, who engaged or is making preparations for engaging any of the activities as such, which affect adversely, or are likely to affect adversely, the maintenance of ‘public order’. It is apt to refer to Section - 2 (v) of the Act No.1 of 1986 and the same is as under:

“2 (v) “Sexual Offender” means a person who commits or abets the commission of offences in contravention of any of the provisions under the Protection of Child from Sexual Offences Act, 2012 or the offences punishable under sections 354, 354-A, 354-B, 354-C, 354-D, 376, 376-A, 376- B, 376-D, 377 or 509 of the Indian Penal Code, 1860.”

The aforesaid facts would reveal that criminal law was already on set on motion by registration the aforesaid crime. The detaining authority did not consider the entire material on record and did not come to a subjective satisfaction that the acts committed by the detenu disturbed the public order. Thus, the detaining authority failed to draw a distinction between ‘law and order’ and ‘public order’.

It is settled law that the detaining authority has to pass preventive detention order in rarest of rare cases, that too, to prevent the detenu from committing similar offence. In the present case, there is no consideration of the said aspects by the detaining authority.

In the light of the aforesaid discussion, we are of the considered view that the impugned detention order and consequential confirmation order are illegal and the same are liable to be set aside and accordingly the same are set aside.

As discussed above, according to the prosecution, the detenu has committed heinous offence by committing rape on 12 years old victim girl multiple times. She became pregnant. DNA report was obtained. Writ petition was filed seeking permission for termination of pregnancy. Thus, there are serious allegations against the detenu. We have not expressed any opinion on the same. We have only tested as to whether the impugned detention order was passed in accordance with law, more particularly disturbance to the public order due to the alleged acts committed by the detenu in the touch stone of Article - 21 of the Constitution of India. Therefore, liberty is granted to the prosecution to prove offence alleged against the detenu and liberty is also granted to the detenu to disprove the same. Learned trial Court shall decide the said case as well as bail application strictly in accordance with law basing on the material without being influenced by any of the observations made by us in this order.

Therefore, this writ petition is allowed and the detention order dated 19.04.2023 passed by respondent No.2 vide Proceedings No.C1/1776/2023 and the consequential confirmation order passed by respondent No.1 vide G.O.Rt.No.801 of General Administration (Spl. ({Law & Order}] Department, dated 02.06.2023 are hereby set aside. The respondents are directed to set the detenu viz., Mr. Md. Nizamoddin @ Vijju @ Nijju, free, if he is no longer required in any other criminal case. In the circumstances of the case, there shall be no order as to costs.

As a sequel, the miscellaneous petitions, if any, pending in the writ petition shall stand closed.