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Judgment
Heard Mrs.Sujatha Kurapati, learned counsel for the petitioner and Sri Godugu Mallesham, learned Assistant Government Pleader appearing for the respondents. Perused the record.
This Writ Petition is filed to issue Writ of Habeas Corpus to declare the proceedings issued by respondent No.2 vide order bearing C.No.179/PD-CELL/CYB/2021, dated 28-12-2021 and consequential orders passed by the 1st respondent as illegal and contrary to law and set aside the same and consequently direct the respondents to release the detenu “Thalla Srinivasulu Reddy” forthwith.
Relying on the following cases respondent No.2 – detaining authority has issued the impugned detention order:
Sl.
No.
Crime Number
Section of Law
Police Station
Nature of
offence
01
530/2021
Sections 419, 420 and 380 IPC
and Section 66-C of IT Act
KPHB
Theft of ATM
Debit Cards
02
508/2021
Sections 419, 420 and 380 IPC and Section 66-C of IT Act
KPHB
Theft of ATM Debit Cards
03
329/2021
Sections 419, 420 and 380 IPC
and Secs.66-C&66-Dof IT Act
Raidurgam
Theft of ATM
Debit Cards
04
330/2021
Sections 419, 420 and 380 IPC and Secs.66-C&66-Dof IT Act
Raidurgam
Theft of ATM Debit Cards
05
608/2021
Sections 419, 420 and 380 IPC
and Section 66-C of IT Act
Kukatpally
Theft of ATM
Debit Cards
In the impugned detention order there is also reference to the following eight (8) history cases. However, respondent No.2 – detaining authority did not rely upon the cases.
Sl.
No.
Crime Number
Section of Law
Police Station
Nature of
offence
01
514/2021
Sections 419, 420 and 380 IPC
and Section 66-C of IT Act
KPHB
Theft of ATM
Debit Cards
02
556/2021
Sections 419, 420 and 380 IPC and Section 66-C of IT Act
KPHB
Theft of ATM Debit Cards
03
509/2021
Sections 419, 420 and 380 IPC
and Section 66-C of IT Act
KPHB
Theft of ATM
Debit Cards
04
607/2021
Sections 419, 420 and 380 IPC and Section 66-C of IT Act
Kukatpally
Theft of ATM Debit Cards
05
336/2021
Sections 419, 420 and 380 IPC
and Section 66-C of IT Act
Raidurgam
Theft of ATM
Debit Cards
06
694/2021
Sections 419 and 420 IPC and
Section 66-C of IT Act
Narsingi
Theft of ATM
Debit Cards
07
643/2021
Section 420 of IPC and Section 66-C, D of IT Act
Dundigal
Theft of ATM Debit Cards
08
168/2021
Sections 419, 420 and 379 IPC
and Section 66-C of IT Act
Malakpet
Theft of ATM
Debit Cards
He was on bail in all the aforesaid five (5) ground cases. The Investigating Officers did not file any application seeking cancellation of bail on the ground that the detenu has committed similar offences and that he has violated any of the conditions imposed by the learned Magistrates while in bail. The Investigating Officers have already completed investigation and laid charge sheets against the detenu. He is Accused No.1. The aforesaid five (5) C.Cs. are pending.
Though the detention order is 28-12-2021 the same was executed on 16-09-2023. Respondent No.2 – detaining authority has issued detention order against Accused No.2 on 28-12-2021 and the same was under challenge before this Court in W.P.No.26623 of 2022. Vide order dated 12-09-2022 this Court set aside the said order and directed the respondents to set the detenu therein / Accused No.2 free. Detenu herein is A-1 and he is also standing on the very same footing. To maintain parity, the detenu herein also entitled for the very same relief.
In Ram Manohar Lohia Vs. State of Bihar (1966) 1 SCR 709 the Hon’ble Apex Court held as follows:
“Does the expression "public order' take in every kind of disorder or only some? The answer to this serves to distinguish "public order" from "law and order" because the latter undoubtedly takes in all of them. Public order if disturbed, must lead to public disorder. Every breach of the peace does not lead to public disorder. When two drunkards quarrel and fight there is disorder but not public disorder. They can be dealt with under the powers to maintain law and order but cannot be detained on the ground that they were disturbing public order. Suppose that the two fighters were of rival communities and one of them tried to raise communal passions. The problem is still one of law and order but it raises the apprehension of public disorder. Other examples can be imagined.
The contravention of law always affects order but before it can be said to affect public order, it must affect the community or the public at large.
A mere disturbance of law and order leading to disorder is thus not necessarily sufficient for action under the Defence of India Act but disturbances which subvert the public order are. A District Magistrate is entitled to take action under Rule 30(1)(b) to prevent subversion of public order but not in aid of maintenance of law and order under ordinary circumstances.
It will thus appear that just as "public order" in the rulings of this Court (earlier cited) was said to comprehend disorders of less gravity than those affecting "security of State", "law and order" also comprehends disorders of less gravity than those affecting public order".
One has to imagine three concentric circles. Law and order represents the largest circle within which is the next circle representing public order and the smallest circle represents security of State.
It is relevant to note that Hon’ble Apex Court and this Court in catena of decisions categorically held that detention authorities shall consider the entire material while passing detention order by invoking their powers under Act 1 of 1986. They have to come to subjective satisfaction before passing detention orders with regard to disturbance caused to public order due to the acts committed by the detenu. In rarest of rare cases, that too, to prevent the detenu from committing similar offences which will disturb the public order, Act 1 of 1986 shall be invoked by issuing preventive detention order. In the present case, there is no consideration of the said aspects by the detaining authority.
As discussed supra, in the present case, detaining authority issued impugned detention order without considering the aforesaid aspects.
In the light of the aforesaid discussion, we are of the considered opinion that impugned detention order vide proceedings No.179/PD-CELL/CYB/2021, dated 28-12-2021 passed by respondent No.2 is illegal and it is liable to be set aside and accordingly set aside.
Accordingly, this writ petition is allowed and the detention order vide proceedings No.179/PD-CELL/CYB/2021, dated 28-12-2021 passed by respondent No.2 is set aside. Respondents are directed to set the detenu viz., Mr.Thalla Srinivasulu Reddy, free, if he is no longer required in any other criminal 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.