REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1814 OF 2011
(Arising out of Special Leave Petition (Crl.) No. 3913 of 2011)
D.M. Nagaraja .... Appellant(s)
Versus
The Government of Karnataka & Ors. .... Respondent(s)
J U D G M E N T
P.Sathasivam,J.
1) Leave granted. 2) The 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.
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3) Brief facts: (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
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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.
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4) Heard Mr. C.B. Gururaj, learned counsel for the
appellant-detenue and Ms. Anitha Shenoy, learned counsel for
the State of Karanataka.
5) The 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
appellant?
6) 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 :
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“2. Definitions : – In this Act, unless the context otherwise
requires, –
(a) “acting in any manner prejudicial to the maintenance of
public order” means, –
(i) …………………………………………………….
(ii) ……………………………………………………
(iii) ……………………………………………………
(iv) In 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;
(v) ……………………………………………………
(vi) ……………………………………………………
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.
(b) …………………………………………………………………….
(c) “detention order” means an order made under Section 3;
(d) “detenue” means a person detained under a detention
order;
(e) ……………………………………………………………………
(f) ……………………………………………………………………
(g) “goonda” 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
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Government/Detaining Authority 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 Act.
7) The 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.
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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.
8) Mr. 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
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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.
9) We have carefully considered the rival contentions and
perused the grounds of detention order and all the materials
relied on by the Detaining Authority.
10) The 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
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convicted to undergo rigorous imprisonment for 9 years.
However, the records of this case have been destroyed as
time barred and are not produced.
4. Srirampuram PS Cr. No. 624/83 under Section 307
IPC – This record also has been destroyed as time barred.
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
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custody. This case ended in acquittal since the witnesses
did not depose properly against him out of fear.
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 pending trial.
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.”
11) As 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
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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.
12) All 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
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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.
13) Learned 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
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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
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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.
14) In 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
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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.
15) Though 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
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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 the same.
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16) On 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 Court.
17) Under these circumstances, we find no merit in the
appeal. Consequently, the same is dismissed.
…………………………………….J.
(P. SATHASIVAM)
…………………………………….J.
(DR. B.S. CHAUHAN)
NEW DELHI;
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SEPTEMBER 19, 2011.
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