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Preventive Detention – Karnataka HC Issues Guidelines On Consideration Of Detenu’s Representation

 

While firmly, fully and finally espousing the legal rights of a detenu, the Karnataka High Court has in a brief, brilliant, bold and balanced judgment titled Rizwan Pasha @ Kulla Rizwan vs Commissioner of Police, Bengaluru and 2 Ors. in Writ Petition Habeas Corpus No. 29 of 2021 delivered on June 15, 2021 held in no uncertain terms that “consideration of a representation made by a detenu post confirmation of the order of preventive detention is to be read into the principles of natural justice and also Article 21 of the Constitution. Non-consideration of such a representation would also be arbitrary and oppressive and therefore, an infraction of Articles 14 as well as 21 of the Constitution.” It must be mentioned here that a Division Bench of Karnataka High Court comprising of Justice BV Nagarathna and Justice Hanchate Sanjeevkumar while very rightly allowing a petition filed by Rizwan Pasha @ Kulla Rizwan also said that, “Article 22(5) confers on the detenu the right to make a representation against the order of detention prior to its confirmation. This right implies a corresponding duty or obligation on the part of the State Government to consider the representation of the detenu at the earliest opportunity. The substance of the said right could be applied even to a case of consideration of a detenu’s representation post-confirmation of the detention.”

Before stating anything else, the Division Bench states that, “This WPHC is filed under article 226 of the constitution of India, praying to a) issue a writ of habeas corpus declaring the detention of the petitioner illegal and set him at liberty forthwith after quashing the order bearing reference no.CRM4/DTN/08/2020 dated 25.09.2020 (Annexure-A) passed by the 1st respondent; order bearing reference no. HD 90 SST 2020, dated 03.10.2020 (Annexure-B) and order bearing reference no. HD 90 SST 2020 dated 12.11.2020 (Annexure-D) passed by the 2nd respondent and etc.”

To start with, this learned, latest, laudable and landmark judgment authored by a Division Bench of Karnataka High Court comprising of Justice BV Nagarathna for himself and Justice Hanchate Sanjeevkumar sets the ball rolling by first and foremost putting forth in para 1 that, “This writ petition assails the order of preventive detention bearing reference No.CRM4/DTN/08/2020, dated 25.09.2020 (Annexure-A) passed by the first respondent and order dated 03.10.2020, reference No. HD 90 SST 2020, dated 03.10.2020 (Annexure-B) and order bearing reference No.HD 90 SST 2020, dated 12.11.2020 (Annexure-D) passed by the second respondent.”

While elaborating on the facts of the case and the grounds on which the detention is challenged, the Bench then observes in para 2 that, “The petitioner has in substance assailed the order of preventive detention passed under Section 3(1) of the Karnataka Prevention of Dangerous Activities of Bootleggers, Drug-Offenders, Gamblers, Goondas, Immoral Traffic Offenders, Slum Grabbers and Video and Audio Pirates Act, 1985 (hereinafter referred to as ‘the Act’ for brevity).

(a) According to the petitioner, he is a resident of Bengaluru. Owing to financial difficulties, he was constrained to discontinue his studies in 9th standard and was forced to take up hard menial jobs for supporting his family. Recently, he married Shabana Banu. But she passed away last year. Petitioner is the sole caretaker of his two sons, Rayan who is eight years old and Rihan, who is three years old.

(b) That on 25.09.2020, respondent No.1 passed an order (at Annexure ‘A’) under Section 3(1) of the Act directing petitioner’s detention in Central Prison, Bengaluru. Respondent No.1, inter alia, has stated that the petitioner has been engaged in criminal activities since the year 2004 creating an atmosphere of fear among the general public. That the petitioner has time and again violated bail conditions imposed on him by several Courts and three rowdy sheets have been opened by three different Police Stations to monitor his activities. Three volumes of documents were handed over to the petitioner, which according to him, are incomprehensible and being a school drop out, he is unable to correlate and understand the relevancy of the documents to the false charges levelled against him, by order dated 25.09.2020.

(c) The order dated 25.09.2020 passed by respondent No.1 was placed before respondent No.2 for approval in terms of Section 3(3) of the Act on 29.09.2020. Respondent No.2 confirmed the order dated 25.09.2020 passed by respondent No.1 on 03.10.2020 observing that: (i) the petitioner was arraigned as an accused in 14 criminal cases; (ii) there were three rowdy sheets opened against the petitioner in three different Police stations; (iii) the petitioner admittedly committed offences under Chapters XVI, XVII, and XXII of the Indian Penal Code, 1860 and therefore fell within the definition of Goonda under the Act; (iv) the petitioner posed a threat to public peace and tranquility; (v) owing to the petitioner’s alleged criminal antecedents, the members of the public were afraid to lodge a complaint or tender evidence against him; (vi) the petitioner allegedly violated bail conditions imposed upon him in several criminal proceedings pending against him; (d) On confirmation of the order of detention, notice dated 28.10.2020 was issued by respondent No.2 to respondent No.1 directing him to keep the petitioner present before the Advisory Board for hearing on 02.11.2020. Thereafter, respondent No.2 passed an order on 12.11.2020 under Section 12 read with Section 13 of the Act directing detention of the petitioner for a period of one year from 25.09.2020.

(e) According to the petitioner, he submitted a detailed representation to second respondent and the Chairman of the Advisory Board through respondent No.3 on 12.01.2021 setting out several grounds for revocation of the detention order. No acknowledgement of the said representation has been provided to the petitioner or his brother. Also, on the date of filing of the writ petition, no intimation, let alone any decision on the representation has been taken or communicated to the petitioner or his brother. In the circumstances, the petitioner has challenged the order of preventive detention on the following grounds:

(i) unable to comprehend the materials on the basis of which the orders of detention seem to have been passed by respondent No.1;

(ii) the detention orders do not indicate the material on the basis of which they have been passed and therefore they defeat the rights of the petitioner to make an effective representation;

(iii) The detention orders have failed to inform the petitioner regarding the timeline for submitting the representation to the State Government and Advisory Board, thereby violating the constitutional rights under Article 22 of the Constitution of India;

(iv) The detention orders have been passed on stale claims or on false cases foisted by the police against the petitioner;

(v) The detention orders are ultra vires the provisions of the Goonda Act and therefore liable to be quashed;

(vi) The respondents have failed to consider the representations of the petitioner dated 12.01.2021 and therefore the detention is illegal;

(vii) The detention of the petitioner is contrary to Section 10 of the Act.”

To put things in perspective, the Bench then envisages in para 3 that, “The order of preventive detention dated 25.09.2020 is at Annexure-A. The original of the order dated 03.10.2020 handed over to the petitioner is at Annexure-B to the writ petition and the confirmatory order dated 28.10.2020, passed subsequent to the receipt of the report from the Advisory Board is at Annexure-C. Thereafter, the second respondent passed an order under Section 12 read with Section 13 of the Act, on 12.11.2020, directing that the detention of the petitioner is for a period of twelve months from 25.09.2020, vide Annexure-D. Thus, petitioner has assailed Annexures-A, B and D in this writ petition.”

Briefly stated, the Bench then enunciates in para 4 and here only the most relevant part is stated that, “Statement of objections has been filed on behalf of the State and other respondents.

(a) While denying the averments made by the petitioner in the writ petition, it has been contended that copy of the order dated 03.10.2020 confirming the detention order was served on the detenu on 05.10.2020 in the presence of the jail authorities, vide Annexure ‘R1’. That the Advisory Board heard the petitioner on 02.11.2020 and copy of the notice of the hearing was served on the detenu on 29.10.2020 in the presence of the jail authorities as per Annexure ‘R2’. On a detailed hearing of the petitioner on 02.11.2020, the Advisory Board gave its report and on the basis of which, on 12.11.2020, the period of detention was confirmed for a period of twelve (12) months from 25.09.2020 as per Annexure ‘R3’, which order was also served on the petitioner in the presence of the jail authorities.

(b) It has also been averred by the respondents that the detenu has stated in the writ petition that on 12.01.2021, he had submitted a representation, but as evidenced from Annexure ‘E’, the representation was submitted on 03.01.2021 and not on 12.01.2021.

(c) Denying all other contentions raised against the respondents, it has been stated that Annexure ‘R4’, which is the copy of the detention order, gives the details of cases registered against the detenu.

(d) Under the circumstances, the respondents have contended that the order of preventive detention under Section 3(1) of the Act has been rightly passed against the petitioner as he is a ‘Goonda’ within the meaning of Section 2(g) of the Act. Hence, on receipt of the report from the Advisory Board, the State has confirmed the detention under Section 12 read with Section 13 of the Act for a period of one year from 25.09.2020. The respondents have further stated that the order of preventive detention has been rightly made against the petitioner herein on deriving a correct subjective satisfaction regarding the activities of the detenu and hence, the said order is in accordance with law. It is neither irrational nor unreasonable so as to call for interference by this Court. Hence, the respondents have sought for dismissal of the writ petition.”

After hearing both the sides, the Bench then points out in para 6 that, “On the last date of hearing i.e., on 10.06.2021, learned counsel for the petitioner had urged that the petitioner has made a representation as per Annexure-E, dated 03.01.2021. The said representation has not yet been considered at all and therefore the petitioner was constrained to file this writ petition on 17.03.2021. It was contended that the representation at Annexure-E was made for the first time, subsequent to the order passed at Annexure-D, confirming the order of detention, vide order dated 12.10.2020.”

Quite pertinently, the Bench then mentions in para 7 that, “Learned counsel for the petitioner placed reliance on a judgment of a Coordinate Bench of this Court in Smt. Leelavathi vs. Commissioner of Police, Bengaluru and Others, (ILR 2019 KAR 4105) (Smt.Leelavathi) to contend that any delay in considering the representation of the detenu is fatal to the detention order and the detention itself becomes illegal. In view of the said categorical submission made by learned counsel for the petitioner, this Court passed an order dated 10.06.2021 in the following terms:

“Learned counsel for the petitioner submitted that subsequent to the confirmation order, a representation was made on 03.01.2021. The State has not yet been considered (as per Annexure-‘E’).

The said submission is contradicted by learned Special Public Prosecutor-II by stating that no such representation was made to respondent No.3 and therefore the State is not responsible for non-consideration of any such representation.

In the circumstances, we direct respondent No.3 to make available the record of 03.01.2021, 04.01.2021 and also 12.01.2021 (as stated in paragraph No.8 of the Writ Petition) vis-à-vis inward and outward register maintained by him or any other concerned authority. This is to ascertain whether the petitioner had indeed made a representation, a copy of which is at Annexure-‘E’ to the writ petition.

Learned Special Public Prosecutor-II to produce the records on 15.06.2021.

A copy of this order is furnished to the learned Special Public Prosecutor-II.””

To be sure, the Bench then points out in para 20 that, “In light of the aforesaid facts, we have closely perused the pleadings of the petitioner in the writ petition. It is noted, the petitioner has averred at paragraph No.8 of the writ petition as follows:

“8. After receiving copies of the order dated 25.09.2020 (Annexure “A”), the Petitioner submitted a detailed representation dated to the 2 nd Respondent and Chairman of the Advisory Board through the 3rd Respondent on 12.01.2021 setting out several grounds for revocation of the detention order. No acknowledgment has been provided to the Petitioner or his brother regarding submission of the representation. Moreover, as on the date of filing of the present writ petition, no intimation, let alone any decision on the representation has even been communicated to the Petitioner or his brother. A true copy of the representation dated 03.01.2021 given to the Respondents is produced as Annexure “E” to the writ petition.”

On a reading of the same, it is evident that the petitioner submitted a detailed representation to the second respondent as well as the Chairman of the Advisory Board (though, by then, the report had already been submitted by the Advisory Board) through the third respondent on 12.01.2021, setting out several grounds for revocation of the detention order. Therefore, the petitioner has categorically averred that for the first time a detailed representation (Annexure-E) which was made on 12.01.2021. We have perused Annexure-E dated 03.01.2021, at the end of which it is dated 04.01.2021. Having regard to the specific averments and contention of the petitioner that the representation (Annexure – E) which was made on 12.01.2021 and bearing in mind the fact that Annexure-E was dated both 03.01.2021 as well as 04.01.2021, on 10.06.2021, we had directed the learned SPP-II to ascertain as to whether really the said representation was made to the third respondent on the said date by the petitioner. This was because Learned SPPII had categorically stated on that date that there was no such representation in the file maintained by the state.”

Needless to say, the Bench then brings out in para 21 that, “Learned SPP-II has now stated that there was, indeed, a representation made on 12.01.2021 by the petitioner, it was submitted by the third respondent to the Tappal Section, Vidhana Soudha, Secretariat on 13.01.2021 and thereafter, representation has now been traced but no order has been passed on the same. This is on the basis of the inward and outward Register maintained by the third respondent which was produced before us for our perusal. It may be so. But, more significantly, it was pointed out from the original records that it was not the first representation made by the petitioner as earlier on 27.10.2020 a representation was made and the same was also placed before the Advisory Board and in that regard he drew our attention to the communication dated 28.10.2020 from the original record.”

Quite significantly, the Bench then states in para 22 which cannot be glossed over that, “Therefore, at this stage itself we opine that the entire premise of the argument of petitioner is non-consideration of the representation dated 12.01.2021, which, according to petitioner’s counsel makes the detention illegal. This plea has to be considered in light of the fact that there was an earlier representation made by the petitioner but the same has been suppressed before this Court. Therefore, this is not a case where there was no representation made by the petitioner prior to the report of the Advisory Board or confirmation of the order of detention by the State on receiving of the said report. There was already a representation made on 27.10.2021. Thereafter, the petitioner was produced before the Advisory Board on 02.11.2020. The Advisory Board, on hearing him submitted its report on 06.11.2020 and thereafter the confirmatory order was passed on 12.11.2020.”

As a corollary, the Bench then states in para 23 that, “Therefore, the facts of the present case have to be placed in its proper perspective in as much as it cannot be said, that for the first time the detenu made his representation subsequent to the confirmation order and the same has not been considered.”

It cannot be glossed over that the Bench then states in para 24 that, “Be that as it may. It is necessary to appreciate the object and purpose of what is provided under Section 14(1) of the Act. The said provision enables and empowers the State to consider the representation made even after the confirmatory order of preventive detention passed under Section 12 read with Section 13 of the Act. Section 14 of the Act can be extracted for immediate reference as under:

“14. Revocation of detention orders:-

(1) Without prejudice to the provisions of section 21 of the Karnataka General Clauses Act, 1899, a detention order may, at any time, be revoked or modified by the State Government, notwithstanding that the order has been made by an officer mentioned in sub-section (2) of section 3.

(2) The revocation or expiry of a detention order (hereinafter in this sub-section referred to as the earlier detention order) shall not, whether such earlier detention order has been made before or after the commencement of the Karnataka Prevention of Dangerous Activities of Boot-leggers, Drug-offenders, Goondas, Immoral traffic Offenders and Slum-Grabbers (Amendment) Act, 1987, bar the making of another detention order (hereinafter in this subsection referred to as the subsequent detention order) under section 3 against the same person:

Provided that in a case where no fresh facts have arisen after the revocation or expiry of the earlier detention order made against such person, the maximum period for which such person may be detained in pursuance of the subsequent detention order shall in no case, extended beyond the expiry of a period of twelve months, from the date of detention under the earlier detention order.”

On a reading of the same, it is noted that the State can revoke or modify an order of preventive detention either suo moto or it can be on a representation made by the detenu, even after confirmation of the preventive detention order. But, such a representation has to be considered in right earnest. But, the fact remains, in the instant case, when the representation was made on 12.01.2021, the same has not yet been considered since then; even till today the said representation has not been considered. In fact, learned SPP-II had initially contended that there was no such representation but pursuant to our order dated 10.06.2021, he has produced the original inward/outward register maintained by third respondent and has submitted that in fact, a representation was made on 12.01.2021.”

Without mincing any words, the Bench then observes in para 27 that, “We find that much time has been lost in the instant case vis-a-vis, the consideration of the representation. The non-consideration of the representation in the instant case has adversely affected the right of the petitioner inasmuch as the failure of the State Government to consider the representation till date is an instance of infraction of Article 21 of the Constitution of India. We say so, for the reason that, had the representation been considered at the earliest point of time from the date of its receipt, by the second respondent there may have been a possibility of the State Government either revoking the order of detention or modifying it. It could also have been a case of rejection of the representation. But, today, when more than five months have lapsed from the date of making representation the detenu is unaware of whether his representation has been considered and rejected or not considered at all. All this while the detenu continues to be in detention. We are not, for a moment, suggesting that in the instant case, the detenu would have been released had the representation been considered within a reasonable time. That is not the import of our reasoning. But there was a possibility of the detenu being released if his representation had been considered at the earliest point of time. In such a case, the petitioner may have been released and not continued in detention or incarceration. In the alternative, the order of detention may have also been modified and the petitioner may have been released prior to the completion of the period of detention, which is twelve months in the instant case. In both the above possibilities, the liberty of the petitioner, being crucial, would have been safeguarded. But, non-consideration of the representation implies lack of opportunity to have release from detention, if the representation had made out such a case or a release prior to the completion of the order of detention. In both cases, the right of the petitioner under Article 21 would have been safeguarded. Further, consideration of the representation by the second respondent and its rejection would have allowed the petitioner to seek remedy in accordance with law, by a judicial review of the same. But in the instant case non-consideration of the representation dated 12.01.2021 till date is in our view is a glaring instance of violation of Article 21 of the Constitution.”

Be it noted, the Bench then makes it clear in para 28 that, “We emphasise that consideration of the representation at an earliest point of time is of utmost importance even in a case where it is made post confirmation of the detention, as the reasons assigned for modification or revocation of the order of detention may be acceded to by the State Government. But, for making such an order it is just and necessary that the representation is considered expeditiously. There could be a variety of reasons for making a representation by a detenu which needs to be considered within an earliest point of time by the State Government. Let us assume that in a case the detenu may have made out a case for either revocation or modification of the order of preventive detention; the non-consideration of the said representation for five months, as in the instant case, would imply that the right to be released on account of the revocation of the order of detention or its modification, is lost. If for nearly six months such a representation is not considered and if the order of preventive detention had to be revoked or modified as a case as such was made out, the same would not enure to the benefit of the detenu as precious time would have been lost due to non-consideration of the representation. If ultimately the detenu is to have benefit of revocation or modification of the order of preventive detention, on the basis of his representation the same must be considered at the earliest point of time and not at the fag end of his detention. If such a representation is not considered at the earliest point of time, it would be easy to say that the representation has lost its efficacy and has been rendered infructuous on account of the period of detention being completed. Such a fait accompli cannot be permitted to happen under our Constitution.”

Quite rightly, the Bench then also rightly holds in para 29 that, “It would be a different matter if the representation is considered at an earliest point of time and rejected. This would give a further right to the detenu to take recourse in accordance with law but, for that also, the detenu’s representation must be considered in the right earnest. Thus, the most significant right that a detenu has is to have his representation considered, under Section 14 of the Act as early as possible i.e., at the earliest point of time from its submission to the jail authority. The right of consideration of a representation made by the detenu under Section 14 of the Act is a critical and important right. If such a representation is considered and rejected, faced with the order of rejection, a detenu may take remedies available to him in law. But the representation of the detenu cannot be in suspended animation inasmuch as it cannot be mixed up with a bundle of other postal record or with other record, files or papers of the State Government or simply to lie on the desk or shelf of the case worker. It is incumbent upon the State Government to have a separate channel for the receipt of communication of such representations made by detenus, not only prior to the confirmation order, but even after the confirmation order is passed. This is having regard to the duty/obligation cast on the State Government under Section 14 of the Act to pass an order of revocation or modification of an order of preventive detention or to pass an order of rejection of the representation, as the case may be.”

More significantly, the Bench then holds in para 48 that, “That an order of detention is not curative or reformative or punitive action but a preventive action, the avowed object of which being to prevent the anti-social and subversive elements from imperiling the welfare of the country or the security of the nation or from disturbing the public tranquility or from indulging in smuggling activities or from engaging in illicit traffic in narcotic drugs and psychotropic substances etc., preventive detention is therefore, devised to afford protection to society. The object is not to punish a man for having done something but to intercept before he does it and to prevent him from doing so, vide, Naresh Kumar Goyal vs. Union of India, [(2005) 8 SCC 276] and P.U. Iqbal vs. Union of India (UOI), [(1992) 1 SCC 434].”

Most significantly, what forms the cornerstone of this dynamic judgment is then stated in para 49 wherein it is held that, “At the same time, while considering and interpreting the preventive detention laws, there must be a concern for upholding and safeguarding the fundamental right and liberty of the detenu without losing sight of the fact that the preventive detention has been recognized even under the Constitution. Even though the same is based on the subjective satisfaction of the detaining authority, nevertheless, it is not immune from judicial review. Even after the confirmation order is made by the State, the obligation to act under Section 14 of the Act cannot be ignored. Hence, the following guidelines/directions:

(i) That whenever an order of detention is followed by an order of confirmation of detention made by the State under Section 12 read with Section 13 of the Act, liberty is reserved to the detenu to make a representation;

(ii) In such a case, the representation would have to be considered by the State under Section 14 of the Act in the context of revocation or modification of the order of detention;

(iii)   Such a representation, when made to the Jail Superintendent/Jail Authority by the detenu, must be transmitted to the concerned officer/authority who is vested with the responsibility/obligation to consider such a representation at an earliest possible time. The use of technology in this regard has to be underscored. Such a representation can be scanned or sent in any other instantaneous mode by the Jail Authority to the concerned officer or authority;

(iv)  If a case-worker is entrusted with the file of a particular detenu, it is the duty of the case-worker to put up the representation immediately on receipt of the same before the concerned officer or authority for consideration of the same;

(v)  For the said purpose, the State has to devise a system or channel under which such representations could reach the concerned officer or authority in an expeditious manner.

(vi)    On such representation being placed before the concerned authority or officer, the same has to be considered as expeditiously as possible and in the earliest point of time. What is the said time cannot be defined in specific terms. The same would depend upon the nature of the representation made by the detenu.

(vii)   It is needless to observe that precious time cannot be lost in the transmission of the representation to the concerned department and thereafter, in placing the same by the case worker before the concerned officer or authority. Hence, the State may issue further guidelines/directions in that regard to all the jail authorities/jail superintendents wherein persons are detained under the respective laws provided for preventive detention so that the representations made post confirmation of such detention are considered in time under Section 14 of the Act.

(viii) On consideration of the representation of the detenu, the order made thereon must be communicated to the detenu through the concerned jail authorities so that if the order is for release of the detenu, he is released forthwith or if it is modification of the detention order, in which event, it could be an earlier release and the same would also have to be intimated to the detenu. Similarly, if the representation is rejected, it must also be communicated to the detenu forthwith so as to enable the detenu to take recourse in accordance with law.

(ix) On such communication being sent, the jail authority, which receives the same, must inform the authority which has made the order, about the receipt of communication and about the intimation of the said communication to the detenu.

(x)  The State Government to issue guidelines to the respective jail authorities and other officers/authorities in the Department of Home Affairs with regard to the aforesaid directions.

The Registrar General, High Court of Karnataka, Bengaluru, to circulate this judgment to the following authorities:

1. The Additional Chief Secretary, Department of Home, Government of Karnataka, Vidhana Soudha, Bengaluru-560 001;

2. The Principal Secretary, Department of Law, Government of Karnataka, Vidhana Soudha, Bengaluru-560001.

3. Director General and Inspector General of Police, Director General of Police Karnataka, Karnataka, Police Headquarters, Nrupathunga Road, Bengaluru-560001;

4. Secretary, Department of Parliamentary Affairs, Government of Karnataka, Vidhana Soudha, Bengaluru-560 001.”

For the sake of clarity, the Bench then specifies in para 50 that, “In issuing the aforesaid directions, we are placing reliance on the judgment of the Hon’ble Supreme Court in K.M. Abdulla Kunhi and B.L. Abdul Khader vs. Union of India, [AIR 1991 SC 574], wherein a Constitution Bench of the Hon’ble Supreme Court held that the confirmation of the detention does not preclude the Government from revoking the order of detention upon considering the representation. There may be cases where the Government has to consider the representation only after confirmation of detention. Article 22(5) of the Constitution suggests that the representation could be considered even after confirmation of the order of detention. The words ‘shall afford him the earliest opportunity of making a representation against the order’ in Article 22(5) of the Constitution suggest that the obligation of the Government is to offer the detenu an opportunity of making a representation against the order, before it is confirmed. But, if the detenu does not exercise his right to make representation at that stage, but presents it to the Government after the Government has confirmed the order of detention, the Government still has to consider such representation and release the detenu if the detention is not within the power conferred under the statute. Thus, the confirmation of the order of detention is not conclusive as against the detenu. It can be revoked suo motu or upon a representation of the detenu. Hence, even if there is a confirmation of detention, the representation post-confirmation has to be considered independent of confirmation order.”

As it turned out, the Bench then states in para 51 that, “Therefore, in the instant case, we do not think, we can simply direct the State to consider the representation dated 12.01.2021, in accordance with law and within a time-frame to be issued by this Court. We say so on account of the stark facts which have been brought to our notice, inasmuch as the representation dated 12.01.2021, has gone unnoticed and not considered till date. In the circumstances, we find that the petitioner cannot be detained any further under the order of the preventive detention dated 25.09.2020. By this, we clarify that we have not expressed any opinion on the correctness or otherwise of the detention order dated 25.09.2020 per se nor have we considered all other grounds urged by the petitioner.”

Quite aptly, the Bench then holds in para 52 that, “In the instant case, we are only concerned on the singular aspect of the non-consideration of the representation dated 12.01.2021 till date. As a result, the petitioner is denied the benefit of the consideration of his representation for five long months and he is in the dark till date and is not aware about the consideration of his representation nor its rejection or its acceptance. In the absence of detenu’s representation being considered till date, it has led to violation of his rights under Article 21 of the Constitution of India. We reiterate that, had the said representation being considered at the earliest point of time, there could have been an order, either of rejection of the same or revocation or modification of the order of detention. If it was to be a case where the representation of detenu would have been rejected, even then, the petitioner would have known the fate of his representation, not knowing the fate of the representation, dilute the object and purpose of Section 14 of the Act.”

In view of the aforesaid, it is a no-brainer that the Bench then directs in para 53 that, “Hence, we direct release of the petitioner forthwith, if he is not required in any other case/s. While directing that the petitioner be released from detention, we clarify that we have not opined on the correctness or otherwise of the preventive detention order dated 25.09.2020, which has now been rendered inoperative. We reserve liberty to the State and the authorities concerned to act in accordance with the Proviso 14 of the Act.”

Now coming to the three concluding paras. They are as follows: –

54. The writ petition is allowed and disposed in the aforesaid terms.

55. The Registrar (Judicial) is directed to communicate this order to the third respondent for release of the petitioner by bearing in mind all legal formalities.

56. The direction issued to the Registrar (Judicial) to be communicated to him forthwith.

No doubt, it is quite a progressive, persuasive yet powerful judgment by a Division Bench of the Karnataka High Court which very strongly affirms the legal rights of the accused which has to be acknowledged, affirmed and applauded in no uncertain terms. It most rightly vindicates the legal rights of the detenu as enshrined in Article 22 of the Constitution as we have already discussed hereinabove!

Sanjeev Sirohi

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