SUPREME COURT REITERATES THAT MERE APPREHENSION OF BREACH OF LAW IS NOT SUFFICIENT CAUSE FOR DETAINING ACCUSED

A Division Bench of the Hon’ble Supreme Court of India comprising of Justice Dr Dhananjaya Y Chandrachud and Surya Kant passed a Judgment dated 04-04-2022 in the case of Mallada K Sri Ram v. The State of Telangana & Ors [Criminal Appeal No 561 of 2022 (Arising out of SLP(Crl) No 1788 of 2022)] and held that an order for preventive detention cannot be ordered merely because a person is implicated in a criminal proceeding.

In the present case, the brother of Mallada K Sri Ram-Appellant (Detenu /Accused No. 2) was working with M/s Ixora Corporate Services (Company), Banjara Hills, Hyderabad. A Complaint dated 13-10-2020 was lodged by the Company with the SHO, Banjara Hills alleging that another employee of the Company by the name of K Mahendra (Accused No.1), who was in charge of the HR Department at the Company had opened a salary account with the Federal Bank without authorization and in conspiracy with the Detenu/Accused No.2 he collected an amount of Rs 85 Lakhs from 450 job aspirants. It was also alleged that the Accused No.1 in connivance with the Accused No.2 hatched a plan to collect money from individuals by misrepresenting that they would be given a job at the Company and collected money from aspirants for opening a bank account and supplying uniforms.

An FIR No. 675 of 2020 was registered on 15-10-2020 at Police Station Banjara Hills against the Accused No.1 and the Accused No.2 for offences punishable under Sections 408, 420, 506 read with 120B of the Indian Penal Code, 1860 (IPC). Another FIR No 343 of 2020 was registered on 17-12-2020 based on similar allegations at the behest of another informant at Police Station Chatrinaka against the Accused No. 2 for offences punishable under Sections 408, 420 read with 120B IPC.

In the first case, the Accused No. 2 was arrested on 17-12-2020 and in the second case, the Accused No. 2 was arrested on the execution of a prisoner on transit (PT) warrant on 04-01-2021. In the first case, the Accused No.2 was released on bail on 08-01-2021 by the concerned Authority, in terms of an Order dated 31-12-2020, subject to the condition that he shall appear before the SHO, Police Station Banjara Hills on Mondays between 10.30 am and 5 pm till the filing of the charge-sheet. The charge-sheet was submitted in the first case. In the second case, the Accused No.2 was released on bail by the concerned Authority vide Order dated 11-01-2021, subject to the condition that he shall appear before the SHO, Police Station Chatrinaka on Sundays between 2 pm and 5 pm for a period of three months.

The concerned Detaining Authority passed an Order of Detention dated 19-05-2021 against the Accused No.1 under the provisions of Section 3(2) of the Telangana Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug-Offenders, Goondas, Immoral Traffic Offenders, Land Grabbers, Spurious Seed Offenders, Insecticide Offenders, Fertiliser 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 1986 (Act) on the ground that “The illegal activities of the detenu were of such a reach and extent, that they would certainly affect the even tempo of life and were prejudicial to the public order.”

This Order of Detention dated 19-05-2021 was challenged before the High Court for the State of Telangana (High Court) under Article 226 of the Constitution seeking a Writ of Habeas Corpus. The Division Bench of the High Court dismissed the Writ Petition vide Impugned Judgment and Order dated 25-01-2022 on the ground that “The detaining authority had sufficient material to record subjective satisfaction that the detention of the detenu was necessary to maintain public order and even tempo of life of the community.”

Assailing the Impugned Judgment and Order dated 25-01-2022, an Appeal was filed before the Hon’ble Supreme Court of India. The Bench after taking into consideration the facts of the case and the arguments advanced by the parties to the dispute, observed that the Order of Detention was passed after almost seven months after the registration of the first FIR dated 15-10-2020 and about five months after the registration of the second FIR dated 17-12-2020. The Apex Court therefore observed:

“15 A mere apprehension of a breach of law and order is not sufficient to meet the standard of adversely affecting the “maintenance of public order”. In this case, the apprehension of a disturbance to public order owing to a crime that was reported over seven months prior to the detention order has no basis in fact. The apprehension of an adverse impact to public order is a mere surmise of the detaining authority, especially when there have been no reports of unrest since the detenu was released on bail on 8 January 2021 and detained with effect from 26 June 2021. The nature of the allegations against the detenu are grave.”

“The nature of the allegations against the detenu are grave. However, the personal liberty of an accused cannot be sacrificed on the altar of preventive detention merely because a person is implicated in a criminal proceeding. The powers of preventive detention are exceptional and even draconian. Tracing their origin to the colonial era, they have been continued with strict constitutional safeguards against abuse. Article 22 of the Constitution was specifically inserted and extensively debated in the Constituent Assembly to ensure that the exceptional powers of preventive detention do not devolve into a draconian and arbitrary exercise of state authority.”

The Apex Court also observed that in the last five years, it has quashed over five detention orders under the Act for incorrectly applying the standard for maintenance of public order and relying on stale materials while passing the orders of detention.

“At least ten detention orders under the Telangana Act of 1986 have been set aside by the High Court of Telangana in the last one year itself. These numbers evince a callous exercise of the exceptional power of preventive detention by the detaining authorities and the respondent-state. We direct the respondents to take stock of challenges to detention orders pending before the Advisory Board, High Court and Supreme Court and evaluate the fairness of the detention order against lawful standards.”

 Thus, based on the aforesaid grounds, the Supreme Court while allowing the Appeal set aside the Impugned Judgment and Order of the High Court dated 25-01-2022 and quashed and set aside the Order of Detention dated 19-05-2021 passed by the Detaining Authority against the Accused.

Suchitra Upadhyay

Associate

The Indian Lawyer & Allied Services