LAW FOR ALL

Tuesday, August 3, 2021

The mere fact that a person has made a contradictory statement in a judicial proceeding is not by itself always sufficient to justify a prosecution under Sections 199 and 200 of the Penal Code-Firstly, from the evidence as tendered, we did not see reason to permit the prosecution since in our opinion there is no intentional falsehood uttered. The other relevant facts also indicate that the factual matrix herein does not indicate that it is expedient in the interest of justice to initiate an inquiry and expose the appellant to criminal prosecution. On this aspect it is to be noted that the instant case is not a case where the nomination paper which was complete in all respect was filed and it had been improperly rejected in the scrutiny stage. The allegation of the election petitioner is that the Returning Officer had refused to receive the nomination paper, which the learned Judge in the ultimate analysis has accepted and termed the same as an improper rejection. Even that be so, to indicate that the nonacceptance alleged by the election petitioner was a deliberate action by the Returning Officer with a specific purpose, it has 26 neither been pleaded nor proved in the course of the proceedings so as to penalise the appellant to face yet another proceeding.- In the result, the following order: (i) Civil Appeal No. 4821/2012 is disposed of as infructuous. (ii) Civil Appeal No. 6171/2012 is allowed. Consequently, the direction contained in para 175 of the impugned order to the Registrar General of the High Court to register the complaint against the appellant, the then Returning Officer before the competent court for proceeding in accordance with law for the purpose of provisions of Section 193 of the Indian Penal Code is set aside.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.4821 OF 2012

N.S. Nandiesha Reddy ……Appellant(s)

Versus

Kavitha Mahesh ….Respondent(s)

With

Civil Appeal No. 6171/2012

J U D G M E N T

A.S. Bopanna, J.

1. The appellants in both these appeals are assailing

the order dated 01.06.2012 passed by the learned Single

Judge of the High Court of Karnataka at Bangalore in

Election Petition No. 7/2008. By the said order, the

election of the appellant in C.A. No. 4821/2012 (Mr.

Nandiesha Reddy) from 151 K.R. Pura Legislative

Assembly constituency in Bangalore Urban District is

held to be void, in terms of Section 100 (1) (c) of the

Representation of People Act 1951. Further, in the course

of the said order the learned Judge has directed the

Registrar General of the High Court to register a

complaint against the appellant in C.A. No.6171/2012

(Mr. Ashok Mensinkai) before the Competent Court for

proceeding in accordance with law for the purpose of

provisions of Section 193 Indian Penal Code, 1860. The

said direction is issued since according to the learned

Judge, the appellant in the said appeal who was the

Returning Officer for the said election; on being examined

as PW.3 in the Election Petition had given false evidence

before the Court. In the above circumstance, the

appellant in C.A. No. 4821/2012 (Mr. Nandiesha Reddy)

has assailed the order in its entirety while the appellant

in C.A. No. 6171/2012 (Mr. Ashok Mensinkai) has

assailed the order insofar as directing prosecution

against the appellant.

2. In the above background, we have heard Mr. Jayant

Mohan, learned counsel for the appellant in C.A.

No.4821/2012 and Mr. S.N. Bhat, learned counsel for the

appellant in C.A. No.6171/2012. We have also heard the

respondent who had appeared as a partyinperson in

both these appeals and perused the relevant material, as

also the written submission filed on either side.

3. The issue arises from the election which was held in

April/May 2008 to the Karnataka State Legislative

Assembly. The present case as noted earlier, relates to

one of the constituencies, namely, 151 K.R. Pura

Legislative Assembly Constituency. The elections were

notified on 16.04.2008 and as per the calendar of events

the publication of result was fixed on 27.05.2008, soon

after which the Karnataka State Legislative Assembly for

that term was constituted. In that background, the term

of the Assembly was up to May, 2013 whereafter the

subsequent election to constitute the Karnataka State

Assembly afresh for the next term has taken place. In

that circumstance though by the order impugned dated

01.06.2012, the election of the appellant in C.A.

No.4821/2012 (Mr. Nandiesha Reddy) was held to be

void, immediately thereafter, the instant appeal was filed

and this Court had granted stay of the impugned order

while issuing notice on 11.06.2012. In that view, the

appellant has completed the term of the Assembly for

which he was elected. As such Mr. Jayant Mohan,

learned counsel for the appellant in C.A. No.4821/2012

(Mr. Nandiesha Reddy) has submitted that the grievance

put forth in the appeal does not survive for consideration.

Having noted the sequence it is evident that the prayer in

C.A. No.4821/2012 has rendered itself infructuous and

the appeal does not survive for consideration.

4. Though that be the position, Mr. S.N. Bhat, learned

counsel for the appellant in C.A. No.6171/2012 submits

that the said appeal needs consideration in view of the

direction issued by the learned Judge to prosecute the

appellant Mr. Ashok Mensinkai. In that regard, the

learned counsel has drawn our attention to the manner

of consideration made by the learned Judge presiding

over the election tribunal and contends that there is no

proper and definite conclusion reached by the learned

Judge as to the deliberate falsehood uttered in the

statement alleged to have been made by the appellant. It

is contended that the appellant in fact was cited as a

witness by the election petitioner herself and in the

course of the examinationinchief; in answer to the

questions put by the learned Judge and in the crossexamination, the appellant has been consistent in

narrating the facts sequentially as it had occurred on

that day. The appellant though was initially arrayed as

respondent No.4 to the election petition, he had been

deleted and as such the appellant did not have the

opportunity of putting forth his written

statement/objection statement to the Election Petition so

as to controvert the allegations made against the

appellant. In any event, the election petitioner had

examined the appellant and in respect of the statements

made by the appellant the election petitioner did not

choose to crossexamine the appellant after seeking to

treat him as a hostile witness if the allegation of

tendering false evidence was to be made. Further, the

learned Judge after noticing the two versions, one by the

election petitioner and the other by the appellant, though

was entitled to rely upon one of the versions as probable

to arrive at his conclusion on the merit of the case, that

by itself cannot be made the basis to order prosecution.

That apart no opportunity was granted to the appellant in

terms of Section 340 of the Criminal Procedure Code,

1973 before forming an opinion to direct the Registrar to

lodge a complaint. It is his further case that the action of

the present nature could not have been initiated unless

there was material to indicate that the witness had

uttered falsehood intentionally. The appellant could not

have gained either way if the election petitioner had

contested the election or not. In such situation no

purpose would have been served by not accepting her

nomination if she had actually complied with the

requirement and presented the nomination papers. The

appellant had accepted 30 nomination papers from 18

different candidates for the same election and on

23.04.2008 i.e., the last day itself the appellant had

received 18 nomination papers and one more would not

have made any difference. In that view he contends that

the order is not sustainable.

5. The respondent partyinperson however, contends

that the appellant had by not accepting the nomination,

denied an opportunity for the respondent to contest the

elections and in such circumstance the learned Judge

had noted the inconsistent statements made by the

appellant in the course of his evidence to justify his

illegal action. The learned Judge has therefore rightly

arrived at the conclusion to direct prosecution and such

order does not call for interference is her contention.

6. Having noticed the contentions put forth in C.A. No.

6171/2012 and also having noted that the dispute in

C.A. No.4821/2012 has rendered itself infructuous, we

restrict our consideration limited to the question as to

whether the appellant in C.A.No.6171/2012 (Mr. Ashok

Mensinkai) should be exposed to criminal prosecution

and whether it is expedient to do so in a matter of the

present nature. It is no doubt true that the election

petition itself is predicated on the allegation against the

appellant in C.A. No.6171/2012 to the effect that as a

Returning Officer for the said election he had wrongly

refused to accept the nomination papers sought to be

submitted by the election petitioner which amounts to

improper rejection of the nomination papers in terms of

Section 100 (1) (c) of the Act. The consequence of the

same has befallen on the elected candidate. However,

presently the ground of improper rejection of nomination

paper as alleged and the conclusion of the learned

Judge on that aspect fades into insignificance for the

reasons stated earlier.

7. Therefore, the limited aspect we are required to

notice in the present situation is only with regard to the

statements made by the appellant in his evidence as

PW.3 which are considered by the learned Judge to be

inconsistent and, therefore, stated to amount to perjury.

In that regard whether the action initiated by the learned

Judge on that aspect is justified is the issue, if not, it will

call for interference. As noted, the appellant was

examined as PW.3. In the course of his deposition, he

had stated that he can identify the election petitioner as

an intending candidate in 151 K.R. Pura Legislative

Assembly Constituency. He has further stated that he

does not remember if the election petitioner had met him

on three occasions on 23.04.2008 which was the last day

for filing nomination papers. He has however stated that

he remembers to have seen the election petitioner on two

occasions, on that day. He has also stated that he does

not remember the exact time of the election petitioner

meeting him for the first time, but it could be between

3.00 pm and 3.15 pm. On the second occasion he

recollects to have met the election petitioner on the same

day between 5.30 pm and 6.00 pm while he was going

out from office after work for the day. The request made

by the election petitioner at that stage to accept the

nomination paper was declined since the time for

acceptance was over. In that context he states that the

nomination paper which was marked as Exhibit P1 had

not been presented before him between 11.00 am and

3.00 pm on 23.04.2008 which was the permitted time for

filing. He also states that he did not refuse to accept

Exhibit P1(nomination paper) for the reason it was not

accompanied by other necessary documents but in fact it

was not presented before him.

8. As against what has been stated by the appellant,

the election petitioner who examined herself as PW1 has

stated that on 23.04.2008 she had submitted her

nomination paper before the appellant for the general

election. On delivering the nomination papers she had

requested the Returning Officer for extracting the new

part number and serial number of the ten proposers to

fill in column no. 2B. The Returning Officer is stated to

have told her that he did not have the electoral roll of

K.R. Pura State Assembly Constituency and that she

should approach the revenue officials working in the

ground floor of the building. She states that as per his

request she had entrusted the job to her husband and

supporters to collect the details from the ground floor

office. Later, she came to know from her husband and

her supporter that everybody in the revenue office were

having lunch break and the details could not be secured.

She thereafter, states that for the first time at 14.00

hours when she delivered nomination papers, the

Returning Officer directed her to collect the details but

she could not get the details of her ten proposers who

had signed the nomination papers. She states that on

realising the time factor that it was the last day for filing

nomination papers she submitted her nomination papers

by 15.00 hours before the Returning Officer once again

and stated that she would fill the column subsequently

as she has time upto 24 hours to fill the column. She

has further alleged that the appellant refused to receive

the nomination papers. What is relevant to be noted is

that the election petitioner in the course of her crossexamination recorded in para 37 states that after

deputing her husband and supporter to get the details

and while she was waiting, she was outside the hall

where the Returning Officer was sitting. This would

indicate, what the election petitioner has stated is in tune

with the sequence stated by the appellant except for the

variance in the stand insofar as actually tendering the

nomination paper and pressing for acceptance and

according to election petitioner the same not being

accepted.

9. From the two sets of statements, one by the

appellant as PW.3 and the other by the election petitioner

as PW.1 in the course of adjudication, the reliability of

one of them was to be deduced. The crux of the matter

was to find out as to whether the election petitioner had

actually submitted her nomination paper and the

appellant had declined to receive the same. Insofar as

that aspect, if the conclusion was in favour of the election

petitioner it would be a case of an improper rejection and,

on that aspect, it is not necessary for us to pronounce

upon since the appeal on that question does not survive.

However, only issue for consideration is, from the nature

of the statements made above, can the Court come to a

conclusion that the appellant has uttered deliberate or

intentional falsehood in the course of Court proceedings.

In that regard, it is to be noted that the learned Judge

during the course of the proceedings had made certain

observations and had extracted the earlier order in the

final impugned order dated 01.06.2012, the same reads

as hereunder:

ORDER PASSED IN THE MORNING SESSION

“The witness is not very sure of what

development took place and the manner of his

deposition is inconsistent every second and

minute keeps varying and to support his

version that he had conducted in accordance

with rules and regulations and in a proper

manner states that a certain development had

taken place around some time, but goes back

on the earlier version that the last nomination

paper was received at 2.58 pm but later

mentioned it was after 3 pm and on being

cautioned by the court, goes back to the earlier

version of 2.58 pm etc.

This witness is obviously lying on oath, his

deposition is inconsistent, varying by the

second, different version each time. A person

giving different version of the same incident is

not merely uttering falsehood once or the other

time, but also committing perjury.

This witness lacks credibility for deposing

before the court on oath and requires to be

dealt with in accordance with law and being a

public servant who has taken oath to depose

truth and only truth before this court has been

attempting to depose incorrect and false

statements which per se is not only perjury

within the meaning of section 191 of Indian

Penal Code but also committing contempt of

court.

Therefore, no need or occasion for

recording further evidence of this witness and if

need be, can be summoned later by the court

for questioning. As of now, the witness is

discharged.

Witness is directed to remain present in the

court hall. Call this matter again at 2.30 pm.

ORDER PASSED IN THE AFTERNOON SESSION:

Further crossexamination of the witness is

stopped at this stage to enable the witness to

procure relevant necessary, official records

throwing light on the developments that had

taken place during his functioning as the

returning officer in the K R Pura assembly

constituency.

As the witness states that the records

pertaining to conduct of elections etc. are all

now available at the office of the district election

officer, Mahadevapura Zone, BBMP, Bangalore,

who is ex officio holding this post is otherwise

functioning as joint commissioner, BBMP at

Mahadevapura and as this officer has to part

with records. The witness to be enabled to

secure these records and attend court for

further cross examination with the records.

Sri Shashikanth, learned counsel for the

respondent submits that for such purpose, it is

necessary for the election petitioner to make an

application listing the documents and records

that are required to be summoned and

summons may be issued on such applications

to the officer who is having the custody of such

records.

It is said that procedure is the handmaid of

justice and procedure should be given only

such importance as is warranted to ensure fair

play, equal opportunity and practical

possibilities of adhering to the procedure.

An election petition though is a creature of

the Representation of People Act 1951 and

being a petition at the instance of an aggrieved

persons with regard to the validity of the

declaration of election result, and for

questioning a correctness or otherwise of the

declaration of results and may have the

characteristics of an adversary litigation, it

nevertheless has a flavour of public interest

imbedded into it as the conduct of free and fair

election is the ‘sine qua non’ of any healthy

democratic process. Records relating to the

conduct of elections in a general election either

to an assembly or to the parliament are not

private documents but are public documents or

records and if any such record can throw light

on the manner of conduct of elections in any

particular assembly segment, while it is a

relevant record, familiarity or ignorance of such

a record on the part of the election petitioner

cannot come in the way of court scrutinizing

the record for being satisfied or even for being

apprised about the manner of conduct of

election.

It is therefore, hereby ordered and the

witness who has appeared before the Court as

PW3 today and who had functioned as the

returning officer of the K R Pura assembly

constituency is hereby directed to contact the

district election officer with this order secure

the relevant records to enable him to depose

before this court correctly with precision,

unambiguity and then appear with such

records before this court on 28.6.2011 as the

witness states that he requires at least seven

days’ time to complete this exercise.

The district election officer who is also the

joint commissioner, BBMP, Mahadevapura, is

hereby directed to ensure compliance with this

order and to hand over such records which are

in his custody relating to the conduct of K R

Pura assembly election to enable the witness to

depose further before this court in a proper and

precise manner as the then returning officer of

the constituency by identifying the record.

The Registrar General of this Court is

directed to ensure a copy of this order is served

on the district election officer, Mahadevapura

zone, BBMP, Mahadevapura, Bangalore48.

The witness also be furnished with a copy of

this order.

List the petition for further crossexamination of PW3 on 28.6.2011.”

10. As per the version of the election petitioner she had

met the Returning Officer at 2 pm on 23.04.2008 when

certain requirements were indicated due to which she

made an effort to secure the same from the ground floor

and after about 45 minutes her husband and the

supporter came back with the information that they were

unable to get the same. She has also stated that at that

point she waiting outside the room where the Returning

Officer was seated. If that version of the election

petitioner herself is kept in view, it is not the case of the

election petitioner herself that at 2 pm when she had

come, she had met the Returning Officer and insisted for

receiving the nomination paper even without the details

to be filled in column 2B. On the other hand, if the case

that she made efforts to get the details of the proposers

due to which some time lapsed and then she presented

the nomination paper without the details and if the time

spent in that regard as stated by her is about 45 minutes

which is a rough estimate and not precise, the version of

the appellant that he had met the election petitioner

around 3.00 pm to 3.15 pm on that day is a probable

version. This is more so when the fact remains that the

appellant was taking note of the nomination papers

presented by another independent candidate Smt.

Ambujakshi. If in that context he has stated that the

election petitioner had met him between 3.00 pm and

3.15 pm, it could only mean that it was after the process

of receiving the nomination paper of Smt. Ambujakshi. In

fact, it is in her own deposition the election petitioner has

stated that when she was unable to get the details and

realising the time factor that it was the last day for filing

nomination papers, she submitted her nomination papers

by 15.00 hours (i.e. 3 pm) before the Returning Officer.

Even in that situation, if the learned Judge were to come

to a conclusion that the election petitioner having already

entered the office of the Returning Officer prior to the

closing hours for receipt of the nomination papers at 3.00

pm and in that context due to the guidelines the

nomination papers were to be received, notwithstanding

the same being incomplete, it could be an aspect on the

question of improper rejection. But certainly, the same

could not have been made the basis to conclude that the

appellant was not truthful.

11. The extracted portion of the earlier order dated

15.06.2011 indicates an observation made by the learned

Judge to indicate that he has gone back on the version

wherein he had stated that the last nomination paper

was received at 2.58 pm but later mentioned it was after

3.00 pm and on being cautioned by the court he goes

back to the earlier version of 2.58 pm etc. On this aspect

also we do not see any deliberate falsehood uttered by the

appellant, much less is there any inconsistency. The

statement made by the appellant was that he received the

nomination paper of Smt. Ambujakshi i.e. the last

candidate at 2.58 pm and it had taken him about 78

minutes to go through the papers, after which she had to

take an oath as stated in para40 of his further crossexamination. If that be the position, the statement would

mean that the last nomination paper of Smt. Ambujakshi

was presented at 2.58 pm and when the process was over

it was past 3.00 pm. Only after that he had met the

election petitioner that is between 3 pm and 3.15 pm.

Even with regard to the statement that he had met the

General Observer on three occasions and later stated it

was on two occasions are to be noted in the context that

the evidence was being tendered after more than three

years and all inconsequential events cannot be recalled

with precision. The further evidence of the appellant is

referred in para 81 to 87 of the order, but learned Judge

has not pointed out any deliberate or intentional

falsehood arising therefrom. Mere reference to

inconsistent statements alone is not sufficient to take

action unless a definite finding is given that they are

irreconcilable; one is opposed to the other so as to make

one of them deliberately false.

12. Therefore, as noticed from the evidence recorded,

the appellant had stated that the nomination papers had

not been presented to him before the closing hours and

had sought to justify his action. He had also stated about

the procedure followed in all cases and the presence of

observers in his office. On the other hand, the election

petitioner had contended that she had made an attempt

to submit the nomination paper which was not received

by the appellant who was the Returning Officer. When he

had received 18 nomination papers on that day there was

no particular reason to refuse the election petitioner’s

nomination, nor has motive been suggested or

established. The learned Judge has no doubt accepted

the version put forth by the election petitioner. That by

itself does not indicate that appellant had uttered

falsehood intentionally and deliberately before the court

so as to initiate action under Section 193 Indian Penal

Code. The proceedings of the day in the office of the

Returning Officer, namely, the appellant was videorecorded and the same was marked as Exhibit P21 to P24

in the proceedings. The learned Judge did not choose to

refer to the same to come to a definite conclusion as to

whether the election petitioner had actually met the

Returning Officer, if so, the actual time and in that

context a finding was not recorded that the depiction in

the videorecording is quite contrary to the statement of

the Returning Officer so as to indicate that he had

uttered deliberate falsehood.

13. Apart from the factual aspect noted above relating

to the evidence tendered in the instant case, it is not a

case where the appellant was a partyrespondent to the

election petition where his written version was available.

On the other hand, he was examined as a witness by the

election petitioner as PW3. No doubt the learned Judge

has chosen to call him as a court witness by interrupting

the crossexamination and posing questions to him. Be

that as it may, it was also not a situation where the

petitioner had filed an application under Section 340 of

Criminal Procedure Code, 1973 seeking action. If that

was the case the appellant would have had an

opportunity to file his version in reply to the application.

That apart, the learned Judge also had not put the

appellant on notice on the allegation of committing

perjury and provided him an opportunity nor has the

learned Judge come to the conclusion that one of the

versions is deliberate or intentional falsehood and that

therefore, action is necessary to be taken against him. On

the other hand, the learned Judge during the course of

passing the final order has made certain observations

and directed that the Registrar General shall file a

complaint.

14. It is apposite to refer to the decision of this Court in

the case of KTMS Mohammad and Another vs. Union

of India, 1992 3 SCC 178 wherein it is observed as

hereunder:

“37. The mere fact that a deponent has

made contradictory statements at two

different stages in a judicial proceeding is

not by itself always sufficient to justify a

prosecution for perjury under Section 193

IPC but it must be established that the

deponent has intentionally given a false

statement in any stage of the ‘judicial

proceeding’ or fabricated false evidence for

the purpose of being used in any stage of

the judicial proceeding. Further, such a

prosecution for perjury should be taken

only if it is expedient in the interest of

justice.”

Further, in the case of Amarsang Nathaji vs.

Hardik Harshadbhai Patel & Ors., 2017 1 SCC 113

relied on by the learned counsel for the appellant, this

Court on referring to the case of KTMS Mohammad vs.

Union of India (supra) has held as hereunder:

“6. The mere fact that a person has made

a contradictory statement in a judicial

proceeding is not by itself always

sufficient to justify a prosecution under

Sections 199 and 200 of the Penal Code,

1860 (45 of 1860) (hereinafter referred to

as “IPC”); but it must be shown that the

defendant has intentionally given a false

statement at any stage of the judicial

proceedings or fabricated false evidence

for the purpose of using the same at any

stage of the judicial proceedings. Even

after the above position has emerged

also, still the court has to form an

opinion that it is expedient in the

interests of justice to initiate an inquiry

into the offences of false evidence and

offences against public justice and more

specifically referred to in Section 340 (1)

CrPC, having regard to the overall

factual matrix as well as the probable

consequences of such a prosecution. The

court must be satisfied that such an

inquiry is required in the interests of

justice and appropriate in the facts of

the case.”

15. The respondentelection petitioner has referred to

the decisions in the case of Mahavir Singh and Ors. vs.

Naresh Chandra & Anr. (AIR 2001 SC 134) and the

case of Jagan Nath vs. Jaswant Singh & Ors. (AIR

1954 SC 210) in her written submission. We however, do

not find any assistance from the same as they are not

relevant.

16. In the light of the above stated facts, we are of the

opinion that notwithstanding the conclusion reached by

the learned Judge on the aspect of improper rejection of

the nomination paper, the correctness of which was not

required to be gone into for the reasons stated supra, the

manner in which the learned Judge has concluded that

the appellant in C.A. No.6171/2012 was inconsistent in

his statements in the course of his evidence tendered by

him as PW3 is not justified. Further the conclusion

reached that he is to be prosecuted, without the findings

being recorded regarding deliberate or intentional

falsehood cannot be sustained. Hence the direction

issued to the Registrar General of the High Court to

initiate the proceedings by lodging a criminal complaint

also cannot be sustained in the facts and circumstances

arising in this case.

17. As noted from the decision in the case of Amarsang

Nathaji (supra) and the position of law which is well

established is that even in a case where the Court comes

to the conclusion on the aspect of intentional false

evidence, still the Court has to form an opinion whether

it is expedient in the interest of justice to initiate an

inquiry into the offences of false evidence, having regard

to the overall factual matrix as well as the probable

consequences of such prosecution. The Court must be

satisfied that such an inquiry is required in the interest

of justice and is appropriate in the facts of the case. In

that backdrop, insofar as the observation made by the

learned Judge of the election tribunal relating to the need

for maintaining purity of the election process which is the

heart and soul of democracy and in that situation the

role of the Returning Officer being pivotal, we fully concur

with the same. However, it is also to be noted, merely

because of that position the Returning Officer in the

instant case need not be exposed to prosecution.

18. Firstly, from the evidence as tendered, we did not

see reason to permit the prosecution since in our opinion

there is no intentional falsehood uttered. The other

relevant facts also indicate that the factual matrix herein

does not indicate that it is expedient in the interest of

justice to initiate an inquiry and expose the appellant to

criminal prosecution. On this aspect it is to be noted

that the instant case is not a case where the nomination

paper which was complete in all respect was filed and it

had been improperly rejected in the scrutiny stage. The

allegation of the election petitioner is that the Returning

Officer had refused to receive the nomination paper,

which the learned Judge in the ultimate analysis has

accepted and termed the same as an improper rejection.

Even that be so, to indicate that the nonacceptance

alleged by the election petitioner was a deliberate action

by the Returning Officer with a specific purpose, it has

neither been pleaded nor proved in the course of the

proceedings so as to penalise the appellant to face yet

another proceeding. The Assembly Constituency

concerned is a vast constituency which had nearly four

lakh voters on the electoral rolls. The election petitioner

had not placed material to indicate that she had

contested in any earlier election or had wide support base

in the election concerned and it is in that view she had

been shut out from the contest. Further there is no

allegation that the Returning Officer was acting at the

instance or behest of any other candidate who was feeling

threatened by the participation of the election petitioner

in the election process.

19. On the other hand, the election petitioner, as per

her own case was seeking to present the nomination

paper which was incomplete and even in that

circumstance, she had come to the office of the Returning

Officer only at 2.00 pm on the last day for filing

nomination which was to close at 3.00 pm. Thereafter

she made attempts to complete the formalities in filling

up the nomination paper and having failed had still

presented the nomination paper since according to her

the needful could have been done within 24 hours. In

such a case it cannot be said that the Returning Officer

with an ulterior motive had declined to receive the

nomination paper and to cover up his folly was seeking to

tender false evidence before the Court and thereby to

justify his illegal action. In fact, the appellant had

received the other nomination papers submitted to him

on the last day even as late as 2.58 pm. It is also the

consistent view of this Court that the success of a

candidate who has won at an election should not be

lightly interfered with. In any event it ought not to have

been made the basis to initiate prosecution by terming

the appellant as unreliable witness. Further, we notice

that the appellant was aged 59 years as on 15.06.2011

while recording his deposition and a decade has passed

by and now would be 69 years. As pointed out by the

learned counsel for the appellant, the appellant has

retired from service about eight years back. For all these

reasons also, we find that any proceeding against the

appellant is also not expedient apart from not being

justified.

In the result, the following order:

(i) Civil Appeal No. 4821/2012 is disposed of as

infructuous.

(ii) Civil Appeal No. 6171/2012 is allowed.

Consequently, the direction contained in para

175 of the impugned order to the Registrar

General of the High Court to register the

complaint against the appellant, the then

Returning Officer before the competent court

for proceeding in accordance with law for the

purpose of provisions of Section 193 of the

Indian Penal Code is set aside.

(iii) Parties to bear their own costs.

(iv) Pending applications, if any, shall stand

disposed of.

………….…………CJI

(N.V. RAMANA)

………….…………….J.

(A.S. BOPANNA)

………….…………….J.

(HRISHIKESH ROY)

New Delhi,

August 03, 2021

Monday, August 2, 2021

“(i) Whether the Tribunal and the Commissioner of Income Tax (Exemptions) were right in law in directing the cancellation of registration of the Appellant granted under Section 12AA to the Appellant Trust on the ground that the Trust had received bogus donation from School of Human Genetics and Population Health? (ii) Whether statement recorded in the course of survey under Section 133A of the Act has any probative or evidentiary value? 8. It was submitted on behalf of Trust that it had received donations from various donors and the Trust was under no obligation to verify the source of the funds of the donor or whether those funds were acquired by performance of any unlawful activity. It was further submitted that the funds were applied for the purposes of trust and that there was no evidence to suggest that those funds were applied for any illegal or immoral purposes or that the Trust was a namesake and some other activities were being carried out.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.4451 OF 2021

COMMISSIONER OF INCOME

TAX (EXEMPTIONS), KOLKATA APPELLANT(S)

VERSUS

BATANAGAR EDUCATION

AND RESEARCH TRUST RESPONDENT(S)

J U D G M E N T

Uday Umesh Lalit, J.

1. This appeal challenges the judgment and order dated 09-10-2018

passed by the High Court at Calcutta in ITA No.116 of 2018 setting aside (i)

the order dated 25.02.2016 passed by Commissioner of Income Tax

(Exemption) (“CIT” for short) canceling registration of the respondent Trust

(“Trust”, for short) under Section 12AA of the Income Tax Act, 1961 (“the

Act” for short); and (ii) the order dated 13.09.2017 passed by the Income

Tax Appellate Tribunal (“the Tribunal”, for short) dismissing appeals arising

therefrom.

2. The Trust was registered under Section 12AA of the Act vide order

dated 06.08.2010 and was also accorded approval under Section 80G(vi) of

the Act.

3. In a survey conducted on an entity named School of Human Genetics

and Population Health, Kolkata under Section 133A of the Act, it was prima

facie observed that the Trust was not carrying out its activities in accordance

with the objects of the Trust. A show cause notice was, therefore, issued by

the CIT on 04.12.2015.

4. In answer to the questionnaire issued by the Department, Shri

Rabindranath Lahiri, Managing Trustee of the Trust gave answers to some of

the questions as under:

“Q.11. Please confirm the authenticity of the abovementioned

Corpus Donation.

Ans. A major part of the donations that were claimed exemption

u/s 11(1)(d) were not-genuine. The donation received in F.Ys.

2008-09, 2009-10 and 2010-11 were genuine Corpus Donation

received either from the Trustees or persons who were close to

the Trustees or persons who were close to the Trustees. In F.Y.

2011-12 and 2012-13 a part of the donation were genuine like

the earlier years. However, a major part of the donations

received in these two F.Ys. viz. 2011-12 and 2012-13, shown as

Corpus Donation, were in the nature of accommodation entries

to facilitate two thingsa) To procure loans from the Bank we had to show

substantial amount of Capital Reserve in our Balance Sheet.

b) We require funds for the expansion of our college.

The fees received from the students along with genuine

donations from the Trustees and their contacts were not

sufficient to run the institution.

Q.12. Why are you saying that a major part of the donations

received were not genuine?

Ans. In those cases, which I admit as accommodation entries, a

part of the donation received was returned back to the donors

through intermediaries.

Q. 13. Who were the intermediaries and what were the modes

of returning the money?

Ans. We were instructed to transfer funds through RTGS to the

following seven (7) persons:

1. Santwana Syndicate

2. P.C. Sales Corporation

3. Kalyani Enterprises

4. Riya Enterprises

5. Laxmi Narayan Traders

6. Hanuman Traders

7. Rani Sati Trade cum Pvt. Limited

These payments were booked as capital expenditure under the

head Building.

Q. 14. In response to the earlier question you have stated that

you were “instructed”. Who gave you the instruction?

Ans. I can remember only one name right now, that is Shri

Gulab Pincha, Mob No. 9831015157. He was the key person for

providing a large part of bogus donation received which was

immediately returned back to the different parties in the guise of

payments towards capital expenditure in building. We do now

know any details in respect of the donors on behalf of whom

Shri Gulab Pincha acted as a middle man. Shri Pincha provided

us with the details of the donors, cheque of the donations, letters

of corpus donations etc. He also provided us with the names and

bank a/c. details of the seven (7) persons, mentioned in Answer

13 to whom money has to be returned back through RTGS. He

also collected the money receipts/80G certifications on behalf of

the donors.

Q. 19. The ledger copy for the period from 01.04.2014 to

04.09.2014 in respect of “General Fund” of your trust having

details of the donors is being shown to you to identify the bogus

donations along with bogus donors.

Ans. After going through the list of the donors appeared in such

ledger it is understood that the Donors whose names are written

in capital letters under the sub-head “Donation-13”, “DonationI” and “Donations-II” having total amount of Rs.6,03,07,550/- is

bogus and out of which Rs.5,96,29,973/- was returned back

through RTGS to the above mentioned seven (7) persons

following the instructions of the mediators.”

5. On the basis of the material on record, the CIT came to the following

conclusions:

“6.1. The intention of the legislature to grant registration u/s

12AA and 80G, to give the benefit u/s 11 to encourage medical

relief to the poor and needy persons, promote education among

masses and support to the poor section of the society. But time

and again these provisions have been misused for personal need

and for benefit of trustees/members of the trusts and societies.

Survey u/s. 133A conducted in the case of assessee elaborates

the nature and volume of transactions in the alleged activities.

6.2. Looking at the volume and depth of the illegal activities

performed and indulged by the society to use the provisions of

the I.T. Act providing support and encouragement to the

organizations for doing the benevolent activities, assessee

society not only opened the pandora’s box defying the sole

benevolent purpose of provisions as per the I.T. Act, but also

challenged the cause of the constitutional provisions by

maintaining certain well-needed objectives as per the Act and

performing the reverse in reality.

6.3 Based on the facts and circumstantial evidences as discussed

in Para 1 to 5, it can be inferred: -

a) Assessee trust has received a sum of Rs.1,23,87,550/- as

bogus donation from M/s. School of Human Genetics &

Population Health and voluntarily offered as income. SHG &

PH has admitted their bogus transactions by filing application

before the Hon’ble Settlement Commission, Kolkata and

through confirmation filed.

b) They have received bogus corpus donation not only from

SGHG&PH but also from various parties in different years.

c) Society/Trust has grossly misused the provision of Section

12AA and 80G(5) (vi).

d) They have violated the objects of the trust as converting

cheque received through corpus donation in cash beyond-theobjects. The society was found to be involved in hawala

activities.

e) Corpus donation received is not voluntary, merely an

accommodation entry and fictitious.

f) Activities of the trust are not genuine as well as not being

carried out in accordance with its declared objects. Assessee’s

case is covered within the 60th limb of Section 12AA(3).

g) Even ingenuine and illegal activities carried on by assessee

through money laundering do not come within the conceptual

framework of charity vis-a-vis activity of general public utility

envisaged the Income Tax Act as laid down in Section 2(15).

The CIT, therefore, invoked the provisions of Section 12AA(3) of the

Act and cancelled the registration granted under Section 12AA of the Act

w.e.f. 01.04.2012. Consequently, the approval granted to the Trust under

Section 80G of the Act was also cancelled.

6. The matter was carried in appeal by the Trust by filing Income Tax

Appeal Nos.756 & 912 /Kol/2016 before the Tribunal.

After considering the entire material on record, the Tribunal concluded

as under:

“13. We have given a very careful consideration to the rival

submissions. It is clear from the statements of Secretary and

Treasurer of SHG and PH that they were accepting cash and

giving bogus donations. In the statement recorded in the survey

conducted in the case of SHG and PH on 27.1.2015, it was

explained that SHG&PH’s source of income was the money

received in the form of donations from corporate bodies as well

as from individuals. In the said statement it was explained that

there were about nine brokers who used to bring donations in the

form of cheque/RTGS to SHG and PH. The Donations received

would be returned by issue of cheque/RTGS in the name of

companies or organization specified by the nine brokers. SHG

and PH would receive 7 or 8% of the donations amount. It was

also stated in such statement since the assessee was entitled to

exemption u/s 80G and u/s 35 of the Act their organization was

chosen by the brokers for giving donations to SHG and PH as

well as for giving donations by SHG and PH. Till now the

Assessee’s name did not figure in the statement recorded on

27.1.2015. However, pursuant to the Survey in the case of SHG

& PH proceedings for cancellation of registration u/s 12A of the

Act granted to them were initiated. In such proceedings, Smt.

Samadrita Mukherjee Sardar (in a letter dated 24.8.2015) had

given a list of donations which were given by them after getting

cash of equivalent amount. It is not disputed that the name of the

assessee figures in the said list and the fact that SHG & PH to

the Assessee were against cash received from them in Financial

Year 2012-13 of a sum of Rs.1,23,87,550/-. Even at this stage

all admissions were by third parties and the same were not

binding on the Assessee. However, in a survey conducted in the

case of the Assessee on 24.8.2015, the Managing Trustee of the

Assessee admitted that it gave cash and got back donations. We

have already extracted the statement given by the Managing

Trustee. Even in the proceedings for cancellation of registration,

the Assessee has not taken any stand on all the evidence against

the Assessee. In such circumstances, we are of the view that the

conclusions drawn by the CIT(E) in the impugned order which

we have extracted in the earlier part of the order are correct and

calls for no interference. It is clear from the evidence on record

that the activities of the Assessee were not genuine and hence

their registration is liable to be cancelled u/s. 12AA(3) of the

Act, and was rightly cancelled by the CIT(E). We therefore,

uphold his orders and dismiss both the appeals by the Assessee.”

With this view, the appeals preferred by the Trust were dismissed.

7. The Trust being aggrieved, filed Income Tax Appeal No.116 of 2018

before the High Court. By its order dated 04.07.2018, following questions

were framed as substantial questions of law:

“(i) Whether the Tribunal and the Commissioner of Income Tax

(Exemptions) were right in law in directing the cancellation of

registration of the Appellant granted under Section 12AA to the

Appellant Trust on the ground that the Trust had received bogus

donation from School of Human Genetics and Population

Health?

(ii) Whether statement recorded in the course of survey under

Section 133A of the Act has any probative or evidentiary value?

8. It was submitted on behalf of Trust that it had received donations from

various donors and the Trust was under no obligation to verify the source of

the funds of the donor or whether those funds were acquired by performance

of any unlawful activity. It was further submitted that the funds were applied

for the purposes of trust and that there was no evidence to suggest that those

funds were applied for any illegal or immoral purposes or that the Trust was a

namesake and some other activities were being carried out.

9. After considering rival submissions, the High Court allowed the appeal

with following observations:

“On the basis of the evidence and the authorities cited before the

adjudicating bodies below, we say that the respondent revenue

has not been able to establish the case so as to warrant

cancellation of the registration of the appellant trust under

Section 12AA(3) of the Act. The respondent also has not been

able to prove any complicity of the appellant trust in any illegal,

immoral or irregular activity of the donors.

In that view of the matter, we answer the question (i) in the

order dated 4th July 2018 in the negative and in favour of the

assessee. We have not found it necessary to go into the issue

raised in question (ii).

The order of cancellation of the registration of the trust is

set aside. The respondent is directed to restore its registration

within three weeks of communication of this order. However,

this will not bar any action against the appellant in respect of

any future activities.

The appeal is hereby allowed to the extent above.”

10. In this appeal, we have heard Mr. N. Venkataraman, learned ASG in

support of the appeal and Mr. Rana Mukherjee, learned Senior Advocate for

the Trust.

It is submitted by the learned ASG that the answers given to the

questionnaire clearly show a definite tendency on part of the Trust to return

in cash, the donation it received from several entities.

Mr. Mukherjee, learned Senior Advocate appearing for the Trust

submitted that the conclusions drawn by the High Court were quite correct

and did not call for any interference.

11. The answers given to the questionnaire by the Managing Trustee of the

Trust show the extent of misuse of the status enjoyed by the Trust by virtue

of registration under Section 12AA of the Act.

These answers also show that donations were received by way of

cheques out of which substantial money was ploughed back or returned to the

donors in cash. The facts thus clearly show that those were bogus donations

and that the registration conferred upon it under Sections 12AA and 80G of

the Act was completely being misused by the Trust. An entity which is

misusing the status conferred upon it by Section 12AA of the Act is not

entitled to retain and enjoy said status. The authorities were therefore, right

and justified in cancelling the registration under Sections 12AA and 80G of

the Act.

12 The High Court completely erred in entertaining the appeal under

Section 260A of the Act. It did not even attempt to deal with the answers to

the questions as aforesaid and whether the conclusions drawn by the CIT and

the Tribunal were in any way incorrect or invalid.

In our view, this appeal, therefore, deserves to be allowed.

13. Setting aside the judgment and order presently under challenge, we

allow this appeal and restore the order passed by the CIT and the Tribunal.

No costs.

…………..........................J.

(UDAY UMESH LALIT)

………….........................J.

(AJAY RASTOGI)

NEW DELHI,

AUGUST 02, 2021.

Preventive detention involves detaining of a person without trial in order to prevent him/her from committing certain types of offences. But such detention cannot be made a substitute for the ordinary law and absolve the investigating authorities of their normal functions of investigating crimes which the detenu may have committed. After all, preventive detention in most cases is for a year only and cannot be used as an instrument to keep a person in perpetual custody without trial

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 733 OF 2021

[ARISING OUT OF SLP (CRIMINAL) NO.4729 OF 2021]

BANKA SNEHA SHEELA ..APPELLANT

VERSUS

THE STATE OF TELANGANA & ORS. ..RESPONDENTS

J U D G M E N T

R.F. Nariman, J

1. Leave granted.

2. The present appeal arises out of a judgment dated 31.03.2021,

passed by the High Court for the State of Telangana at Hyderabad, by

which a Writ Petition filed by the Petitioner challenging a Preventive

Detention Order [hereinafter referred to as “Detention Order”] passed

against the Petitioner’s husband [hereinafter referred to as “the

Detenu”] under 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, 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

[hereinafter referred to as “Telangana Prevention of Dangerous

Activities Act”] , was dismissed.

3. The Detention Order under the provisions of the Telangana Prevention

of Dangerous Activities Act is dated 28.09.2020. It refers to five FIRs

that have been filed against the Detenu, all the said FIRs being under

Sections 420, 406 and 506 of the IPC. The facts contained in the FIRs

range from October, 2017 to December, 2019 and are similar. We may

set out the facts contained in FIR No.705 of 2019 as a sample of

similar FIRs filed against the Detenu as follows [This narration of the

FIR is to be found in the Detention Order itself]:

“On 12.12.2019 at 1200 hours a complaint was received

from Sri Kommu Naveen Kumar S/o Veeraswamy, aged

about 24 years, Occ: Car Mechanic, R/o H.No. 2-32,

Yadaran Village, Shamirpet Mandal stating that he has been

running a Garage near main road at Muraharipally village for

the past one year. One Banka Ravikanth, aged about 35

years used to come to his garage for two to three times in a

month for his car servicing. In the month of March, 2019 the

said Ravikanth introduced himself as a High Court advocate

and he would invest money in newly upcoming companies

and insisted the complainant to invest money for 100%

return. He also informed that they are three advocates, of

them one is CA (Chartered Accountant) and another is CS

(Company Secretary) by name Chandramouli, aged about

65 years. On believing his words, he transferred Rs.50,000/-

through Phone-pay to his Indian Bank, Shamirpet branch

vide A/c No. 6714073306. Again on 28.05.2019 he

transferred Rs. 1,00,000/- through Phone-pay as second

investment and on 20.06.2019 he deposited Rs. 1,00,000/-

from his Indian Bank, Gachibowli Branch account to his

account besides giving net cash of Rs. 2,00,000/- by hand.

While sending Rs. 1 lakh through phone pay in presence of

one Prasad, Banka Ravikanth assured the complainant that

in the 2nd

investment he would give him Rs. 41,000/- per month

throughout the year and he will take Rs. 3,000/- towards his

commission. On 12.12.2019 when the complainant asked

him to return his money, he threatened with dire

consequences. The complainant stated that the said

Ravikanth has cheated him by saying that he would get

more return. On the strength of the complainant, police

registered a case and investigation into.”

Following upon the narration of the 5 FIRs comes this important

paragraph:

“Due to above incidents, the complainants, victims and other

young aspirants, who want to invest money in stock/share

market and derive benefits became scared and feeling

insecure. These incidents have also caused loss of faith and

trust among investors in stock trading fearing similar

cheating towards them by the people like you. They are

hesitated to consult any consultancies or persons fearing

similar cheating by the unknown persons in the guise of

providing good profits. These prejudicial activities have also

caused disturbance in the public.”

4. The Detention Order then refers to the ‘Modus Operandi’ of the

Detenu as follows:

“You are a native of Karimnagar district. You completed

graduation (B.Com) in 2011 and LLB in 2019 and have been

doing trading in stock market. You have introduced

yourselves to the victims as a High Court Advocate and you

have a team consisting of one CA (Chartered Accountant)

and CS (Company Secretary) and three advocates. Your CS

has an expertise and links in Central and State

governments. You have knowledgeable persons in share

marketing and used to invest money in upcoming

companies which ensure return of 100%. You would lure the

innocent public in the guise of providing good profit by

investing their money in share marketing. You used to

contact your known persons and lure them to invest their

money in share market to get good profits assuring the profit

100% within a short period. Further you used to give blank

cheques and ask commission from the victims to gain their

confidence. As per plan, you collected amount from the

victims through Phone-pe which is linked to your bank

account and net-banking and in-person. When you received

money to your bank account, immediately you had transfer

the received amount to your wife's bank account. When the

victims contact you over phone, you first start avoiding them

and then diverting their calls and finally cheating them.

Later, you changed your residential address in order to

conceal your where-abouts from the victims. You have

cheated so many people to the tune of more than Rs. 50.00

lakhs in the guise of providing good profit through

investment in share market.

You are involved in Cr.No.34/2020 u/s 406, 420 IPC of

Malkajgiri Police Station in the limits of Rachakonda Police

Commissionerate which referred by way of your antecedent

criminal background the same is not relied upon for your

detention.”

5. Thereafter, the Detention Order narrates that anticipatory bail/bail has

been granted to the Detenu in all the aforesaid FIRs, the last such

relief granted being on 10.08.2020. The Detention Order then narrates:

“Having regard to your involvement in series of criminal

activities such as cheating in the guise of providing good

profit by investing their money in stock market and collected

huge amounts to the tune of more than Rs. 50 lakhs from

them in an organized way and in view of the bail petitions

moved by you and granted in the aforesaid cases and later

releasing on conditional bail, I am satisfied that free

movement of such an offender like you is not safe in the

interest of the society as there is an imminent possibility of

you indulging in similar prejudicial activities with another set

of innocent youth and cheat them on the pretext of providing

good profit by investing their money in stock market, which

are detrimental to public order, unless you were prevented

from doing so by an appropriate order of detention.

xxx xxx xxx

Thus you have indulged in the acts of White Collar offences

by committing offences such as cheating so many people by

collecting more than Rs. 50 lakhs from them through Phone

Pay and online banking and sometimes in person in the

guise of providing more profit in the limits of Cyberabad

Police Commissionerate. Further your acts have been

adversely affecting the maintenance of public order and

creating feeling of insecurity among young people, thus

disturbing peace and tranquillity in the area.

It is imperative to prevent you from acting in any manner

prejudicial to the maintenance of public order. I feel that

recourse to normal law may not be effective deterrent-in

preventing you from indulging in such further activities

prejudicial to the maintenance of public order in the area,

unless you were detained by invoking the provisions under

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 No. 01 of

1986)".”

6. As a result thereof, the Detenu was preventively detained from the

date of the Detention Order itself. A representation dated 31.10.2020

was made by the Petitioner herein to the Commissioner of Police,

Cyberabad Commissionerate [Respondent No. 2] which was

considered by the Advisory Board, who by its Order 11.11.2020 found

that there was sufficient cause to continue the Detention Order. Vide

the Order of the State of Telangana dated 17.12.2020, the Detention

Order was confirmed and the period of detention was directed to be for

a period of one year from 05.10.2020.

7. The impugned judgment, after narrating the facts and the arguments

made by counsel on behalf of the Petitioner as well as counsel on

behalf of the State, then held:

“9.In the instant case, a perusal of the material placed on

record reveals that the detenu was granted bail by the

Courts concerned in all the five cases relied upon by the

detaining authority for preventively detaining him. Under

these circumstances, the contention of the respondents that

the illegal activities of the detenu would disturb the even

tempo of life of the community which makes it prejudicial to

the maintenance of the public order and there is imminent

possibility of the detenu again indulging in similar prejudicial

activities, cannot be brushed aside.”

The judgment then referred to the decisions of this Court in Madhu

Limaye v. Sub-Divisional Magistrate (1970) 3 SCC 746,

Commissioner of Police v. C. Sunita (2004) 7 SCC 467 and

R.Kalavathi v. State of Tamil Nadu (2006) 6 SCC 14, and then

concluded:

“The modus operandi of the detenu in the alleged offences

which were committed in quick succession would certainly

disturb the public peace and tranquillity. So it is imperative

upon the officers concerned to pass the order of detention,

since the acts of the detenu are prejudicial to the

maintenance of public order. 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. 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. The order of detention

does not suffer from any illegality. The grounds of detention,

as indicated in the impugned order, are found to be relevant

and in tune with the provisions of the P.D.Act. Since the

detenu got bail in all the five cases relied upon by the

detaining authority, there is nothing wrong on the part of the

detaining authority in raising an apprehension that there is

every possibility of the detenu committing similar offences,

which would again certainly affect the public order. The

quick succession of commission of alleged offences by the

detenu makes it amply clear that there is every possibility of

detenu committing similar offences in future, which are

prejudicial to the maintenance of public order.”

8. Shri Gaurav Agarwal, learned counsel appearing on behalf of the

Petitioner has raised three points before us. First and foremost, he

said there is no proximate or live connection between the acts

complained of and the date of the Detention Order, as the last act that

was complained of, which is discernible from the first 3 FIRs [FIRs

dated 12.12.2019, 12.12.2019 and 14.12.2019], was in December

2019 whereas the Detention Order was passed 9 months later on

28.09.2020. He then argued, without conceding, that at best only a

‘law and order’ problem if at all would arise on the facts of these cases

and not a ‘public order’ problem, and referred to certain judgments of

this court to buttress the same. He also argued that the Detention

Order was totally perverse in that it was passed only because

anticipatory bail/bail applications were granted. The correct course of

action would have been for the State to move to cancel the bail that

has been granted if any further untoward incident were to take place.

9. Shri Ranjit Kumar, learned senior counsel appearing on behalf of the

State of Telangana, reiterated the grounds contained in the Detention

Order and argued that the Detenu was a habitual fraudster who had

therefore created fear amongst the gullible public, and since he was

likely to commit similar offences in future, it was important to

preventively detain him, as the ordinary law had no deterrent effect on

him. Further, there is no doubt that he had infringed ‘public order’ as

defined by the Telangana Prevention of Dangerous Activities Act and

had disturbed the even tempo of life of persons who were cheated by

him and were likely to be cheated by him.

10.Having heard learned counsel for both parties, it is first important to

set out the important provisions of the Act as follows:

“2. Definitions

In this Act, unless the context otherwise requires,

(a) “acting in any manner prejudicial to the maintenance of

public order” means when a bootlegger, a dacoit, a drugoffender, a goonda, an immoral traffic offender, LandGrabber, a Spurious Seed Offender, an Insecticide Offender,

a Fertiliser Offender, a Food Adulteration Offender, a Fake

Document Offender, a Scheduled Commodities Offender, a

Forest Offender, a Gaming Offender, a Sexual Offender, an

Explosive Substances Offender, an Arms Offender, a Cyber

Crime Offender and a White Collar or Financial Offender is

engaged or is making preparations for engaging, in any of

his activities as such, which affect adversely, or are likely to

affect adversely, the maintenance of public order:

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 calculated to cause any

harm, danger or alarm or a feeling of insecurity among the

general public or any section thereof or a grave wide-spread

danger to life or public health;

xxx xxx xxxx

(x) “White collar offender” or “Financial Offender” means a

person who commits or abets the commission of offences

punishable under the Telangana Protection of Depositors of

Financial Establishment Act, 1999 (Act 17 of 1999) or under

sections 406 to 409 or 417 to 420 or under Chapter XVIII of

the Indian Penal Code, 1860.”

“Section 3. Power to make orders detaining certain

persons

(1) The Government may, if satisfied with respect to any

bootlegger, dacoit, drug-offender, goonda, immoral traffic

offender, Land-Grabber, Spurious Seed Offender, Insecticide

Offender, Fertilizer Offender, Food Adulteration Offender,

Fake Document Offender, Scheduled Commodities

Offender, Forest Offender, Gaming Offender, Sexual

Offender, Explosive Substances Offender, Arms Offender,

Cyber Crime Offender and White Collar or Financial

Offender that with a view to preventing him from acting in

any manner prejudicial to the maintenance of public order, it

is necessary so to do, make an order directing that such

person be detained.”

“Section 13. Maximum period of detention

The maximum period for which any person may be

detained, in pursuance of any detention order made under

this Act which has been confirmed under section 12, shall be

twelve months from the date of detention.”

11.While it cannot seriously be disputed that the Detenu may be a “white

collar offender” as defined under Section 2(x) of the Telangana

Prevention of Dangerous Activities Act, yet a Preventive Detention

Order can only be passed if his activities adversely affect or are likely

to adversely affect the maintenance of public order. Public order is

defined in the Explanation to Section 2(a) of the Telangana Prevention

of Dangerous Activities Act to be a harm, danger or alarm or a feeling

of insecurity among the general public or any section thereof or a

grave widespread danger to life or public health.

12.As is well-known, the expressions ‘law and order’, ‘public order’, and

‘security of state’ are different from one another. In Ram Manohar

Lohia v. State of Bihar (1966) 1 SCR 709 the question before this

Court arose under a Preventive Detention Order made under Rule 30

of the Defence of India Rules, which permits apprehension and

detention of a person likely to act in a manner prejudicial to the

maintenance of public order. This Court set out the distinction between

a mere law and order disturbance and a public order disturbance as

follows:

“The Defence of India Act and the Rules speak of the

conditions under which preventive detention under the Act

can be ordered. In its long title and the preamble the

Defence of India Act speaks of the necessity to provide for

special measures to ensure public safety and interest, the

defence of India and civil defence. The expression public

safety and interest between them indicate the range of

action for maintaining security peace and tranquillity of India

whereas the expressions defence of India and civil defence

connote defence of India and its people against aggression

from outside and action of persons within the country. These

generic terms were used because the Act seeks to provide

for a congeries of action of which preventive detention is just

a small part. In conferring power to make rules, Section 3 of

the Defence of India Act enlarges upon the terms of the

preamble by specification of details. It speaks of defence of

India and civil defence and public safety without change but

it expands the idea of public interest into maintenance of

public order, the efficient conduct of military operations and

maintaining of supplies and services essential to the life of

the community. Then it mentions by way of illustration in

clause (15) of the same section the power of apprehension

and detention in custody of any person whom the authority

empowered by the rules to apprehend or detain (the

authority empowered to detain not being lower in rank than

that of a District Magistrate), suspects, on grounds

appearing to that authority to be reasonable—

(a) of being of hostile origin; or

(b) of having acted, acting or being about to act or being

likely to act in a manner prejudicial to—

(i) the defence of India and civil defence;

(ii) the security of the State;

(iii) the public safety or interest:

(iv) the maintenance of public order;

(v) India's relations with foreign states:

(vi) the maintenance of peaceful conditions in any part or

area of India: or

(vii) the efficient conduct of military operations.

It will thus appear that security of the state, public safety or

interest, maintenance of public order and the maintenance

of peaceful conditions in any part or area of India may be

viewed separately even though strictly one clause may have

an effect or bearing on another. Then follows Rule 30, which

repeats the above conditions and permits detention of any

person with a view to preventing him from acting in any of

the above ways. The argument of Dr Lohia that the

conditions are to be cumulatively applied is clearly

untenable. It is not necessary to analyse Rule 30 which we

quoted earlier and which follows the scheme of Section

3(15). The question is whether by taking power to prevent Dr

Lohia from acting to the prejudice of “law and order” as

against “public order” the District Magistrate went outside his

powers.

[page 738-739]

xxx xxx xxx

We have here a case of detention under Rule 30 of the

Defence of India Rules which permits apprehension and

detention of a person likely to act in a manner prejudicial to

the maintenance of public order. It follows that if such a

person is not detained public disorder is the apprehended

result. Disorder is no doubt prevented by the maintenance of

law and order also but disorder is a broad spectrum which

includes at one end small disturbances and at the other the

most serious and cataclysmic happenings. Does the

expression “public order” take in every kind of disorders or

only some of them? 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 if 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 then

easy to see that an act may affect law and order but not

public order just as an act may affect public order but not

security of the State. By using the expression “maintenance

of law and order” the District Magistrate was widening his

own field of action and was adding a clause to the Defence

of India Rules.”

[page 745-746]

13.There can be no doubt that for ‘public order’ to be disturbed, there

must in turn be public disorder. Mere contravention of law such as

indulging in cheating or criminal breach of trust certainly affects ‘law

and order’ but before it can be said to affect ‘public order’, it must

affect the community or the public at large.

14.There can be no doubt that what is alleged in the five FIRs pertain to

the realm of ‘law and order’ in that various acts of cheating are

ascribed to the Detenu which are punishable under the three sections

of the Indian Penal Code set out in the five FIRs. A close reading of

the Detention Order would make it clear that the reason for the said

Order is not any apprehension of widespread public harm, danger or

alarm but is only because the Detenu was successful in obtaining

anticipatory bail/bail from the Courts in each of the five FIRs. If a

person is granted anticipatory bail/bail wrongly, there are well-known

remedies in the ordinary law to take care of the situation. The State

can always appeal against the bail order granted and/or apply for

cancellation of bail. The mere successful obtaining of anticipatory

bail/bail orders being the real ground for detaining the Detenu, there

can be no doubt that the harm, danger or alarm or feeling of security

among the general public spoken of in Section 2(a) of the Telangana

Prevention of Dangerous Activities Act is make believe and totally

absent in the facts of the present case.

15.At this stage, it is important to advert to the counter affidavit dated

17.07.2021 filed by the State of Telangana. Paragraph 18 of the

counter affidavit refers to the granting of bail by Courts in all the five

FIRs, which is the real reason for the passing of the Detention Order,

as follows:

“18. It is submitted that in the instant case, the decision to

detain the detenu herein is based on the perusal of the

material on records which revealed that the detenu was

granted bail by the Courts concerned in all the five cases

relied upon by the detaining authority for preventively

detaining him. The Respondent No. 2 herein recorded his

satisfaction that the activities of the detenu are prejudicial to

the maintenance of public order, and that ordinary law may

not be an effective deterrent to prevent the detenu from

indulging in further prejudicial activities. Furthermore, the

materials relied upon and circumstances show that

subjective satisfaction of the detaining authority is not

tainted or illegal on any account. Therefore the passing of

the detention order is justified considering that the illegal

activities of the detenu would disturb the even tempo of life

of the community, which makes it prejudicial to the

maintenance of the public order and there is imminent

possibility of the detenu again indulging in similar prejudicial

activities.”

Paragraph 21 of the counter affidavit then states as follows:

“21. It is submitted that in the acts which disturb public

tranquillity or are breaches of the peace should not be given

a narrow meaning, but should be given a liberal

interpretation and the expression ‘in the interest of public

order’ is very wide amplitude as held by this Hon’ble Court in

Madhu Limaye Versus Sub Division Magistrate reported in

AIR 1971 SC 2486. Therefore the Respondent No. 2, before

passing the said detention order considered the crucial

issues as to whether the activities of the detenu were

prejudicial to public and as to whether public order could be

affected by only such contravention which affects the

community or the public at large.”

16.The reference to Madhu Limaye v. Sub-Divisional Magistrate

(supra) is wholly inapposite. This judgment dealt with the scope of the

expression “in the interests of public order” which occurs in Article

19(2) to 19(4) of the Constitution of India. The observations made by

this judgment were in the context of a challenge to Section 144 of the

Code of Criminal Procedure. Importantly, this Court referred to the

judgment in Ram Manohar Lohia (supra) and then opined:

“19. Adopting this test we may say that the State is at the

centre and society surrounds it. Disturbances of society go

in a broad spectrum from more disturbance of the serenity of

life to jeopardy of the State. The acts become graver as we

journey from the periphery of the largest circle towards the

centre. In this journey we travel first though public

tranquillity, then through public order and lastly to the

security of the State.

20. In dealing with the phrase “maintenance of public order”

in the context of preventive detention, we confined the

expression in the relevant Act to what was included in the

second circle and left out that which was in the largest circle.

But that consideration need not always apply because small

local disturbances of the even tempo of life, may in a sense

be said to effect “public order” in a different sense, namely,

in the sense of a state of law abidingness vis-a-vis the

safety of others. In our judgment the expression “in the

interest of public order” in the Constitution is capable of

taking within itself not only those acts which disturb the

security of the State or act within ordre publique as

described but also certain acts which disturb public

tranquillity or are breaches of the peace. It is not necessary

to give the expression a narrow meaning because, as has

been observed, the expression “in the interest of public

order” is very wide. Whatever may be said of “maintenance

of public order” in the context of special laws entailing

detention of persons without a trial on the pure subjective

determination of the Executive cannot be said in other

circumstances. In the former case this Court confined the

meaning to graver episodes not involving cases of law and

order which are not disturbances of public tranquillity but of

ordre publique.”

17.To tear these observations out of context would be fraught with great

danger when it comes to the liberty of a citizen under Article 21 of the

Constitution of India. The reason for not adopting a narrow meaning of

‘public order’ in that case was because of the expression “in the

interests of” which occurs to Article 19(2) to 19(4) and which is

pressed into service only when a law is challenged as being

unconstitutional for being violative of Article 19 of the Constitution.

When a person is preventively detained, it is Article 21 and 22 that are

attracted and not Article 19. Further, preventive detention must fall

within the four corners of Article 21 read with Article 22 and the statute

in question. To therefore argue that a liberal meaning must be given to

the expression ‘public order’ in the context of a preventive detention

statute is wholly inapposite and incorrect. On the contrary, considering

that preventive detention is a necessary evil only to prevent public

disorder, the Court must ensure that the facts brought before it directly

and inevitably lead to a harm, danger or alarm or feeling of insecurity

among the general public or any section thereof at large.

18.Several judgments of this Court have reminded us about the role of

the High Courts and this Court in cases of preventive detention. Thus,

in Frances Coralie Mullin v. W.C. Khambra (1980) 2 SCR 1095, a

Division Bench of this Court held:

“We have no doubt in our minds about the role of the court

in cases of preventive detention: it has to be one of eternal

vigilance. No freedom is higher than personal freedom and

no duty higher than to maintain it unimpaired. The Court's

writ is the ultimate insurance against illegal detention. The

Constitution enjoins conformance with the provisions of

Article 22 and the Court exacts compliance. Article 22(5)

vests in the detenu the right to be provided with an

opportunity to make a representation. Here the Law Reports

tell a story and teach a lesson. It is that the principal enemy

of the detenu and his right to make a representation is

neither high-handedness nor mean-mindedness but the

casual indifference, the mindless insensibility, the routine

and the red tape of the bureaucratic machine.”

Likewise, in Vijay Narain Singh v. State of Bihar (1984) 3 SCC 14, a

3-Judge Bench of this Court (in which A.P. Sen,J. dissented),

Venkataramiah,J., speaking for the majority, reminds us:

“32. …It is well settled that the law of preventive detention is

a hard law and therefore it should be strictly construed. Care

should be taken that the liberty of a person is not

jeopardised unless his case falls squarely within the four

corners of the relevant law. The law of preventive detention

should not be used merely to clip the wings of an accused

who is involved in a criminal prosecution. It is not intended

for the purpose of keeping a man under detention when

under ordinary criminal law it may not be possible to resist

the issue of orders of bail, unless the material available is

such as would satisfy the requirements of the legal

provisions authorising such detention. When a person is

enlarged on bail by a competent criminal court, great caution

should be exercised in scrutinising the validity of an order of

preventive detention which is based on the very same

charge which is to be tried by the criminal court.”

[emphasis supplied]

O. Chinappa Reddy,J., in a short concurring judgment also sets out the

constitutional fundamentals qua preventive detention as follows:

“I entirely agree with my brother Venkataramiah, J. both on

the question of interpretation of the provisions of the Bihar

Control of Crimes Act, 1981 and on the question of the effect

of the order of grant of bail in the criminal proceeding arising

out of the incident constituting one of the grounds of

detention. It is really unnecessary for me to add anything to

what has been said by Venkataramiah, J., .but my brother

Sen, J. has taken a different view and out of respect to him, I

propose to add a few lines. I am unable to agree with my

brother Sen, J. on several of the views expressed by him in

his dissent. In particular, I do not agree with the view that

“those who are responsible for the national security or for

the maintenance of public order must be the sole judges of

what the national security or public order requires” It is too

perilous a proposition. Our Constitution does not give a

carte blanche to any organ of the State to be the sole arbiter

in such matters. Preventive detention is considered so

treacherous and such an anathema to civilised thought and

democratic polity that safeguards against undue exercise of

the power to detain without trial, have been built into the

Constitution itself and incorporated as Fundamental Rights.

There are two sentinels, one at either end. The Legislature

is required to make the law circumscribing the limits within

which persons may be preventively detained and providing

for the safeguards prescribed by the Constitution and the

courts are required to examine, when demanded, whether

there has been any excessive detention, that is whether the

limits set by the Constitution and the Legislature have been

transgressed. Preventive detention is not beyond judicial

scrutiny. While adequacy or sufficiency may not be a ground

of challenge, relevancy and proximity are certainly grounds

of challenge. Nor is it for the court to put itself in the position

of the detaining authority and to satisfy itself that the

untested facts reveal a path of crime. I agree with my

brother Sen,, J. when he says, “It has always been the view

of this Court that the detention of individuals without trials for

any length of time, however short, is wholly inconsistent with

the basic ideas of our Government and the gravity of the evil

to the community resulting from anti-social activities can

never furnish an adequate reason for invading the personal

liberty of the citizen except in accordance with the procedure

established by law.”

19.In Union of India v. Yumnam Anand (2007) 10 SCC 190, this Court

reiterated some of these principles as follows:

“8. In case of preventive detention no offence is proved, nor

any charge is formulated and the justification of such

detention is suspicion or reasonability and there is no

criminal conviction which can only be warranted by legal

evidence. Preventive justice requires an action to be taken

to prevent apprehended objectionable activities.

(See R. v. Halliday [1917 AC 260 : (1916-17) All ER Rep Ext

1284 : 86 LJ KB 116 : 116 LT 417 (HL)] and Kubic

Darusz v. Union of India [(1990) 1 SCC 568 : 1990 SCC

(Cri) 227 : AIR 1990 SC 605] .) But at the same time, a

person's greatest of human freedoms i.e. personal liberty is

deprived, and, therefore, the laws of preventive detention

are strictly construed, and a meticulous compliance with the

procedural safeguard, however technical, is mandatory. The

compulsions of the primordial need to maintain order in

society, without which enjoyment of all rights, including the

right of personal liberty would lose all their meanings, are

the true justifications for the laws of preventive detention.

This jurisdiction has been described as a “jurisdiction of

suspicion”, and the compulsions to preserve the values of

freedom of a democratic society and social order sometimes

merit the curtailment of the individual liberty.

(See Ayya v. State of U.P. [(1989) 1 SCC 374 : 1989 SCC

(Cri) 153 : AIR 1989 SC 364] ) To lose our country by a

scrupulous adherence to the written law, said Thomas

Jefferson, would be to lose the law, absurdly sacrificing the

end to the means. No law is an end itself and the curtailment

of liberty for reasons of State's security and national

economic discipline as a necessary evil has to be

administered under strict constitutional restrictions. No carte

blanche is given to any organ of the State to be the sole

arbiter in such matters.”

20.In Rekha v. State of Tamil Nadu, (2011) 5 SCC 244, a 3-Judge

Bench of this Court spoke of the interplay between Articles 21 and 22

as follows:

“13. In our opinion, Article 22(3)(b) of the Constitution of

India which permits preventive detention is only an

exception to Article 21 of the Constitution. An exception is an

exception, and cannot ordinarily nullify the full force of the

main rule, which is the right to liberty in Article 21 of the

Constitution. Fundamental rights are meant for protecting

the civil liberties of the people, and not to put them in jail for

a long period without recourse to a lawyer and without a

trial. As observed in R. v. Secy. of State for the Home Deptt.,

ex p Stafford [(1998) 1 WLR 503 (CA)] : (WLR p. 518 F-G)

“ … The imposition of what is in effect a substantial term

of imprisonment by the exercise of executive discretion,

without trial, lies uneasily with ordinary concepts of the

rule of law.”

Article 22, hence, cannot be read in isolation but must be

read as an exception to Article 21. An exception can apply

only in rare and exceptional cases, and it cannot override

the main rule.

14. Article 21 is the most important of the fundamental rights

guaranteed by the Constitution of India. Liberty of a citizen is

a most important right won by our forefathers after long,

historical and arduous struggles. Our Founding Fathers

realised its value because they had seen during the freedom

struggle civil liberties of our countrymen being trampled

upon by foreigners, and that is why they were determined

that the right to individual liberty would be placed on the

highest pedestal along with the right to life as the basic right

of the people of India.

xxx xxx xxx

17. Article 22(1) of the Constitution makes it a fundamental

right of a person detained to consult and be defended by a

lawyer of his choice. But Article 22(3) specifically excludes

the applicability of clause (1) of Article 22 to cases of

preventive detention. Therefore, we must confine the power

of preventive detention to very narrow limits, otherwise the

great right to liberty won by our Founding Fathers, who were

also freedom fighters, after long, arduous and historical

struggles, will become nugatory.”

This Court went on to discuss, in some detail, the conceptual nature of

preventive detention law as follows:

“29. Preventive detention is, by nature, repugnant to

democratic ideas and an anathema to the rule of law. No

such law exists in the USA and in England (except during

war time). Since, however, Article 22(3)(b) of the

Constitution of India permits preventive detention, we cannot

hold it illegal but we must confine the power of preventive

detention within very narrow limits, otherwise we will be

taking away the great right to liberty guaranteed by Article

21 of the Constitution of India which was won after long,

arduous and historic struggles. It follows, therefore, that if

the ordinary law of the land (the Penal Code and other penal

statutes) can deal with a situation, recourse to a preventive

detention law will be illegal.

30. Whenever an order under a preventive detention law is

challenged one of the questions the court must ask in

deciding its legality is: was the ordinary law of the land

sufficient to deal with the situation? If the answer is in the

affirmative, the detention order will be illegal. In the present

case, the charge against the detenu was of selling expired

drugs after changing their labels. Surely the relevant

provisions in the Penal Code and the Drugs and Cosmetics

Act were sufficient to deal with this situation. Hence, in our

opinion, for this reason also the detention order in question

was illegal.” [emphasis supplied]

In an important passage, this Court then dealt with certain general

observations made by the Constitution Bench in Haradhan Saha v.

The State of West Bengal (1975) 3 SCC 198 as follows:

“33. No doubt it has been held in the Constitution Bench

decision in Haradhan Saha case [(1975) 3 SCC 198 : 1974

SCC (Cri) 816] that even if a person is liable to be tried in a

criminal court for commission of a criminal offence, or is

actually being so tried, that does not debar the authorities

from passing a detention order under a preventive detention

law. This observation, to be understood correctly, must,

however, be construed in the background of the

constitutional scheme in Articles 21 and 22 of the

Constitution (which we have already explained). Article

22(3)(b) is only an exception to Article 21 and it is not itself a

fundamental right. It is Article 21 which is central to the

whole chapter on fundamental rights in our Constitution. The

right to liberty means that before sending a person to prison

a trial must ordinarily be held giving him an opportunity of

placing his defence through his lawyer. It follows that if a

person is liable to be tried, or is actually being tried, for a

criminal offence, but the ordinary criminal law (the Penal

Code or other penal statutes) will not be able to deal with

the situation, then, and only then, can the preventive

detention law be taken recourse to.

34. Hence, the observation in SCC para 34 in Haradhan

Saha case [(1975) 3 SCC 198 : 1974 SCC (Cri) 816] cannot

be regarded as an unqualified statement that in every case

where a person is liable to be tried, or is actually being tried,

for a crime in a criminal court a detention order can also be

passed under a preventive detention law.

35. It must be remembered that in cases of preventive

detention no offence is proved and the justification of such

detention is suspicion or reasonable probability, and there is

no conviction which can only be warranted by legal

evidence. Preventive detention is often described as a

“jurisdiction of suspicion” (vide State of

Maharashtra v. Bhaurao Punjabrao Gawande [(2008) 3 SCC

613 : (2008) 2 SCC (Cri) 128] , SCC para 63). The detaining

authority passes the order of detention on subjective

satisfaction. Since clause (3) of Article 22 specifically

excludes the applicability of clauses (1) and (2), the detenu

is not entitled to a lawyer or the right to be produced before

a Magistrate within 24 hours of arrest. To prevent misuse of

this potentially dangerous power the law of preventive

detention has to be strictly construed and meticulous

compliance with the procedural safeguards, however

technical, is, in our opinion, mandatory and vital.

36. It has been held that the history of liberty is the history of

procedural safeguards. (See Kamleshkumar Ishwardas

Patel v. Union of India [(1995) 4 SCC 51 : 1995 SCC (Cri)

643] vide para 49.) These procedural safeguards are

required to be zealously watched and enforced by the court

and their rigour cannot be allowed to be diluted on the basis

of the nature of the alleged activities of the detenu. As

observed in Rattan Singh v. State of Punjab [(1981) 4 SCC

481 : 1981 SCC (Cri) 853] : (SCC p. 483, para 4)

“4. … May be that the detenu is a smuggler whose tribe

(and how their numbers increase!) deserves no sympathy

since its activities have paralysed the Indian economy. But

the laws of preventive detention afford only a modicum of

safeguards to persons detained under them, and if freedom

and liberty are to have any meaning in our democratic set

up, it is essential that at least those safeguards are not

denied to the detenus.”

xxx xxx xxx

39. Personal liberty protected under Article 21 is so

sacrosanct and so high in the scale of constitutional values

that it is the obligation of the detaining authority to show that

the impugned detention meticulously accords with the

procedure established by law. The stringency and concern

of judicial vigilance that is needed was aptly described in the

following words in Thomas Pelham Dale case [(1881) 6

QBD 376 (CA)] : (QBD p. 461)

“Then comes the question upon the habeas corpus. It is a

general rule, which has always been acted upon by the

courts of England, that if any person procures the

imprisonment of another he must take care to do so by

steps, all of which are entirely regular, and that if he fails to

follow every step in the process with extreme regularity the

court will not allow the imprisonment to continue.””

[emphasis supplied]

21.Shri Ranjit Kumar, learned senior counsel appearing on behalf of the

State of Telangana relied strongly upon Subramanian v. State of

Tamil Nadu (2012) 4 SCC 699, and in particular upon paragraphs 14

and 15 which read as follows:

“14. It is well settled that the court does not interfere with the

subjective satisfaction reached by the detaining authority

except in exceptional and extremely limited grounds. The

court cannot substitute its own opinion for that of the

detaining authority when the grounds of detention are

precise, pertinent, proximate and relevant, that sufficiency of

grounds is not for the court but for the detaining authority for

the formation of subjective satisfaction that the detention of

a person with a view to preventing him from acting in any

manner prejudicial to public order is required and that such

satisfaction is subjective and not objective. The object of the

law of preventive detention is not punitive but only

preventive and further that the action of the executive in

detaining a person being only precautionary, normally, the

matter has necessarily to be left to the discretion of the

executive authority. It is not practicable to lay down objective

rules of conduct in an exhaustive manner. The satisfaction of

the detaining authority, therefore, is considered to be of

primary importance with certain latitude in the exercise of its

discretion.

15. The next contention on behalf of the detenu, assailing

the detention order on the plea that there is a difference

between “law and order” and “public order” cannot also be

sustained since this Court in a series of decisions

recognised that public order is the even tempo of life of the

community taking the country as a whole or even a specified

locality. [Vide Pushpadevi M. Jatia v. M.L.

Wadhawan [(1987) 3 SCC 367 : 1987 SCC (Cri) 526] , SCC

paras 11 & 14; Ram Manohar Lohia v. State of Bihar [AIR

1966 SC 740 : 1966 Cri LJ 608 : (1966) 1 SCR 709] ; Union

of India v. Arvind Shergill [(2000) 7 SCC 601 : 2000 SCC

(Cri) 1422] , SCC paras 4 & 6; Sunil Fulchand Shah v. Union

of India [(2000) 3 SCC 409 : 2000 SCC (Cri) 659] , SCC

para 28 (Constitution Bench); Commr. of Police v. C.

Anita [(2004) 7 SCC 467 : 2004 SCC (Cri) 1944] , SCC

paras 5, 7 & 13.]”

The statement made by this Court in paragraphs 14 and 15 were on

facts which were completely different from the facts of the present

case as reflected in paragraphs 16 and 17 thereof which read as

follows:

“16. We have already extracted the discussion, analysis and

the ultimate decision of the detaining authority with

reference to the ground case dated 18-7-2011. It is clear

that the detenu, armed with “aruval”, along with his

associates, armed with “katta” came to the place of the

complainant. The detenu abused the complainant in filthy

language and threatened to murder him. His associates also

threatened him. The detenu not only threatened the

complainant with weapon like “aruval” but also damaged the

properties available in the shop. When the complainant

questioned the detenu and his associates, the detenu

slapped him on his face. When the complainant raised an

alarm for rescue, on the arrival of general public in and

around, they were also threatened by the detenu and his

associates that they will kill them.

17. It is also seen from the grounds of detention that

because of the threat by the detenu and his associates by

showing weapons, the nearby shopkeepers closed their

shops out of fear and auto drivers took their autos from their

stand and left the place. According to the detaining authority,

the above scene created a panic among the public. In such

circumstances, the scene created by the detenu and his

associates cannot be termed as only law and order problem

but it is public order as assessed by the detaining authority

who is supposed to safeguard and protect the interest of

public. Accordingly, we reject the contention raised by the

learned Senior Counsel for the appellant.”

This was obviously a case in which ‘public order’ was directly affected

and not a case in which ‘law and order’ alone was affected and is thus

distinguishable, on facts, from the present case.

22.In Yumman Ongbi Lembi Leima v. State of Manipur (2012) 2 SCC

176, this Court specifically adverted to when a preventive detention

order would be bad, as recourse to the ordinary law would be sufficient

in the facts of a given case, with particular regard being had to bail

having been granted. This Court held:

“23. Having carefully considered the submissions made on

behalf of the respective parties, we are inclined to hold that

the (sic exercise of) extraordinary powers of detaining an

individual in contravention of the provisions of Article 22(2)

of the Constitution was not warranted in the instant case,

where the grounds of detention do not disclose any material

which was before the detaining authority, other than the fact

that there was every likelihood of Yumman Somendro being

released on bail in connection with the cases in respect of

which he had been arrested, to support the order of

detention.

24. Article 21 of the Constitution enjoins that:

“21. Protection of life and personal liberty.—No

person shall be deprived of his life or personal liberty except

according to procedure established by law.”

In the instant case, although the power is vested with the

authorities concerned, unless the same are invoked and

implemented in a justifiable manner, such action of the

detaining authority cannot be sustained, inasmuch as, such

a detention order is an exception to the provisions of Articles

21 and 22(2) of the Constitution.

25. When the courts thought it fit to release the appellant's

husband on bail in connection with the cases in respect of

which he had been arrested, the mere apprehension that he

was likely to be released on bail as a ground of his

detention, is not justified.

xxx xxx xxx

27. As has been observed in various cases of similar nature

by this Court, the personal liberty of an individual is the most

precious and prized right guaranteed under the Constitution

in Part III thereof. The State has been granted the power to

curb such rights under criminal laws as also under the laws

of preventive detention, which, therefore, are required to be

exercised with due caution as well as upon a proper

appreciation of the facts as to whether such acts are in any

way prejudicial to the interest and the security of the State

and its citizens, or seek to disturb public law and order,

warranting the issuance of such an order. An individual

incident of an offence under the Penal Code, however

heinous, is insufficient to make out a case for issuance of an

order of preventive detention.”

This judgment was followed in Mungala Yadamma v. State of A.P.

(2012) 2 SCC 386, as follows:

“7. Having considered the submissions made on behalf of

the respective parties, we are unable to accept the

submissions made on behalf of the State in view of the fact

that the decision in Rekha case [(2011) 5 SCC 244 : (2011)

2 SCC (Cri) 596] , in our view, clearly covers the facts of this

case as well. The offences complained of against the

appellant are of a nature which can be dealt with under the

ordinary law of the land. Taking recourse to the provisions of

preventive detention is contrary to the constitutional

guarantees enshrined in Articles 19 and 21 of the

Constitution and sufficient grounds have to be made out by

the detaining authorities to invoke such provisions.

8. In fact, recently, in Yumman Ongbi Lembi Leima v. State

of Manipur [(2012) 2 SCC 176] we had occasion to consider

the same issue and the three-Judge Bench had held that the

personal liberty of an individual is the most precious and

prized right guaranteed under the Constitution in Part III

thereof. The State has been granted the power to curb such

rights under criminal laws, as also under the laws of

preventive detention, which, therefore, are required to be

exercised with due caution as well as upon a proper

appreciation of the facts as to whether such acts are in any

way prejudicial to the interest and the security of the State

and its citizens, or seek to disturb public law and order,

warranting the issuance of such an order.

9. No doubt, the offences alleged to have been committed

by the appellant are such as to attract punishment under the

Andhra Pradesh Prohibition Act, but that in our view has to

be done under the said laws and taking recourse to

preventive detention laws would not be warranted.

Preventive detention involves detaining of a person without

trial in order to prevent him/her from committing certain

types of offences. But such detention cannot be made a

substitute for the ordinary law and absolve the investigating

authorities of their normal functions of investigating crimes

which the detenu may have committed. After all, preventive

detention in most cases is for a year only and cannot be

used as an instrument to keep a person in perpetual custody

without trial. Accordingly, while following the three-Judge

Bench decision in Rekha case [(2011) 5 SCC 244 : (2011) 2

SCC (Cri) 596] we allow the appeal and set aside the order

passed by the High Court dated 20-7-2011 [ The High Court

dismissed the same vide Munagala Yadamma v. State of

A.P., WP (Cri) No. 13313 of 2011, order dated 20-7-2011

(AP)] and also quash the detention order dated 15-2-2011,

issued by the Collector and District Magistrate, Ranga

Reddy District, Andhra Pradesh.”

23.Shri Gaurav Agrawal and Shri Ranjit Kumar also cited the judgments

of this Court in Sama Aruna v. State of Telangana (2018) 12 SCC

150 and Collector & District Magistrate v. Sangala Kondamma

(2005) 3 SCC 666 respectively. Since we are not going into other

grounds raised by the Petitioner, it is unnecessary to discuss the law

laid down in these judgments.

24.On the facts of this case, as has been pointed out by us, it is clear that

at the highest, a possible apprehension of breach of law and order can

be said to be made out if it is apprehended that the Detenu, if set free,

will continue to cheat gullible persons. This may be a good ground to

appeal against the bail orders granted and/or to cancel bail but

certainly cannot provide the springboard to move under a preventive

detention statute. We, therefore, quash the detention order on this

ground. Consequently, it is unnecessary to go into any of the other

grounds argued by the learned counsel on behalf of the Petitioner. The

impugned judgment is set aside and the Detenu is ordered to be freed

forthwith. Accordingly, the appeal is allowed.

…………………..………………J.

(R. F. Nariman)

……………..……………………

(Hrishikesh Roy)

New Delhi,

August 02, 2021.

“The matter has been considered along with the note of the Registrar General. After considering the Regular Departmental Enquiry Report dated 23.05.2016, reply dated 15.02.2017 submitted by the officer to the show cause notice dated 29.08.2016, both on the aspect of acceptance of Enquiry Report as well as the proposed penalty, we find that the Inquiry Authority has rightly rejected, for the reasons recorded, the defence plea raised by the delinquent Officer regarding retaining huge amounts of cash in hand for the substantial periods in the financial years concerned, after admitting the withdrawals and deposits from the accounts specified in the Articles of Charge, which required no further proof. Accordingly, the report dated17.10.2018 as well as the decision dated 18.12.2019 of the Hon’ble Vigilance/Disciplinary Committee are not accepted. Keeping in view the findings of the Inquiry Authority, which have been hereby accepted, the gravity of the matter and standards of ethics required of a Senior Judicial Officer, it is resolved that major penalty of compulsory retirement be imposed upon the delinquent Officer under Rule 4(1)(viii) of the Haryana Civil Services (Punishment and Appeal) Rules, 1987 [Corresponding Rule 4(b)(v) of the Haryana Civil Services (Punishment and Appeal) Rules, 2016] and a recommendation be made to the Government of Haryana that the Officer be compulsorily retired from service with immediate effect.”

Writ Petition (Civil)No. 696 of 2021

Rajinder Goel vs. High Court of Punjab and Haryana & Anr.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL)NO.696 OF 2021

RAJINDER GOEL …Petitioner

Versus

HIGH COURT OF PUNJAB

AND HARYANA & ANR. …Respondents

O R D E R

Uday Umesh Lalit, J.

1. The instant petition under Article 32 of the Constitution of India has been

filed seeking appropriate writ, order or direction in the nature of Certiorari

quashing :-

a) the recommendation dated 14.12.2020 made by the Full Court of the

High Court1

recommending compulsory retirement of the petitioner

from the post of Additional District and Sessions Judge; and

1 High Court of Punjab and Haryana

Writ Petition (Civil)No. 696 of 2021

Rajinder Goel vs. High Court of Punjab and Haryana & Anr.

b) order dated 05.01.2021 passed by the Governor of Haryana

accepting the recommendation made by the Full Court of the High

Court1

and directing compulsory retirement of the petitioner with

immediate effect.

2. The petitioner joined Haryana Judicial Services on 16.02.1996 and was

promoted in 2008 to the Haryana Superior Judicial Services. Pursuant to certain

complaints made against the petitioner, including one made by the Bar

Association, an enquiry was conducted, during the course of which the petitioner

was asked to furnish statements regarding his bank accounts and property for the

years 2006 to 2009. A preliminary report dated 21.04.2011 found that there was

no documentary evidence regarding allegations of land purchases. It was,

however, observed that there were “heavy unexplained bank transactions”. The

report was reviewed by the Administrative Committee of the High Court1 on

03.08.2011, which decided to initiate disciplinary proceedings against the

petitioner and recommended that the petitioner be put under suspension. On

05.08.2011 the Full Court ordered that the Vigilance/Disciplinary Committee

proceedings be initiated against the petitioner and that the petitioner be suspended

till the proceedings were concluded.

Writ Petition (Civil)No. 696 of 2021

Rajinder Goel vs. High Court of Punjab and Haryana & Anr.

3. On 26.04.2012, a charge-sheet was served upon the petitioner accusing

him of conduct against judicial ethics inasmuch as he had deposited and

withdrawn large sums of money without giving any specific reason for that. The

petitioner replied to those charges submitting inter alia that those irregular

deposits in his accounts were from the maturity amounts of his LIC policies, sale

of properties which were acquired by him before he entered the judicial service,

maturity of PPF accounts and other bank bonds. The Inquiring Authority

submitted a report on 23.05.2016 finding the petitioner guilty of unexplained

transactions.

4. Accordingly, a show cause notice was issued to the petitioner on

29.08.2016, which was replied to by the petitioner on 15.02.2017. The matter

was looked into by the Vigilance/Disciplinary Committee of the High Court1

which found that the charges levelled against the petitioner were not proved and

recommended that he be cleared of all the charges. The matter was, thereafter,

placed before the Full Court of the High Court1 which resolved in its meeting

dated 04.02.2019 that the matter be referred back to the Vigilance/Disciplinary

Committee to scrutinize the property statements of the petitioner and the matter

be put up before the Full Court thereafter. Consequently, the matter was gone

Writ Petition (Civil)No. 696 of 2021

Rajinder Goel vs. High Court of Punjab and Haryana & Anr.

into by the Vigilance/Disciplinary Committee, which submitted its report on

18.12.2019.

5. The matter was placed before the Full Court. The Full Court in its meeting

dated 14.12.2020, after full deliberation, rejected the report dated 18.12.2019 of

the Vigilance/Disciplinary Committee and resolved as under:-

“The matter has been considered along with the note of the

Registrar General. After considering the Regular

Departmental Enquiry Report dated 23.05.2016, reply dated

15.02.2017 submitted by the officer to the show cause notice

dated 29.08.2016, both on the aspect of acceptance of

Enquiry Report as well as the proposed penalty, we find that

the Inquiry Authority has rightly rejected, for the reasons

recorded, the defence plea raised by the delinquent Officer

regarding retaining huge amounts of cash in hand for the

substantial periods in the financial years concerned, after

admitting the withdrawals and deposits from the accounts

specified in the Articles of Charge, which required no

further proof. Accordingly, the report dated17.10.2018 as

well as the decision dated 18.12.2019 of the Hon’ble

Vigilance/Disciplinary Committee are not accepted.

Keeping in view the findings of the Inquiry Authority, which

have been hereby accepted, the gravity of the matter and

standards of ethics required of a Senior Judicial Officer, it is

resolved that major penalty of compulsory retirement be

imposed upon the delinquent Officer under Rule 4(1)(viii)

of the Haryana Civil Services (Punishment and Appeal)

Rules, 1987 [Corresponding Rule 4(b)(v) of the Haryana

Civil Services (Punishment and Appeal) Rules, 2016] and a

recommendation be made to the Government of Haryana

that the Officer be compulsorily retired from service with

immediate effect.”

Writ Petition (Civil)No. 696 of 2021

Rajinder Goel vs. High Court of Punjab and Haryana & Anr.

6. An order was, thereafter, issued by the Competent Authority on

05.01.2021 compulsorily retiring the petitioner as a measure of penalty from

the membership of Haryana Superior Judicial Service.

7. The petitioner has approached this Court by filing a writ petition under

Article 32 of the Constitution and since a remedy under Article 226 of the

Constitution was available to him, it was suggested that a writ petition under

Article 226 of the Constitution before the High Court would give him

adequate and fuller remedy.

8. Shri Manoj Swarup, Senior Advocate for the petitioner, after seeking

instructions from his client made it clear that the petitioner would like to

pursue the present writ petition filed under Article 32 of the Constitution. We,

therefore, proceeded to hear the learned counsel for the petitioner on merits.

9. Mr. Manoj Swarup, learned Senior Advocate submitted :-

a) Two Reports of the Committee dated 17.10.2018 and 18.12.2019

had found nothing against the petitioner. In the circumstances, the Full

Court could not and ought not to have recommended compulsory

retirement of the petitioner; and

Writ Petition (Civil)No. 696 of 2021

Rajinder Goel vs. High Court of Punjab and Haryana & Anr.

b) Once the Committee had concluded that there was nothing

against the petitioner, such conclusion was “for and on behalf of the

Full Court” of the High Court. Reliance in support of the submission

was placed on the Constitution Bench decision of this Court in State of

Uttar Pradesh vs. Batuk Deo Pati Tripathi and another2

10. In Batuk Deo2

, Rule 1 of Chapter III of Rules of Court, 1952 framed

by the Allahabad High Court specifically stated that the Administrative

Committee appointed in terms of said Rule ‘shall act for the Court’. In the

context of said Rule, this Court observed as under:-

“18. … … …We have pointed out above that the amplitude

of the power conferred by Article 235, the imperative need

that the High Courts must be enabled to transact their

administrative business more conveniently and an

awareness of the realities of the situation, particularly of the

practical difficulties involved in a consideration by the

whole court, even by circulation, of every day-to-day matter

pertaining to control over the District and subordinate

Courts, lead to the conclusion that by rules framed under

Article 235 of the Constitution the High Courts ought to be

conceded the power to authorise an Administrative Judge or

an Administrative Committee of Judges to act on behalf of

the Court. Accordingly, we uphold the minority judgment of

the Full Bench that Rule 1 of Chapter 3 of the 1952 Rules

framed by the Allahabad High Court is within the

framework of Article 235. The recommendation made by the

Administrative Committee that the respondent should be

(1978) 2 SCC 102

Writ Petition (Civil)No. 696 of 2021

Rajinder Goel vs. High Court of Punjab and Haryana & Anr.

compulsorily retired cannot therefore be said to suffer from

any legal or constitutional infirmity.”

11. The quoted portion from para 18 of the decision discloses that this

Court accepted that for the convenience of transacting administrative

business and for smooth functioning of day-to-day matters pertaining to

control over the subordinate judiciary, it would be possible for the High Court

to authorize and empower an Administrative Judge or an Administrative

Committee of Judges to act on behalf of the Court. It was in the context of

such specific authorization in favour of the Administrative Committee in

terms of Rule 1 of Chapter III of Rules of Court, 1952, framed by the High

Court, that the recommendations made by the Administrative Committee

were found to be without any constitutional infirmity.

12. It does not however mean that even in the absence of Rules authorizing

or empowering the Committee, the decision made by or conclusions arrived

at by the Committee would be binding on the Full Court or that the Full Court

would not be within its jurisdiction to take a different view in the matter. The

submission advanced by Mr. Swarup therefore, must be rejected.

Writ Petition (Civil)No. 696 of 2021

Rajinder Goel vs. High Court of Punjab and Haryana & Anr.

13. Considering the facts and circumstances on record and in view of the

record indicating that there were multiple transactions showing deposits and

withdrawals of substantial amounts of money, it cannot be said that the Full

Court was not justified in taking the view that it did. We do not find any

reason to take a different view in the matter.

14. It must be stated that the petition was heard and the order was reserved

on 27.07.2021. Next day an application was preferred submitting that the

petitioner be allowed to withdraw the instant petition with further liberty to

approach the High Court invoking its jurisdiction under Article 226 of the

Constitution of India. Since the suggestion made by this Court as stated

earlier was not accepted after due instructions from the petitioner, we reject

the prayer.

15. As we see no merit in this petition, the same is accordingly rejected.

…………………………….J.

[Uday Umesh Lalit]

…………………………….J.

[Ajay Rastogi]

New Delhi;

August 02, 2021.

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