w w w . L a w y e r S e r v i c e s . i n

Bhimsen Tyagi v/s The State of Telangana, Rep. by its Principal Secretary to Government (Poll), Home Department Secretariat, Hyderabad & Another

Company & Directors' Information:- AT HOME INDIA PRIVATE LIMITED [Active] CIN = U17211DL2001PTC112255

Company & Directors' Information:- V HOME PRIVATE LIMITED [Active] CIN = U74899DL2001PTC109331

Company & Directors' Information:- G. P. HOME PRIVATE LIMITED [Under Process of Striking Off] CIN = U70102MH2011PTC213056

    Writ Petition No. 6648 of 2020

    Decided On, 27 August 2020

    At, High Court of for the State of Telangana


    For the Petitioner: P. Shashi Kiran, Advocate. For the Respondents: T. Srikanth Reddy GP for Home.

Judgment Text

B. Vijaysen Reddy, J.1. The detention order vide 65/PD-Cell/CYB/2019, dated 27.12.2020 passed against Rajesh Thyagi S/o. Desvanth Thyagi, by the 2nd respondent, Commissioner of Police, Cyberabad Commissionerate, in exercise of powers conferred under Sub-Section (2) of Section 3 of the Telangana Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders, Land Grabbers, Spurious Seed Offenders, Insecticide Offenders, Fertilizer 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 (Amendment Act No.13 of 2018) (for short ‘the Act’) and as confirmation by the State vide G.O.Rt.No.495, General Administration (SPL) Law & Order Department dated 22.02.2020, are challenged in this Writ of Habeas Corpus as being illegal and arbitrary.2. Heard Mr. P. Shashi Kiran, learned counsel for the petitioner and Mr. T. Srikanth Reddy, learned Government Pleader for Home for the respondents.3. The learned counsel for the petitioner submitted that the impugned detention order is passed without application of mind and the detenu can be dealt with under ordinary law. The detention order was passed mechanically based on solitary offence and there is no material to come to the conclusion that detenu has been acting in a manner prejudicial to maintenance of public order. There is no plausible satisfaction recorded by the detaining authority as to the compelling circumstances to pass the detention order. The detaining authority has wrongfully taken easy way out and resorted to an order of preventive detention. The authority did not give specific finding as to how normal law procedure is not sufficient to deter the detenu from committing similar offences.4. Per contra, the learned Government Pleader for Home submitted that the detenu answers the description of ‘Sexual Offender’ as defined in Section 2(v) of the Act. The detenu is involved in sexual offence against a three year old minor girl registered in Cr.No.600 of 2019 of Jagadgirigutta Police Station, Cyberabad Police Commissionerate for the offences under Section 5(m) read with 6 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) and under Section 376-AB IPC. The detaining authority was satisfied with the material placed before it that the detenu has indulged in acts of Sexual offence by committing heinous crime of “AGGRAVATED PENETRATIVE SEXUAL ASSAULT ON A MINOR GIRL AGED 03 YEARS”. This inhuman act committed by the accused in an organized way and in a planned manned on a minor girl aged about three years has created fear, panic and feeling of insecurity among the innocent girls, school going children, their parents, relatives, locality people and general public thereby adversely affecting the public order leaving large section of people under the grip of fear and trauma and thus disturbing peace and tranquility in the society which is prejudicial to the maintenance of Public Order.5. In the impugned detention order, the detaining authority has referred to a solitary criminal case, as a ground for passing the detention order i.e. Crime No.600 of 2019 registered under Section 376 AB IPC and Section 5(m) r/w. 6 of POCSO Act, 2012 of Jagadgirigutta Police Station. As found from the impugned order, the detenu moved bail petition before the Metropolitan Sessions Judge, Cyberabad, R.R. District vide Crl.MP. No.5137 of 2019 and he was granted conditional bail and he was released from the jail on 28.11.2019.6. SOLITARY OFFENCE – PREVENTIVE DETENTION: The issue whether the detention order can be passed on the basis of solitary offence is no more res integra. However, even if the detenu is involved in a solitary offence and it is found that the prejudicial activity of the detenu has the propensity and potential to disturb the peace and tranquility in a locality or within the community thereby disturbing the public order, then the order of preventive detention needs to be sustained. No hard and fast rule can be laid down as to nature of the prejudicial activities and the effect such activities will have on public order. Whether the activities of the detenu would affect public order or not has to be tested in the background of such prejudicial activities in each case.7. In the STATE OF TAMIL NADU AND OTHER Vs. NABILA AND ANOTHER (2015) 12 SCC 127) the Hon’ble Apex Court while dealing with the issue as to whether the solitary offence can be the basis for passing the detention order, relied on its earlier judgment in the UNION OF INDIA Vs. CHAYA GHOSHAL (2005) 10 SCC 97) and observed in para 13 as follows:“13. In the instant case, as noticed above, the High Court quashed the order of detention mainly on the ground that the detenu was in remand in connection with the solitary ground case when there was no material before the detaining authority to show that either the detenu himself or his relatives are taking steps to file application for bail in the solitary ground case. In our opinion, the view taken by the High Court while passing the impugned order cannot be sustained in law. This point was considered by this Court in the case of Union of India & Anr. vs. Chhaya Ghosal & Anr., (2004) 10 SCC 97, and observed:-"23. So far as the finding of the High Court that there was only one incident is really a conclusion based on erroneous premises. It is not the number of acts which determine the question as to whether detention is warranted. It is the impact of the act, the factual position as highlighted goes to show that the financial consequences were enormous and ran into crores of rupees, as alleged by the detaining authority. The High Court seems to have been swayed away that there was only one incident and none after release on bail. The approach was not certainly correct and the judgment on that score also is vulnerable. At the cost of repetition it may be said that it is not the number of acts which is material, it is the impact and effect of the act which is determinative. The High Court's conclusions in this regard are therefore not sustainable."8. In the instant case, the victim girl was aged about three (03) years. The informant, L.W.1, in FIR No.6 of 2019, on the file of P.S. Jagadgirigutta, Medchal District, is the mother of the victim girl. She stated that the victim girl is her second child and studying in Anganwadi school. On 12.09.2019, the victim girl returned home at about 3.30 pm., and went to the house of the detenu, who was a bachelor, to watch T.V. in his house. On the same day at about 6 pm., when she has taken her daughter for giving bath, the victim girl informed the informant that she is getting pains in her private parts. The informant then noticed a red scratch mark on the private part of victim girl, as such, she asked the victim girl as to what has happened, then the girl informed that when she went to the detenu’s house for watching T.V., the detenu made to sit near her, removed her clothes and inserted his fingers into private parts of the victim girl and left her after sometime. This incident was not informed by the informant to her husband, on the same day as Ganesh immersion festival was going on in the locality. Later on 14.09.2019, when her husband returned home, he was informed by the victim girl that she was getting pain while she was passing urine. In the meantime, the informant narrated her husband about the misbehavior by their neighbor Rajesh Thyagi (detenu) with her daughter on 12.09.2019. Hence, complaint was lodged with the Police to take action against the detenu, who misbehaved and sexually assaulted her minor daughter.9. During the investigation, Police have recorded the statements of several witnesses, including informant (mother of victim girl) and the father of the girl. The statement of the victim girl was also recorded. Place of occurrence was visited by the Investigation Officer and the victim girl was sent to Gandhi Hospital, Secunderabad for medical examination. When the investigation was in progress, the detenu was apprehended on 15.09.2019. The Investigation Officer has obtained birth certificate of the victim girl from her parents, which shows her date of birth as 02.07.2016 (3.2 years) at the time of the offence. The Police collected medical examination report of sexual assault from the Gandhi Hospital.10. The statements of the victim girl and her mother were recorded by the IV Additional JFCM-cum-XII Additional Metropolitan Magistrate, Cyberabad at Kukatpally, under Section 164 Cr.P.C., on 27.09.2019. The learned Magistrate, on being satisfied that the victim girl, who is child witness, is giving rational answers and that she can depose and give evidence opined that statement given by the victim girl is voluntary and there is no force on her to give statement. The victim girl stated that the detenu, who is her neighbor, removed underwear and put his penis due to which she got pain and informed her mother. Police recorded that statement.11. SUBJECTIVE SATISFACTION:- The subjective satisfaction of the detaining authority was on the basis of sexual exploitation and rape of minor girl by the detenu. The satisfaction of the detaining authority was recorded stating that due to inhuman and shameful incident on the victim girl, family members, public, inhabitants of the locality especially parents of the teenage girls are in shock and fear. The incident has caused loss of faith among general public in humanity and caused hatred towards human beings like detenu and the locality people are in fear to send their girl children out of the residences fearing similar offences on their children. The locality people are not only frightened but also feel insecure to stay in the locality where the detenu is staying because of the incident of aggravated sexual assault on a innocent minor girl by taking advantage of the situation and sexually assaulting the girl in a deceptive manner. Thus a large section of people, especially minor and teenage girls and their parents are under fear and shock and thereby adversely affecting the public order.12. There cannot be any doubt that activities of the detenu will have an adverse bearing on the mind of the minor girls and their parents and residents of that locality. Abnormal and inhuman conduct of the detenu would definitely create fear and apprehension in the minds of the residents of the particular locality, especially, people who have minor daughters. Though the detenu is booked in a solitary crime, activities of the detenu, as found by the detaining authority, would have impact on the children and their parents and it cannot be held that such subjective satisfaction is without any basis. The subjective satisfaction of the detaining authority has to be tested on limited grounds with reference to availability of sufficient material, cogent reasons, necessity for passing the detention order, element of public order etc. This Court in exercise of power of judicial review cannot act as an Appellate Authority. If the subjective satisfaction is based on relevant and cogent material, this Court cannot interfere with the detention order.13. The Hon’ble Supreme Court while dealing exhaustively on the concept of subjective satisfaction in KHUDIRAM DAS Vs. THE STATE OF WEST BENGAL AND OTHERS (1975) 2 SCC 81 10) observed at para 8 as under:“8. Now it is clear on a plain reading of the language of sub-sections (1) and (2) of section 3 that the exercise of the power of detention is made dependent on the subjective satisfaction of the detaining authority that with a view to preventing a person from acting in a prejudicial manner; as set out in sub-clauses (i), (ii) and (iii) of clause (a) of sub-section (1), it is necessary to detain such person. The words used in sub-sections (1) and (2) of section 3 are "if satisfied" and they clearly import subjective satisfaction on the part of the detaining authority before an order of detention can be made. And it is so provided for a valid reason which becomes apparent if we consider the nature of the power of detention and the conditions on which it can be exercised. The power of detention is clearly a preventive measure. It does not partake in any manner of the nature of punishment. It is taken by way of precaution to prevent mischief to the community. Since every preventive measure is based on the principle that a person should be prevented from doing something which, if left free and unfettered, it is reasonably probable he would do, it must necessarily proceed in all cases, to some extent, on suspicion or anticipation as distinct from proof. Patanjali Sastri, C.J., pointed out in State of Madras v. V. G. Row(1) that preventive detention is "largely precautionary and based on suspicion" and to these observations may be added the following words uttered by the learned Chief Justice in that case with reference to the observations of Lord Finlay in Rex v. Halliday,(2) namely, that "the court was the least appropriate tribunal to investigate into circumstances of suspicion on which such anticipatory action must be largely based". This being the nature of the proceeding, it is impossible to conceive how it can possibly be regarded as capable of objective assessment. The matters which have to be considered by the detaining authority are whether the person concerned, having regard to his past conduct judged in the light of the surrounding circumstances and other relevant material, would be, likely to act in a prejudicial manner as contemplated in any of subclauses (i), (ii) and(iii) of clause (1) of sub-section (1) of section 3, and it so, whether it is necessary to detain him with a view to preventing him from so acting. These are not matters susceptible of objective determination and they could not be intended to be judged by objective standards. They are essentially matters which have to be administratively determined for the purpose of taking administrative action. Their determination is, therefore, deliberately and advisedly left by the legislature to the subjective satisfaction of the detaining authority which by reason of its special position, experience and expertise would, be best fitted to decide them. It must in the circumstances be held that the subjective satisfaction of the detaining authority as regards these matters constitutes the foundation for the exercise of the power of detention and (1) A.I.R. 1952 S.C. 597.(2)[1917] A.C. 260 the Court cannot be invited to consider the propriety or sufficiency of the grounds on which the satisfaction of the detaining authority is based. The Court cannot, on a review of the grounds, substitute its own opinion for that of the authority, for what is made condition precedent to the exercise of the power of detention is not an objective determination of the necessity of detention for a specified purpose but the subjective opinion of the detaining authority, and if a subjective opinion is formed by the detaining authority as regards the necessity of detention for a specified purpose, the condition of exercise of the power of detention would be fulfilled. This would clearly show that the power of detention is not a quasi-judicial power. It was, however, sought to be contended on behalf of the petitioner, relying on the observation of this Court in Bhut Nath Mata v. The State of West Bengal(1) that the exercise of the power of detention "implies a quasi-judicial approach", that the power must be regarded as a quasi-judicial power. But we do not think it would be right to read this observation in the manner contended on behalf of the petitioner. This observation was not meant to convey that the power of detention is a quasi- judicial power. The only thing which it intended to emphasise was that the detaining authority must exercise due care and caution and act fairly and justly in exercising the power of detention.”14. A crime is considered to be a wrong against a society. It is not the individual victim or family of the victim, who is/are only affected by the criminal act but public at large in a way are affected. It is for such reason the State takes up the responsibility to prosecute an offender. Even if the victim does not lodge a complaint, the person, who is actually not affected can be an informant and upon such information of commission of cognizable offence an FIR can be registered and prosecution can be launched by the State, the underlying purpose being to protect law and order, which is the primary responsibility of the State. Even in grave offences like murder (Section 302 IPC), attempt to murder (Section 307 IPC), criminal acts are committed against specific individuals and in many cases it is the individuals, who are actually the affected parties. However, offences relating to POCSO stand on a different footing. The act of sexual offences against children/minors shakes the conscience of the society and creates sense of fear and insecurity. In spite of IPC dealing with sexual offences under Chapter XVI which also include offences committed against minor children, a need was felt to enact POCSO Act, 2012, which deals with various forms of aggravated penetrative sexual assault as enumerated under Section 5 therein. Section 6 of the said Act deals with punishment for aggravated sexual assault and prescribes rigorous imprisonment which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for remainder of natural life of that person and shall also liable for fine or death. It can be presumed from greater degree of punishment provided under the POCSO Act, that the menace of sexual offences against children has reached enormous proportions and same needs to be tackled with an iron hand, so as to be deterrent on the offenders.15. Giving protection and safeguarding a child, more particularly a girl child, is not the sole responsibility of the parents, relatives or guardians as the case may be, but it is the social responsibility of every citizen. Today’s children are the future of our country. If a child is subjected to a sexual offence at a tender age of three years, the amount of trauma that the child undergoes cannot be described in normal words. Further, the impact of such incident on the parents and family members will be enormous. The child will have to suffer

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such mental stress for the rest of her life. The sufferance of the victim child may possibly affect her prospects in life.16. It will be useful to quote from the research papers/articles published by the child psychologists and experts about the impact of trauma on account of sexual abuse.“The trauma that results from sexual abuse is a syndrome that affects not just the victim and their family, but all of society. Because sexual abuse, molestation, and rape are such shame-filled events, our culture tends to suppress information about them.” (Trauma: Childhood Sexual Abuse by Susanne Babbel MFT, PhD., Somatic Psychology). Posted on sychologytoday.com on 13th March, 2013 and updated in the website in the year 2020.Consequences:“Sexual assault in childhood or adulthood impacts not only the victim, but also the victim’s family and friends as well as society as a whole. In this regard, sexual assault is a public health problem that concerns everyone. Sexual assault has numerous potential consequences that can last a lifetime and span generations, which serious adverse effects on health, education, employment, crime, and the economic wellbeing of individuals, families, communities and societies.”(Understanding sexual assault by INSPQ, Institute National de Sant Publique du Qubec (French: National Public Health Institute of Quebec; Canada) ... Available in the website-mobile.inspq.ac.ca of INSPQ in 2020.17. In view of the foregoing reasons, this Court does not find any valid grounds to interfere with the subjective satisfaction arrived at by the detaining authority. There are no merits in the writ petition and the same is liable to be dismissed and accordingly, dismissed. However, it is made clear that the observations made in this order shall not be construed as an expression of opinion on the merits of the case in Crime No.600 of 2019 and this order shall not have any bearing on the trail and disposal of the said case.As a sequel, the miscellaneous petitions, pending if any, shall stand closed. There shall be no order as to costs.