REPORTABLE    

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.  1814   OF 2011 (Arising out of Special Leave Petition (Crl.) No. 3913 of 2011)

D.M. Nagaraja      .... Appellant(s)

Versus

The Government of Karnataka & Ors.     .... Respondent(s)

J U D G M E N T

P.Sathasivam,J.

1) Leave granted.

2) The  appellant  has  filed  this  appeal  against  the  final  

judgment  and  order  dated  28.03.2011  passed  by  the  High  

Court of Karnataka at Bangalore in a writ of  Habeas Corpus  

being Writ Petition No. 220 of 2010 whereby the High Court  

dismissed the writ petition filed against the order of detention  

dated  22.09.2010  passed  by  the  Commissioner  of  Police,  

Bangalore City, vide CRM(4)/DTN/10/2010.    

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3) Brief facts:

(a) According  to  the  Detaining  Authority,  the  appellant-

detenue,  when  he  was  30  years  old,  started  his  career  in  

criminal field by committing offences like murder, attempt to  

murder,  dacoity,  rioting,  assault,  damaging  the  public  

property, provoking the public, attempt to grab the property of  

the  public,  extortion  while  settling  land  disputes  and  

possessing of illegal weapons etc.  

(b) By the date of the detention order,  i.e.  on 22.09.2010,  

eleven cases had been filed against the detenue and out of  

them,  four  cases  were  pending  trial  before  the  respective  

Courts and records have been destroyed as time barred in four  

cases.  In two cases, he has been acquitted.  In pending cases,  

he was granted bail from the courts and in one case he has  

been  convicted  and  sentenced  to  undergo  rigorous  

imprisonment for a term of nine years by the Sessions Court,  

Bangalore.  The detention order further shows that because of  

his habituality in committing crimes, violating public order by  

threatening the public, causing injuries to them and damaging  

their properties and he was not amenable and controllable by  

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the normal procedure, detained him as ‘goonda’ under Section  

2(g)  of  the  Karnataka  Prevention  of  Dangerous  Activities  of  

Bootleggers,  Drug-Offenders,  Gamblers,  Goondas,  Immoral  

Traffic  Offenders  and  Slum-Grabbers  Act,  1985  (hereinafter  

referred to as “the Karnataka Act”) (Act No. 12 of 1985) for a  

period of 12 months.

(c) The  appellant  himself  challenged  the  detention  order  

before the High Court of Karanataka by filing a writ of Habeas  

Corpus.  Before the High Court, the only contention put-forth  

by  the  appellant  was  that  there  was  enormous  delay  in  

considering  his  representation  made  on  06.10.2010  to  the  

Advisory Board for withdrawal of the detention order.  While  

negating the said contention, the Division Bench of the High  

Court has gone into the validity or otherwise of the detention  

order and after finding that the Detaining Authority was fully  

justified in clamping the detention order, dismissed the writ  

petition  filed  by  the  appellant-detenue  vide  order  dated  

28.03.2011.  The said order is under challenge before us by  

way of special leave petition.   

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4) Heard  Mr.  C.B.  Gururaj,  learned  counsel  for  the  

appellant-detenue and Ms. Anitha Shenoy, learned counsel for  

the State of Karanataka.   

5) The point for consideration in this appeal is whether the  

Detaining Authority is justified in passing the detention order  

dated 22.09.2010 and the High Court is right in confirming  

the  same  and  dismissing  the  writ  petition  filed  by  the  

appellant?

6) The Statement of Objects and Reasons of the Karnataka  

Act No. 12 of 1985 shows that the activities of certain anti-

social  elements  like  bootleggers,  drug-offenders,  gamblers,  

goondas,  immoral  traffic  offenders  and  slum grabbers  have  

from time to  time caused a  feeling  of  insecurity  and alarm  

among the public and tempo of life especially in urban areas  

has  frequently  been disrupted  because  of  such persons.  In  

order to ensure that the maintenance of public order in the  

State of Karnataka is not adversely affected by the activities of  

these known anti-social elements, it is considered necessary to  

enact  a  special  legislation.   The  following  provisions  of  

Karnataka Act 12 of 1985 are relevant :

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“2. Definitions : - In this Act, unless the context otherwise  requires, -

(a) “acting in any manner prejudicial to the maintenance of  public order” means, -  

(i) ……………………………………………………. (ii) …………………………………………………… (iii) …………………………………………………… (iv) In  the  case  of  a  goonda  when he  is  engaged,  or  is  

making  preparations  for  engaging,  in  any  of  his  activities  as  a  goonda  which  affect  adversely  or  are  likely  to  affect  adversely  the  maintenance  of  public  order;

(v) …………………………………………………… (vi) ……………………………………………………

Explanation – For the purpose of this clause, public order  shall be deemed to have been affected adversely or shall be  deemed likely to be affected adversely inter alia if any of the  activities  of  any  of  the  persons  referred  to  in  this  clause  directly or indirectly, is causing or is calculated to cause any  harm, danger or alarm or a feeling of insecurity, among the  general  public  or  any  section  thereof  or  a  grave  or  widespread danger to life or public health.

(b) ……………………………………………………………………. (c) “detention order” means an order made under Section 3; (d) “detenue”  means a person detained under  a detention  

order; (e) …………………………………………………………………… (f) …………………………………………………………………… (g) “goonda” means a person who either by himself or as a  

member of or leader of a gang, habitually commits or  attempts to commit or abets the commission of offences  punishable under Chapter VIII, Chapter XV, Chapter  XVI, Chapter XVII or chapter XXII of the Indian Penal  Code (Central Act XLV of 1860)”

Section 3 empowers the State Government to detain certain  

persons  with  a  view  to  prevent  them  from  acting  in  any  

manner prejudicial to the maintenance of public order.  If the  

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Government/Detaining  Authority  is  able  to  satisfy  that  a  

person either by himself or in association with other members  

habitually commits or attempts or abets such commission of  

offence  punishable  under  the  Indian  Penal  Code,  1860  (in  

short  ‘IPC’)  and  subject  to  satisfying  Section  3  of  the  

Karnataka Act No. 12 of 1985, he can be detained in terms of  

the said Act.     

7) The essential concept of preventive detention is that the  

detention of a person is not to punish him for something he  

has done but to prevent him from doing it.  Even, as early as  

in 1975, the Constitution Bench of this Court considered the  

procedures to be followed in view of Articles 19 and 21 of the  

Constitution.  In Haradhan Saha vs. State of West Bengal  

& Ors.  (1975)  3  SCC  198,  the  Constitution  Bench  of  this  

Court,  on  going  through  the  order  of  preventive  detention  

under Maintenance of Internal Security Act, 1971 laid down  

various principles which are as follows:-

“…..First; merely because a detenue is liable to be tried in a  criminal court for the commission of a criminal offence or to  be  proceeded  against  for  preventing  him from committing  offences dealt with in Chapter VIII of the Code of Criminal  Procedure would not by itself  debar the Government  from  taking action for his detention under the Act.

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Second; the fact that the Police arrests a person and later on  enlarges him on bail  and initiates  steps to prosecute him  under the Code of Criminal Procedure and even lodges a first  information  report  may  be  no  bar  against  the  District  Magistrate issuing an order under the preventive detention.

Third; where the concerned person is actually in jail custody  at the time when an order of detention is passed against him  and is not likely to be released for a fair length of time, it  may  be  possible  to  contend  that  there  could  be  no  satisfaction on the part of the detaining authority as to the  likelihood  of  such  a  person  indulging  in  activities  which  would  jeopardize  the  security  of  the  State  or  the  public  order.

Fourth;  the  mere  circumstance  that  a  detention  order  is  passed  during  the  pendency  of  the  prosecution  will  not  violate (sic) the order.

Fifth; the order of detention is a precautionary measure.  It  is based on a reasonable prognosis of the future behaviour of  a  person  based  on  his  past  conduct  in  the  light  of  the  surrounding circumstances.”  

In the light of the above principles, let us test the validity of  

the detention order issued under Act No. 12 of 1985 and as  

affirmed by the High Court.

8) Mr.  C.B.  Gururaj,  learned  counsel  for  the  appellant  

raised  the  only  contention  that  inasmuch as  action  can be  

taken against the detenue under the ordinary laws, there is no  

need to detain him under Act No. 12 of 1985.  In support of  

his contention, he very much relied on the recent decision of  

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this Court in  Rekha vs.  State of Tamil Nadu (2011) 5 SCC  

244.  On the other hand, Ms. Anitha Shenoy, learned counsel  

for  the  State,  after  taking  us  through  the  entire  materials,  

various  continuous  activities  of  the  detenue  and  several  

orders, submitted that the Detaining Authority is fully justified  

in clamping the order of detention and she also pointed out  

that the decision of the High Court is perfectly in order and  

prayed for dismissal of the appeal.   

9) We have carefully considered the rival  contentions and  

perused the grounds of detention order and all the materials  

relied on by the Detaining Authority.  

10) The detention order refers the activities and involvement  

of the appellant-detenue in as many as 11 cases.  The details  

of which are mentioned hereunder:

“1.  Sriramapura PS Cr. No. 55/81 under Sections 143,  147, 148, 149, 348, 307 IPC  :  The file in this case has  been destroyed as time barred.

2.  Rajajinagar PS Cr. No. 81/81 under Section 324 r/w  Section  34  IPC :   The  file  of  this  case  too  has  been  destroyed as time barred.

3.   Sriramapura PS Cr.  No.  484/83 under Section 302  read with Section 149 IPC :  In this case, the detenue is  the prime accused.  He along with his brother Kitti and other  associates committed the offence punishable under Section  302 IPC.  After trial the detenue was found guilty and was  

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convicted  to  undergo  rigorous  imprisonment  for  9  years.  However,  the  records  of  this  case  have  been destroyed as  time barred and are not produced.  

4.  Srirampuram PS Cr. No. 624/83 under Section 307  IPC – This record also has been destroyed as time barred.

5.   Victoria Hospital  PS Cr.  No.  75/87 under Sections  350, 352 and 506(B) IPC   :  After the detenue’s conviction  in  Cr.  No.  484/83,  he  was  admitted  in  Prisoner’s  ward,  Victoria Hospital, Bangalore, for treatment.  On 19.12.1987  at about 11.30 a.m., the detenue tried to escape from the  prisoner’s ward but, he was restricted by the official deputed  for his escort.  The detenue got violent and threatened the  escort saying that he would kill him in 3 days.  Thereafter,  after investigation, charge sheet was filed in CC No. 869/88.  As the detenue was absconding,  he  was taken in judicial  custody in UTP No. 2896.  The case is under trial.

6 & 7.  Srirampura PS Cr. Nos. 215/87 under Section 302  read  with  Sections  149  IPC,   under  Sections  220/89,  143, 144, 148, 324, 302 read with 109 IPC :  Both these  case files are destroyed as time barred.  However, according  to rowdy sheet a charge sheet has been filed in the 3rd ACMM  Court,  Bangalore  City  on  10.06.1987  and  the  same  was  taken on file in CC No. 3738/87 for trial in Cr. No. 215/87.

8.   Sriramapura PS Cr.  No.  198/03 under Section 384  IPC:  On 05.08.2003, at about 6.00 a.m. the detenue and his  associate  Ravi  extorted  Rs.200/-  from  one  Venkatesh  threatening him with dire consequences and boasting that  they were rowdies of Rajajinagar and Srirampuram.  They  were  arrested  on  06.08.2003  and  remanded  to  judicial  custody.   However,  this  case  ended  in  acquittal  as  the  witnesses  out  of  fear  did  not  depose  properly  in  Court  against them.

9.  High Grounds PS Cr. No. 341/04 under Section 302  IPC :  In this case due to prior rivalry with rowdy Rajendra @  Bekkina Kannu Rajendra, and also thinking that Rajendra  was responsible for the death of his younger brother Krishna  @ Kitti, chased him in public view and assaulted him with  longs,  dagger  and other  weapons and murdered him.   He  was  arrested  on  09.11.2004  and  remanded  to  judicial  

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custody.  This case ended in acquittal since the witnesses  did not depose properly against him out of fear.

10.   Yelahanka  New  Town  PS  Cr.  No.  186/09  under  Sections  143,  147,  148,  120(B),  307,  302  read  with  Section 149 IPC  :  In this case also, enmity between Ravi @  Bullet  Ravi,  Seena,  Vasu  and  the  detenue  is  the  cause.  Nursing a grudge over past incidents, the detenue has done  away with the life of Ravi Raj @ Bullet Raj, Seena and Vasu  by assaulting  them with sickles.   Seena died at  the  spot,  whereas Ravi and Vasu died in the hospital.  The detenue  was  arrested  on  28.08.2009  and  remanded  to  judicial  custody.  He was released on bail on 18.11.2009.  A case in  S.C. No. 120/10 in this regard is pending trial.

11.  Subramanyanagar PS Cr. No. 32/10 under Sections  307, 353, 399, 402 IPC & 3 & 25 of the Arms Act :  On  06.02.1020  at  6.15  p.m.,  the  detenue  and  his  associates  conspired to murder their rival rowdy Break Jagga and were  waiting in a case armed with weapons.  On receipt of this  information Shri M.R. Mudvi, PI, CCB Bangalore City along  with police Inspectors and staff conducted raid and tried to  arrest them.  However, some of them were able to escape.  The detenue remained absconding and evaded arrest.  Later  he obtained bail  on 24.03.2010 in the Court  of  14th FTC,  Bangalore.   A  charge  sheet  was  filed  against  him  on  17.04.2010 which was taken on file  in CC No. 17160/10.  The case is pending trial.”       

11) As  rightly  pointed  out  by  Ms.  Anitha  Shenoy,  learned  

counsel for the State, the perusal of the records and all the  

above  details  furnished  in  the  detention  order  clearly  show  

that the appellant-detenue started his career in criminal field  

when he was 30 years old and is now about 60 years.  In the  

beginning, he was the follower of notorious rowdies Jairaj and  

Korangu Krishna.  Later, he formed his own gang consisting of  

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his own younger brother Krishna @ Kitti  along with others.  

Krishna @ Kitti met his end in police encounter during 1996 in  

Rajajinagar  P.S.  Crime  No.  125  of  1996  for  the  offences  

punishable under Sections 141, 143, 147, 148, 302 read with  

Section 149 IPC.  The records also indicate that the detenue  

has about 28 associates assisting him in his criminal activities  

and  a  number  of  cases  are  pending  against  them.   The  

detenue has no regard for human life.  The cases registered  

against  him pertain to murder,  attempt  to murder,  dacoity,  

rioting,  assault,  damage  to  public  property,  provoking  the  

public,  extortion  while  settling  land  disputes,  possessing  

illegal  weapons  etc.   Though he  was  sentenced  to  undergo  

rigorous imprisonment for 9 years, that has not deterred him  

to put a stop to his criminal activities.  In fact, from the year  

1981  up  to  2010,  he  has  systematically  committed  these  

criminal activities.   

12) All the abovementioned details which have been correctly  

stated in the detention order clearly show that the appellant is  

not amenable to ordinary course of law.  It also shows that  

even  after  his  release  on  bail  from  the  prison  on  various  

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occasions, he again started indulging in same type of offences,  

particularly,  threatening  the  public  life,  damaging  pubic  

property  etc.   All  these  aspects  have  been  meticulously  

considered by the Detaining Authority and after finding that in  

order  to  maintain  public  order,  since  his  activities  are  

prejudicial  to  the  public,  causing  harm  and  danger,  the  

Detaining  Authority  detained  him  as  ‘goonda’  under  the  

Karnataka Act No. 12 of 1985 for a period of 12 months and  

the same was rightly approved by the Advisory Board and the  

State Government.  Inasmuch as the Detaining Authority has  

taken note of all the relevant materials and strictly followed all  

the safeguards as provided in the Act ensuring the liberty of  

the detenue, we are in entire agreement with the decision of  

the Detaining Authority as well as the impugned order of the  

High Court affirming the same.

13) Learned counsel for the appellant very much relied on a  

recent decision of this Court in Rekha (supra).  In the above  

case, against the detention order dated 08.04.2010 imposed  

on  Ramakrishnan  under  the  Tamil  Nadu  Prevention  of  

Dangerous  Activities  of  Bootleggers,  Drug  Offenders,  Forest  

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Offenders,  Goondas,  Immoral  Traffic  Offenders,  Sand  

Offenders, Slum-Grabbers and Video Pirates Act, 1982 on the  

allegation that he was selling expired drugs after tampering  

with labels  and printing fresh labels showing them as non-

expired drugs, his wife filed a  habeas corpus petition before  

the Madras High Court.   The said writ  petition came to be  

dismissed on 23.12.2010.  Hence, wife of the detenue therein,  

approached this Court by way of special leave to appeal.  In  

the  same judgment,  this  Court  has  extracted the  detention  

order and the grounds for detaining him under the Tamil Nadu  

Act, 1982.  The grounds show that there is reference to one  

incident  relating  to  selling  expired  drugs  and the Detaining  

Authority by pointing out that necessary steps are being taken  

by his relatives to take him out on bail and since in similar  

cases,  bails  were granted by the courts after  lapse of  some  

time and if he comes out on bail, he will  indulge in further  

activities  which  will  be  prejudicial  to  the  maintenance  of  

public health and order and recourse to normal criminal law  

would not have the desired effect of effectively preventing him  

from indulging in such activities, on the materials placed and  

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after  fully  satisfying the  Detaining Authority  has passed an  

order under the Tamil Nadu Act, 1982.  In para 7, the Bench  

has pointed out that in the grounds of detention, no details  

have been given about the alleged similar cases in which bail  

was allegedly granted by the court concerned.  The grounds  

extracted  therein  also  are  bereft  of  any  further  details.   In  

those circumstances, this Court taking note of various earlier  

decisions  came  to  the  conclusion  that  normal  recourse  to  

ordinary  law  would  be  sufficient  and  there  is  no  need  for  

invocation of the special Act.   

14) In  the  case  on  hand,  we  have  already  extracted  

criminality, criminal activities starting from the age of 30 and  

details relating to eleven cases mentioned in the grounds of  

detention.  It is not in dispute that in one case he has been  

convicted and sentenced to undergo rigorous imprisonment for  

a term of nine years.  He had been acquitted in two cases and  

four cases are pending against him wherein he was granted  

bail  by  the  courts.   It  is  the  subjective  satisfaction  of  the  

Detaining Authority that in spite of his continuous activities  

causing threat to maintenance of public order, he was getting  

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bail one after another and indulging in the same activities.  In  

such  circumstances,  based  on  the  relevant  materials  and  

satisfying  itself,  namely,  that  it  would  not  be  possible  to  

control his habituality in continuing the criminal activities by  

resorting to normal procedure, the Detaining Authority passed  

an order detaining him under the Act No. 12 of 1985.  In view  

of enormous materials which are available in the grounds of  

detention,  such habituality has not been cited in the above  

referred Rekha (supra), we are satisfied that the said decision  

is distinguishable on facts with reference to the case on hand  

and contention based on the same is liable to be rejected.  

15) Though learned counsel for the appellant has not raised  

the objection i.e. delay in disposal of his representation since  

that was the only contention before the High Court, we intend  

to  deal  with  the  same.   We  have  already  stated  that  the  

detention  order  was  passed  on  22.09.2010  by  the  

Commissioner of Police, Bangalore City.  The said order was  

approved by the Government on 30.09.2010 and the case was  

sent to Advisory Board on 08.10.2010 and the Board sat on  

04.11.2010.   The  Government  received  the  report  of  the  

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Advisory  Board  on 10.11.2010.   Confirmation detaining  the  

detenu for a period of 12 months was issued on 16.11.2010.  

Representation of the detenu through Central Prison was sent  

on 06.10.2010 i.e. before passing of the confirmation order by  

the Government.  This Court in K.M. Abdulla Kunhi & B.L.  

Abdul  Khader vs.  Union  of  India  & Ors.  and  State  of  

Karnataka & Ors. (1991) 1 SCC 476 (CB) has clearly held  

that the authority has no constitutional duty to consider the  

representation  made  by  the  detenu  before  the  order  of  

confirmation of the detention order.  There is no constitutional  

mandate  under  Clause  (5)  of  Article  22,  much  less  any  

statutory  requirement  to  consider  the  representation  before  

confirming  the  order  of  detention.   In  other  words,  the  

competent authority can consider the representation only after  

the order of confirmation and as such the contentions raised  

by  the  appellant  as  if  there  was  delay  in  consideration  is  

baseless and liable to be rejected.  As pointed out above, the  

counsel  for  the  appellant  did  not  raise  any  objection  as  

regards to the same.  

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16) On going through the factual details, various materials in  

the grounds of detention in view of continuous activities of the  

detenu  attracting  the  provisions  of  IPC,  continuous  and  

habituality in pursuing the same type of offences indulging in  

committing offences like attempt to murder, dacoity, rioting,  

assault,  damaging  public  property,  provoking  the  public,  

attempt  to  grab  the  property  of  members  of  the  public,  

extortion  while  settling  land  dispute,  possessing  illegal  

weapons  and  also  of  the  fact  that  all  the  procedures  and  

statutory  safeguards  have  been  fully  complied  with  by  the  

Detaining  Authority,  we  agree  with  the  reasoning  of  the  

Detaining  Authority  as  approved  by  the  Government  and  

upheld by the High Court.  

17) Under  these  circumstances,  we  find  no  merit  in  the  

appeal.  Consequently, the same is dismissed.                       

………….…………………………J.                  (P. SATHASIVAM)                                  

       ………….…………………………J.                  (DR. B.S. CHAUHAN)                                   

NEW DELHI;

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SEPTEMBER 19, 2011.  

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