Individual Can't Decide How Law Enforcement Agency Should Act & When To Invoke Powers Under Preventive Detention Law: Telangana HC

In an important ruling, the Telangana High Court has held that it is not for the individual citizen to assess how the law enforcing agency should act but it is for that agency to come to subjective satisfaction of the need to resort to preventive detention. The Bench of Justice P. Naveen Rao also observed that the Court can't mandate the authority to do a particular act, in a particular manner just because the petitioner thinks that such course has to be adopted. The matter before the Court was related to the plea filed by a citizen complaining that the law enforcing agency failed to invoke the powers under the Act 1 of 1986 [A. P. Prevention of Dangerous Activities of Boot Leggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986'], and sought writ of mandamus to compel them to invoke the said powers against respondents 4 and 5. Background Petitioner (a Worker in Bibipet Gram Panchayat) filed a Plea alleging that respondents 4 and 5 harassed and abused him by using filthy language and on the caste name, detained and confined him in Gram Panchayat Office by locking the doors of Gram Panchayat Office for about 3½ hours. He lodged complaints with Police under Sections 342 IPC and 506 IPC, Section 3(1) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (Act, 1989). Petitioner alleged that respondents 4 and 5 are habitual offenders. The allegations levelled ranged from creation of fake documents, extracting money from the innocent people with false assurance to provide employment in another country, involving in partnership firm matters by abusing the partners and threatening the family members and employees and demanding higher money, and taking loans, not repaying the borrowed amount and threatening the persons who gave the money with dire consequences etc. It was contended that respondents 4 and 5 are involved in several crimes and thus, the Petitioner alleged that they are the habitual offenders and by their conduct, there is a serious threat to the right, liberty and personal safety of many people. It was the case of the petitioner that unless such power is exercised, petitioner and innocent persons would continue to suffer in their hands. In other words, according to the petitioner, respondents 4 and 5 are habitual offenders and they should be detained. Court's Observations The Court noted that the power of detention (under the said Act) is not to be exercised as a matter of course as it seeks to offend the most sacred of the rights, right to life, liberty and privacy, there are three primary requirements need to be answered by the law enforcing agency before invoking the provisions of Section 3 of the Act, 1986. Firstly, he must be a known offender and several crimes are reported against him and can be classified as 'a boot-legger', 'a dacoit', 'a goonda', 'an immoral traffic offender' or 'a land-grabber'; Secondly, the person must be acting in a manner prejudicial to the maintenance of the public order; and Thirdly, there must be subjective satisfaction by the authority that the person is indulging/most probably indulging in such activities in future, which is likely to cause disturbance to 'public order'. It was also remarked by the Court that the Act "should be resorted to only when the normal course of criminal justice system has failed to discipline the individual and actions and conduct of a person has caused or is likely to cause disturbance to public order." The Court further noted that it was not the case of the petitioner that respondents 4 and 5 are treated by the Police as 'goondas' or 'land grabbers' and thus, he failed to connect all the offences reported against respondents 4 and 5 with a common thread and to bring them within the purview of the Act 1 of 1986. The Court also said, "Every law and order problem need not result in disturbance to public order. Thus, the competent authority has to have subjective satisfaction that unless extreme measures are taken the illegal activities of respondents 4 and 5 may result in affecting public order." Importantly, the Court remarked, "It is for the authority concerned to assess the situation based on the inputs at his disposal and resort to exercise that power. Law enforcing agencies and administrative authorities at the district and state level are the best persons to assess the situation and to take all measures as required to enforce law and order more particularly public order, peace and tranquillity. In the process and if so required they may resort to preventive detention." Court's order' Underlining that in exercise of power of judicial review the writ Court couldn't mandate the authority to exercise such power merely because the petitioner asks for it, the Court said, "This writ petition is instituted in his individual...

Individual Can't Decide How Law Enforcement Agency Should Act & When To Invoke Powers Under Preventive Detention Law: Telangana HC

Sparsh Upadhyay

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