Article 22(5): Delay In Considering Representation Against Detention Order A Ground To Nullify It, Says Karnataka HC

The Karnataka High Court has said that delayed consideration by authorities of the representation made by a detenu amounts to violation of Article 22(5) of the Constitution of India and constitutes a ground to nullify the order of detention.

A division bench of Justice B. VEERAPPA and Justice K.S. HEMALEKHA made the observation while allowing a habeas corpus petition filed by detenue Shivaraja @ Kulla Shivaraja and his wife against the order passed by Commissioner of Police, Bengaluruagainst him under the provision of Section 3(1) of the Goonda Act.

The bench said:

"The rights of the detenu has been violated as conferred upon the petitioner under clause 5 of Article 22 of the Constitution and hence, the order of detention to be continued is rendered illegal."

Further it directed the Senior Superintendent Central Prison, Bangalore to set at liberty the detenu forthwith, if he is not required in any other case.

Findings:

The bench noted that the Commissioner of Police, Bengaluru passed an order under Section 3(1) of the Goonda Act on December 28, 2021 for detaining the petitioner as several cases stood registered against him. The petitioner submitted a representation to the Advisory Board on January 4, 2022.

Referring to the representation, the bench said:

"This disproves the contention of the State that they had no knowledge of the representation submitted by petitioner No.1. Therefore, from the facts of the present case what can be gathered is that there was a representation given by the petitioner on 04/01/2022 and was within the knowledge of the respondent from 10/01/2022 and the consideration on 28/06/2022 after lapse of 168 days is in violation of Article 22(5) of the Constitution of India."

The court said the language of Article 22 (5) implicitly states that earliest opportunity is to be given to the detenue to make the representation. It added the representation is to be properly considered by the detaining authority as expeditiously as possible.

"The Constitution of Advisory Board under Section 8 of the Preventive Detention Act does not relieve the State Government from the legal obligation to consider the representation of the detune as soon as it was received or had come to the knowledge of the State," it said.

Placing reliance on the judgments of the coordinate bench in the case of Smt. Jayamma vs. Commissioner of Police, Bengaluru [ILR 2019 Kar. 1543] and Leelavathi vs. Commissioner of Police, Bengaluru & others [ILR 2019 Kar. 4105], the bench said:

"A duty is cast on the State to consider the representation of the detenue and it has to be exercised at the earliest point of time. The delay in considering the representation of the detenue would constitute a ground to nullify the order of detention. What is the 'earliest point of time' is necessarily subjective and the settled principle being that the representation has to be considered at the earliest point of time and if there is a delay in considering the representation, then the entire detention order would have to be set aside on that ground alone."

The representation was considered by the state government on June 28 and that "would show that much time has been lost to consider the representation", it said further.

"Thus non-consideration of the representation had adversely affected the right of petitioner No.1 due to the failure on the part of the State Government to consider the representation as nearly six months from the date of representation," said the bench

The court also said that the petitioner was not given adequate time to submit his representation.

Case Title: SHIVARAJA @ KULLA SHIVARAJA v COMMISSIONER OF POLICE, BENGALURU

Case No: WRIT PETITION (HC) No.39/2022

Citation: 2022 LiveLaw (Kar) 372

Date of Order: 19TH DAY OF SEPTEMBER, 2022

Appearance: Advocate ROHAN VEERANNA TIGADI for petitioners

V.S. HEGDE, SPP-II A/W SRI THEJESH P., HCGP FOR R-1 TO R-3

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