The Karnataka High Court has held that delayed consideration by authorities of the representation made by a detainee results in a violation of Article 22(5) of the Constitution of India and entails a ground to nullify the order of detention. This was noted in the case of SHIVARAJA @ KULLA SHIVARAJA v. COMMISSIONER OF POLICE, BENGALURU Case No: WRIT PETITION (HC) No.39/2022 and the judgment was presided over by a division bench of Justice B. VEERAPPA and Justice K.S. HEMALEKHA.
Facts of the case-
In the present case, a habeas corpus petition was filed by detainee Shivaraja @ Kulla Shivaraja and his wife against the order passed by the Commissioner of Police, Bengaluru against him under the provision of Section 3(1) of the Goonda Act.
The High Court had said the language of Article 22 (5) implicitly states that the earliest opportunity is to be given to the detainee to make the representation. It added the representation is to be properly considered by the detaining authority as early as possible.
Further, the bench said, “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,”
Finally, the court placed reliance on the judgments of the coordinate bench in the case of Smt. Jayamma v. Commissioner of Police, Bengaluru
and Leelavathi v. Commissioner of Police, Bengaluru & others, the bench said: “A duty is cast on the State to consider the representation of the detainee and it has to be exercised at the earliest point of time. The delay in considering the representation of the detainee would constitute a ground to nullify the order of detention. What is the ‘earliest point of time’ is necessarily subjective and the settled principle is 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.”
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Judgement reviewed by Alaina Fatima.