BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 06/08/2009
CORAM
THE HONOURABLE MRS. JUSTICE R.BANUMATHI
and
THE HONOURABLE Ms. JUSTICE R.MALA
H.C.P.(MD) No.403 of 2009
Mookkammal
W/o.Mundasamy Thevar .. Petitioner
vs.
1.The Commissioner of Police,
Tirunelveli City.
2.The Secretary to the Government,
Home, Prohibition and
Excise (XIV) Department,
Chennai - 9.
3.The Inspector of Police,
Palayamkottai Police Station,
Tirunelveli District. .. Respondents
Petition filed under Article 226 of the Constitution of India to issue a
Writ of Habeas Corpus to call for the entire records pertaining to the Order of
Detention passed by the 1st respondent vide his proceedings in
No.37/BDFGISSV/2008 dated 13.10.2008 and quash the same and consequently set the
detenu by name Udayar alias Durai, S/o.Mundasamy, Thevar who is confined at
Central Prison, Palayamkottai at liberty.
!For petitioner ... Mr.R.Anand
^For respondents ... Mr.P.N.Pandidurai
Addl.Public Prosecutor
:ORDER
(Order of the Court was made by R.BANUMATHI, J)
The petitioner, mother of the detenu - M.Udayar alias Durai challenges the
Detention Order dated 13.10.2008 passed by the detaining authority, Commissioner
of Police, Tirunelveli whereby the detenu was ordered to be detained under the
provisions of the Tamil Nadu Prevention of Dangerous Activities of Boot-Leggers,
Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Sand
Offenders, Slum-grabbers and Video Pirates Act, 1982 (Tamil Nadu Act 14 of 1982)
branding him as a "Goonda".
2. The detenu had earlier come to adverse notice in a case in
Palayamkottai Police station Crime No.862/2006 under Section 302 r/w 120(b), 34
IPC and 3(2)(v) SC/ST (Prevention of Atrocities Act, 1989 and in Murappanadu
Police Station Crime No.198/2007 under Sections 294(b), 506(ii) IPC and Section
4 of Tamil Nadu Prevention of Harassment against Women Act.
3. The facts leading to passing of the impugned Detention Order are that
the defacto complainant Alwyn repaired the lights of the vehicle of the detenu
and the detenu assured to pay repair charges of Rs.380/- after 2 days and went
away. On 3.10.2008 at 4.45 p.m., the defacto complainant Alwyn along with one
Manikandan was coming near Petrol Bunk, Uchigopuram, Palayamkottai, Alwyn asked
money from the detenu and the detenu is alleged to have abused Alwyn and
Manikandan in filthy language and also threatened Alwyn by brandishing Aruval
and snatched Rs.570 from his shirt pocket.
4. On the complaint lodged by Alwyn, the ground case was registered in
Crime No. 1610/2008 under Sections 314, 294(B), 427, 387 and 506(ii) IPC and the
detenu was arrested on 4.10.200 and remanded to judicial custody.
5. In para 3 of the Detention Order, the detaining authority has stated
that owing to the conduct of the detenu, those who were coming to petrol bunk,
those who were walking on the road and those who were waiting for the bus took
to their heels out of fear and those who were coming in two wheelers sped away
in their vehicles. Bus drivers stopped the buses and nearby shop-keepers closed
their shops. The entire place wore a deserted look for a while. On being
satisfied that the detenu is habitually indulging in different crimes and acting
in a manner prejudicial to the maintenance of public order, the impugned
Detention Order was clamped.
6. The Detention Order is challenged on the ground that the ground case in
Crime No.1610/2008 is a solitary incident and it is not of such a magnitude and
intensity so as to disturb the public order and clamp the detention Order. It
was further contended that based on such single incident, the detaining
authority was not justified in observing that the detenu is habitually
committing crimes and also acting in a manner prejudicial to the maintenance of
public order and therefore, the Detention Order is liable to be quashed.
7. Taking us through the averments in the counter affidavit and materials
on record, the learned Additional Public Prosecutor submitted that the detenu
was involved in two adverse cases including one murder case and in the ground
case, the detenu threatened Alwyn in a public place and based on the materials,
the detaining authority satisfied itself that the detenu has committed crimes
and is also acting in a manner prejudicial to the maintenance of public order
and as such, he is a Goonda as contemplated under Section 2(f) of the Tamil
Nadu Act 14/1982 and such subjective satisfaction cannot be interfered with.
8. Observing that the detenu is habitually committing crimes, in para 5 of
the Detention Order, the detaining authority observed as follows:
"5. Hence I am satisfied that Thiru. M.Udayar alias Durai is habitually
committing crimes and is also acting in manner prejudicial to the maintenance of
public order and as such he is a Goonda as contemplate under Section 2(f) of the
Tamil Nadu Act 14 of 1982. By committing the above described grave crime in a
public and a busy locality in a business area, he has created an alarm and a
feeling of insecurity in the minds of public in that area and thereby acted in a
manner prejudicial to the maintenance of public order."
9. Further in para 6 of the Detention Order, the detaining authority has
observed that if the detenu comes out on bail he will indulge in such further
activities which will be prejudicial to the maintenance of public order.
10. In the first adverse case in Palayamkottai Police station Crime
No.862/2006 under Section 302 r/w 120(b), 34 IPC and 3(2)(v) SC/ST (Prevention
of Atrocities Act, 1989, the detenu and his associates are alleged to have
committed murder of Manivannan at 13.15 hours on 18.8.2006 when Manivannan was
coming near auto stand along with his friend. The first adverse case under
Section 302 IPC is an offence against an individual and on the human body. The
second adverse case in Murappanadu Police Station Crime No.198/2007 was for the
offences under Sections 294(b), 506(ii) IPC and Section 4 of Tamil Nadu
Prevention of Harassment against Women Act on 12.10.2007. Due to previous
enmity, the detenu is alleged to have threatened Petchiammal's husband
Subramanian and when Petchiammal prevented the detenu, the detenu is alleged to
have abused Petchiammal in filthy langauage and pulled her sari and thereby
alleged to have outraged the modesty of Petchiammal and the detenu was charged
for the offence under Sections 294(B) and 506(ii) IPC. Here again, the second
adverse case is relating to abusing Petchiammal in filthy language and outraging
her modesty and nothing relating to public order.
11. No doubt in Para 3 of the Detention Order, the detaining authority has
stated that by committing the offence in the public place near Petrol Bunk, the
detenu has committed grave offence in public and the detenu has created a sense
of alarm in the public and those who were walking on the road and those who
were waiting for the bus took to their heels out of fear and those who were
coming in two wheelers sped away in their vehicles. Bus drivers stopped the
buses and that nearby shop-keepers closed their shops and thereby, the detenu
had acted in a manner prejudicial to the maintenance of public order.
12. The question is whether such a single incident is a criminal
intimidation and the commission of robbery would affect the public order and can
the detenu be said to have acted in a manner prejudicial to the maintenance of
public order. Observing that solitary assault on one individual can hardly be
said to disturb public peace or place public order in jeopardy so as to bring
the case within the purview of the Act providing for preventive detention, the
Supreme Court in Darpan Kumar Sharma v. State of Tamil Nadu and others [2003
Supreme Court Cases (Cri) 537] in para No.5 has held as follows:
"5. The basis upon which the petitioner has been detained in the instant
case is that he robbed one Kumar at the point of knife a sum of Rs.1,000/-. Any
disorderly behaviour of a person in the public or commission of a criminal
offence is bound, to some extent, affect the peace prevailing in the locality
and it may also affect law and order but the same need not affect maintenance of
public order. Under the definitions in the Act, it is stated that in the case
of "goonda" the acts prejudicial to public order are "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" [Section 2(a)(iii)]. The question whether a man has only committed a
breach of law and order or has acted in a manner likely to casue disturbance of
the public order is a question of degree and the extent of the reach of the act
upon the society; that a solitary assault on one individual can hardly be said
to disturb public peace or place public order in jeopardy so as to bring the
case within the purview of the Act providing for preventive detention."
In T.Devaki V. government of Tamil Nadu and others [1990 Supreme Court
Cases (Cri) 348] in para No.19, the Supreme Court has held as follows:
"19. No doubt in paragraph 4 of the grounds, the detaining authority has
stated that by committing this grave offence in public, in broad day light, the
detenu created a sense of alarm, scare and a feeling of insecurity in the minds
of the public of the area and thereby acted in a manner prejudicial to the
maintenance of public order which affected even tempo of life of the community.
Repetition of these words in the grounds are not sufficient to inject the
requisite degree of quality and potentiality in the incident in question. A
solitary assault on one individual can hardly be said to disturb public peace or
place public order in jeopardy so much as to bring the case within the purview
of the Act. Such a solitary incident can only raise a law and order problem and
no more. Moreover, there is no material on record to show that the reach and
potentiality of the aforesaid incident was so great as to disturb the normal
life of the community in the locality or it disturbed general peace and
tranquillity. In the absence of such material it is not possible to hold that
the incident at the seminar was prejudicial to the maintenance of public order.
In Manu Bushan roy Prodhan V. State of west Bengal [(1973) 3 SCC 663: 1973 SCC
(Cri) 469], this Court held that a solitary assault on one individual, which may
will be equated with an ordinary murder which is not an uncommon occurrence, can
hardly be said to disturb public peace and its impact on the society as a whole
cannot be considered to be so extensive, widespread and forceful as to disturb
the normal life of the community, thereby shaking the balanced tempo of the
orderly life of the general public. The Court held that the detention order
which had been made for preventing the petitioner from acting in a manner
prejudicial to the maintenance of public order, was not sustainable in law. On
a careful consideration of the matter in all its aspects and having regard to
the circumstances in which the alleged incident took place on July, 29, 1989, we
are of the opinion that the solitary incident as allege din the ground of
detention is not relevant for sustaining the order of detention for the purpose
of preventing the petitioner from acting in a manner prejudicial to the
maintenance of public Order."
13. The ratio of the above decisions squarely apply to the case on hand.
In the present case, there is only one solitary incident whereby the detenu is
alleged to have committed robbery in public place and is alleged to have
threatened Alwyn and there is no material on record to show that the
potentiality of the single incident was to disturb normal life of the community
in the locality or disturb general peace and tranquillity or create a sense of
alarm and in security in area.
14. Though in the grounds of Detention, the detaining authority has stated
that by committing the offence in public, the detenu had created a sense of
alarm, the words in the Order of Detention are not substantiated by the
materials. In 2003 Supreme Court Cases (Cri) 537 cited above (in paragraph 6),
the Supreme Court has held as follows:
"6. ... there is no material on record to show that the reach and
potentiality of the single incident of robbery was so great as to disturb the
even tempo or normal life of the community in the locality or disturb general
peace and tranquillity or create a sense of alarm and insecurity in the
locality. Though in the grounds of detention, the detaining authority had
stated that by committing this offence in public the detenu created a sense of
alarm, scare and a feeling of insecurity in the minds of the public of the area
and thereby acted in a manner prejudicial to the maintenance of public order
which affected the even tempo of life of the community, but citation of these
words in the order of detention is more in the nature of a ritual rather than
with any significance to the content of the matter."
15. Applying the ratio of Darpan Kumar Sharma's case cited above, we are
of the considered view that the case of solitary incident as mentioned in the
grounds of detention does not form basis for sustaining the Order of Detention
and the impugned Order of Detention is liable to be quashed. Accordingly, the
impugned order of detention is quashed and Habeas Corpus Petition is allowed.
The detenu is directed to be set at liberty forthwith unless he is required in
connection with any other case.
asvm
To
1.The Commissioner of Police,
Tirunelveli City.
2.The Secretary to the Government,
Home, Prohibition and Excise (XIV) Department,
Chennai - 9.
3.The Inspector of Police,
Palayamkottai Police Station,
Tirunelveli District.
4.The Additional Public Prosecutor,
The Madurai Bench of
Madras High Court, Madurai.
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