BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED:20/07/2009
CORAM
THE HONOURABLE MRS.JUSTICE R.BANUMATHI
and
THE HONOURABLE Ms.JUSTICE R.MALA
H.C.P.(MD)Nos.182 to 184 of 2009
S.Kanchanadevi ... Petitioner in
all petitions
vs.
1.The Secretary to Government,
State of Tamil Nadu,
Home, Prohibition & Excise
Department,
Fort St. George,
Chennai - 600 009.
2.The District Collector & District
Magistrate,
Trichy District. ... Respondents
in all petitions
Prayer
Petitions under Article 226 of the Constitution of India praying for
issuance of a Writ of Habeas Corpus calling for the records relating to the
Detention Orders passed by the 2nd respondent in Cr.M.P.Nos.06/09 and 05/09
dated 30.01.2009 and Cr.M.P.No.08/2009 dated 08.02.2009 quash the same and
direct the respondents to produce the body of the Detenus Anandh, Chandru and
Sankar @ Kannamma respectively (now detained at Central Prison,Trichy) before
this Court and set them at liberty.
!For Petitioner ... Mr.C.M.Arumugam
^For Respondents ... Mr.P.N.Pandithurai, A.P.P.
:ORDER
R.MALA,J.
In these Habeas Corpus Petitions, the Petitioner as sister of the
Detenus, Anandh, Chandru and Sankar @ Kannamma, challenges the orders passed by
the 2nd Respondent, whereby the Detenus were detained branding them as a
"Goonda" as contemplated under Section 2(f) of the Tamil Prevention of Dangerous
Activities of Book-leggers, Drug Offenders, Forest Offenders, Goondas, Immoral
Traffic Offenders, Sand Offenders, Slum Grabbers and Video Pirates Act, 1982 (in
short "Tamil Nadu Act 14/1982).
2.The Detenus had earlier come to adverse notice in two cases,
namely crime No.243/20089 under Sections 387 and 506(ii) IPC on the file of
Thuvakudi Police Station registered on 04.12.2008 and crime No.790/2008 under
Sections 294(b), 323 and 324 IPC on the file of Tiruverumbur Police Station
registered on 05.12.2008. The ground case in crime No.835/2008 under Section
302 @ 302 r/w 114 IPC on the file of Tiruverumber P.S. was registered on the
complaint given by one Easwari W/O. Deceased Jayakumar, alleging that 27.12.2008
night at about19.45 hours, when deceased Jayakumar was in his house, the Detenus
called him and made quarrel and Chandru stabbed Jayakumar with a knife on his
head and Anandh assaulted on his head back with an Aruval. Due to the injuries,
Jayakumar died in hospital. On being satisfied that the Detenus have acted in a
manner prejudicial to the maintenance of public order committing crimes of
threatening the public on the point of deadly weapons and branding them as a
"Goonda" as contemplated under Section 2(f) of the Tamil Prevention of Dangerous
Activities of Book-leggers, Drug Offenders, Forest Offenders, Goondas, Immoral
Traffic Offenders, Sand Offenders, Slum Grabbers and Video Pirates Act, 1982 (in
short "Tamil Nadu Act 14/1982).
3. The learned counsel for the petitioner would contend that the Detenus
have involved in two adverse case and one ground case. The first adverse case
is in crime No.243/20089 under Sections 387 and 506(ii) IPC on the file of
Thuvakudi Police Station and the date of occurrence is alleged to be on on
04.12.2008, and the second adverse case is in crime No.790/2008 under Sections
294(b), 323 and 324 IPC on the file of Tiruverumbur Police Station, the date of
occurrence is allege to be on 05.12.2008. All the two adverse cases are only
against the individuals and the ground case is Tiruverumbur P.S. Crime
No.835/2008 has been registered under Section 302 @ 302 r/w 114 IPC and the
occurrence alleged to have been taken place on 27.12.2008. So, there is no
public tranquility of public order, breach of law likely to cause disturbs of
public order. To substantiate his contention, he relied upon the decisions
reported in 2008 STPL(LE)40249 SC (Bhupendra Vs. State of Maharashtra and
another) and argued that there is a vast different and in that case, it was
decided what is the breach of law and order and public order. He further relied
on the decision reported 2005 M.L.J. (Crl.) 612 (Kausalya Vs. The District
Collector and District Magistrate, Kancheepuram and another) and (2003) 2
Supreme Court Cases 313 (Darpan Kumar Sharma Alias Dharban Kumar Sharma) and
argued that the detaining authority has not applied his mind and passed the
detention orders. He further argued that the second adverse case and the ground
case are in between the relatives and there was a property dispute between the
deceased Jayakumar and the Detenus and so there is no disturbance in law and
problem, but the detaining authority has not applied his mind. Hence, the
learned counsel for the petitioner prayed to quash the detention order.
4. Per contra, the learned Additional Public Prosecutor would contend that
the Detenus were involved in two adverse cases and one ground case. The second
adverse case and ground case are in between the relatives who is adjacent house
owner of the Detenus. Because of the quarrel made in regard to the property
dispute, the occurrence have taken place. The ground case has caused
tranquility in the minds of public that has happened in a public road and hence
the detaining authority has considered all the materials and came to the
conclusion and there is no infirmity in the order passed by the detaining
authority and thus he prayed for the dismissal of these habeas corpus petitions.
5. While considering the arguments of both the learned counsel for the
petitioner and the learned Additional Public Prosecutor, the first adverse case
is against the individual and the second adverse case and the ground case are
against the relative to the Detenus is also individual.
6. In the first adverse case that has been alleged that on 04.12.2008
morning at about 09.00 hours, while one Murugan a resident of Therkumalai, an
auto rickshaw driver was in auto stand, the Detenus already known persons got
down from a bus and demanded Rs.500 and subsequently, they threatened him. The
second adverse case that has been alleged that on 05.12.2008, the Detenus closed
the main entrance of Jayakumar's house and hence Jayakumar preferred a
complaint; hence on 06.12.2008 at 8.30 hours having aruvals and wooden logs in
their hands and assaulted Jayakumar, who is the relative of Detenus.
7. In regard to the ground case, it is stated in paragraph No.3 of the
ground of detention as follows:
"........ ON 27.12.2008 night, at about 19.45 hours, when Jayakumar was in
his house, the accused Anandh and his brother Chandru called him out of his
house and made unnecessary quarrel. Thirumathi Easwari also followed them to
see their activities. After the arrival of her husband Jayakumar out of the
house, associate Chandru stabbed Jayakumar with a knife on his head, left rib
repeatedly and Anandh assaulted on his head back with an aruval. Jayakumar
raised hue and cry. Easwari also raised alarm. On hearing the noise,
Palanisami, Kadiravan, Selvendran, Thangamani came to the spot and averted the
assault. Due to the succumbed injuries, Jayakumar fell on the ground with pool
of blood. Availing the opportunity, Chandru and Anandh decamped along with
weapons. Easwari took her husband to the Government Headquarters Hospital with
the assistance of Thangamani for hospitalization. The duty medical officer, who
was in the hospital examined Jayakumar declared that he is dead. He demanded
action against them Hence, a case was registered in Tiruverumbur
P.S.Cr.No.835/2008 U/S.302 IPC."
In that circumstances, the Detaining authority arrived at the satisfaction, the
above said action affects the public, law and order and the Detenus have created
alarm and a feeling of the insecurity in the minds of the people of the area, in
which the occurrence took place.
8. Here, even though the learned Additional Public Prosecutor would
contend that the occurrence taken place in a public road. On perusal of
Observation Mahazar, which enclosed in Page No.41 of Booklet, would show that
the occurrence has been taken place in Periyar Street. While perusing the Rough
Sketch, which enclosed in Page No.43 of Booklet, it would show that it is only a
street not a public road as alleged by the learned Additional Public Prosecutor.
While perusing F.I.R, which was enclosed in Page No.40 of booklet, it was stated
that Detenus Anandh and Chandru took the deceased Jayakumar to the left side of
palanichamy's house which was situated opposite to Jayakumar's house and
inflicting injuries on his head and back and at that time, he and her wife had
raised alarm, Palanichamy, Kadhiravan, Selvendran and Thangamani came there and
prevented them and the Detenus ran away from the place of occurrence. In that
nothing has been mentioned that the occurrence has been taken place in the
public view and public place and on seeing the occurrence public in the locality
were scared and felt insecurity. So, F.I.R., Observation Mahazar and Rough
Sketch have clearly proved that the occurrence has not taken place in public
place. In the above said circumstances, there is no material on record to show
that disturbance caused panic to those who were spectators in that place, no one
was there except the deceased and his wife.
9. At this juncture, in the decision reported in 2005 M.L.J. (Crl.) 612
(Kausalya Vs. The District Collector and District Magistrate, Kancheepuram and
another), it was clearly stated what are the activities would amount only to
breach of law and order or likely to cause disturbance of public order would be
decided on the following principles:
1) The maintenance of law and order relates to the crimes committed by
private individuals. The maintenance of public order relates to the disturbance
to the even tempo of life and public tranquility and its effect upon the life of
the community in a locality;
2) Every assault in a public place resulting in the death of a victim may
cause panic to those who are spectators but that does not mean that the said
incident would cause disturbance or dislocation of the community life of the
locality, in the absence of material that the act is committed in a public place
to cause terror to the people in the locality so that they would be prevented
from following their usual avocations;
3) The impact on "public order" and "law and order" depends upon the
nature of the act, the place where it is committed and the motive force behind
it. If the act is confined to an individual without affecting the tempo of the
life of the community, it is a matter of law and order only and it may not fall
within the orbit of public order;
4) In order to bring the activity so as to show that it would affect the
maintenance of public order, there must be material to show that there has been
a feeling of insecurity among the general public;
5) The mere words in the ground of detention would not be sufficient to
inject the requisite degree of quality and potentiality to show that the
incident was so grave as to disturb the normal life of the community in the
locality in the absence of such materials.
10. The learned counsel for the petitioner would also rely upon the
decision reported in 2008 STPL(LE)40249 SC (Bhupendra Vs. State of Maharashtra
and another) and argued that the Apex Court has laid down the guidelines how the
activities of detenu to be breach of law to the public order to be decided. In
that, the Apex Court has held as follows:
"7. The crucial issue is whether the activities of the detenu were
prejudicial to public order. While the expression 'law and order' is wider in
scope inasmuch as contravention of law always affects order. `Public order' has
a narrower ambit, and public order could be affected by only such contravention
which affects the community or the public at large. Public order is the even
tempo of life of the community taking the country as a whole or even a specified
locality. The distinction between the areas of `law and order' and 'public
order' is one of the degree and extent of the reach of the act in question on
society. It is the potentiality of the act to disturb the even tempo of life of
the community which makes it prejudicial to the maintenance of the public order.
If a contravention in its effect is confined only to a few individuals directly
involved as distinct from a wide spectrum of public, it could raise problem of
law and order only. It is the length, magnitude and intensity of the terror wave
unleashed by a particular eruption of disorder that helps to distinguish it as
an act affecting 'public order' from that concerning `law and order'. The
question to ask is: "Does it lead to disturbance of the current life of the
community so as to amount to a disturbance of the public order or does it affect
merely an individual leaving the tranquility of the society undisturbed?" This
question has to be faced in every case on its facts.
8. "Public order" is what the French call 'order publique' and is
something more than ordinary maintenance of law and order. The test to be
adopted in determining whether an act affects law and order or public order,
is:Does it lead to disturbance of the current life of the community so as to
amount to disturbance of the public order or does it affect merely an individual
leaving the tranquility of the society undisturbed? (See Kanu Biswas v. State of
West Bengal (AIR 1972 SC 1656).
9. "Public order" is synonymous with public safety and tranquility: "it is
the absence of disorder involving breaches of local significance in
contradistinction to national upheavals, such as revolution, civil strife, war,
affecting the security of the State". Public order if disturbed, must lead to
public disorder. Every breach of the peace does not lead to public disorder.
When two drunkards quarrel and fight there is disorder but not public disorder.
They can be dealt with under the powers to maintain law and order but cannot be
detained on the ground that they were disturbing public order. Disorder is no
doubt prevented by the maintenance of law and order also but disorder is a broad
spectrum, which includes at one end small disturbances and at the other the most
serious and cataclysmic happenings. (See Dr. Ram Manohar Lohia v. State of Bihar
and Ors. (1966 (1) SCR 709).
10. 'Public Order', 'law and order' and the 'security of the State'
fictionally draw three concentric circles, the largest representing law and
order, the next representing public order and the smallest representing security
of the State. Every infraction of law must necessarily affect order, but an act
affecting law and order may not necessarily also affect the public order.
Likewise, an act may affect public order, but not necessarily the security of
the State. The true test is not the kind, but the potentiality of the act in
question. One act may affect only individuals while the other, though of a
similar kind, may have such an impact that it would disturb the even tempo of
the life of the community. This does not mean that there can be no overlapping,
in the sense that an act cannot fall under two concepts at the same time. An
act, for instance, affecting public order may have an impact that it would
affect both public order and the security of the State. [See Kishori Mohan Bera
v. The State of West Bengal (1972 (3) SCC 845); Pushkar Mukherjee v. State of
West Bengal (1969 (2) SCR 635); Arun Ghosh v. State of West Bengal (1970 (3) SCR
288); Nagendra Nath Mondal v. State of West Bengal (1972 (1) SCC 498).
11. The distinction between 'law and order' and 'public order' has been
pointed out succinctly in Arun Ghosh's case (supra). According to that decision
the true distinction between the areas of 'law and order' and `public order' is
"one of degree and extent of the reach of the act in question upon society". The
Court pointed out that "the act by itself is not determinant of its own gravity.
In its quality it may not differ but in its potentiality it may be very
different". (See Babul Mitra alias Anil Mitra v. State of West Bengal and Ors.
(1973 (1) SCC 393, Milan Banik v. State of West Bengal (1974 (4) SCC 504).
12. The true distinction between the areas of law and order and public
order lies not merely in the nature or quality of the act, but in the degree and
extent of its reach upon society. Acts similar in nature, but committed in
different contexts and circumstances, might cause different reactions. In one
case it might affect specific individuals only, and therefore touches the
problem of law and order only, while in another it might affect public order.
The act by itself, therefore, is not determinant of its own gravity. In its
quality it may not differ from other similar acts, but in its potentiality, that
is, in its impact on society, it may be very different.
13. The two concepts have well defined contours, it being well established
that stray and unorganized crimes of theft and assault are not matters of public
order since they do not tend to affect the even flow of public life. Infractions
of law are bound in some measure to lead to disorder but every infraction of law
does not necessarily result in public disorder. Law and order represents the
largest scale within which is the next circle representing public order and the
smallest circle represents the security of State. "Law and order" comprehends
disorders of less gravity than those affecting "public order" just as "public
order" comprehends disorders of less gravity than those affecting "security of
State". [See Kuso Sah v. The State of Bihar and Ors. (1974 (1) SCC 185, Harpreet
Kaur v. State of Maharashtra (1992 (2) SCC 177, T.K. Gopal v. State of Karnataka
(2000 (6) SCC 168, State of Maharashtra v. Mohd. Yakub (1980 (2) SCR 1158)] and
Commissioner of Police v. C. Anita (2004(7) SCC 467)."
While considering the above said citation, there is a distinction between the
areas of law and order and public order lies not merely in the nature or quality
of the act, but it is one of degree and extent of the reach of the act question
upon society. In one case, it may affect the specific individual only and
therefore it reaches problem of law and order only. While in another, it may
affect public order. But, here the ground case has not affected the public
order. In the above said circumstances, while considering the decisions, the
occurrence has not taken place in a public road, it is a street in between two
rows of houses. In F.I.R. also it was not stated that the occurrence has taken
place in a public road. Hence, it will not cause panic and insecurity in the
minds of public. So, we are of the considered view that there is no cogent
material before detaining authority to come to the conclusion that the act of
the Detenus has created panic in the minds of people of particular locality or
public in general.
11. The learned counsel appearing for the petitioner would also rely upon
the decision reported in (2003) 2 Supreme Court Cases 313 (Darpan Kumar Sharma
Alias Dharban Kumar Sharma) and the relevant portion is extracted hereunder:
"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. Thus, a solitary instance of robbery
as mentioned in the grounds 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.
In the above said case, the detenu has involved in three adverse cases under
Section 379 IPC. The ground case is that he had committed robbery of Rs.1000/-
in point of knife and disturbing even tempo of life of public since the
occurrence taken place at Tambaram Railway Station. In that, the Apex Court has
held that 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.
12. Even though the detaining authority while passing order in paragraph
No.4 of the grounds of detention order, he has stated that he was satisfied from
the materials placed before him in the ground case committing grave offence in
a public place and which cause insecurity in the nearby residential area and
traffic area, they have created alarm and a feeling of insecurity in the minds
of the general public. But while considering the documents F.I.R, Observation
Mahazar and Rough Sketch enclosed in Page Nos.40, 41 and 43 respectively in the
Book let, these would clearly prove that the place of occurrence is only a thar
road not a public road. There is no evidence to show that the occurrence has
taken place in the public view and public place and on seeing the occurrence,
public in the locality were scared and felt insecurity. Moreover, there is no
iota of evidence before the detaining authority that by committing the above
described grave crime in the nearby residential area and traffic area, they have
created alarm and a feeling of insecurity in the minds of the general public,
where the occurrence took place and thereby acted in a manner prejudicial to the
maintenance of public order.
13. In the light of the above discussion, we are of the considered view
that there was no cogent material before the detaining authority to come to the
conclusion that the Detenus have created a scene of scare and a feeling of
insecurity in the minds of the community in the locality in which the occurrence
had taken place and thereby acting in the manner prejudicial to the maintenance
of the public order.
14. As per the decision reported in 2008 STPL(LE)40249 SC (Bhupendra Vs.
State of Maharashtra and another), one crime against the individual and two
crimes against the relative, even though in the ground case, the occurrence has
taken place in thar Road as mentioned in the grounds of detention, it is not
create law and order problem and the same is not sufficient for sustaining the
order of detention for the purpose of preventing the petitioner from acting in a
manner prejudicial to the maintenance of the public order. This ground is
enough to quash the orders of detention made by the respondents.
15. Accordingly, the Habeas Corpus Petitions are allowed and the impugned
orders of detention in Cr.Mp.Nos.06/09 and 05/09 dated 30.01.2009 and
Cr.M.P.No.08/2009 dated 08.02.2009, are quashed. The Detenus are directed to be
released forthwith, unless their presence is required, in accordance with law,
in connection with any other case.
arul
To:
1.The Secretary to Government,
State of Tamil Nadu,
Home, Prohibition & Excise
Department,
Fort St. George,
Chennai - 600 009.
2.The District Collector & District
Magistrate,
Trichy District.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
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