Rengasamy vs State of Tamil Nadu

R. Mala, J.—In this Habeas Corpus Petition, the Petitioner as a father of the Detenu, Elumalai, challenges the order passed by the 2nd Respondent, whereby the Detenu was detained branding him as a "Goonda" as contemplated u/s 2(f) of the Tamil Prevention of Dangerous Activities of Bookleggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Sand Offenders, Slum Grabbers and Video Pirates Act, 1982 (in short "Tamil Nadu Act 14/1982).

The detenu had earlier come to adverse notice in three cases, namely crime No. 518/2006 u/s 366(A) @ 376 IPC on the file of Samayapuram Police Station, crime No. 460/2007 u/s 41(d) r/w 102 Cr.P.C @ 65 MCP Act on the file of Contonment Police Station and crime No. 459/2007 u/s 41 and 102 Cr.P.C @ 379 IPC on the file of the Samayuapuram Police Station. The ground case in crime No. 309/2008 u/s 392 IPC on the file of the Sirunagar P.S. was registered on the complaint given by one Rajasekaran alleging that his TVS Suzuki two wheeler Motor cycle bearing Registration No. TN 45-V-9245, stopped near bridge inTrichy-Chennai National Highway to attend the nature call, the accused came with an iron rod, threatened them and demanded money and since he refused to give money the detenue/accused Elumalai put his hand into Rajasejkaran''s pocket and took Rs. 200 and also the TVS Suzuki vehicle. On being satisfied that the Detenu has 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 him as a �Goonda� as contemplated u/s 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).

The learned Counsel for the petitioner would contend that the Detenu has involved in three adverse case and one ground case. The first adverse case is in crime No. 518/2006 u/s 366(A) @ 376 IPC on the file of Samayapuram Police Station and the date of occurrence is alleged to be on 18.07.2006; the next adverse case is in crime No. 460/2007 u/s 41(d) r/w 102 Cr.P.C @ 65 MCP Act on the file of Contonment Police Station and the date of occurrence is alleged to be on 05.05.2007 and the last adverse case in crime No. 459/2007 u/s 41 and 102 Cr.P.C @ 379 IPC on the file of the Samayapuram Police Station and the date of occurrence is alleged to be on 11.10.2007. All the three adverse cases are only against the individual and the ground case is Sirunagar P.S. Crime No. 309 of 2008 has been registered u/s 392 IPC and the occurrence alleged to have been taken place on 18.09.2008. 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) 1 MLJ (Crl.) 318 (Mannar @ Ezhilarasan @ Suresh @ Arif v. State of Tamil Nadu rep. by its Secretary to Government Prohibition and Excise Department, Fort St. George, Chennai 9 and Anr.), 2005 M.L.J. (Crl.) 612 (Kausalya v. The District Collector and District Magistrate, Kancheepuram and Anr.) and Darpan Kumar Sharma @ Dharban Kumar Sharma Vs. State of Tamil Nadu and Others, . Hence, the learned Counsel for the petitioner prayed to quash the detention order.

Per contra, the learned Additional Public Prosecutor would contend that the detenu was involved in three adverse case and one ground case. The two adverse cases are theft and the ground case has caused tranquility in the minds of public that has happened in National Highway 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 the habeas corpus petition.

While considering the arguments of both the learned Counsel for the petitioner and the learned Additional Public Prosecutor, it is true that in all the three adverse cases, first adverse case in respect of kidnapping a minor girl and the case is against the individual due to love affairs.

In the second adverse case that has been alleged theft of Yamaha motor cycle and in that it was stated that another two wheeler TVS Star City bearing Registration No. TN-46-E-2958 involved in Contonment P.S. Cr. No. 458/07 u/s 379 IPC was also seized from the accused. The second adverse case was initially registered u/s 41(d) r/w 102 Cr.P.C and subsequently, the same was altered in to 65 MCP Act.

The third adverse case also, even though registered u/s 41 and 102 Cr.P.C, the same was subsequently altered into 379 IPC. Likewise, the third adverse case is registered only u/s 379 IPC.

In regard to the ground case, it is stated in paragraph No. 3 of the ground of detention as follows:

On 18.09.2008 at about 4.00 hours, Rajasekaran proceeded to Trichirappalli along with his brother Santhakumar in his TVS Suzuki two wheeler Motor cycle bearing Registration No. TN-45-V-9245, while they were proceeding near Konalai Malaimatha kovil, Rajasekaran stopped the vehicle near bridge,, Malaimatha temple, Konalai in Tiruchirappalli-Chennai N.H.road and attended the natural call. At that time, the accused Elumalai came there with an iron rod, threatened them and demanded money. Rajasekaran replied that he had no money. Enraged at this, the accused Elumalai put his hand into Rajasekaran''s pocket and took Rs. 200/-. The accused Elumalai took the TVS Suzuki two wheeler from them and left from that place towards Kalpalayam road. Rajasekaran and Santhakumar went to Malaimatha temple and told the matter to the persons sleeping in the temple. they were informed that Elumalai is habitually involving in such robbery and were advised to give a complaint to the police. The situation created robbery and were advised to give a complaint to the police. The situation created panic amount the public. In this connection, a was registered in Sirunagar P.S. Cr.No. 309/2008 u/s 392 IPC.

In that circumstances, the Detaining authority arrived at the satisfaction, the above said action affects the public, law and order and the detenu has created alarm and a feeling of the insecurity in the minds of the people of the area, in which the occurrence took place.

In the decision reported in 2005 M.L.J. (Crl.) 612 (Kausalya v. The District Collector and District Magistrate, Kancheepuram and Anr.), 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 qualityand 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.

Here, as per the paragraph NO. 3 of grounds of detention, when in a National Highway, the complaint Rajasekaran stopped his vehicle and attended nature''s call, at that time, the accused alleged to have demanded money from him and since he has refused to pay the same, the detenu/accused took Rs. 200/- from the complaint''s pocket and took the vehicle by threatening with an iron rod and left from the place. In the above said circumstances, there is no material on record to show that disturbance caused panic to those who were spectators and in that place, no one was there except the complainant and his brother. Hence even though the act was committed in a National Highway does not appear to have caused any insecurity in the community.

It is stated in the decision relied upon by the learned Counsel appearing for the petitioner reported in (2008)1 MLJ (Crl.) 318 (Mannar @ Ezhilarasan @ Suresh @ Arif v. State of Tamil Nadu rep. by its Secretary to Government Prohibition and Excise Department, Fort St. George, Chennai 9 and Anr.) from one single transaction through consisting of several acts, a habit cannot be attributed to a person and the satisfaction of the detaining authority that the detenu is committing the crime and habitually acted in a manner prejudicial to the maintenance of public order cannot be sustained.

Here the second adverse case has been altered from 41(d) r/w 102 Cr.P.C is altered into Section 65 MCP Act and the third adverse case is also altered from Section 41 and 102 Cr.P.C into Section 379 IPC and the ground case is only u/s 392 IPC that has been committed in a National Highway. The relevant portion of the above said decision is as follows:

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. As rightly pointed out by the learned Counsel for the petitioner, in the instant case, the adverse cases relate to the offence punishable under Sections 457, 380 and 511 IPC, whereas there is only one solitary instance, viz., the ground case, where the detenu had robbed in the public. In view of the decision in R. Kalavathi v. State of Tamil Nadu (supra), from one single transaction, though consisting of several acts, a habit cannot be attributed to a person, and the stand taken by the detaining authority that the detenu is habitually committing crime and acted in a manner prejudicial to the maintainable of public order cannot be sustained. Moreover, 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 tranquility or create a sense of alarm and insecurity in the locality. We are of the considered opinion that the ratio laid down in Darpan Kumar Sharma''s case, (supra), squarely applies to the case on hand.

Here also, the occurrence alleged to have taken place at 4.00 P.M. At that time, except the complainant Rajasekaran and her brother no one was there and it cannot be said that the act of the detenu/accused has created any alarm and insecurity for the public. Hence we respectfully agree with the ratio decidends laid down in the above citation.

The learned Counsel for the petitioner would also rely upon the unreported decision rendered by this Court in H.C.P(MD)No. 491 of 2008 dated 11.11.2008, wherein it had held as follows:

The criminal cases are confined to certain private individuals and it is merely a law and order problem and it has nothing to do with maintenance of public order. Its reach and effect are not so deep as to affect the public at large. It does not create or tend to create any panic in the minds of people of a particular locality or public in general nor it affects adversely the maintenance of public order. An act may create a law and order problem but such an act does not necessarily cause an obstruction to the maintenance of public order.

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.

Considering the above said citation even though the detaining authority has mentioned the ground in paragraph No. 4 of the ground of detention, there is no cogent material to come to the conclusion that the act of the detenu has created panic in the minds of people of particular locality or public in general.

The learned Counsel appearing for the petitioner would also rely upon the decision reported in Darpan Kumar Sharma @ Dharban Kumar Sharma Vs. State of Tamil Nadu and Others, 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 gthe 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 u/s 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, a solitary instance of robbery as mentioned in the grounds of detention is not relevant for sustaining the order of detention. The above citation is squarely applicable to the facts of this case. Here also, the detenu was involved in one case u/s 376 IPC and another case u/s 379 IPC and the third case u/s 65 MCP Act and the only ground case u/s 392 IPC.

In the light of the above discussion, we are of the considered view that there is no cogent material before the detaining authority to come to the conclusion that the detenu has 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.

As per the decision reported in Darpan Kumar Sharma @ Dharban Kumar Sharma Vs. State of Tamil Nadu and Others, , the solitary instance of the robbery in National Highway as mentioned in the grounds of detention is not relevant 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 order of detention made by the respondents.

Accordingly, the Habeas Corpus Petition is allowed and the impugned order of detention in Cr.Mp. No. 50/2008 dated 16.10.2008, is quashed. The Detenu is directed to be released forthwith, unless his presence is required, in accordance with law, in connection with any other case.