In the High Court of Judicature at Madras
Dated: 24/09/2003
Coram
The Hon'ble Mr. Justice V.S. SIRPURKAR
and
The Hon'ble Mr. Justice AR. RAMALINGAM
H.C.P. No. 2531 of 2002
K. Jayaraman,
1/62, Jawahar Nagar,
Salem City and District. ... Petitioner
-Vs-
1. The Commissioner of Police,
Salem City,
Salem District.
2. The Secretary to Govt.
of Tamil Nadu,
Prohibition & Excise Dept.
Fort St. George,
Madras 600 009. ... Respondents
Petition under Article 226 of the Constitution of India praying for
issuance of a writ of habeas corpus directing the respondents to produce the
detenu namely Vakkil Kandasamy @ Kandasamy before this Hon' ble Court who is
detained as per the order of detention passed by the first respondent in
C.M.P. No: 40/Goondas/2002 dated 17.11.2002 and confined at Central Prison,
Salem and set him at liberty and further direction to call for the records and
set aside the same.
!For petitioner : Mr.K. Manivasakam
^For respondents : Mr.A. Navaneethakrishnan
Addl. Public Prosecutor.
:O R D E R
(Order of the Court was
made by V.S. SIRPURKAR, J.)
The order dated 17.11.2002 passed by the Commissioner of Police,
Salem, dubbing one Vakkil Kandasamy @ Kandasamy S/o. Kulandaivelu as a
“Goonda” and directing his detention under Section 3(1) of the Tamil Nadu
Prevention of Dangerous Activities of bootleggers, Drug Offenders, Forest
Offenders, Goondas, Immoral Traffic Offenders and Slum Grabbers Act, 1982
(Tamil Nadu Act 14 of 1982) is challenged in this petition. The said person
is suggested to have been involved in a criminal case and also in an incident
dated 7.10.2002 involving murder of one Kumar, which took place in Shanmugha
Nagar at about 10’o clock at night at 6.10.2002.
2. The fact suggests that, on that date, one Manickam came and
reported before the police that he had three sons Kumar, Rajendran and
Thangaraj and his daughter Alamelu was married to one Boopathi. However, the
said Alamelu came back leaving her husband and started staying with one Kannan
S/o. Raju and from that time the relationship between the families of
Manickam and Kannan became strained. It was pointed out that on account of
his sister’s behaviour and on account of Kannan staying with his sister, Kumar
was irritated and he requested Kannan to send back his sister Alamelu and on
that count enmity between Kumar and Kannan prevailed and there used to be
petty quarrels. Kumar was also given some threats by one Vakkil Kandasamy,
the detenu herein and Durai, who were the supporters of Kannan. The grounds
further suggests that Kumar was also beaten up by Vakkil Kandasamy, detenu,
and Durai and there was a compromise effected between them by panchayatdars.
3. On the fateful day, when Kumar went for his salary to his master,
he did not return till 10.00 p.m. and it turned out that he had been seen in
the company of Vakkil Kandasamy, Durai and Kannan. When he was not found even
after enquiring with these persons, the body of Kumar was found on the vacant
land on the backside of E.B. Office close to a footpath. It was stated that
on this count, on seeing the murder, public alarm was caused and the
tranquility was disturbed.
4. The detaining authority has also taken into consideration the fact
that all these persons viz. Vakkil Kandasamy, the detenu, Kannan and Durai,
were rowdies having been involved in offences earlier. A further reference
has been made to the investigation into the murder of Kumar and the fact that
Kumar was murdered at about 10’o clock at night by five persons including
Vakkil Kandasamy, the detenu.
5. The learned counsel for the petitioner Mr.K.Manivasakam argues
that there was no disturbance to the public order and the ground case, at the
most, can be described only to be a disturbance to the law and order
situation. He points out that the murder took place at night and, therefore,
there was no question of the said murder being seen by anybody and, for that
matter, there being any alarm on account of the murder. He, therefore, relied
on the judgments of the Supreme Court reported in J.T. 2003 (1) S.C.C. 176
(Darpan Kumar Sharma @ Dharban Kumar Sharma vs. State of Tamil Nadu and
others) and A.I.R. 1988 SC 1013 (Smt. Tarannum vs. Union of India and
others). He also relied on the judgment reported in 1991 Law Weekly Criminal
463 (S. Subash Babu and another vs. State of Tamil Nadu and another) as also
on an unreported judgment of this Court made in H.C.P. No: 1274 of 1998
decided on 17.3.1999 by N.DHINAKAR and V. BAKTHAVATSALU, JJ.
6. As against this, the learned Additional Public Prosecutor points
out that these persons and more particularly the detenu was a known rowdy in
the locality and he was involved in number of incidents earlier also; this was
a small area where all these persons were dreaded and therefore, obviously the
murder which was committed at about 10’o clock at night was not a secret
affair. According to the learned Additional Public Prosecutor, the said
murder took place at a public place near a foot path and there was material on
record, in the shape of the statements of several witnesses under Section 161
of Cr.P.C., to suggests that on account of this murder, an atmosphere of
terror prevailed in the whole area and the whole area became tensed for a
considerable span of time.
7. We will have to, therefore, see as to whether this incident was
sufficient and whether there was any material before the concerned authorities
to come to the conclusion that the incident had caused prejudice to the public
order prevailing in the locality.
8. It must be at once seen that the murder was done in a very
gruesome manner which is clear from the whole prosecution case stated in the
grounds. The place was a public place and near a foot path in a busy locality
where there would be some activity, this being an urban area of Salem, a city
which is thickly populated and for which a Corporation is established. It is,
therefore, not unlikely that there was an alarm in the whole locality
particularly, because of this dare devil act of murder on the part of the
accused persons, one of whom was the detenu. We are, therefore, convinced
that the detaining authority had every reason to hold that there was a
disturbance to the public order.
9. In A.I.R. 1998 S.C. 1013 (Smt. Tarannum vs. Union of India and
others), to which we have already made a reference, the Supreme Court in
paragraph 6, has given certain examples of the situation which could have an
effect on the public order. Amongst them, the Supreme Court suggests, a
repetition of the criminal act by a dare-devil, open shoot out, throwing bomb
at public places, committing serious offences in public transport, armed
persons going on plundering public properties or terrorising people may create
a sense of insecurity in the public mind and may have an impact on ‘public
order’. The Supreme Court has further observed that,
“Even certain murder committed by persons in lonely places with the definite
object of promoting the cause of the party to which they belong may also
affect the maintenance of ‘public order’.”
In the case on hand, there is no question of any party being involved. But
the fact remains that there was enmity between Kumar on the one side and the
detenu and his friends on the other side. The detenu enjoys a reputation as a
rowdy which is clear from the fact that he was involved in as many as three or
four serious criminal cases.
10. We, therefore, are of the opinion that even if this detention is
on account of the incident dated 6.10.2002, there was every material available
to the detaining authority to come to the conclusion that there was
disturbance to the public order.
11. The learned counsel for the petitioner invited our attention to
the decision reported in JT 2003 S.C. 176. That was a case of looting at a
point of knife. In that case, the Supreme Court observed that,
” 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.”
The only case, robbery of Rs.1,000/- at the point of knife, was not held to be
a sufficient ground to affect the public order. The Supreme Court held in
that case that the detenu therein was involved in three cases under Section
379 which were not relating to the public order and there was only a solitary
incident where the detenu was said to have robbed a person in a public place.
In our opinion, the facts in the case in hand are entirely different. In this
matter, the detenu was said to have been involved in the cases involving
offences under Sections 341, 307, 506 (ii) and was also charged of being in
unlawful assembly, being the member of the unlawful assembly and being armed
in that assembly. Thus, he was charged with offences under Section 148 and
324 read with Section 506 of I.P.C. He was also involved in offences under
Section 387 i.e. robbery and ultimately the offence of murder which was
committed on the public place. In that view, the case on hand has to be
distinguished on the facts.
12. In the unreported judgment in H.C.P. No: 1274 of 1998, the case
turned on an entirely different issue. There, the Court gave a finding that
there was not enough material to suggest that there was disturbance to the
public order. There was a statement given by one witness Mehrunnisa under
Section 161 of Cr.P.C. and beyond that, there was no material to hold that
tensed situation prevailed in the locality. That is not the case here. Here,
there are number of statements available which suggests that because of the
murder in the public place, the normal tempo of the public life was disturbed.
In that view, we would be slow to hold that there was no disturbance to the
public order. In so far as the law laid down by this Court in 1991 Law
Weekly Criminal 463 (S. Subash Babu and another vs. State of Tamil Nadu and
another) is concerned, that is also a decision about difference between law
and order and public order and that was also a case where the detenu was
involved in looting in the public place. As we have already pointed out there
is a subsequent judgment by the Supreme Court to which we have made a
reference. We would choose to go by the subsequent pronouncement.
13. In that view, there was enough material before the detaining
authority to come to the conclusion that the activities of the detenu were
sufficient to cause prejudice to the public order and, therefore, the
detaining authority was justified in ordering his detention. The writ
petition is dismissed.
Index : Yes
Website: Yes
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To
1. The Commissioner of Police,
Salem City,
Salem District.
2. The Secretary to Govt.
of Tamil Nadu,
Prohibition & Excise Dept.
Fort St. George,
Madras – 9.