Maheswari v. The Commissioner of Police, Madurai City, Madurai and another
2004-11-17
P.D.DINAKARAN, S.R.SINGHARAVELU
body2004
DigiLaw.ai
S.R.Singharavelu, J.: The petitioner is the wife of the detenu and she challenges the order of detention dated 16.7.2004, passed by the first respondent under the provisions of Tamil Nadu Act 14 of 1982, detaining him, after he was identified as a Goonda, since he had come to the adverse notice of the authorities on earlier occasions and that on 28.6.2004, he acted in a manner prejudicial to the maintenance of public order and that if he is let to remain at large, he will indulge in activities prejudicial to the maintenance of public order and therefore, there is a compelling necessity to detain him under the provisions of Tamil Nadu Act 14 of 1982. 2. The occurrence of the ground case was said to have been taken place at 4 p.m. on 28.6.2004. One Thiru Selvam was coming by walk near Bharathiar Nagar, Alagappan Nagar, Muthupatti main road. At that time, the detenu came there in a Hero Honda Motor cycle, threatened the informant (Thiru Selvam), attempted to take money from his shirt pocket and when Thiru Selvam defended, he took out a knife from his waist and pressed it and threatened the informant by shouting that if he moved, he will be murdered. It was further alleged that the detenu robbed Rs.310 from the shirt pocket of Thiru Selvam and he was warned that he will be murdered if he disclosed the incident to anyone. Then the detenu proceeded towards Muthupatti in the motor cycle. It is upon the statement of Thiru Selvam, the case was registered in Cr.No.878 of 2004, under Sec.397, I.P.C. by the Station House Officer of B-8, Subramaniapuram (Crime) Police Station. During the narration of the above event, it was also mentioned that since there was no one present threre, Thiru Selvam was unable to seek anyone’s help. 3. After having gone through the adverse cases and the ground case, in paragraph 6 of the detention order, the Detaining Authority has found himself satisfied that the detenu was involved in all the adverse cases and the ground case and that he was habitually committing the crimes and was also acting in a manner prejudicial to the maintenance of public order and as such, he was termed as a Goonda, as contemplated under Sec.2 (i) (f) of Tamil Nadu Act 14 of 1982. 4.
4. The learned counsel for the petitioner submitted that there was no averment by the detaining authority in the detention order to arrive at the above conclusion that the detenu acted in a manner prejudicial to the maintenance of public order. According to him, there might have been prejudice to the maintenance of law and order, which is quite different from prejudicial activity to the maintenance of public order. The learned counsel further submitted that for clamping detention order against a detenu, there must be subjective satisfaction on the part of the detaining authority that the detenu acted in a manner prejudicial to the maintenance of public order and it is not sufficient to show prejudicial activities against the maintenance of law and order. 5. Even in the narration of the ground case, it was specifically mentioned by the detaining authority that as there was no one present around, the informant was unable to seek anyone’s help. The question posed by the learned counsel was that while the material relied on showed that there was none around the place of occurrence to help the informant, how could there be a subjective satisfaction on the part of the detaining authority to conclude that the base case amounted to prejudice to the maintenance of public order. When there was no public at all, there is no need to hold that public order was disturbed. Thus the order of detention was assailed. 6. The learned Public Prosecutor relied upon the following observation made in the case of S.Mohammed Meran, Chennai v. State of Tamil Nadu, represented by its Secretary to Government, Prohibition and Excise Department, Chennai and another, 2004 M.L.J. (Crl.) 739: “A public road is meant to be used by the members of the public. The very fact that only a few persons use the road is not a consideration for coming to the question as to whether any criminal occurrence occurring on such road would not have the tendency of disturbing the public order.” 7. That was a case wherein the occurrence took place in the East Coast Road, which is undisputedly a public road. It was held that the fact that only a few persons used the road by then, was not a consideration to arrive at a conclusion that any criminal occurrence occurring on such road would not have the tendency of disturbing the public order.
It was held that the fact that only a few persons used the road by then, was not a consideration to arrive at a conclusion that any criminal occurrence occurring on such road would not have the tendency of disturbing the public order. Thus even the tendency of disturbing the public order was also taken into consideration and it was held that such tendency would be sufficient for the detaining authority to have thought of an activity prejudicial to the maintenance of public order. Although any criminal occurrence in a public road by itself may not be sufficient to hold that it would be an activity prejudicial to the maintenance of public order, that occurrence in a public place with a particular type of surrounding circumstances may lead to an undoubted perception that it may amount to tendency of disturbing public order or that there would be a prospective disturbance in public order. In assessing the surrounding circumstance, it is for a moment that we have to sit in the arm chair of the detaining authority and consider whether or not such circumstance that prevailed while the happening of the criminal occurrence in public place would make us to conclude that it amounted to an activity prejudicial to the maintenance of public order. 8. In the above case of the instant case, the occurrence took place at 4 O’ clock in the evening and the place is near Bharathiar Nagar, Alagappan Nagar, Muthupatti Main Road where normally public would have access in plenty. Simply because at one particular moment there was no passer-by, by way of sound reasoning can we come to the conclusion, so as to perpetuate the picture of scene of occurrence in that particular moment, that is to say, as against the normal expectancy of movement in plenty of vehicles and passers-by in public road in the peak hours of the day, the momentary barren look of road may not leave an impression that it was not a busy locality of public access. May be that the detaining authority would not have described the above details in the order of detention and that is also not possible in many a times. But we can perceive the moment in his minds in a given situation like this and that perception can be acquired in sitting in the arm chair of the authority.
May be that the detaining authority would not have described the above details in the order of detention and that is also not possible in many a times. But we can perceive the moment in his minds in a given situation like this and that perception can be acquired in sitting in the arm chair of the authority. Instead of comparing material in the base case with the findings of the detaining authority, so mechanically as an examiner does we have to take the whole of the situation and also to read the perception of the detaining authority by sitting in his arm chair and that is only in order to successfully testify the correctness of process of his derivation to the conclusion. 9. Here is a case, where there is conviction particulars of the detenu, registered in and around the limits of Karipatti Police Station to show that there were 83 cases registered against this detenu, most of which ended in conviction. There are also numerous cases under investigation. In the backdrop of such criminal record of the detenu, if we are going to rely upon the momentary dearth of road users in the place of occurrence to conclude that the process of subjective satisfaction of the detaining authority was not correct in holding that the activity of the detenu was prejudicial to the maintenance of public order, then the legislative intention of Act 14 of 1982 will get defeated. That is why we have already held that before scrutinising the factor of subjective satisfaction of the detaining authority, at times, we may also have to sit on his arm chair and evaluate the totality of the circumstances without actually going into the justification or the probabilities of the fact of occurrence of the ground case. We are mostly concerned with the given particulars in the base record and whether such material was unscrupulously scrutinized by the detaining authority in arriving at the particular subjective satisfaction is the relevant factor. If he perceives yes, then that is the end of the matter. It is in the light of the above perception, by sitting in the arm chair of the detaining authority, we feel that there is no matter to invalidate the order of detention. 10. For the reasons stated above, this Habeas Corpus Petition fails and the same is dismissed.
If he perceives yes, then that is the end of the matter. It is in the light of the above perception, by sitting in the arm chair of the detaining authority, we feel that there is no matter to invalidate the order of detention. 10. For the reasons stated above, this Habeas Corpus Petition fails and the same is dismissed. P.D.Dinakaran, J.: While respectfully agreeing with the reasons and the conclusions recorded by my brother S.R.Singharavelu, J. in his opinion, I however, consider it necessary to supplement his reasons for the conclusion reached by us as hereunder. 12. Sec.2(a)(iii) defines the acting in any manner prejudicial to the maintenance of public order in the case of Goondas as follows: "2. Definitions:In this Act, unless the context otherwise requires - (a) "acting in any manner prejudicial to the maintenance of public order" menas - (i) ... (ii) ... (ii-A) ... (iii) in the case of a goonda, 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; (iv) ... (v) ... Explanation: For the purpose of this clause (a), public order shall be deemed to have been affected adversely, or shall be deemed likely to be affected adversely,inter alia, if any of the activities of any of the persons referred to in this clause (a) directly or indirectly, is causing or calculated to cause any harm, danger or alarm or a feeling of insecurity, among the general public or any section thereof or a grave or widespread danger to life or public health (or ecological system). (b) ... (c) ... (d) ... (e) ... (f) ... (g) ... (g) ... (h) ... (i) ... 13. The explanation referred to under Sec.2(a)(iii) makes it clear that any activity which will directly or indirectly cause a feeling of insecurity among the general public or any section thereof, will amount to an act prejudicial to the maintenance of public order. 14. It is a settled law that when the language of the provision is plain and unambiguous, there exists a presumption that the legislature has not used any superfluous words, vide Nasiruddin v. Sita Ram Agarwal, (2003). 15.
14. It is a settled law that when the language of the provision is plain and unambiguous, there exists a presumption that the legislature has not used any superfluous words, vide Nasiruddin v. Sita Ram Agarwal, (2003). 15. In this parameter, unable to ignore the plain language that the activity of the detenu causing a feeling of insecurity among the general public would certainly attract an act prejudicial to the maintenance of public order. It was only because of such activity of the detenu viz., causing a feeling of insecurity among the general public, the public at the scene of occurrence, fled away and there were none around the scene of occurrence to help the informant. Such a background of the ground case, therefore, in our considered opinion, cannot be either presumed in favour of the detenu or ignored against the object of the legislation viz., maintenance of public order. 16. We are, therefore, unable to appreciate the contention of the learned counsel for the detenu that there were none around the scene of occurrence to help the informant and therefore the detenu has not caused any disturbance to maintenance of public order, for the reason that even an activity, violating the ordinary legal provision, viz., causing a feeling of insecurity among the general public and thereby rendering them to flee away from the scene of occurrence, inasmuch as, the magnitude of the attitude of the detenu and its effect on the even tempo of the society at large, much less the section of the society in question, was prejudicial to the maintenance of public order.