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2005 DIGILAW 1771 (MAD)

Kumar @ Settu v. State of Tamil Nadu & Another

2005-11-15

M.THANIKACHALAM, R.BALASUBRAMANIAN

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Judgment :- (PRAYER : Petition under Article 226 of the Constitution of India seeking to issue a writ of habeas corpus calling for the records in connection with the Detention Order passed by the second respondent in C3. Tha. Ka. Order No.8 of 2005, quash the same and direct the respondents to produce the body of the detenu Kumar @ Settu, son of Vellaiyan of Vazhapanthal Village, Alleri Hills, Vellore Taluk & District (Detenu No.T.P.D.A. 4817), now detained in the Central Prison, Thorapadi, Vellore.) M. Thanikachalam, J. The detenu himself is the petitioner. 2. The second respondent herein, branding the petitioner as a 'Goonda', ordered him to be detained under Tamil Nadu Act 14 of 1982 by the order of detention dated 29.4.2005, which is under challenge in this writ petition. 3. Mr. R. Margabandhu, learned counsel appearing for the petitioner would contend, that the order of detention is vitiated by non-application of mind on the part of the detaining authority and the reason assigned is that in the order of detention, the name of the detenu is shown as Kumar @ Settu, whereas in the First Information Reports pertaining to the adverse cases as well as the ground case, his name is mentioned only as 'Kumar' and not 'Kumar @ Settu'. This being the position, without seeking clarification even regarding the identity of the detenu by correct name, the detaining authority, passed an order of detention, which would disclose he has not applied his mind, as to how the detenu was named as Kumar @ Settu at a later point of time. In support of the above contention, learned counsel for the petitioner took us through the statement recorded by the Investigating Officer as well as the Wound Certificate issued by the Doctor when the victim was produced for medical examination. 4. On the other hand, Mr. Abudukumar Rajarathinam, learned Government Advocate would contend that when some of the witnesses were examined on 7.3.2005, the name of the detenu was disclosed as Kumar @ Settu and only on that basis, the detenu was identified as Kumar @ Settu, though his name is shown only as Kumar in the original F.I.R. and this being the position, when these statements are available, the detaining authority, applying his mind, had passed the order of detention, which is liable to be sustained. 5. 5. The detenu is shown in the detention order as well as in the grounds of detention dated 29.4.2005 as "Kumar @ Settu". The first adverse case came to be registered on 5.3.2005 in Cr.No.130/2005 in Pallikonda Police Station for the incident that had taken place at about 5.30 p.m. on 4.3.2005 for the alleged offences under Sections 324 and 323 I.P.C. As seen from the booklet, in the F.I.R., the accused name is shown only as Kumar (A-3) though the first accused is named as Settu. Nowhere even in the body of the F.I.R. any whisper has been made that this accused is known as Kumar @ Settu, giving father's name also. The second adverse case came to be registered in the same police station in Cr.No.131/2005 on 6.3.2005. The F.I.R. produced also would indicate that the third accused therein is only as 'Kumar' and not 'Kumar @ Settu' or describing him with father's name so as to have easy identification, irrespective of alias name. The ground case came to be registered on the same day at about 8.30 p.m. (night) in Cr.No.132/2005 in the same police station. Here also, as seen from the F.I.R. copy, the detenu's name is not given with alias name, whereas it is mentioned only as Kumar. In the body of the F.I.R. also, no reference has been made regarding the alias name. On the basis of the above materials alone, the learned counsel for the petitioner would contend that when there is no material to identify the detenu as Kumar @ Settu, whereas the material would disclose that the accused involved in all the above three cases is only Kumar, the detention order labeling Kumar @ Settu must be only non application of mind by the detaining authority, that too when he has not sought for any clarification from the sponsoring authority. 6. In support of the above submissions, the learned counsel for the petitioner, Mr. Margabandu invited our attention to a decision of this Court in Sekar @ Karadi Sekar vs. Commissioner of Police, Greater Chennai, Chennai, reported in 2005 M.L.J. (Crl.) 1069. In the case involved in the above decision also, it is shown that there was some discrepancy regarding the identity of the accused therein. Margabandu invited our attention to a decision of this Court in Sekar @ Karadi Sekar vs. Commissioner of Police, Greater Chennai, Chennai, reported in 2005 M.L.J. (Crl.) 1069. In the case involved in the above decision also, it is shown that there was some discrepancy regarding the identity of the accused therein. Though in the F.I.R., it was mentioned that the name of the accused as Ramu @ Sekar @ Karadi Sekar, in the statement given by the doctor as well as in the accident register, it was mentioned that two unknown persons assaulted the complainant, which was not properly explained. This Court considering the discrepancy, that when the F.I.R. had disclosed the name of the accused, the statement given by the doctor as well as the Accident Register does not disclose the assailants as known persons, has held that the detention order came to be passed without application of mind by the detaining authority. However, considering the factual situation shown in this case as well as two other decisions of this Court, we are of the of the considered opinion, that the above said case fails to come to the aid of the petitioner, to quash the order of detention as vitiated. 7. Countering the submission made by the learned counsel for the petitioner, based upon the decision in Sekar @ Karadi Sekar, the learned Government Advocate also brought to our notice two decisions of this Court in H.C.P.No.1124/99 dated 9.12.1999 (Siva @ Sivakumar vs. State of Tamil Nadu) and H.C.P.No.938 of 2003 dated 20.11.2003 (Joseph @ Joe) vs. Secretary to Government of Tamil Nadu). 8. In the case involved in H.C.P.No.1124/99, there was a discrepancy regarding the identity of the detenu, as to whether he is known or unknown. It was contended in that case, that the complainant had referred the accused as only two unknown persons before the Doctor, whereas in the F.I.R., the name of the detenu was found to be mentioned. When this point was raised, a division bench of this Court has taken the view that, "We are unable to accept this contention. It is not for the medical officer to find what is the truth or decide about the merits of the case. Nor the detaining authority is concerned with the veracity of the statement made by the injured before the medical officer. It is not for the medical officer to find what is the truth or decide about the merits of the case. Nor the detaining authority is concerned with the veracity of the statement made by the injured before the medical officer. Nor it is his duty to find out the truth in all that he has to consider is whether there are materials to hold that the activities of the detenu is prejudicial to the maintenance of public order and whether he is habitually involved in the offences." thereby rejected the above said ground, which is convincing, appealable to us. 9. In H.C.P.No.938/2003, there was some discrepancy in the statement given by the victim when compared to the statement found in F.I.R. On the basis of the said discrepancy, the detention order was sought to be assailed and a division bench of this Court has held as follows: "Learned counsel for the petitioner has also submitted that there is discrepancy in the statement given by the affected witness when compared to the statement found in the F.I.R. The order of detention is based on the subjective satisfaction of the detaining authority. Such order is not to be objectively assessed by the High Court while deciding the matter in a petition for Habeas Corpus. Discrepancy, if any, may be considered at the time of trial, but while considering the question of validity of detention, the High Court cannot shift materials to find fault with the order of detention.", which is to be followed by considering the facts and circumstances of the case also. 10. As indicated above, there are three decisions more or less on the same point – one in favour of the detenu and two in favour of the State. It appears to us that when H.C.P. No.350 of 2005 (Sekar @ Karadi Sekar vs. Commissioner of Police, Greater Chennai, Chennai) was decided by the Division Bench of this Court, the earlier two Division Bench orders, which we have referred to above, were not brought to the notice of the latter Bench. Following the above said two decisions and considering the factual position in this case also we are inclined to follow the aforesaid two decisions, which are in favour of the State, since the reasons assigned therein are appealable and acceptable to us. Following the above said two decisions and considering the factual position in this case also we are inclined to follow the aforesaid two decisions, which are in favour of the State, since the reasons assigned therein are appealable and acceptable to us. In the light of the above discussion, we are of the considered opinion that the discrepancy found in the F.I.R. as well as the discrepancy pointed out as mentioned in the Accident Register will not vitiate the order of detention. 11. Learned counsel for the petitioner would next contend that the translated copy of the remand order is defective and on this ground also, the order of detention is vitiated. As seen from page 87 of the paper book, in the English version of the remand order, there are the words, "Grounds of arrest informed". However, in the Tamil translation thereof, which is available at page 88, no actual translation for the above said words is available. On the above basis, it was strenuously urged before us that in view of the defective translation, or when there was actually no translation for the words referred to above, an opportunity for the detenu to make an effective representation was deprived, thereby affecting his valuable right. After going through the English version of the remand order as well as the Tamil translation thereof, we are unable to subscribe our view to the argument advanced by the learned counsel for the petitioner. In our considered opinion, by furnishing the Tamil version of the remand order with defective translation or with no actual translation of the relevant words, no prejudice would have been caused to the detenu, which view, as rightly pointed out by the learned Government Advocate (Criminal Side), is also supported by a ruling of this Court dated 8.8.2005 in H.C.P. No.442 of 2005 [Babu @ Babu Rahiman vs. State of Tamil Nadu]. In that case also, the same question was raised namely defective translation, that too in respect of the remand order. In that case also, the same question was raised namely defective translation, that too in respect of the remand order. A Division Bench of this Court, while considering the question regarding defective translation, came to the conclusion that though in the Tamil version of the order, the date and time of production of the accused have been mentioned, whereas in the English version of the order the time has been omitted that kind of defect has not caused any prejudice to the detenu in making an effective representation or pursuing any other legal remedy available to him, since it informed the actual detention, which alone is essential for detaining, or to make representation thereafter. Following this decision also, we are of the view that the defective translation of the remand order in this case fails to vitiate the order of detention. For the foregoing reasons, we neither find neither non-application of mind on the part of the detaining authority while passing the order of detention nor any other illegality vitiating the order of detention. In this view of the matter, the Habeas Corpus Petition is devoid of merits and is accordingly dismissed.