Suresh @ Thalapathi Suresh v. State of Tamil Nadu, rep. by its Secretary to Government, Chennai & Another
2009-03-31
ELIPE DHARMA RAO, R.SUBBIAH
body2009
DigiLaw.ai
Judgment R. Subbiah, J. Petitioner, viz., Suresh @ Thalapathi Suresh against whom the detention order has been passed on 111. 2008 under sub-section (1) of Section 3 of the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Slum Grabbers and Video Pirates Act, 1982 (Tamil Nadu Act 14 of 1982) branding him as a "Goonda", is challenging the detention order under this habeas corpus petition. 2. For clamping the order of detention, the 2nd respondent has relied upon one adverse case and the ground case. The facts discussed in the grounds of detention with regard to the adverse and the ground case are as follows: (a) The detenu had strong enmity with one Prabhu. On account of the same, the detenu and his associates Santhosh and Paramaguru conspired together to murder the said Prabhu. Pursuant to the conspiracy, on 10. 2008 at about 1.30 a.m., the detenu and his associates had gone to the first floor of pattarai in Saravesan Street, where Prabhu was sleeping, with an intention to commit his murder and at-tacked Prabhu with their respective weapons which they have brought. Consequently, the said Prabhu died on the spot. On a complaint given by one Siva @ Kesavan, the brother of the deceased Prabhu, a case was registered in Villupuram Town Police Station in Crime No. 537 of 2008 for an offence punishable under Section 302 IPC. (b) Enraged by the act of one Vijayakumar, who is the friend of the deceased Prabhu and who helped the family of Prabhu in lodging the complaint to the police against the detenu and his associates, on the next day, i.e. 10. 2008 at 6. p.m., the detenu attacked the said Vijayakumar with Aruval while he was coining near Keezhaperumpakkam wine shop. Since the incident took place in a public place, the public, who were at the spot, noticing the atrocious activities of the detenu ran helterskelter to protect their lives and the shop-keepers shut down their shutters due to fear, which resulted in registration of Crime No. 542 of 2008 on the file of Villupuram Town Police Station for the offences punishable under Sections 294, 341, 323, 324, 506(2) and 307 IPC, which is the ground case.
In view of the above, the sponsoring authority, namely,, Inspector of Police, Villupuram West Police Station Incharge, Villupuram Town Police Station, finding that the detenu has acted in a manner prejudicial to the maintenance ofpublic peace and public order and as such he is a "Goonda", as contemplated under Section 2(f) of the Tamil Nadu Act 14 of 1932, sent a proposal to the 2nd respondent herein to initiate necessary action against the detenu. The Detaining Authority, on consideration of the materials placed before him, passed the order of detention against the detenu. Aggrieved by the same, the present Habeas Corpus petition is filed by the detenu. 3. In his endeavour to assail the order of detention, amongst other grounds, learned counsel appearing for the petitioner has stressed the following grounds: (i) the translation copy of the bail order passed in Crl. M.P. No. 13954 of 2008 by the Sessions Court, Villupuram is defective in nature. But the detaining authority, without looking into the defective translation, passed the order of detention, which shows that there is a non-application of mind on the part of the detaining authority. In this regard, learned counsel for the petitioner invited the attention of this Court to page No. 74 and 75 of the book-let furnished to him. Page No. 74 is the order passed by the Principal Sessions Judge Villupuram, in Crl.M.P. No. 13954 of 2008 and page 75 is the Tamil translation of the same. On going through the cause title of the bail order available at page No. 74, it could be seen that the names of four Petitioners, namely, the detenu, Santhosh, Paramaguru, Sukku @ Suresh had been mentioned. But, in the Tamil translation copy of the same, the name of the 4th petitioner, namely, Sukku @ Suresh, is missing. By pointing out this defect, learned counsel for the petitioner contended that the copies furnished to the detenu are defective in nature. Had the detaining authority applied his mind, certainly he would have sought for explanation from the sponsoring authority in this regard. Hence, the passing of the detention order, without getting any explanation from the sponsoring authority, would go to prove that the order has been passed mechanically and ` without any application of mind and as such, the order is vitiated.
Hence, the passing of the detention order, without getting any explanation from the sponsoring authority, would go to prove that the order has been passed mechanically and ` without any application of mind and as such, the order is vitiated. (ii) The serial number of the form of the first information report pertaining to the adverse case registered in Crime No. 537 of 2008 on 10. 2008 is C 1640223 and the serial number of the form of the first information report pertaining to the ground case registered in crime No. 542 of 2008 on 10. 2008 is C1640225. The crime number in both cases shows that in between these two crime numbers, another four cases should have been registered. That being so, the ground case, which has been registered in Crime No. 542 of 2008, should have been registered after four cases from the adverse case. But, on the contrary, the serial numbers of the form of the first information reports pertaining to adverse case and ground case would show that only one case was registered between the adverse case and the ground case. This discrepancy found in Serial number of the forms of FIR would clearly show that certain forms have been deliberately kept unfilled and have been used at a later date to suit the convenience of the sponsoring authority. The detaining authority has failed to get any satisfactory explanation from the sponsoring authority, which would show that there is a total nonapplication of mind on the part of the detaining authority in passing the order. (iii) No proper subjective satisfaction was arrived at by the detaining authority with regard to imminent possibility of the detenu coming out on bail. In this regard, the learned counsel for the petitioner invited the attention of this Court to para 5 of the grounds of detention, wherein the relevant passage runs as follows: "5. I am aware that Thiru Suresh alias Thalapathi Suresh, son of Ranganathan is now in remand at Central Prison, Cuddalore in connection with the cases in Cr. Nos. 537 of 2008 and 542 of 2008 of Villupuram Town Police Station and he has filed bail applications before the Court of Principal District and Sessions Judge, Villupuram in C.M.P. Nos. 13954 of 2008, 13972 of 2008 for Cr.Nos,537 of 2008, 542 of 2008 respectively. The above bail applications were dismissed on 11. 2008.
Nos. 537 of 2008 and 542 of 2008 of Villupuram Town Police Station and he has filed bail applications before the Court of Principal District and Sessions Judge, Villupuram in C.M.P. Nos. 13954 of 2008, 13972 of 2008 for Cr.Nos,537 of 2008, 542 of 2008 respectively. The above bail applications were dismissed on 11. 2008. However there is a real possibility of his coming out on bail by filing further bail application before the same or higher Court. If he comes out on bail, he will indulge in future activities, which will be prejudicial to the maintenance of Public Peace and Public Order. Further, the recourse to normal criminal law will not have the desired effect of, effectively preventing him from indulging in such activities which are prejudicial to the maintenance of public peace and public or-der. On the materials placed before me, I am satisfied that the said Thiru Suresh alias Thalapathi Suresh, son of Rangathan is a `Goonda and that there is a compelling necessity to detain him in order to prevent him from indulging in such activities in future which are prejudicial to the maintenance of public peace and public order under the provisions of Tamil Nadu Act 14 of 1982". By drawing the attention of this Court to the above para, the learned counsel for the petitioner contended that when the petitioner was remanded and the bail applications having been dismissed, the question of coming out on bail does not arise. Thus, on this account, there is a non-application of mind on the part of the detaining authority in arriving at a proper subjective satisfaction. (iv) The offences under which the detenu was charged both in the adverse case, and the ground case cannot be construed. as an offence pertaining to breach of public is peace and public order. The action under the normal Criminal Law is sufficient to take care of those offences. Under such circumstances, the clamping of detention order is bad in law. (v) In the remand report found at page No. 112 of the booklet in respect of the ,ground case, it has been stated that the victim was taking treatment in Villupuram Government Hospital, whereas in the accident register found in page 86 of the booklet, it has been stated that the victim was treated as outpatient.
(v) In the remand report found at page No. 112 of the booklet in respect of the ,ground case, it has been stated that the victim was taking treatment in Villupuram Government Hospital, whereas in the accident register found in page 86 of the booklet, it has been stated that the victim was treated as outpatient. The detaining authority failed to get any clarification with respect to this aspect from the sponsoring authority. Similarly, in the accident register, the name of the person, who brought the victim to the hospital is found blank. No proper explanation was called for by the detaining authority from the sponsoring authority in this regard. (vi) In the statement of the victim in the ground case recorded by the Police, he had stated that his name is Raja. But in the other documents his name is found as Vijayakumar. Therefore, the contradiction found in the name of the victim in the ground case creates a great suspicion, for which also, no explanation was called for by the detaining authority. Hence, on this ground also, the detention order is liable to be set aside. (vii) Though the detenu was arrested on 10. 2008, the detention order was passed only on 111. 2008 i.e.after a period of one month. Therefore, there was a delay in passing the order and on this score, the detention order is liable to be set aside. Further, the information about the arrest as well as the detention has not been intimated at the earliest. Hence, on this ground. also, the impugned order is liable to be set aside. 4. By way of reply, learned Additional Public Prosecutor submits that such aspects as adverted to by the learned counsel for the petitioner, cannot be taken as valid grounds to assail the detention order. 5. Heard the learned counsel for the petitioner and the learned Additional Public Prosecutor for the respondents and perused the en-tire materials placed before us. 6. On a close perusal of the records, we find that-in the original bail order, which is avail-able at page 74, the name of the 4th petitioner Sukku @ Suresh has been shown separately on the right side of the order, whereas in page No. 75, the Tamil translation copy of the same, only the first three names, which are typed in the left hand side of the original order, are mentioned as petitioners.
During the translation, the name typed in the right side of the order is found omitted to be included. In our opinion, it could only be an inadvertent error, which could normally occur while carrying out the translation of voluminous documents. Unless the defect is grave in nature and has resulted in causing prejudice to the detenu in making effective representation, it cannot be taken as a ground for quashing the order of detention. In the instant case, we are of the opinion that the non-mentioning of the 4th petitioners name in the Tamil translation copy, in no way, causes prejudice to the detenu in making effective representation. Therefore, the submission made by the learned counsel for the petitioner that there is non-application of mind on the part of the detaining authority is hereby rejected. 7. So far as the submission made by the learned counsel for the petitioner with regard to the serial numbers of first information reports is concerned, the learned Additional Public Prosecutor drew the attention of this Court to para 560 of Police Standing Orders, which reads as follows: "560. Instruction regarding First Information Reports: (1) Cases entered in the First Information Report Book will be given a consecutive number and this number will constitute the crime number for the purpose of subsequent records. (2) The thumb-impression of the informant will usually be taken only in the case of illiterate persons. (3) In the case of complaints a copy of the First Information Report should be furnished free of charge to the complainant or informant under proper acknowledgment immediately after the complaint is registered". Therefore, there is no mandatory legal requirement that the crime number should be registered in seriatum one by one. Only if the subsequent First Information Report found consecutively, it can be doubted. In the instant case, on going through the first information report of the adverse case, we find that the case was registered in Form C 1640223 as crime No. 537 of 2008 and the ground case was registered in Form No. C 1640225 as Crime No. 542 of 2008, which clearly shows that the ground case was registered on 10. 1998 in subsequent form. Under such circumstances, there is no reason to suspect the registration of the first information reports.
1998 in subsequent form. Under such circumstances, there is no reason to suspect the registration of the first information reports. Hence, we are rejecting the contention raised by the learned counsel for the petitioner that certain forms have been deliberately kept unfilled and have been used on a later date. Under such circumstances, we do not find any reason to call for explanation from the sponsoring authority by the detaining authority and therefore the submission made by the learned counsel for the petitioner is rejected in toto. 8. In respect of submission made by the counsel for petitioner with regard to imminent possibility of the detenu coming out on bail, according to the learned Additional Public Prosecutor, the statement of the detaining authority that there is real possibility of the detenu coming out on bail by further filing bail application cannot be held to be non application of mind on the part of the detaining authority, in the light of the judgment of the Honble Supreme Court in Ibrahim Nazeer v. State of T. N. and Another, (2006) 3 SCC (Cri) 17 : (2006) 2 MLJ (Crl) 890, wherein, while answering such similar contention raised therein, it has been held by Their Lordship as under at p. 892 of MLJ (Crl): "5. In support of the appeal, learned counsel for the appellant that the only plea raised was that the High Court was not justified in holding that the detaining authoritys view about imminent possibility of the detenu coming out on bail was, correct. It was also submitted that since the detenu had not filed any bail application after withdrawal of the first petition, the detaining authority could not have inferred that there was possibility of his being released on bail".... xx xx xx xx 7. It is to be noted that whether prayer for bail would be accepted depends on the circumstances of each case and no hard and fast rule can be applied. The only requirement is that the detaining authority should be aware that the detenu is already in custody and is likely to be released on bail. The conclusion that the detenu may be released on bail cannot be an ipse dixit of the detaining authority. On the basis of materials before it, the detaining authority came to the conclusion that there is likelihood of the detenu being released on bail.
The conclusion that the detenu may be released on bail cannot be an ipse dixit of the detaining authority. On the basis of materials before it, the detaining authority came to the conclusion that there is likelihood of the detenu being released on bail. That is his subjective satisfaction based on materials. Normally, such satisfaction is not to be interfered with. On the facts of the case, the detaining authority has indicated as to why he was of the opinion that there is likelihood of the detenu being released on bail. It has been clearly stated that in similar cases, orders granting bail are passed by various Courts. The appellant has not disputed the correctness of this statement".... 9. Applying the above principle, it could be seen that in the case on hand, the detaining authority had satisfied himself about the real possibility of the detenu coming out on bail by filing further bail application before the same Court or higher Courts, since in similar cases bails are granted by the same Court or higher Courts after a lapse of time, based on the materials placed before the Courts. The detaining authority further proceeded to state that he was fully satisfied that the detenu is also a goonda and that there is a compelling necessity to detain him in order to prevent him from indulging in such further activities in future, which are prejudicial to the maintenance of public or-der under the provisions of the Tamil Nadu Act 14 of 1982. 10. On going through the materials placed on record and also the grounds of detention order, we are of the view that the detaining authority has rightly arrived at the subjective satisfaction to hold that the detenu is a goonda and also the reasoning as to the real possibility of his coming out on bail by filing further bail application before the same Court or higher Courts. Therefore the contention raised by the learned counsel for petitioner in this regard cannot be accepted. 11.
Therefore the contention raised by the learned counsel for petitioner in this regard cannot be accepted. 11. With regard to the next submission that the offences under which the detenu was booked in adverse case as well as the ground case would not amount to breach of public peace, we are of the opinion that in the ground case it has been clearly stated that due to the act of the detenu, the public gathered in the spot got panic and ran helter-skelter and the normalcy was affected. The averment found in the ground case would clearly show that due to the act of the detenu, there was breach of public peace and public order. Under such circumstances, the submission made by the learned counsel for the petitioner in this regard is also negatived. 12. Coming to the next submission, we find that in the, accident register pertaining to the ground case at page 86 of the booklet, it has been mentioned that the victim was taking treatment as out-patient; whereas in the remand report at page 112, it has been mentioned that the victim had taken treatment as in-patient. It was submitted by the learned Additional Public Prosecutor that immediately after taking treatment for the injuries sustained by the victim, he would have lodged the first information report and thereafter, he would have got himself admittedin the hospital. Under such circumstances, there cannot be any surprise in mentioning as out-patient in the accident register and inpatient in the remand report, which was filed on the next day, namely, 10. 2008. Considering the submission made by the learned Additional Public Prosecutor, we are of the view that these discrepancies are based on factual aspects. The correctness of the factual aspects cannot be gone into, while dealing with this habeas corpus petition. Hence, this contention in also rejected. 13. Similarly, with regard to the other submission made by the learned counsel for the petitioner that the name of the person, who brought the victim to the hospital, is left blank in the accident register, in our opinion, it will not affect the detention order in any way on the principle of non-application of mind because the non-mentioning of the name of the accompanying person in the accident register, will not cause any prejudice to the detenu in making effective representation.
In this regard, we once again reiterate, as stated supra, that the non-mentioning of the name in the accident register by the concerned authorities, the maximum, would be construed only an error committed by them. Therefore, the question of non-application of mind by the detaining authority on the said document in passing the detention order does not arise and the submission made by the learned counsel for the petitioner is rejected." 14. With regard to the name found in the statement of the complainant as Vijayakumar at page 12 of the booklet, learned Additional Public Prosecutor contended that the wordings found in the confession statement of the victim to the effect, namely, “Tamil” are not sufficient enough to come to a conclusion that there is non-application ofmind or the part of the detaining authority. Further, he contended that the name `Raja might be the nick-name of the victim Vijayakumar. But in the statement, the victim has clearly stated that his fathers name is Thiru Sabapathy, which clearly tallies with the name of the father of the victim found in the first information report lodged by the said Vijayakumar, which is available at page 76 of the booklet. Under such circumstances, there is no reason to raise a suspicion on the statement made by the complainant. We feel that there is some force in the submission made by the learned Additional Public Prosecutor. When there is enough material to show that the detenu is indulging in activities prejudicial to the maintenance of public peace and public order and it is Thiru Vijayakumar, who had suffered in the hands of detenu in the ground case, the name `Raja found in the confession statement does not receive / any importance, warranting this Court to come to a conclusion that there is a non-application of mind on the part of the detaining authority. Therefore, we are not inclined to accept the submission made by the learned counsel for the petitioner. 15. With regard to the yet another submission made by the learned counsel for the petitioner that there is a delay in passing the detention order, learned Additional Public Prosecutor submitted that the detenu was arrested on 10. 2008. After arrest, the bail application was moved by the detenu and after consideration, the said bail application was dismissed by the Sessions Court only on 11. 2008. Thereafter, the detention order was passed on 111.
2008. After arrest, the bail application was moved by the detenu and after consideration, the said bail application was dismissed by the Sessions Court only on 11. 2008. Thereafter, the detention order was passed on 111. 2008. Taking into consideration the submission made by the learned Additional Public Prosecutor, we are of the view that there is no delay in passing the order of detention. Under such circumstances, it cannot be said that there is inordinate delay in passing the detention order. 16. So far as the last submission, namely, non-intimation of arrest and detention of the detenu is concerned, as seen from the arrest memo, we find that the arrest,was informed to one Murugan, who was described as the brother of the detenu. The said arrest memo was signed, by the detenu as well as by the said Murugan. Hence, we are not inclined to accept the submission made by the learned counsel for the petitioner that no intimation was given to his relatives with regard to his arrest. From the above discussions, we are of the view that there is no valid ground to set aside the order of detention dated 111. 2008. Hence, the Habeas Corpus petition fails and, accordingly, the same is dismissed.