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2013 DIGILAW 2287 (MAD)

Petitioner v. Respondent

2013-07-02

M.JAICHANDREN, M.M.SUNDRESH

body2013
Judgment : 1. M.P.S.R.No.15434 of 2013, in H.C.P.No.2603 of 2012, has been filed by one J.Vijaya, wife of Jayakumar, claiming that she is the defacto complainant in the original complaint made in crime No.531/2012. 2. She had stated that the detenue had been arrested by the third respondent police, for the alleged offences said to have been committed, under Sections 406 and 420, read with 120(b) and 506(ii) of the Indian Penal Code. 3. It had been further stated that the petitioner had preferred a complaint before the Central Crime Branch, Team I, on 19.10.2012, and it had been registered as crime No.531/2012. 4. It had been further stated that the petitioner had approached one Devi, coordinator, associated with the Aphro Trust at Kolatur, Chennai. Based on the promise of granting loans, huge amounts of money had been collected from the petitioner and a number of persons. A false statement had been made by Devi stating that the Aphro Trust had obtained the necessary Reserve Bank of India approval for obtaining the loans. 5. She had stated that the President of the Aphro Trust was doing financial business and that loans could be obtained by the borrowers, at a low rate of interest. However, it had been realized that the detenue Devi and others, associated with the Aphro Trust, had made false promises, with the clear intention of cheating the public. More than 300 complaints had been received by the third respondent police, based on which a First Information Report had been registered, in crime Nos.396/2012, 403/2012, 437/2012, 446/2012 and 531/2012. After the arrest of Devi and one I.Devadoss, based on the complaint made by the affected persons, the police had seized several crores of rupees and properties worth about 10 crores had been attached. The investigation initiated by the third respondent police is at a crucial stage. 6. It had been further stated that the Aphro Trust had introduced several schemes, like the Aphro Housing Plot Scheme, the Aphro Akshaya Thrithiya Scheme, the Aphro Trust Elders Helping Pension Scheme, the Aphro Trust Women Welfare Scheme and the Aphro Trust Women Rehabilitation Scheme. From the facts of the case, it is clear that the Aphro trust had been formed with the clear intention of cheating the public. From the facts of the case, it is clear that the Aphro trust had been formed with the clear intention of cheating the public. As such, the detenue and the other persons associated with the Aphro trust had cheated thousands of people to the tune of several crores of rupees. Some of the persons, who had joined as members in the Aphro trust, had committed suicide. Due to the gravity of the offences committed by the organizers of the Aphro Trust, several thousands of persons had been affected. Thus, the activities of the Aphro Trust are of far reaching nature. As such, it should be treated as an exceptional case, by this Court, by affording an opportunity to the petitioner to bring forth certain facts and circumstances to the knowledge of this Court. Thus, the petitioner could be considered to be an amicus curiae. 7. The learned counsel for the petitioner had submitted that, in normal circumstances, no victim would be entertained by this Court to assist the Court in a Habeas Corpus Petition, in respect of cases relating to preventive detention. However, the present case is one of the rare cases in which the petitioner ought to be permitted to assist the learned public prosecutor to help this Court, to render justice. 8. The learned counsel for the petitioner had relied on the following decisions in support of his contentions: 8.1. In R.RADHINAM Vs. STATE BY DSP, DISTRICT CRIME BRANCH, MADURAI DISTRICT, MADURAI AND ANOTHER (2000) 2 SCC 391 ), the Supreme Court had held as follows: "8. It is not disputed before us that the power so vested in the High Court can be invoked either by the State or by any aggrieved party. Nor is it disputed that the said power can be exercised suo motu by the High Court. If so, any members of the public, whether he belongs to any particular profession or otherwise, who has a concern in the matter can move the High Court to remind it of the need to invoke the said power suo motu. There is no barrier either in Section 439 of the Code or in any other law which inhibits a person from moving the High Court to have such powers exercised suo motu. There is no barrier either in Section 439 of the Code or in any other law which inhibits a person from moving the High Court to have such powers exercised suo motu. If the High Court considers that there is no need to cancel the bail for the reasons stated in such petition, after making such considerations it is open to the High Court to dismiss the petition. If that is the position, it is also open to the High Court to cancel the bail if the High Court feels that the reasons stated in the petition are sufficient enough for doing so. It is, therefore, improper to refuse to look into the matter on the premise that such a petition is not maintainable in law." 8.2. In J.K.INTERNATIONAL Vs. STATE (GOVT. OF NCT OF DELHI) AND OTHERS (2001) 3 SCC 462 , the Supreme Court had held as follows:He had relied on 2001 3 SCC 462 . ............ The limited role which a private person can be permitted to play for prosecution in the Sessions Court has been adverted to above. All these would show that an aggrieved private person is not altogether to be eclipsed from the scenario when the criminal court takes cognizance of the offences based on the report submitted by the police. The reality cannot be overlooked that the genesis in almost all such cases is the grievance of one or more individual that they were wronged by the accused by committing offences against them." 8.3. In SHIV KUMAR Vs. HUKAM CHAND AND ANOTHER (1999) 7 SCC 467 , the Supreme Court had held as follows: "13. From the scheme of the Code the legislative intention is manifestly clear that prosecution in a sessions court cannot be conducted by any one other than the Public Prosecutor. The legislature reminds the State that the policy must strictly conform to fairness in the trial of an accused in a sessions court. A Public Prosecutor is not expected to show a thirst to reach the case in the conviction of the accused somehow or the other irrespective of the true facts involved in the case. The expected attitude of the Public Prosecutor while conducting prosecution must be couched in fairness not only to the court and to the investigating agencies but to the accused as well. The expected attitude of the Public Prosecutor while conducting prosecution must be couched in fairness not only to the court and to the investigating agencies but to the accused as well. If an accused is entitled to any legitimate benefit during trial the Public Prosecutor should not scuttle/conceal it. On the contrary, it is the duty of the Public Prosecutor to winch it to the fore and make it available to the accused. Even if the defence counsel overlooked it, Public Prosecutor has the added responsibility to bring it to the notice of the court if it comes to his knowledge. A private counsel, if allowed a free hand to conduct prosecution would focus on bringing the case to conviction even if it is not a fit case to be so convicted. That is the reason why Parliament applied a bridle on him and subjected his role strictly to the instructions given by the Public Prosecutor. 14. It is not merely an overall supervision which the Public Prosecutor is expected to perform in such cases when a privately engaged counsel is permitted to act on his behalf. The role which a private counsel in such a situation can play is, perhaps, comparable with that of a junior advocate conducting the case of his senior in a court. The private counsel is to act on behalf of the Public Prosecutor albeit the fact he is engaged in the case by a private party. If the role of the Public Prosecutor is allowed to shrink to a mere supervisory role the trial would become a combat between the private party and the accused which would render the legislative mandate in Section 225 of the Code a dead letter." 8.4. In AYYA ALIAS AYUB Vs. STATE OF U.P. AND ANOTHER (1989) 1 SCC 374 ), the Supreme Court had held as follows: "........... Even a single instance of activity tending to harm "public-order" might, in the circumstances of its commission, reasonably supply justification for the satisfaction as to a legitimate apprehension of a future repetition of similar activity to the detriment of "public- order". Likewise, without merit, is the contention as to the impermissibility of an order of detention being made against a person already in judicial custody. Likewise, without merit, is the contention as to the impermissibility of an order of detention being made against a person already in judicial custody. Even if a prosecution against a person fails or bail is granted an order of detention could be passed drawing the satisfaction therefor from the facts and circumstances involved in the criminal proceedings. An offender might secure an acquittal by intimidating witnesses. It all depends upon the circumstances of each case. But it is necessary for the detaining authority to resist the temptation to prefer and substitute, as a matter of course, the easy expedience of a preventive detention to the more cumbersome one of punitive detention." 8.5. In AJAY DIXIT Vs. STATE OF U.P. AND OTHERS (1984) 4 SCC 400 ), the Supreme Court had held as follows: "The difference between law and order situation and maintenance of public order must be kept in mind.. The act by itself is not determinant of its gravity. In its quality it may not differ from another but its potentiality may be very different. Therefore the question whether a man has only committed a breach of law and order or acted in a manner likely to the disturbance of public order is a question of degree of the reach of the act upon society. It is necessary in each case to examine the facts to determine, not the sufficiency of the grounds nor the truth of the grounds, but nature of the grounds alleged and see whether these are relevant or not for considering whether the detention of the detenu is necessary for maintenance of public order." 8.6. In KUNDANBHAI DULABHAI SHAIKH Vs. DISTT MAGISTRATE (1996) 3 SCC 194 ), it had been held as follows: "25. Black-marketing is a social evil. Persons found guilty of economic offences have to be dealt with a firm hand, but when it comes to fundamental rights under the Constitution, this Court, irrespective of enormity and gravity of allegations made against the detenu, has to intervene as was indicated in Mahesh Kumar Chauhan Vs. Union of India (1990) 3 SCC 148 and in an earlier decision in Prabhu Dayal Deorah v. District Magistrate, Kamrup and Ors. Union of India (1990) 3 SCC 148 and in an earlier decision in Prabhu Dayal Deorah v. District Magistrate, Kamrup and Ors. AIR 1974 SC 183 , in which it was observed that the gravity of the evil to the community resulting from anti-social activities cannot furnish sufficient reason for invading the personal liberty of a citizen, except in accordance with the procedure established by law particularly as normal penal laws would still be available for being invoked rather than keeping a person in detention without trial." 9. Per contra, the learned counsel appearing for the first respondent in the Habeas Corpus Petition had submitted that the present case is no exception to the general rule that third parties would have no say in Habeas Corpus Petitions relating to preventive detention orders. The petitioner in the present petition is requesting this Court to set a wrong precedent in matters relating to preventive detention. It is for the detaining authority and the Government concerned to sustain the detention order passed against the detenue. 10. It has been further stated that the gravity of the alleged offences said to have been committed by the detenue cannot be a valid ground for a third party to render assistance in a case relating to an order of preventive detention. It is for this Court to decide as to whether the public prosecutor would need any assistance in the matter. However, it is a well settled position in law that an amicus curea would be appointed by the Court, to help the court to arrive at a fair decision, in matters involving serious issues of public interest or in cases where new issues had arisen requiring the Court concerned to formulate and to lay down the law in matters relating to which no precedents are available. However, it is not open to the petitioner to claim that this Court ought to be pleased to permit her to assist the public prosecutor or this Court, in the matter before it. Further, no new facts or circumstances had been brought to light, which are not already available on record. Even otherwise, it is for the respondents in the Habeas Corpus Petition to bring forth all the facts and circumstances leading to the passing of the detention order and to show that the detention order is sustainable in the eye of law. 11. Even otherwise, it is for the respondents in the Habeas Corpus Petition to bring forth all the facts and circumstances leading to the passing of the detention order and to show that the detention order is sustainable in the eye of law. 11. The learned public prosecutor appearing on behalf of the second and the third respondents had submitted that the prosecution has taken all the necessary steps to prevent the detenue from indulging in activities prejudicial to the maintenance of public order. The third respondent has passed the impugned detention order detaining the detenue concerned. The second respondent has confirmed the detention order passed by the third respondent. The detaining authority had passed the impugned detention order taking into consideration all the relevant facts and circumstances of the case, as there was a real possibility of the detenue indulging in activities prejudicial to the maintenance of public order. The detaining authority had passed the impugned detention order taking into consideration the gravity and the seriousness of the offences committed by her and the ramification they would have on the society at large. However, it is for this Court to consider the request of the petitioner and to pass appropriate orders in the present petition filed by her. 12. In view of the submissions made by the learned counsels appearing on behalf of the petitioner, as well as the respondents, and on a perusal of the records available, and in view of the decisions cited supra, we are of the considered view that the petitioner has not made out a case for this Court to permit the petitioner to assist the learned public prosecutor in the Habeas Corpus Petition. 13. The petitioner has not been in a position to show that it is one of the rare cases in which this Court ought to grant the permission to the petitioner to assist the prosecution. It is a well established position in law that, in matters relating to preventive detention, it is for the detaining authority and the Government concerned to justify the passing of the detention order. No third parties could have a say in the matter. In the present case, the learned public prosecutor appearing for the second and the third respondents had also made it clear that the prosecution is fully equipped to sustain the impugned detention order passed by the third respondent. No third parties could have a say in the matter. In the present case, the learned public prosecutor appearing for the second and the third respondents had also made it clear that the prosecution is fully equipped to sustain the impugned detention order passed by the third respondent. He had also made it clear that there would not be any need for third parties to come into the picture, at this stage, to assist the prosecution in defending the order of detention passed by the third respondent, before this Court. As such, we do not find any cause or reason to accept the plea of the petitioner to permit her to assist the learned public prosecutor in the Habeas Corpus Petition. 14. The decisions cited by the learned counsel for the petitioner are not relevant to the facts and circumstances of the present case. Therefore, the present petition filed by the petitioner namely, J.Vijaya, said to be the complainant, in Cr.No.531/2012, is liable to be dismissed, in limine, as it is not maintainable in the eye of law. 15. In such view of the matter, we find it appropriate to pass an order dismissing the present petition, as it is not maintainable. Accordingly, the petition in M.P.S.R.No.15434 of 2013 in H.C.P.No.2603 of 2012, filed by the petitioner stands dismissed.