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2014 DIGILAW 1988 (MAD)

D. Tamilselvi v. State of Tamil Nadu

2014-07-04

G.CHOCKALINGAM, V.DHANAPALAN

body2014
Judgment : V. Dhanapalan, J: 1. The petitioner is the mother of the detenu. The detenu has been branded as a "Goonda" as contemplated under Tamil Nadu Act 14 of 1982 and detained under order of the 2nd respondent passed in C3.D.O.No.101/2013 dated 11.11.2013. 2. The detenu came to adverse notice in the following cases:- Sr. No. Police Station and Crime No. Sections of Law 1 Vellore North (L&O) Police Station, Crime No.340 of 2012 Section 384 IPC 2 Vellore North (L&O) Police Station, Crime No.393 of 2012 Sections 376 IPC @ 376(g) r/w 109 IPC 3 Vellore Taluk Police Station, Crime No.573 of 2012 Sections 341, 394, 395, 395 r/w 397 IPC 4 Vellore North (L&O) Police Station, Crime No.428 of 2013 Sections 324, 427, 506(ii) IPC @ 294(b), 352, 448, 324 and 506(ii) IPC The ground case alleged against the detenu is one registered on 30.09.2013 by the Inspector of Police, Vellore North Crime Police Station in Crime No.505 of 2013 for the offences under Sections 392 and 397 IPC. Aggrieved by the order of detention, the present petition has been filed. 3. Though learned counsel for the petitioner has raised several other grounds to assail the order of detention, he has mainly focused his argument on the following two grounds: i) The detaining authority has stated that though bail was already granted by this Court on 06.11.2013 in respect of Crime No.505 of 2013, ground case, in Crl.O.P.No.28750 of 2013, it has been mentioned in the impugned order as if the bail petition was pending in the said case. According to the learned counsel, this discrepancy in the detention order means that the detaining authority has not applied his mind to the case put forth by the sponsoring authority and thus, it would vitiate the detention order. ii) There is a delay in disposing of the representation dated 26.11.2013 which is violative of Article 22(5) of the Constitution of India and for the above reasons, the impugned order of detention is liable to be quashed. 4. We have heard the learned Additional Public Prosecutor on the above submissions. He would submit that the detenu is involved in various grave offences including the one in the 2nd adverse case which is a gang rape attracting Sections 376 IPC @ 376(g) r/w 109 IPC. 4. We have heard the learned Additional Public Prosecutor on the above submissions. He would submit that the detenu is involved in various grave offences including the one in the 2nd adverse case which is a gang rape attracting Sections 376 IPC @ 376(g) r/w 109 IPC. According to the learned Additional Public Prosecutor, the discrepancies, which do not come under the purview of violation of constitutional requirement, are not to be taken into consideration to defeat the conclusion arrived at by the detaining authority. He has further submitted that considering the fact that there is imminent possibility of the detenu being released on bail, which would be prejudicial to the maintenance of public peace and public health, the detention order was passed solely for the purpose of keeping him under watch and vigil, so as to avoid any untoward incident in the locality. 5. On a perusal of the materials placed on record, it is noticed that the impugned order of detention was passed on 11.11.2013 by the detaining authority, branding the detenu, Elaiya @ Elaiyakumar, S/o.Dharman, as Goonda, after arriving at the subjective satisfaction. While elaborating his conclusions, the detaining authority has stated as under in paragraph 5 of the detention order : “5... I am aware that Thiru.Elaiya @ Elaiyakumar has moved bail application in ground case Cr.No.505/2013 before the Sessions Court, Vellore in Crl.M.P.No.4415/2013 and the same was dismissed on 29.10.2013. Further I am also aware that Thiru.Elaiya @ Elaiyakumar has moved bail application before the Hon'ble High Court, Chennai in Crl.O.P.No.28750/2013 and the same is pending. As far as the ground case is concerned, in a similar case registered at Vellore North Crime Police Station Crime No.316/2012 under Section 392 and 397 IPC, bail was granted to the accused Thiru.Sarath @ Sarath Kumar by the Honourable High Court, Madras in Crl.O.P.No.12031/2012 on 04.06.2012. As bails are being granted by courts in such cases, there is real possibility of his (Thiru.Elaiya @ Elaiyakumar) coming out on bail in the above pending bail application in the court. If he comes out on bail, he will indulge in further activities, which will be prejudicial to the maintenance of public order and peace. Further the recourse of normal criminal law would not have the desired effect of effectively preventing him from indulging in such activities, which are prejudical to the maintenance of public order. If he comes out on bail, he will indulge in further activities, which will be prejudicial to the maintenance of public order and peace. Further the recourse of normal criminal law would not have the desired effect of effectively preventing him from indulging in such activities, which are prejudical to the maintenance of public order. On the materials placed before me. I am satisfied that Thiru.Elaiya @ Elaiyakumar is a “Goonda” and that there is a compelling necessity to detain him in order to prevent him from indulging in activities in future, which are prejudicial to the maintenance of public order and peace. 5(a). I am aware that on behalf of Thiru.Elaiya @ Elaiyakumar, Tmt.Tamilselvi, W/o.Dharman, the mother of the detenu, has sent a pre-representation dated 12.10.2013. After calling remarks, the said representation was duly considered and rejected in the endorsement dated 11.11.2013 by the Detaining Authority.” 6. Now, to arrive at a conclusion as to whether the impugned detention order is liable to be set aside or not and whether the detenu is really entitled to the release and will his release be prejudicial to the maintenance of public order at large, it is necessary for us to consider in depth the grounds urged by the learned counsel for the petitioner and also the reciprocation made by the learned Additional Public Prosecutor. The first contention of the learned counsel for the petitioner is that though bail was already granted to the detenu by this Court on 06.11.2013 in respect of Crime No.505 of 2013 which is the ground case, in Crl.O.P.No.28750 of 2013, instead of indicating the said fact, it has been mentioned in the impugned order as if, the bail petition was pending in the said case. 7. A close reading of the said bail order produced before this Court reveals that bail was granted on 06.11.2013, the order copy was made ready on 07.11.2013 and finally the said order was delivered only on 08.11.2013. As 09.11.2013 and 10.11.2013 happened to be Saturday and Sunday, at the time of when the detaining authority passed the detention order, i.e. on 11.11.2013, obviously, the said order copy was not made available to the detaining authority. As 09.11.2013 and 10.11.2013 happened to be Saturday and Sunday, at the time of when the detaining authority passed the detention order, i.e. on 11.11.2013, obviously, the said order copy was not made available to the detaining authority. Therefore, there is no error apparent on the face of record, when the detaining authority has stated that the bail application is pending and the detaining authority on due application of mind has passed the detention order. Thus, the 1st ground raised by the learned counsel for the petitioner has no legs to stand and the same is answered against the detenu. 8. The second ground put forth by the learned counsel for the petitioner to assail the impugned order is that there was delay in disposal of the representation dated 26.11.2013. 9. To resist the above contention, learned Additional Public Prosecutor has submitted a chart of dates and events, from the date of receipt of representation till its disposal. A perusal of that statement shows that the detenu made a representation on 26.11.2013 to the authorities concerned, which was received by them on 29.11.2013; remarks were called for on 02.12.2013 and remarks were received on 11.12.2013. On submission of the file on 12.12.2013, it was dealt with by both the Under Secretary and Deputy Secretary on the same day and thereafter, the file was submitted to the Minister on 17.12.2013. Finally the representation of the detenu was decided to be rejected vide letter dated 18.12.2013, which was sent to the detenu on 19.12.2013 and served on the detenu on 21.12.2013. The delay, if at all, in processing the representation between 02.12.2013 and 11.12.2013 has been explained by the learned Additional Public Prosecutor to the effect that the representation forwarded from the Government was received at the Collectorate Office, Vellore, on 05.12.2013; parawar remarks were called for on 06.12.2013 from the sponsoring authority; it was received on 09.12.2013 and finally, report was sent to the Government on 10.12.2013. The reason put forth by the learned Additional Public Prosecutor is a justifiable one and therefore, we find no merit in the second contention raised by the learned counsel for the petitioner. 10. On visualizing the elements which led to the detention of detenu branding him as a “Goonda”, it is necessary for us to examine the terms “Goonda”. The reason put forth by the learned Additional Public Prosecutor is a justifiable one and therefore, we find no merit in the second contention raised by the learned counsel for the petitioner. 10. On visualizing the elements which led to the detention of detenu branding him as a “Goonda”, it is necessary for us to examine the terms “Goonda”. A “Goonda” is one whose acts are prejudicial to public order when he / she engaged or making preparation for engaging in any activity as a person of “Goonda” which affects adversely or materially to act adversely, maintenance of public order. Section 2 (f) of Tamil Nadu Act 14 of 1982, defines the term “Goonda” as follows : “ 2 (f) “goonda” means a person, who either by himself or as a member of or leader of a gang, habitually commits, or atttempts to commit or abets the commission of offences, punishable under Section 153 or Section 153-A under Chapter VIII or under Chapter XVI or Chapter XVII or Chapter XXII of the Indian Penal Code, 1860 (Central Act XLV of 1860) or punishable under Section 3 ofr Section 4 or Section 5 of the Tamil Nadu Property (Prevention of Damage and Loss) Act, 1992 (Tamil Nadu Act 59 of 1992).” From the detention order it is clear that the detenu has four adverse cases and one ground case to his credit. The offences alleged in the adverse cases are for offences under Sections 384 [ Extortion], 376 @ 376 (g) [Gang Rape], 341 [Wrongful restraint], 394 [Voluntarily causing hurt in committing robbery], 395 [Dacoity], 395 r/w 397 [Robbery or dacoity with attempt to cause death or grievous hurt], 324 [Causing hurt by dangerous weapons or means], 506 (ii) @ 294 (b) [Criminal intimidation and Obscene acts and songs], 352 [for Assault or Criminal force otherwise than on grave provocation] and 448 [house trespass]. Thus, it is seen that the detenu in this case was involved in all forms of crime, namely, extortion, wrongful restraint, cacoity, robbery, house trespass, assault, criminal intimidation and obscene acts. To top it all the second adverse case alleged pertains to gang rape. Thus, it is crystal clear that the detenu has been habitually committing crimes and is invariably involved in all sorts of crime and is in fact practicing crimes in all forms. 11. To top it all the second adverse case alleged pertains to gang rape. Thus, it is crystal clear that the detenu has been habitually committing crimes and is invariably involved in all sorts of crime and is in fact practicing crimes in all forms. 11. When the detaining authority is provided with all these details by the sponsoring authority after the registration of the ground case, naturally, he would come to the conclusion that allowing the detenu to go scout free would definitely prejudice the maintenance of public order and peace. The essential concept of preventive detention is that the detention of a person is not to punish him for some thing he has done, but it is to prevent him from doing it again. In that view, when the detaining authority arrives at a subjective satisfaction that by allowing the detenu to loom large in the society would only hamper the public order and peace, we cannot find fault with that opinion. 12. The Hon'ble Supreme Court in the case of State of Karnataka vs. Krishnappa, reported in AIR 2000 SC 1470 , held that the measure of punishment in a case of rape cannot depend upon the social status of the victim or the accused. It must depend upon the conduct of the accused, the state and age of the sexually assaulted female and the gravity of the criminal act. Crimes of violence upon women need to be severely dealt with. The socio-economic status, religion, race, caste or creed of the accused or the victim are irrelevant considerations in sentencing policy. 13. Such was the view taken by the Apex Court in the decision reported in 2012 2 MLJ (Crl.) 859 { Subramanian vs. State of Tamil Nadu and another }. The relevant portion of the order reads as under : “11. It is well settled that the Court does not interfere with the subjective satisfaction reached by the detaining authority except in exceptional and extremely limited grounds. The relevant portion of the order reads as under : “11. It is well settled that the Court does not interfere with the subjective satisfaction reached by the detaining authority except in exceptional and extremely limited grounds. The Court cannot substitute its own opinion for that of the detaining authority when the grounds of detention are precise, pertinent, proximate and relevant, that sufficiency of grounds is not for the Court but for the Detaining Authority for the formation of subjective satisfaction that the detention of a person with a view to preventing him from acting in any manner prejudicial to public order is required and that such satisfaction is subjective and not objective”. Thus, what has to be looked into is the nature and the gravity of the crime, which are important, but not the detention, which are to be looked into for deciding the case. The act of ''gang rape” alleged is not only against a particular individual, but against the whole society as well. 14. In the case on hand, since the detenu is shown to have been involved in various crimes, and in the absence of any substantial or vital ground raised by the learned counsel for the petitioner to quash the order of detention, particularly in cases where serious offences are involved, we are of the firm view that we need not consider the minor discrepancies pointed out so as to safeguard the detenu / accused. As in our opinion, the impugned detention order has been passed by the detaining authority, on analyzing every factor and after perusing all material information with complete subjective satisfaction, we do not find any reason to interfere with the same. 15. Accordingly, the impugned detention order passed by the 2ndrespondent, detaining the detenu, namely, Elaiya @ Elaiyakumar, S/o.Dharman, made in C3.D.O.No.101/2013 dated 11.11.2013, is held valid and no grounds are made out to interfere with the same. Therefore, this Habeas Corpus Petition is dismissed.