Madras High Court
R.Subramani vs The State Of Tamil Nadu on 16 August, 2023
2023:MHC:3893
H.C.P.No.651 of 2023
-IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 16.08.2023
CORAM
THE HONOURABLE MR.JUSTICE M.SUNDAR
and
THE HONOURABLE MR.JUSTICE R.SAKTHIVEL
H.C.P.No.651 of 2023
R.Subramani
S/o.Raman .. Petitioner /
Father of the detenu
Vs.
1. The State of Tamil Nadu
Rep. By its Secretary to Government
Home, Prohibition and Excise Department
Fort St.George
Chennai-600 009.
2. The District Magistrate and District Collector
Office of the District Magistrate and District Collector
Tiruppur District
3. The Superintendent of Police
Tiruppur District
4. The Superintendent of Central Prison
Central Prison
Coimbatore District
5. The Inspector of Police
Kangayam Police Station
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Tiruppur District. ..Respondents
Petition filed under Article 226 of the Constitution of India praying
for issuance of a writ order or direction to produce the body of the detenu by
name Vijay @ Sanjay, son of Subramani, aged 26 years, presently confined
at Central Prison, Coimbatore before this Court and set him at liberty
forthwith after calling for the records pertaining to the detention order dated
27.03.2023 in Cr.M.P.No.11/Goonda/2023 passed by the 2nd respondent and
quash the same.
For Petitioner : Mr.S.Bharanidharan
For Respondents : Mr.E.Raj Thilak
Additional Public Prosecutor
ORDER
[Order of the Court was made by M.SUNDAR, J.,]
Captioned 'Habeas Corpus Petition' [hereinafter 'HCP' for the sake of
convenience and clarity] was listed for admission on 21.04.2023 and this
Court made the following order:
'H.C.P.No.651 of 2023
M.SUNDAR,J.,
AND
SUNDER MOHAN,J.,
(Order of the Court was made by M.SUNDAR, J.,)
Captioned Habeas Corpus Petition has been filed in this
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Court on 06.04.2023 inter alia assailing a detention order
dated 27.03.2023 bearing reference
Cr.M.P.No.11/GOONDA/2023 made by 'second respondent'
[hereinafter 'Detaining Authority' for the sake of convenience
and clarity]. To be noted, fifth respondent is the Sponsoring
Authority.
2. Father of detenu is the petitioner.
3. Learned counsel for petitioner submits that ground
case qua the detenu is for alleged offences under Sections
294(b) and 307 of 'The Indian Penal Code (45 of 1860)'
[hereinafter 'IPC' for the sake of convenience and clarity]
subsequently, altered into Sections 294(b) and 302 of IPC in
Crime No.93 of 2023 on the file of Kangayam Police Station.
4. The aforementioned detention order has been made
on the premise that the detenu is a 'Goonda' under Section 2(f)
of 'The Tamil Nadu Prevention of Dangerous Activities of
Bootleggers, Cyber law offenders, Drug-offenders, Forest-
offenders, Goondas, Immoral traffic offenders, Sand-offenders,
Sexual-offenders, Slum-grabbers and Video Pirates Act, 1982
(Tamil Nadu Act No.14 of 1982)' [hereinafter 'Act 14 of 1982'
for the sake of convenience and clarity].
5. The detention order has been assailed inter alia on
the ground that there is a delay of 26 days in passing the
impugned detention order.
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H.C.P.No.651 of 2023
6. Prima facie case made out for admission. Admit.
Issue Rule nisi returnable by four weeks.
7. Mr.E.Raj Thilak, learned Additional Public
Prosecutor, State of Tamil Nadu accepts notice for all
respondents. List the captioned Habeas Corpus Petition
accordingly.'
2. The aforementioned Admission Board order dated 21.04.2023
captures all essentials that are imperative for appreciating this order and
therefore, we are not setting out the same again. However, short forms,
short references and abbreviations used in the Admission Board order will
continue to be used in the instant order also for the sake of brevity,
convenience and clarity.
3. Mr.S.Bharanidharan, learned counsel on record for petitioner and
Mr.E.Raj Thilak, learned State Additional Public Prosecutor for all
respondents are before us.
4. A perusal of paragraph 5 of the aforementioned Admission Board
order makes it clear that at the time of admission, learned counsel had
posited his challenge to the impugned preventive detention order on the
point that there is delay qua date of arrest in making the impugned
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preventive detention order, however today in the final hearing Board,
learned counsel drew our attention to sub-paragraph (iv) of Paragraph 3 of
the grounds of impugned preventive detention order, which reads as
follows:
(iv) It was ascertained through the enquiry of the Inspector of
Police that as Velal's husband Palani and eldest son Subramani both
had died, she is residing along with her younger son Senthilkumar at
Varathappampalayam Colony, Kangayam Taluk, marriage was
solemnized between younger son Senthilkumar who is doing building
work and Prema of Salaipudur, Kodumudi, about twelve years ago,
they are having two sons in the age of 11 years and 7 years and all
are residing jointly, Prema was doing the work of pump operator for
filling petrol to the vehicles in a petrol bunk situated at Moolakadai
and that Prema got acquaintance with Vijay alias Sanjay of
Bhathiyar Nagar, Nathakadaiyur and they both were talking often.
As Prema did not like her acquaintance with Vijay alias Sanjay in a
stage, she was avoiding meeting with Vijay alias Sanjay and talking
over cell phone. For that Vijay alias Sanjay threatened her by
saying that he would set fire of her and her family if she did not
acquaintance with him. In order to seek an end to the problem arose
in between both of them Prema told with her husband Senthilkumar
and mother in law Velal and relatives and asked to talk with Vijay
alias Sanjay to which Vijay alias Sanjay refused for it. Hence, all
remained to solve it by talking later. While so, as Vijay alias Sanjay
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H.C.P.No.651 of 2023
gave disturbance to Prema continuously. Prema started an account
at Facebook in the name of Sanjay and uploaded the photos of them
available. On knowing that when Vijay alias Sanjay asked why she
had did so, she told him that she did so, in order not to give her
further trouble. While so, Prema had kept away from talking with
Vijay alias Sanjay in whole and after knowing that Prema was
available alone on the occurrence day, Vijay alias Sanjay went to
her house and engaged in a quarrel with Prema and as Prema was
stubborn from not having acquaintance with Vijay alias Sanjay,
Vijay alias Sanjay took out the kerosene can available at Prema's
house, poured kerosene over Prema and set fire by saying as she
would not alive who not available to him and that Prema left the
house by screaming with fire flames all over her body.'
5. Adverting to the aforementioned sub-paragraph (iv) of paragraph 3
of grounds of impugned preventive detention order, learned counsel
submitted that aforesaid sub-paragraph (iv) captures and sets out the ground
case.
6. A careful perusal of the ground case will make it clear that it is a
case of law and order and there is nothing to demonstrate that there is any
act qua detenu which is in any manner prejudicial to maintenance of public
order.
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7. In response to the aforementioned argument, learned Prosecutor
submitted that it is quite possible that the detenu would indulge in similar
activities (similar to the ground case) in the days to come and therefore, the
impugned preventive detention order deserves to be sustained.
8. We carefully considered the submissions made on both sides. The
clear distinction between 'law and order' and 'public order' has been
elucidatively explained by Hon'ble Supreme Court in the celebrated Ram
Manohar Lohia case law i.e., Ram Manohar Lohia vs. State of Bihar and
another reported in AIR 1966 SC 740. The most relevant paragraphs in
Ram Manohar Lohia are paragraphs 51 and 52, which reads as follows:
'51.We have here a case of detention under Rule 30 of the
Defence of India Rules which permits apprehension and
detention of a person likely to act in a manner prejudicial to the
maintenance of public order. It follows that if such a person is
not detained public disorder is the apprehended result. Disorder
is no doubt prevented by the maintenance of law and order also
but disorder is a broad spectrum which includes at one end small
disturbances and at the other the most serious and cataclysmic
happenings. Does the expression "public order" take in every
kind of disorder or only some ? The answer to this serves to
distinguish "public order" from "law and order" because the
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latter undoubtedly takes in all of them. Public order if disturbed,
must lead to public disorder. Every breach of the peace does not
lead to public disorder. When two drunkards quarrel and fight
there is disorder but not public disorder, They can be dealt with
under the powers to maintain law and order but cannot be
detained on the ground that they were disturbing public order.
Suppose that the two fighters were of rival communities and one
of them tried to raise communal passions. The problem is still
one of law and order but it raises the apprehension of public
disorder. Other example can be imagined. The contravention of
law always affects order but before it can be said to affect public
order, it must affect the community or the public at large. A mere
disturbance of law and order leading to disorder is thus not
necessarily sufficient for action under the Defence of India Act
but disturbances which subvert the public order are. A District
Magistrate is entitled to take action under Rule 30(l)(b) to
prevent subversion of public order but not in aid of maintenance
of law and order under ordinary circumstances.
52.It will thus appear that just as "public order" in
the rulings of this Court (earlier cited) was said to comprehend
disorders of less gravity than those affecting "security of State",
"law and order" also comprehends disorders of less gravity than
those affecting "public order". One has to imagine three
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concentric circles. Law and order represents the largest circle
within which is the next circle representing public order and the
smallest circle represents security of State. It is then easy to see
that an act may affect law and order but not public order just as
an act may affect public order but not security of the State. By
using the expression "maintenance of law and order" the District
Magistrate was widening his own field of action and was adding
a clause to the Defence of India Rules.'
9. The aforementioned paragraphs in Ram Manohar Lohia speak for
themselves elaborately and eloquently. Hon'ble Supreme Court has put in
place the three concentric circles doctrine and has also illustratively
explained the same as to when a given case moves from the larger law and
order circle to the next smaller public order concentric circle. If the
illustration and the elucidation of Hon'ble Supreme Court is applied to the
case on hand, in the light of the narrative in sub-paragraph (iv) of paragraph
3 of impugned preventive detention order{extracted and reproduced supra
in this order}, it is clear that the matter has not even gravitated towards the
next smaller concentric circle of public order.
10. This Court also reminds itself that a habeas Court would ask itself
the question as to whether the normal law and order machinery and the
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H.C.P.No.651 of 2023
normal law and order mechanism is good enough to deal with the situation
or as to whether it is imperative to resort to preventive detention to ensure
and contain activities prejudicial to maintenance of public order.
11. In the light of the narrative, discussion and dispositive reasoning
set out supra, it emerges clearly that there is nothing to demonstrate that the
detenu has acted in a manner that is prejudicial to the maintenance of public
order. Absent this phenomenon, there can be no preventive detention much
less a preventive detention within the meaning of Section 3(1) of Act 14 of
1982 as it reads as follows:
'3. Power to make orders detaining certain persons._(1)
The State Government may, if satisfied with respect to any
bootlegger or cyber law offender or drug offender or video
pirates, or forest-offender or goonda or immoral traffic
offender, sand offender or sexual offender or slum-grabber that
with a view to prevent him from acting in any manner
prejudicial to the maintenance of public order, it is necessary so
to do, make an order directing that such person be detained.'
(underlining made by this Court to
supply emphasis and to highlight)
12. We also deem it appropriate to say that Ram Manohar Lohia
which was rendered more than half a century ago is a celebrated judgment
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H.C.P.No.651 of 2023
which has stood the test of time as Ram Manohar Lohia has been followed
by Hon'ble Supreme Court as recently in April of 2022 in Mallada K Sri
Ram case [Mallada K Sri Ram Vs. The State of Telangana & Ors. reported
in 2022 SCC OnLine SC 424] vide order dated 04.04.2022 made in
Criminal Appeal No.561 of 2022 arising out of SLP (Crl) No.1788 of 2022]
and Hon'ble Dr. Dhananjaya Y Chandrachud.J. speaking for the Hon'ble
Bench has referred to Ram Manohar Lohia in the following manner:
'12. The distinction between a disturbance to law and order and
a disturbance to public order has been clearly settled by a Constitution
Bench in Ram Manohar Lohia v. State of Bihar5. The Court has held
that every disorder does not meet the threshold of a disturbance to
public order, unless it affects the community at large. The Constitution
Bench held:
“51. We have here a case of detention under Rule 30 of
the Defence of India Rules which permits apprehension and
detention of a person likely to act in a manner prejudicial to the
maintenance of public order. It follows that if such a person is
not detained public disorder is the apprehended result.
Disorder is no doubt prevented by the maintenance of law and
order also but disorder is a broad spectrum which includes at
one end small disturbances and at the other the most serious
and cataclysmic happenings. Does the expression “public
order” take in every kind of disorders or only some of them?
The answer to this serves to distinguish “public order” from
“law and order” because the latter undoubtedly takes in all of
them. Public order if disturbed, must lead to public disorder.
Every breach of the peace does not lead to public disorder.
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When two drunkards quarrel and fight there is disorder but
not public disorder. They can be dealt with under the powers
to maintain law and order but cannot be detained on the
ground that they were disturbing public order. Suppose that
the two fighters were of rival communities and one of them
tried to raise communal passions. The problem is still one of
law and order but it raises the apprehension of public
disorder. Other examples can be imagined. The contravention
of law always affects order but before if can be said to affect
public order, it must affect the community or the public at
large. A mere disturbance of law and order leading to
disorder is thus not necessarily sufficient for action under the
Defence of India Act but disturbances which subvert the public
order are. A District Magistrate is entitled to take action under
Rule 30(1)(b) to prevent subversion of public order but not in
aid of maintenance of law and order under ordinary
circumstances.
52. It will thus appear that just as “public order” in
the rulings of this Court (earlier cited) was said to
comprehend disorders of less gravity than those affecting
“security of State”, “law and order” also comprehends
disorders of less gravity than those affecting “public order”.
One has to imagine three concentric circles. Law and order
represents the largest circle within which is the next circle
representing public order and the smallest circle represents
security of State. It is then easy to see that an act may affect
law and order but not public order just as an act may affect
public order but not security of the State. By using the
expression “maintenance of law and order” the District
Magistrate was widening his own field of action and was
adding a clause to the Defence of India Rules.”
(emphasis supplied)
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13. In the case on hand, the impugned preventive detention order
deserves to be dislodged as there is nothing to demonstrate that there is any
prejudice to maintenance of public order.
14. Ergo, the sequitur is, captioned HCP is allowed. Impugned
preventive detention order dated 27.03.2023 bearing reference
Cr.M.P.No.11/Goonda/2023 made by the second respondent is set aside and
the detenu Thiru.Vijay alias Sanjay, male, aged 26 years, son of
Thiru.Subramani, is directed to be set at liberty forthwith, if not required in
connection with any other case / cases. There shall be no order as to costs.
(M.S.,J.) (R.S.V.,J.)
16.08.2023
Index : Yes
Speaking
Neutral Citation : Yes
gpa
P.S: Registry to forthwith communicate this order to Jail authorities in
Central Prison, Coimbatore.
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H.C.P.No.651 of 2023
To
1. The Secretary to Government
Home, Prohibition and Excise Department
Fort St.George
Chennai-600 009.
2. The District Magistrate and District Collector
Office of the District Magistrate and District Collector
Tiruppur District
3. The Superintendent of Police
Tiruppur District
4. The Superintendent of Central Prison
Central Prison
Coimbatore District
5. The Inspector of Police
Kangayam Police Station
Tiruppur District.
6. The Public Prosecutor
High Court, Madras.
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H.C.P.No.651 of 2023
M.SUNDAR, J.,
and
R.SAKTHIVEL, J.,
gpa
H.C.P.No.651 of 2023
16.08.2023
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