Madras High Court
Nithya Prasanth vs State Of Tamil Nadu on 7 February, 2023
H.C.P.No.1385 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 07.02.2023
CORAM
THE HONOURABLE MR.JUSTICE M.SUNDAR
and
THE HONOURABLE MR.JUSTICE M.NIRMAL KUMAR
H.C.P.No.1385 of 2022
Nithya Prasanth
W/o.S.Prasanth .. Petitioner
Vs.
1. State of Tamil Nadu
Rep. by Principal Secretary to Government
Home, Prohibition and Excise Department
Fort St.George
Chennai-600 009.
2. The Commissioner of Police
Greater Chennai
Office of the Commissioner of Police
Vepery, Chennai-600 007.
3. State by Inspector of Police
Team XVI, Anti Land Grabbing Special-I
Central Crime Branch
Chennai.
4. The Superintendent
Central Prison,
Puzhal, Chennai-600 066. .. Respondents
Page Nos.1/11
https://www.mhc.tn.gov.in/judis
H.C.P.No.1385 of 2022
Petition filed under Article 226 of the Constitution of India praying for
issuance of a writ of habeas corpus, calling upon the production of records
relating to the detention order dated 03.06.2022 made in detention order in
No.147/BCDFGISSSV/2022 passed by the 2nd respondent herein, quash the
same and direct the respondents to produce the body of the petitioner's
father-in-law Mr.S.Sridhar, son of Late Subramaniyan, aged about 54 years,
who has been detained in Central Jail, Puzhal before this Hon'ble Court and
set at liberty.
For Petitioner : Ms.Vedavallikumar
For Respondents : Mr.R.Muniyapparaj
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] has been filed in this Court on 13.07.2022 assailing
a 'detention order dated 03.06.2022 bearing reference
No.147/BCDFGISSSV/2022' [hereinafter 'impugned detention order' for the
sake of convenience and clarity] made by the 'second respondent i.e.,
jurisdictional Commissioner of Police' [hereinafter 'Detaining Authority' for
the sake of convenience and clarity]. To be noted, third respondent i.e.,
Inspector of Police, Central Crime Branch is the Sponsoring Authority.
Page Nos.2/11
https://www.mhc.tn.gov.in/judis
H.C.P.No.1385 of 2022
2. When the matter was taken up for hearing on 01.02.2023,
proceedings made by us reads as follows:
'Ms.Vedavallikumar, learned counsel for petitioner and
Mr. R.Muniyapparaj, learned Additional State Public Prosecutor
for respondents were before us.
2. In the impugned detention order there is a reference to
C.S.No.889 of 2006 which is a suit on the original side of this
Court. Learned counsel for petitioner submitted that copy of the
plaint or any other proceedings has not been supplied to the
detenu as part of the booklet.
3. This Bench wanted to know the purpose of referring the
suit in the impugned detention order. Learned Additional Public
Prosecutor requested for a short accommodation to get
instructions and revert to this Court.
List on 07.02.2023.'
3. Pursuant to the aforementioned proceedings dated 01.02.2023,
learned Additional Public Prosecutor placed before us a copy of the plaint in
C.S.No.889 of 2006. We are also informed that there is a cross suit qua
C.S.No.607 of 2007. We find from the copies of the pleadings in civil suit
that the detenu is not a party to these suits.
Page Nos.3/11
https://www.mhc.tn.gov.in/judis
H.C.P.No.1385 of 2022
4. To be noted, the ground case is Crime No.717 of 2021 for alleged
offences under Sections 147, 427 and 448 of 'The Indian Penal Code (45 of
1860)' [hereinafter 'IPC' for the sake of convenience and clarity] on the file
of E-4, Abiramapuram Police Station on the complaint of one
Mr.Mahaveerchand Dhoka.
5. Ms.Vedavallikumar, learned counsel on record for petitioner in her
campaign against the impugned detention order pointed out that the entire
transaction is a civil transaction, the impugned detention order is based on
confession of the accused in adverse cases and in any event, preventive
detention clamped on the co-accused have been set aside by this Court vide
orders dated 20.12.2022 in HCP Nos.911 of 2022, 1246 of 2022, order
dated 17.08.2022 in HCP No.419 of 2022 and order dated 02.09.2022 in
HCP No.416 of 2022.
6. Learned Additional Public Prosecutor in response to the above
argument submitted that it may not be a simple civil transaction as the
allegation is that the accused barged into the property and forcibly
Page Nos.4/11
https://www.mhc.tn.gov.in/judis
H.C.P.No.1385 of 2022
dispossessed the occupants and took possession.
7. We carefully examined the impugned detention order. We find from
the impugned detention order that when tested on a demurrer, it may well be
a law and order problem but not a public order problem. As regards law and
order, public order and national security, we remind ourselves of the
celebrated judgment of Hon'ble Supreme Court in Ram Manohar Lohia
case law [Ram Manohar Lohia vs. State of Bihar and another reported in
AIR 1966 SC 740]. Relevant paragraphs are paragraph Nos.51 and 52 and
the same read as follows:
'51. Reliance is first placed upon a decision of the Federal
Court in Lakhi Narayan Das v. Province of Bihar where the Court
dealing with Item 1 of Provincial List, 7th Schedule in the
Government of India Act, 1935 which read—
“Public order (but not including the use) of His
Majesty's naval,military or air forces in aid of the
civil power”
observed that “Public Order” with which that item began was “a
most comprehensive term”. Reference is also made to Ramesh
Thapar v.State of Madras where this Court dealing with the same
subject matter also observed:
Page Nos.5/11
https://www.mhc.tn.gov.in/judis
H.C.P.No.1385 of 2022
“…“public order” is an expression of wide
connotation and signifies that state of tranquility
which prevails among the members of a political
society as a result of internal regulations enforced by
the Government which they have established … it must
be taken that “public safety is used as a part of the
wider concept of public order…”.
and inferring to Entry in List 3 (Concurrent List) of the 7th
Schedule of the Constitution which includes the “security of a
State” and “maintenance of public order” jas distinct topics of
legislation, observed—
“…. The Constitution thus requires a line to be drawn
in the field of public order or tranquility marking off,
may be, roughly, the boundary between those serious
and aggravated forms of public disorder which are
circulated to endanger the security of the State and
the relatively minor breaches of the peace of a purely
local significance, treating for this purpose
differences in degree as if they were differences in
kind”.
Fazl Ali, J. took a different view which he had expressed more fully
in Bnjbhushan v. State of Delhi but he also observed that “public
safety” had, as a result of a long course of legislative practice
acquired a well recognised meaning and was taken to denote
safety, or security of the State and that the expression “public
Page Nos.6/11
https://www.mhc.tn.gov.in/judis
H.C.P.No.1385 of 2022
order” was wide enough to cover small disturbances of the peace
which do not jeopardise the security of the State and paraphrased
the words “public order” as “public tranquillity”.
'52. Both the aspects of the matter were again before this
Court in Superintendent, Central Prison, Fatehgarh v. Ram
Manohar Lohia when dealing with the wording of clause (2) of
Article 19 as amended by the Constitution (First Amendment) Act,
1951, it fell to be decided what “public order” meant. Subbarao, J.
speaking for the Court referred to all earlier rulings and quoting
from them came to the conclusion that “public order” was equated
with public peace and safety and said:
“…Presumably in an attempt to get over the effect of these two
decisions, the expression “public order” was inserted in Article
19(2) of the Constitution by the Constitution (First Amendment)
Act, 1951, with a view to bring in offences involving breach of
purely local significance within the scope of Article 19.…”
Summing up the position as he gathered from the earlier cases,
the learned Judge observed:
“… “public order” is synonymous with public safety and
tranquillity : it is the absence of disorder involving breaches of
local significance in contradistinction to national upheavals,
such as revolution, civil strive, war, affecting the security of the
State;”.'
8. To be noted, in paragraph No.51, an illustrative approach has been
Page Nos.7/11
https://www.mhc.tn.gov.in/judis
H.C.P.No.1385 of 2022
taken by Hon'ble Supreme Court and paragraph No.52 propounds three
concentric circles theory qua preventive detention jurisprudence. For an
offence which may well be a law and order problem to move into next
smaller concentric circle of a public order, it is necessary that an element of
prejudice to maintenance of public order is imperative. In other words,
every law and order problem does not get escalated to public order. In the
case on hand, we find that the articulation as regards this public order facet
of the preventive detention jurisprudence is in paragraph No.3 of the
impugned detention order and relevant portion reads as follows:
'By committing the above described grave crime of criminal
breach of trust, cheating and illegal trespassing, Thiru.Sridhar
had created scare and feeling of insecurity in the minds of the
general public, with intent to purchase a piece of land, using
their hard earned money and the general public who have
purchased the property, for their future and for the future of
their wards and thereby acted in a manner prejudicial to the
maintenance of public order.'
9. Before we proceed further, we make it clear that aforementioned
three concentric circles theory has to be tested on a case to case basis.
Page Nos.8/11
https://www.mhc.tn.gov.in/judis
H.C.P.No.1385 of 2022
Therefore, this order will not serve as a precedent for all and every case of
similar ground case allegation. On testing the case on hand on factual
matrix, we find that prejudice to maintenance of public order has not been
made out as there is nothing really in the impugned detention order to
demonstrate that the ground case or the adverse case qua the detenu
tantamounts to setting the cat among the pigeons. Absent such
phenomenon, we are unable to persuade ourselves to believe that there is an
element of prejudice to maintenance of public order qua impugned detention
order. We have also taken into account the obtaining undisputed position
that the detention orders clamped on the accused in the ground case whose
confession has been put against the detenu as well as the co-accused in the
ground case have all been set aside by Hon'ble predecessor Benches vide
various orders in various HCPs, the details of which have been alluded to
supra.
10. Apropos, the sequitur is, captioned HCP is allowed. Impugned
detention order dated 03.06.2022 bearing reference
No.147/BCDFGISSSV/2022 made by the second respondent is set aside and
Page Nos.9/11
https://www.mhc.tn.gov.in/judis
H.C.P.No.1385 of 2022
the detenu Thiru.Sridhar, son of Mr.Subramaniyan is directed to be set at
liberty forthwith, if not required in connection with any other case / cases.
11. Captioned HCP ordered on above terms. There shall be no order
as to costs.
(M.S.,J.) (M.N.K.,J.)
07.02.2023
Index : Yes / No
Speaking / Non-speaking
Neutral Citation : Yes / No
mk
P.S: Registry to forthwith communicate this order to Jail authorities in
Central Prison, Puzhal.
To
1. State of Tamil Nadu
Rep. by Principal Secretary to Government
Home, Prohibition and Excise Department
Fort St.George
Chennai-600 009.
2. The Commissioner of Police
Greater Chennai
Office of the Commissioner of Police
Vepery, Chennai-600 007.
3. State by Inspector of Police
Team XVI, Anti Land Grabbing Special-I
Central Crime Branch
Chennai.
4. The Superintendent
Central Prison,
Page Nos.10/11
https://www.mhc.tn.gov.in/judis
H.C.P.No.1385 of 2022
Puzhal, Chennai-600 066.
5. The Public Prosecutor
High Court, Madras.
M.SUNDAR, J.,
and
M.NIRMAL KUMAR, J.,
mk
H.C.P.No.1385 of 2022
07.02.2023
Page Nos.11/11
https://www.mhc.tn.gov.in/judis
