Madras High Court
Devi vs The State Of Tamil Nadu on 30 January, 2023
HCP No.1126 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 30.01.2023
Coram
The Hon'ble Mr. Justice M.SUNDAR
and
The Hon'ble Mr. Justice M.NIRMAL KUMAR
H.C.P.No.1126 of 2022
Devi .. Petitioner
-vs-
1.The State of Tamil Nadu
Represented by Secretary to Government,
Home, Prohibition & Excise Department,
Fort St.George,
Chennai – 9.
2.The District Magistrate and District Collector
Tiruppur District, Tiruppur.
3.The Superintendent of Police
Tiruppur District, Tiruppur.
4.The Inspector of Police,
All Women Police Station,
Udumalpet, Tiruppur District.
5.The Superintendent of Prison,
Central Prison,
Coimbatore. ... Respondents
Page 1 of 11
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HCP No.1126 of 2022
Petition filed under Article 226 of the Constitution of India
praying to issue a Writ of Habeas Corpus directing to produce the
body of the detenu by name Mohankumar, S/o.Aruchamy, aged 46
years, before this Court who is presently confined at Central Prison,
Coimbatore and set him at liberty forthwith, after calling for the
records pertaining to the detention order dated 04.05.2022 in
Cr.M.P.No.22/Sexual Offender/2022 passed by the 2nd respondent,
quash the same.
For Petitioner : Mr.B.Christ Das
for Mr.D.R.Arun Kumar
For Respondents : Mr.R.Muniyapparaj
Additional Public Prosecutor
ORDER
[Order of the Court was made by M.SUNDAR, J.]
Captioned 'habeas corpus petition' ('HCP' for the sake of
convenience and clarity) has been filed in this Court on 14.06.2022 by
wife of the detenu assailing detention order dated 04.05.2022 in
Cr.M.P.No.22/Sexual Offender/2022 (hereinafter be referred to as
'impugned Detention Order') made by the second respondent i.e.,
jurisdictional District Collector (hereinafter be referred to as
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HCP No.1126 of 2022
'Detaining Authority' for the sake of convenience and clarity). To be
noted, fourth respondent, who is the Inspector of Police of the
jurisdictional police station, is the sponsoring authority.
2. The ground case in the captioned HCP is, the detenu is
alleged to have sexually assaulted a mentally ill woman. The most
relevant portions of the allegation as captured in the grounds of
detention are as follows:
'(i).....Further, even though Revathi was mentally
affected, she used to speak a little, to understand
other's taking as she is hearing well and in the
stage of replying them. In these circumstances,
on 30.03.2022 morning after Karuppusamy and
Loganathan went for work, Rani sent her children
to school, asked Revathi to remain in the home
alone, Jothi and Rani went to Government
Hospital, Pollachi for treatment at about 9.30 A.M.
and then returned home by about 3.00 P.M. On
the way, they noticed that house owner
Mohankumar was leaving from their house. Then,
when both of them went home, found the house
was locked inside and when knocked the door,
Revathi opened it. Jothi asked with Revathi as
why the house owner came there to which
Revathi told her that he had come to receive
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HCP No.1126 of 2022
water hose pipe yesterday, came now, hugged
and kissed her, removed the pants of her and
him, make her to lay on the wooden cot and
pressed on her vaginal part. On hearing after told
by Revathi, Jothi raised hue and cry as
Mohankumar raped her daughter and Rani also
raised hue and cry. The nearby persons rushed
there on hearing their hue and cry and examined.
After coming to know as what happened, Rani
talked along with the area people and then took
Revathi to Government Hospital, Udumalaipettai
on 30.03.2022 at 10.30.P.M. and admitted her.
She requested to take action against the house
owner Mohankumar who had involved in sexual
assault even after knowing that Revathi is a
mentally affected woman. The Sub Inspector
recorded the above statement of Jothi and read it
over to her as Jothi did not know to read and
write and then obtained her thumb impression in
the above said statement. Later, the Sub
Inspector of Police return to Police Station, based
on the complaint statement of Jothi, registered
the First Information Report against Mohankumar
in Udumalaipettai, All Women Police Station Crime
No.14/2022 under Section 376(2) of Indian Penal
Code on 31.03.2022 and handed over it to the
Inspector of Police, All Women Police Station,
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HCP No.1126 of 2022
Udumalaipettai for investigation.
(ii) .... It was ascertained during enquiry of the
Inspector that Mohankumar, owner of the house
in which Jothi is residing and knows well that
Revathi was mentally affected and remaining in
the house, made the situation of that Revathi was
alone in the house and involved in the sexual
assault.'
3. It may not be necessary to dilate further on facts as
Mr.B.Christ Das, learned counsel representing counsel on record for
petitioner says that his campaign against impugned Detention Order
is predicated on two points. The two points, discussion and dispositive
reasoning on the same are as follows:
3.1 The first point is, the detention order refers to a G.O.
namely G.O.(D) No.125 Home Prohibition and Excise (XVI)
Department dated 11.04.2022, this G.O. pertains to sub-section (2) of
Section 3 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
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HCP No.1126 of 2022
14 of 1982)' [hereinafter 'Act 14 of 1982' for the sake of convenience
and clarity], vide which impugned Detention Order has been made by
detaining the detenu as 'Sexual Offender' within the meaning of
Section 2(ggg) of Act 14 of 1982 but the G.O. has not been provided
to detenu. Though this ground cannot be brushed aside at the
threshold, on the facts of the case on hand, on a perusal of the case
file, we find that there is no disputation that the Detaining Authority
has the powers to make the impugned Detention Order. Therefore,
even if the Government Order had been made available to the detenu,
it would not have really made any difference in terms of effective
representation qua impugned Detention Order. We make it clear that
this view is being taken on the peculiar facts and circumstances of the
instant case and this will not serve as a precedent for all cases as it is
always desirable to furnish to the detenu a copy of Government Order
referred to in the grounds of detention, though it may turn only on
delegation of powers.
3.2. As regards second point, learned counsel submits that
there is nothing to demonstrate that public order has been
endangered.
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HCP No.1126 of 2022
3.3 We carefully perused the impugned Detention Order. In
sub paragraph (vi) of paragraph 3 of the grounds of detention, the
public order aspect has interalia been articulated by the Detaining
Authority. The said sub paragraph reads as follows:
'(vi) The case records pertaining to Mohankumar,
which was produced before me by the Inspector
of Police, All Women Police Station,
Udumalaipettai were considered by me carefully.
It is ascertained that, even though she attained
the age, Revathi's mental was affected not to
understand that she was subjected under sexual
assault and Mohankumar, who made it on his
favour, told her that he would marry her while
nobody was at home and had sexual intercourse
with her and through that he had exposed his
perverted sexual lust. It is clearly ascertained that
such activities of Mohankumar are against the
human discipline and violation of human rights.
Though the State disturbances against the women
should be contained by taking stringent action,
Mohankumar had committed the above said
offence even after knowing that sexual assault is
an offence. Hence, in order to have imminent
control of his such activities and in order to
remove the fear and a feeling of insecurity among
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HCP No.1126 of 2022
the public, especially on the minds of women, I
infer that the necessary arose to detain
Mohankumar, as a “Sexual Offender” as
contemplated under Section 2(ggg) of the Tamil
Nadu Act 14 of 1982.” (underlining made by us
for ease of reference)
4. On facts of the case on hand, we are of the considered
view that the aforementioned articulation is good enough qua
subjective satisfaction of Detaining Authority regarding prejudice to
maintenance of public order facet of the case. We remind ourselves of
declaration of law by a Constitution Bench in the celebrated judgment
in Dr.Ram Manohar Lohia v State of Bihar and others reported in
AIR 1960 SC 740 and more particularly paragraphs 51 and 52
thereat where the Honourble Supreme Court has elucidatively and by
resorting illustrative approach and propounding the three concentric
circles theory articulated the clear distinction between 'law and order'
and 'public order'.
5. We are conscious that every case of Law and Order may
not qualify as 'public order'. In the facts and circumstances of the
case, in the light of contents of the impugned Detention Order, we are
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HCP No.1126 of 2022
unable to disagree with the subjective satisfaction of Detaining
Authority that there is 'public order' element/ facet.
6. The narrative thus far leads us to the conclusion that
there is no ground to interfere with the impugned Detention Order.
Therefore, the captioned HCP fails.
7. Before writing the operative portion of this order, we deem
it appropriate to make it clear that this order will neither serve as
impetus nor impede the trial which is underway vide Spl.C.C.No.22 of
2022 on the file of Sub Court (Mahila Court), Tiruppur. We are
informed that the trial is progressing and the matter is listed
tomorrow (31.01.2023) in the trial Court.
8. In the result, captioned HCP fails and the same is
dismissed. There shall be no order as to costs.
(M.S., J.) (M.N.K., J.)
30.01.2023
Index:Yes/No
Neutral Citation : Yes/No
mmi
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HCP No.1126 of 2022
To
1.The Secretary to Government,
Home, Prohibition & Excise Department,
Fort St.George, Chennai – 9.
2.The District Magistrate and District Collector
Tiruppur District, Tiruppur.
3.The Superintendent of Police
Tiruppur District, Tiruppur.
4.The Inspector of Police,
All Women Police Station,
Udumalpet, Tiruppur District.
5.The Superintendent of Prison,
Central Prison, Coimbatore.
6.The Public Prosecutor,
High Court, Madras.
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HCP No.1126 of 2022
M.SUNDAR, J.
and
M.NIRMAL KUMAR, J.
mmi
H.C.P.No.1126 of 2022
30.01.2023
https://www.mhc.tn.gov.in/judis
