Madras High Court
Avudaiyachi vs The Additional Chief Secretary To ... on 1 November, 2023
H.C.P.(MD)No.1006 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 01.11.2023
CORAM:
THE HONOURABLE MR.JUSTICE M.SUNDAR
and
THE HONOURABLE MR.JUSTICE R.SAKTHIVEL
H.C.P.(MD)No.1006 of 2023
Avudaiyachi : Petitioner
Vs.
1.The Additional Chief Secretary to Government,
Home, Prohibition and Excise Department,
For St. George,
Chennai.
2.The Commissioner of Police,
O/o. The Commissioner of Police,
Tirunelveli City.
3.The Superintendent of Prison,
Central Prison,
Palayamkottai,
Tirunelveli District.
4.The Inspector of Police,
Melapalayam Police Station,
Tirunelveli City. : Respondents
PRAYER: Habeas Corpus Petition is filed under Article 226 of the
Constitution of India, calling for the entire records connected with the
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H.C.P.(MD)No.1006 of 2023
detention order in No.26/BCDFGISSSV/2023 dated 04.05.2023 on the file
of the second respondent and quash the same as illegal and direct the
respondents to produce the body or person of the petitioner's son namely
Anbu @ Anbukumar S/o. Muthaiah aged about 24 years now confined at
Central Prison, Palayankottai, Tirunelveli before this Court and set him at
liberty forthwith.
For Petitioner : Mr.S.M.A.Jinnah
For Respondents : Mr.A.Thiruvadi Kumar
Additional Public Prosecutor
ORDER
***********
[Order of the Court was made by M.SUNDAR, J.]
Captioned 'Habeas Corpus Petition' ['HCP' for the sake of brevity]
was listed in the admission board on 11.08.2023 before a Hon'ble
Predecessor Coordinate Division Bench and the following order was made
in the admission board:
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2.Therefore, this Court deems it appropriate to set out factual matrix
in a nut shell. To be noted, captioned HCP is now in the final hearing board,
Mr.S.M.A.Jinnah, learned counsel on record for petitioner and
Mr.A.Thiruvadi Kumar, learned State Additional Public Prosecutor for all
respondents are before us.
3.Factual matrix in a nut shell is that HCP petitioner's son one
Thiru.Anbu alias Anbukumar has been detained vide a Preventive Detention
Order dated 04.05.2023 bearing reference No.26/BCDFGISSSV/2023 made
by the second respondent [to be noted, this '04.05.2023 preventive
detention order' shall be referred to as 'impugned preventive detention
order' and the 'second respondent' shall be referred to as 'detaining
authority', both for the sake of convenience and clarity]; that impugned
preventive detention order has been made under '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 brevity, convenience and clarity] branding the HCP petitioner's son
['HCP petitioner's son' shall hereinafter be referred to as 'detenu' for the
sake of convenience] as a 'Goonda' within the meaning of Section 2(f) of
Act 14 of 1982; that captioned HCP has been filed in this Court on
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07.08.2023 and admitted on 11.08.2023 vide aforementioned admission
board order [scanned and reproduced supra]; that captioned HCP is now in
the final hearing board as already alluded to supra.
4.Mr.S.M.A.Jinnah, learned Counsel for HCP petitioner in his
campaign against the impugned preventive detention order submitted that
the impugned preventive detention order has been made on the basis of a
solitary case. It was pointed out that the solitary case is Crime
No.196/2023 on the file of Melapalayam Police Station for alleged offences
under Sections 341, 294(b), 324, 307, 506(ii) of 'The Indian Penal Code (45
of 1860)' [hereinafter 'IPC' for the sake of convenience and clarity] and
Sections 3(1)(r), 3(1)(s), 3(2)(v) of 'the Scheduled Castes and the Scheduled
Tribes (Prevention of Atrocities) Act, 1989 (Act No.33 of 1989)' [hereinafter
'SC & ST (PoA) Act' for the sake of brevity and convenience] altered into
Sections 341, 294(b), 324, 307, 506(ii), 120(B), 212 of IPC and Sections
3(1)(r), 3(1)(s) and 3(2)(v) of SC & ST (PoA) Act. It was submitted that as
regards the ground case, the same is now pending vide S.C.No.116/2023 on
the file II Additional District Judge's Court (Special Court for SC & ST
cases), Tirunelveli, which means the regular law and order mechanism has
been set into motion and is operating. In this scenario learned Counsel
submitted that there is nothing to demonstrate that the detenu has acted in
any manner prejudicial to maintenance of public order.
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5.In response to the aforementioned argument, learned State
Prosecutor drew our attention to a portion of paragraph No.2(i) of the
impugned preventive detention order where the detaining authority
adverting to the solitary ground case has said “On seeing this incident those who
were in the temple ran outside with hue and cry out of fear”. This would demonstrate
that detenue acted in a manner prejudicial to maintenance of public order
is learned Prosecutor's say.
6.This Court carefully considered the rival submissions.
7.As regards 'law and order' and 'public order' the Ram Manohar
Lohia's case the locus classicus. This celebrated judgment ie., Ram
Manohar Lohia's case reported in AIR 1966 SC 740 [Ram Manohar
Lohia Vs. State of Bihar and another] is one where Hon'ble Supreme
Court propounded three concentric circles doctrine. Ram Manohar
Lohia's case has stood the test of time, it continues to be good law and to
be noted, it has been followed in Mallada K Sri Ram Vs. The State of
Telengana in Crl.A.No.561 of 2022 dated 04.04.2022.
8.Three concentric circles doctrine propounded by Hon'ble supreme
Court in Ram Manohar Lohia's case has been elucidated by adopting a
illustrative approach. The relevant paragraphs have been extracted
reproduced elsewhere in this order (as part of extract from Panjalai's
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H.C.P.(MD)No.1006 of 2023
case). Be that as it may, this Ram Manohar Lohia principle is instructive
and we respectfully follow the same. When we apply the three concentric
circles doctrine and illustration of the Hon'ble Supreme Court to the case
on hand we find that the matter has not moved from the first larger
concentric circle of 'law and order' to the next concentric circle of 'public
order' as there is nothing to demonstrate that the detenu has engaged or is
making preparations for engaging in any activities as a 'Goonda' which will
adversely affect or is likely to affect adversely the maintenance of public
order. The reason is, as already alluded to the impugned preventive
detention order has been clamped by resorting to Act 14 of 1982 in which
the term 'Goonda' has been defined vide Section 2(f) and the expression
'acting in a manner prejudicial to the maintenance of public order' has
been defined vide 2(a) {2(a)(iii) is qua Goonda}, which read as follows:
'Section 2. Definitions. - ...
2(f) “goonda” means a person, who either by
himself or as a member of or leader of a gang,
commits, or attempts to commit or abets the
commission of offence punishable under Section 153 or
Section 153-A under Chapter VIII or under Chapter XVI
other than Sections 354, 376, 376-A, 376-B, 376-0C,
376-D and 377 or Chapter XVII or Chapter XXII of the
Indian Penal Code, 1860 (Central Act 45 of 1860) or
punishable under Section 3 or Section 4 or Section 5 of
the Tamil Nadu Property (Prevention of Damage and
Loss) Act, 1992 (Tamil Nadu Act 59 of 1992);
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2(a) “acting in any manner prejudicial to the
maintenance of public order” means:
2(a)(i). ...
2(a)(ii). ...
2(a)(iii) in the case of a goonda, when he is
engaged, or is making preparations for engaging, in
any of his activities as a goonda, which affect
adversely, or are likely to affect adversely, the
maintenance of public order;'
9.We are acutely conscious of the obtaining position that a preventive
detention order can be clamped on the basis of a solitary case but that it is
clamped on the basis of a solitary case is not the point. There is no material
to demonstrate that the detenu has acted in a manner prejudicial to the
maintenance of public order is the point that enures to the benefit of
detenu in the case on hand. The further reason is, other than the lone
sentence in paragraph No.2(i) of impugned preventive detention order
(pointed out by learned Prosecutor) which says that on the date of
occurrence ie., 14.04.2023 at the time of the incident, people who were in
the temple ran outside with hue and cry out of fear, there is no other
material to demonstrate that detenu has acted in a manner prejudicial to
maintenance of public order much less within the meaning of Section 2(f)
read with 2(a)(iii) of Act 14 of 1982.
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10.As regards the Habeas Corpus legal drill the law is well settled
that in a habeas legal drill a habeas Court will address itself to the question
as to whether the regular law and order machinery / mechanism is good
enough for taking care of the scenario or if it is imperative to resort to
preventive detention to contain the situation. If the answer is to the effect
that regular law and order mechanism / machinery is good enough, the
habeas legal drill will gravitate towards dislodging the preventive detention
order. In this case, as already alluded to, the solitary ground case is now
S.C.No.116/2023 on the file II Additional District Judge's Court (Special
Court for SC & ST cases), Tirunelveli and there is nothing to demonstrate
that this case is not good enough.
11.Learned Prosecutor, on instructions [instructed by Mr.J.Suresh
Kumar, Special Sub-Inspector, Melapalayam Police Station] submits that in
the trial Court charge sheet has been filed on 27.06.2023, within the
mandatory prescribed period. If this be the position, the detenu will have to
only seek regular bail under Section 439 of 'the Criminal Procedure Code,
1973' [hereinafter 'Cr.P.C' for the sake of brevity]. This also means that the
position that regular law and order mechanism / machinery is good enough
to contain the situation stands buttressed. To be noted, the detenu remains
incarcerated and the detenu will be able to come out only if enlarged on
bail by trial Court in a regular bail plea which will be decided on its own
merits and in accordance with law by the trial Court untrammeled by this
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H.C.P.(MD)No.1006 of 2023
order which has been made for the limited purpose of testing the impugned
preventive detention order in habeas legal drill on hand. This by itself
buttresses the argument that the matter has not even gravitated towards
the next smaller concentric circle of Public Order and it continues to
perambulate in the larger concentric circle of Law and Order.
12.In Panjalai's case ie., order dated 20.06.2023 in HCP No.23 of
2023, this bench sitting in the Principal Seat has set out the well settled
principles in habeas jurisprudence including public order point. Paragraph
Nos.1, 9 to 12 are relevant and the same read as follows:
'The case on hand is a classic case for reminding ourselves
about some of the well settled principles in Habeas Corpus
jurisprudence and they are :
(a) Preventive detention is not a punishment;
(b) Habeas Corpus is a high prerogative;
(c)The question which a Habeas Corpus Court will
address itself to is whether normal law and order
mechanism is good enough to contain the situation; and if
the answer is in the affirmative preventive detention has
to be interfered with;
(d)Whether public order is likely to be affected or
has been affected is an adjunct question qua
aforementioned question (previous point);
......
9.In this regard, this Bench deems it appropriate to remind
itself of the law laid down by Hon-ble Supreme Court in the
celebrated Ram Manohar Lohia case law [Ram Manohar Lohia
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H.C.P.(MD)No.1006 of 2023
vs. State of Bihar and another reported in AIR 1966 SC
740]. Relevant paragraphs are paragraphs 51 and 52 which
read 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 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
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H.C.P.(MD)No.1006 of 2023
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
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.'
10.The aforementioned two paragraphs in the celebrated
Ram Manohar Lohia case law makes it clear that Hon-ble
Supreme Court has laid down three concentric circles doctrine
and the three concentric circles doctrine turns on law and order,
public order and State security. By taking an illustrative
approach, Hon-ble Supreme Court elucidated the clear and
certain distinction between Law and Order & Public Order and as
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H.C.P.(MD)No.1006 of 2023
to when a particular matter would move from Law and Order
larger circle to the public order smaller concentric circle.
11.Be that as it may, before proceeding further, we deem it
appropriate to say that the aforementioned celebrated Ram
Manohar Lohia judgment rendered half a century ago has stood
the test of time as the same has been followed as recently on
04.04.2022 in an order made in Crl.A.No.561 of 2022 [Mallada K
Sri Ram vs. The State of Telengana and others] authored by Hon-
ble Justice Dr.Dhananjaya Y Chandrachud. Relevant paragraph is
paragraph 12 and the same reads as follows:
'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 Bihar, AIR 1966 SC 740. 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
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H.C.P.(MD)No.1006 of 2023
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. 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 7 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
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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)'
12.Reverting to Ram Manohar Lohia principle and
the three concentric circles doctrine we find that it is a locus
classicus in Habeas jurisprudence of matrimonial discord and an
aggression on the part of one spouse as against the other has
resulted in the unfortunate death of the victim. We are informed
that the victim-s brother is the defacto complainant.'
13.The principle that liberty is the very quintessence of a civilised
society and it can be described as a grundnorm of a refined civilization has
also been reiterated in Panjalai's case. We are informed that Panjalai's
case has attained finality.
14.There is another facet of Panjalai's case qua case on board. As
would be evident from the extract supra relevant paragraphs of Ram
Manojar Lohia's case law dealing with three concentric circles doctrine
and the illustrative elucidation have been extracted and set out therein.
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H.C.P.(MD)No.1006 of 2023
15.In the light of the narrative thus far, the inevitable sequitur is,
captioned HCP and the impugned preventive detention order are not
matters which qualify as a case in which the detenu has acted in a manner
prejudicial to maintenance of public order within the meaning of Section
2(a)(iii) r/w. Section 2(f) of Act 14 of 1982. The further sequitur is
impugned preventive detention order becomes vitiated and vulnerable for
being dislodged in this habeas legal drill.
16.Ergo, the sum sequitur is, captioned HCP is allowed. Impugned
preventive detention order dated 04.05.2023 bearing reference
No.26/BCDFGISSSV/2023 made by the second respondent is set aside and
the detenu Thiru.Anbu alias Anbukumar, male, aged 24 years, son of
Thiru.Muthaiah, 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.]
01.11.2023
Index : Yes
Internet : Yes
Neutral Citation : Yes
MR
P.S: Registry to forthwith communicate this order to jail authorities
in Central Prison, Palayamkottai.
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H.C.P.(MD)No.1006 of 2023
To
1.The Additional Chief Secretary to Government,
Home, Prohibition and Excise Department,
For St. George,
Chennai.
2.The Commissioner of Police,
O/o. The Commissioner of Police,
Tirunelveli City.
3.The Superintendent of Prison,
Central Prison,
Palayamkottai,
Tirunelveli District.
4.The Inspector of Police,
Melapalayam Police Station,
Tirunelveli City.
5.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
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H.C.P.(MD)No.1006 of 2023
M.SUNDAR, J.
and
R.SAKTHIVEL, J.
MR
H.C.P.(MD)No.1006 of 2023
01.11.2023
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