Madras High Court

K.Athinarayanan vs The State Of Tamil Nadu on 13 November, 2024

Author: S.M.Subramaniam

Bench: S.M.Subramaniam

                                                                            W.P.No.33397 of 2024

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                              DATED : 13.11.2024

                                                    CORAM :

                            THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM
                                               AND
                             THE HONOURABLE MR. JUSTICE M.JOTHIRAMAN

                                              W.P.No.33397 of 2024
                                                      and
                                             W.M.P.No.36186 of 2024
                K.Athinarayanan                                            ... Petitioner
                                                      Vs.
                1.The State of Tamil Nadu
                rep by the Additional Chief Secretary to the Government,
                Home, Prohibition and Excise Department,
                Secretariat, Chennai 600 009.

                2.The Commissioner of Police,
                Greater Chennai, Vepery,
                Chennai 600 007.

                3.Mr.Kuthalingam IPS.,
                Deputy Commissioner of Police,
                T.Nagar District,
                T.Nagar, Chennai 600 017.

                4.Mr.P.Vijayan,
                Assistant Commissioner of Police,
                T.Nagar Range,
                T.Nagar, Chennai 600 017.

                5.Ms.V.Veerammal,
                Inspector of Police,
                R-4, Sountharapandiyanar Police Station,
                T.Nagar, Chennai 600 017.

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                Page 1 of 14
                                                                                     W.P.No.33397 of 2024

                6.Mr.K.Senthil Murugan,
                Inspector of Police,
                E-3, Thenampet Police Station,
                Chennai 600 018.

                7.Mr.Rafeek Hussain,
                Sub Inspector of Police,
                R-4, Sountharapandiyanar Police Station,
                T.Nagar, Chennai 600 017.

                8.The Inspector of Police,
                R-4, Sountharapandiyanar Police Station,
                T.Nagar, Chennai 600 017.                                     ... Respondents


                Prayer: Writ Petition filed under Article 226 of the Constitution of India,
                praying for the issuance of Writ of Mandamus, directing the respondents 1 & 2
                to consider the representation of the petitioner's daughter dated 16.10.2024 and
                further direct the respondents 1 & 2 to take appropriate action against the
                respondents 3 to 7, who were involved in the illegal assault of the petitioner and
                violated the guidelines laid down by the Hon'ble Supreme Court in D.K.Basu
                Vs. State of West Bengal (1997) 1 SCC 416.

                                   For Petitioner        : Mr.M.Radhakrishnan
                                                           For Mr.P.Pugalenthi

                                   For R1, R2 & R8       : Mr.R.Muniyapparaj
                                                           Additional Public Prosecutor

                                   For R3 to R7          : Party in person.

                                                        ORDER

(Order of the Court was made by S.M.SUBRAMANIAM, J.)

The Writ of Mandamus has been instituted directing the respondents 1 &

2 to consider the representation of the petitioner's daughter, dated 16.10.2024,

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and to direct the respondents 1 & 2 to take appropriate action against the

respondents 3 to 7, who have involved in violating the guidelines issued in

D.K.Basu's case reported in (1997) 1 SCC 416.

2.The writ petitioner/accused has instituted the present writ petition.

The relief sought for is to direct the respondents 1 & 2 to consider the

representation submitted by his daughter for initiation of action against the

respondents 3 to 7.

3.The case of the writ petitioner is that, on 12.10.2024, he arrived to

Chennai from Madurai by Air and reached his residence at 7.00 p.m. On

13.10.2024, at 9.00 a.m., a meeting was scheduled at Pasumpon Devar Mahal,

located at Habbibullah Road, T.Nagar, Chennai. On 13.10.2024,

Ms.V.Veerammal, Inspector of Police, R4 Soundarapandiyanar Police Station,

informed the petitioner that he should not participate in the meeting. Around

11.45 a.m., the special team led by the Inspector of Police, Teynampet Police

Station, visited the residence of the petitioner, when the petitioner was with his

wife, daughter Ms.Lalitha (Advocate) and friends Lakshmanan and Palani. The

police officials had took the petitioner in a Car. Two police vehicles followed the

car belonging to the petitioner. The daughter of the petitioner Ms.Lalitha https://www.mhc.tn.gov.in/judis

(Advocate) followed them in her Maruti Swift Car. The petitioner was arrested

by the police nearby Pondybazaar Police Station, T.Nagar and the petitioner was

remanded to judicial custody.

4.Mr.Radhakrishnan learned counsel for the petitioner would mainly

contend that the directions issued by the Hon'ble Supreme Court in D.K.Basu's

case have been violated. Therefore, the arrest became illegal. In this context he

relied on the directions issued in Paragraph No.35 (1) to (5) & (10) of the

judgment.

5.The learned counsel relied on the First Information Report registered in

FIR No.191 of 2024. In the said report, it is stated that Mr.S.Rafeek Hussain,

Sub Inspector of Police, submitted a special report on 13.10.2024 at about 2.00

p.m. However, in the last paragraph of the FIR, it is stated that the special

report was received from the Sub Inspector of Police on 12.10.2024 at 14.00

hours. Citing the discrepancies, the learned counsel for the petitioner would

submit that no arrest intimation was provided to the family members of the

petitioner and the respondents have violated the directions issued in D.K.Basu's

case.

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6.It is stated that the petitioner came from Madurai to attend a meeting at

Chennai and he was arrested, when he was standing nearby DMS campus. His

daughter was also with him and she has taken videograph. Under these

circumstances, the police have wrongly stated the date in the FIR registered and

arrest intimation was not provided. Therefore, the entire process adopted by the

police authorities are not inconsonance with the guidelines issued by the

Supreme Court. Therefore, the relief as such sought for is to be considered.

7.The learned Additional Public Prosecutor would oppose by stating that

the typographical error in the FIR has been taken undue advantage by the

petitioner with an idea to escape from the criminal proceedings. The petitioner

is a history sheeter and involved in many number of criminal cases including

four murder cases. The petitioner is classified as A+ category in police records.

Therefore, the police arrested him on the basis of some information and there

was a likelihood of commission of crime. The arrest intimation was

immediately provided to the wife of the petitioner in Cell Phone

No.9176136572. However, in the arrest memo, the phone number of the wife

of the petitioner has been mistakenly typed as 9176136570 instead of

9176136572. The said typographical error in the arrest memo has been taken

undue advantage by the petitioner for filing the present writ petition. Though https://www.mhc.tn.gov.in/judis

the date in the arrest memo was initially typed as 12.10.2024, it was corrected

by the police authorities as 13.10.2024 at 16.45 hours. The corrected arrest

memo produced before this Court by the learned Additional Public Prosecutor

would reveal that the petitioner was arrested on 13.10.2024 at 16.45 hours.

8.Considered the arguments as advanced by the respective learned

counsel appearing on behalf of the parties to the lis.

9.The representation submitted by the daughter of the petitioner/accused

dated 16.10.2024 would be sufficient to form an opinion that the grounds raised

by the petitioner are untenable. Pertinently, the daughter of the petitioner in her

representation has categorically stated that the petitioner/accused on 12.10.2024

during evening hours came from Madurai to Chennai through flight. He had

reached his residence at Chennai at 7.00 p.m. Therefore, the daughter of the

petitioner herself know that the petitioner had not been arrested on 12.10.2024.

She has stated in her representation that the petitioner was arrested on

13.10.2024. The daughter of the petitioner has mentioned that the petitioner

was arrested. when the petitioner and his daughter was standing. Therefore, the

date of arrest and the time of the arrest have been categorically stated by the

daughter of the petitioner in her representation dated 16.10.2024. When the https://www.mhc.tn.gov.in/judis

daughter of the petitioner has narrated the facts in clear terms in her

representation, the typographical error committed by the police authorities,

while preparing the First Information Report and arrest memo initially cannot be

a ground to grant exoneration from the clutches of the criminal proceedings or

relief sought for to consider the representation as such sought for in the present

writ petition.

10.The learned counsel for the petitioner questioned the arrest by the

police and the procedures followed.

11.Section 170 of BNSS, 2023 provides powers to the authorities to

prevent commission of cognizable offences. Sub Section (1) of Section 170

enumerates that “a police officer knowing of a design to commit any cognizable

offence may arrest, without orders from a Magistrate and without a warrant,

the person so designing, if it appears to such officer that the commission of the

offence cannot be otherwise prevented”. Therefore, power of arrest to prevent

commission of cognizable offence has been conferred to the police authorities.

Police authorities are not expected to be mute spectators, when there is

likelihood of commission of any crime by any person. They are expected to act

prudently, efficiently, to protect the public and act swiftly in the manner known https://www.mhc.tn.gov.in/judis

to law. While preparing documents in such circumstances, there is a possibility

of typographical errors. Court has to consider the state of mind of the police

officers, when they are in the process of apprehending the A+ category accused

and the surrounding circumstances prevailed during the relevant point of time.

12.The learned Additional Public Prosecutor made a submission that

during the arrest of petitioner, his relatives and followers surrounded the police

officials, caused panic and created unrest. Even in the police station, the

followers have gathered and created pressure in the mind of the police officials,

which may result in committing certain typographical errors and such

typographical errors or wrong mentioning of date would not be a ground to

grant exoneration or any other reliefs allowing such an accused person to escape

from the clutches of criminal proceedings.

13.Procedures are contemplated for the purpose of execution. Procedural

violations no doubt are to be taken into consideration by the Courts. However,

certain mitigating circumstances and the typographical errors, if any, committed

during the process of following the procedures, the same cannot be taken undue

advantage by the accused persons. Such errors are to be construed as

condonable errors.

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14.In the present case, the daughter of the petitioner/accused in her

representation dated 16.10.2024 has narrated the facts stating that the

petitioner/accused through flight came from Madurai to Chennai on 12.10.2024

at 7.00 p.m. and he was arrested on 13.10.2024 at around 01.40 p.m. When

the family members have knowledge about the arrest and the daughter of the

petitioner was very much present during the arrest of the petitioner, he cannot

raise the ground that the arrest was not intimated to the family members of the

accused. The very ground is fictitious and untenable.

15.We have perused the antecedents of the petitioner as submitted by the

learned Additional Public Prosecutor by way of a typed set of papers. The

details of the cases against the petitioner are as under:

S.No. Police Station Crime No & Section Stage

302 IPC

1. Virudhunagar Rural PS Cr.No.399/2010 u/s 109, 120, Acquittal 29.04.2013 147, 148, 149, 302 IPC

2. Sathur PS Cr.No.11/2017 u/s 147, 148, SC No.57/2018 302, 506 (ii) IPC Acquittal 04.09.2024 Addl.Sessions Srivilliputhur.

3. Thirumangalam Town PS Cr.No.1227/2020 u/s 341, PT (PRC.04/2022) 114, 109, 148, 149, 302, Judicial Magistrate, 120(B) IPC Thirumangalam CD date – Next hearing -

4. Sivagangai Dist. Karaikudi Cr.No.162/2023 u/s 147, 148, PT (PRC.24/24) PS 302, 109, 120(B), 202, 115, Judicial Magistrate

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S.No. Police Station Crime No & Section Stage 149, 34 IPC Karaikudi CD date – (FS) Next Hearing

16.11.2024.

307 Case

5. Kallikudi PS Cr.No.55/2024 u/s 147, 148, UI Accused 307 IPC & 25 (1) A Arms Act Manibharathi not arrest

6. Thirumangalam Town PS Cr.No.185/2019 u/s.109, 147, NTF 10.10.2024 148, 294 (b), 307, 323 IPC

7. Sivagangai PS Cr.No.628/2021 u/s.109, 147, PRC No.25/2022 148, 149, 294(b), 307, 332, 20.09.2022 CD Date 506(2), IPC r/w 3 of TNPPDL (FS) Next Hearing – Act. 16.11.2024

8. Sivagangai PS Cr.No.633/2021 u/s.109, 147, C.C.No.378/2022 148, 149, 294(b), 307, 332, 20.09.2021 506(2), IPC.

Other case

9. Kallikudi PS Cr.No.174/2009 u/s.365 IPC AD

10. Kallikudi PS Cr.No.233/2013 u/s 294 (b) Acquittal 23.10.2020 506 (i)IPC

11. Kallikudi PS Cr.No.04/2020 u/s.147, 148, PRC No.78/2023 149, 294(b),323, 324, 506(ii) dt.13.07.2023 Judicial IPC Magistrate Thirumangalam

12. Kallikudi PS Cr.No.56/2020 u/s.188, 269, Refereed 16.05.2022 270, 271 IPC & 3 of Epidemic Disease Act 134, 135 TN HP Act 1939

13. Kallikudi PS Cr.No.1528/2020 u/s 143, Refereed 16.05.2022 341, 286, 290 IPC

14. Kallikudi PS Cr.No.1544/202 u/s 504 LB.No.1731 IPCr/w 4 of TNOPDL Act dt.11.06.2024

15. Madurai dist Villur PS Cr.No.89/2023 u/s 147, 148, MF 21.03.2018 452, 468, 471, 506(2) IPC

16. Madurai dist Villur PS Cr.No.91/2013 u/s 147, 148, MF 25.08.2014 452, 468, 471, 506 (2) IPC

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S.No. Police Station Crime No & Section Stage

17. Madurai dist Villur PS Cr.No.04/2014 u/s143, UI (No investigation) 120(b), 447, 427, 379, 468, 471, 420 IPC

18. Thirumangalam Taluk PS Cr.No.257/2020 u/s 188, 270 Refereed 16.05.2022 IPC

19. Thirumangalam Taluk PS Cr.No.310/2020 u/s.143, 188, Refereed 24.01.2022 269, 270 IPC & 151 Cr.P.C.

20. Thirumangalam Taluk PS Cr.No.1159/2020 u/s.143, Refereed 17.05.2022 145, 341, 188, 269 IPC r/w 184 MV Act.

21. Nagapattinam – Keevalur PS Cr.No.1492/2020 u/s.143, Refereed 11.12.21 269, 270, 341 IPC

22. Thirumangalam Taluk PS Cr.No.107/2024 u/s.147, 341, UI (Accused no 294 (b), 506 (i) IPC r/w 3 of arrest) TNPPDL Act.

23. Madurai Dist T.Kallupatti PS Cr.No.77/2021 u/s.147, 148, Refereed 294 (b), 448, 506 (2) IPC.

24. Karupppaiyurani PS Cr.No.1213/2020 u/s.147, UI (Accused no 148, 290, 451, 436, 109 IPC arrest) & 4 of TNPPDL Act.

16.During the arrest, the police have recovered arms and deadly weapons,

which were in possession of the petitioner/accused person. Since deadly

weapons and arms were recovered during the course of arrest, we are of the

considered opinion that the arrest made by the police authorities would squarely

fall under the powers conferred on them under Section 170 of BNSS.

Cognizable offence has been defined under Section 2(g) of BNSS and a conjoint

reading would reveal that the arrest by the police authorities are in accordance

with the procedures as contemplated and the grounds raised by the petitioner

are neither convincing nor tenable. Thus, we are not inclined to consider the

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present petition. Since a case has been registered and investigation is in

progress, we are not inclined to consider other facts. It is for the investigating

agency to continue the investigation by following the procedures.

17. Accordingly, the writ petition stands dismissed. No Costs.

Consequently, connected miscellaneous petition is closed.

                                                                  [S.M.S., J.]      [M.J.R., J.]
                sli                                                         13.11.2024
                Index: Yes/No
                Speaking/Non-speaking order

                To

1.The Additional Chief Secretary to the Government, Home, Prohibition and Excise Department, Secretariat, Chennai 600 009.

2.The Commissioner of Police, Greater Chennai, Vepery, Chennai 600 007.

3.Mr.Kuthalingam IPS., Deputy Commissioner of Police, T.Nagar District, T.Nagar, Chennai 600 017.

4.Mr.P.Vijayan, Assistant Commissioner of Police, T.Nagar Range, T.Nagar, Chennai 600 017.

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5.Ms.V.Veerammal, Inspector of Police, R-4, Sountharapandiyanar Police Station, T.Nagar, Chennai 600 017.

6.Mr.K.Senthil Murugan, Inspector of Police, E-3, Thenampet Police Station, Chennai 600 018.

7.Mr.Rafeek Hussain, Sub Inspector of Police, R-4, Sountharapandiyanar Police Station, T.Nagar, Chennai 600 017.

8.The Inspector of Police, R-4, Sountharapandiyanar Police Station, T.Nagar, Chennai 600 017.

9. The Public Prosecutor High Court of Madras.

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S.M.SUBRAMANIAM, J.