SEKAR REPORTER

Court News from Madras High Court

H.C.P.No.1163 of 2024G.R.SWAMINATHAN, J.The petitioner is the mother of the detenu, who has been detained as a’goonda’ vide order dated 12.05.2024 passed by the Commissioner of Police, Greater Chennai. The writ petition was listed for admission yesterday (23.05.2024). The original files were directed to be produced and the matter was passed over. At 2.15 p.m., the learned Advocate General appearing for the respondents produced the entire file. The matter was adjourned with an indication that the H.C.P. itself would be taken for final disposal today.

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H.C.P.No.1163 of 2024
G.R.SWAMINATHAN, J.
The petitioner is the mother of the detenu, who has been detained as a
‘goonda’ vide order dated 12.05.2024 passed by the Commissioner of Police, Greater Chennai. The writ petition was listed for admission yesterday (23.05.2024). The original files were directed to be produced and the matter was passed over. At 2.15 p.m., the learned Advocate General appearing for the respondents produced the entire file. The matter was adjourned with an indication that the H.C.P. itself would be taken for final disposal today.

  1. The learned Advocate General pointed out that the normal course of action adopted in matters such as the one on hand, is to admit the writ petition and order issuance of notice returnable by four weeks. Writ petitions challenging detention orders are taken up for final disposal in seriatim in due course. He drew my attention to Rule 19(3) of the Madras High Court Writ Rules, 2021 which states that Rule Nisi may be returnable by four weeks or earlier if so ordered by the Court. The learned Advocate General expressed his surprise as to why a departure is sought to be made in this case.
  2. I am obliged to offer my explanation. Let me state in clear and unambiguous terms that I was spoken to. Two highly placed persons met me in person and did not want me to test the detention order on merits. I am stationed in
    Madurai Bench and I am discharging my judicial duty as a Vacation Judge at the Principal Bench only for this week. If I had not been spoken to, I would have adopted the usual course of action as submitted by the learned Advocate General. Since I had been approached, I felt that If the writ is admitted and notice is ordered, those emissaries would have achieved their object.
  3. Even on the question of procedure, I am convinced that I have not breached the Writ Rules. Rule 19(3) of the Madras High Court Writ Rules 2021, states that Rule nisi may be returnable by four weeks or earlier if so ordered by the Court. Detenus are set at liberty either on the ground that the very passing of the detention order was illegal or that the rights of the detenu guaranteed under Article 22 of the Constitution of India have been violated. If the illegality of the detention order is evident on the very face of the record, nothing stops the Court from putting the State on notice and setting aside the order. Failure to do so will be an abdication of judicial responsibility. Article 21 of the Constitution is sacrosanct. Deprivation of personal liberty in contravention of law even for a single day has been frowned upon by the Hon’ble Supreme Court in many a case. Writ Petitions challenging preventive detention orders need not be routinely sent to wait in the queue. I got enrolled in the year 1991. The Madurai Bench was not established then. Most of the writ petitions challenging detention orders will come up for final disposal only in the 8th or 9th month. Many HCPs will be closed as infructuous because the detention period itself would have been undergone by then. One can take judicial notice of the fact that the law enforcing authorities take the short cut route of invoking detention law only to ensure that the accused remain in prison at least for a few months. In fact, when the bail petition is taken up for hearing, if the Judicial Magistrate or the Judge is informed that detention proceedings are going to be slapped on the accused, the bail petition will be dismissed. It is for this reason that I hold that if the detention order is patently vulnerable and liable to be set aside, it is not necessary to order the usual four weeks notice.
  4. Of course, the writ petition challenging the order has to be formally admitted and Rule nisi issued. But, failure to employ formal expressions will not mean that the procedure has been bypassed. The matter was listed for admission yesterday and the records were ordered to be produced by afternoon. The learned Advocate General did produce the records. Therefore, the writ petition must be taken as having been admitted and Rule nisi ordered yesterday itself. Rule 19(3) employs the expression “earlier”. Therefore, taking up the writ petition for final disposal today is no infraction of procedure. I find no merit in the objection raised by the learned Advocate General.
  5. I went through the entire file last night. It is seen that the detention order passed on 12.05.2024 rests on the ground case in Crime No.158 of 2024 registered on the file of Central Crime Branch, Cyber Crime Division-I, Chennai. The adverse cases are Crime No.154 of 2024 and Crime No.155 of 2024 both on the file of Chennai City Central Crime Branch, Cyber Crime Division-I, Chennai. Crime No.154 of 2024 was registered on 07.05.2024. The defacto complainant is a well known journalist Ms.Sandhya Ravishankar. The date of offence is 27.08.2018. The defacto complainant’s grievance is that no FIR was registered notwithstanding her efforts ever since. The offences are 294(b), 354D, 506(1), 509 IPC and Section 4 of the Tamilnadu Prohibition of Harrassment of Women Act, 2002. A reading of the same would indicate that the detenu had committed wrong against an individual. Crime No.155 of 2024 was registered on 06.05.2024 on the basis of complaint lodged by one Veeralakshmi, a social activist. The detenu had put up a youtube video making serious allegations against a high ranking police officer and had called him a womaniser. According to the defacto complainant, the statements of the detenu has a bearing on the image of the women constables and police officers. It is interesting to note that when the detenu was produced before the Additional Metropolitan Magistrate, Egmore, Chennai on 10.05.2024, request for remand was rejected. The learned Magistrate noted that FIR was registered at Coimbatore for the same offence and that the accused was remanded by the Court at Coimbatore. It was further observed that detention is not essential for investigation of the case since materials are available in social media to establish the offence. The request for remand in Crime No.154 of 2024 was also rejected for the very same reason.
  6. Coming to the ground case, it is seen that complaint was given by one Balamurugan, Superintending Engineer, CMDA. The detenu has made certain allegations regarding the finalisation of tender process in connection with the construction of new bus terminal at Kilambakkam. According to the defacto complainant, a false document was circulated by the detenu in the social media. This complaint was registered as Crime No.158 of 2024. While granting remand till 24.05.2024, the learned Trial Magistrate noted that investigation is in initial stage.
  7. It is well settled that a person can be detained as ‘goonda’ under Tamil Nadu Act 14 of 1982 only if he acts prejudicial to maintenance of public order. This is a question of degree and extent of reach of the act upon the Society. Making statements in the social media as in the above cases can hardly be said to disturb public peace or place public order in jeopardy so as to bring the case within the purview of the Act providing for preventive detention. The Hon’ble Supreme Court in Ameena Begum -vs- State of Telangana (2023) 9 SCC 587 held as follows:
    “28.1. The order is based on the requisite satisfaction, albeit subjective, of the detaining authority, for, the absence of such satisfaction as to the existence of a matter of fact or law, upon which validity of the exercise of the power is predicated, would be the sina qua non for the exercise of the power not being satisfied.
    28.2. In reaching such requisite satisfaction, the detaining authority has applied its mind to all relevant circumstances and the same is not based on material extraneous to the scope and purpose of the statute:
    28.3. Power has been exercised for achieving the purpose for which it has been conferred, or exercised for an improper purpose, not authorised by the statute, and is therefore ultra vires:
    28.4. The detaining authority has acted independently or under the dictation of another body;
    28.5. The detaining authority, by reason of self-created rules of policy or d in any other manner not authorised by the governing statute, has disabled itself from applying its mind to the facts of each individual case;
    28.6. The satisfaction of the detaining authority rests on materials which are of rationally probative value, and the detaining authority has given due regard to the matters as per the statutory mandate:
    28.7. The satisfaction has been arrived at bearing in mind existence of a live and proximate link between the past conduct of a person and the imperative need to detain him or is based on material which is stale;
    28.8. The ground(s) for reaching the requisite satisfaction is/are such which an individual, with some degree of rationality and prudence, would consider as connected with the fact and relevant to the subject-matter of the inquiry in respect whereof the satisfaction is to be reached;
    28.9. The grounds on which the order of preventive detention rests are not vague but are precise, pertinent and relevant which, with sufficient clarity. inform the detenu the satisfaction for the detention, giving him the opportunity to make a suitable representation; and
    28.10. The timelines, as provided under the law, have been strictly adhered”
  8. I am more than satisfied that the ground case as well as the adverse cases do not have potential whatsoever to disturb public order. It is ridiculous to claim that they will disturb the even tempo of social life. The statements recorded under Section 161 of Cr.P.C. in the ground case make a silly reading. The detenu had after all alleged commission of irregularities in the said tender process. I take judicial note of the fact that only to eliminate corruption, the Tamil Nadu Transparency in Tenders Act, 1997 was enacted. The detenu is often guilty of gross exaggeration. The detenu has also made false statements. But, the general image about him is that he is a whistleblower. No reasonable or prudent person let alone the detaining authority can come to a conclusion that the statements of the detenu will cause public disorder. The detenu by committing a wrong against Ms.Sandhya Ravishankar or by defaming women police or by circulating false document had committed prosecutable offences. He has to be tried in a court of law. If found guilty, he has to be punished. But, on this ground, recourse cannot be taken to preventive detention laws.
  9. The Hon’ble Supreme Court in the decision reported in (2021) 9 S.C.C.415 (Banka Sneha Sheela -vs- State of Telangana and Others)
    referred to the earlier case laws and noted that there was a clear distinction between ‘public order’ and ‘law and order’ and that liberal meaning cannot be given while interpreting the expression ‘public order’. In this case, even if the averments set out in the detention order and the grounds of detention are taken as true at their face value, still it can only be concluded that the activities of the detenu constitute offences under the I.P.C., and other laws and that the even tempo of social life has not been disturbed in any manner.
  10. It is well settled that detention order can be passed only if the detaining authority is satisfied based on materials on record that there is an imminent possibility of the detenu coming out on bail. If there is no such possibility or likelihood, the draconian provisions of preventive detention law will not be invoked. In this case, the detention order was passed on 12.05.2024. On the said date, the detenu had been arrested in three cases. One of them was Crime No.195 of 2024 on the file of Palanichettipatti Police Station, Theni District. The said case was registered for various offences including the one under NDPS Act. But, in the grounds of detention, there is no reference to the detenu’s arrest in Crime No.195 of 2024. The learned Advocate General in response to my question, admitted this factual position. The Hon’ble Division Bench of the Madras High Court in the decision reported in (2004) 1 MLJ Crl 829 (Anjalammal -vs- The State of Tamil Nadu and others) had held that the detaining authority must take into account the arrest of the detenu in all the cases registered against him. It is not enough that reference is made to one or two cases. In this case, there is reference to the detenu’s arrest in two cases. The omission to refer to the detenu’s arrest in Crime No.195 of 2024 is fatal. It indicates non-application of mind to the relevant fact on the part of the detaining authority. Even if the detenu is granted bail in the cases mentioned in the grounds of detention, still he cannot be released from custody unless he is granted bail in Crime No.195 of 2024 also. Thus, the issue arising in this case is squarely covered by the earlier precedents.
  11. The impugned detention order has to go on these twin grounds. I accordingly quash the same. The HCP is allowed.
    24.05.2024
    KST 
    H.C.P.No.1163 of 2024
    P.B.BALAJI, J.
    With utmost respect to my esteemed brother G.R.SWAMINATHAN, J., I am of the view that this is a case where the State should be permitted to file counter and the H.C.P., should be finally heard thereafter.
    24.05.2024 
    H.C.P.No.1163 of 2024
    G.R.SWAMINATHAN, J.
    AND
    P.B.BALAJI, J.
    Since there is no consensus between us, Registry is directed to place the papers before the Hon’ble Acting Chief Justice for passing appropriate orders.
    (G.R.S.J,.) (P.B.B,J.)
    24.05.2024 
    H.C.P.No.1163 of 2024
    G.R.SWAMINATHAN, J.
    AND
    P.B.BALAJI, J.
    There is consensus between us that the detenu Shankar @ Savukku Shankar
    should be transferred to the Central Prison, Puzhal from the Central Prison, Coimbatore.
    Considering the overall
    circumstances, we direct that the detenu Shankar @ Savukku Shankar shall be
    transferred to the Central Prison, Puzhal, Chennai to the Central Prison, Coimbatore.
    (G.R.S.J,.) (P.B.B,J.)
    24.05.2024
    G.R.SWAMINATHAN, J. and P.B.BALAJI, J.
    KST
    HCP No.1163 of 2024
    24.05.2024

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