Subramanian Vs. State
of Tamil Nadu & ANR.
[Criminal Appeal No. 417
of 2012 arising out of S.L.P. (CRL.) No. 9716 of 2011]
J U D G M E N T
appeal is directed against the final judgment and order dated 09.12.2011 passed
by the High Court of Judicature at Madras in Habeas Corpus Petition No. 937 of 2011
whereby the High Court dismissed the petition filed by the appellant herein.
a. The appellant is the father
of the Detenu. The Detenu has a dispute regarding their land with one Kaliyamoorty
for which a Civil Suit being O.S. No. 452 of 2008 is pending before the
Subordinate Judge at Trichy. The said Kaliyamoorty filed a complaint with police
on 18.07.2011 complaining that the detenu armed with aruval (sickle) along with
his associates apart from threatening the de facto complainant Kaliyamoorty caused
damage to the STD booth by damaging the glasses and chairs. Accordingly, an FIR
being Crime No. 361 of 2011 was registered by the K.K. Nagar Police Station, Trichy.
The complainant - Kaliyamoorthy had already lodged a complaint before the City Crime
Branch, Trichy, on 07.02.2010, which was registered by the Police as Case Crime
No. 3 of 2010 which is still pending.
b. On 21.07.2011, respondent
No.2 - Commissioner of Police passed a detention order against the detenu under
Section 3 of the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug
Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Sand Offenders,
Slum Grabbers and Video Pirates Act, 1982 (14 of 1982) while holding the detenu
to be a `goonda' noticing his involvement in the case of 18.07.2011 as well as
three past cases of the years 2008 and 2010.
c. Against the said
order of detention, the appellant sent a representation to the Detaining Authority
on 25.07.2011 for revoking the detention order. He also made a representation to
the State Government, which is the approving authority, against the said order.
After receiving the representation of the appellant on 28.07.2011, the Detaining
Authority forwarded the same to the Government recommending rejection of the
same. On 12.08.2011, the State Government after due consideration rejected the
d. Aggrieved by the said
decision of the State Government, the appellant herein filed Habeas Corpus Petition
before the High Court. The High Court, by its impugned judgment dated 09.12.2011,
dismissed the said petition.
e. Challenging the said judgment
of the High Court, the appellant has filed this appeal by way of special leave before
Mr. A. Sharan, learned senior counsel for the appellant and Mr. Guru Krishnakumar,
learned Additional Advocate General for the respondents.
A. Sharan, learned senior counsel for the appellant after taking us through the
detention order and the impugned order of the High Court confirming the same submitted
that from the materials placed, the Detaining Authority has not made out a case
for preventive detention. He also submitted that even if the stand of the
Detaining Authority is acceptable, the alleged action of the detenu, at the
most, is only a law and order problem and not of public order as arrived at by
the said Authority for invoking the T.N. Act 14 of 1982.
He further submitted
that the reference made by the Detaining Authority in all the three places in the
grounds of detention that the accused obtained regular bail and not
anticipatory bail shows non-application of mind by the Authority. He also
submitted that failure on the part of the Detaining Authority to consider the representation
of the detenu vitiates the entire order. Finally, he submitted that the cases
relied on by the Detaining Authority are stale and there is no ground for invoking
the provisions of T.N. Act 14 of 1982.
the other hand, Mr. Guru Krishnakumar, learned Additional Advocate General for the
State of Tamil Nadu, by taking us through the grounds of detention, reasoning of
the High Court in confirming the same and the materials placed in the form of
counter affidavit before this Court submitted that none of the arguments
advanced by the senior counsel for the detenu is acceptable and there is no
ground for interference by this Court.
considering the rival submissions, it is relevant to refer the definition of
`Goonda' as described in T.N. Act 14 of 1982 which reads thus: 2(f)
"goonda" means a person, who either by himself or as a member of or leader
of a gang, habitually commits, or attempts to commit or abets the commission of
offences, punishable under section 153 or section 153-A under Chapter VIII or under
Chapter XVI or Chapter XVII or Chapter XXII of the Indian Penal Code, 1860 (Central
Act XLV 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).
The said Act was enacted
by the State in the year 1982 and subsequently amended expanding the scope of
the Act in order 5to prevent certain persons from dangerous activities which
are prejudicial to the maintenance of public order. Since there is no dispute
as to the power and execution, there is no need to refer other provisions.
have carefully perused all the relevant materials and considered the rival
regard to the first submission that no case is made out for preventive
detention by invoking the provisions of T.N. Act 14 of 1982, though the ground
case incident arose out of a land dispute between the detenu and the de facto complainant,
however, the argument that it is only a law and order problem and that public order
was not disturbed is contrary to the facts and equally untenable. As rightly
pointed out by Mr. Guru Krishnakumar, the Detaining Authority, on consideration
of materials placed has found that the accused caused damage to both public and
private properties, threatened the public and also created a situation of panic
among the public.
In this regard, it is
useful to refer the materials narrated in the grounds of detention which are as
follows: "On 18.07.2011, at about 10:00 hours, while Kaliyamoorthy was available
in the STD booth, Kajamalai Kadaiveethi, Kajamalai, Tiruchirapalli city, the accused
Kajamalai Viji @ Vijay armed with aruval, his associates Manikandan, Uthayan,
Sathiya, Sivakumar armed with Kattas came there. The accused Kajamalai Viji @
Vijay abused Kaliyamoorthy in a filthy language, threatened to murder him with aruval
by saying "Have you become such a big person to give complaints against
You bastard, try
giving a complaint, I will chop you down right here." His associates
threatened him with their respective kattas. Thereafter, the accused Kajamalai Viji
@ Vijay caused damage to the glasses, chair and stool available in the shop. While
Kaliyamoorthy questioned them, the accused Kajamalai Viji @ Vijay slapped him on
the face. Kaliyamoorthy raised alarm for rescue.
The general public came
there and they were threatened by the accused Kajamalai Viji @ Vijay and his associates
by saying "if anyone turns up as witness, I will kill them." The nearby
shop-keepers closed their shops out of fear. Auto drivers took their autos from
the stand and left the place. The situation created panic among the public. On
the complaint of Kaliyamoorthy, a case in K.K. Nagar P.S. Cr. No. 361/2011 u/s
147, 148, 447, 448, 427, 294(b), 323, 506(ii) IPC and 3 P.P.D. Act was
the above materials, the Detaining Authority was satisfied that the detenu is
habitually committing crimes and also acting in a manner prejudicial to the maintenance
of public order and as such he is a `goonda' as contemplated under Section 2(f)
of the T.N. Act 14 of 1982. The order further shows that the Detaining
Authority found that there is a compelling necessity to detain him in order to prevent
him from indulging in such activities in future which are prejudicial to the
maintenance of public order.
After narrating the details
of the ground case and after adverting to earlier instances commencing from the
years 2008 and 2010, the Detaining Authority has concluded as under:- "Hence,
I am satisfied that the accused Kajamalai Viji @ Vijay is habitually committing
crimes and also acting in a manner prejudicial to the maintenance of Public order
and as such he is a Goonda as contemplated under Section 2(f) of the Tamil Nadu
Act No. 14 of 1982. By committing the above described grave crime in a busy
locality cum business area, he has created a feeling of insecurity in the minds
of the people of the area in which the occurrence took place and thereby acted in
a manner prejudicial to the maintenance of public order."
is well settled that the court does not interfere with the subjective satisfaction
reached by the Detaining Authority except in exceptional and extremely limited grounds.
The court cannot substitute its own opinion for that of the Detaining Authority
when the grounds of detention are precise, pertinent, proximate and relevant, that
sufficiency of grounds is not for the Court but for the Detaining Authority for
the formation of subjective satisfaction that the detention of a person with a
view to preventing him from acting in any 8manner prejudicial to public order is
required and that such satisfaction is subjective and not objective.
The object of the law
of preventive detention is not punitive but only preventive and further that the
action of the executive in detaining a person being only precautionary, normally,
the matter has necessarily to be left to the discretion of the executive authority.
It is not practicable to lay down objective rules of conduct in an exhaustive manner.
The satisfaction of the Detaining Authority, therefore, is considered to be of
primary importance with certain latitude in the exercise of its discretion.
next contention on behalf of the detenu, assailing the detention order on the
plea that there is a difference between `law and order' and `public order' cannot
also be sustained since this Court in a series of decisions recognized that
public order is the even tempo of life of the community taking the country as a
whole or even a specified locality. [Vide Pushpa Devi M. Jatia vs. M.L.
Wadhawan & Ors., 1987 (3) SCC 367 paras 11 & 14; Ram Manohar Lohia vs. State
of Bihar (1966) 1 SCR 709; Union of India vs. Arvind Shergill 9& Anr. 2000
(7) SCC 601 paras 4 & 6; Sunil Fulchand Shah vs. Union of India & Ors. 2000
(3) SCC 409 para 28 (Constitution Bench); Commissioner of Police & Ors. vs.
C. Anita (Smt), 2004 (7) SCC 467 paras 5, 7 & 13].
have already extracted the discussion, analysis and the ultimate decision of
the Detaining Authority with reference to the ground case dated 18.07.2011. It is
clear that the detenu, armed with `aruval', along with his associates, armed with
`katta' came to the place of the complainant.
The detenu abused the
complainant in filthy language and threatened to murder him. His associates
also threatened him. The detenu not only threatened the complainant with weapon
like `aruval' but also damaged the properties available in the shop. When the
complainant questioned the detenu and his associates, the detenu slapped him on
his face. When the complainant raised an alarm for rescue, on the arrival of general
public in and around, they were also threatened by the detenu and his associates
that they will kill them.
It is also seen from the
grounds of detention that because of the threat by the detenu and his associates
by showing weapons, the nearby shop keepers closed their shops out of fear and auto
drivers took their autos from their stand and left the place. According to the Detaining
Authority, the above scene created a panic among the public. In such
circumstances, the scene created by the detenu and his associates cannot be
termed as only law and order problem but it is public order as assessed by the Detaining
Authority who is supposed to safeguard and protect the interest of public. Accordingly,
we reject the contention raised by learned senior counsel for the appellant.
next contention relates to non-application of mind by the Detaining Authority
in respect of the bail obtained by the detenu. Learned AAG, by drawing our
attention to the factual details narrated in the grounds of detention and in
the counter affidavit submitted that such argument is factually incorrect. A contention
has been raised that the accused had obtained regular bail in all the criminal cases
referred to in the detention order and not anticipatory bail as noted therein,
and therefore, there is non-application of the mind to the relevant material by
the Detaining Authority.
As rightly pointed
out by learned counsel for the State, the said claim is factually incorrect. It
is also brought to our notice that the said submission was made only now before
this Court as an afterthought. A perusal of the impugned order of the High Court
clearly shows that the only contention before the High Court was that the
detenu got regular bail in Crime No. 727 of 2010 but the Detaining Authority
has wrongly mentioned the same as anticipatory bail.
Further, no specific ground
has been raised in the SLP. The only ground is that the copy of the
anticipatory bail order in Crime No. 727 of 2010 was not given to the detenu
which is also contrary to the record since it is specifically stated so in the
detention order and averred in the counter affidavit that all the materials
were duly furnished to the detenu. There is no denial of the same by filing rejoinder.
Further, it is pointed out that the detenu had obtained anticipatory bail in the
cases referred to in the detention order including in Crime No. 727 of 2010, accordingly,
the said contention is also liable to be rejected.
is also relevant to refer the finding of the High Court that the detenu being
granted bail or anticipatory bail does not matter as far as the fact remains
that he was not on remand in those cases and there was no prejudice to the detenu
by reason of the reference made in the detention order. The High Court has
rightly observed that the bail petition in respect of the ground case was pending
before the Sessions Judge, Tiruchirapalli and he was very likely to be released
on bail and if he comes out on bail, he would indulge in future activities which
will be prejudicial to the maintenance of public order.
senior counsel for the detenu next submitted that there was non-consideration of
the representation of the detenu by the Detaining Authority which vitiates the entire
detention order. The representation was received only on 28.07.2011 by the
Detaining Authority. It is pointed out that within a day, i.e., on 29.07.2011
itself, the detention order was approved by the Government. In such circumstances,
the Detaining Authority could not consider the representation.
Further once the
Government affirms the detention order, the Detaining Authority had become functus
officio. [Vide Sri Anand Hanumathsa Katare vs. Additional District Magistrate
& Ors. 2006 (10) SCC 725 paras 9 & 13]. Even otherwise, as rightly
pointed out by the learned counsel for the State, this argument is solely baseless
since the detenu simultaneously made a representation to the Government and the
Government had fully considered his representation and rejected the same on
Further, the Advisory
Board has also rejected the representation of the detenu by order dated 23.08.2011
thereby confirming the detention. This is also clear from the information furnished
in the counter affidavit filed on behalf of the respondent-State before this Court.
learned senior counsel for the appellant submitted that the cases relied on by
the Detaining Authority are stale. In order to answer this contention, we once again
perused the entire grounds of detention. The ground case relates to the
occurrence dated 18.07.2011 and prior to that, the detenu was involved in two
cases in the year 2010 and one case in the year 2008. The above details clearly
show that the detenu was a habitual offender and as such instances shown are not
stale as argued by the learned senior counsel for the appellant.
These aspects have
been taken note of by the High Court, in fact, the High Court has found that
the detenu had 14indulged in one case in the year 2008 and two cases in the year
2010 and the ground case in 2011. The particulars also show that in the year 2010,
the detenu had indulged in two cases within a span of 6 months and again had indulged
in the ground case in the year 2011, therefore, incident nos. 2 and 3 cannot be
said to be stale and, in such circumstance, the conclusion of the Detaining
Authority that the detenu was a habitual offender cannot be considered to be
based on stale instances.
incidents have been highlighted in the grounds of detention coupled with the
definite indication as to the impact thereof which have been precisely stated in
the grounds of detention mentioned above. All the incidents mentioned in the grounds
of detention clearly substantiate the subjective satisfaction arrived at by the
Detaining Authority as to how the acts of the detenu were prejudicial to the
maintenance of public order. All these aspects have been considered by the High
Court which rightly affirmed the detention order.
view of the above conclusion, while there is no quarrel as to the proposition of
law in the decisions relied on by the learned senior counsel for the detenu,
namely, Commissioner of Police (supra), Union of India vs. Paul Manickam & Anr.,
(2003) 8 SCC 342, M. Ahamedkutty vs. Union of India and Another, (1990) 2 SCC 1,
the same are inapplicable as being distinguished, more particularly, in view of
the factual details stated in the impugned detention order, we are not referring
to those decisions in detail.
the light of the above discussion, we are unable to accept any of the submissions
made on behalf of the appellant, on the other hand, we are in entire agreement
with the conclusion arrived at by the High Court, consequently, the appeal
fails and the same is dismissed.