Madras High Court
Smt.Kausalya vs The District Collector And on 5 May, 2005
Author: M.Karpagavinayagam
Bench: M.Karpagavinayagam, C.Nagappan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 05/05/2005
CORAM
THE HON'BLE MR.JUSTICE M.KARPAGAVINAYAGAM
AND
THE HON'BLE MR.JUSTICE C.NAGAPPAN
H.C.P.No.79 of 2005
and H.C.P.Nos.,97,105,109,118,124,157,160,162,184 AND 263 OF 2005
AND
H.C.M.P.Nos.50,47,49,46,56,48,13 AND 51 OF 2005
H.C.P.No.79 OF 2005 :
Smt.Kausalya ...Petitioner
-Vs-
1.The District Collector and
District Magistrate,
Kancheepuram.
2.The Secretary to Government,
Government of Tamil Nadu,
Prohibition and Excise Department,
Fort St.George,
Chennai-9. ...Respondents
Petitions under Article 226 of the Constitution of India, praying for
the issuance of a Writ of Habeas Corpus.
!For petitioners in H.C.P.Nos.79,97,105,109,124
and 184 of 2005 :
Mr.B.Kumar,
Senior Counsel,
assisted by Mr.R.Rajarathinam.
^For petitioner in H.C.P.No.118 of 2005 :
Mr.K.Chandrasekaran,
assisted by R.Yashodvardhan.
For petitioner in H.C.P.No.157 of 2005 :
Mr.I.Subramaniam,
Senior Counsel,
assisted by Mr.Arun Anbumani
for Mr.M.Satyanarayanan.
For petitioners in H.C.P.Nos.160,162
and 263 of 2005 :
Mr.S.V.Karthikeyan
for Mr.V.Darwin Wisdom
For respondents in all H.C.Ps.:
Mr.K.T.S.Tulsi,
Senior Counsel,
assisted by Mr.K.Doraisamy,
Public Prosecutor,
for Mr.S.Jayakumar,
Addl.Public Prosecutor.
:COMMON ORDER
M.KARPAGAVINAYAGAM,J.
The facts :
(a) One Sankararaman, Manager of Varadarajaswami Perumal Temple at Chinna Kancheepuram, was brutally murdered on 03.09.2004 at 05.30 p.m., while he was in his office of the temple, by the hooligans engaged at the instance and in pursuance of the conspiracy hatched by Jayendra Saraswathi of Kanchi Mutt.
(b) The motive for the said incident is that Jayendra Saraswathi was unable to bear the mental torture on receipt of anonymous letters sent by the said Sankararaman, exposing the illegal activities in the Mutt.
(c) During the course of investigation in this case, the sponsoring authority decided to put some of the accused under the Tamil Nadu Act 14 of 1982 and placed all the materials collected against them before the detaining authority, requesting for their detention.
(d) Accordingly, the detaining authority, having considered the materials placed before it, detained several accused in the said murder case, branding them as "Goondas", by passing separate orders on different dates.
(e) Out of those persons detained, 11 detenus have filed these Habeas Corpus Petitions before this Court separately, some of them directly and some of them through their relatives, seeking for quashing of the detention orders clamped against them and for their consequent release.
2. As the ground case in all these detention orders is one and the same, it would be appropriate to pass a common order and, accordingly, the same is being passed.
3. The points, on the basis of which the arguments have been advanced by different learned counsel for the 11 detenus, challenging the detention orders, are different. However, they could be grouped into the following captions:
(1) Non-applicability of Public Order to the instances quoted ;
(2) Non-application of mind, including the aspect of imminent possibility of the detenu being released on bail, on the part of the detaining authority ;
(3) Non-supply of the documents referred to and relied upon ;
(4) Non-supply of translation copies of various documents, despite demand;
and (5) Non-consideration of the vital documents.
4. In some H.C.Ps., the detaining authority would take into consideration one adverse case and one ground case. In other H.C.Ps., the detaining authority had considered only the ground case, which is common.
5. Since the detaining authority had passed detention orders on various grounds, which are different from case to case, the points of captions, referred to above, would not apply to each and every H.C.P., filed before this Court. The only point, which is common in all these H.C.Ps., is the first point. Hence, it would be worthwhile to deal with the first point, before dealing with the other grounds, which we will have to deal with separately, as they are not common.
6. As noted above, the first point, which is raised in all these H. C.Ps., relates to the non-applicability of public order to the instances quoted.
7. The plea in regard to the first point is, that the incidents, namely, one adverse case and one ground case in some cases and in other cases ground case only, on the basis of which the detention orders have been passed, would not attract public order; at the most, the alleged acts of the detenus are detrimental to the maintenance of law and order, relating to the crimes against the individuals; hence, the main element, namely, disturbance to the public order is absent and, as such, the detention orders cannot be clamped against the detenus.
8. In elaboration of the above plea, Mr.B.Kumar, learned Senior Counsel, and other counsel appearing for the petitioners in all these H.C.Ps., would strenuously contend that the occurrence or occurrences quoted in the detention orders in all the petitions would relate only to law and order, as the affected parties are only the individuals and the occurrence took place inside the house and office and, as such, the conclusion arrived at by the detaining authority that the said crimes were committed in the public place by the detenus would create fear and panic and a feeling of insecurity in the minds of the people of the area and thereby they acted in a manner prejudicial to the maintenance of public order is utterly wrong, as there are no materials in support of the same.
9. Per contra, Mr.K.T.S.Tulsi, learned Senior Counsel appearing for the State, in reply to the said common point urged on behalf of the detenus, would vehemently contend that the offences mentioned in the orders of detention with regard to each and every detenu are such that they had nation wide repercussions. It has shocked the religious sentiments of crores of people and any repetition of similar acts mentioned in the grounds of detention by members of the gang is bound to disturb the even tempo of life of the community throughout the length and breadth of the nation. He would further request this Court to take judicial notice of the extensive media reaction over these incidents over several months, which has led to polarisation of views among the large section of people, making exercise of power under the Act a greater compelling necessity.
10. Both the learned counsel would cite a number of authorities, to substantiate their respective contentions.
11. We have heard the learned counsel for the parties and perused the records. We have also given our careful consideration to the rival contentions urged on either side.
12. Before dealing with the said point, in the light of the respective submissions, let us now refer to the observations of the Supreme Court, with reference to disturbance to the public order i.e., the point in issue :
(A) In AIR 1966 SUPREME COURT 740 (RAM MANOHAR LOHIA V. THE STATE OF BIHAR AND ANOTHER), it is held as under :
"Does the expression "public order" take in every kind of disorders or only some of them ? 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. 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. 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."
(B) In 1969 (1) SUPREME COURT CASES 10 (PUSHKAR MUKHERJEE AND 29 OTHERS V. THE STATE OF WEST BENGAL), it is observed as follows :
"The difference between the concepts of a 'public order' and 'law and order' is similar to the distinction between 'public' and 'private' crimes. Dr.Allen has distinguished 'public' and 'private' crimes in the sense that some offences primarily injure specific persons and only secondarily the public interest, while others directly injure the public interest and affect individuals only remotely."
(C) In AIR 1970 SUPREME COURT 1228 (ARUN GHOSH V. STATE OF WEST BENGAL), it is held as under :
"Public order is the even tempo of the life of the community taking the country as a whole or even a specified locality. Disturbance of public order is to be distinguished from acts directed against individuals which do not disturb the society to the extent of causing a general disturbance of public tranquility."
(D) In 1973 (4) SUPREME COURT CASES 43 (DIPAK BOSE ALIAS NARIPADA V. STATE OF WEST BENGAL), it is observed as follows:
"Every assault in a public place like a public road and terminating in the death of a victim is likely to cause horror and even panic and terror in those who are the spectators. But, that does not mean that all of such incidents do necessarily cause disturbance or dislocation of the community life of the localities in which they are committed. It is not alleged in the grounds that they were exploded to cause terror in the locality so that those living there would be prevented from following their usual avocations of life."
(E) In AIR 1985 SUPREME COURT 18 (AJAY DIXIT V. STATE OF U.P. AND OTHERS), it is held as follows :
"However reprehensible the appellant's conduct might be, it did not add up to the situation where it may be said that the community at large was being disturbed. Therefore, it could not be said to amount to an apprehension of breach of public order. It is always a question of degree of the harm and its effect upon the community. This question has to be faced in every case on facts."
(F) In AIR 1989 SUPREME COURT 371 (SMT.ANGOORI DEVI V. UNION OF INDIA), it is observed as under :
"The impact on "public order" and "law and order" depends upon the nature of the act, the place where it is committed and the motive force behind it (emphasis supplied). If the act is confined to an individual without directly or indirectly affecting the tempo of the life of the community, it may be a matter of law and order only."
(G) In AIR 1989 SUPREME COURT 491 (PIYUSH KANTILAL MEHTA V. COMMISSIONER OF POLICE, AHMEDABAD, AND ANOTHER), it is held as follows :
"In order that an activity may be said to affect adversely the maintenance of public order, there must be materials to show that there has been a feeling of insecurity among the general public. If any act of a person creates panic or fear in the minds of the members of the public upsetting the even tempo of life of the community, such act must be said to have a direct bearing on the question of maintenance of public order".
(H) In 1989 (4) SUPREME COURT CASES 43 (ABDUL RAZAK NANNEKHAN PATHAN V. POLICE COMMISSIONER, AHMEDABAD AND ANOTHER), the following observation is made :
"The criminal cases are confined to certain private individuals and it is merely a law and order problem and it has nothing to do with maintenance of public order. Its reach and effect are not so deep as to affect the public at large. It does not create or tend to create any panic in the mind of people of particular locality or public in general nor it affects adversely the maintenance of public order. An act may create a law and order problem but such an act does not necessarily cause an obstruction to the maintenance of public order."
(I) In AIR 1990 SUPREME COURT 1086 (T.DEVAKI V. GOVERNMENT OF TAMIL NADU), it is held as under :
"Any disorderly behaviour of a person in the public or commission of a criminal offence is bound to some extent affect the peace prevailing in the locality and it may also affect law and order problem, but the same need not affect maintenance of public order. Even though it is stated in the grounds of detention by the detaining authority that by committing this grave offence in public in broad day light, the detenu created a sense of alarm, scare and a feeling of insecurity in the minds of the public of the area and thereby acted in a manner prejudicial to the maintenance of public order which affected even tempo of life of the community, there is no material on record to show that the reach and potentiality of the aforesaid incident was so great as to disturb the normal life of the community in the locality or it disturbed general peace and tranquility."
(J) In 1995 SUPREME COURT CASES (CRI) 454 (MUSTAKMIYA JABBARMIYA SHAIKH V. M.M.MEHTA, COMMISSIONER OF POLICE AND OTHERS), it is observed as follows :
"A distinction has to be drawn between law and order and maintenance of public order because most often the two expressions are confused. In order to bring the activities of a person within the expression of "acting in any manner prejudicial to the maintenance of public order", the fall out and the extent and reach of the alleged activities must be of such a nature that they travel beyond the capacity of the ordinary law to deal with him or to prevent his subversive activities affecting the community at large."
(K) In 2000 (6) SUPREME COURT CASES 751 (PHULWARI JAGDAMBAPRASAD PATHAK (SMT) V. R.H.MENDONCA AND OTHERS), it is held as under :
"Preventive detention measure is harsh, but it becomes necessary in the larger interest of society. It is in the nature of a precautionary measure taken for preservation of public order. The power is to be used with caution and circumspection. For the purpose of exercise of the power, it is not necessary to prove to the guilt that the person concerned had committed any of the offences as stated in the Act. It is sufficient if from the material available on record the detaining authority could reasonably feel satisfied about the necessity for detention of the person concerned in order to prevent him from indulging in activities prejudicial to the maintenance of public order. It is neither possible nor advisable to catalogue the types of materials which can form the basis of a detention order under the Act. That will depend on the facts and situation of the case."
(L) In 2003 SUPREME COURT CASES (CRI) 537 (DARPAN KUMAR SHARMA V. STATE OF TAMIN LADU AND OTHERS), it is observed as follows :
"The question whether a man has only committed a breach of law and order or has acted in a manner likely to cause disturbance of the public order is a question of degree and the extent of the reach of the act upon the society. Though in the grounds of detention the detaining authority had stated that by committing this offence in public the detenu created a sense of alarm, scare and a feeling of insecurity in the minds of the public of the area and thereby acted in a manner prejudicial to the maintenance of public order, the citation of these words in the grounds of detention is more in the nature of a ritual rather than with any significance to the content of the matter."
(M) In 2004 (7) SUPREME COURT CASES 467 (COMMISSIONER OF POLICE AND OTHERS V.C.ANITA (SMT), it is held as under :
"Every infraction of law must necessarily affect order, but an act affecting law and order may not necessarily also affect the public order. The true test is not the kind, but the potentiality of the act in question. One act may affect only individuals while the other, though of a similar kind, may have such an impact that it would disturb the even tempo of the life of the community. In one case, it might affect specific individuals only, and, therefore, touches the problem of law and order only. In another case, it might affect public order. The act by itself, therefore, is not determinant of its own gravity. In its quality, it may not differ from other similar acts, but in its potentiality, that is, in its impact on society, it may be very different."
13. A reading of the above observations contained in the judgments would elicit the following principles, enunciated by the Supreme Court, with reference to the point in question :
(1) The maintenance of law and order relates to the crimes committed by private individuals. The maintenance of public order relates to the disturbance to the even tempo of the life and public tranquility and its effect upon the life of the community in a locality.
(2) Every assault in a public place, resulting in the death of a victim, may cause panic to those who are spectators, but that does not mean that the said incident would cause disturbance or dislocation of the community life of the locality, in the absence of the material that the act is committed in a public place to cause terror to the people in the locality so that they would be prevented from following their usual avocations.
(3) The impact on "public order" and "law and order" depends upon the nature of the act, the place where it is committed and the motive force behind it (emphasis supplied). If the act is confined to an individual without affecting the tempo of the life of the community, it is a matter of law and order only and it may not fall within the orbit of public order.
(4) In order to bring the activity so as to show that it would affect the maintenance of public order, there must be material to show that there has been a feeling of insecurity among the general public.
(5) The mere words in the grounds of detention "by committing this grave offence in public, the detenu created a sense of alarm, scare and a feeling of insecurity in the minds of the public of the area" would not be sufficient to inject the requisite degree of quality and potentiality to show that the incident was so grave as to disturb the normal life of the community in the locality, in the absence of such materials.
14. Bearing the above guiding principles in mind, let us now go into the point in issue, in the light of the ground incident, quoted in the detention orders.
15. The ground case incident, which is common in all these cases, is alleged to have taken place on 03.09.2004 inside the temple office at Chinna Kancheepuram. It was at about 05.45 p.m. One Sankararaman, Manager of Arulmighu Devarajaswami Thirukoil, Chinna Kancheepuram, was sitting in a plastic chair opposite to the seat of Kuppusamy, the Temple Accountant. One Duraikannu, Office Assistant and A.S.Kannan, Cashier of the Temple, were present there. At that time, two persons came into the temple, entered into the Office Room of Sankararaman and attacked him on his head and right side ear and neck. Then, Sankararaman and others shouted. Two assailants rushed out of the temple with aruvals. The staff of the temple came out and saw the assailants, who joined their three associates, who were possessed of two Yamaha and one Hero Honda Motorcycles, and managed to escape. Then the witnesses returned to Office Room and saw Sankararaman succumbing to injuries in the chair itself. The matter was informed to the police. On the complaint of Ganesh, Appraiser of the Temple, a case was registered by Vishnu Kanchi Police in Crime No.914 of 2004 for the offence under Section 302 read with 34 IPC. Considering the nature of the offence, the Additional Superintendent of Police, Kancheepuram District, was nominated as the Chief Investigating Officer. In the meantime, five fake accused surrendered in this case. Then, during the course of investigation, it was found out that the main conspirator Kathiravan had executed the plan of false surrender with the help of his associates by making them to surrender in the main case. On 09.11.2004, Kathiravan was arrested and, on his confession, it was found out that Sankararaman was murdered in pursuance of the conspiracy, hatched by Jayendra Saraswathi of Kanchi Mutt, in order to eliminate him, as Sankararaman gave mental torture to Jayendra Saraswathi by writing several letters, exposing the illegal and immoral activities of both Jayendra Saraswathi and Vijayendra Saraswathi.
16. The relevant portions of the Detention Order relating to the ground incident, which are common and verbatim same in all the detention orders, are given as follows :
"The offences under Sections 302,194,201,205,213,214 r/w 34 and 120 (B) IPC are the offences against affecting the human body punishable under Chapter XVI of Indian Penal Code. Hence, I am satisfied that Thiru .....
(detenu) is habitually committing crimes and is 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 14 of 1982. By committing the above described grave crime in a public place, he has created fear and panic and a feeling of insecurity in the minds of the people of the area and thereby acted in a manner prejudicial to the maintenance of public order."
17. The above paragraph would disclose that the detaining authority had arrived at the satisfaction that the detenu is habitually committing crimes and acting in a manner prejudicial to the maintenance of public order, thereby creating fear and panic and a feeling of insecurity in the minds of the people of the area. (emphasis supplied)
18. Para 5 (1) of the Detention Order would indicate as follows :
"......On the materials placed before me, I am satisfied that the said Thiru .......... is a "GOONDA" and that there is a compelling necessity to detain him in order to prevent him from indulging in such further activities in future, which are prejudicial to the maintenance of public order under Section 2 (f) of the provisions of Tamil Nadu Act 14 of 1982."
19. This paragraph would indicate that the detaining authority is satisfied that the detenu, being a Goonda, has to be detained, in order to prevent him from indulging in further activities in future, which are prejudicial to the maintenance of public order. (emphasis supplied)
20. The above paragraph would also reveal that the satisfaction arrived at by the detaining authority is that unless he is detained, the detenu would indulge in similar activities in future, prejudicial to the maintenance of public order and, as such, there is a compelling necessity to get him detained under Tamil Nadu Act 14 of 1982. ( emphasis supplied)
21. Before dealing with the correctness of the above conclusion made by the detaining authority, it would better, at this stage, to refer to the relevant provisions of the Act, dealing with the power of the authority to detain the persons, who disturb the maintenance of public order.
22. It is not debated that under Section 3 (1) of the Act, the State Government is empowered to detain any person being a Goonda, with a view to prevent him from acting in any manner prejudicial to the maintenance of public order. To invoke Section 3 (1), there shall be two requirements to be satisfied, namely, (i) detenu must be a Goonda and (ii) the detenu should have acted in a manner prejudicial to the maintenance of public order and he is likely to continue to do the same, if he is not detained.
23. The word "Goonda" has been defined under Section 2 (f) of the Act. As per Section 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 Chapter XVI or Chapter XVII or Chapter XXII of the Indian Penal Code.
24. In this case, admittedly, the offences are punishable under Chapters mentioned in the definition of "Goonda" under Section 2 (f). Though it is argued that the habituality has to be established by showing number of cases with reference to commission of offences and, as the element of habituality is absent, the definition of Goonda is not attracted, this aspect need not be dealt with in detail, since it is settled law that habituality would not depend upon the number of cases, but would depend upon the potentiality of the incident in question. Therefore, instead of delving deep into the said question, it would be better to assume that the detenus are all described as "Goondas", as per definition of Section 2 (f) of the Act, as the offences are admittedly coming under Chapters of IPC, as found in Section 2
(f) of the Act.
25. Now, the main question to be answered is, "whether the activities, which the detenus have indulged, would attract the second requirement, namely, "prejudicial to the maintenance of public order ?"
26. What is the meaning of "the activities prejudicial to the maintenance of public order" ?
27. A definition has been given in Section 2 (a) of the Act. The definition of Section 2 (a) is as follows :
"In this Act, unless the context otherwise requires,-
(a) "acting in any manner prejudicial to the maintenance of public order", means -
(i) ....
(ii)....
(ii-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.
(iv)....
(v)....
Explanation :- For the purpose of this clause (a), public order shall be deemed to have been affected adversely, or shall be deemed likely to be affected adversely, inter alia, if any of the activities of any of the persons referred to in this clause (a) directly or indirectly, is causing or calculated to cause any harm, danger or alarm or a feeling of insecurity, among the general public or any section thereof or a grave or widespread danger to life or public health."
28. A conjoint reading of Section 2 (a), (iii) and Explanation would make it obvious that only when the activities of a person as a Goonda directly or indirectly affect the maintenance of public order thereby causing or calculated to cause danger or a feeling of insecurity among the general public, public order shall be deemed to have been affected.
29. On a perusal of all the detention orders impugned herein, it is clear that the detaining authority would deem it fit to make the observation in the grounds of detention in para 4 and para 5 (i) that " the detenu, by committing the grave crime in a public place, has created fear and panic and a feeling of insecurity in the minds of the people of the area and thereby acted in a manner prejudicial to the maintenance of public order", in order to satisfy the mandatory requirement, as contained in Section 2 (a), (iii) and Explanation of the Act.
30. Now, the next question that arises is, whether the said observation by way of conclusion made by the detaining authority, as contained in paras 4 and 5 (i) of the grounds of detention, with reference to the disturbance to the maintenance of public order, is supported by any material whatsoever either in the grounds of detention or the documents supplied along with the grounds of detention?
31. Let us now see each of the Habeas Corpus Petitions one by one :
(1) H.C.P.No.79 of 2005 has been filed by Tmt.Kausalya, the mother of the detenu Kathiravan. In this case, 85 documents have been placed before the detaining authority. These documents would include the statements of the witnesses in the adverse case registered in Crime No.859/2002 relating to the complaint given by Radhakrishnan for the occurrence took place on 20.9.2002 and the statements of the witnesses in the ground case in Crime No.914/2004 which took place on 3.9.20 04. In this case, one of the important document is the confession statement of Kathiravan, the detenu. His role is that he is one of the main conspirators. On the basis of these documents, the detaining authority passed an order of detention as against Kathiravan on 14.1.200 5. (2) Next case is H.C.P.No.97 of 2005. This is with reference to the detenu Sundar @ Meenakshisundaram, filed by M.Chellammal, the wife of the detenu. The detenu Sundar is an accused in both Crime No.859/2002 which was registered on the complaint of Radhakrishnan and Crime No.914/2004 in relation to the murder of Sankararaman. In this case, 80 documents were filed before the the detaining authority. One of the important document is the confession statement of Sundar @ Meenakshisundaram, the detenu. The role attributed to the detenu is that at the instance of Kathiravan, the detenu arranged three persons for fake surrender on 27.10.2004 as if they participated in the murder took place in the temple on 3.9.2004. Relying upon the documents, the detaining authority passed the order of detention as against Sundar @ Meenakshisundaram dated 15.1.2005. (3) H.C.P.No.105 of 2005 is with reference to the detenu Ananda Kumar @Anand on whose behalf, Vadivambal, the mother of the detenu has filed this habeas corpus petition. In this case, the detention order has been passed only on the basis of the ground case,namely Sankararaman murder case which took place on 3.9.2004. The sponsoring authority placed 49 documents including the statements of the witnesses and the confession of Anand Kumar @ Anand, the detenu. The role attributed to the detenu is that he is one of the persons who stood outside the temple on 3.9.2004 when the occurrence had taken place inside the office of the temple. On the basis of the documents placed before him, the detaining authority passed an order of detention as against Anand Kumar @ Anand on 16.1.2005. (4) The next case is H.C.P.No.109 of 2005 filed by Devi, the wife of the detenu K.S.Kumar. In this case, one adverse case is cited against him in respect of the occurrence took place on 18.11.2003 which was registered for the offences under Sections 147, 148, 448, 419, 212, 506(ii), 302 r/w 120B, 149 and 109 I.P.C.in Crime No.1540/2003. The said case is pending trial before the Sessions Court. Though the motive for the adverse case that took place on 20.9.2002 and the ground case which took place on 3.9.2004 is the same in respect of the other detenus, the motive in Crime No.1540/2003 is entirely different from the ground case. In the ground case, the role attributed to the detenu is that he is one of the persons who stood outside the temple on 3.9.2004 when the occurrence had taken place inside the office of the temple. In this case, the sponsoring authority placed 58 documents before the detaining authority including the confession statement of K.S.Kumar. On the basis of these documents, the detaining authority passed an order of detention as against K.S.Kumar on 16.1.2005. (5) H.C.P.No.118 of 2005 would relate to the detenu N.Sundaresan filed by one V.Ananthanarayanan, the son-in-law of the detenu. In this case, the sponsoring authority had placed the documents relating to the Crime No.859/2002 for the occurrence took place on 20.9.2002 and the documents relating to the Crime No.914/2004 for the murder of Sankararaman took place on 3.9.2004. In this case, the sponsoring authority has placed before the detaining authority 68 documents. One of the documents is the confession statement of the detenu N.Sundaresan. The role attributed to the detenu is that he being the Manager of Kanchi Mutt is a co-conspirator along with the other co-accused in the conspiracy to commit attack on Radhakrishnan and also to commit the murder of the deceased Sankararaman. On the basis of the documents, the detaining authority passed an order of detention as against N. Sundaresan on 21.1.2005. (6) H.C.P.No.124 of 2005 would relate to the detenu S.Rajinikanth @ Chinna @ Rajinichinna. P.Sugunan, the father of the detenu has filed this petition. The sponsoring authority has placed the documents relating to the Crime No.914/2004 alone as he is said to be involved only in the ground case.
In this case, 54 documents have been placed before the detaining authority. One of the documents is the confession statement of Rajinikanth, the detenu. The role attributed to the detenu is that he is one of the persons who stood outside the temple on 3.9.2004 when the occurrence took place inside the office of the temple. Relying upon the documents, the detaining authority passed the order of detention as against Rajinikanth @ Chinna @ Rajinichinna dated 14.1.2005. (7) H.C.P.No.157 of 2005 is relating to the detenu M.K.Raghu filed by Mr.M.K.Prabhakaran, the elder brother of the detenu. The detaining authority relied upon two cases, one adverse case took place on 20.9 .2002 in relation to the attack on Radhakrishnan and the murder of Sankararaman took place on 3.9.2004. 64 documents have been placed by the sponsoring authority before the detaining authority. One of the documents is the confession statement of M.K.Raghu.The role attributed to the detenu is that he is a co-conspirator for both the occurrences. On the basis of the documents, the detaining authority passed an order of detention as against M.K.Raghu on 21.1.2005. (8) H.C.P.No.160 of 2005 relates to the detenu D.Anil @ Anilkumar. This habeas corpus petition has been filed by the detenu himself. In this case, only the ground case alone has been relied upon as against the detenu. The sponsoring authority collected 47 documents including the confession statement of the detenu Anilkumar and placed before the detaining authority. The role attributed to him as per his confession is that he went to the temple along with the other accused and stood outside the temple. The detaining authority on the basis of the documents, passed an order of detention as against Anil @ Anilkumar on 14.1.2005. (9) H.C.P.No.162 of 2005 is with reference to the detention order passed on Baskar @ Madu Baskar filed by the detenue himself. In this case also, the detention order has been passed only on the basis of the ground case which took place on 3.9.2004. The sponsoring authority collected 36 documents and placed before the detaining authority. No confession was recorded from this Baskar, since he surrendered before the Judicial Magistrate, Tiruvottiyur in this case. The role attributed to him is that he also went to the temple to participate in the murder of Sankararaman in pursuance of the conspiracy. On the basis of the documents, the detaining authority passed an order of detention as against Baskar @ Madu Baskar on 14.1.2005. (10) H.C.P.No.184 of 2005 would relate to Appu @ K.G.Krishnaswamy. This petition has been filed by Nirmala, the wife of the detenu. In this case, the detaining authority would rely upon both the occurrences which took place on 20.9.2002 and on 3.9.2004. The sponsoring authority collected 71 documents and placed before the detaining authority. One of the documents is the confession statement of Appu @ K.G. Krishnaswamy. The role attributed to him is that he is a co-conspirator for both the occurrences. The detaining authority considered all the documents and passed the detention order dated 4.2.2005.
(11) H.C.P.No.263 of 2005 is filed by Silver Star @ Stalin, the detenu himself. The detaining authority would rely upon one adverse case and the ground case. The adverse case relates to the Crime No.315/2 004 of Rajamangalam Police Station which was registered under Sections 147, 341, 323 and 427 I.P.C. The occurrence in the said crime number took place on 6.3.2004. As far as he is concerned, the motive for the occurrence is different. The sponsoring authority collected 49 documents and placed before the detaining authority. One of the important documents is the confession statement of Silver Star @ Stalin, the detenu. The role attributed to him is that for helping the other detenus, he arranged for the surrender of fake accused in the murder case. On the basis of the documents, the detaining authority passed an order of detention as against Silver Star @ Stalin on 7.2.2005.
32. The crux of the confession statements of the detenus including Kathiravan relied upon by the detaining authority is as follows:
"Kathiravan, the detenu was working as a driver of Appu, another detenu. Appu used to meet Sri Jayendra Saraswathi in Sankara Mutt frequently. A week prior to 20.9.2002, Jayendra Sarasathi summoned Appu and Ravi Subramanian and showed the photograph of Radhakrishnan of Mandaveli, Chennai and informed them that he lost his mental peace and sleep because of the torture given by him and told them that he should be attacked and taught a lesson. The job was entrusted to Sundar who engaged Chinna Kumar, Boominathan, Kannan, Ananda Kumar and Laxmanan to study the movements of Radhakrishnan. On 20.9.2002, while Sundar and Kathiravan were keeping a watch outside the house of Radhakrishnan of Mandaveli, Ananda Kumar and Laxmanan entered into the house and attacked Radhakrishnan. On 1.9.2004, on the request of Jayendra Saraswathi of Kanchi Mutt, Ravi Subramanian and Kathiravan, the detenu met him in the Mutt. He informed them that Sankararaman of Varadharaja Perumal Temple, Chinna Kancheepuram has been causing mental agony and torture by writing anonymous letters and asked them to do away with Sankararaman and that they need not worry about the case and he was prepared to spend even Rs.50 lakhs for that purpose. He promised Kathiravan that each of the persons to be engaged would be paid Rs.10 lakhs. Advance also was paid. On 3.9.2004 at about 5.45 p.m., Madu Baskar and Ambigapathy entered into the temple and attacked and murdered Sankararaman, while other accused kept a watch outside the office. Both Kathiravan and Rajini Chinna got huge amount from the Mutt and distributed the money to assailants. Later, Kathiravan and others have maneuvered for fake accused to surrender as if they have committed the murder." 33. The perusal of the entire records including the confession of the detenus, which were considered and relied upon by the detaining authority would indicate that in pursuance of the conspiracy hatched by Jayendra Saraswathi and others of Kanchi Mutt, Kathiravan, Appu and Ravi Subramaniam engaged other accused who attacked Radhakrishnan in his house at Mandaveli on 20.9.2002 and murdered Sankararaman in the temple office at Chinna Kancheepuram on 3.9.2004 and for the execution of the said plan, a huge amount was given by Jayendra Saraswathi and the same was shared by the accused, the detenus and thereafter, Kathiravan and others arranged for the surrender of fake accused in the murder case at the instance of Appu @ Krishnaswamy.
34. On a careful scrutiny of the entire records placed before the detaining authority on the basis of which the detaining authority had arrived at subjective satisfaction to clamp the order of detention upon the detenus, it is clear that the sponsoring authority has never placed even a single document before the detaining authority to show to the detaining authority that immediately after the occurrence, there was a disturbance to the public order, thereby even tempo of the life of the local area of the community was affected.
35. In spite of our hectic search, we are unable to find any material either through some documents or through some statements from the public to show that due to the ground incident, there has been a feeling of insecurity among the people who are residents of the local area. Similarly, no single material has been placed before the detaining authority to indicate that even tempo of life was affected or that the people in the locality got afraid or felt insecured or that there was public disorder. Nobody speaks about the apprehension that even tempo of the community got endangered.
36. In the absence of any material to show that there was a disturbance to the public order in the public place and the people got panic due to the said incident, we are at a loss to understand as to how the detaining authority would uniformly state in all the detention orders: "By committing the above described crime in a public place, he has created fear and panic and a feeling of insecurity in the minds of the people of the area and thereby acted in a manner prejudicial to the maintenance of public order."
37. It is not the case of the sponsoring authority that all the detenus on whose behalf these habeas corpus petitions have been filed were present at the spot and by their acts in the spot which is a public place, the people in the area felt insecured and fear and panic has been created in the minds of the people in the locality. On the other hand, even according to the sponsoring authority, only two persons entered into the temple and attacked the deceased Sankararaman and came out and sped away from the scene along with three others who were waiting outside the temple with motor-bikes. Thus, it is clear that the conclusion arrived at by the detaining authority as mentioned in the grounds of detention totally contradicts the case of the sponsoring authority.
38. Had the detaining authority properly gone through the statement of Kathiravan and other detenus, where there is a reference to the names of the actual assailants who went inside the temple, the detaining authority would not have formulated such a ground. Admittedly, either the witnesses for the occurrence or the confession statement of Kathiravan and the confession statements of the actual assailants would not at all refer to any disturbance to the public order immediately after the occurrence. Similarly, it is to be pointed out that it is not the case of the sponsoring authority that the assailants participated in the crime in the area in order to affect the even tempo of the life of the community.
39. As indicated above, the incident or incidents quoted in all the detention orders would pertain to the specific individuals who were attacked by some detenus on the basis of the conspiracy hatched by other detenus to execute the design of attacking Radhakrishnan at Mandaveli, Chennai, and murdering Sankararaman at Chinna Kancheepuram, the individuals.
40. According to Mr.K.T.S.Tulsi, the senior counsel appearing for the State, the ground case has shocked the moral and religious sentiments of crores of people and this Court could also take judicial notice of the extensive Media reaction over several months which has led to the polarization of views amongst larger section of people making exercise of power under the Act a greater compelling necessity.
41. We are afraid, that this contention, in our view, cannot be countenanced. Admittedly, the detaining authority has not arrived at subjective satisfaction on the basis that moral and religious sentiments of crores of people were affected. Unless the detaining authority relies upon some materials to come to the conclusion that the ground case shocked the moral and religious sentiments of crores of people, this Court cannot infer these things, as this Court is concerned only with subjective satisfaction of the detaining authority which must be reflected in the detention order on the basis of the materials. Apparently, those materials are absent.
42. Apart from the fact that there is no material to show that there was a disturbance to the public order and tempo of the life was affected, it has to be remembered that the Supreme Court in the decision in T.DEVAKI v. GOVERNMENT OF TAMIL NADU (A.I.R.1990 S.C.1086) went to the extent of saying in the case where one Thamaraikani, while a Seminar was going on in a Kalai Arangam Hall attended by the public and officials, threw a dagger and a bottle containing petrol at the Minister making an attempt to kill him, that though the said incident resulted in the persons present in the hall panicked and got scared and the Seminar came to an abrupt halt for a while, and since the detenu's activity disturbed the proceedings of the Seminar only for a while and the Seminar appeared to have continued later on, this incident could not affect public peace and tranquility nor it had potential to create a sense of alarm and insecurity in the locality.
43. The above decision would indicate that even when there is a disturbance to the public in a public gathering, it cannot be taken to be prejudicial to the maintenance of public order as the proceedings of the Seminar only stopped for a while and the same could not be said to have prejudicially affected the even tempo of life of the community. Even the trace of public disturbance at least for a while is not available in the present case.
44. As pointed out by the Supreme Court, the question to be asked in these cases is: "Does it lead to disturbance of the current life of the community so as to amount to disturbance to the public order or does it affect merely an individual leaving the tranquility of the society undisturbed?
45. The distinction between the areas of 'law and order' and ' public order' is one of the degree and extent of the reach of the act in question on society. It is the potentiality of the act to disturb the even tempo of life of the community which makes it prejudicial to the maintenance of the public order. If a contravention in its effect is confined only to a few individuals directly involved as distinct from a wide spectrum of public, it could raise problem of law and order only.
46. In the cases on hand in which detention orders have been passed, it was never shown to the detaining authority through the materials that the disturbance to the public order was such that it affected the even tempo of life of the community. It is true that as stated above, in the grounds of detention, the detaining authority had stated that by committing this offence in public the detenu created a sense of alarm, scare and a feeling of insecurity in the minds of the public of the area and thereby acted in a manner prejudicial to the maintenance of public order. But, this sort of citation of these words is more in the nature of a ritual rather than with any significance.
47. As indicated by the Supreme Court, the mere words in the grounds of detention with reference to the feeling of insecurity in the minds of the public of the area would not be sufficient to inject the requisite degree of quality to show that the incident was so grave as to disturb the normal life of the community in the locality, in the absence of such materials.
48. Thus, in these cases, the materials have not been placed before the detaining authority to indicate that due to the ground incident, there is a disturbance to the public order and tempo of life has been greatly affected, thereby the detenus created a sense of scare and a feeling of insecurity in the minds of the public.
49. In such circumstances, we have no other alternative except to hold that the detention orders, passed by the detaining authority on the ground that the activities of the detenus were prejudicial to the maintenance of public order, without any material whatsoever, are vitiated. Accordingly, the orders are liable to be quashed on this ground alone.
50. In the light of our finding over the first point, it is unnecessary for us to deal with the other four points urged by the counsel for the petitioners.
51. To sum up: The sponsoring authority neither collected nor placed any material before the detaining authority to enable the authority to arrive at a subjective satisfaction to conclude that due to the ground incident which took place on 3.9.2004 in which Sankararaman, the Manager of the temple was done to death inside his office, there is a disturbance to the public order and even tempo of the life has been greatly affected, thereby the detenus created a sense of scare and a feeling of insecurity in the minds of the community in the locality. Even then, the detaining authority has mechanically passed the detention orders which are in question before this Court, although the incidents quoted in the detention orders do not attract the disturbance to the public order. The failure of the detaining authority to verify about the applicability of the disturbance to the public order in these cases would vitiate the detention orders and therefore, those orders are held to be not legal and accordingly, the same are quashed.
52. In fine, all these Habeas Corpus Petitions are allowed and the detention orders are set aside. The detenus are directed to be set at liberty forthwith, unless they are required in connection with any other case. Consequently, the connected H.C.M.Ps. are closed.
Index :Yes Internet :Yes dixit/mam Copy to :
1.The District Collector and District Magistrate, Kancheepuram.
2.The Secretary to Government, Government of Tamil Nadu, Prohibition and Excise Department, Fort St.George, Chennai-9.