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MATHI @ MATHIVANAN versus THE COMMISSIONER OF POLICE

High Court of Madras

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Mathi @ Mathivanan v. The Commissioner of Police - H.C.P. No.279 of 2003 [2003] RD-TN 273 (28 March 2003)



IN THE HIGH COURT OF JUDICATURE AT MADRAS



Dated: 28/03/2003

Coram

The Honourable Mr. Justice V.S. SIRPURKAR

and

The Honourable Mr. Justice V. KANAGARAJ

H.C.P. No.279 of 2003

Mathi @ Mathivanan .. Petitioner -Vs-

1. The Commissioner of Police,

Coimbatore City,

Coimbatore.

2. State of Tamilnadu,

rep. by the Secretary,

Home (Law & Order) Department,

Secretariat,

Fort St. George,

Chennai-9.

3. The Union of India,

rep. by its Secretary,

Home Department,

New Delhi.

4. The Sub Inspector of Police,

B-2, R.S.Puram Police Station,

Coimbatore City,

Coimbatore. .. Respondents Petition filed under Article 226 of The Constitution of India to issue a writ of Habeas Corpus for the relief as stated therein. For Petitioner : Mrs.A.Jagadeeswari

For Respondents : Mr.A.Navaneethakrishnan,

1,2&4 Addl.Public Prosecutor.

:O R D E R



(Order of the Court was made by

V.S. SIRPURKAR, J.)

Challenge is to the order dated 25.4.2002 passed by the Commissioner of Police, Coimbatore City under Section 3(2) of the National Security Act, 1980 directing detention of one Mathivanan @ Mathi, son of Nataraj.

2. In the grounds of detention, it is specified by the detaining authority that on 15.4.2002 evening, one Mohammed Musthafa, who was working as Imam in the Muslim Prayer Hall in Tamil Nadu Agricultural University, was assaulted by one Saravanan and Boopalan, who were the office bearers of the unit of Siva Sena. Out of these persons, Saravanan took knife and stabbed the said Mohammed Musthafa because of which Mohammed Musthafa was injured. It is then said that when a duel was created because of the assault, some of the persons came there for help and the assailants ran to the nearby petty shop and started brandishing soda bottles to the public. Saravanan smashed bottles and Boopalan brandished the knife and caused all the public run helter skelter. The traffic also came to a stand still. A reference was made to the criminal case registered in Crime No.519 of 2002 under Sections 3 41, 307 and 506(ii) I.P.C. by the Sub Inspector of Police, B-6, R.S. Puram Police Station, Coimbatore City. It was then stated that during the course of investigation, the detenu Mathivanan came to be arrested and confession was recorded from him on 17.4.2002. He was produced before the Judicial Magistrate No.I, Coimbatore and was remanded to the jail custody. It is relied further that the news of attack on a Muslim Imam created panic and uneasiness among the public in the area and also generated a feeling of great scare in the City and large police had to be deployed to bring about communal harmony and ease the tension. It is then pointed out that the detenu was a party to the conspiracy for this incident. Out of the conspiracy of which the detenu was a party along with Saravanan and Boopalan which pertains doing away with important muslims and also about targeting Mohammed Musthafa. Saravanan contacted the detenu over phone before and after the attack on Mohammed Musthafa. On the basis of the statement of Mohammed Musthafa and the eye witnesses and the confession statement of the detenu as well as other accused, the detaining authority came to the conclusion that the detenu's liberty would be prejudicial to the maintenance of public order.

3. It is an admitted position that the detenu was not released on bail during the pendency of the criminal case. However, today, Mrs. Jagadeeswari, the learned counsel, produced before us the judgment of the criminal case in S.c.No.351 of 2002 which pertains to the very same incident. She points out that while the first two accused have been convicted, the detenu, who is the third accused, has been acquitted. The learned counsel therefore says that the very basis of the preventive detention has been knocked down and that the incident would not be available for the detention of the detenu under the National Security Act. The contention is that the continued detention becomes illegal because it would have to be deemed that such incident was not available to the detaining authority.

4. In support of her contention, the learned counsel relies on a judgment of the Division Bench of the Allahabad High Court reported in 1999 CRI. L.J. 1360 (PUNEET v. STATE OF U.P.) wherein Justice BRIJESH KUMAR, the Acting Chief Justice (as His Lordship then was), has very clearly held, on the set of similar facts, that the incident on the basis of which the detention is ordered does not remain available if the prosecution on the basis of this incident ends up in acquittal of the accused. For that purpose, Allahabad Bench relied on the Full Bench decision in RAM PRASAD CHAUDHARY (1986 All.L.J. 916) as also on the decision of the Supreme Court reported in 1985 S.C.C. (Cri.) 5 14 (RAMESH YADAV v. DISTRICT MAGISTRATE, ETAH). These two are the direct cases heavily relied upon by the learned counsel for the petitioner. The facts in the reported decision of the Division Bench cited supra are almost identical to the facts of this case. The learned Judge observed: "In our view, the position that emerges is that it is permissible to pass an order of detention even after acquittal of the detenu in the criminal trial, provided there is subjective satisfaction of the detaining authority that the prosecution has failed because of awe of the accused persons or due to tampering with the evidence by them or in the circumstances where the detaining authorities are satisfied that nobody dared to come forward to depose against such accused persons. In the present case, there is no such groun d or satisfaction of the detaining authority that the criminal prosecution failed due to awe of or tampering with the evidence by the detenu and it could not be there, since at the time of passing of the detention order the order of acquittal was not there. In the present case, merely on the basis of the fact that the prosecution witnesses have not supported the prosecution case as a result of which the trial ended in acquittal, it is inferred or presumed that there was awe of the accused persons or there was tampering with the evidence and this is read in the order of detention which was already in operation, in our view, this will amount to adding a ground in the detention order for detaining the detenu. We are also of the firm view that it is not permissible as by doing so, a detenu would be deprived of an opportunity to explain through representation or otherwise that there was no tampering with the evidence on his part nor criminal trial ended in acquittal because of his influencing the witnesses or winning over them by terror. The fact that if detention of a detenu is necessary even after the acquittal of the accused, all such reasons have to be stated in the grounds which, in this case, is neither permissible nor can be added. The result is that the sole ground on which the petitioner was detained has become non-existent, hence it is a case where there exists no ground nor any material in support thereof. As observed earlier, there is no material for the inference that there was any tampering with the evidence on the part of the accused persons by overawing witnesses by reason of which witnesses did not support the prosecution case or they were won over by the accused forcibly which necessitate continued detention."

5. When we see the judgment of the trial Court, it seems that the original complainant also has deposed and this has not been an acquittal on account of terrorising the witnesses to turn hostile. The trial has gone on the basis of the evidence relied on by the prosecution witnesses and all of them have not turned hostile. The situation being identical, we respectfully agree with the judgment of the Allahabad High Court and choose to revoke the detention.

6. The learned Additional Public Prosecutor, however, almost desperate arguments, tried to point out that the subsequent event cannot be taken into consideration while considering the above Habeas Corpus Petition. On the part of the detenu, that argument obviously cannot be accepted. If we find on the basis of which the detention was ordered has itself become non existent, then there will be no question of continuing further detention of the detenu.

7. In that view, the Habeas Corpus Petition is allowed. The order of detention is set aside and the detenu is directed to be set at liberty forthwith, unless he is required in connection with any other case. Index: Yes

Website: Yes

dpp

To

1. The Commissioner of Police,

Coimbatore City,

Coimbatore.

2. The Secretary,

Home (Law & Order) Department,

State of Tamilnadu,

Secretariat,

Fort St. George,

Chennai-9.

3. The Secretary,

Home Department,

Union of India,

New Delhi.

4. The Sub Inspector of Police,

B-2, R.S.Puram Police Station,

Coimbatore City,

Coimbatore.

5. The Superintendent,

Central Prison,

Coimbatore.

6. The Joint Secretary to Government,

State of Tamil Nadu,

Public (Law & Order),

Fort St. George,

Chenai 600 009.

7. The Public Prosecutor,

High Court, Chennai.




Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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