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S.Latha Raghava v. The Commissioner of Police - H.C.P.(MD) No.423 of 2006  RD-TN 658 (22 February 2007)
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 22/02/2007
THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM
THE HONOURABLE MR.JUSTICE G.RAJASURIA
H.C.P.(MD) No.423 of 2006
S.Latha Raghavan .. Petitioner
1.The Commissioner of Police
2.The Joint Secretary to Government
Public (L & O) Department
Fort St. George
Chennai 600 009.
3.The Secretary to Government of India
Ministry of Home Affiars
(Department of Internal Security)
New Delhi 110 001.
Habeas corpus petition filed under Article 226 of the Constitution of India praying to issue a writ of habeas corpus calling for the records relating to order in No.C.P.O./T.C./I.S/NSA/D.O.No.01/2006, dated 10.12.2006 passed by the first respondent and quash the same and consequently direct the respondent to set the detenu R.Raghavan, son of Raman, now confined in Central Prison, Tiruchirapalli, at liberty.
For Petitioner : Mr.G.R.Swaminathan
For Respondents : Mr.S.P.Samuel Raj
Additional Public Prosecutor
(Order of the Court was made by M.CHOCKALINGAM, J.) Seeking to quash an order of detention passed by the first respondent in No.C.P.O./T.C./I.S/NSA/D.O.No.01/2006 under the provisions of the National Security Act, the petitioner who is the wife of the detenu by name Raghavan, has brought forth this petition.
2.The order under challenge is perused. The Court heard the learned Counsel for the petitioner.
3.As could be seen from the order of detention, it came to be passed under the following circumstances:
A life-size concrete statue of Thiru E.V.Ramasamy, founder of Dravidar Kazhagam, was to be installed near Srirangam Police Station by the members of Periyar Thathuva Maiyam, and the same was covered with sacks and kept on the pedestal for unveiling. It was also in front of the Rajagopuram of Srirangam Temple. It was objected to by the Hindu Organizations. Following the threat, the members of Periyar Thathuva Maiyam were giving protection to the statue to be unveiled. Apart from that, the matter was brought to the notice of the police also. The police personnel were also deployed. While the matter stood thus, on 7.12.2006 at about 04.45 hours, the detenu along with others armed with deadly weapons and hammers came to the spot where the statue was kept, and on the instigation of the detenu to damage the statue, the persons armed with hammers, climbed and damaged the statue. At that time, this was intervened by the persons who were guarding the statue, and the policemen standing nearby. The police personnel also apprehended four of the accused, while the detenu Raghavan escaped from the place. Thereafter, on a complaint given by one Saravanan, a case came to be registered by Srirangam Police Station in Crime No.749/2006 under Sections 147, 148, 153 (A) of I.P.C. and Sections 3 and 4 of the Tamil Nadu Properties (Prevention of Damage and Loss) Act and Sec.25(1) of Indian Arms Act. The case was taken up for investigation by the Inspector of Police, Srirangam Police Station, and he searched for the detenu and arrested him on 7.12.2006 itself. The accused detenu was produced before the Judicial Magistrate No.III, Tiruchirapalli, and he was remanded to judicial custody till 21.12.2006.
4.Under the circumstances, the sponsoring authority placed the matter before the first respondent as to the act committed by the detenu and his henchmen. After the perusal of the materials placed by the sponsoring authority, the detaining authority took the view that the act of the detenu has created a sense of panic and terror among the common public and also created a feeling of insecurity, and the damage of the statue was witnessed, and it has hurt not only the feelings of the persons concerned with Periyar Thathuva Maiyam, but also the minds of the people of the entire State, as a result of which the public order and tranquility were paralyzed. Finding that the disturbance caused by such disruptive act of the detenu and his henchmen, cannot be considered as a normal law and order problem, but as disturbance of public order and tranquility, the authority felt that it was a fit case where the provisions of the National Security Act have got to be invoked, and the order of detention could be passed against him. Accordingly, orders have been passed.
5.Admittedly, the said order of detention was passed on 10.12.2006, and it was communicated on 11.12.2006. Apart from that, a representation was made on 20.12.2006, and the other procedural formalities were considered.
6.Now, the petitioner who is the wife of the detenu, has challenged the order on two grounds:
Firstly, there are number of discrepancies found in the order. A reading of the impugned order would indicate that there was no independent application of mind. According to the sponsoring authority, the Inspector of Police, Srirangam Police Station, arrested him at about 11.30 A.M. on 7.12.2006 at Amma Mandapam. The arrest card which was also produced before the Court and also before the authority, would also indicate the same. That apart, there was a telegraphic message issued by the petitioner herein directly to the detaining authority, which would clearly indicate that he was arrested in the early hours of that morning. The telegraphic message was issued at about 11.00 A.M. Though it was available in the hands of the detaining authority, they have not considered the same.
7.Added further the learned Counsel that there was a confessional statement recorded by the Investigator, wherein it is found that he was arrested at about 10.30 A.M.; that if to be so, all the discrepancies are found; that these discrepancies would clearly indicate that there was no application of mind; rather, there was non-application; and that had this telegraphic message and other materials issued by the petitioner to the detaining authority, been considered, it would have led the authority not to pass such an order. In support of his contention, the learned Counsel relied on a decision of the Apex Court reported in 1989 SUPREME COURT CASES (CRI) 153 (AYYA V. STATE OF U.P.). The learned Counsel would further submit that the latest law on the subject is stipulated by the Supreme Court in 2007(1) CRIMES 79 (SC) (USHA AGARWAL V. UNION OF INDIA AND OTHERS).
8.Secondly, the learned Counsel would submit that it is an admitted fact that he was arrested on 7.12.2006; that the order of detention was passed on 10.12.2006; that it was communicated on 11.12.2006; but, the booklet was not given at that time; that in the communication addressed by the jail authorities on 11.12.2006, it is mentioned that the petitioner herein can meet the detenu only after an interval of 15 days, that would be around 25th of that month; that if to be so, she was rather prevented from meeting him and get instructions therefor; that what was available with the detenu at that time was only the order of detention and not the booklet, and thus, he could not make effective representation; that under the circumstances, it was nothing but violation of the rights guaranteed under the Constitution in favour of the detenu; that the same has got to be considered, and hence, on these two grounds, the order of detention has got to be quashed.
9.Countering the above contentions, it is contended by the learned Additional Public Prosecutor for the State that in the instant case, the detaining authority only on appraisement of all the circumstances as found in the order, which led to the registration of a criminal case against the detenu and others, and which also led the sponsoring authority to make the recommendation, has passed an order, which does not require to be disturbed. The learned Additional Public Prosecutor would further add that first of all, there is no discrepancy as alleged by the petitioner, for the reason that according to the petitioner, a telegraphic message was issued at about 11.00 A.M.; that the telegraphic message has no authenticity at all; that following the telegraphic message, there was no representation made; that according to the arrest card, the detenu was arrested at about 11.30 A.M.; that the telegraphic message was given at 11.00 A.M.; that even assuming to be so, only in anticipation of arrest, following an incident that took place in the morning at the place from which the detenu escaped, such a telegraphic message has been given; that the same was given at 11.00 A.M.; that in the arrest card, it is found as 11.30 A.M.; and that even this time factor is also found to be very trivial.
10.Added further the learned Additional Public Prosecutor that in the instant case, so far as the telegraphic message is concerned, it cannot be given any authenticity and cannot be relied on also; and that it cannot be considered to be a relevant document. For that purpose, he relied on a decision of the Supreme Court reported in 1994 SUPREME COURT CASES (CRI) 229 (DISTT. MAGISTRATE V. R.KUMARAVEL).
11.The learned Additional Public Prosecutor would further add that so far as the second contention was concerned, it is true that he was arrested on 7.12.2006; that it is also true that the order has been passed on 10.12.2006 and communicated on 11.12.2006; but, it is pertinent to point out that what was mentioned therein was that the petitioner can meet him at an interval of 15 days; that it is true that a communication was given by the jail authorities on 11.12.2006, wherein it has been mentioned that she could meet once at an interval of 15 days, which does not mean that she could meet him only after 15 days, but could meet within 15 days as mentioned therein; that it is a wrong interpretation of the communication; that there was no impediment for the petitioner in meeting her husband and get instructions therefor to make effective representation, and under the circumstances, both the grounds put forth by the petitioner herein, are not sufficient to set aside the order, and hence, the petition has got to be dismissed.
12.The Court paid its anxious consideration on the submissions made and also looked into the materials available, and in particular, the order of detention.
13.As could be seen from the order, admittedly, a statue of Thiru E.V.Ramasamy, the founder of Dravidar Kazhagam, was to be installed and was to be unveiled shortly before the date of occurrence. Following an incident, a case came to be registered by Srirangam Police Station on 7.12.2006 in Crime No.749 of 2006 under Sections 147, 148, 153 (A) of I.P.C. and Sections 3 and 4 of the Tamil Nadu Properties (Prevention of Damage and Loss) Act and Sec.25 (1) of Indian Arms Act. According to the State, at the time of the installation of the statue, there were objections from the Hindu Organizations, and in apprehension of any damage to the statue, the members belonging to Periyar Thathuva Maiyam, and also the police personnel on request were guarding the statue. The occurrence has taken place at about 4.45 A.M. on 7.12.2006 when the detenu along with his henchmen came with deadly weapons and on his instigation, they climbed and also damaged the statue, and there was intervention by the police personnel and also members of Periyar Thathuva Maiyam. Immediately, they were able to apprehend four of the assailants, and the detenu escaped from the place. He was arrested by the Inspector of Police, Srirangam Police Station, who took up investigation. He was also produced before the Judicial Magistrate No.III, Tiruchirappalli, and he was remanded to judicial custody till 21.12.2006. It is also an admitted position that an order came to be passed by the detaining authority on 10.12.2006, following a recommendation made by the sponsoring authority.
14.Before going to consider the submissions made by the learned Counsel in his sincere attempt of assailing the order under challenge, the Court has to necessarily point out that in a democratic society like this, every citizen has got his own belief and has to practice different ideologies. In the case on hand, a statue was to be installed, and there was an objection raised by the Hindu Organizations. Under the circumstances, there was an apprehension whether any damage could be caused to the statue. Hence, the police personnel were deployed, and also the members of Periyar Thathuva Maiyam were available at that time to protect the statue. The occurrence has taken place at about 4.45 A.M. on 7.12.2006. At that time, four of the persons who made all their attempts in the damage of the statue and who were found along with the detenu, were actually apprehended and taken to the Police Station. Needless to say, it has created not only a sense of panic and terror, but also a feeling of insecurity among the public of that area, and there were incidents of stone pelting and also so many other incidents throughout the State. It could be seen that it has directly touched the public order and also tranquility, and they were paralyzed. It was witnessed by the State. Under the circumstances, the impugned order came to be passed.
15.Coming to the contentions put forth by the learned Counsel for the petitioner, this Court is of the considered opinion that both the grounds now urged before this Court seeking for quashing of the order, are not available for the petitioner. Even after considering those contentions, this Court is of the view that the petitioner has not made out a ground or reason to set aside the order of detention passed. In the instant case, admittedly, he was arrested on 7.12.2006 following the registration of a criminal case by Srirangam Police Station in Crime No.749/2006. It is not in controversy that he was arrested on 7.12.2006. From the materials available and in particular, the arrest card, it could be seen that he was arrested at about 11.30 A.M. at Amma Mandapam, Tiruchirappalli. The learned Counsel took the Court to the copy of the telegraphic message issued by the petitioner directly to the detaining authority. From the receipt issued therefor, it could be seen that it was issued at about 11.00 A.M. The learned Counsel wanted to show that when this telegraphic message was very well available in the hands of the detaining authority, it should have been considered by him, and the non-consideration of the telegraphic message issued by the petitioner at about 11.00 A.M. would be fatal to the order. That apart, he would further say that there is also discrepancy found, and this discrepancy is very vital; that according to the police, he was arrested at about 11.30 A.M. as per the arrest card; but, the telegraphic message was issued at 11.00 A.M., and thus, there is discrepancy which will go to the root of the matter.
16.In support of his contention, he relied on two decisions of the Apex Court reported in 1989 SUPREME COURT CASES (CRI) 153 (AYYA V. STATE OF U.P.) and in 2007(1) CRIMES 79 (SC) (USHA AGARWAL V. UNION OF INDIA AND OTHERS). In answer to the above, the learned Additional Public Prosecutor came with the decision of the Supreme Court reported in 1994 SUPREME COURT CASES (CRI) 229 (DISTT. MAGISTRATE V. R.KUMARAVEL).
17.The Court perused the decisions now relied on by either side. First of all, it was a telegraphic message. The contention of the petitioner's side cannot be accepted for more reasons than one. The petitioner wants to rely on a telegraphic message alleged to have been given by her at about 11.00 A.M. The telegraphic message is not an authenticated document. The Supreme Court had an occasion to consider such a situation in a case relied on by the learned Additional Public Prosecutor and reported in 1994 SUPREME COURT CASES (CRI) 229 (DISTT. MAGISTRATE V. R.KUMARAVEL). In that case, Their Lordships of the Supreme Court have held that a telegram has no authenticity unless confirmed by a subsequent signed application, representation or an affidavit. In the instant case, it is pertinent to point out that the telegraphic message was not followed by any representation made. It is an admitted position that a representation was made by the petitioner on 20.12.2006. Even in that representation also, the telegraphic message alleged to have been given at about 11.00 A.M. on 7.12.2006, was not referred to. The petitioner had no explanation why such a reference has not been made therein. The contention put forth by the learned Counsel for the petitioner is that the fact that the issuance of telegraphic message was not referred to cannot be taken to be a relevant fact, and the non-mention of the same would, in no way, be fatal to such representation made. As far as the representation was concerned, it would not affect in any way. In a given case, like this, if the contention of the petitioner's side that there was a telegraphic message given at about 11.00 A.M., and this telegraphic message has also been in the hands of the authority, but not considered by the detaining authority, and had it been considered, it would have taken the decision otherwise, is to be accepted, then the issuance of the telegraphic message itself should have been referred to, in the opinion of this Court, in the representation subsequently made on 20.12.2006. That apart, this Court is of the view that once it is not an authenticated document and not also followed by any subsequent representation made, it is highly doubtful whether it could be called as a material document. In the opinion of the Court, it has to be answered in negative.
18.The learned Counsel also relied upon a confessional statement alleged to have been given by the detenu before the police officials, wherein the arrest time is shown as 10.30 A.M. This contention has got to be rejected for two reasons. Firstly, it was a confessional statement alleged to have been given by the detenu. Whether it is true or not is a subject-matter to be considered by the criminal Court, where the document was to be placed. Secondly, this confessional statement cannot form a basis for attacking the order now under challenge before this Court. Even assuming such a contention could be raised, that could be raised before a Court of criminal law, while questioning the time of arrest and not for quashing the order of detention like this. Now, at this juncture, so far as the first ground is concerned, this Court is unable to notice any merit and hence, it is rejected.
19.As regards the second ground that the order was passed on 10.12.2006; that a communication by the jail authorities was also issued on 11.12.2006, wherein it has been mentioned that the petitioner can meet the detenu only after an interval of 15 days, that would come around about 25th of the Month; that what was served upon the detenu was only the order of detention; that the booklet furnishing the materials, was not given, and hence, the petitioner as the next friend could not meet the detenu to get proper instructions for making effective representation, and this itself is in violation of the rights guaranteed under the Constitution, this Court is of the considered opinion that this ground is of no avail to the petitioner. A perusal of the communication made by the jail authorities on 11.12.2006 would clearly indicate that it does not mean that the petitioner could meet the detenu after an interval of 15 days, and thus, the petitioner had no impediment in meeting the detenu immediately; but, she has not done so, for which no fault could be attributed to the department. Under the circumstances, that ground also will not be helpful to the petitioner.
20.For the foregoing reasons, both the grounds fail, and the detaining authority after making a full application of mind and taking into consideration the public order, has come to the conclusion that it is a fit case where the provisions of National Security Act have got to be invoked.
21.Before concluding the order, this Court is of the view that in a case, where the public order and tranquility are affected or likely to be affected, and public peace is also in peril, the authority is called upon in exercise of the powers, to pass such an order. In the instant case, the above situation would be quite evident not only in the place of occurrence, but also throughout the State. Under the circumstances, the authority was perfectly correct in passing the order of detention.
22.In the result, this habeas corpus petition deserves an order of dismissal, and accordingly, it is dismissed.
1.The Commissioner of Police
Tiruchirapalli City, Tiruchirapalli
2.The Joint Secretary to Government
Public (L & O) Department
Fort St. George, Chennai 600 009.
3.The Secretary to Government of India
Ministry of Home Affiars
(Department of Internal Security)
North Block, New Delhi 110 001.
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