R.Srijith... v. State of Tamil Nadu

In the High Court of Judicature at Madras Dated: 29.01.2009Coram:The Honourable Mr.Justice ELIPE DHARMA RAOand The Honourable Mr.Justice R.SUBBIAH Habeas Corpus Petition No. 2122 of 2008R.Srijith...Petitioner Vs.1. State of Tamil Nadu, rep.by Secretary to Government, Home, Prohibition & Excise Dept., Secretariat, Chennai-600 009.2. The Commissioner of Police/ Detaining Authority, Coimbatore City, Coimbatore.3. The Inspector of Police/ Sponsoring Authority, B-9 Saravanampatty Police Station, (Law and Order), Coimbatore City. ...RespondentsPetition filed under Article 226 of the Constitution of India,for the issuance of a Writ of Habeas Corpus, calling for entirerecords relating to the order dated 15.10.2008 made inC.No.63/G/IS/2008 on the file of the 2nd respondent and to set asidethe same and direct the respondents to produce the body of the detenunamely, R.Srijith, son of Ravindran @ Ravi @ Ravichandran, aged about22 years, who is detained in Central Prison, Coimbatore under theTamil Nadu Act 14 of 1982 before this Court and set him at liberty.For Petitioner ..Mr.N.S.SivakumarFor Respondents ..Mr.N.R.Elango, Addl.P.P.,R.SUBBIAH, J.,The petitioner herein challenges the impugned order of detentiondated 15.10.2008 passed by the 2nd respondent, branding him as a'Goonda' as contemplated under Section 3(1) of the Tamil Nadu https://hcservices.ecourts.gov.in/hcservices/ Prevention of Dangerous Activities of Bootleggers, Drug Offenders,Forest Offenders, Goondas, Immoral Traffic Offenders, Sand Offenders,Slum Grabbers and Video Pirates Act, 1982 (Tamil Nadu Act 14 of1982). 2. From the detention order, it is seen that on a complaint givenby one Madalaimuthu, Parish Priest, the ground case was registered inCrime No.788 of 2008 on the file of B-9, Saravanampatty PoliceStation, Coimbatore City. In the said complaint, it has beenalleged that on 08.10.2008, a consultative meeting was held inconnection with church car festival proposed to be held on19.10.2008, which lasted till 1.00 hour; thereafter, all the membershave left; on 09.10.2008 at 4.40 hours when the complainant had beento the church for prayer, he noticed that a glass pane of cabinsituated in front of the church in which the statue of Infant Jesusplaced was broken and that the statue of Infant Jesus inside thecabin was also damaged. Based on the said complaint of Madalaimuthu,Parish Priest, a case has been registered in Crime No.788 of 2008 bythe 3rd respondent for the offences punishable under sections 448,427 and 295 IPC. Subsequently, the sections of law were altered tosections 153-A, 448, 295 IPC and section 3 of the Tamil Nadu Property(Prevention of Damage and Loss) Act 1992. Pursuant to theregistration of the first information report, the 3rd respondent tookup the investigation and examined the witnesses and arrested thedetenu at 2.00 hours on 11.10.2008 and he was produced before theJudicial Magistrate No.II, Coimbatore, on 11.10.2008 and remanded tojudicial custody till 24.10.2008. Since the intention of the detenuis to create communal disharmony between the Hindu and Christianreligions by causing damage to the statue of Infant Jesus by throwinga stone, the 3rd respondent made a request to the 2nd respondent totake necessary action under Section 3(1) of the Act 14 of 1982 asagainst the detenu.3. The detaining authority, namely, the 2nd respondent, on goingthrough the entire materials placed on record, has passed the orderof detention dated 15.10.2008 branding the detenu as a 'Goonda'. Thereasoning of the detaining authority to reach the subjectivesatisfaction as found in para 6 of the detention order, is as follows:"6. On a careful consideration of all records placedbefore me, I am satisfied that Thiru R.Srijith is the YouthWing Organiser of "Hindu Makkal Katchi-Haruman Sena" aHindu Communal Organisation of Coimbatore City. On09.10.2008 at 03.00 hours, he had desecrated the statue ofInfant Jesus by breaking the glass pane of the cabin inwhich the statue of the Infant Jesus was placed and causingdamage to the statue of Infant Jesus by throwing a stone onit with the intention of creating disharmony betweenChristian and Hindu religions. On the dawn of 09.10.2008when the city was awaken and on seeing this desecration tothe statue of Infant Jesus, people belong to different https://hcservices.ecourts.gov.in/hcservices/ religions took to shock and anger. People apprehend thatlarge scale of violence will break out in the City and thatout of fear, merchants have closed down their businessestablishments. Auto drivers and others took theirvehicles to their carriages. The residents of thatlocality could not lead their normal life and have afraidto send their children to schools. The news of theprejudicial activities of Thiru R.Srijith splashedeverywhere, the degree and the extent of the reach of thenews lead to disturbance to the maintenance of communalharmony between Hindu and Christian communities andaffected the public order in the City to a greater extent.The reach and potentiality of the incident even though itis a single act of desecration of Infant Jesus statue inSt.Francis Assisi Church, Coimbatore, it was so grave so asto disturb the communal harmony between Christian and HinduCommunities and it is indicative of his future conduct thathe will continue to indulge in such kind of prejudicialactivities till his object is achieved. The act ofvandalism by said Thiru R.Srijith created a sense of panicand terror among the common public and created a feeling ofinsecurity. As a result of which the public order andtranquility were paralyzed in Coimbatore City. ParishPriest Thiru Madalaimuthu, Thiru A.Dharmaraj, ThiruJ.Vijaibabu, Thiru P.Krishnakumar, Thiru S.Manikandan,Thiru S.Senthilkumar, Thiru N.Eswaran, Thiru B.Arumugamand Thiru I.Selvin, in their statements have categoricallymentioned about the activities of Thiru R.Srijith who haveplans to destroy the communal harmony between Hindu andChristian Communities and continue the same prejudicialactivities. Further, Thiru R.Srijith in his statement hadadmitted the offence committed by him and also to stamp hisideas. The statements of witnesses confirmed the extremistactivities of Thiru R.Srijith and thereby acted in a mannerprejudicial to the maintenance of public order. I amsatisfied that Thiru R.Srijith is a "Goonda" as perprovisions of the Tamil Nadu Act 14 of 1982 (as amended Act16 of 2008). The offence committed by Thiru R.Srijith ispunishable under Chapters VIII and XVII of Indian PenalCode".Now, challenging the above said detention order, the detenu has comeforward with this petition. 4. Learned counsel for the petitioner submitted that thedetention order dated 15.10.2008 is vitiated on the following grounds:(1) The order of detention is passed on 15.10.2008when the bail application filed by him in Crl.M.P.No.2645of 2008 was pending before the Principal District andSessions Court, Coimbatore. Since the detention order is https://hcservices.ecourts.gov.in/hcservices/ passed when the bail application was pending, the same isvitiated.(2) In the representation dated 25.10.2008 thoughthe pendency of the bail application was mentioned by thedetenu, no proper reply was sent by the State.(3) There is a delay in considering therepresentation. Though the representation was sent on23.10.2008, the same was disposed of only on 21.11.2008.Since there is a delay in considering the representation,prejudice has been caused to the detenu in violation ofArticle 22(5) of the Constitution of India. There is noother case as against the detenu to show that he is ahabitual offender, which is a base for clamping the orderunder the Act of 14 of 1982.5. Learned counsel for the petitioner, while elaborating theabove points, submitted that the detenu had filed a bail applicationon 13.10.2008 itself under Diary No.13081 of 2008 before the JudicialMagistrate Court No.II, Coimbatore, but the same was returned for thereason that the offence is triable exclusively by the Sessions Court.Further, the intimation regarding the alteration of offences in theFIR was also communicated from the Court on 14.10.2008. Hence, hefiled another bail application in Crl.M.P.No.2645 of 2008 before theCourt of Principal District and Sessions Judge, Coimbatore on15.10.2008 and the said application was dismissed only on 21.10.2008;but the detaining authority has passed the detention order on15.10.2008 on the date when the petitioner has filed the bailapplication before the Principal District and Sessions Judge,Coimbatore. The detaining authority, without taking intoconsideration the pendancy of the bail application, passed theimpugned order of detention. Hence, the detention order is vitiatedon this ground and hence, the same is liable to be set aside.6. Per contra, learned Additional Public Prosecutor submittedthat it is incorrect to say that the bail application was pending onthe date of passing of the detention order by the 2nd respondent.Even though the bail application was filed under Diary No.13081 of2008 on 13.10.2008 before the Judicial Magistrate No.II, Coimbatore,the same was returned by the Court on 14.10.2008. In the meantime,the order of detention was passed on 15.10.2008 by the detainingauthority. Under such circumstances, at any stretch of imagination,it cannot be said that the order of detention was clamped by the 2ndrespondent when the bail application is pending.7. So far as the other contention is concerned, learnedAdditional Public Prosecutor submitted that the detenu had sent tworepresentations, one dated 23.10.2008 and another dated 25.10.2008.Both were rejected on 14.11.2008 and 21.11.2008 respectively by theState. On a perusal of the dates of representations and the dates ofrejection orders passed by the State, it would not be difficult to https://hcservices.ecourts.gov.in/hcservices/ come to a conclusion that there is no delay in considering anddisposing of the representations. Further, it is the submission ofthe learned Additional Public Prosecutor that it is not necessary, inall cases, that there should be more adverse cases to clamp the orderof detention.8. Heard the learned counsel for the petitioner and the learnedAdditional Public Prosecutor for the respondents and perused thematerials.9. With regard to the first contention, we find from the recordsthat the alleged occurrence took place on 09.10.2008. The case wasregistered in Crime No.788 of 2008 based on the complaint lodged bythe Parish Priest on 09.10.2008 at 11.30 Hours and the detenu wasarrested in connection with the above case on 11.10.2008. He wasproduced before the Judicial Magistrate No.II, Coimbatore on11.10.2008 and was remanded to judicial custody till 24.10.2008.Further, the materials on record would show that the Crl.M.P.underDiary No.13081 of 2008, before the Judicial Magistrate No.II,Coimbatore, was filed on 13.10.2008, but the said application wasreturned on 14.10.2008 since the offence is triable exclusively bythe Court of Sessions. Thereafter, on 15.10.2008, he filed anotherbail application in Crl.M.P.No.2645 of 2008 before the PrincipalDistrict and Sessions Court, Coimbatore. The order of detention wasalso passed on the same date i.e.on 15.10.2008. In the abovecircumstances, we are of the considered opinion that merely by filingan application, it cannot be said that the application for bail waspending. When once the application is numbered, it can be presumedthat the application has been taken up for consideration. In thepresent case, the application filed by the detenu was returned by theII Class Judicial Magistrate, Coimbatore, on 14.10.2008 itself.Therefore, as on 14.10.2008, no bail application was pending forconsideration. On the next day, i.e.on 15.10.2008, the order ofdetention was passed by the 2nd respondent. Under suchcircumstances, there is a bounden duty on the part of the detenu toprove that at the time of passing the detention order, the bailapplication had been numbered and was pending consideration beforethe Principal District and Sessions Judge, Coimbatore. But in theinstant case, no material is available to show that at the time ofpassing the detention order, namely, 15.10.2008, the application wasnumbered and the same was pending consideration. Therefore, we areunable to accept the contention raised by the learned counsel for thepetitioner in this regard. Accordingly, the same is rejected.10. On a perusal of the records, we find that the order ofrejection was passed by the State in both the representations withina period of one month. Therefore, we do not hesitate to come to aconclusion that there is no undue delay in disposing of therepresentations submitted by the detenu. https://hcservices.ecourts.gov.in/hcservices/

11. Yet another submission made by the learned counsel for thepetitioner is that there are no other adverse cases to clamp him as aGoonda. We are of the opinion that the act committed by the detenuwould affect the Society as a whole by creating communal disharmony.The gravity of offence committed by the detenu and its consequencesare sufficient to pass the detention order against him. Moreover, itis not necessary that in all detentions, there should be number ofadverse cases. If the act of the detenu affects the society at largeand if the detaining authority is of the opinion that the detenu, ifreleased, would commit further offences, that instance itself issufficient to clamp the order of detention.12. Communal harmony is the important and proud character of ourdemocratic country, binding many religions together and always stoodas a classic example for the entire world to praise and follow, bydepicting Unity in Diversity. None should be allowed to break thisbondage with sinister motives. No doubt, the laws of detention areonly preventive but not punitive. In the case on hand, theallegation against the detenu, who seems to be an active member of acommunal out-fit, is very serious and from the materials on record,we are in conformity with the detaining authority that if let out,there is every possibility of the detenu repeating such crimes,disrupting the communal harmony between religions and posing a threatto the maintenance of public order. On a thorough scrutiny of theentire materials placed on record, we are unable to find anyillegality or irregularity in clamping the order of detention on thedetenu and we find no meritorious grounds to be entertained andappreciated on the part of the detenu.Resultantly, this Habeas Corpus Petition fails and is dismissed.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarTo1. The Secretary to Government, State of Tamil Nadu, Home, Prohibition & Excise Dept., Secretariat, Chennai-600 009.2. The Commissioner of Police, Detaining Authority Coimbatore City, Coimbatore. https://hcservices.ecourts.gov.in/hcservices/

3. The Superintendent, Central Prison, Coimbatore. 4. The Public Prosecutor, High Court, Madras.5. The Inspector of Police/ Sponsoring Authority, B-9 Saravanampatty Police Station, (Law and Order), Coimbatore City. 1 cc To Mr.N.S.Sivakumar, Advocate, SR.4275 Order in H.C.P. No. 2122 of 2008KM(CO)SRA(06/02/2009)