Petition filed under Article 226 of the Constitution of India, for the issuance of a Writ of Habeas Corpus, calling for entire records relating to the order dated 15.10.2008 made in C.No.63/G/IS/2008 on the file of the 2nd respondent and to set aside the same and direct the respondents to produce the body of the detenu namely, R.Srijith, son of Ravindran @ Ravi @ Ravichandran, aged about 22 years, who is detained in Central Prison, Coimbatore under the Tamil Nadu Act 14 of 1982 before this Court and set him at liberty.
For Petitioner .. Mr.N.S.Sivakumar For Respondents .. Mr.N.R.Elango, Addl.P.P., R.SUBBIAH, J., The petitioner herein challenges the impugned order of detention dated 15.10.2008 passed by the 2nd respondent, branding him as a 'Goonda' as contemplated under Section 3(1) of the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Sand Offenders, Slum Grabbers and Video Pirates Act, 1982 (Tamil Nadu Act 14 of 1982).
2. From the detention order, it is seen that on a complaint given by one Madalaimuthu, Parish Priest, the ground case was registered in Crime No.788 of 2008 on the file of B-9, Saravanampatty Police Station, Coimbatore City. In the said complaint, it has been alleged that on 08.10.2008, a consultative meeting was held in connection with church car festival proposed to be held on 19.10.2008, which lasted till 1.00 hour; thereafter, all the members have left; on 09.10.2008 at 4.40 hours when the complainant had been to the church for prayer, he noticed that a glass pane of cabin situated in front of the church in which the statue of Infant Jesus placed was broken and that the statue of Infant Jesus inside the cabin was also damaged. Based on the said complaint of Madalaimuthu, Parish Priest, a case has been registered in Crime No.788 of 2008 by the 3rd respondent for the offences punishable under sections
448,427 and
295 IPC. Subsequently, the sections of law were altered to
sections 153-A,448,295 IPC and section 3 of the Tamil Nadu Property (Prevention of Damage and Loss) Act 1992. Pursuant to the registration of the first information report, the 3rd respondent took up the investigation and examined the witnesses and arrested the detenu at 2.00 hours on 11.10.2008 and he was produced before the Judicial Magistrate No.II, Coimbatore, on 11.10.2008 and remanded to judicial custody till 24.10.2008. Since the intention of the detenu is to create communal disharmony between the Hindu and Christian religions by causing damage to the statue of Infant Jesus by throwing a stone, the 3rd respondent made a request to the 2nd respondent to take necessary action under
Section 3(1) of the Act 14 of 1982 as against the detenu.
3. The detaining authority, namely, the 2nd respondent, on going through the entire materials placed on record, has passed the order of detention dated 15.10.2008 branding the detenu as a 'Goonda'. The reasoning of the detaining authority to reach the subjective satisfaction as found in para 6 of the detention order, is as follows:
"6. On a careful consideration of all records placed before me, I am satisfied that Thiru R.Srijith is the Youth Wing Organiser of "Hindu Makkal Katchi-Haruman Sena" a Hindu Communal Organisation of Coimbatore City. On 09.10.2008 at 03.00 hours, he had desecrated the statue of Infant Jesus by breaking the glass pane of the cabin in which the statue of the Infant Jesus was placed and causing damage to the statue of Infant Jesus by throwing a stone on it with the intention of creating disharmony between Christian and Hindu religions. On the dawn of 09.10.2008 when the city was awaken and on seeing this desecration to the statue of Infant Jesus, people belong to different religions took to shock and anger. People apprehend that large scale of violence will break out in the City and that out of fear, merchants have closed down their business establishments. Auto drivers and others took their vehicles to their carriages. The residents of that locality could not lead their normal life and have afraid to send their children to schools. The news of the prejudicial activities of Thiru R.Srijith splashed everywhere, the degree and the extent of the reach of the news lead to disturbance to the maintenance of communal harmony between Hindu and Christian communities and affected the public order in the City to a greater extent. The reach and potentiality of the incident even though it is a single act of desecration of Infant Jesus statue in St.Francis Assisi Church, Coimbatore, it was so grave so as to disturb the communal harmony between Christian and Hindu Communities and it is indicative of his future conduct that he will continue to indulge in such kind of prejudicial activities till his object is achieved. The act of vandalism by said Thiru R.Srijith created a sense of panic and terror among the common public and created a feeling of insecurity. As a result of which the public order and tranquility were paralyzed in Coimbatore City. Parish Priest Thiru Madalaimuthu, Thiru A.Dharmaraj, Thiru J.Vijaibabu, Thiru P.Krishnakumar, Thiru S.Manikandan, Thiru S.Senthilkumar, Thiru N.Eswaran, Thiru B.Arumugam and Thiru I.Selvin, in their statements have categorically mentioned about the activities of Thiru R.Srijith who have plans to destroy the communal harmony between Hindu and Christian Communities and continue the same prejudicial activities. Further, Thiru R.Srijith in his statement had admitted the offence committed by him and also to stamp his ideas. The statements of witnesses confirmed the extremist activities of Thiru R.Srijith and thereby acted in a manner prejudicial to the maintenance of public order. I am satisfied that Thiru R.Srijith is a "Goonda" as per provisions of the Tamil Nadu Act 14 of 1982 (as amended Act 16 of 2008). The offence committed by Thiru R.Srijith is punishable under Chapters VIII and XVII of Indian Penal Code".
Now, challenging the above said detention order, the detenu has come forward with this petition.
4. Learned counsel for the petitioner submitted that the detention order dated 15.10.2008 is vitiated on the following grounds:
(1) The order of detention is passed on 15.10.2008 when the bail application filed by him in Crl.M.P.No.2645 of 2008 was pending before the Principal District and Sessions Court, Coimbatore. Since the detention order is passed when the bail application was pending, the same is vitiated.
(2) In the representation dated 25.10.2008 though the pendency of the bail application was mentioned by the detenu, no proper reply was sent by the State.
(3) There is a delay in considering the representation. Though the representation was sent on 23.10.2008, 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 of
Article 22(5) of the Constitution of India. There is no other case as against the detenu to show that he is a habitual offender, which is a base for clamping the order under the Act of 14 of 1982.
5. Learned counsel for the petitioner, while elaborating the above points, submitted that the detenu had filed a bail application on 13.10.2008 itself under Diary No.13081 of 2008 before the Judicial Magistrate Court No.II, Coimbatore, but the same was returned for the reason that the offence is triable exclusively by the Sessions Court. Further, the intimation regarding the alteration of offences in the FIR was also communicated from the Court on 14.10.2008. Hence, he filed another bail application in Crl.M.P.No.2645 of 2008 before the Court of Principal District and Sessions Judge, Coimbatore on 15.10.2008 and the said application was dismissed only on 21.10.2008; but the detaining authority has passed the detention order on 15.10.2008 on the date when the petitioner has filed the bail application before the Principal District and Sessions Judge, Coimbatore. The detaining authority, without taking into consideration the pendancy of the bail application, passed the impugned order of detention. Hence, the detention order is vitiated on this ground and hence, the same is liable to be set aside.
6. Per contra, learned Additional Public Prosecutor submitted that it is incorrect to say that the bail application was pending on the date of passing of the detention order by the 2nd respondent. Even though the bail application was filed under Diary No.13081 of 2008 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 detaining authority. Under such circumstances, at any stretch of imagination, it cannot be said that the order of detention was clamped by the 2nd respondent when the bail application is pending.
7. So far as the other contention is concerned, learned Additional Public Prosecutor submitted that the detenu had sent two representations, one dated 23.10.2008 and another dated 25.10.2008. Both were rejected on 14.11.2008 and 21.11.2008 respectively by the State. On a perusal of the dates of representations and the dates of rejection orders passed by the State, it would not be difficult to come to a conclusion that there is no delay in considering and disposing of the representations. Further, it is the submission of the learned Additional Public Prosecutor that it is not necessary, in all cases, that there should be more adverse cases to clamp the order of detention.
8. Heard the learned counsel for the petitioner and the learned Additional Public Prosecutor for the respondents and perused the materials.
9. With regard to the first contention, we find from the records that the alleged occurrence took place on 09.10.2008. The case was registered in Crime No.788 of 2008 based on the complaint lodged by the Parish Priest on 09.10.2008 at 11.30 Hours and the detenu was arrested in connection with the above case on 11.10.2008. He was produced before the Judicial Magistrate No.II, Coimbatore on 11.10.2008 and was remanded to judicial custody till 24.10.2008. Further, the materials on record would show that the Crl.M.P.under Diary No.13081 of 2008, before the Judicial Magistrate No.II, Coimbatore, was filed on 13.10.2008, but the said application was returned on 14.10.2008 since the offence is triable exclusively by the Court of Sessions. Thereafter, on 15.10.2008, he filed another bail application in Crl.M.P.No.2645 of 2008 before the Principal District and Sessions Court, Coimbatore. The order of detention was also passed on the same date i.e.on 15.10.2008. In the above circumstances, we are of the considered opinion that merely by filing an application, it cannot be said that the application for bail was pending. When once the application is numbered, it can be presumed that the application has been taken up for consideration. In the present case, the application filed by the detenu was returned by the II Class Judicial Magistrate, Coimbatore, on 14.10.2008 itself. Therefore, as on 14.10.2008, no bail application was pending for consideration. On the next day, i.e.on 15.10.2008, the order of detention was passed by the 2nd respondent. Under such circumstances, there is a bounden duty on the part of the detenu to prove that at the time of passing the detention order, the bail application had been numbered and was pending consideration before the Principal District and Sessions Judge, Coimbatore. But in the instant case, no material is available to show that at the time of passing the detention order, namely, 15.10.2008, the application was numbered and the same was pending consideration. Therefore, we are unable to accept the contention raised by the learned counsel for the petitioner in this regard. Accordingly, the same is rejected.
10. On a perusal of the records, we find that the order of rejection was passed by the State in both the representations within a period of one month. Therefore, we do not hesitate to come to a conclusion that there is no undue delay in disposing of the representations submitted by the detenu.
11. Yet another submission made by the learned counsel for the petitioner is that there are no other adverse cases to clamp him as a Goonda. We are of the opinion that the act committed by the detenu would affect the Society as a whole by creating communal disharmony. The gravity of offence committed by the detenu and its consequences are sufficient to pass the detention order against him. Moreover, it is not necessary that in all detentions, there should be number of adverse cases. If the act of the detenu affects the society at large and if the detaining authority is of the opinion that the detenu, if released, would commit further offences, that instance itself is sufficient to clamp the order of detention.
12. Communal harmony is the important and proud character of our democratic country, binding many religions together and always stood as a classic example for the entire world to praise and follow, by depicting Unity in Diversity. None should be allowed to break this bondage with sinister motives. No doubt, the laws of detention are only preventive but not punitive. In the case on hand, the allegation against the detenu, who seems to be an active member of a communal 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 threat to the maintenance of public order. On a thorough scrutiny of the entire materials placed on record, we are unable to find any illegality or irregularity in clamping the order of detention on the detenu and we find no meritorious grounds to be entertained and appreciated on the part of the detenu.
Resultantly, this Habeas Corpus Petition fails and is dismissed.