Sanjeevi vs The State of Tamil Nadu

Mishra, J.—The petitioner, Sanjeevi, has been detained under S.3(1) of the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, and Slum Grabbers Act, 1982 (Tamil Nadu Act 14 of 1982) (hereinafter referred to as the Act), under the orders of the Commissioner of Police, Madras City, and his detention has been approved by the State Government and confirmed after obtaining the opinion of the Advisory Board. The antecedent acts, attributed to him and incorporated in the grounds of detention, for the opinion that he has habitually been committing offences punishable under Chapters XVI, XVII and XXII of Indian Penal Code, show that there are four cases, registered against him, under investigation by the police and in yet another cast, he has been charged and the case is pending trial. The cases under investigation are, (1) Crime No. 545/91, P.3 Vyasarpadi Police Station under S. 380, Indian Penal Code for the alleged theft of certain valuable materials by him during night of the 12th of May, 1991, (2) Crime No. 1278 of 1991, H-1 Washermanpet Police Station under S.379, I.P.C. in respect the theft of valuables on 27.6.1992, (3) Crime No. 330/93, H-1 North Beach Police Station under sections 341, 392, read with 397, 323, 333 read with 307, Indian Penal Code for offences including robbery in respect of an occurrence that took place on 14.4.1993 and (4) Crime No. 388/93 another robbery offence allegedly committed by him on 5.5.1993. The offence, for which he is an un-dertrial prisoner is one allegedly committed by him on 16.1.1991 during night in H. 1 Washermanpet Police Station Crime No. 904/91, in which, he is alleged to have committed theft by breaking open the lock of a house, which belonged to one Ashabi, who laid a complaint in this regard to the police and it is alleged that properties allegedly stolen from her house, were recovered from the possession of the petitioner. He has, however, been detained after the occurrence on 14.6.1993, in respect of which, one Ganesan reported to the police. The petitioner Sanjeevi stopped, it is alleged, Ganesan at the Junction of Rajaji Salai and Ibrahim Sahib Street, caught hold of the latter''s shirt and said Ganesan raised an alarm. The petitioner then assaulted Ganesan, caused him a bleeding injury on his right fore-arm and by holding a knife on the throat of Ganesan, snatched from his possession a sum of Rs. 75/-. Some members of the pubic, who were at the spot, rushed to apprehend the petitioner. Ganesan also chased the petitioner. It is further alleged that while the petitioner was in remand, m connection with the said case, he has been subjected to the order of detention, for, in the opinion of the Detaining Authority, there was imminent possibility of his coming out on bail for the offences under Ss. 341, 336, 392 read with 397 and 506 (II) of the Indian Penal Code by filing bail application in Court and if he came out on bail, he would indulge in further activities, which would be prejudicial to the maintenance of public order.

The Act has defined a ''goonda'' to mean a person, who, either by himself or as a member of or leader of a gang, habitually commit or attempted to commit or abet the commission of offence, punishable under Chapter XVI or Chapter XVII, or Chapter XXII of the Indian Penal Code. It is possible to see in the afore-mentioned antecedent cases, a compulsive repetition of the crime of theft and robbery of property by the petitioner and thus to hold that he has been habitually committing offences punishable under Chapters XVI and XVII as well as Chapter XXII of the Indian Penal Code. Section 2(a) of the Act says, unless the context otherwise requires, acting in any manner prejudicial to the maintenance of public order, shall in the case of a goonda, mean, when he is engaged or is making preparation for engaging in any of his activities as a goonda, which affect adversely or are likely to affect adversely the maintenance of public order. The petitioner has almost made robbery his profession and has a dare-devil approach and has, if the allegations are true, almost exhibited a dare-devil vandalism at a busy junction of two very important roads of the City of Madras. There is a possibility, on the facts as are available in the grounds, to opine that the petitioner''s activities are such that they adversely affect the maintenance of public order and without apprehending him, and without keeping him under detention, it is difficult to maintain the even tempo and current of life and activities of the public at large in the area of his operation.

Learned counsel for the petitioner has however contended before us that the petitioner''s activities are enumerated in full in the memorandum of grounds, but there is nothing to suggest that he has even been connected with the case registered as Crime No. 526 of 1991 of P.3 Vyasarpadi Police Station. Form No. 95, which contained information against the accused in Crime No. 526 of 1991 was, however, before the Detaining Authority and he has taken such information also into consideration while forming his opinion whether to detain the petitioner under the Act or not. Learned Additional Public Prosecutor has not been able to dispute this fact as one of the documents related to the detenu is Form No. 95 relating to Crime No. 526 of 1994, aforementioned. Thus, according to learned counsel for the petitioner, the Detaining Authority has acted on such extraneous material that has visited his decision to detain the petitioner under S.3(1) of the Act. There are unexceptional principles, which the Courts apply in all cases, under which the acts of any authority empowered to take a decision, which is likely to affect adversely another. Amongst such principles, is the Rule as to mala fides, the presence whereof, if proved, renders such acts of Authorities invalid. Mala fides are mainly divided in two groups: (one,) mala fide in law, where some kind of animus in the mind of the person making the order should exist, generally called by the Courts, the presence of malice in fact, and (two) mala fide in law, where the actual malicious intention on the part of the party concerned in making the alleged wrongful order, is not necessary, but the courts call malice in law is described variously but, in short, to mean that a person who is required to exercise a public duty, is required not to exercise his discretion to take into account matters, which the courts consider not to be proper for the guidance of his discretion. Such matters are generally called irrelevant by the Courts as well as apposite of it, that is, a person while exercising a public duty, is bound to take into consideration of such matters, which the Courts consider proper, which are generally called relevant by the courts. A fair description of this malice in low is available in the words of Viscount Haidane in Shearer v. Shields [(1914) AC 808 at 3.813:]

A person who inflicts an injury upon another person in contravention of the law is not allowed to say that he did so with an innocent mind, he is taken to know the law, and he must act within the law. He may, therefore, by guilty of malie in law, although, so far the state of his mind is concerned, he acts ignorantly, and in that sense innocently. Thus malice in its legal sense means malice such as may be assumed from the doing of a wrongful act intentionally but without just cause or excuse, or for want of reasonable or probable cause.

Another description often quoted by the Courts of this rule is found in the words of Lord Goddard CJ. in Pilling v. Abergele Urban District Council ((1950) 1. K.B. 636), wherein it is pointed out that where a duty to determine a question is conferred on an authority which state their reasons for the decision and the reasons which they state show that they have taken into account matters which they ought not to have taken into account or that they have failed to take matters into account which they ought to have taken into account, the Court to which an appeal lies can and ought to adjudicate on the matter.'' It is the words of Lord Esher M.R. in The Queen on the Prosecution of Richard Westbrook v. The Vestry of St. Pancras, ((1890) 24 QBD 371 at p 375):

which is often repeated in different words:

If people who have to exercise a public day by exercising their discretion take into account matters which the Courts consider not to be proper for the guidance of their discretion, then in the eye of the law, they have not exercised their discertion.

In Smt. S.R. Venkataraman Vs. Union of India (UOI) and Another, , the Supreme Court has pointed out that ''malice'' in its legal sense means malice such as may be assumed from the doing of a wrongful act intentionally but without just cause or excuse, or for want of reasonable or probable cause, and it is equally true that there will be an error of fact when a public body is prompted by a mistaken belief in the existance of a non-existing fact or circumstance. This is so clearly unreasonable that what is done under such a mistaken belief might almost be said to have been done in bad faith, and in actual experience, and as things go, these may well be said to run into one another. The influence of extraneous matters will be undoubted where the authority making the order, has admitted their influence. The above thus being the rule, the question that is posed before us is, whether the information the Form 95 revealed in respect of Crime No. 526 of 1991 since taken into account by the Detaining Authority, has vitiated the order of detention. The answer to this has to be in the affirmative. It is not the extent of the influence of the irrelevant information, but its presence in the mind of the Detaining Authority, which is relevant. A preventive detention is always an exception and no exception should be honored to deny to a person his personal liberty, unless that the precautions, which go with such exceptions, are found to have been satisfied. It is for this reason that we hold in the instant case that the decision to detain the petitioner has been inflicted by malice in law. For the reason afore-mentioned, we are inclined to interfere with the petitioner''s detention and the detention order in No. 261 of 1993 dated 5.8.1993 on the file of the 2nd respondent will stand quashed and the respondents are directed to release the petitioner forth, if not wanted in connection with any other case.