Madras High Court
Murugan vs The Secretary To Government on 18 January, 2016
Bench: P.R.Shivakumar, V.S.Ravi
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 18.01.2016
CORAM
THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR
AND
THE HONOURABLE MR.JUSTICE V.S.RAVI
H.C.P.(MD)No.1755 of 2015
Murugan : Petitioner
Vs.
1.The Secretary to Government,
Home, Prohibition and Excise Department,
Secretariat, Chennai-600 009.
2.The District Collector and District Magistrate,
Office of the District Collector and District Magistrate,
Tirunelveli District,
Tirunelveli.
3.The Superintendent of Prison,
Palayamkottai Central Prison,
Tirunelveli District. : Respondents
PRAYER: Petition is filed under Article 226 of the Constitution of India
praying for the issue of a Writ of Habeas Corpus to call for the entire
records, connected with the detention order of the second respondent in
M.H.S.Confdl.No.138 of 2015, dated 07.12.2015 and quash the same and direct
the respondents to produce the detenu namely Murugan S/o.Dharmar, aged about
23 years detained in Palayamkottai Central Prison, before this Court and set
him at liberty forthwith.
!For Petitioner : Mr.R.Alagumani
^For Respondents : Mr.A.Ramar,
Additional Public Prosecutor
:ORDER
[Order of the Court was made by P.R.SHIVAKUMAR, J] The petitioner is the detenu - Murugan S/o.Dharmar, aged about 23 years. He has been detained by the second respondent by his order in M.H.S.Confdl.No.138 of 2015, dated 07.12.2015, holding him to be a "Goonda", as contemplated under Section 2(f) of Tamil Nadu Act 14 of 1982, taking note of the ground case in Crime No.225 of 2015 on the file of Suthamalli Police Station registered for alleged offences punishable under Sections 341, 294(b), 387 and 506(ii) of the Indian Penal Code and the adverse case in Crime No.223 of 2015 registered on the file of Suthamalli Police Station for offence punishable under Section 302 of the Indian Penal Code.
2. The Detaining Authority, expressing subjective satisfaction that the detenu conformed to the definition of the "Goonda" and that his presence at large would be prejudicial to the maintenance of public order and also expressing subjective satisfaction that it was very likely that the detenu would come out on bail in the ground case and the adverse case, passed the impugned detention order. The said order is challenged in the present Habeas Corpus Petition.
3. Though the detention order is sought to be assailed on several grounds, the learned counsel for the petitioner mainly relies on the contention that in the ground case and the adverse case, no bail applications were filed, but still the detaining authority expressed subjective satisfaction that there was a real possibility of the detenu coming out on bail in the ground case and the adverse case.
4. In elaboration of the said contention, the learned counsel for the petitioner submits that the subjective satisfaction regarding the real possibility of the detenu coming out on bail in a case, wherein no bail application is pending, cannot be based on any other case in respect of other persons and that the very fact that no bail application is pending will negative the imminent possibility of the detenu coming out on bail, subject to an exception that a co-accused in the very same case placed under similar circumstances has been released on bail.
5. In support of his contention, the learned counsel for the petitioner relies on the Judgment of a Larger Bench of the Hon'ble Supreme Court consisting of three Hon'ble Judges in Rekha Vs. State of Tamil Nadu, reported in (2011) 5 SCC 244, followed by and clarified in Huidrom Konungjao Singh Vs. State of Manipur and others reported in (2012) 7 SCC 181, which has also been followed by this Court in an unreported decision in H.C.P(MD).No.1567 of 2015 [Sri Devi Vs. Secretary to Government of Tamil Nadu, Home Prohibition and Excise Department and others], vide order dated 14.12.2015.
6. The submissions made by the learned Additional Public Prosecutor in reply to the above said contentions raised by the learned counsel for the petitioner are also heard.
7. In paragraph No.6 of the grounds of detention, the Detaining Authority, expressing his subjective satisfaction regarding the possibility of the detenu coming out on bail, made the following observation:
"I am also aware that the sponsoring Police officer has stated that Thirumathi. Malaiammal mother of the Thiru. Murugan is taking action to take out her on on bail by filing a bail application for Suthamalli Police Station Crime Number 223/2015 and Suthamalli Police Station Crime Number 225/2015. I am aware that Thiru. Murugan has not filed any bail application so far in Suthamalli Police Station Crime Number 223/2015. I am also aware that there is real possibility of his coming out on bail in future by filing bail application for the above cases since in similar cases bails are granted by the appropriate courts. I am also aware that in a similar case bail has been granted to Saravanan alias Paulkarasaravanan in CRMP No: 3390/2015, Dated:
03.06.2015 by the Principal Sessions Court, Tirunelveli. I therefore infer that there is real possibility of his (Thiru. Murugan) coming out on bail in Suthamalli Police Station Crime Number 223/2015; since bails are granted by the appropriate courts in such cases. I am aware that Thiru. Murugan is in remand in Suthamalli Police Station Crime Number 225/2015 and in this case he has not filed any bail application so far. I am also aware that there is real possibility of his coming out on bail in future by filing bail application for the above cases since in similar cases bails are granted by the appropriate courts. I am also aware that in a similar case bail has been granted to Ramar alias Karadi Ramar in CRMP No: 3495/2014, dated: 17.07.2014 by the Judicial Magistrate No.5, Tirunelveli. I therefore infer that there is real possibility of his (Thiru. Murugan) coming out on bail in Suthamalli Police Station Crime Number 225/2015; since bails are granted by the appropriate courts in such cases.".
8. The Detaining Authority referred to the fact that no bail application was filed in the ground case and the adverse case, namely, Crime Nos.225 of 2015 and 223 of 2015 registered on the file of Suthamalli Police Station. However, the Detaining Authority proceeded further to express a subjective satisfaction that there was real possibility of the detenu coming out on bail by filing a bail application, since in similar cases, not being a case of co-accused in the very same cases, other persons were granted bail by the learned Judicial Magistrate No.5, Tirunelveli and the learned Principal Sessions Judge, Tirunelveli. Such a comparison of bail order passed in another case, when no bail application is pending, to express subjective satisfaction of the real possibility of the detenu coming out on bail is against the dictum laid down by a Larger Bench of the Supreme Court in Rekha Vs. State of Tamil Nadu, reported in (2011) 5 SCC 244, followed by a Division Bench of the Hon'ble Supreme Court in Huidrom Konungjao Singh Vs. State of Manipur and others reported in (2012) 7 SCC 181 and by this Court in an unreported decision in H.C.P(MD).No.1567 of 2015 [Sri Devi Vs. Secretary to Government of Tamil Nadu, Home Prohibition and Excise Department and others], vide order dated 14.12.2015. Hence, as rightly contended by the learned counsel for the petitioner, the Order of Detention is vitiated on the said ground alone.
9. In the result, the Habeas Corpus Petition is allowed and this Court sets aside the order of detention dated 07.12.2015, made in M.H.S.Confdl.No.138/2015, by the second respondent, the District Collector and District Magistrate, Office of the District Collector and District Magistrate, Tirunelveli District, Tirunelveli and directs the release of the detenu by name Murugan, S/o.Dharmar, aged about 23 years forthwith, if his continued custody is not authorised in specific cases or by any other detention order.
To
1.The Secretary to Government, Home, Prohibition and Excise Department, Secretariat, Chennai-600 009.
2.The District Collector and District Magistrate, Office of the District Collector and District Magistrate, Tirunelveli District, Tirunelveli.
3.The Superintendent of Prison, Palayamkottai Central Prison, Tirunelveli District.
4.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai..