Madras High Court
Muneeswaree vs State Of Tamil Nadu 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.1748 of 2015
Muneeswaree : Petitioner
Vs.
1.State of Tamil Nadu, rep. by
The Secretary to Government,
Home, Prohibition and Excise Department,
Fort St. George,
Chennai-9.
2.The District Collector and District Magistrate,
O/o. The District Collector and District Magistrate,
Thanjavur District,
Thanjavur.
3.The Superintendent of Central Prison,
Central Prison,
Tiruchirappalli. : 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 in detention order passed in P.D.No.72/2015 dated 04.12.2015 on the
file of the second respondent herein and set aside the same as illegal and
direct the respondents to produce the body or person of the petitioner's son
namely Mandai Gopi alias Gopi Sundar, S/o.Rengasamy, Male, aged about 26
years, who is detained in Central Prison, Tiruchirappalli before this Court
and set him at liberty.
!For Petitioner : Mr.K.A.S.Prabhu
^For Respondents : Mr.A.Ramar,
Additional Public Prosecutor
:ORDER
[Order of the Court was made by P.R.SHIVAKUMAR, J] The petitioner is the mother of the detenu-Mandai Gopi alias Gopi Sundar, S/o.Rengasamy, aged about 26 years. The detenu has been detained by the second respondent by his order in P.D.No.72/2015, dated 04.12.2015, 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.491 of 2015 on the file of Thanjavur Taluk Police Station registered for alleged offences punishable under Sections 294(b), 352, 392 and 506(ii) of the Indian Penal Code read with Section 3(1) of Tamil Nadu Property (Prevention of Damage and Loss) Act, 1992 and the following three adverse cases:
(i) Crime No.480 of 2014 registered on the file of Thanjavur Taluk Police Station for alleged offences punishable under Sections 341, 294(b), 352, 385 and 506(ii) of the Indian Penal Code read with Section 3(1) of Tamil Nadu Property (Prevention of Damage and Loss) Act, 1992;
(ii) Crime No.231 of 2015 registered on the file of Tamil University Police Station for alleged offence punishable under Section 379 of the Indian Penal Code; and
(iii) Crime No.385 of 2015 registered on the file of Thanjavur Taluk Police Station for alleged offence punishable under Section 379 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 second 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 second adverse case, no bail application was filed, but still the detaining authority expressed subjective satisfaction that there was a real possibility of the detenu coming out on bail in the second 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 Nos. 4 and 5 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:
"4).......... I am also aware that the accused Thiru.Mandai Gopi alias Gopi Sundar has not filed any bail petitions before the court in Tamil University Police Station Crime Number.231/2015.
5) Thiru. Ramu, Father of the accused Thiru. Mandai Gopi alias Gopi Sundar is taking action to take out his son Thiru. Mandai Gopi alias Gopi Sundar on bail for the Ground case registered in Thanjavur Taluk Police Station Crime Number. 491/2015, Under Sections 294(b), 352,392 and 506(ii) of Indian Penal Code read with section 3(1) of Tamil Nadu property (Prevention of Damage and Loss) Act, 1992 through the above said pending bail application filed before the Principal District and Sessions Court, Thanjavur vide Crl.M.P.No. 5001/2015 and by filing a bail application for the adverse case registered in Tamil University Police Station Crime Number. 231/2015, Under Section 379 of Indian Penal Code before the appropriate Court. Moreover, in a similar case, identical to the Ground case Thanjavur Taluk Police Station Crime Number. 491/2015 registered in Pandanallur Police Station Crime Number.
115/2015, Under Sections 341,294(b), 336, 392 and 506(ii) of Indian Penal Code read with section 3(1) of Tamil Nadu Property (Prevention of Damage and Loss) Act, 1992, bail was granted to the accused Karal alias Karal Marx by the Principal District and Sessions Court, Thanjavur in Criminal Miscellaneous Petition Number. 2078/2015, Dated:24.06.2015. Likewise, in a similar case identical to the Adverse case (Tamil University Police Station Crime Number.231/2015) registered in Thanjavur Taluk Police Station Crime Number.385/2015, Under Section 379 of Indian Penal Code, bail was granted to the above said accused Thiru.Mandai Gopi alias Gopi Sundar by the Principal District and Sessions Court, Thanjavur vide Crl.M.P.No.4166/2015, Dated:
01.12.2015. Hence, there is a real possibility of his (Thiru. Mandai Gopi alias Gopi Sundar) coming out on bail from the above said adverse case, by filing bail petition before the appropriate Court, and through the above said pending bail application as detailed above in Serial Number.4, since bails are granted by the court in such cases."
8. The Detaining Authority referred to the fact that no bail application was filed in the second adverse case, namely Crime No.231 of 2015 registered on the file of Tamil University 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 in the second adverse case, since in a similar case (third adverse case), bail was granted to the detenu by the learned Principal District and Sessions Judge, Thanjavur, vide Crl.M.P.No.4166 of 2015 on 01.12.2015. Such a comparison of bail order passed in the third adverse case, when no bail application is pending in the second adverse case, 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 04.12.2015, made in P.D.No.72/2015, by the second respondent, the District Collector and District Magistrate, Office of the District Collector and District Magistrate, Thanjavur District, Thanjavur and directs the release of the detenu by name Mandai Gopi alias Gopi Sundar, S/o.Rengasamy, aged about 26 years forthwith, if his continued custody is not authorised in specific cases or by any other detention order.
To
1.The Secretary to Government, State of Tamil Nadu, Home, Prohibition and Excise Department, Fort St. George, Chennai-9.
2.The District Collector and District Magistrate, O/o. The District Collector and District Magistrate, Thanjavur District, Thanjavur.
3.The Superintendent of Central Prison, Central Prison, Tiruchirappalli.
4.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai..