Madras High Court
N.Subramani vs The State on 17 November, 2008
Author: S.Tamilvanan
Bench: Elipe Dharma Rao, S.Tamilvanan
IN THE HIGH COURT OF JUDICATURE AT MADAS DATED: 17.11.2008 CORAM: THE HONOURABLE MR.JUSTICE ELIPE DHARMA RAO AND THE HONOURABLE MR.JUSTICE S.TAMILVANAN Habeas Corpus Petition No. 1653 of 2008 N.Subramani ... Petitioner Vs. 1.The State, rep. By the Inspector of Police, Perundurai Police Station, Perundurai, Erode. 2.The Superintendent of Police, Erode District, Erode. 3.N.K.K.P.Raja, Former Hon'ble Minister for Handlooms/ Memer of Legislature of Erode, constituency District Secretary, Dravida Muneytra Kazhagam, State of Tamil Nadu, Fort St. George, Chennai-9. ... Respondents Petition under Article 226 of the Constitution of India for the issuance of a Writ of Habeas Corpus to direct respondents 1 and 2 to produce the detenu P.Sivabalan, S/o P.C.Palanisamy, who is the petitioner's brother's son bodily before this Court and set him at liberty and consequential direction to respondents 1 and 2 to act in accordance with law. For Petitioner : Mr. R.Shivakumar For Respondents : Mr.N.R.Elango, Addl.P.P.for R1&R2 Mr.N.Manoharan for R3 * * * O R D E R
(Order of the Court was made by Elipe Dharma Rao, J.) The petitioner, who is said to be the uncle of the detenu, has filed the above Habeas Corpus Petition to direct respondents 1 and 2 to produce the detenu P.Sivabalan, S/o P.C.Palanisamy, bodily before this Court and set him at liberty and consequential direction to respondents 1 and 2 to act in accordance with law.
2. Heard the learned counsel for the petitioner as well as the learned Additional Public Prosecutor for the respondents 1 and 2 and the learned counsel appearing for the third respsondent.
3. To assess the case on hand, a brief background of the case is necessary. From the materials placed on record, we are able to see that earlier one N.Elangovan has filed H.C.P.No.1092 of 2008, praying to direct the respondents 1 and 2 herein to produce the detenus (i) P.C.Palanisamy, son of P.S.Chinnasamy, (ii) Malarvizhi, wife of P.C.Palanisamy and (iii) P.Sivabalan, son of P.C.Palanisamy, bodily before this Court and set them at liberty. His contention was that due to a property dispute between the detenus and respondents 5 to 7 therein, at the instance of the third respondent herein, all the above said three detenus were kidnapped and they were in the illegal custody of the third respondent herein. The above said H.C.P.No.1092 of 2008 was heard along with another connected H.C.P.No.1114 of 2008 filed by the present petitioner Er.N.Subramani, seeking to produce the detenu P.C.Gugamani, son of Chinnasamy Gounder bodily before this Court and set him at liberty from the respondents 3 to 8, including the third respondent herein.
4. The above said detenus in H.C.P.No.1092 of 2008 viz. (i) P.C.Palanisamy, son of P.S.Chinnasamy, (ii) Malarvizhi, wife of P.C.Palanisamy and (iii) P.Sivabalan, son of P.C.Palanisamy were produced before a Division Bench of this Court on 29.7.2008 and even the detenu in H.C.P.No.1114 of 2008 was present before the Court on 26.8.2008. The Division Bench of this Court, after hearing the detenus and the learned senior counsel appearing for them and upon considering the counter affidavits filed on behalf of the respondents, has found that as on the date of passing the order, the detenus were not illegally detained by anybody and considering their plea that they are desirous to go to their home town i.e. Perundurai, and has dismissed the H.C.Ps., by the order dated 27.8.2008. S.L.P.(Crl.)No.6748 of 2008 filed, challenging the said order of the Division Bench of this Court, by the petitioner therein, was also dismissed, by the order dated 22.9.2008. It has been observed by the Honourable Apex Court that the petitioner is not prevented from moving a fresh Habeas Corpus Petition before the High Court on account of fresh developments.
5. In this backdrop, this H.C.P. has been filed by the petitioner, stating that he is the paternal uncle of the detenu and that even though the detenu was produced before the Division Bench of this Court in the earlier proceedings, actually he was not moving freely even at that time and even though this Court has held that he is a freeman and can move freely, even today, the detenu is under illegal detention of the third respondent, who happens to be the ex-Minister of the State.
6. This petition has been filed on 17.10.2008 and before filing of this petition, the mother of the detenu Sivabalan has lodged a complaint before the first respondent alleging that her son Sivabalan is under illegal custody of the third respondent. Based on the said complaint, a case in Cr.No.909 of 2008 for the offence under Section 365 IPC has been registered against the third respondent and the same is under investigation.
7. The respondents 2 and 3 have filed separate counters. In the detailed counter affidavit filed by the second respondent, he has narrated the entire investigation conducted till date. The second respondent has narrated the revelations of his investigation, as follows:
"1. After the kidnapping of Tr.Palanisamy, Malarvizhi and Sivabalan by O.C.Viswanathan, K.P.Samy and their men on 22.7.08, they were released by the kidnappers on 25.7.08.
2. Sivabalan met Tr.NKKP Raja on 26.07.08 at Thiruvarur with Senthil and Paruppu Prakash.
3.On 27.07.08 Sivabalan appeared before the Inspector of Police, Perundurai PS.
4.Malarvizhi in her complaint as well as statements during enquiry at Perundurai and stated that she saw her son lastly on 29.07.08 and he was in the custody of NKKP Raja.
5.Sivabalan, his friends Senthil Kumar @ Senthil, Paruppu Prakash @ Sivakumar along with Inspector, Perundurai left Perundurai on 27.07.08 for producing Sivabalan before the High Court in Senthil Kumar's car.
6.Sivabalan was produced before the High Court on 28.07.08. The case was adjourned to 29.07.08 and High Court ordered Inspector to produce him on 29.07.08.
7.lSivabalan was produced before the High Court, Chennai on 29.07.08.
8.As per the orders of the High Court, Sivabalan and his parents staye din the house of their relative professor Tr.Ramasamy in D.No.32, Devadaya Apartment, Adayar, Chennai on 20.07.08.
9.Sivabalan visited the Dental Clinic, Dentistree of Dr.Vijayakumar situated in Devadaya Apartment at Adayar with Tmt.Leelavathi wife of Professor Ramasamy and Malarvizhi on 30.07.08.
10.After 30.07.08, Sivabalan returned to Perundurai and stayed at the houses of KKC Balu, Senthil Kumar, and Grand Mother's house at Kanakkampalayam for 10 days.
11.Sivabalan attended press meet on 6.8.08 at Erode Press Club with his friends Sivakumar and Senthilkumar.
12.Sivabalan stayed with Arasu at Annaiappa Apartment, Vimanapuram, Bangalore on 09.08.08 and 10.08.08.
13.Sivabalan visited Chennai and took further treatment t Dental Clinic of Dr.Vijayakumar of Adayar, Chennai on 12.08.08.
14.Sivabalan stayed with Arasu in Arasu's house situated at Annaippa Apartment, Vimanapuram, Bangalore about 10 days from 14.09.08.
15.Sivabalan stayed with Senthil Kumar @ Senthil at Kathigai near Mysore on 25.09.08 and 26.09.08.
16.Sivabalan visited Mangalore on 02.10.08.
17.Sivabalan stayed with Arasu at Bangalore from 06.10.08 to 09.10.08.
18.Sivabalan came to Chennai with Arasu on 9.10.08.
19.His location as per his cells CDR statement was Chennai on 10.10.08 after that the mobile was switched off.
20.During the stay of Sivabalan with Arasu at Bangalore, in the first week of September 2008 without the knowledge of Arasu, Sivabalan obtained a new sim card in the name of Arasu by using his photo and his driving licence as I.D. Proof.
21.The witness Mani gave his two sim cards Nos.94427-26590 and 94422-26590 to Sivabalan on his request and one cell phone No.94427-26590 was used by him and another No.94422-26590 was used by his mother Malarvizhi.
After 10.10.08, the whereabouts of Sivabalan could not be traced. But as per the statements of witnesses, Sivabalan stayed with them alone and nobody accompanied him. As per the statements of witnesses and call statements of different sim cards, it is revealed that Sivabalan used varied number of sim cards in his own name, in the name of others, others cell phones, using his sim cards in others equipments to avoid tracing of his calls his location and his whereabouts by the Police.
Following are the cell phone sim cards used by him in his name and others name:
1.98427-86666 (switched off from 11.10.08) 2.99529-66768 (switched off from 06.10.08) 3.97910-67467 4.94801-16378 (obtained the sim by using Arasu ID) 5.98423-17831 (belongs to Senthil) 6.94422-26590 (belongs to Mani switched off from 28.10.08) 7.98435-69558.
I submit that so far the investigation reveals that the detenu-Sivabalan is not in the custody of Tr.N.K.K.P.Raja or his men. Further, I submit that the detenu is moving freely and independently on his own accord and hiding himself with ulterior motive."
8. The third respondent has filed a detailed counter affidavit stating that the entire case is a fabricated one targeting his image and reputation with ulterior motives. He further submitted that the conduct of giving complaint on 9.10.2008 and filing the HCP on 16.10.2008 would show that the petitioner and the alleged detenu have cleverly used the situation to suit their convenience at the cost of his reputation and the unusual behaviour and artificial conduct of the part of the petitioner and alleged detenu andtheri interviews to various news papers and other medias would show that they are playing well written drama to achieve their illegal object. He has further submitted that the Habeas Corpus Petition itself is not maintainable in view of an effective, alternative remedy available under the Code of Criminal Procedure to move the Judicial Magistrate concerned for necessary relief and the writ petition has been filed only with an oblique motive to defame him in the mind of general public, because the petitioner and the alleged detenu know well that their allegations are bereft of any truth and would pray to dismiss this petition.
9. A careful perusal of the entire materials placed on record and upon hearing the learned counsel appearing for all the parties, it is seen that the very relationship of the petitioner with the alleged detenu is doubtful. While in the affidavit filed before this Court, the petitioner has added with pen, as an afterthought that he is the uncle of the detenu, the learned counsel for the petitioner has submitted that the petitioner is the brother-in-law of the detenu. The other aspect, which has not been answered on the part of the petitioner, in spite of the objection taken to that effect by the learned counsel for the respondents, is that what made the petitioner, whose relationship with the alleged detenu itself is under a cloud of suspicion, to file the present petition, when admittedly, the parents of the detenu are very well available and when the mother of the detenu himself has lodged the complaint before the Police. From these suspicious circumstances, which have not been explained by the petitioner, a legal presumption would arise that the petitioner is trying to fish out from something for his own benefit and with ulterior motives.
10. The entire investigation report submitted before us by the second respondent, wherein we find no reason to suspect anything, so as to doubt the integrity and veracity of the same, would show that the alleged detenu is hiding himself in a conspicuous place and if he is really under the illegal detention of somebody, much less under the detention of the third respondent, as has been alleged on the part of the petitioner, he might not have used either his cell phone or the cell phones of others, that too frequently changing the sim cards, so as to keep his place of stay beyond anybody's imagination and thus is keeping himself conspicuous. Therefore, in the absence of any material to doubt the investigation conducted so far by the second respondent and the material on record speaks that the alleged detenu Sivabalan is not in the custody much less illegal custody of anybody, much less the third respondent, we find no ground to entertain this petition.
11. The contention urged on the part of the petitioner that even on the date when the detenu was produced before this Court, he was under illegal custody could not also be trusted. If it is so, nothing prevented the detenu to explain the same before the Division Bench on the earlier occasion on 29.7.2008, when he was produced before the Court in H.C.P.No.1092 of 2008. When the detenus 1 and 2 have narrated before the Division Bench on 29.7.2008 about the alleged incident of their kidnap, the contention now raised by the petitioner that the detenu was threatened not to reveal the truth before the Court also cannot be appreciated. A perusal of the order dated 29.7.2008 passed by a Division Bench of this Court would reveal that when a specific question was posed to him as to whether he has visited his house at Perunthurai, he has stated that he has not visited the house and he does not know what happened to the house and however, with great reluctance he has stated that he is not prepared to tell all that had happened. This reluctance exhibited only on the part of Sivabalan, while his parents have narrated the incident before the Court, cannot be taken as if he was under a fear of threat on that date. Had he been under a threat or under the detention or illegal detention of anybody, he would have submitted before the Division Bench of this Court the same fact, which would have considered to pass suitable orders for his safety and security.
12. On a total consideration of the entire materials placed on record, since it is very much clear that the detenu is not under detention, much less under illegal detention of anybody and that he is hiding himself and playing tricks on the law implementing agency, by frequently changing his place of stay solely with a view to keep his place of stay conspicuous, the relief prayed for in this petition cannot be granted. Therefore, this H.C.P. is dismissed.
Index: Yes Internet:Yes (E.D.R., J.) (S.T., J.) raa/Rao 17.11.2008 To
1.The Inspector of Police, Perundurai Police Station, Perundurai, Erode.
2.The Superintendent of Police, Erode District, Erode.
ELIPE DHARMA RAO,J. and
S.TAMILVANAN, J.
Raa/Rao
H.C.P. No. 1653 of 2008
17..11..2008
3. Learned Additional Public Prosecutor has filed the counter stating that the parents of the detenu have not filed the above petition. On the other hand some third party has filed the above petition.
When we enquired about the relationship of the petitioner, the learned counsel appearing for the petitioner represented that he is the brother-in-law . From the contents of the Habeas Corpus Petition it is found overwriting about the relationship as uncle. Therefore, the petitioner is not aware of the relationship of the detenu and we suspect the bonafide of the petitioner in filing this petition.
Further, the learned Public Prosecutor submitted that it is not a case of detention and the detenu has shifted his place of stay frequently i.e. from Chennai to Bombay and Bombay to Bangalore and he is making use of seven sim cards and change them very often so as to avoid his arrest. When the detenu is moving freely and always giving slip to the law implementing agency, we are unable to accept the contention that he is under detention and the filing of the Habeas Corpus Petition itself is nothing but misusing the extraordinary jurisdiction of this Court. Accordingly, this petition is dismissed.