Madras High Court
Ramasamy vs State Of Tamil Nadu on 19 January, 2016
Bench: P.R.Shivakumar, V.S.Ravi
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 19.01.2016
CORAM
THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR
and
THE HONOURABLE MR.JUSTICE V.S.RAVI
H.C.P.(MD)No.1775 of 2015
Ramasamy .. Petitioner
Vs
1.State of Tamil Nadu
Rep.by the Secretary to Government,
Home, Prohibition and Excise Department,
Fort.St.George, Chennai-600 009.
2.The Deputy Inspector General of Police,
Tirunelveli Range and Commissioner of Police,
Tirunelveli City, (Full Additional Charge),
Tirunelveli.
3.The Superintendent of Prison,
Central Prison, Palayamkottai,
Tirunelveli. .. Respondents
Petition filed under Article 226 of the Constitution of India, praying
for issuance of a Writ of Habeas Corpus, calling for the entire records
connected with the detention order passed in No.80/BCDFGISSSV/2015, dated
13.12.2015 on the file of the second respondent herein and quash the same and
direct the respondents to produce the detenu or body of the detenu namely
R.Sivakumar, son of Ramasamy, aged about 24 years, now detained in Central
Prison, Palayamkottai, before this Court and set him at liberty forthwith.
!For Petitioner : Mr.K.Sudalaiyandi
^For Respondents : Mr.A.Ramar,
Additional Public Prosecutor
:ORDER
(Order of the Court was made by P.R.SHIVAKUMAR, J.) The petitioner is the father of the detenu-R.Sivakumar, son of Ramasamy. He was detained by the second respondent by his Detention Order in No.80/BCDFGISSSV/2015, dated 13.12.2015, holding him to be a "Goonda", as contemplated under Section 2(f) of Tamil Nadu Act 14 of 1982, taking note of ground cases in Crime No.787 of 2015 registered on the file of Palayamkottai Crime Police Station for offences punishable under Sections 341, 387 and 506(ii) of the Indian Penal Code and the following three adverse cases:-
(i) Crime No.230 of 2015 registered on the file of Palayamkottai Crime Police Station for an offence punishable under Section 392 of the Indian Penal Code;
(ii) Crime No.738 of 2015 registered on the file of Palayamkottai Crime Police Station for an offence punishable under Section 379 of the Indian Penal Code; and
(iii) Crime No.401 of 2015 registered on the file of Perumalpuram Crime Police Station for an 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 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 in all the adverse cases, 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 following contention:-
?Though the detaining authority expressed subjective satisfaction that there was a real possibility of the detenu coming out on bail in the ground case based on the bail order granted to another person in a similar case can be justified, since bail application was pending, the expression of subjective satisfaction regarding the detenu coming out on bail in all the three adverse cases in which also the detenu had been in remand and no bail application was pending as on the date of passing the order of detention, can be termed 'ipse dixit'. Hence, the subjective satisfaction of the detaining authority that there was a real possibility of the detenu coming out on bail in those cases is vitiated as it is against the dictum laid down by 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.
4. 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.
5.Regarding the subjective satisfaction of the detaining authority as to the real possibility of the detenu coming out on bail in the ground case, the detaining authority made the following observation:
?6. I am aware that .Thiru.R.Sivakumar was produced before the Judicial Magistrate No.1 (in-charge), Tirunelveli on 17.10.2015 in connection with the cases in Palayamkottai Crime Police Station Crime Numbers 230/2015 under section 392 Indian Penal Code, 738/2015 under section 379 Indian Penal Code, Perumalpuram Crime Police Station Crime Number 401/2015 under section 379 Indian Penal Code and Palayamkottai Crime Police Station Crime Number 787/2015 under section 341, 387, 506(ii) Indian Penal Code and remanded at Central Prison, Palayamkottai on that day itself. He was produced before the Judicial Magistrate No.1, Tirunelveli in connection with the cases in Palayamkottai Crime Police Station Crime Numbers 230/2015, 738/2015, Perumalpuram Crime Police Station Crime Number 401/2015 and Palayamkottai Crime Police Station Crime Number 787/2015 through video conferencing on 30.11.2015 and remanded upto 06.11.2015. He was produced before the Judicial Magistrate No.1, Tirunelveli in connection with the above cases on 06.11.2015 and through video conferencing on 20.11.2015 and 04.12.2015 and his remand has been extended upto 18.12.2015. I am aware that he is in remand in connection with the cases in Palayamkottai Crime, Police Station Crime Numbers 230/2015, 738/2015, Perumalpuram Crime Police Station Crime Number 401/2015 and Palayamkottai Crime Police Station Crime Number 787/2015. He moved applications for bail before the Judicial Magistrate No.1, Tirunelveli on 18.11.2015 in Cr.M.P.No.6357/2015 in connection with the case in Palayamkottai Crime Police Station Crime Number 230/2015 under section 392 Indian Penal Code and in Cr.M.P.No.6355/201.5 in connection with the case in Palayamkottai Crime Police Station Crime Number 738/2015 under section 379 Indian Penal Code and they were dismissed on 23.11.2015. He has moved an application for bail before the Judicial Magistrate No.1, Tirunelveli in Cr.M.P.No.7099/2015 on 11.12.2015 in connection with the case in Palayamkottai Crime Police Station Crime Number 787/2015 under section 341, 387, 50600 Indian Penal Code and the same is pending disposal. In a similar case registered in Palayamkottai Crime Police Station Crime Number 287/2015 under section 341, 387, 506(ii) Indian Penal Code, accused Karuthapandi, son of Perumal alias Subbaiah was granted bail by the Judicial Magistrate No.1, Tirunelveli in Cr.M.P.No.2451/2015 on 12.05.2015. I hence infer that it is very likely that Thiru.R.Sivakumar will come out on bail in the case in Palayamkottai Crime Police Station Crime Number 787/2015 under section 341, 387, 506(ii) Indian Penal Code since bails are granted by courts in such cases. There is also a real possibility of Thiru.R.Sivakumar's coming out on bail in other cases in Palayamkottai Crime Police Station Crime Numbers 230/2015, 738/2015 and Perumalpuram Crime Police Station Crime Number 401/2015 by filing applications for bail before the appropriate court. ?
6. The Detaining Authority referred to the fact that the bail application filed in the ground case is pending and no bail applications were pending in respect of the adverse cases. 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 bail applications in the adverse cases, since in a similar case, not being a case of a co-accused in the very same case, another person was granted bail by the learned Judicial Magistrate No.I, Tirunelveli, in Crl.M.P.No.2451/15, on 12.05.2015. 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 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.
7. In the result, the Habeas Corpus Petition is allowed and this Court sets aside the order of detention dated 13.12.2015, made in No.80/BCDFGISSSV/2015, by the second respondent, the Commissioner of Police, Tirunelveli City, Tirunelveli and directs the release of the detenu by name R.Sivakumar, son of Ramasamy, aged about 24 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, Fort.St.George, Chennai-600 009.
2.The Deputy Inspector General of Police, Tirunelveli Range and Commissioner of Police, Tirunelveli City, (Full Additional Charge), Tirunelveli.
3.The Superintendent of Prison, Central Prison, Palayamkottai, Tirunelveli.
4.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai. .