Madras High Court
Bagavathi vs The Principal 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.1739 of 2015
Bagavathi : Petitioner
Vs.
1.The Principal Secretary to Government,
Home, Prohibition and Excise (xiv) Department,
Secretariat,
Chennai.
2.The District Collector and District Magistrate,
Tirunelveli District,
Tirunelveli.
3.The Inspector of Police,
Kallidaikurichi Police Station,
Tirunelveli District.
(Cr.No.233/2015).
4.The Superintendent,
Bostral School,
Pudukkottai 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 records
pertaining to the proceedings in M.H.S.Confdl.No.141/2015, dated 08.12.2015
on the file of the second respondent and quash the detention order against
the petitioner's son Siva alias Sivasubramanian, aged 21 years and direct the
release of the petitioner's son from the Boastal School, Pudukkottai and set
him at liberty.
!For Petitioner : Mr.P.Ramasamy
^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-Siva alias Sivasubramanian, S/o.Kanthasamy alias Kanthan, aged about 21 years. The detenu has been detained by the second respondent by his order in M.H.S.Confdl.No.141/2015, dated 08.12.2015, 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.233 of 2015 on the file of Kallidaikurichi Police Station registered for alleged offences punishable under Sections 294(b), 387 and 506(ii) of the Indian Penal Code and the following three adverse cases:
(i) Crime No.161 of 2015 registered on the file of Ambasamudram Police Station for alleged offences punishable under Sections 147, 148, 341, 294(b), 324, 332, 307, 435 of the Indian Penal Code read with 3,4 of Tamil Nadu Property (Prevention of Damage and Loss) Act;
(ii) Crime No.162 of 2015 registered on the file of Ambasamudram Police Station for alleged offences punishable under Sections 147, 148, 341, 294(b), 387, 506(ii) of the Indian Penal Code read with 3 of Tamil Nadu Property (Prevention of Damage and Loss) Act; and
(iii) Crime No.267 of 2015 registered on the file of Ambasamudram Police Station for alleged offences punishable under Sections 341 and 302 of the Indian Penal Code altered into 120-B [wrongly stated as "120(b)"], 147, 148, 341, 294(b), 506(ii), 302 of the Indian Penal Code and Section 3(2)(v) of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act.
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 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 contention that in the ground case and the adverse cases, 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 cases.
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. Bhagavathi mother of Thiru. Siva alias Sivasubramanian is taking action to take out her son on bail by filing a bail application for Ambasamudram Police Station Crime Number 161/2015, Ambasamudrarn Police Station Crime Number 162/2015, Ambasamudram Police Station Crime Number 267/2015 and Kallidaikurichi Police Station Crime Number 233/2015. I am aware that he has not filed any bail application so far in Ambasamudram Police Station Crime Number 161/2015. 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 this case bail has been granted to Thiru.Siva alias Sivasubramanian's associate Selvam in CRMP No: 4412/2015 Dated: 04.08.2015 by the Principal Sessions Court, Tirunelveli. I therefore infer that there is real possibility of his (Thiru. Siva alias Sivasubramanian) coming out on bail in Ambasamudram Police Station Crime Number 161/2015; since bails are granted by the appropriate courts in this case. I am aware that he has not filed any bail application so far in Ambasamudram Police Station Crime Number 162/2015. 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 this case bail has been granted to Thiru. Siva alias Sivasubramanian's associate Selvam in CRMP No: 4414/2015, dated 19.08.2015 by the Principal Sessions Court, Tirunelveli. I therefore infer that there is real possibility of his (Thiru. Siva alias Sivasubramanian) coming out on bail in Ambasamudram Police Station Crime Number 162/2015; since bails are granted by the appropriate courts in this case. I am aware that he has not filed any bail application so far in Ambasamudram Police Station Crime Number 267/2015. 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 Kanthavel alias Kanthan in CRMP.No.60/2014 dated 23.01.2014 by the Judicial Magistrate No-V, Tirunelveli. I therefore infer that there is real possibility of his (Thiru.Siva alias Sivasubramanian) coming out on bail in Ambasamudram Police Station Crime Number 267/2015; since bails are granted by the appropriate courts in such cases. I am aware that Thiru. Siva alias Sivasubtamanian is in remand in Kallidaikurichi Police Station Crime Number 233/2015 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 Periyaduari in CRMP.No.4377/2012 dated 02.01.2013 by the Judicial Magistrate No.3, Tirunelveli. I therefore infer that there is real possibility of his (Thiru.Siva alias Sivasubramanian) coming out on bail in Kallidaikurichi Police Station Crime Number 233/2015; since bails are granted by the appropriate courts in such cases."
8. The Detaining Authority referred to the fact that no bail applications were filed in the ground case in Crime No.233 of 2015 registered on the file of Kallidaikurichi Police Station and the adverse cases, namely, Crime Nos.161, 162 and 267 of 2015 registered on the file of Ambasamudram 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. 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 08.12.2015, made in M.H.S.Confdl.No.141/2015, by the second respondent, the District Collector and District Magistrate, Tirunelveli District, Tirunelveli and directs the release of the detenu by name Siva alias Sivasubramanian, S/o.Kanthasamy alias Kanthan, aged about 21 years forthwith, if his continued custody is not authorised in specific cases or by any other detention order.
To
1.The Principal Secretary to Government, Home, Prohibition and Excise (xiv) Department, Secretariat, Chennai.
2.The District Collector and District Magistrate, Tirunelveli District, Tirunelveli.
3.The Inspector of Police, Kallidaikurichi Police Station, Tirunelveli District.
(Cr.No.233/2015).
4.The Superintendent, Bostral School, Pudukkottai District.
5.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai..