Madras High Court
Petchiammal vs The Principal Secretary To Government 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.1780 of 2015
Petchiammal .. 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
SUTHAMALLI POLICE STATION
TIRUNELVELI DISTRICT.
[CR.NO. 165/2015]
4 THE SUPERINTENDENT OF CENTRAL JAIL
PALAYAMKOTTAI, TIRUNELVELI DISTRICT.
.. Respondents
Petition filed under Article 226 of the Constitution of India, praying
for issuance of a Writ of Habeas Corpus, calling for the pertaining to the
proceedings in M.H.S.Confdl No.100/2015, dated 10.09.2015 on the file of the
second respondent and quash the detention order against my husband
Mahalingam, aged about 37 years and direct the fourth respondent to release
of my husband and set at liberty from the Central Jail, Palayamkottai.
!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 wife of the detenu-Mahalingam, son of Ramachandran. The detenu was detained by the second respondent by his Detention Order in M.H.S.Confdl No.100/2015, dated 10.09.2015, 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.165 of 2015 registered on the file of Suthamalli Police Station for offences punishable under Sections 294(b), 341, 387 and 506(ii) of the Indian Penal Code and the following three adverse cases:-
(i). Crime No.341 of 2013 registered on the file of Suthamalli Police Station for an offence punishable under Section 379 of the Indian Penal Code;
(ii) Crime No.112 of 2014 registered on the file of Suthamalli Police Station for offences punishable under Sections 379, 353 and 307 of the Indian Penal Code ; and
(iii) Crime No.51 of 2015 registered on the file of Suthamalli Police Station for offences punishable under Sections 302 IPC @ 147, 148, 149, 120-
B, 302 and 34 of the Indian Penal Code and 3(2)(V) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989
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, 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 no bail application was filed in the ground case was, 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, relying on the bail order passed in another case and that the same will be termed ipse dixit not supported by cogent materials.
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 was filed, 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. 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:
?.....I am aware that Thiru.Mahalingam is in remand in Suthamalli Police Station Crime Number 165/2015 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.V, Tirunelveli. I therefore infer that there is real possibility of his (Thiru. Mahalingam) coming out on bail in Suthamalli Police Station Crime Number 165/2015; since bails are granted by the appropriate courts in such cases. If he comes out on bail, he will indulge in further activities in future, which will be pre-judicial to the maintenance of the public order.?
8. The Detaining Authority referred to the fact that no bail application was filed in the ground case in Crime No.165 of 2015 registered on the file of Suthamalli Police Station for offences punishable under Sections 294-B, 341, 387 and 506(ii) of the Indian Penal Code. 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 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.V, Tirunelveli in Cr.M.P.No.3495/2014, vide order dated 17.07.2014. 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.
9. In the result, the Habeas Corpus Petition is allowed and this Court sets aside the Order of Detention dated 10.09.2015, made in M.H.S.Confdl No.100/2015, by the second respondent, the District Collector and District Magistrate, Tirunelveli District and directs the release of the detenu, by name Mahalingam, son of Ramachandran, aged about 37 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 SUTHAMALLI POLICE STATION TIRUNELVELI DISTRICT.
[CR.NO. 165/2015] 4 THE SUPERINTENDENT OF CENTRAL JAIL PALAYAMKOTTAI, TIRUNELVELI DISTRICT.
5. THE ADDITIONAL PUBLIC PROSECUTOR, MADURAI BENCH OF MADRAS HIGH COURT, MADURAI..