Madras High Court
G.Kalaiselvi vs The State Of Tamil Nadu on 28 September, 2007
Bench: P.K.Misra, P.R.Shivakumar, S.Nagamuthu
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 28/09/2007 CORAM: THE HON'BLE MR.JUSTICE P.K.MISRA THE HON'BLE MR.JUSTICE P.R.SHIVAKUMAR and THE HON'BLE MR.JUSTICE S.NAGAMUTHU HABEAS CORPUS PETITION (MD) No.231 of 2007 G.Kalaiselvi ... Petitioner vs. 1.The State of Tamil Nadu, Rep.by Secretary to Government of Tamil Nadu, Home, Prohibition and Excise Department, Fort St.George, Chennai-600 009. 2.The District Collector and District Magistrate, Ramanathapuram District. ... Respondent Habeas corpus petition 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 of respondent No.2 in Cr.M.P.No.1/Goonda/2007, dated 17.04.2007 and quash the same and to set the petitioner's husband Guru @ Gurusamy confined at Central Prison, Madurai, at liberty. !For Petitioner ... Mr.T.Lajapathi Roy for Mr.R.Alagumani ^For Respondents ... Mr.S.P.Samuel Raj, Addl.Public Prosecutor. :JUDGMENT
P.K.MISRA,J This habeas corpus petition has been referred to a Larger Bench by order dated 10.08.2007 passed by a Division Bench.
2.The detention order was passed by the District Collector cum District Magistrate, Ramanathapuram District, on 17.04.2007 on the allegation that the detenu is a Goonda. In the grounds of detention, reference was made to one adverse case registered under Sections 147, 323, 336, 427 and 506(ii) IPC. The ground case is alleged to have occurred on 25.01.2007, wherein it is alleged that the detenu Guru @ Gurusamy and his associates have committed offences under Sections 147, 148, 324, 326, 302 IPC . The allegations reveal the death of two persons in the incident. On the basis of first information, a case in Crime No.99/2007 of Paramakudi Taluk Police Station has been registered. In paragraph 3 of the grounds of detention, the detaining authority has indicated:
"3... The accused were arrested and the weapons used for the murder were also under Mahazar. The accused Guru @ Gurusamy and other accused were produced before the Judicial Magistrate, Paramakudi and remanded to Judicial custody till 13.04.2007 and lodged in the Central Prison, Madurai. .... His remand was further extended till 27.04.2007. ..."
In paragraph 5 of the grounds of detention, it has been indicated:
"5. I am aware that accused Thiru Guru @ Gurusamy is now in Central Prison, Madurai as remand prisoner. He moved bail on 13.2.2007 at District Sessions Court, Ramanathapuram and it was dismissed by District Sessions Court. I am also aware that he may very likely to come out on bail by filing bail application in the competent court. If he comes out on bail, he will indulge in such further prejudicial activities in futures as well as prejudicial to the maintenance of the public order. ..."
The detention order dated 17.04.2007 was executed and served on the detenu on 18.04.2007.
3.When the habeas corpus petition, filed by the wife of the detenu, was listed for hearing on 10.08.2007, a contention was raised on behalf of the petitioner relying upon the decisions of this Court, such as reported in 2005 (4) CTC 669 (S.Rajasekar v. The Commissioner of Police, Chennai and another) and (2007) 1 MLJ (Crl.) 967 (K.Raja @ Sagaya Arokia Darmaraj v. State of Tamil Nadu, Rep.by Secretary to Government, Prohibition & Excise Department, Chennai and another), to the effect that the detenu had not been produced before the Magistrate I-Class, Paramakudi, on 30.03.2007 and therefore there was no order of remand extending the remand beyond 30.302.07. Learned Additional Public Prosecutor for the State at that stage has contended that the detaining authority was aware that the detenu was in custody and the detaining authority being satisfied that there was imminent possibility of the detenu being released on bail, the order of detention was passed and the question as to whether the detenu was actually produced before the Magistrate on 30.03.2007 was immaterial. He had therefore contended that even though there was no formal order of remand, as the accused had not been produced, the accused was in jail notwithstanding the absence of formal order of remand and such aspect should not be considered as to vitiating the subjective satisfaction of the detaining authority regarding the necessity of passing an order of detention.
4.The Division Bench, of which one of us (P.K.MISRA,J) was a party, felt at that stage that the matter should be placed before a larger Bench to consider as to whether the decisions relied upon by the petitioner, already referred to, run counter to the decision of the Supreme Court in SENTHAMIL SELVI V. STATE OF TAMIL NADU AND ANOTHER - (2006) 3 SCC (Cri.) 50 and accordingly the habeas corpus petition itself was referred to a larger Bench.
5.Learned counsels appearing for the parties not only addressed on the question relating to the effect of absence of a formal order of remand on the detention order, but also have addressed on other questions arising in the habeas corpus petition as the same has been referred to a larger Bench.
6.The contentions which are raised by the counsel for the petitioner are as follows:
(i)There was no valid order of remand on 30.30.2007 as the accused has not been produced before the Magistrate and therefore the detaining authority has passed an order of detention without application of mind.
(ii)A representation had been made seeking for a copy of the order of remand dated 30.03.2007, but such copy was not made available.
(iii)The detaining authority has mechanically, without any cogent material on record, has come to the conclusion that there was imminent possibility of the detenu being released on bail and such conclusion of the detaining authority is on the mere ipse dixit of the detaining authority and therefore the detention order is liable to be quashed.
(iv)The representations filed on behalf of the detenu had not been disposed of expeditiously and therefore the order of detention is vitiated.
7.A counter affidavit has been filed by the second respondent, wherein the order of detention is sought to be justified. It had been stated in such affidavit that in the affidavit of the sponsoring authority it had been indicated about the fact that the detenu had been remanded upto 27.04.2007 and further the details of extension of remand of the detenu till 13.04.2007 and 27.04.2007 have been referred to in the grounds of detention which was served on the detenu on 18.04.2007. The records relating to the above were also placed in the police records from pages 351 to 358.
8.Regarding the imminent possibility of the detenu being released on bail, it has been stated in paragraph No.6 of the counter:
"6..... It is submitted that when the detenu was kept as remanded prisoner he moved bail on 13.02.2007 at District Sessions Court, Ramanathapuram and it was dismissed by the Court. Hence the detaining authority has observed that the detenu may very likely come out on bail by filing bail application in the competent Court and also observed if the detenu comes out on bail he will indulge in such further prejudicial activities in future as well as prejudicial to the maintenance of the public order. Further the recourse of normal criminal law will not have the desired result of preventing him from indulging in such activities which are prejudicial to the maintenance of public order and maintenance of law and order. Hence on perusing the materials placed before me the detaining authority satisfied that the detenu is a "Goonda" and that there is a compelling necessity to detain him in order to prevent him from indulging in such further activities in future acts which are prejudicial to the maintenance of public order under provisions of 2(f) of the Tamil Nadu Act 14 of 1982. ....."
9.Regarding the delay in disposal of the representation, it has been stated that the representation dated 22.04.2007 was received on 24,04.2007, the remarks on the representation was called for from the sponsoring authority on 26.04.2007, which was received on 27.04.2007 and the reply was served on the petitioner on 28.04.2007. A report was also sent to the Secretary to Government on 30.04.2007.
10.So far as the first question is concerned, the learned counsel for the petitioner has, apart from placing reliance upon the two decisions noticed above, placed reliance upon the Full Bench decision of this Court in Hidaya Banu & Another vs. State of Tamil Nadu & Others, reported in 2002 (2) MWN (Cr.) F.B.27. In the aforesaid Full Bench decision, the factual background is apparent from paragraph 8, which is extracted here under.
"8.In all, two petitions have been referred before us as in both the petitions though the concerned detenu was not under a remand order and was also not lodged in the jail, they were described to be so. Since the reference is on this limited factual background, we need not refer to the facts in details in both the petitions and suffice it to say that it was an admitted position in both the matters that on the day when the detention order was passed the detenus were not under remand in the sense that no remand order was passed against them by the concerned Magistrate authorising their custody with the police nor were they lodged in the jail though in the detention orders in both the petitions, the Detaining Authority had described so."
As a matter of fact, in both the cases, the two detenus were in hospital and in the grounds of detention it had been indicated "The State Government are also aware of the fact that you are in the Central Prison, Chennai as remand prisoner and there is likelihood of you being released on bail."
11.In the above background, the contention was raised as under:
"10.The gravamen of his contention is that the Detaining Authority has mechanically described the detenu to be a remand prisoner and that too lodged in Central Prison. The learned counsel, therefore, pointed out that the Detaining Authority was not even alive to the fact that the detenu was in the hospital as an indoor-patient. He points out that these facts of the remand not being extended in case of the detenu and his not being lodged in Central prison but being admitted as an indoor-patient in the Government Hospital, Royapettah were the relevant facts which could have had affected his decision to clamp the detention order on the day it was done, i.e., on 17.10.2001. Ignoring these relevant factors if the Detaining Authority proceeded on the wrong factual premise, this was nothing but a classic example of non-application of mind."
12.The Full Bench emphasised upon the fact that there was non- application of mind. It was observed by the Full Bench:
"14.For arriving at a finding of non application of mind by the Detaining Authority, it will have to be essentially found whether the Detaining Authority has in fact failed to consider any relevant situation which would have affected his decision of clamping the detention order. Further, it would be also a non- application of mind if the authority proceeds on the basis of totally incorrect facts completely ignoring the circumstance that those facts were factually incorrect if such facts have the effect of affecting his decision making process. ...."
It was further observed:
"15.... Thus, there was no remand order in existence on the day when the detention order was passed and as such, the detenu could not be said to be a remand prisoner. Again, factually there is no dispute that on that day the accused-detenu was not an inmate of the Central Prison, Chennai though he was described to be so in the detention order. He was admitted in the Government Hospital, Royapettah as an indoor patient. Mr.Basha, therefore, contended and in our opinion rightly that here was a situation where even being aware of the fact of the non-extension of remand on account of the detenu being admitted in the hospital and not having been produced before the Magistrate, the Detaining Authority still went on to describe the accused-detenu as a remand prisoner and lodged in the Central Prison, Chennai. He pointed out that the awareness on the part of the Detaining Authority of the facts of non-extension of the remand was writ large in paragraph (xxx) of the detention order and yet ultimately in paragraph 5, the concerned Detaining Authority described the detenu as a remand prisoner. This, according to the learned senior counsel, was a classic example of non-application of mind.
16.The other argument was that in describing the accused-detenu as a remand prisoner and his being lodged in the Central Prison, Chennai, the Detaining Authority has ignored a very relevant fact that the detenu was in fact admitted in the Government Hospital, Royapettah as an indoor-patient and that he could not have been produced or was not produced before the Magistrate on account of his precarious health. According to Mr.Basha, these facts were extremely relevant because they would have one way or the other affected the decision to clamp the order of detention on that particular day. The learned counsel argues that it could be that considering the the precarious health the order might not have been passed on that day. Therefore, considering the question on both, the hypotheses, it was example of non-application of mind.
.....
19. We have no doubts in our mind that the circumstances like accused- detenu being on remand, being already incarcerated in the jail or being admitted in the hospital and not being available for being produced before the Magistrate and the total absence of the remand order were circumstances which were bound to be taken into consideration by the Detaining Authority as these were extremely relevant facts which would have one way or the other affected his thinking process would have in the result affected his decision to clamp a detention order. ...."
Again it was further observed:
"21..... Here, a factually incorrect statement has been made by the Detaining Authority to the effect that, on the date of the passing of the detention order, the detenu was a remand prisoner though there was clearly no remand order against him passed by the concerned Magistrate. The matter did not stop here also. The detenu was also described as being lodged in Central Jail, Chennai which was far from the truth as the detenu admittedly was admitted in the Government Hospital as an indoor-patient and indeed he could never have been in the Central Jail as there was no authority to the jail authorities to keep him in the cell."
Ultimately, the Full Bench in the aforesaid decision, quashed the order of detention on account of non-application of mind by the detaining authority on the above aspect.
13.The aforesaid decision of the Full Bench has been followed and several orders of detention have been quashed in matters where the detenu had not been produced before the Magistrate and no formal order of remand had been passed and the matter had been simply adjourned by the Magistrate to a future date. The basic conclusion in such later decisions is to the effect that there was no remand extension order and the Magistrate had simply adjourned the matter to another date on account of the non-production of the accused and yet the detaining authority had passed the order of detention on the assumption that the remand of the accused had been extended. Apart from the two decisions which have already been noticed in the order of reference and referred to by us above, such view has been taken in several other Division Bench decisions.
14.It is trite law that an order of detention is passed with a view to prevent a person acting in a manner prejudicial to the maintenance of public order. When a person is in custody, in normal course, there may not be any apprehension that such person is likely to act in a manner prejudicial to maintenance of public order, as such person is under the constant vigil of jail authorities. However, it is now well recognised that an order of preventive detention can be passed even in respect of a person in custody, provided the detaining authority comes to the conclusion, on cogent material, that there is imminent possibility of the detenu being released from custody and there is compelling necessity to prevent such person acting in a manner prejudicial to maintenance of public order. Where a person is at large, the detaining authority is required to come to the conclusion, on the basis of his past conduct, that such person is likely to act in a manner prejudicial to the maintenance of public order and therefore there is a necessity for passing an order of detention. Where such person is already in custody, the detaining authority is required to come to an additional conclusion that there is imminent possibility of he being released on bail.
15.The question as to whether such a person has been validly remanded to custody or otherwise is not the concern of the detaining authority. If a person is actually in custody and the detaining authority is under the impression that such person is not in custody but is at large and an order of detention is passed, obviously such detention order is vitiated because the detaining authority ignores a vital aspect, namely the question as to whether the person is at large or whether the person is in custody. When a person is in custody, the detaining authority may not think of passing any order of detention, unless the detaining authority comes to the conclusion that there is imminent possibility of being released on bail or even otherwise.
16.It is no doubt true that no person should be kept in custody unless there is an order of remand. However, where a person continues in custody notwithstanding the absence of an order of remand, the custody is apparently illegal and therefore there is enhanced possibility of such person being released. When a person is in custody by virtue of a valid order of remand, the only possibility of such person being released is on account of a bail order being passed or on account of such other similar events, such as quashing of the criminal case or even acquittal and the like. The relevant factor, therefore, is whether the person is in custody or not and if in custody, whether there is imminent possibility of being released. Whether the custody is legal or illegal is not at all a material because where custody is illegal, there is much stronger possibility of being released.
17.In the decision reported in (2006) 3 SCC (Cri) 50, it has been observed by the Supreme Court that the relevant factor to be considered is as to whether the person is in custody and there is possibility of being released on bail. The fact that a person is in custody even though in the absence of valid remand order does not whittle down the imminent possibility of being released. Rather the fact that a person is in custody without an order of remand strengthens the possibility of such person being released. In our considered opinion, the observations which have been made in several Division Bench decisions are inconsistent with the conclusion of the Supreme Court.
18.So far as the earlier Full Bench decision is concerned, it is very much evident that the Full Bench was very much influenced by the fact that in both the cases the detenus were in fact in hospital and not in custody. As a matter of fact, even the Full Bench was conscious of the fact that if a person is in hospital that is relevant factor to be considered by the detaining authority before passing an order of detention because the detaining authority may conclude that there may not be any necessity of passing any order of detention in respect of a person who is hospitalised. Therefore, the very fact that two detenus were in hospital was not noticed by the detaining authority was considered to be a vital aspect and therefore the Full Bench had observed that there was non-application of mind to very relevant factor. Keeping in view the factual situation in other cases, we do not think that the ratio of the said Full Bench could have been so readily applied to the facts of those cases. At any rate, the subsequent decisions of the Supreme Court which we have noticed have the effect of diluting the observations made by the Full Bench.
19.Let us now examine the facts of the present case. In the present case, it is no doubt true that the accused had not been produced before the Magistrate on 30.03.2007. However, the sponsoring authority had filed an affidavit to the effect that the accused had been produced and had been remanded upto 13.04.2007. In course of hearing, learned Additional Public Prosecutor for the State has produced before us relevant copy of the record which indicates that in fact on 30.03.2007 a Magistrate had visited the jail and had extended the remand till 13.04.2007. At any rate, subsequently there was a further valid order of remand on 13.04.2007 till 27.04.2007, which fact is not disputed and which is apparent from the booklet. Therefore, even though there was slight inaccuracy in the description inasmuch as there was an order of remand on 30.03.2007, such order of remand was passed by the Magistrate after visiting the jail and the accused had not been produced before the Magistrate as stated in the grounds of detention. In our considered opinion, such inaccurate description may not have the effect of vitiating the order of detention, more particularly when the detaining authority was satisfied regarding the fact that the detenu was in custody.
20.The above conclusion, however, is not the end of the road for the detenu. The detenu had filed a representation on 22.04.2007 seeking for a copy of the order of remand dated 30.03.2007. Such request was apparently turned down on the footing that in the grounds of detention sufficient reference had been made. The explanation which is now forthcoming from the side of the State to the effect that in fact there was an order of remand, which was passed by the Magistrate by visiting the jail, could have been also brought to the notice of the detenu when the detenu was specifically asking for a copy of such order of remand. It is not that the detenu was asking for copy of some document which was irrelevant on the face of it. It may be true that the detaining authority had not actually relied upon the remand order dated 30.03.2007 and, at any rate, the copy of the affidavit of the sponsoring authority had been furnished and in that sense it cannot be said that there was violation of Article 22 of the Constitution of India by the fact that copy of order of remand dated 30.03.2007 had not been furnished along with grounds of detention. The question is whether , by denying to give copy of the remand order inspite of specific request by the detenu had the effect of vitiating the detention?
21.Law is well settled that the detaining authority is required to give copies of the relied upon documents along with grounds of detention and non-furnishing of relied upon document has the effect of vitiating the order of detention. (See 1999 SCC (Crl.) 231 - Pownammal vs. State of Tamil Nadu and another). Where, however, a document is not relied upon, yet the detenu asks for copy of such document, which is either referred to or has got some bearing, it is the duty of the appropriate authority to furnish such copy or atleast indicate the reason why such copy is not supplied to the detenu inspite of specific request by the detenu. As already indicated, where a document asked for is on the face of it irrelevant, non-furnishing of such document is immaterial. Where, however, the document has got some relevance, refusal to supply such copy, inspite of specific request, without any valid reason, may have the effect of vitiating the order of detention as the detenu is likely to be prejudiced, inasmuch as he would not be in a position to make an effective representation.
22.In the present case, in our opinion, when the detenu specifically asked for a copy of the remand order dated 30.03.2007, the appropriate authority should have either furnished copy of such order or furnished sufficient reasons as to why such order could not be furnished. On this ground, the order of detention is liable to be quashed.
23.The next contention of the petitioner is to the effect that the detaining authority has come to a mechanical conclusion that the detenu was likely to be released on bail and hence there was no necessity for passing an order of detention. Law on this aspect appears to be more or less well settled, but there seems to be constant violation by the authorities on such aspect. The Supreme Court on innumerable occasions has observed that there is no embargo on the detaining authority in clamping an order of detention even in respect of a person already in custody. But, before doing so, the detaining authority is required to come to a conclusion that there is imminent possibility of the detenu being released on bail. It is also emphasised in several decisions of the Supreme Court that such a conclusion cannot be the mere ipse dixit of the detaining authority, but should be based on materials on record. As a matter of fact, in an earlier Full Bench decision of this Court in K.Thirupathi vs. District Magistrate, Tiruchirappalli, reported in 2005 MLJ (Crl.) 1101, many of the Supreme Court decisions have been noticed and the law has been summarised. After the aforesaid Full Bench decision was rendered, there have been several other decisions of the Supreme Court, wherein it has been observed in similar manner.
24.From the reading of the aforesaid decisions, it is clear that the conclusion of the detaining authority that there is imminent possibility of the detenu being released on bail must be based on cogent materials and not on the mere ipse dixit of the detaining authority. As has been observed by the Supreme Court, the question as to whether there is possibility of being released on bail depends upon several factors, such as nature of offence, the stage of the investigation, the availability of statutory bail as envisaged under Section 167(2)proviso of Cr.P.C. Even though it is not possible nor desirable to enumerate the circumstances in which bail is likely to be granted, one can venture to say that it is very rare for a court of law to grant bail during pendency of the investigation when there is allegation of commission of serious offence, such as punishable under Section 302 or Section 395 IPC. On the other hand, it is also safe to conclude that in offences relating to prohibition laws or white collar offences, the courts usually grant bail notwithstanding the fact that investigation may be still going on. Similarly, when a charge sheet is not filed within the statutory period contemplated, notwithstanding the seriousness of the allegation, on the expiry of the period, the accused got a right to be released on bail.
25.In the present case, the conclusion of the detaining authority, as already been extracted. We have searched for the materials on record in support of such conclusion and we find none. There was no imminent possibility of the detenu obtaining statutory bail as hardly 60 days had elapsed from the date of the arrest and the investigating agency had more than a month for completion of the investigation. The alleged offence under Section 302 IPC cannot be characterised as an offence of routine nature which would prompt any court to grant bail even before completion of investigation. Top of it, the bail application had in fact been rejected by the Sessions Judge and no other bail application was pending. In such a factual situation, in our considered opinion, the decision of the Supreme Court in T.V.Saravanan vs. State, reported in (2006) 2 SCC 664, is squarely applicable and it can be said that the conclusion of the detaining authority is mere ipse dixit and there is hardly any material in support of such conclusion. On this score also, the detention order is liable to be quashed.
26.The last contention is relating to delay in disposal of the representation. It is by now well recognised that the authorities concerned are duty bound to afford to the detenu an opportunity of making representation and such right of the detenu obviously encompasses the corresponding duty that the representation must receive careful and expeditious attention and should be disposed of without any unnecessary delay and the result of such representation should also be communicated without unnecessary delay. This position is apparent from several decisions of the Supreme Court, including the decision reported in (2007) 1 SCC 295 - Usha Agarwal vs. Union of India and others, wherein, after referring to the Constitution Bench decision of the Supreme Court in Kamleshkumar Ishwandas Patel v. Union of India - (1995) 4 SCC 51, it was observed:
"This Court has also repeatedly held that though there can be no specific or mechanical test for determining whether there has been undue delay, where there is an unexplained delay in either making the order or serving the order, it would vitiate the order of detention."
27.In the above background, it is to to be seen as to whether the representation of the detenu has received careful attention and whether the result of such consideration of representation has been communicated without avoidable delay. It has been already noticed that in the representation a request had been made for furnishing copy of the remand order dated 30.03.2007, which was not complied with and no apparent reason has been given. We have already held that this had vitiated the order of detention. It is found from the chart furnished by the learned Additional Public Prosecutor that such representation dated 22.04.2007 was disposed of by the Minister on 09.05.2007 and the rejection letter prepared on 09.05.2007 was sent to the detenu on 11.05.2007. So far so good. It cannot be said that there had been any undue delay at that stage. However, it is further found that the rejection letter was served on the detenu only on 21.05.2007, after a lapse of about 10 days. It is no doubt true that the result must have been communicated through post. But, in the absence of any explanation, it cannot be assumed that such undue delay was on account of the postal delay. When the detention order has been challenged on the ground of delay in disposal of the representation, it was the duty of the respondent to bring on record all the factors explaining that there had been no remissness at any stage. In our considered opinion, the delay in communicating the result of the representation, in the peculiar facts and circumstances of the present case, has also such effect of vitiating the order of detention.
28.Accordingly, the habeas corpus petition is allowed and the impugned order of detention in Cr.M.P.No.1/Goonda/2007,dated 17.04.2007, passed by the second respondent is quashed. The detenu is directed to be released forthwith unless his presence is required in connection with any other case.
Gb To:
1.The Secretary to Government of Tamil Nadu, Home, Prohibition and Excise Department, Fort St.George, Chennai-600 009.
2.The District Collector and District Magistrate, Ramanathapuram District.
3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.