Mupidathy vs The Secretary to Government, State of Tamil Nadu and Others

P.R. Shivakumar, J.—The petitioner is the mother of the detenu. The detenu was detained by the second respondent by his Detention Order in P.D. No. 16/2015 dated 09.04.2015, 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. 152 of 2015 on the file of Kottar Police Station registered for the alleged offence punishable under Sections 294(b) , 307 and 506(ii) of the Indian Penal Code and the following three adverse cases:--

"(i) Crime No. 128 of 2010 registered on the file of Valliyoor Police Station for alleged offences punishable under Sections 147 , 294(b) , 307 of the Indian Penal Code and Sections 4 and 5 of Tamil Nadu Property (Prevention of Damage and Loss) Act 1992.

(ii) Crime No. 433 of 2013 registered on the file of Valliyoor Police Station for the alleged offence punishable under Section 294(b) of the Indian Penal Code;

(iii) Crime No. 266 of 2014 registered on the file of Valliyoor Police Station for alleged offences punishable under Sections 294(b) , 324 , 506(ii) of the Indian Penal Code @ 302 of the Indian Penal Code."

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.

Though the detention order is sought to be assailed on several grounds, the learned counsel for the petitioner mainly relies on the following contention:

"The detaining authority referred to a bail order in a different case when no bail application was pending as on the date of the order of detention in the ground case. The said comparison to express subjective satisfaction is against the dictum of the Hon''ble Supreme Court consisting of three Hon''ble Judges in Rekha Vs. State of T. Nadu tr. Sec. to Govt. and Another, and also the judgment of a Division Bench of the Madras High Court in H.C.P(MD). No. 1154 of 2015, dated 11.08.2015 [Chandrakala v. The Secretary to Government]."

We heard the submissions made by the learned Additional Public Prosecutor on the above said submissions made on behalf of the petitioner, and the submissions made by the learned Additional Public Prosecutor are also taken into consideration.

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 also aware that Thiru Mari @ Mariappan was remanded in Kottar P.S. Cr. No. 152/2015 u/s. 294(b) , 307 , 506(ii) IPC and so far no bail application was filed on his behalf in any of the court. In a similar case registered in Vadasery Police Station in Cr. No. 1086/2015 u/s. 341 , 294(b) , 323 , 307 , 506(ii) IPC the accused Thiru.Seenivasan was released on bail on 18.01.2015 in Crl.M.P. No. 55/2015 in the District and Sessions Judge, Kanyakumari Division at Nagercoil. (The copy of the order issued in Crl.M.P. No. 55/2015 dated 18.01.2015 of the District and Sessions Judge, Kanyakumari Division at Nagercoil is enclosed with the typed set of papers). Hence, I infer that since bail is granted in such cases by the courts, there is a real possibility that Thiru. Mari @ Mariappan may come out on bail by filing a bail application either in the lower court or in the higher court."

It is an admitted fact that no bail application filed by the detenu in the ground case and the same was also taken note of by the detaining authority. When no bail application is pending, the detaining authority could refer to a bail granted to a co-accused in the same case to express the subjective satisfaction of the real possibility of the detenu coming out on bail. Only in case a bail application is pending, the detaining authority can refer to a similar case in which bail was granted to the accused therein, in support of his subjective satisfaction regarding the real possibility of the detenu coming out on bail. It has been held so by a Division Bench of the Madras High Court in H.C.P(MD). No. 1154 of 2015, dated 11.08.2015 [Chandrakala v. The Secretary to Government], following the judgment of the Hon''ble Supreme Court consisting of three Hon''ble Judges in Rekha Vs. State of T. Nadu tr. Sec. to Govt. and Another, , which position was clarified by a Division Bench of the Hon''ble Supreme Court consisting of two Hon''ble Judges in Huidrom Konungjao Singh Vs. State of Manipur and Others, .

Hence, we come to the conclusion that the subjective satisfaction expressed by the detaining authority regarding the real possibility of the detenu coming out on bail in the ground case to justify the clamping of the order of detention, while the detenu was in custody as a remand prisoner, can be termed "ipse dixit" not supported by cogent materials. On that ground alone, the order of detention is liable to be set aside.

In the result, the Habeas Corpus Petition is allowed and this Court sets aside the order of detention dated 09.04.2015, made in P.D. No. 16/2015, by the second respondent, the District Collector and District Magistrate, Kanyakumari District at Nagercoil, and directs the release of the detenu by name Mari @ Mariappan, S/o. Muruganantham @ Pitchaikkon Thevar, aged about 28 years forthwith, if his continued custody is not authorised in specific cases or by any other detention order.