H.C.P. (MD) No. 244 of 2014. Case: Mariappan Vs The District Collector and District Magistrate. High Court of Madras (India)
| Case Number | H.C.P. (MD) No. 244 of 2014 |
| Counsel | For Appellant: S. Malaikani for P. Rajkumar, Advs. and For Respondents: C. Ramesh, Addl. Public Prosecutor |
| Judges | S. Manikumar and V. S. Ravi, JJ. |
| Issue | Andhra Pradesh Prevention of Dangerous Activities of Boot-leggers, Dacoits, Drug-offenders, Goon-das, Immoral Traffic Offenders and Land-grabbers Act, 1986 - Sections 2(a), 3(1); Arms Act, 1959 - Sections 25(1A), 25(1C); Code of Criminal Procedure, 1973 (CrPC) - Section 151; Constitution of India - Articles 21, 22, 22(1)(2), 22(5), 226, 32; ... |
| Judgement Date | August 18, 2014 |
| Court | High Court of Madras (India) |
Order:
S. Manikumar, J.
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Father of the detenu, Venkatesh @ Maangai, has sought for a Writ of Habeas Corpus, to call for the records pertaining to the proceedings of the 1st respondent in M.H.S. Confdl No. 01/2014 dated 02.01.2014, quash the same, and set his son aged about 24 years, at liberty.
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Assailing the correctness of the order of detention, Mr. Malaikani, learned counsel for the petitioner made the following submissions:-
The detenu has come to adverse notice of the police in three cases. The first adverse case has been registered in Cr. No. 203/2013, under Sections 341, 294(b) and 506(ii) IPC on the file of Tirunelveli City Town Police Station. The second adverse case has been registered in Cr. No. 172/2013, under Sections 294(b) and 506(ii) IPC on the file of Thevarkulam Police Station and the third adverse case has been registered in Cr. No. 440/2013, under Sections 294(b), 307 and 506(ii) IPC on the file of Manur Police Station. The ground case has been registered in Cr. No. 320/2013 under Sections 294(b), 387 and 506(ii) IPC on the file of Thalaiyuthu Police Station.
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The Secretary to the Government, Home, Prohibition and Excise Department, Chennai, Second respondent herein, has failed to consider the representation, dated 22.01.2014 sent by the petitioner, in time. The District Collector and District Magistrate, Tirunelveli, Detaining Authority, 1st respondent, without any material, has mechanically arrived at the subjective satisfaction and passed the detention order. There is a delay in considering the representation. Facts of similar cases referred in the detention order, particularly Cr. M.P. No. 4141 of 2011 and Cr. M.P. No. 7150 of 2013, considered by the Detaining Authority, are totally different to the ground case of the detenu.
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Though this ground has not been raised in the affidavit, learned counsel for the petitioner submitted that the detenu has been arrested on 23.11.2013, in connection with the ground case. He has been produced before the learned Judicial Magistrate, No. III, Tirunelveli and remanded. His remand period was due to expire on 03.01.2014. When the live link between the arrest on 23.11.2013 and commission of any prejudicial activity no longer existed, and when there was no need to detain him, after a long delay, i.e., on 02.01.2014, detention order has been passed. According to the learned counsel, no explanation has been offered by the detaining authority either in the grounds of detention nor in the affidavit and hence the order of detention is vitiated on the ground of delay in passing the said detention order. For the abovesaid reasons, learned counsel prayed to set aside the Detention Order.
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On the other hand, based the counter affidavit filed by the Detaining Authority, Mr. C. Ramesh, learned Additional Public Prosecutor, appearing for the respondents, submitted that the impugned Detention Order has been passed after following the procedure and after arriving at the subjective satisfaction that there was compelling necessity, and in order to prevent the detenue, from acting in any manner prejudicial to the maintenance of Public Order.
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Learned Additional Public Prosecutor further submitted that there is no delay in considering the representation sent on behalf of the detenu, as contended by the petitioner. Further, copies of 161(3) Cr.P.C. statement enclosed at pages 147 to 157 and FIR at page nos. 135 and 137 of the booklet, would reveal that the detenu had acted in a manner prejudicial to the maintenance of the public order.
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Learned Additional Public Prosecutor further submitted that the facts relating to the adverse cases and the ground case are sufficient to arrive at the conclusion that if the detenu is allowed to remain at large, he would indulge in further activities in future, which would be prejudicial to the maintenance of the public order. He further submitted that when the petitioner has not raised any ground of delay in passing the order, either in the representation or in the supporting affidavit, oral submissions on that aspect, need not be considered. However, he submitted that the delay has occasioned due to the time consumed by the sponsoring authority in collecting all the documents from different police stations, and placing it before the detaining authority. He also submitted that no sooner, the sponsoring authority placed all the materials, without any delay, the detaining authority has passed the order. On the aspect of bail, he relied on Reddiah's case. He prayed for dismissal of the present petition.
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Mr. S. Malaikani, for Mr. P. Rajkumar and Mr. C. Ramesh, learned counsel for the parties made elaborate submissions, placing reliance on many decisions.
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The object of detention and the detention laws, is not to punish, but, to prevent commission of certain offences. If the detaining authority is satisfied that with a view to prevent such person, from indulging in acts prejudicial to the maintenance of public order, in future, then an order of detention is passed. Satisfaction of the detaining authority is based on material documents. There must be likelihood of a person indulging in such activities and inference of such likelihood, has to be drawn from the materials placed for his consideration.
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It is for the detaining authority to consider, on the basis of antecedents and arrive at a conclusion, whether the detenu, had come to adverse notice, whether he would continue to indulge in prejudicial activities, if he remains at large. It is also obligatory on the part of the detaining authority to arrive at the subjective satisfaction, on the materials placed before him, as to whether, recourse to normal criminal law did not have the desired effect of preventing him, from indulging in such activities, which are prejudicial to the maintenance of public order in future, whether there is compelling necessity. Satisfaction of the detaining authority consists of two parts;
1) The detenu in judicial custody and if enlarged on bail, whether, there is likelihood of indulging in such activities in future; and
2) Whether the detaining authority can arrive at the subjective satisfaction, on the basis of the materials while in custody. Compelling necessity is one of the factors to be taken into consideration by the detaining authority, in order to prevent a person, from indulging acts, which are prejudicial.
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When the detenu does not file a bail application, then there are decisions, where the courts have come to the conclusion that there is no possibility of the detenu, coming out on bail, and therefore, the subjective satisfaction arrived at by the detaining authority, has been found fault with. In cases, where the bail application is pending, which the detaining authority takes note of the same, while arriving at the subjective satisfaction, again, he is found fault, for prejudging the issue, as regards grant of bail. If the bail application is dismissed, then also, there are instances, where court also says that, since the bail application is dismissed, then there is no real possibility of the detenu coming out on bail. Thus at all stages of bail (i.e.) (i) application not filed, (ii) application pending and (iii) application dismissed, courts have found fault with the subjective satisfaction of the detaining authority, on the aspect of coming out on bail, depending upon the facts and circumstances of each case.
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Jail or bail, the detaining authority is still empowered to consider the past antecedents of a person and arrive at a conclusion, as to whether such person should be allowed to remain at large and that he would indulge in activities in future, which are prejudicial to the maintenance of public order. At the same time, considering the most cherishable right of freedom guaranteed under Article 21 of the Constitution of India, the detaining authority has to act with all due care and caution, and with the sense of responsibility, when the liberty of the citizen is deprived of without trial. While arriving at the subjective satisfaction, the detaining authority should satisfy himself as to whether the detenu is in judicial custody or on bail, in respect of the cases, considered by the detaining authority, where the acts alleged are prejudicial to the maintenance of public order and whether he is likely to be released on bail.
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Although the Apex Court in various decisions, has restricted the scope of judicial review, on the subjective satisfaction of the detaining authority and held that the Court cannot sit in appeal over the subjective satisfaction, yet challenge, as to the adequacy or sufficiency of the material considered by the detaining authority, is frequently raised in many Habeas Corpus Petitions, particularly, on the aspect of subjective satisfaction of the detaining authority, regarding the possibility of the detenue, coming out on bail.
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In the light of the decisions of the Apex Court in Rekha vs. State of Tamil Nadu, reported in 2011 (5) SCC 244, G. Reddeiah v. Government of A.P., reported in 2012 (2) SCC 389 and Huidrom Konungjao Singh vs. State of Manipur and others, reported in 2012 (3) MLJ Crl 794 (SC): 2012 (7) SCC 181, the question calls up for consideration is whether the powers of the detaining authority can be circumscribed only to the aspect of bail, to arrive at the subjective satisfaction. Let us consider some of the decisions, on the aspect of detention, scope of judicial review, on subjective satisfaction.
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In Re: Jayantilal Nathubhai reported in (1949) 51 Bom. L.R. 653, a Full Bench of the Bombay High Court, observed as follows:
....... whenever words like "satisfaction" or "it appears" have been used in an enactment or a regulation, the interpretation which has now been established is that the "satisfaction" is undoubtedly a condition precedent to the exercise of powers under the section. But all the same, what the Courts have got to see, when subsequently an application is made...
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