S.Prabakaran v. The State of Tamil Nadu

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 6.1.2009CORAM:THE HONOURABLE MR.JUSTICE ELIPE DHARMA RAOANDTHE HONOURABLE MR.JUSTICE S.TAMILVANANHabeas Corpus Petitions No.1471 to 1473 of 2008S.Prabakaran.. Petitioner in HCP.No.1471/2008V.Dinesh.. Petitioner in HCP.No.1472/2008Thirugnanam @Thirugnana Sambantham .. Petitioner in HCP.No.1473/2008Vs.1.The State of Tamil Nadu, rep.by its Secretary, Home, Prohibition & Excise Department, Fort St.George, Chennai-600009.2.The District Magistrate and District Collector, Ariyalur District, Ariyalur... Respondents in all the H.C.Ps.* * *All the above Habeas Corpus petitions are filed underArticle 226 of the Constitution of India.H.C.P.No.1471 of 2008 has been filed praying to issue aWrit of Habeas Corpus, to call for the records pursuant to order ofdetention, passed in Cr.M.P.No.23 of 2008, dated 26.6.2008 of the2nd respondent and set aside the same and direct the respondents toproduce the body of the petitioner namely Mr.Prabakaran,S/o.Mr.Sivasami, now confined in the Central Prison,Tiruchirapalli, before this Court and set him at liberty.H.C.P.No.1472 of 2008 has been filed praying to issue aWrit of Habeas Corpus, to call for the records pursuant to theorder of detention passed in Cr.M.P.No.22 of 2008, dated 26.6.2008 https://hcservices.ecourts.gov.in/hcservices/ of the 2nd respondent and set aside the same and direct therespondents to produce the body of the petitioner namely Mr.Dinesh,S/o.Mr.Velusami, now confined in the Central Prison, Trichirapalli,before this Court and to set him at liberty.H.C.P.No.1473 of 2008 has been filed praying to issue aWrit of Habeas Corpus, to call for the records pursuant to theorder of detention passed in Cr.M.P.No.21 of 2008, dated 26.6.2008of the 2nd respondent and to set aside the same and direct therespondents herein, to produce the body of the petitoner namelyMr.Thirugnanm @ Thirugnana Sambantham, S/o.Mr.Muthuvel, nowconfined in the Central Prison, Trichirapalli, before this Courtand set him at liberty.* * *For petitioners inall the H.C.Ps.: Mr.Abudu Kumar Rajarathinam for Mr.K.RajasekaranFor respondents inall the H.C.Ps.: Mr.N.R.Elango, Addl.P.P.* * *COMMON ORDERELIPE DHARMA RAO, J.All the petitioners were slapped with the detention orders,branding them as 'goondas' and they are challenging the detentionorders by filing these Habeas Corpus petitions. Since all thepetitions are inter-connected with each other and are arising fromout of the same background, they were heard in common and are beingdisposed of by this common order.2. All the petitioners, along with others, are alleged tobe the accused in Cr.No.130 of 2008 of Meensuripatti PoliceStation, Ariyalur District, for the offences punishable underSections 147, 148, 341, 324, 326, 307 and 302 r/w.120(B) IPC. Theground case came to be registered pursuant to five murderscommitted at a stretch by the petitioners, joining hands with otheraccused in retaliation to the murder of one Desingubalan. It isalleged that there had been an unsettled enmity and animositybetween the families of Kasinathan and Desingubalan and they had avow to murder the counter party and in this backdrop, the abovesaid Desingubalan was done to death by the rival group. It is https://hcservices.ecourts.gov.in/hcservices/ alleged that all the accused persons, have conspired together totake revenge against the persons who are responsible for the murderof Desingubalan and in furtherance of such conspiracy, on 16.5.2008at about 9.00 hours, all the accused persons hidden in front of thehouse of one Balusami and attacked the opposite party withveecharuvals. It is alleged that the accused Ravi aliasRavichandran and Thirugnanam (petitioner in H.C.P.No.1473 of 2008)jointly cut one of the deceased persons Suresh with knives; thataccused Palanisami and Prabhakaran (petitioner in H.C.P.No.1471 of2008) jointly cut another deceased Prabu with patta knife; thataccused Rajadurai and Dinesh (petitioner in H.C.P.Nos.1472 of 2008)assaulted one Mahalingam with Veecharuval and patta knife. Aftercommitting five murders at a stretch, one of the accused personsnamely Ramesh punched the head of Dharmalingam on a trident infront of Kaliamman temple and the head of another deceased Prabuwas thrown at the back of the Kaliamman temple and in front of thehouse of Ramesh by accused Palanisamy. Insofar as the petitionerin H.C.P.No.1473 of 2008, by name Thirugnanam alias ThirugnanaSambandam, an adverse case registered in Cr.No.184/2001 ofMeensuritti Police Station for the offences punishable underSections 457 and 380 IPC has also been reported.3. Though, neither the learned counsel appearing for thepetitioners nor the learned Additional Public Prosecutor, haveinformed us, we are able to recollect from our memory that earlierthe accused Ramesh has challenged his detention order dated17.6.2008 by filing H.C.P.No.1118 of 2008 and the accused Ravi @Ravichandran has also challenged his detention order by filingH.C.P.No.1119 of 2008 and this Division Bench, by orders both dated22.8.2008 has dismissed both the said petitions, with the followingobservation:"The gruesome activity of the accused in committing fivemurders at a stretch in broad day light sent shockingwaves in the entire locality and considering the gravityof the entire situation and since the recourse to normalcriminal law would not have the desired effect and toprevent the detenu from involving in such activities,which are prejudicial to the public order, the impugnedorder of detention came to be passed, wherein we areunable to find any illegality or irregularity, so as tocause our interference. If the accused of this kind ofoffences are let out freely, it will definitely causegreat prejudice to the maintenance of public order.Hence, the HCP is liable to be dismissed." https://hcservices.ecourts.gov.in/hcservices/

4. For the same reasoning, all these Habeas CorpusPetitions are also liable to be dismissed. But, since the learnedcounsel appearing for the petitioners has argued the matters atlength and in order to give a quietus to the issue on hand, we nowproceed to deal with the points urged by the learned counsel forthe petitioners.5. Mr.Abudu Kumar Rajarathinam, the learned counselappearing for the petitioners would strenuously argue that theSponsoring Authority has not placed all the relevant materialsbefore the Detaining Authority, particularly about the extension ofthe remand by the Court and on this ground of lack of materialbefore the Detaining Authority to express his awareness that thedetenus were in remand on the date on which the impugned orderswere passed, all the above petitions are entitled to be allowed.6. In support of his arguments, the learned counsel for thepetitioners would rely on the following judgments:1.BALARAMAN vs. STATE OF TAMIL NADU [1994-1-L.W. (Crl.)266],2.RAJA vs. STATE OF TAMIL NADU [(2007) 2 MLJ (Crl.) 639]and3.V.C.MOHAN vs. UNION OF INDIA AND OTHERS [(2002) 3 SCC451].7. In the first judgment cited above, a Division Bench ofthis Court has held:"On the short ground of lack of material before theDetaining Authority to express his awareness that thedetenu was in remand on the date on which the impugnedorder was passed, petitioner is bound to succeed."8. In the second judgment cited above, another DivisionBench of this Court has held as follows:"It is well settled that when an order of detention ispassed against a person in custody, the DetainingAuthority must show its awareness to the fact ofsubsisting custody of the detenu and take that factorinto account while passing the detention order. Itappears no material was placed before the DetainingAuthority to show the fact of subsisting custody of thedetenu." https://hcservices.ecourts.gov.in/hcservices/ "Remand Extension Order is a vital material which theDetaining Authority ought to have perused and satisfieditself as to the fact of subsisting custody of thedetenu. Since the awareness of the Detaining Authorityas to the subsisting custody of the detenu is notsupported by any materials on record, nor the copy of theremand extension orders furnished to the detenu, thedetention order is liable to be quashed."9. In the third judgment cited above, a Three Judge Benchof the Honourable Apex Court, on facts, has held that 'non-placement of relevant material before the detaining authority bysponsoring authority, rendered the detention order illegal and theenormity or gravity of the alleged offence committed by the detenuis irrelevant.' 10. On the other hand, Mr.N.R.Elango, the learnedAdditional Public Prosecutor, taking us through the paper books,has argued that all the mandatory requirements of law have beenstrictly complied with and there are no grounds to interfere withthe impugned orders of detention by this Court and would pray todismiss all these petitions.11. To find out the veracity of the arguments advanced onthe part of the petitioners, we have gone through the entirematerials placed on record. From page No.5 of the paper book, weare able to find the affidavit filed by the Inspector of Police,Meensuritti Police Station before the District Collector, prayingfor the order of detention under Act 14/1982. It has been averredin the said affidavit that the petitioners remand had been extendedto 13.6.2008 and 27.6.2008 respectively, further enclosing thecopies of extension of remands. Page No.118 bears the Englishversion of the requisition of the Inspector of Police, MeensurityPolice Station to the Judicial Magistrate, Jayamkondam, requestingremand of the accused Palanisamy, Dinesh, Rajadurai, Pirabakaran,Ramesh and Thirugnanam and Page No.120 is the Tamil version of thesame. Page No.121 bears the order of the learned JudicialMagistrate, dated 16.5.2008, ordering remand of the accused till30.5.2008. Further, in Para No.5 of the grounds of detention, theDetaining Authority has stated that he is aware that the accusedare in remand in Meensuritti P.S. Cr.No.130/2008. When such is theposition that the Sponsoring Authority has submitted all therelevant particulars and documents before the Detaining Authority,including about the remand of the accused and its extension on afurther date, it cannot be said that there is any lack of material https://hcservices.ecourts.gov.in/hcservices/ before the Detaining Authority to express his awareness that thedetenus were in remand on the date on which the impugned orders ofthe detention were passed. Therefore, all the above judgmentscited and relied on by the learned counsel for the petitioners haveno application to the facts of the case.12. The other ground urged by the learned counsel for thepetitioners is that all the relied on documents, particularly theremand extension orders, were not supplied to the detenus and thusthe orders of detention get vitiated on this sole ground. Insupport of his contentions, the learned counsel for the petitionerswould rely on a Division Bench judgment of this Court in BEPARISALEEM vs. THE STATE OF TAMIL NADU [2005 (2) CTC 469], wherein ithas been held:"The remand extension order dated 2.9.2004, having beenrelied on and considered by the detaining authority whilepassing the order of detention, the copy of the same musthave been furnished to the detenu along with the groundsor in any event not later than 5 days and in theexceptional circumstances for reasons to be recorded inwriting, not later than 15 days from the date of hisdetention. It is also clear that all such materials mustbe furnished to him in the language which he understandsand the failure to do either of the two things wouldamount to breach of the two duties cast on the detainingauthority under Article 22(5) of the Constitution. Inthe case before us, the paper book supplied to the detenudoes not contain copy of the remand extension order dated2.9.2004 either in English or in the language (Telugu)known to the detenu, however the same was supplied bothin English and in Telugu version only on 20.10.2004.Though the learned Additional Public Prosecutorcontended that copy of the order dated 2.9.2004 wassubsequently supplied to the detenu, the said orderhaving been made a day prior to the detention order dated3.9.2004 and the same having been relied on by thedetaining authority, and the relied upon document havingbeen supplied after 38 days, which is beyond theprescribed period, in the light of the principles laiddown in Ibrahim Ahmad Batti case [1983 SCC (Cri) 66], thedetention order has to be quashed on the ground ofviolation of safeguards contained in Article 22(5) of theConstitution." https://hcservices.ecourts.gov.in/hcservices/

13. The learned counsel for the petitioners would also relyon a judgment of the Honourable Apex Court in UNION OF INDIA vs.RANU BHANDARI [2008 (4) CTC 839], wherein the Honourable Apex Courthas held as follows:"... when a detention order is passed, all the materialrelied upon by the Detaining Authority in making such anorder, must be supplied to the detenu to enable him tomake an effective representation against the detentionorder in compliance with Article 22(5) of theConstitution, irrespective of whether he had knowledge ofthe same or not. These have been recognised by thisCourt as the minimum safeguards to ensure that preventivedetention laws, which are an evil necessity, do notbecome instruments of oppression in the hands of theconcerned authorities or to avoid criminal proceedingswhich would entail a proper investigation."14. The entire stray of the arguments of the learnedcounsel for the petitioners is that the remand extension orderswere not furnished to the detenus and thus it has impaired theirright of making effective representation. There cannot be anydoubt that all the relied upon documents are to be supplied to thedetenus in the language known to them. In the case on hand, athorough perusal of the grounds of detention would reveal that theDetaining Authority has not placed his reliance either on theremand or its extension. Therefore, being not a relied upondocument, no duty or obligation is cast upon the authorities tosupply the copy of the remand extension order. Further more, noprejudice of whatsoever, in not furnishing the copy of the remandextension order, though is not a relied upon document, has beenbrought to our notice on the part of the detenus. Therefore, theabove judgments relied upon by the learned counsel for thepetitioners also do not augment the case of the petitioners.15. No other grounds, much less the ones to be considered,are urged before us. A thorough perusal of the entire materialsplaced on record would show that the authorities have scrupulouslyfollowed the mandatory requirements of law, while clamping theorders of detention on the detenus and the copies of all the reliedupon documents were also promptly furnished to them. In the entireprocess, we do not find any illegality or irregularity, so as tocause our interference into the impugned orders of detention. https://hcservices.ecourts.gov.in/hcservices/ Viewing from any angle, there is no merit in any of theabove petitions and accordingly, all these Habeas Corpus Petitionsare dismissed.Rao Sd/- Assistant Registrar / True Copy / Sub. Assistant Registrar To1.The Secretary to the Government of Tamil Nadu, Home, Prohibition & Excise Department, Fort St.George, Chennai-600009.2.The District Magistrate and District Collector, Ariyalur District, Ariyalur3. The Joint Secretary (Home) Public and Excise (XV) Department, Fort St. George, Chennai-9.4. The Superintendent of Central Prison, Tiruchirapalli.5. The Public Prosecutor, High Court, Madras.3 ccs to Mr.K.Rajasekaran, Advocate, SR.277 ksj (co)dv/19.1.Common order in H.C.P.Nos.1471to 1473 of 2008