G.Pavendhan v. State of Tamil Nadu & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 20.3.2009CORAM:THE HONOURABLE MR.JUSTICE ELIPE DHARMA RAOANDTHE HONOURABLE MR.JUSTICE R.SUBBIAHHabeas Corpus Petition No.2126 of 2008G.Pavendhan... Petitioner Vs.1.State of Tamil Nadu, rep.by its Secretary to Government, Home Department, Fort St.George, Chennai-600 009.2.The Superintendent of Central Prison, Puzhal, Chennai-600066.3.The Deputy Superintendent of Police, CBCID, Madurai, (Crime No.250 of 1988, St.Thomas Mount Police Station, Chennai)... Respondents* * *Writ of Habeas Corpus filed under Article 226 of the Constitutionof India, praying to direct the respondents 1 to 3 to produce thebody and person of Pozhilan, aged about 46 years, who is nowillegally confined in Central Prison, Puzhal-I, Chennai before thisCourt and set him at liberty forthwith.* * *For petitioner: Mr.N.Natarajan, Senior Counsel for Mr.R.SankarasubbuFor respondents: Mr.V.R.Balasubramanian, APP* * * https://hcservices.ecourts.gov.in/hcservices/ O R D E RELIPE DHARMA RAO, J.The petitioner, an advocate and stated to be the State Co-ordinating Secretary of 'Thamizhaga Makkal Urimai Kazhagam', anunregistered body, stated to be espousing the cause of human rights,has filed this habeas corpus petition praying to issue the Writ ofHabeas Corpus to produce the body and person of Pozhilan, who isalleged to be illegally confined in the Central Prison, Puzhal-I,Chennai before this Court.2. From the materials placed on record, it is seen that thedetenu Pozhilan is one among the 20 accused in Cr.No.250/1988 ofSt.Thomas Mount Police Station and Cr.No.70/88 of Kodaikanal PoliceStation for the offences under Section 120-B IPC r/w.Sections 3,4,5and 6 of the Explosive Substances Act, 1908, Section 427 IPC, Section4 of the Tamil Nadu Prevention of Damage to Public Property Act, 1984and Section 3 r/w.24(1-B)(a) and 27 of the Indian Arms Act. It isalleged on the part of the respondents that the father of the detenuby name Perunchithiranar was the President of 'Ulaga Tamil InaMunnetra Kazhagam', a Tamil chauvinist movement, advocating thesecession of Tamil Nadu from India and the detenu Pozhilan is anactive member of the said movement. It is further alleged that thedetenu Pozhilan along with other accused assembled at the office of'Ulaga Tamil Ina Munnetra Kazhagam' in Chennai on 20.3.1988 andconspired to blow up the Nehru statue at Kathipara Junction, Chennaiand T.V.Relay station at Kodaikanal and the detenu purchased gelatinsticks and prepared time bombs; that the time bombs were planted atNehru statue, Kathipara Junction. chennai on 10.4.1988, whichexploded causing damage to the statue and on 11.4.2008, the detenudirected the other co-accused to go to Kodaikanal and causedevastation to the television tower in Kodaikanal; that while the co-accused were planting time bombs in T.V.tower in Kodaikanal on11.4.1988, a time bomb exploded accidentally causing the death of anaccused by name Maran on the spot besides wreaking extensive damageto the compound wall of the T.V.tower station in Kodaikanal. Boththe cases were clubbed together and investigated and charge sheet waslaid in the above two cases on 9.6.1991. Along with other accused,the detenu was tried in Sessions Case No.63 of 1993 by the PrincipalSessions Judge, Dindigul and by the judgment dated 17.2.1997, thedetenu was awarded life imprisonment for the offence under Section 3of the Explosive Substances Act r/w.120-B IPC. Aggrieved, the detenupreferred Crl.A.No.268 of 1997 before this Court and the DivisionBench of the Madurai Bench of this Court, by a common judgment dated7.9.2007 has partly allowed the said appeal, modifying the sentencein the following terms:"Para No.26(d):The conviction of A.1 and A.2 under Sections 3,4 and 6 of https://hcservices.ecourts.gov.in/hcservices/ the Explosives Substance Act, 1908 read with 120-B IPC isconfirmed, but the sentence of life imprisonment, which isthe maximum sentence provided under the section is modifiedto a period of ten years rigorous imprisonment. The periodalready undergone shall be given set off."3. Against the said judgment, the detenu preferredSLP.Crl.M.P.No.6605 of 2008 along with Crl.M.P.No.6611 of 2008 beforethe Honourable Supreme Court and the Honourable Supreme Court by theorder dated 21.4.2008 has dismissed the said SLP in the followingterms:"Heard learned counsel for the petitioner. Delay condoned.No merits. The Special Leave Petitions are dismissed."4. In these circumstances, the wife of the detenu has filedHCP.No.757 of 2008 before the Madurai Bench of this Court seeking toreconcile the discrepancy in the award of punishment to the detenu onthe ground that he could have been awarded imprisonment for the termbelow ten years, instead of ten years by the Division Bench of theMadurai Bench of this Court in the Criminal Appeal No.268 of 1997.The detenu has also filed Review Application (MD)SR.No.32166 of 2008to review the judgment passed in the criminal appeal No.268 of 1997.A contemporary Division Bench of the Madurai Bench of this Court, bythe order 10.9.2008 has dismissed both the HCP and the unnumberedReview Application as not maintainable. After the dismissal of thesaid HCP and the Review Application (SR), this HCP has been filed bythe petitioner, seeking the release of the detenu. 5. The main thrust of the petitioner is that the detenu shouldnot have been awarded the punishment of ten years imprisonment by theDivision Bench of the Madurai Bench of this Court, since nowhere inthe old Act it has been contemplated that the minimum period ofsentence for an offence under Section 3 of the Explosive SubstancesAct is ten years.6. For better appreciation of this aspect and for the sake ofconvenience, Section 3 of the Explosive Substances Act, 1908, priorto amendment is extracted hereunder:"3. Punishment for causing explosion likely to endangerlife or property – Any person who unlawfully andmaliciously causes by any explosion of a nature likely toendanger life or to cause serious injury to property shall,whether any injury to person or property has been actuallycaused or not, be punished with transportation for life orany shorter term, to which fine may be added, or withimprisonment for a term which may extend to ten years, towhich fine may be added."Thus, there is no doubt that prior to amendment, no minimumpunishment is prescribed, for the offence under Section 3 of the https://hcservices.ecourts.gov.in/hcservices/ Explosive Substances Act, 1908. 7. The Explosive Substances Act was amended and substituted byAct 54 of 2001 with effect from 1.2.2002. Section 3, afteramendment, reads as follows:"3. Punishment for causing explosion likely to endanger lifeor property – Any person who unlawfully and maliciouslycauses by -(a) any explosive substance an explosion of a nature likelyto endager life or to cause serious injury to propertyshall, whether any injury to person or property has beenactually caused or not, be punished with imprisonment forlife, or with rigorous imprisonment of either descriptionwhich shall not be less than ten years, and shall also beliable to fine;(b) any special category explosive substance an explosion ofa nature likely to endanger life or to cause serious injuryto property shall, whether any injury to person or propertyhas been actually caused or not, be punished with death, orrigorous imprisonment for life, and shall also be liable tofine."8. Thus, under the amended provision of Section 3, the minimumpunishment prescribed for the offences falling within the ambit ofSection 3(a) is imprisonment for a period of ten years and themaximum sentence prescribed is life imprisonment, while for theoffences falling within the ambit of Section 3(b), the punishmentprescribed is either death or rigorous imprisonment for life.9. In this backdrop, it has been argued on the part of the detenuthat since no minimum sentence is prescribed under the old provisionof law, under which alone the detenu has to be convicted, theappellate Court has committed an error in sentencing the detenu for aperiod of ten years, under the presumption that it is the minimumsentence prescribed for the offence. It is, therefore, prayed thatsince no minimum sentence is prescribed under the old Act, thesentence of ten years imposed on the detenu by the appellate Court isexcessive and therefore, the detenu deserved to be set at liberty.10. At the cost of repetition, we shall extract hereunder ParaNo.26(d) of the judgment of the Division Bench of the Madurai Benchof this Court in Crl.A.Nos.233, 234, 268, 284, 336 and 402 of 1997,dated 7.9.2007, which is also reported in (2008) 2 MLJ(Crl.)53[EGAIARASAN @ THIAGARAJA @ KUZHANDAI AND OTHERS vs. STATE BY ITSDEPUTY SUPERINTENDENT OF POLICE, CBCID, MADURAI]."Para No.26(d):The conviction of A.1 and A.2 under Sections 3,4 and 6 ofthe Explosives Substance Act, 1908 read with 120-B IPC isconfirmed, but the sentence of life imprisonment, which is https://hcservices.ecourts.gov.in/hcservices/ the maximum sentence provided under the section is modifiedto a period of ten years rigorous imprisonment. The periodalready undergone shall be given set off."11. Thus, while imposing the said sentence of ten years, nowherethe Division Bench of the Madurai Bench of this Court has indicatedthat the same is being imposed on the accused, since being theminimum sentence. The powers of the Court are unfettered in imposingthe punishment on any accused when minimum and maximum sentences areprescribed for any offence. The Courts can impose any periodsentence within the permitted periods of sentence prescribed underthe Act or Code for such offence, taking into consideration thegravity of the offence, the manner in which it has been committed andsuch other aspects. In the case on hand, though no minimum period ofsentence is prescribed and only a maximum period of sentence of lifeis prescribed for the offence under Section 3 under the old Act, theDivision Bench of the Madurai Bench of this Court has imposed thesentence of ten years on the accused and as has already been assertedsupra, nowhere it has been mentioned that it is imposing the minimumsentence prescribed for the offence. Therefore, the argument of thelearned senior counsel for the petitioner that the Division Bench ofthe Madurai Bench of this Court has committed a legal error inimposing the sentence of ten years, as if it is the minimum sentenceprescribed for the offence, falls to the ground .12. As against the said judgment of the Division Bench of theMadurai Bench of this Court, an SLP has been preferred before theSupreme Court, which met the fate of dismissal at the hands of theHonourable Supreme Court. At this juncture, an argument has beenadvanced on the part of the petitioner that since the SLP having beendismissed, it cannot be construed that the judgment under appeal hasbeen either rejected or confirmed and therefore, there is no legalbar for entertaining this petition. In support of their argument, ajudgment of the Supreme Court in NARCOTICS CONTROL BUREAU vs. DILIPPRALHAD NAMADE [2004 SCC (Cri) 916] has been pressed into service,wherein it has been held as follows:".... Further more, disposal of SLP against a judgment ofthe High Court does not mean that the said judgment isaffirmed by such dismissal. The order passed in any SLP atthe threshold without detailed reasons does not constituteany declaration of law or constitute a binding precedent.(See Union of India V. Jaipal Singh (2004) 1 SCC 121]. ThisCourt cannot and does not reverse or modify the decree ororder appealed against while deciding the petition forspecial leave to appeal and that too when the SLP was beingdismissed. What is impugned before this Court can bereversed or modified only after granting leave and thenassuming appellate jurisdiction over it. If the orderimpugned before this Court cannot be reversed or modified atthe SLP stage obviously that order cannot also be affirmed https://hcservices.ecourts.gov.in/hcservices/ at the SLP stage (See Kunhayammed vs. State of Kerala[(2000) 6 SCC 359] and Ramnik Vallabhdas Madhvani vs.Taraben Pravinlal Madhvani [(2004) 1 SCC 497].14. The inevitable conclusion is that the judgment hasno legal sanction."13. There cannot be any dispute regarding the above propositionof law laid down by the Honourable Apex Court. But, in the case onhand, as could be seen from the order, dated 21.4.2008, passed by theHonourable Apex Court in the SLP, (extracted supra), the HonourableApex Court has dismissed the SLP on the ground that there are 'nomerits'. In this view of the matter, when the Honourable Apex Courthas gone into the merits of the case and found 'no merits' to grantleave to file the criminal appeal, which is not the position in thecase relied on by the learned senior counsel for the petitioner, theabove judgment of the Honourable Apex Court cannot come to the rescueof the petitioner.14. Further more, soon after the dismissal of the SLP, the wifeof the detenu has filed HCP.No.757 of 2008 and the detenu has filedReview Application SR.Nos.32166 of 2008 before the Madurai Bench ofthis Court virtually on the same grounds raised herein and theMadurai Bench of this Court has dismissed both the said petitions byits detailed order dated 10.9.2008. Admittedly, the said order ofthe Madurai Bench of this Court has reached its finality, since beingnot challenged by the petitioner. While such being the position, thepetitioner has again come forward to file this petition, saying thatthe principle of res judicata has no application to the criminaljurisprudence and whenever there are new grounds to be urged, thedetenu can knock the doors of this Court under Article 226 of theConstitution.15. In SRIKANT vs. DISTRICT MAGISTRATE, BIJAPUR AND OTHERS[(2007) 1 SCC (Cri) 385], wherein, after discussing various caselaws on the subject, it has been held:"Whether any new ground has been taken, has to be decidedby the court dealing with the application and no hard-and-fast rule can be laid down in that regard. But one thingis clear, it is the substance and not the form which isrelevant. If some surgical changes are made with thecontext, substance and essence remaining the same, itcannot be said that challenge is on new or fresh grounds."16. On an analogous reading of the entire case law on thesubject, the following legal proposition could be culled out:The principle of res judicata or principles analogousthereto would not apply to a writ of habeas corpus where thepetitioner prays for setting him at liberty. But, when oncethe habeas corpus petition filed either by the detenu or onhis behalf by somebody, was dismissed by the High Court onmerits and the same has not been assailed in appeal and thus https://hcservices.ecourts.gov.in/hcservices/ it has reached its finality, for filing the second habeascorpus petition, the petitioner must show that there existnew or fresh grounds to be considered by the High Court,which were not available to him while filing or deciding theearlier habeas corpus petition and that continuance of hisdetention is no more required in view of the changedcircumstances. The fact, as to whether the grounds raisedin the second habeas corpus petition are new or fresh ones,has to be decided by the court dealing with the applicationand no hard-and-fast rule can be laid down in that regard.But, it must be kept in mind that it is the substance andnot the form which is relevant and if some surgical changesare made with the context, substance and essence remainingthe same, it cannot be said that challenge is on new orfresh grounds. In the absence of any fresh or new groundsand if the petitioner fails to prove that continuance of hisdetention is no more required in view of the changedcircumstances, it is not open to the High Court, sittingunder Article 226 of the Constitution of India, to exercisea power of review or some kind of an appellate jurisdictionover the decision already rendered by it earlier regardingthe very same detention order.17. In the light of the above legal position, now we have to seewhether this petition has been filed on new or fresh grounds andwhether the petitioner has brought forth any changed circumstances,so as to set him at liberty, in view of such changed circumstances.Of course, it must be kept in mind, while deciding the petition as towhether the grounds now raised are fresh or new ones and no surgicalchanges are made with the context and that the substance and essencenot remained the same.From a reading of the HCP.No.757 of 2008 andReview Application (SR) No.32166 of 2008, which were rejected by acontemporary Bench of this Court, it is crystal clear that the verysame argument has been advanced before that Bench also, which met thefate of rejection. No new ground, much less the one, which was notavailable at the time of hearing either the criminal appeal or theHCP and the Review Application, has been brought forth before us andthe so-called grounds urged herein were very well available evenbefore the Division Bench of this Court, at the time of hearing thecriminal appeal. Having allowed the order of the Division Bench ofthe Madurai Bench of this Court in HCP.No.757 of 2008 and the ReviewApplication (SR) No.32166 of 2008 to reach its finality, withoutbeing challenged before the Honourable Apex Court, the petitioner hascome forward to file this petition, as if he is raking up new grounds.18. The other aspect to be pointed out is that the detenu is aconvict prisoner and there cannot be any doubt that he is serving thesentence awarded against him by the Madurai Bench of this Court inthe Criminal Appeal No.268 of 1997. When such being the position, atno stretch of imagination it could be said that he is in 'illegal https://hcservices.ecourts.gov.in/hcservices/ detention', as has been termed on the part of the petitioner.For all the above reasons and discussions, this HCP is dismissedas of no merits and not maintainable.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarRaoTo1.The Secretary to the Government of Tamil Nadu, Home Department, Fort St.George, Chennai-600009.2.The Superintendent of Central Prison, Puzhal, Chennai-600066.3.The Deputy Superintendent of Police, CBCID, Madurai, (Crime No.250 of 1988, St.Thomas Mount Police Station, Chennai)4. The Public Prosecutor, High Court, Madras.1 cc To Mr.R.Sankarasubbu, Advocate, SR.9368 Order in HCP.No.2126 of 2008CK(CO)SRA(3/4/2009)