Madras High Court
Radhika vs The Additional Chief Secretary To ... on 1 December, 2022
HCP(MD)No.1192 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 01.12.2022
CORAM
THE HON'BLE MR JUSTICE M.S. RAMESH
AND
THE HON'BLE MR JUSTICE N. ANAND VENKATESH
H.C.P.(MD)No.1192 of 2022
Radhika ... Petitioner /
Sister of the Detenu
Vs.
1.The Additional Chief Secretary to Government,
Home, Prohibition and Excise Department,
Fort St. George,
Chennai – 9.
2.The District Collector and District Magistrate,
Thanjavur District,
Thanjavur.
3.Inspector of Prison,
All Women Police Station,
Pattukottai,
Thanjavur District.
4.The Superintendent,
Central Prison,
Tiruchirappalli District. ... Respondents
Page 1 of 12
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HCP(MD)No.1192 of 2022
PRAYER: Petition filed under Article 226 of the Constitution of India to
issue a Writ of Habeas Corpus, calling for the entire records connected with
the detention order passed in P.D.No.69/2022 dated 19.06.2022 on the file
of the 2nd Respondent and quash the same and direct the respondents to
produce the detenu or body of the detenu, namely, Baskar @ Rengadurai,
son of Panneerselvam, aged about 40 years, now detained at Central Prison,
Tiruchirappalli before this Court and set him at liberty.
For Petitioner : Mr.M.Pitchai Muthu
For Respondents : Mr.A.Thiruvadi Kumar
Additional Public Prosecutor
ORDER
N. ANAND VENKATESH,J.
The petitioner is the sister of the detenu viz., Baskar @ Rengadurai ,
son of Panneerselvam, aged about 40 years. The detenu has been detained
by the second respondent by his order in Detention Order P.D.No.69/2022
dated 19.06.2022 holding him to be a "Sexual Offender", as contemplated
under Section 2(e) of Tamil Nadu Act 14 of 1982. The said order is under
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challenge in this Habeas Corpus Petition.
2.We have heard the learned counsel appearing for the petitioner and
the learned Additional Public Prosecutor appearing for the respondents. We
have also perused the records produced by the Detaining Authority.
3.Though several grounds have been raised in the Habeas Corpus
Petition, the learned counsel appearing for the petitioner mainly urged two
grounds questioning the validity of the detention. The first ground that was
urged by the learned counsel for the petitioner is that the detenu has already
been acquitted from the criminal case in S.C.No.53/2022 through judgment
and order passed by the POCSO Court, Thanjavur on 11.11.2022. Hence,
according to the learned petitioner, the detention order also must fail. The
second ground that was urged by the learned counsel for the petitioner is
that the detaining authority, after being aware of the fact that the bail
application filed by the detenu was dismissed, came to a conclusion that
there is likelihood of the detenu coming out on bail, based on the order
passed in Cr.M.P.No.377/2020 dated 17.09.2020. The learned counsel for
the petitioner submitted that the order that was relied upon by the detaining
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HCP(MD)No.1192 of 2022
authority cannot be considered to be a similar case.
4. Insofar as the first ground is concerned, the same was vehemently
opposed by the learned Additional Public Prosecutor. He further submitted
that even if the detenu has been acquitted from the criminal case, that will
not have any impact on the detention order since the consideration for
passing the detention order was completely different. To substantiate the
submission, the learned Additional Public Prosecutor relied upon the
judgements of Apex Court in
a) Mohd. Salim Khan v. Shri C.C.Bose and another, reported
in 1972(2) SCC 607;
b) Nanhey v. State of Uttar Pradesh, reported in 1973 (3) SCC
317; and
c) Golam Hussain alias Gama v. The Commissioner of
Police, Calcutta and other, reported in 1974(4) SCC 530.
5. In reply to the above submission, learned counsel for the petitioner
brought to our notice the judgment of the Apex Court in Haradhan Saha
and another v. The State of West Bengal and others, reported in AIR 1974
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HCP(MD)No.1192 of 2022
SC 2154 and the learned counsel for the petitioner specifically relied upon
the following passages from the judgment.
“32. The power of preventive detention is qualitatively
different from punitive detention. The power of preventive
detention is a precautionary power exercised in reasonable
anticipation. It may or may not relate to an offence. It is not a
parallel proceeding. It does not overlap with prosecution even if it
relies on certain facts for which prosecution may be launched or
may have been launched. An order of preventive detention may
be, made before or during prosecution. An order of preventive
detention may be made with or without prosecution and in
anticipation or after discharge or even acquittal. The pendency of
prosecution is no bar to an order of preventive detention. An
order of preventive detention is also not a bar to prosecution.
33. Article 14 is inapplicable because preventive detention and
prosecution are not synonymous. The purposes are different. The
authorities are different. The nature of proceedings is different. In
a prosecution an accused is sought to be punished for a past act.
In preventive detention, the past act is merely the material for
inference about the future course of probable conduct on the
part of the detenu.
34. The recent decisions of this Court on this subject are many.
The decisions in Borjahan Gorey v. State of W.B. [(1972) 2 SCC
550 : 1972 SCC (Cri) 888] , Ashim Kumar Ray v. State of W.B.
[(1973) 4 SCC 76 : 1973 SCC (Cri) 723] ; Abdul Aziz v. District
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HCP(MD)No.1192 of 2022
Magistrate, Burdwan [(1973) 1 SCC 301 : 1973 SCC (Cri) 321] and
DebuMahato v. State of W.B.[(1974) 4 SCC 135 : 1974 SCC (Cri)
274] correctly lay down the principles to be followed as to
whether a detention order is valid or not. The decision in Biram
Chand v. State of U.P.[(1974) 4 SCC 573 : 1974 SCC (Cri) 609] which
is a Division Bench decision of two learned Judges is contrary to
the other Bench decisions consisting in each case of three learned
Judges. The principles which can be broadly stated are these. First,
merely because a detenu is liable to be tried in a criminal court for
the commission of a criminal offence or to be proceeded against
for preventing him from committing offences dealt with in
Chapter VIII of the Code of Criminal Procedure would not by itself
debar the Government from taking action for his detention under
the Act. Second, the fact that the Police arrests a person and later
on enlarges him on bail and initiates steps to prosecute him under
the Code of Criminal Procedure and even lodges a first
information report may be no bar against the District Magistrate
issuing an order under the preventive detention. Third, where the
concerned person is actually in jail custody at the time when an
order of detention is passed against him and is not likely to be
released for a fair length of time, it may be possible to contend
that there could be no satisfaction on the part of the detaining
authority as to the likelihood of such a person indulging in
activities which would jeopardise the security of the State or the
public order. Fourth, the mere circumstance that a detention
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order is passed during the pendency of the prosecution will not
violate the order. Fifth, the order of detention is a precautionary
measure. It is based on a reasonable prognosis of the future
behaviour of a person based on his past conduct in the light of the
surrounding circumstances.”
6. The learned counsel for the petitioner submitted that the larger
Bench of the Apex Court had formulated broadly 5 principles while dealing
with cases of this nature and the 5 th principle that was prescribed in the
above judgment was that the order of detention is based on a reasonable
prognosis of the future behaviour of the person based on his past conduct in
the light of the surrounding situation. In the present case, the allegation that
was made against the detenu confined itself to a past conduct and the detenu
has also been acquitted from the charge. The nature of allegation was such
that there cannot be any prognosis that the detenu will continue to commit
such an offence even in future. Such an assumption cannot be made on the
facts of the present case.
7. We have carefully gone through the detention order and considered
the submissions made on either side.
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HCP(MD)No.1192 of 2022
8. Insofar as the first ground is concerned, a careful reading of
judgments that were cited on either side makes it very clear that an order of
preventive detention can be made with or without prosecution and in
anticipation or even after the discharge of a person from a criminal case.
Insofar as the proceeding against the accused in a criminal case, it falls
within the ambit of punitive branch of criminal law based on the past
conduct. Insofar as the preventive detention is concerned it is more in the
nature of protecting the community from a future injury that can be caused
by the detenu. In the present case, the detenu was detained under the Act for
sexual offence. It is true that the detenu has also been acquitted from the
charges since the victim girl turned hostile in this case. Hence, the judgment
that was passed by the Court below was not based on merits and it was
mainly based on the fact that there was no evidence available against the
detenu. In view of the same, the detention order per se cannot be held to be
bad on the ground that the detenu has been discharged from the criminal
case.
9. Insofar as the second ground is concerned, the detaining authority
has taken into consideration the fact that the bail application filed by the
detenu was dismissed. However, the detaining authority relied upon the
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HCP(MD)No.1192 of 2022
order passed in Cr.M.P.377/2020 to come to a conclusion that there is
likelihood of the detenu being let out on bail. We have carefully gone
through the said order and it is seen that the bail was granted in that case
since the final report was not filed within the statutory period and hence,
statutory bail was granted under Section 167(2) of the Act. Obviously, the
order that was relied upon by the detaining authority does not pertain to a
similar case and hence, there is non application of mind on the part of the
detaining authority. On this ground, we are inclined to interfere with the
detention order.
10. In the result, the Habeas Corpus Petition is allowed and the order
of detention in Detention Order P.D.No.69/2022 dated 19.06.2022 passed by
the second respondent is set aside. The detenu, viz., Baskar @ Rengadurai
son of Panneerselvam, aged about 40 years, is directed to be released
forthwith unless his detention is required in connection with any other case.
(M.S.R.,J.) & (N.A.V.,J.)
01.12.2022
Index : Yes/No
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HCP(MD)No.1192 of 2022
Internet : Yes
PJL
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HCP(MD)No.1192 of 2022
To:
1.The Additional Chief Secretary to Government,
Home, Prohibition and Excise Department,
Fort St. George,
Chennai – 9.
2.The District Collector and District Magistrate,
Thanjavur District,
Thanjavur.
3.Inspector of Prison,
All Women Police Station,
Pattukottai,
Thanjavur District.
4.The Superintendent,
Central Prison,
Tiruchirappalli District.
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HCP(MD)No.1192 of 2022
M. S. RAMESH,J.
and
N. ANAND VENKATESH,J.
PJL
H.C.P.(MD)No.1192 of 2022
01.12.2022
https://www.mhc.tn.gov.in/judis
