Madras High Court
Vinothini vs The Additional Chief Secretary To ... on 11 September, 2023
2023:MHC:4241
H.C.P.No.491 of 2023 etc
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 11.09.2023
CORAM
THE HONOURABLE MR.JUSTICE M.SUNDAR
and
THE HONOURABLE MR.JUSTICE R.SAKTHIVEL
H.C.P.Nos.491,546, 547, 548, 549, 551,
552, 553 and 1464 of 2023
H.C.P.No.491 of 2023
Vinothini .. Petitioner
Vs
1.The Additional Chief Secretary to Government,
Home, Prohibition and Excise Department,
Secretariat, Chennai -9.
2.The District Collector and District Magistrate,
Thiruvarur District, Thiruvarur.
3.The Superintendent of Police,
Thiruvarur District, Thiruvarur.
4.The Inspector of Police,
Koradacherry Police Station,
Thiruvarur District.
5.The Superintendent of Prison,
Central Prison, Tiruchirappalli. .. Respondents
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H.C.P.No.546 of 2023
Arulselvi .. Petitioner
Vs
1.The Additional Chief Secretary to Government,
Home, Prohibition and Excise Department,
Secretariat, Chennai -9.
2.The District Collector and District Magistrate,
Office of the District Collector and District Magistrate,
Thiruvarur District.
3.The Superintendent of Police,
O/o. Superintendent of Police,
Thiruvarur District.
4.The Superintendent of Prison,
Trichy Central Prison,
Trichy District.
5.The Inspector of Police,
Kudavasal Police Station,
Thiruvarur District. .. Respondents
H.C.P.No.547 of 2023
Yuvarani .. Petitioner
Vs
1.The Additional Chief Secretary to Government,
Home, Prohibition and Excise Department,
Secretariat, Chennai -9.
2.The District Collector and District Magistrate,
Office of the District Collector and District Magistrate,
Thiruvarur District.
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3.The Superintendent of Police,
O/o. Superintendent of Police,
Thiruvarur District.
4.The Superintendent of Prison,
Trichy Central Prison,
Trichy District.
5.The Inspector of Police,
Kudavasal Police Station,
Thiruvarur District. .. Respondents
H.C.P.No.548 of 2023
Kalaiselvi .. Petitioner
Vs
1.The Additional Chief Secretary to Government,
Home, Prohibition and Excise Department,
Secretariat, Chennai -9.
2.The District Collector and District Magistrate,
Office of the District Collector and District Magistrate,
Thiruvarur District.
3.The Superintendent of Police,
O/o. Superintendent of Police,
Thiruvarur District.
4.The Superintendent of Prison,
Trichy Central Prison,
Trichy District.
5.The Inspector of Police,
Kudavasal Police Station,
Thiruvarur District. .. Respondents
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H.C.P.No.549 of 2023
Mohanraj .. Petitioner
Vs
1.The Additional Chief Secretary to Government,
Home, Prohibition and Excise Department,
Secretariat, Chennai -9.
2.The District Collector and District Magistrate,
Office of the District Collector and District Magistrate,
Thiruvarur District.
3.The Superintendent of Police,
O/o. Superintendent of Police,
Thiruvarur District.
4.The Superintendent of Prison,
Trichy Central Prison,
Trichy District.
5.The Inspector of Police,
Kudavasal Police Station,
Thiruvarur District. .. Respondents
H.C.P.No.551 of 2023
Radha .. Petitioner
Vs
1.The Additional Chief Secretary to Government,
Home, Prohibition and Excise Department,
Secretariat, Chennai -9.
2.The District Collector and District Magistrate,
Office of the District Collector and District Magistrate,
Thiruvarur District.
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3.The Superintendent of Police,
O/o. Superintendent of Police,
Thiruvarur District.
4.The Superintendent of Prison,
Trichy Central Prison,
Trichy District.
5.The Inspector of Police,
Kudavasal Police Station,
Thiruvarur District. .. Respondents
H.C.P.No.552 of 2023
Sunseya .. Petitioner
Vs
1.The Additional Chief Secretary to Government,
Home, Prohibition and Excise Department,
Secretariat, Chennai -9.
2.The District Collector and District Magistrate,
Office of the District Collector and District Magistrate,
Thiruvarur District.
3.The Superintendent of Police,
O/o. Superintendent of Police,
Thiruvarur District.
4.The Superintendent of Prison,
Trichy Central Prison,
Trichy District.
5.The Inspector of Police,
Kudavasal Police Station,
Thiruvarur District. .. Respondents
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H.C.P.No.553 of 2023
Vembu .. Petitioner
Vs
1.The Additional Chief Secretary to Government,
Home, Prohibition and Excise Department,
Secretariat, Chennai -9.
2.The District Collector and District Magistrate,
Office of the District Collector and District Magistrate,
Thiruvarur District.
3.The Superintendent of Police,
O/o. Superintendent of Police,
Thiruvarur District.
4.The Superintendent of Prison,
Trichy Central Prison,
Trichy District.
5.The Inspector of Police,
Kudavasal Police Station,
Thiruvarur District. .. Respondents
H.C.P.No.1464 of 2023
G.Baby .. Petitioner
Vs
1.The Additional Chief Secretary to Government,
Home, Prohibition and Excise Department,
Secretariat, Chennai -9.
2.The District Collector and District Magistrate,
Office of the District Collector and District Magistrate,
Thiruvarur District.
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3.The Superintendent of Police,
O/o. Superintendent of Police,
Thiruvarur District.
4.The Superintendent of Prison,
Trichy Central Prison,
Trichy District.
5.The Inspector of Police,
Kudavasal Police Station,
Thiruvarur District. .. Respondents
Prayer in HCP No. 491 of 2023: Petition filed under Article
226 of the Constitution of India praying for issuance of a writ of
habeas corpus to call for the records in connection with the order of
detention passed by the second respondent dated 06.03.2023 in
C.O.C.No.19/2023 against the petitioner's husband Sivakalidoss @
Kalidoss, son of Siva, aged about 33 years, who is confined at Central
Prison, Tiruchirappalli and set aside the same and direct the
respondents to produce the detenu before this Court and set him at
liberty.
Prayer in HCP No.546 of 2023: Petition filed under Article
226 of the Constitution of India praying for issuance of a writ of
habeas corpus to call for the entire records connected with the
detention order in C.O.C.No.24/2023 dated 06.03.2023 on the file of
the respondent No.2 and quash the same and direct the respondents
to produce the body and person of petitioner's son one named
Thiru.China Kali @ Kalidoss, S/o.Packirisamy aged about 27 years, now
confined at Central Prison, Trichy, before this Court and set him at
liberty forthwith.
Prayer in HCP No. 547 of 2023:Petition filed under Article 226
of the Constitution of India praying for issuance of a writ of habeas
corpus to call for the entire records connected with the detention order
in C.O.C.No.18/2023 dated 06.03.2023 on the file of the respondent
no.2 and quash the same and direct the respondents to produce the
body and person of petitioner's husband one named Thiru.Periya
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Thambi @ Rajasekar, S/o.Ravi Devar, aged about 30 years, now
confined at Central Prison, Trichy, before this Court and set him at
liberty forthwith.
Prayer in HCP No.548 of 2023: Petition filed under Article
226 of the Constitution of India praying for issuance of a writ of
habeas corpus to call for the entire records connected with the
detention order in C.O.C.No.22/2023 dated 06.03.2023 on the file of
the respondent no.2 and quash the same and direct the respondents
to produce the body and person of petitioner's husband one named
Thiru.Sorappu Ganesan @ Ganesan, S/o.Arumugam, aged about 24
years, now confined at Central Prison, Trichy, before this Court and set
him at liberty forthwith.
Prayer in HCP No.549 of 2023: Petition filed under Article 226
of the Constitution of India praying for issuance of a writ of habeas
corpus to call for the entire records connected with the detention order
in C.O.C.No.24/2023 dated 06.03.2023 on the file of the respondent
no.2 and quash the same and direct the respondents to produce the
body and person of petitioner's son one named Thiru.Periyappu @
Sujith, S/o.Mohanraj, aged about 25 years, now confined at Central
Prison, Trichy, before this Court and set him at liberty forthwith.
Prayer in HCP No.551 of 2023 : Petition filed under Article
226 of the Constitution of India praying for issuance of a writ of
habeas corpus to call for the entire records connected with the
detention order in C.O.C.No.25/2023 dated 06.03.2023 on the file of
the respondent no.2 and quash the same and direct the respondents
to produce the body and person of petitioner's son one named
Thiru.Santhosh, S/o.Thiyagarajan, aged about 22 years, now confined
at Central Prison, Trichy, before this Court and set him at liberty
forthwith.
Prayer in HCP No.552 of 2023: Petition filed under Article
226 of the Constitution of India praying for issuance of a writ of
habeas corpus to call for the entire records connected with the
detention order in C.O.C.No.23/2023 dated 06.03.2023 on the file of
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the respondent no.2 and quash the same and direct the respondents
to produce the body and person of petitioner's husband one named
Thiru.Sabarinathan, S/o.Kalaimani, aged about 24 years, now confined
at Central Prison, Trichy, before this Court and set him at liberty
forthwith.
Prayer in HCP No.553 of 2023 : Petition filed under Article
226 of the Constitution of India praying for issuance of a writ of
habeas corpus to call for the entire records connected with the
detention order in C.O.C.No.21/2023 dated 06.03.2023 on the file of
the respondent no.2 and quash the same and direct the respondents
to produce the body and person of petitioner's son one named
Thiru.Santhoshkumar, S/o.Thangaiyan, aged about 20 years, now
confined at Central Prison, Trichy, before this Court and set him at
liberty forthwith.
Prayer in HCP No.1464 of 2023 : Petition filed under
Article 226 of the Constitution of India praying for issuance of a writ of
habeas corpus to call for the entire records connected with the
detention order in C.O.C.No.20/2023 dated 06.03.2023 on the file of
the respondent no.2 and quash the same and direct the respondents
to produce the body and person of petitioner's son one named
Thiru.Muruga @ Vasanthakumar, S/o.Gopi, aged about 23 years, now
confined at Central Prison, Trichy, before this Court and set him at
liberty forthwith.
For Petitioner : Mr.V.Paarthiban
for Mr.A.Ilayaperumal
in HCP No.491 of 2023
Mr.P.Muthamizh Selvakumar
in HCP Nos. 546 to 549,
551 to 553 & 1464 of 2023
For Respondents : Mr.E.Raj Thilak
Additional Public Prosecutor
for all the respondents
in all HCPs
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COMMON ORDER
[Order of the Court was made by M.SUNDAR, J.,]
This common order will now dispose of the captioned nine
'Habeas Corpus Petitions' ('HCPs' in plural and 'HCP' in singular for the
sake of convenience and clarity).
2. When the captioned HCPs were listed for Admission, the
following orders were made:
HCP No.491 of 2023
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HCP No.546 of 2023
12/51
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13/51
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H.C.P.No.491 of 2023 etc
HCP No.547 of 2023
14/51
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15/51
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HCP No.548 of 2023
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H.C.P.No.491 of 2023 etc
17/51
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H.C.P.No.491 of 2023 etc
HCP No.549 of 2023
18/51
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19/51
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HCP No.551 of 2023
20/51
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21/51
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HCP No.552 of 2023
22/51
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23/51
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HCP No.553 of 2023
24/51
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25/51
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HCP No.1464 of 2023
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3. The aforementioned Admission Board orders capture
essentials i.e., essential facts that are imperative for appreciating this
common final order and therefore this Court is not setting out the facts
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again in this common final order. Before we proceed further,
proceedings/orders made in the listings on 21.08.2023 and
04.09.2023 in five out of nine captioned HCPs i.e., H.C.P.Nos.491,546,
547, 548 and 549 of 2023 read as follows:
21.08.2023 proceedings:
' H.C.P.Nos.491,546, 547, 548 and 549 of 2023
M.SUNDAR, J.
and
R.SAKTHIVEL, J.
(Order of the Court was made by M.SUNDAR, J.,)
This Court is informed by Mr.E.Raj Thilak, learned
State Additional Public Prosecutor that there are four more
connected HCPs. To be noted, co-accused in the ground
case also have been clamped with preventive detention
orders akin to impugned preventive detention orders and
therefore it is submitted that the four HCPs are also
connected HCPs. The number of four HCPs are H.C.P.
Nos.551, 552, 553 and 1464 of 2023.
2. List captioned five HCPs along with
aforementioned four HCPs (Nine HCPs altogether by
tagging them with the captioned HCPs) on 04.09.2023. To
be noted, as regards the aforementioned four HCPs to be
tagged, we are also informed that the same are already
scheduled to come up on 04.09.2023.
3. List all nine HCPs as one item (tagged together)
on 04.09.2023.'
04.09.2023 proceedings:
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' H.C.P.Nos.491,546, 547, 548 and 549 of 2023
M.SUNDAR, J.
and
R.SAKTHIVEL, J.
(Order of the Court was made by M.SUNDAR, J.,)
Read this in conjunction with and in continuation of
earlier proceedings made in the previous listings, more
particularly the listings on 30.03.2023 (H.C.P. No.491 of
2023), 11.04.2023 (H.C.P. Nos.546 and 547 of 2023),
12.04.2023 (H.C.P. Nos.548 and 549 of 2023).
2. Thereafter, the captioned nine matters were
tagged and the same have been listed together today.
3. Mr.V.Paarthiban, learned counsel appearing on
behalf of the counsel on record for the petitioner in H.C.P.
No.491 of 2023 is before us. Mr.V.Paarthiban is the lead
counsel qua captioned matters.
4. As regards the respondents, Mr.E.Raj Thilak,
learned State Additional Public Prosecutor for all the
respondents in all the nine HCPs is before us.
5. Learned Prosecutor wanted to make a threshold
submission and therefore he was given audience before
learned counsel for petitioner. Learned Prosecutor,
adverting to sub-sections (3) and (5) of Section 15-A of
'Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities) Act, 1989' (hereinafter 'SC/ST (PoA) Act' for
the sake of convenience and clarity) submitted that the
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victim has to be put on notice in the captioned HCPs also.
6. Responding to the aforementioned threshold
submission, learned counsel for petitioners submitted that
both the aforementioned sub- sections would apply only
to proceedings under SC/ST (PoA) Act as the expression
used in both the aforementioned sub-sections is 'this Act'.
Learned counsel pointed out that 'this Act' refers to SC/ST
(PoA) Act. It was submitted that Act 14 of 1982 is a
Statute under which the impugned preventive detention
order has been made and therefore aforementioned sub-
sections (3) and (5) of Section 15-A of SC/ST (PoA) Act
will not apply.
7. Learned Prosecutor pressed into service a
judgment of Hon'ble Supreme Court in Hariram
Bhambhi Vs. Satyanarayan and Another reported in
2021 SCC OnLine SC 1010 in support of his contention
that notice should go to the victim. A perusal of facts in
Hariram's case brings to light that in an appeal to the
High Court against rejection of second bail application
victim was not put on notice.
8. Be that as it may, we wanted to look at the
'Statement of Objects and Reasons' (SOR) qua Act 1 of
2016 in and by which the entire chapter viz., Chapter IV A
captioned 'Rights of Victims and Witnesses' was inserted
in SC/ST (PoA) Act.
9. One sub-paragraph of aforementioned SOR has
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been extracted and set out in Hariram case vide
paragraph 11 and the same reads as follows:- :
'11. Section 15A, which comes under
Chapter IV-A of the SC/ST Act titled ‘Rights of
victims and witnesses’, was introduced by way
of the Scheduled Castes and the Scheduled
Tribes (Prevention of Atrocities) Amendment
Act, 2015, which came into effect on 26
January 2016. The Statement of Objects and
Reasons that accompanied the insertion of
Chapter IV-A reads as follows:
''(h) to insert a new Chapter IVA relating
to “Rights of Victims and Witnesses” to impose
certain duties and responsibilities upon the
State for making necessary arrangements for
protection of victims, their dependents and
witnesses against any kind of intimidation,
coercion or inducement or violence or threats
of violence.'' '
10. To be noted, aforementioned 'h' is sub-
paragraph (h) of paragraph 5 of the SOR. The entire SOR
reads as follows:
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11. Learned counsel for petitioner pointed out that
Act 14 of 1982 cannot be clamped qua SC/ST (PoA) Act as
the scheme of Act 14 of 1982 does not provide for the
same.
12.The above aspect/s will be examined in the
listings in the ensuing listing/s.
13. Another feature that may have to be examined
is unlike other proceedings under SC/ST (PoA) Act, there
is no trial or hearing qua Preventive Detention Act except
the hearing in the habeas drill.
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14. In the light of the narrative thus far, both sides
requested for a short accommodation to examine the
position further and revert to this Court.
15. List one week hence. List on 11.09.2023.'
4. The aforementioned two proceedings i.e., proceedings dated
21.08.2023 and 04.09.2023 made in five HCPs are tell-tale as to the
trajectory the captioned HCPs have taken before us and the
proceedings are also tell-tale as to how the captioned nine HCPs were
tagged and listed together as one serial number in the cause list today.
5. Be that as it may, we make it clear that aforementioned nine
Admission Board orders as well as aforesaid proceedings/orders dated
21.08.2023 and 04.09.2023 shall also be read as an integral part and
parcel of this common final order.
6. Let us now take up the point that was brought up by learned
Prosecutor as regards the victim being put on notice which has been
captured in aforementioned 04.09.2023 proceedings. To be noted, this
turns on sub-sections (3) and (5) of Section 15-A of SC/ST (PoA) Act.
After carefully considering the submissions made at the bar by both
sides, we come to the conclusion that sub-sections (3) and (5) of
Section 15-A of SC/ST (PoA) Act will not apply to HCPs where
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preventive detention orders are assailed. The discussion and
dispositive reasoning in this regard i.e., reasons are as follows:
6.1 Habeas legal drill is qua a constitutional remedy under Article
226 of the Constitution of India more particularly Article 226(1) and
therefore HCPs will not be covered by the expression 'proceedings under
this Act' occurring in sub-sections (3) and (5) of Section 15-A of SC/ST
(PoA) Act;
6.2 As regards sub-section (5) of Section 15-A of SC/ST (PoA)
Act, it also talks about 'connected proceedings' but plain language of sub-
section (5) of Section 15-A of SC/ST (PoA) Act is very clear that
'connected proceedings' pertains to (a)conviction, (b)acquittal and/or (c)
sentence. Therefore HCPs will not come within the sweep of 'connected
proceedings' expression deployed in sub-section (5) of Section 15-A of
SC/ST (PoA) Act;
6.3 As regards Hariram Bhambhi's case alluded to in
paragraph 7 of our aforementioned 04.09.2023 proceedings, the same
pertains to an appeal to the High Court against rejection of a second
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bail application. Before proceeding further in this regard we remind
ourselves of the declaration of law made by Constitution Bench in the
celebrated Padma Sundara Rao case [Padma Sundara Rao Vs.
State of Tamil Nadu reported in (2002) 3 SCC 533] as regards
precedents/citing case laws as precedents and the relevant paragraph
is paragraph 9 which reads as follows:
'9.Courts should not place reliance on
decisions without discussing as to how the
factual situation fits in with the fact situation of
the decision on which reliance is placed. There
is always peril in treating the words of a speech
or judgment as though they are words in a
legislative enactment, and it is to be
remembered that judicial utterances are made
in the setting of the facts of a particular case,
said Lord Morris in Herrington v. British
Railways Board [(1972) 2 WLR 537 : 1972 AC
877 (HL) [Sub nom British Railways
Board v. Herrington, (1972) 1 All ER 749
(HL)]]. Circumstantial flexibility, one additional
or different fact may make a world of difference
between conclusions in two cases.'
Therefore, it will suffice to respectfully say that Hariram
Bhambhi's case does not deal with a habeas corpus petition.
However, a further buttressing factor is, as regards appeal to the High
Court against rejection of a bail application under SC/ST (PoA) Act, the
same will be a statutory appeal under Section 14-A (2) of SC/ST
(PoA) Act and therefore the expressions 'proceedings under this Act',
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'proceeding under this Act' and 'connected proceedings' in sub-sections (3)
and (5) of Section 15-A of SC/ST (PoA) Act would apply.
6.4 In the case on hand, the impugned preventive detention
orders have been made under Tamil Nadu Act 14 of 1982. Section 3(1)
of TN Act 14 of 1982 captioned 'Power to make orders detaining
certain persons' makes it clear that a preventive detention order can
be clamped for preventing a person from acting in any manner
prejudicial to the maintenance of public order, the expression 'acting in
any manner prejudicial to the maintenance of public order' has been described
[though section 2 of TN Act 14 of 1982 is captioned 'Definitions' this
Court chooses to say that the expression has been 'described' owing to
the nature of the expression and the language of Section 2(1)(a)] vide
Section 2(1)(a) of TN Act 14 of 1982. Section 2 (1)(a) of TN Act 14
of 1982 reads as follows:
2. Definitions.- (1) In this Act, unless the context
otherwise requires,-
(a) “acting in any manner prejudicial to the
maintenance of public order” means - (i) in the case of a
bootlegger, when he is engaged, or is making preparations for
engaging, in any of his activities as a bootlegger, which affect
adversely, or are likely to affect adversely, the maintenance of
public order;
(i-A) in the case of a cyber law offender, when he is
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engaged, or is making preparations for engaging, in any of his
activities as a cyber law offender, which affect adversely, or are
likely to affect adversely, the maintenance of public order;
(ii) in the case of a drug-offender, when he is engaged, or
is making preparations for engaging, in any of his activities as a
drug-offender, which affect adversely, or are likely to affect
adversely, the maintenance of public order;
(ii-A). in the case of a forest-offender, when he is engaged,
or is making preparations for engaging, in any of his activities as
a forest-offender, which affect adversely, or are likely to affect
adversely, the maintenance of public order;
(iii) in the case of a goonda, when he is engaged, or is
making preparations for engaging, in any of his activities as a
goonda which affect adversely, or are likely to affect adversely,
the maintenance of public order;
(iv) in the case of an immoral traffic offender when he is
engaged, or is making preparations for engaging in any of his
activities as an immoral traffic offender, which affect adversely,
or are likely to affect adversely, the maintenance of public order;
(iv-A) in the case of a sand-offender, when he is engaged,
or is making preparations for engaging, in any of his activities as
a sand-offender, which affect adversely, or are likely to affect
adversely, the maintenance of public order.
(iv-B) in the case of a sexual-offender, when he is
engaged, or is making preparations for engaging, in any of his
activities as a sexual-offender, which affect adversely, or are
likely to affect adversely, the maintenance of public order.
(v) in the case of a slum-grabber, when he is engaged, or
is making preparations for engaging, in any of his activities as a
slum-grabber, which affect adversely, or are likely to affect
adversely, the maintenance of public order.
(vi) in the case of a video pirate, when he / she is engaged
or is making preparations for engaging, in any of his / her
activities as a video pirate, which affect adversely, or are likely to
affect adversely the maintenance of public order.
Explanation.- For the purpose of this clause (a), public
order shall be deemed to have been affected adversely, or shall
be deemed likely to be affected adversely, inter alia, if any of the
activities or any of the persons referred to in this clause (a)
directly or indirectly, is causing or calculated to cause any harm,
danger or alarm or a feeling of insecurity, among the general
public or any section thereof or a grave or widespread danger to
life or public health or ecological system;
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6.5 A careful perusal of aforementioned Section 2(1)(a) of Tamil
Nadu Act 14 of 1982 makes it clear that it does not cover within its
sweep offences under the Special Statute viz., SC/ST (PoA) Act.
Therefore, only IPC offences qua the detenus in the captioned nine
HCPs have to be considered. In this view of the matter also, sub-
sections (3) and (5) of Section 15-A of SC/ST (PoA) Act does not come
into play;
6.6 The ground case qua nine detenus in the captioned nine
HCPs is Spl.S.C.No.51 of 2023 on the file of I Additional District and
Sessions Judge, Thanjavur (hereinafter 'said Special Court' for the
sake of convenience). Learned Prosecutor submits on instructions that
in the said Special Court, charge sheet has been filed against all nine
detenus on 17.07.2023 and the next hearing date is 14.09.2023. In
this regard, Mr.V.Paarthiban, learned counsel appearing on behalf of
the petitioner in HCP No.491 of 2023 submits on instructions from
Mr.A.Ilayaperumal, learned counsel on record for petitioner in HCP
No.491 of 2023 and Mr.P.Muthamizh Selvakumar, learned counsel on
record for petitioners in other eight HCPs that bail applications were
moved for all the nine detenus in the said Special Court and the same
have been dismissed. Therefore, if at all and if it be so, nine detenus
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qua captioned HCPs should file appeals (against rejection of bail) in
this Court under Section 14-A(2) of SC/ST (PoA) Act. We make it clear
that if the detenus file appeals under Section 14-A(2) of SC/ST (PoA)
Act, sub-sections (3) and (5) of Section 15-A of SC/ST (PoA) Act will
come into play, the victim and or their dependants shall be entitled to
be heard. To be noted, the amendment (SOR) brought into SC/ST
(PoA) Act by introducing Chapter IV-A captioned 'Rights of Victims and
Witnesses' on and from 26.01.2016 has been extracted and
reproduced in its entirety in our 04.09.2023 proceedings. We make it
clear rights inter-alia of victims stand preserved;
6.7 As regards the habeas legal drill on hand, it is a legal
contestation between a detenu or a HCP petitioner on behalf of the
detenu on one side and the State on the other. It turns on
technicalities and procedural fairness in making of the preventive
detention order and there is no trial. In this regard, we remind
ourselves that in A.K.Gopalan Vs. State of Madras reported in AIR
1950 SC 27: 1950 SCC 228, it was held that the charter of rights
adumbrated in Articles 19 and 21 are distinct and the lone dissenter
was Hon'ble Mr. Justice Fazl Ali (as His Lordship then was). The
dissenting view of Hon'ble Mr. Justice Fazl Ali in A.K.Gopalan's case
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was subsequently held to be correct law impliedly vide R.C.Cooper
Vs. Union of India reported in (1970) 1 SCC 248 and directly vide
Sambu Nath Sarkar Vs. State of West Bengal reported in (1973)
1 SCC 856. Therefore, the obtaining legal position as regards a
habeas legal drill is, procedural fairness is an integral part of making
preventive detention orders and a habeas legal drill would primarily
test this inter-alia on technicalities attendant thereto. In this view of
the matter also, it is a contestation qua the State.
7. This Court having cleared the air and having cleared the
clutter qua sub-sections (3) and (5) of Section 15-A of SC/ST (PoA)
Act, now reverts to the habeas legal drill on hand.
8. One common point that has been urged as regards the
petitioners' campaign against nine impugned preventive detention
orders is subjective satisfaction arrived at by the detaining authority
qua imminent possibility of detenus being enlarged on bail is
flawed/impaired. Elaborating on this point, Mr.V.Paarthiban learned
counsel drew our attention to a portion of paragraph 5 of the grounds
of impugned preventive detention orders which reads as follows:
'5....I am aware that Thiru.Sivakalidoss @ Kalidoss,
male, aged 33/2023, S/o.Siva was produced before the
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Judicial Magistrate Court, Tiruvarur in Kudavasal Police
Station Cr.No.33/2023 u/s 147, 148, 341, 294(b), 302 IPC
r/w 3(1)(r), 3(1)(s) and 3(2)(va) of SC/ST (POA)
Amendment Act 2015 and was remanded to judicial
custody and lodged at Central Prison, Tiruchirappalli on
01.02.2023. His remand period was upto 15.02.2023.
Further his remand period has been extended upto
01.03.2023. Further his remand period has been extended
upto 15.03.2023......'
9. To be noted, the aforementioned extracted portion is ad
verbatim repeated in all nine impugned preventive detention orders.
10. Adverting to the aforementioned portion of the grounds of
impugned preventive detention orders, learned counsel drew our
attention to the grounds booklet i.e., the booklet containing the
grounds which form the basis of grounds of impugned preventive
detention orders served on the detenus and submitted that the
remand extension order made by said Special Court has not been
correctly translated.
11. We had the benefit of perusing the grounds booklet and we
find that as regards the remand extension on 15.02.2023 i.e., remand
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extension upto 01.03.2023 order made by the learned Special Court
Judge clearly says that the accused were produced through video
conference but Tamil translation says that the accused were produced
meaning the accused were physically produced before the said Special
Court. This is clearly a flaw in the translation. Considering the low
literacy level of the nine detenus we are of the view that Powanammal
principle is attracted i.e., ratio laid down by Hon'ble Supreme Court in
Powanammal Vs. State of Tamil Nadu reported in (1999) 2 SCC
413 and the relevant paragraphs 6 and 16 {as in SCC journal} read as
follows:
'6.The short question that falls for our
consideration is whether failure to supply the Tamil
version of the order of remand passed in English, a
language not known to the detenue, would vitiate
her further detention.
16. For the above reasons, in our view, the
non-supply of the Tamil version of the English
document, on the facts and in the circumstances,
renders her continued detention illegal. We,
therefore, direct that the detenue be set free
forthwith unless she is required to be detained in
any other case. The appeal is accordingly allowed. '
12. Besides Powanammal principle we also find that the remand
order is a technical legal document and therefore it is imperative that
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the Tamil translation is accurate. Be that as it may, as regards
technical legal document two different versions in English and Tamil
would baffle any individual and more so when the detenus have low
literacy level. This means or in other words the sequitur is, rights of
the detenus to make effective representation qua preventive detention
orders is a sacrosanct constitutional safeguard ingrained in Article
22(5) of the Constitution of India and a breach of the same vitiates
preventive detention orders leaving the same liable for being dislodged
in a habeas legal drill. In the light of the narrative thus far, we have no
hesitation in saying that captioned HCPs are such cases where there is
breach of Article 22(5) of Constitution of India. Therefore, the incorrect
translation and two different versions of remand extension orders in
English and Tamil have vitiated the impugned preventive detention
orders for more than one reason and all nine impugned preventive
detention orders deserve to be dislodged in this habeas legal drill.
13. Ergo, the sequitur is, captioned HCP No.491 of 2023 is
allowed. Impugned preventive detention order dated 06.03.2023
bearing reference C.O.C.No.19/2023 made by the second respondent
is set aside and the detenu Thiru.Sivakalidoss @ Kalidoss, aged 33
years, Son of Thiru.Siva, is directed to be set at liberty forthwith, if not
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H.C.P.No.491 of 2023 etc
required in connection with any other case / cases. There shall be no
order as to costs.
13.1 Apropos, the sequitur is, captioned HCP No.546 of 2023 is
allowed. Impugned preventive detention order dated 06.03.2023
bearing reference C.O.C.No.17/2023 made by the second respondent
is set aside and the detenu Thiru.China Kali @ Kalidoss, aged 27 years,
Son of Thiru.Packirisamy, is directed to be set at liberty forthwith, if
not required in connection with any other case / cases. There shall be
no order as to costs.
13.2 Therefore, captioned HCP No.547 of 2023 is allowed.
Impugned preventive detention order dated 06.03.2023 bearing
reference C.O.C.No.18/2023 made by the second respondent is set
aside and the detenu Thiru.Periya Thambi @ Rajasekar, aged 30 years,
Son of Thiru.Ravi Devar, is directed to be set at liberty forthwith, if not
required in connection with any other case / cases. There shall be no
order as to costs.
13.3 In the result, captioned HCP No.548 of 2023 is allowed.
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Impugned preventive detention order dated 06.03.2023 bearing
reference C.O.C.No.22/2023 made by the second respondent is set
aside and the detenu Thiru.Sorappu Ganesan @ Ganesan, aged 24
years, Son of Thiru.Arumugam, is directed to be set at liberty
forthwith, if not required in connection with any other case / cases.
There shall be no order as to costs.
13.4 Finally, captioned HCP No.549 of 2023 is allowed.
Impugned preventive detention order dated 06.03.2023 bearing
reference C.O.C.No.24/2023 made by the second respondent is set
aside and the detenu Thiru.Periyappu @ Sujith, aged 25 years, Son of
Thiru.Mohanraj, is directed to be set at liberty forthwith, if not required
in connection with any other case / cases. There shall be no order as
to costs.
13.5 In the light of the narrative, discussion and dispositive
reasoning supra, captioned HCP No.551 of 2023 is allowed. Impugned
preventive detention order dated 06.03.2023 bearing reference
C.O.C.No.25/2023 made by the second respondent is set aside and the
detenu Thiru.Santhosh, aged 22 years, Son of Thiru.Thiyagarajan, is
directed to be set at liberty forthwith, if not required in connection with
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any other case / cases. There shall be no order as to costs.
13.6 In conclusion, captioned HCP No.552 of 2023 is allowed.
Impugned preventive detention order dated 06.03.2023 bearing
reference C.O.C.No.23/2023 made by the second respondent is set
aside and the detenu Thiru.Sabarinathan, aged 24 years, Son of
Thiru.Kalaimani, is directed to be set at liberty forthwith, if not
required in connection with any other case / cases. There shall be no
order as to costs.
13.7 Writing the operative portion, we say, captioned HCP
No.553 of 2023 is allowed. Impugned preventive detention order
dated 06.03.2023 bearing reference C.O.C.No.21/2023 made by the
second respondent is set aside and the detenu Thiru.Santhoshkumar,
aged 20 years, Son of Thiru.Thangaiyan, is directed to be set at liberty
forthwith, if not required in connection with any other case / cases.
There shall be no order as to costs.
13.8 Sum sequitur of discussion/dispositive reasoning supra is
captioned HCP No.1464 of 2023 is allowed. Impugned preventive
detention order dated 06.03.2023 bearing reference
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C.O.C.No.20/2023 made by the second respondent is set aside and the
detenu Thiru.Muruga @ Vasanthakumar, aged 23 years, Son of
Thiru.Gopi, is directed to be set at liberty forthwith, if not required in
connection with any other case / cases. There shall be no order as to
costs.
(M.S.,J.) (R.S.V.,J.)
11.09.2023
Index : Yes
Neutral Citation : Yes
mmi
P.S: Registry to forthwith communicate this order to Jail
authorities in Central Prison, Trichy.
To
1. The Additional Chief Secretary to Government,
Home, Prohibition and Excise Department,
Secretariat, Chennai -9.
2. The District Collector and District Magistrate,
Thiruvarur District, Thiruvarur.
3.The Superintendent of Police,
Thiruvarur District, Thiruvarur.
4.The Inspector of Police,
Koradacherry Police Station, Thiruvarur District.
5.The Inspector of Police,
Kudavasal Police Station, Thiruvarur District.
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6.The Superintendent of Prison,
Central Prison, Tiruchirappalli.
7.The Public Prosecutor,
High Court, Madras.
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H.C.P.No.491 of 2023 etc
M.SUNDAR, J.,
and
R.SAKTHIVEL, J.,
mmi
H.C.P.Nos.491,546 to 549,
551 to 553 & 1464 of 2023
11.09.2023
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