V. Mathialagan v. Government of Tamil Nadu and others
1985-07-16
G.MAHESWARAN, S.NATARAJAN
body1985
DigiLaw.ai
ORDER NATARAJAN, J.: One Mathialagan who has filed W.P.No.3390 of 1985 under Article 226 of the Constitution of India praying for the issue of a writ of habeascorpus to secure the release of one P.Sivaji, after quashing the order of preventive detention passed against him under the Tamil Nadu Act 14 of 1982, has filed this Writ Miscellaneous Petition praying for interim relief, viz., interim bail for the detenu P.Sivaji for a period of 15 days on the ground that his wife and child are suffering from sickness and his uncle is on the verge of death and that the detenu is anxious to see his uncle before his demise. The learned Counsel for the petitioner contends that even in cases of preventive detention, a detenu is entitled to seek interim bail for short durations for his pressing personal needs, and in such cases, this Court should grant the relief of interim bail. 2. Notice of this petition was given to the Public Prosecutor and her counterarguments have been heard. 3. In support of his claim for the release of the detenu on interim bail, the petitioner's Counsel places reliance on a decision of the Supreme Court in State of Bihar v. Rambalak Singh State of Bihar v. Rambalak Singh (1966) MLJ. (Crl.) 819: (1966) 2 S.C.J. 707; (1966) Crl.L.J. 1076: A.I.R. 1966 S.C. 1441. We are afraid that the petitioner's application for grant of interim bail to the detenu had been filed under misconception. The decision of the Supreme Court cited above related to a case of a person detained under rule 30 of the Defence of India Rules.
(Crl.) 819: (1966) 2 S.C.J. 707; (1966) Crl.L.J. 1076: A.I.R. 1966 S.C. 1441. We are afraid that the petitioner's application for grant of interim bail to the detenu had been filed under misconception. The decision of the Supreme Court cited above related to a case of a person detained under rule 30 of the Defence of India Rules. The said rule 30 was of a comprehensive nature and it conferred on the Central Government and the State Government powers of a wide range, viz., (i) directing removal of persons who are non-Indians from the country; (ii) directing detention under preventive custody; (iii) directing removal of a person from any area or place in India; (iv) directing a person to reside or remain at a stipulated place or within a restricted area; (v) directing a person to notify his movements and to restrict his movements; (vi) imposing restrictions upon a person in respect of matters relating to his employment or business; (vii) prohibiting or restricting the possession or use by him of any article or articles specified in the order; and (viii) otherwise regulating a person's conduct in any particular manner. Thus it will be seen that the powers exercisable under rule 30, Defence of India Rules fell under a wide range and the restrictions to be imposed were of different degrees. It is with reference to these provisions, rule 155 had been incorporated by way of special provision regarding bail. The said rule 155 is a non obstante provision and it laid down that notwithstanding anything contained in the Code of Criminal Procedure , no person accused or convicted of a contravention of these rules or orders made thereunder shall, if in custody, be released on bail, or, on his own bond, unless (1) the prosecution had been given an opportunity to oppose the application for such release and (2) where the prosecution opposed the application and the contravention was of any such provision of the Defence of India Rules or orders made thereunder as the Central Government or the State Government may notify in that behalf, the Court was satisfied that there were reasonable grounds for believing that he was not guilty of such contravention.
This provision did not directly confer powers of granting bail on Courts, but even so the inference to be drawn from the wording of the above provision is that if the procedure was followed and if the Court was prima facie satisfied that the person detained was not guilty of any contravention, the Court may grant him bail. 4. We are now concerned with a detenu who has been detained under the provisions of Tamil Nadu Act 14 of 1982. The Act has been passed by the Legislature and given effect to by the Government for preventing the dangerous activities of bootleggers, drug offenders, goondas, immoral traffic offenders and slum grabbers. An order of detention passed under section 3 of the Act against any of the persons falling under the classifications mentioned above is for the purpose of preventing such persons from acting in any manner prejudicial to the maintenance of public order. Therefore unlike rule 30 of the Defence of India Rules, section 3 of the Tamil Nadu Act 14 of 1982 confines itself only to containing the evil activities of bootleggers, goondas etc., by preventing them from indulging in further acts of bootlegging, goondaism etc., and thereby causing prejudice to the maintenance of public order. The detention therefore is in the interest of the general public and for preservation of public order. As such there is no question of granting interim bail to any detenu who has been ordered to be detained under the Act. No such questions as the Court forming a prima facie opinion as to whether a detenu is guilty of any offence or not will arise in such cases. On the other hand, what the Court has to see is, the nature of the subversive acts alleged to be indulged in by the detenu and the nature of their impact on the even flow of the society's life and the maintenance of public order. It is therefore wrong to compare the provisions of section 3 of the Tamil Nadu Act 14 of 1982 with those of rule 30 of the Defence of India Rules and try to draw strength from the decision of the Supreme Court referred to above, which, as already stated, had been rendered with reference to rules 30 and 155 of the Defence of India Rules. 5.
5. Another important feature which has to be noticed in this context is that the Tamil Nadu Act 14 of 1982 itself contains a provision in section 15 for the State Government granting parole to a detenu, if the detenu is able to satisfy that a temporary release from detention is called for in his case. Therefore, it follows that a detenu who is in dire need of temporary release from preventive detention is not left without any remedy. He can approach the Government and seek orders in his favour. Once such an application is made, the State Government will examine the request from two standpoints, viz., (1) whether the basis on which temporary release is asked for is an existent and truthful one; and (2) whether the temporary release would in any way harm the interests of the society. As an order of preventive detention is passed solely for preservation of public order, the Government is the best suited authority to go into these factual questions and decide whether a temporary release from custody should be granted to a detenu or not. In this connection, it will not be out of place to point out that keeping a person in preventive detention is something like keeping a person suffering from a virulent communicable disease in an isolation ward. If a patient kept in such ward seeks temporary absence from the isolation ward, the concerned medical authority only can decide whether the patient's condition is such that he could be permitted to be temporarily absent from the isolation ward and whether his being at large will affect the health of the general public. In a like manner it is for the Government to decide whether a detenu who seeks temporary release from custody merits that concession and further more whether such concession will have any adverse impart upon the maintenance of public order. 6. We may also point out that the Defence of India Rules did not contain a provision corresponding to section 15 of the Tamil Nadu Act 14 of 1982. Consequently there was no scope for a detenu under the Defence of India Rules to approach the Government for granting him temporary release. It was on account of that, power was granted to Courts under rule 155 for granting bail in appropriate cases.
Consequently there was no scope for a detenu under the Defence of India Rules to approach the Government for granting him temporary release. It was on account of that, power was granted to Courts under rule 155 for granting bail in appropriate cases. Conversely it has also to be pointed out that a provision corresponding to rule 155 of the Defence of India Rules is not existent in the Tamil Nadu Act 14 of 1982. On that ground too, the Court cannot entertain a bail application and grant relief to a detenu. 7. For all the aforesaid reasons, we cannot sustain the contention of the Counsel for the petitioner and accede the petitioner's prayer for granting interim bail to the detenu P.Sivaji for the grounds set forth in the petition. The petition will therefore stand dismissed. B.S. ----- Petition dismissed.