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2010 DIGILAW 1767 (MAD)

J. Suganthi v. The Commissioner of Police

2010-04-13

C.S.KARNAN, M.CHOCKALINGAM

body2010
Judgment :- M. Chockalingam, J. 1. This Petition challenges an order of detention made by the First Respondent in proceedings No.470 of 2009 dated 19.11.2009 whereby the Petitioner’s husband, namely Appunu @ Jayakumar was ordered to be detained under Act 14/82 branding him as a “Goonda”. 2. The Court heard the learned Counsel for the Petitioner and looked into ell the materials available including the order under challenge. 3. It is not in controversy that pursuant to the recommendation made that the detenu is involved in five Adverse cases namely, (1) J-5 Shastri Nagar P.S.Cr. No.1886 of 2006 under Sections 341, 324 and 506(ii), IPC; (2) P-2 Otteri P.S.Cr. No.46/2007 under Sections 341, 323, 324 and 506(ii), IPC; (3) P-2 Otteri Police Station Cr.No.298/2007 under Sections 147, 148, 341, 326, 307 and 506(ii), IPC; (4) P-2 Otteri Police Station Cr. No.620 of 2007 under Sections 341, 353, 385, 427, 307 and 506(ii), IPC; and (5) K.7 I.C.F. P.S. Cr. No.238 of 2008 under Sections 326 and 506(ii), IPC; and (6) P-2 Otteri Police Station Cr. No.797 of 2009 under Sections 341, 323, 324 and 506(ii), IPC and also the ground case in Crime No.802/2009 registered by P-2 Otteri PS under Sections 341, 384, 307, 336, 427 and 506(ii), IPC for an occurrence that took place on 11.11.2009, he was arrested on 11.11.2009 and remanded to judicial custody on the same day and on scrutiny of the materials available, the Detaining Authority after recording its subjective satisfaction that the activities of the detenu were prejudicial to the maintenance of public order has made the order under challenge. 4. Advancing arguments on behalf of the Petitioner, the learned Counsel would firstly submit that when the detenu has not filed any Bail Application or pending before any Court of Criminal law in the aforesaid ground case and only a Bail Application was filed by the detenu in the sixth adverse case registered in Cr. No.797 of 2009 in Crl.M.P.No.4660 of 2009 before the V Metropolitan Magistrate, Egmore and the same was dismissed on 16.11.2009, the Detaining Authority has stated that in the order that there was real possibility of the detenu coming out on bail by filing bail application; that this was without any basis or material much less cogent material to form an opinion and on this ground, the detention order is vitiated and it has got to be set aside. 5. 5. Secondly, the Sponsoring Authority has placed a Special Report before the Detaining Authority as could be seen from page No.151 of the booklet. A reading of the same would indicate that the Special Report was made on 16.11.2009, where, it was stated that the Bail Application was dismissed on 16.11.2009 itself, but the copy of the order was served on the detenu would indicate, as if the Bail Application was dismissed only on 17.11.2009. Thus, it would be clear that the Special Report was misleading. All the above would suffice to set aside the order since it is vitiated. 6. The Court heard the learned Additional Public Prosecutor on all the above contentions and paid its anxious consideration on the submissions made. 7. As could be seen above, the order came to be passed by the authority on scrutiny of the materials available after recording subjective satisfaction that he was involved in six Adverse cases and one Ground case. But after looking into the materials available, it is seen from paragraph No.4 of the detention order that the detenu has not filed any Bail Application in the ground case in Crime No.802/2009, and a Bail Application was filed by the detenu only in the sixth adverse case registered in Cr. No.797 of 2009 in Crl.M.P.No.4660 of 2009 before the V Metropolitan Magistrate, Egmore, which was dismissed on 16.11.2009, but the authority has stated in its order that there was a real possibility of the detenu coming out on bail. While not even an Application was filed for bail, the observation made by the authority would indicate that it has been made without any basis or material much less cogent material. 8. It was only an expression of the impression which was passing in the mind of the authority. Added further the authority has not even considered whether there was any possibility of the detenu coming out on bail or imminent possibility which are not made known in the order. In the instant case, not even a Bail Application is filed or pending before any Court of Criminal law and thus this Court is of the considered opinion that it can also be a ground which would vitiate the order. 9. In the instant case, not even a Bail Application is filed or pending before any Court of Criminal law and thus this Court is of the considered opinion that it can also be a ground which would vitiate the order. 9. So far as the second ground is concerned, as rightly pointed out by the learned counsel for the Petitioner, the Sponsoring Authority has placed a Special Report before the Detaining Authority as could be seen from page No.151 of the booklet. A reading of the same would indicate that the Special Report was made on 16.11.2009, wherein, it was stated that the Bail Application was dismissed on 16.11.2009 itself, but the copy of the order which was served on the detenu would indicate that it was dismissed only on 17.11.2009. Thus, it would be clear that the Special Report was misleading. Under such circumstances, both the grounds are available to the detenu and this Court is of the opinion that it would vitiate the order of detention. Hence, the detention order has got to be set aside. 10. Accordingly, this Habeas Corpus Petition is allowed setting aside the order of detention passed by the First Respondent in proceedings No.470 of 2009 dated 19.11.2009, and the detenu Appunu @ Jayakumar, is directed to be set at liberty forthwith unless his presence is required in connection with any other case.