Anandha Kumar v. Government of Tamil Nadu, Rep. by its Secretary to Government Home (Prison IV) Department
2021-06-15
P.N.PRAKASH, R.PONGIAPPAN
body2021
DigiLaw.ai
ORDER : P.N. PRAKASH, J. This writ petition has been filed seeking a direction to the respondents 1 and 2 to release the petitioner's brother viz., Jai @ Jaikumar, S/o. Arumugam, aged 27 years, from the illegal custody of the 3rd respondent by considering the petitioner's representation dated 04.05.2021. 2. The facts of the case lie a very narrow compass. 2.1. The detenu, viz., Jai @ Jaikumar was involved in a murder case on 16.10.2016, in connection with which, a case in S-8 Adambakkam Police Station Crime No.2268 of 2016 was registered against him and others, for the offences under Sections 147, 148, 341 and 302 IPC. He was arrested in the said crime number and was remanded in custody. Later, he was released on bail by the Principal Sessions Judge, Chengalpet in Crl.M.P.No.4997 of 2018 on 17.11.2018 on certain conditions, one of which is that, he should not commit any other offence while on bail. 2.2. The detenu was involved in a robbery on 17.10.2016, in connection with which, a case in S-8 Adambakkam Police Station Crime No.2273 of 2016 was registered against him for the offences under Sections 341, 294(b), 397, 336, 427 and 506(II) IPC. He was arrested in the said crime number and was released on bail by the learned Judicial Magistrate No.II, Alandur in Crl.M.P.No.13 of 2017 on 04.01.2017. 2.3. Thus, the detenu was on bail in Crime Nos.2268 of 2016 and 2273 of 2016. While he was on bail, he got involved in two cases viz. S-8 Adambakkam Police Station Crime No.757 of 2020 for the offences under Sections 147, 148, 341, 294(b), 364, 323 and 307 IPC and S-8 Adambakkam Police Station Crime No.1108 of 2020 for the offences under Sections 147, 148, 341, 294(b), 307, 302 and 120-B IPC. It appears that the detenu was released on bail in Crime Nos.757 of 2020 and 1108 of 2020. 2.4. While that being so, the detenu was branded as a GOONDA and was detained under the Tamil Nadu Act 14 of 1982, which detention order was quashed by this Division Bench in H.C.P.No.1705 of 2020 on 20.04.2021. 2.5.
It appears that the detenu was released on bail in Crime Nos.757 of 2020 and 1108 of 2020. 2.4. While that being so, the detenu was branded as a GOONDA and was detained under the Tamil Nadu Act 14 of 1982, which detention order was quashed by this Division Bench in H.C.P.No.1705 of 2020 on 20.04.2021. 2.5. In such circumstances, the prosecution moved Crl.M.P.No.3135 of 2020 under Section 439 Cr.P.C. before the Sessions Court, Chengalpet, for cancellation of bail that was granted to the detenu in Crime No.2268 of 2016, on the ground that he had violated the bail conditions, by involving himself in the cases in Crime Nos.757 of 2020 and 1108 of 2020. Similarly, the prosecution also moved a petition in Crl.M.P.No.3129 of 2020 under Section 439 Cr.P.C. before the Sessions Court, Chengalpet, for cancellation of bail that was granted to the detenu in Crime No.2273 of 2016 on the aforesaid ground. 2.6. Admittedly, the detenu was in prison as he was remanded in custody in Crime Nos.757 of 2020 and 1108 of 2020 and he was further detained under the Tamil Nadu Act 14 of 1982, while the two cancellation of bail petitions were heard by the Principal Sessions Judge, Chengalpet. The Sessions Court, Chengalpet, vide individual orders in Crl.M.P.Nos.3135 of 2020 and 3129 of 2020, both dated 29.01.2021, cancelled the bail granted to the detenu in Crime Nos.2268 and 2273 of 2016. 2.7 Challenging the cancellation of bail orders dated 29.01.2021 passed in Crl.M.P.Nos.3135 and 3129 of 2020, the detenu filed two Crl.O.Ps. under Section 482 Cr.P.C., viz., Crl.O.P.No.4747 of 2021 and Crl.O.P.No.4339 of 2021. 2.8. A learned single Judge of this Court heard Crl.O.P.No.4339 of 2021 and Crl.O.P.No.4747 of 2021 and passed two individual orders on 04.03.2021 and 09.03.2021, respectively. However, paragraph 7 in the said two orders passed by the learned single Judge is verbatim the same and hence, for the sake of convenience, it is extracted below: “7. In the considered view of this Court, the order passed by the Court below requires interference. The matter is again remanded back to the file of the Principal District and Sessions Judge, Chengalpet.
In the considered view of this Court, the order passed by the Court below requires interference. The matter is again remanded back to the file of the Principal District and Sessions Judge, Chengalpet. The Court below shall issue notice to the petitioner indicating the date of hearing of the application and if in case, the petitioner is inside jail in some other case, the Court below shall utilise the service of a counsel from legal aid who can defend the case of the petitioner after taking instructions from the petitioner. The Court below shall pass final orders after giving opportunity to the petitioner, within a period of four weeks from the date of receipt of copy of this order.” (emphasis supplied) 2.9. On behalf of the detenu, a representation was given by the petitioner to the Superintendent, Central Prison, Puzhal, stating that the further detention of the detenu, after the orders passed by this Court in Crl.O.P.No.4339 of 2021 and Crl.O.P.No.4747 of 2021 dated 04.03.2021 and 09.03.2021, respectively, are illegal, inasmuch as, the cancellation of bail orders that were passed by the Sessions Court have been interfered with by the High Court, thereby restoring the earlier bail orders that were granted to the detenu in Crime Nos.2268 of 2016 and 2273 of 2016. 2.10. The Superintendent, Central Prison, Puzhal, has considered the petitioner's representation and has addressed a communication dated 05.05.2021 to the Judicial Magistrate No.II, Alandur in Tamil, which reads as under : OTHER LANGUAGE 3. Mr. R. Muniyapparaj, learned Government Advocate (Crl. Side) sought to justify the further detention of the petitioner on the ground that the learned single Judge has not used the expression “set aside” in the orders dated 04.03.2021 and 09.03.2021 in Crl.O.P.No.4339 of 2021 and Crl.O.P.No.4747 of 2021, respectively and that the learned single Judge has only remanded the two cancellation of bail petitions to the Sessions Court, Chengalpet, for fresh consideration and disposal, after issuing proper notice to the detenu. 4. We are unable to countenance the aforesaid submission of the learned Government Advocate (Crl. Side) for the simple reason that the learned single Judge has clearly stated that the order passed by the Court below requires interference.
4. We are unable to countenance the aforesaid submission of the learned Government Advocate (Crl. Side) for the simple reason that the learned single Judge has clearly stated that the order passed by the Court below requires interference. Thus, the non usage of the expression “set aside” in the orders passed by the learned single Judge will, by no stretch of imagination, lead to the inference that the order has not been set aside. In fact, the learned single Judge has stated in paragraph 7 extracted supra that notice should be issued to the detenu and that the matter should be heard afresh. This naturally implies that the learned single Judge has set aside the cancellation of bail orders and has remanded the two cancellation of bail petitions for fresh disposal in accordance with law. 5. In such view of the matter, the further detention of the detenu on the ground that, in effect, he has not been released on bail in S-8 Adambakkam Police Station Crime Nos.2268 of 2016 and 2273 of 2016, cannot be sustained. In the result, this writ petition is treated as a Habeas Corpus Petition and is allowed. As a sequel, the Superintendent, Central Prison, Puzhal, is directed to release the detenu viz., Jai @ Jaikumar, S/o. Arumugam, in S-8 Adambakkam Police Station Crime Nos.2268 of 2016 and 2273 of 2016 forthwith, provided his further detention is not required in any other case. At the time of release, the Superintendent, Central Prison, Puzhal, shall obtain an undertaking in Tamil from the detenu that, on release, he will appear before the learned Principal District and Sessions Judge, Kancheepuram @ Chengalpet in Crl.M.P.Nos.3129 of 2020 and 3135 of 2020 on or before 12.07.2021. The undertaking so obtained, shall be sent by the Superintendent, Central Prison, Puzhal, to the Principal District and Sessions Judge, Kancheepuram @ Chengalpet, forthwith. On release, the detenu shall appear before the Principal District and Sessions Judge, Kancheepuram @ Chengalpet in Crl.M.P.Nos.3129 of 2020 and 3135 of 2020 on or before 12.07.2021 and execute separate bonds under Section 88 Cr.P.C. for Rs.25,000/- (Rupees Twenty Five Thousand only) with two sureties, of whom, one should be a blood relative.
On release, the detenu shall appear before the Principal District and Sessions Judge, Kancheepuram @ Chengalpet in Crl.M.P.Nos.3129 of 2020 and 3135 of 2020 on or before 12.07.2021 and execute separate bonds under Section 88 Cr.P.C. for Rs.25,000/- (Rupees Twenty Five Thousand only) with two sureties, of whom, one should be a blood relative. The detenu and the sureties shall affix their photographs and left thumb impression in the surety bond and the trial Court shall obtain a copy of their Aadhaar card or Voter ID or Driving licence or bank pass book to ensure their identity and their mobile numbers. If the detenu does not comply with these conditions, it is open to the respondent police to take him in custody for violation of the orders of this Court and remand him in custody further. The detenu shall participate in the proceedings in Crl.M.P.No.3129 of 2020 and Crl.M.P.No.3135 of 2020 by engaging a lawyer and if he needs the services of a lawyer pro bono, he can approach the Legal Services Authority, Chengalpet, for assistance. If the detenu breaches the bond and absconds, a fresh F.I.R. can be registered against him under Section 229-A IPC.