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2010 Supreme(Mad) 2711
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE C. NAGAPPAN & THE HONOURABLE MR. JUSTICE P.R. SHIVAKUMAR
A. Murugan
Versus
Secretary, Department of Home & Another
H.C.P. No.506 of 2010 & M.P.No.2 of 2010
Decided On : 08-07-2010
For the Petitioner:R. Sankarasubhu, Advocate.
For the Respondents: P. Kumaresan, Public Prosecutor.
The main legal point established in the judgment is that the proceedings initiated before the lapse of the TADA Act shall not lapse and shall be continued as if the Act had not expired.
Headnote:
HABEAS CORPUS - HUMAN RIGHTS ACTIVIST - Terrorist and Disruptive Activities (Prevention) Act - Section 1(4), Section 309 Cr.P.C, Article 21 of the Constitution - The court held that the TADA Act expired but the proceedings started before the lapse of the Act shall not lapse and the same shall be continued as if the Act had not expired. The court also rejected the contention that the continued custody of the detenu was illegal and unsustainable.
Fact of the Case:
The petitioner, a human rights activist, filed a habeas corpus petition seeking the release of an under trial prisoner detained under the Terrorist and Disruptive Activities (Prevention) Act. The petitioner argued that the prolonged custody of the detenu was illegal and violated Article 21 of the Constitution.
Finding of the Court:
The court found that the TADA Act had expired but the proceedings initiated before the lapse of the Act shall not lapse and shall be continued as if the Act had not expired. The court also rejected the contention that the continued custody of the detenu was illegal and unsustainable.
Issues: The issues included the legality of the continued custody of the detenu under the expired TADA Act and the violation of Article 21 of the Constitution.
Ratio Decidendi: The court held that the TADA Act had expired but the proceedings started before the lapse of the Act shall not lapse and the same shall be continued as if the Act had not expired. The court also rejected the contention that the continued custody of the detenu was illegal and unsustainable.
Final Decision: The court dismissed the habeas corpus petition and the miscellaneous petition filed by the petitioner.
P.R. Shivakumar, J.
1. The petitioner who claims to be a human rights activist and hence interested in the under trial prisoner Sundaramurthy S/o. Vedi, presently confined in Central Prison, Puzhal, Chennai, has brought forth this habeas corpus petition seeking issue of a writ of habeas corpus or a direction in the nature of such a writ to produce the detenu Sundaramurthy before this Hon’ble Court and to ‘set him at liberty.
2. In the affidavit filed in support of the habeas corpus petition the petitioner has made the following averments:
The petitioner is a human rights activist and interested in the welfare of one Sundaramurthy S/o. Vedi, a TADA prisoner concerned in C.C.No.6 of 1993 on the file of Designated Court-II, Chennai who is in Jail since 7. 2007. The prolonged custody of the said detenu is illegal. There is none else to espouse the cause of the detenu and on humanitarian consideration, the petitioner is espousing the cause of the above said prisoner. There is no incriminating material in the evidence adduced on the side of the prosecution in the trial conducted before the designated Court excepting the alleged confession statement of one Sisubalan, who was prosecuted and convicted in a separate trial in C.C.No.3 of 1993, which has got to be rejected as inadmissible against the detenu, as the detenu was not tried along with the said Sisubalan in the same trial as required in the proviso to Section 15 (1) of the Terrorist and Disruptive Activities (Prevention) Act. Furthermore, the Terrorist and Disruptive Activities (Prevention) Act (herein after called ‘the TADA Act’) expired and hence proceeding with the criminal case under the TADA Act infringes the right of appeal of the detenu to the High Court. On the above said ground alone the detention of Sundaramurthy becomes illegal and violative of article 21 of the Constitution.
3. Based on the above said allegations, the petitioner has sought for the issue of a writ of habeas corpus directing the production of the under trial prisoner Sundaramurthy and to set him at liberty. In addition to the grounds raised in the original affidavit, the petitioner has also raised additional grounds by filing a miscellaneous petition in M.P.No.2 of 2010 in the above said habeas corpus petition. The additional grounds raised therein are as follows:
.(a) TADA Act expired on 25. 1995 and the cases under the said Act are to be reviewed in the light of the existing threat to public order. TADA being a stringent law, should be invoked only in exceptional cases where the situation cannot be tackled under the normal law. Continuing the proceedings under the TADA Act after 15 years of its expiry, is an example of oppression and in violation of Articles 14 and 21 of the Constitution of India.
.(b) Detenu Sundaramurthy had no intention to throw the Government established by law in India and hence after the expiry of TADA Act, the case should be tried under the ordinary law of India as no offence under Sections 3(2), 4, 5 and 6 of the TADA Act is made out and hence, the continued detention of the detenu Sundaramurthy is illegal.
.(c) The entire prosecution is vitiated as the material placed would not constitute any offence under TADA Act.
4. In the counter filed by the second respondent, which was also filed on behalf of the first respondent, the above said contentions raised by the petitioner have been refuted, it has been prayed that the petition should be dismissed as the prayer made therein is untenable. The gist of the averments made in the counter affidavit are as follows:
i) The Detenu concerned in this habeas corpus petition was absconding and evading process in Crime No.80 of 1992 registered on the file of Dharmapuri Railway Police for various offences including the offence under the provisions of TADA, which necessitated the splitting up of the case against him from the case against the co-accused Sisubalan and another.
ii) The TADA case was taken on file by the Designat
