Back
2010 Supreme(Mad) 5045
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE M. CHOCKALINGAM & THE HONOURABLE MR. JUSTICE C.S. KARNAN
Attai Senthil @ Senthilkumar
Versus
The Secretary to Government & Others
H.C.P. No.1814 of 2010
Decided On : 25-11-2010
For the Petitioners:N. Sivabharathi, Advocate.
For the Respondent: M. Babu Muthu Meeran, Additional Public Prosecutor.
The necessity for the Detaining Authority to base the conclusion of imminent possibility of the detenu being released on bail on cogent materials and to form an opinion based on available materials before passing the detention order.
Headnote:
Detention Order - Challenge to Detention Order - Act 14 of 1982 - Indian Penal Code - Sections 324, 506(ii), 379, 387, 294(b), 392, 397, 427 - The court discussed the subjective satisfaction of the Detaining Authority, the possibility of the detenu being released on bail, and the lack of sufficient or cogent material to support the detention order. The court referred to the legal provisions and interpretations in the context of imminent possibility of the detenu obtaining statutory bail and the necessity for the authority to form an opinion based on available materials.
Fact of the Case:
The detenu challenged the detention order under Act 14 of 1982, which was based on his involvement in multiple adverse cases under the Indian Penal Code.
Finding of the Court:
The court found that the detention order lacked sufficient or cogent material to support the subjective satisfaction of the Detaining Authority and did not indicate that the authority arrived at the subjective satisfaction before passing the detention order.
Issues: The main issue was the validity of the detention order, specifically regarding the subjective satisfaction of the Detaining Authority and the possibility of the detenu being released on bail.
Ratio Decidendi: The court held that the Detaining Authority must base the conclusion of imminent possibility of the detenu being released on bail on cogent materials and not mere ipse dixit. It emphasized the necessity for the authority to form an opinion based on available materials before passing the detention order.
Final Decision: The Habeas Corpus Petition was allowed, setting aside the detention order passed by the second respondent.
(Order of the Court was made by M. CHOCKALINGAM, J)
1. This petition is brought forth by the detenu himself challenging the order of the second respondent in Memo CMP12/2000 TPDA 3376/2010 dated 8.4.2010, whereby he was ordered to be detained as a Goonda under the provisions of the Act 14 of 1982.
2. The Court heard the learned counsel appearing for the petitioner and looked into the materials available on record, in particular, the order under challenge.
3. It is not in controversy that pursuant to the recommendation made by the Sponsoring Authority that the detenu is involved in five adverse cases viz. (i) Crime No.84 of 2008 registered by Pallapatty Police Station for the offences under Sections 324 and 506(ii) of the Indian Penal Code; (ii) Crime No.1203 of 2008 registered by Pallapatty Police Station for the offence under Section 379 of the Indian Penal Code; (iii) Crime No.1210 of 2008 registered by Pallappatty Police Station for the offence under Section 379 of the Indian Penal Code; (iv)Crime No.1433 of 2009 registered by Pallappatty Police Station for the offences under Sections 387, 324, 294(b) and 506(ii) of the Indian Penal Code; (v) Crime No.234 of 2010 registered by Sooramangalam Police Station for the offences under Sections 392 read with 397, 506(ii) of the Indian Penal Code and one ground case in Crime No.351 of 2010 registered by Pallappatty police station for the offences under Sections 392 read with 397, 427, 506(ii) of the Indian Penal Code for the incident that had taken place on 17.3.2010 and the detenu was arrested on the very day, the Detaining Authority, on scrutiny of materials placed, passed the detention order, after arriving at the subjective satisfaction that the activities of the detenu were prejudicial to the maintenance of public order, which is the subject matter of challenge before this Court.
4. The only ground raised by the learned counsel for the petitioner to set aside the detention order is that in Paragraph No.5 of the detention order, the authority has recorded the subjective satisfaction that the detenu might indulge in such activities in future, which will be prejudicial to the maintenance of public order, but, no where the authority has stated that there is a real possibility or imminent possibility or likelihood of the detenu coming out on bail. If the detenu did not come out on bail, he would not have indulged in such activities in future. In such circumstances, the Authority has not even recorded subjective satisfaction properly on the materials much less cogent material, which would indicate the non application of mind on the part of the Detaining Authority. On this ground, the detention order has got to be set aside.
5. This Court heard the learned Additional Public Prosecutor on the above contentions and paid its anxious consideration on the submissions made.
6. As could be seen from the available materials, the Detaining Authority has made the order of detention terming the detenu as a Goonda, on the strength of the materials placed before him pertaining to five adverse cases and one ground case as referred to above and has recorded its subjective satisfaction that the activities of the detenu were prejudicial to the maintenance of public order.
7. As could be seen above, in paragraph No.5 of the detention order, the authority has recorded the subjective satisfaction that the detenu might indulge in further activities, which will be prejudicial to the maintenance of public order, but, nowhere the authority has stated that there is a real possibility or imminent possibility or likelihood of the detenu coming out on bail. In a given case like this, the authority must form an opinion before recording subjective satisfaction and that too, on the basis of the materials available and it becomes necessary for him to indicate, whether there is a real possibility or imminent possibility or likelihood of the detenue coming out on bail, but the authority has not stated
