The High Court quashed a detention order in a habeas corpus petition, holding that sending arrest intimation only to prison authorities violated Article 22(1) of the Constitution which requires communication to relatives.
Impugned detention order quashed; habeas corpus petition allowed; detenu to be set at liberty forthwith unless needed in other cases.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 17.06.2014
CORAM
THE HONOURABLE MR.JUSTICE V.DHANAPALAN
and
THE HONOURABLE MR.JUSTICE G.CHOCKALINGAM
H.C.P. No.2224 of 2013
Umarani
.. Petitioner
Vs.
1.The Principal Secretary to Government (Home), Prohibition and Excise Department, Secretariat, Chennai – 9.
2.The Commissioner of Police, Office of the Commissioner of Police, Egmore, Chennai. .. Respondents
Petition filed under Article 226 of the Constitution of India praying for a writ of habeas corpus, to call for the records in 551/BDFGISSV/2013 dated 30.07.2013 on the file of the second respondent herein and quash the same and direct the respondents to produce the body of petitioner's son Anandan, son of Ramalingam, aged 28 years, now confined in Central Prison, Puzhal, Chennai before this Court and set him at liberty.
For Petitioner : Mr.P.K.Ilavarasan
For Respondents : Mr.P.Govindarajan, Addl. Public Prosecutor
ORDER
(Order of the Court was made by V.DHANAPALAN, J.)
The petitioner is the mother of the detenu. The detenu has been branded as a "Goonda" as contemplated under Tamil Nadu Act 14 of 1982 and detained under order of the 2nd respondent passed in BDFGISSV No.551/2013 dated 30.07.2013.
| Sl.No. | Polic | e Station and Crime No. | Sections of Law |
|---|---|---|---|
| 1. | R-6 Stati 2007 |
Kumaran Nagar Police on Crime No.2275 of |
395 r/w 397 IPC |
| 2. | J-11 Stati |
Kannaki Nagar Police on Crime No.697/2013 |
457, 380 IPC |
| 3. | J-8 Stati |
Neelankarai Police on Crime No.831/2013 |
302 IPC |
| 4. | J-3 Crime |
Guindy Police Station No.622/2013 |
457, 511 IPC |
| 5. | J-2 Crime |
Adyar Police Station No.1095/2013 |
384, 506(ii) IPC |
The ground case alleged against the detenu is one registered on 10.07.2013 by the Inspector of Police, J-2, Adyar Police Station in Crime No.1108 of 2013 for the offences under Sections 294(b), 341, 323, 392, 336, 427, 397 and 506(ii) IPC. Aggrieved by the order of detention, the present petition has been filed.
3.Amidst several grounds raised to assail the impugned order of detention, learned counsel for the petitioner would mainly contend that as per Article 22(1) of the Constitution of India, as soon as the arrest is made, it must be communicated to the relatives of the person arrested. If such constitutional requirement is not satisfied, then the detention order clamped on the detenu is liable to be vitiated on the ground of violation of Article 22(1) of the Constitution of India. Pointing to Page No.313 of the booklet, he would vehemently contend that communication in respect of arrest of the detenu in Crime No.1095 of 2013 (5th adverse case) was given only to the Jailor, Central Prison, Puzhal, Chennai and therefore it will not serve the purpose for which the arrest communication is to be made. He would also contend that as per the dictum laid down by the Hon'ble Supreme Court in A.K.Roy Vs. Union of India and another (AIR 1982 SC 710(1), there must be a communication to the relatives of the person arrested to enable them to take steps to bail out the arrested person and if it is communicated to the prison authorities, the entire object will be defeated and the constitutional mandate will not be achieved.
4.Controverting the above submission, Mr.P.Govindarajan, learned Additional Public Prosecutor would submit that since the detenu was in prison, the arrest intimation was served through the Jailor of the Prison and therefore, there is no violation of the constitutional requirement and that will serve the purpose and thereby the detenu will know about his arrest.
5.We have heard the learned counsel on either side and perused
the material documents available on record.
6.In the case in A.K.Roy Vs. Union of India and another (AIR 1982 SC 710(1)) and D.K.Basu Vs. State of West Bengal (1997) 1 SCC 416), the Hon'ble Supreme Court has held that immediately after a person is taken into custody in pursuance of an order of detention, the members of his household, preferably the parent, the child or the spouse, must be informed in writing of the passing of the order of detention and of the fact that the detenu has been taken in custody. Intimation must also be given as to the place of detention including the place where the detenu is transferred from time to time.
7.In similar circumstances, following the above said Supreme Court decisions, this Court in the case of Devi and others vs. The Government of Tamilnadu and another, by an order dated 11.06.2014, has set aside the orders of detention against the detenus therein, by holding as under:
“10. Fundamental Rights occupy a place of pride in the Indian Constitution. Article 21 provides “no person shall be deprived of his life or personal liberty except according to procedure established by law.'' Personal liberty, thus, is a sacred and cherished right under the Constitution. The expression ''life or personal liberty'' has been held to include the right to live with human dignity and thus it would also include within itself a guarantee against torture and assault by the State or its functionaries. Section 50 Cr.P.C. enjoins every police officer arresting any person without warrant to communicate to him the full particulars of the offence for which he is arrested and the grounds for such arrest. As laid down in A.K.Roy's case and D.K.Basu's case, it is imperative that immediately after a person is taken in custody in pursuance of an order of detention, the members of his household, preferably the parent, the child or the spouse, must be informed in writing of the passing of the order of detention and of the fact that the detenu has been taken in custody. Intimation must also be given as to the place of detention including the place where the detenu is transferred from time to time.
constitutional requirement. If such orders are passed by the detaining authorities, based on such an information, which is not supplied and communicated either to the detenu or the relatives or the parties, the purpose of constitutional requirement will be defeated and the provisions of the Act contemplating the manner and the procedure under which it should be done, has also to be followed by them. Such a failure would vitiate the entire process and therefore, the impugned orders of detention are unsustainable in law. Accordingly, the impugned orders of detention are set aside.''
8.In view of the above, we are of the considered opinion that there is a violation of constitutional requirement in this case also, as the intimation of arrest of the detenu has been given only to the Jailor, Central Prison, Puzhal, Chennai, as could be seen from Page No.313 of the booklet and there is no communication either to the detenu or to his relatives, thereby defeating the constitutional requirement.
9.Accordingly, the impugned detention order detaining the detenu – Anandan, S/o.Ramalingam passed by the 2nd respondent in BDFGISSV No.551/2013, dated 30.07.2013 is quashed and the Habeas Corpus Petition is allowed. The above named detenu is ordered to be set at liberty forthwith, unless his custody is required in connection with any other case.
10.However, in view of serious offence involved in this matter, it is open to the prosecution to effectively contest the matter before the Regular Court, uninfluenced by the above order. It is also made clear that this order shall not confer any right or advantage whatsoever to the detenu to claim anything before the Regular Court.
Sd/Assistant Registrar(CS-IV) Dated: 16.07.2014
//True Copy//
Sub Assistant Registrar
mmi
To
1.The Principal Secretary to Government
(Home), Prohibition and Excise Department,
Secretariat, Chennai – 9.
2.The Commissioner of Police,
Office of the Commissioner of Police,
Egmore, Chennai.
3.The Superintendent,
Central Prison,
Puzhal, Chennai.
4.The Joint Secretary to Government,
Public (Law and Order) Fort St.George,Chenai-9.
5.The Public Prosecutor,
High Court, Madras
BKY(CO)
km/16.7.
HCP No.2224 of 2013
2 issues framed by the court
Whether detention orders are valid when arrest communication is sent only to prison authorities instead of relatives, violating Article 22(1).
Whether the failure to inform arrested person's relatives of detention violates the constitutional mandate.
Colour shows how this judgement treated each authority
A.K. Roy v. Union of IndiaExplained¶23
A.K.Roy Vs. Union of India and another (AIR 1982 SC 710(1) · Who else cites this
D.K. Basu v. State of West BengalExplained¶28
D.K.Basu Vs. State of West Bengal (1997) 1 SCC 416 · Who else cites this
Devi and others v. The Government of Tamilnadu and anotherDistinguished¶29
Devi and others vs. The Government of Tamilnadu and another
2 provisions across 2 enactments
Umarani
Principal Secretary to Government (Home), Prohibition and Excise Department
Commissioner of Police, Egmore
V.DHANAPALAN
G.CHOCKALINGAM
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
