High Court quashed a detention order due to unexplained delay and insufficient justification regarding bail likelihood, ordering the detenu's release.
Habeas Corpus petition allowed; detention order set aside; detenu directed to be released forthwith.
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 : 07.12.2017
Coram
THE HON'BLE MR.JUSTICE RAJIV SHAKDHER & THE HON'BLE MR.JUSTICE N.SATHISH KUMAR
H.C.P.No.1618 of 2017
Thiru.Karthick ... Petitioner Vs. 1.State of Tamil Nadu Rep. By the Secretary to Government, Home, Prohibition and Excise Department Fort St. George, Chennai – 600 009. 2.District Magistrate & District Collector, Kancheepuram District, Kancheepuram. .. Respondents
PRAYER: Petition filed under Article 226 of the Constitution of India, to issue a Writ of Habeas Corpus, calling for the records in detention order passed in BCDFGISSSV No.69 of 2017 dated 02.08.2017 on the file of the 2nd respondent herein and set aside the same and direct the respondents to produce the body of Thiru Karthick, S/o.Sekar, the detenu herein now confined in Central Prison, Puzhal, Chennai before the Court and set him at liberty.
For Petitioner : Mr.D.GopiKrishnan for Mr.S.Senthilkumar
For Respondents : Mr.V.M.R.Rajentran, Addl. Public Prosecutor.
5.1. According to us, the impugned order cannot be sustained for the following reasons:
(i) First, though the detentu was arrested on 19.06.2017, the impugned detention order was passed on 02.08.2017. Notice in this petition was issued on 31.08.2017, despite which, no counter affidavit has been filed by the State. Consequently, the delay in passing the impugned detention order remains unexplained.
(ii) Second, even according to the Detaining Authority, the detenu, on the date when the impugned order was passed, had not filed any bail petitions. The reasons given by the Detaining Authority, such as, that the detenu's mother was likely to move for bail and that in a similar case pertaining to 2014, bail had been granted, according to us, were not good enough reasons for the Detaining Authority to come to the conclusion that there was real and imminent possibility of the detenu being enlarged on bail. As indicated by us, in several other matters, the “similar case” yardstick applied by the Detaining Authority without examining the parity between cases is a flawed measure, as bail is not granted by the Courts based on the similarity of provisions of law under which accused are booked. The Courts, while granting bail, on the other hand, look to various other factors including the gravity of offence, the ability of the accused to suborn witnesses, and the likelihood of the accused fleeing from justice.
detenu, namely, Karthick, S/o.Sekar, male, aged about 24 years, is directed to be released forthwith unless his detention is required in connection with another case. Given the nature of the case, this order will be communicated to the concerned Jail Superintendent by the Registrar General of this Court via Fax.
Sd/-
Asst.Registrar (CS III )
/true copy/
Sub Asst. Registrar
To
1.The Secretary to the Government,
Home, Prohibition and Excise Department
Fort St. George,
Chennai – 600 009.
2.District Magistrate & District Collector,
Kancheepuram District,
Kancheepuram.
3.The Joint Secretary
Public (Law and order) Department,
Secretariat, Chennai – 600 009.
4.The Superintendent,
Central Prison,
Puzhal, Chennai.
[In duplicate for communication to the detenu]
5.The Public Prosecutor,
Madras High Court,
Chennai.
H.C.P.No.1618 of 2017
RSK(CO)
NR 07/12/2017
2 issues framed by the court
Whether the detention order passed with a two-month delay and unexplained lack of counter affidavit should stand.
Whether the similarity of bail in an old 2014 case is a valid ground to deny bail despite lack of a lack-bail application by the detenu.
2 provisions across 2 enactments
Karthick
State of Tamil Nadu
District Magistrate & District Collector, Kancheepuram
Rajiv Shakdher
N. Sathish Kumar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
