Kalaiarasi vs State of Tamil Nadu

M. Chockalingam, J.—Challenge is made to an order of detention made by the second Respondent dated 26.4.2010, whereby the husband of the Petitioner by name Sridhar was ordered to be detained under Act 14/82 terming him as a Goonda as defined under the provisions of that Act.

The Court heard the learned Counsel for the Petitioner and also looked into all the materials and inparticular the order under challenge.

It is not in controversy that pursuant to there commendation made by the sponsoring authority that the said detenu was involved in one adverse case in J5 Shastri Nagar Police Station Crime No. 319/2010 registered u/s 174 Code of Criminal Procedure @ Sections 147, 148, 341 and 302 of IPC, and also in one ground case registered by the very same police station in Crime No. 326/2010 under Sections 147,148, 341, 332, 427, 336, 307 and 506(2) of IPC for an occurrence that has taken place on 16.4.2010, and he was arrested on the same day, the detaining authority after brecording its subjective satisfaction that the activities of the detenu were prejudicial to the maintenance of the public order, has made the order under challenge.

Advancing arguments on behalf of the Petitioner, the learned Counsel put forth two grounds which, according to him, would suffice to set aside the order. According to him, either in the adverse case or in the ground case, no bail application was actually filed; but, the authority has stated that there was a real possibility of the detenu coming out on bail, and the authority has also pointed out that in similar cases, bail was granted, and though the particulars of those cases were mentioned in the order, nocopies of those materials were handed over to him in orderto enable him to understand about those cases, and underthe circumstances, the observation that there was a real possibility of the detenu coming out on bail is with outbasis or material, much less cogent material.

Added further the learned Counsel that the first adverse case was actually registered u/s 302 of IPC for an occurrence that has taken place on 13.4.2010; that the order came to be passed on 26.4.2010; that ordinarilyin a case of murder, bail would not be granted unless and until the investigation is over; and that under the circumstances, the observation made by the authority that there was a real possibility of his coming out on bail is with out any basis or any material, much less cogent material.

Added further the learned Counsel that there was a special report as found in the booklet; that it did not contain the date, and thus he was not made to know when the special report was made, and hence it is a fit case where it has got to be set aside.

The Court heard the learned Additional Public Prosecutor on the above contentions and paid its anxious consideration on the submissions made.

As regards the first ground, it is pertinent to point out that no bail application was made either in the adverse case or in the ground case. But the authority has stated that there was a real possibility of the detenu coming out on bail. Paragraph 4 of the grounds of detention reads as follows:

I am aware that Thiru. Senthil, is in remand in J.5 Shastri Nagar Police Station Crime. Nos. 319/2010 and 326/2010 he has not moved anybail so far. The sponsoring authority has stated that the relatives of Thiru. Sridhar are taking action to take him on bail in the above case by filing bail application before the Court. Since in a case registered under Sections 341 and 307 IPC at E-2 Royapettah Police Station Cr. No. 382/2009 bail was granted in Crl.M.P. No. 5266/2009 by the Court of Principal Sessions, Chennai, within 21 days. In a similar case bail was granted in R-7 K.K. Nagar Police Station Crime No. 301/2009 registered under Sections 147, 148, 341 and 302 IPC in Crl.O.P. No. 13843/2009 by the Hon''ble High Court. Hence there is real possibility of his coming out on bail by filing bail application in the above case before the appropriate Court.

From the above, it would be quite clear that the observation that there was a real possibility of the detenu coming out on bail is without any basis or material muchless cogent material which the law would require. That apart, the adverse case was registered u/s 302 IPC,and ordinarily in such cases, bail will not be granted within a short span of time and that too before the investigation is over. Hence there was no cogent material before the detaining authority to observe so.

As regards the second ground, the special report did not contain the date, and thus the detenu was not made known when the special report was made. Hence on both the grounds, the order has got to be set aside.

Accordingly, the order of detention passed by thesecond Respondent is set aside, and the detenu is directedto be set at liberty forthwith unless his custody is required in connection with any other case. This petitions allowed.