Mahalakshmi v. The Additional Chief Secretary to Government

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT ( Criminal Jurisdiction ) Tuesday, the Eleventh day of April Two Thousand and Twenty Three PRESENT The Hon`ble Mr.Justice R.SURESH KUMAR and The Hon`ble Mr.Justice K.K. RAMAKRISHNAN CRL MP(MD). No.5827 of 2023

in H.C.P. (MD) NO 1564 OF 2022 Muthukutty (Now Confining at Palayamkottai Central Prison).

... Petitioner/Detenu Vs 1 The Additional Chief Secretary to Government Home Prohibition and Excise Department Secretariat Chennai-600009. 2 The District Magistrate and District Collector Office of the District Magistrate and District Collector Thoothukudi District Thoothukudi. 3 The Superintendent of Prison Palayamkottai Central Prison Tirunelveli District. ... Respondents Petition filed praying that in the circumstances stated therein and in the petition filed therewith the High Court may be pleased to grant 3 days temporary leave to Muthukutty, aged 44 years, S/o.Samydoss,now confining as Goonda at the Central Prison, Palayamkottai under preventive detention by the order passed by the R2 in vide his order in HS(M)Confdl.No.172/2022 dt.19/8/2022 for attend the funeral ceremonies of his father Muthukutty forthwith in HCP(MD) No. 1564 of 2022 Prayer in Habeas Corpus Petition(MD) No. . 1564/ 2022 : Petition praying that in the circumstances stated therein and in the affidavit filed therewith, the High Court will be pleased H2-GO. To Issue a Writ of Habeas Corpus or any other Writ or Direction calling for the entire records, connected with the detention order of the Respondent No.2 in H.S.(M) Confdl.No.172/2022 dt.19.08.2022 and Quash the same and direct the Respondents to produce the body or person of the detenu by name Muthukutty, son of Samydoss, aged about 44 years, now detained as "GOONDA" at Palayamkottai Central Prison, before this Hon'ble Court and set him at liberty forthwith . Order : This petition coming up for orders on this day, upon perusing the petition filed in support thereof and upon hearing the arguments of M/S.ALAGUMANI R, Advocate for the petitioner and of MR.A.THIRUVADI KUMAR, Additional Public Prosecutor, on behalf of the Respondents, the court made the following order:- (Order of the Court was made by R.SURESH KUMAR,J.) Pursuant to the order passed by this Court yesterday, ie., on

10.04.2023, when the case was taken up for hearing today, the learned Additional Public Prosecutor appearing for the respondents has submitted that the order of this Court has been taken into account, accordingly, the second respondent, ie., the District Magistrate cum District Collector has passed the order on 10.04.2023 itself and he has produced the copy of the said order, where, inter-alia, it has been stated as follows: vdNt. ghisaq;Nfhl;il kj;jpa rpiwapy; cs;s jLg;Gf;fhty; " rpiwthrp jpU.Kj;Jf;Fl;b (taJ 44/2022) j/ng.rhkpjh]; vd;gtiu mtuJ je;ijapd; ,Wjp rlq;fpy; fye;J nfhs;s 10.04.2023 md;W xU ehs; kl;Lk; mtru fhy tpLg;G (gNuhy;) toq;fp ,jd; %yk; cj;jutplg;gLfpwJ. NkYk; jLg;Gf;fhty; rpiwthrp jpU.Kj;Jf;Fl;b (taJ 44/2022) j/ng.rhkpjh]; vd;gtiu cupa ghJfhg;Gld; ghisaq;Nfhl;il kj;jpa rpiwapy; ,Ue;J mtuJ je;ijapd; ,Wjp rlq;F elf;Fk; ,lj;jpw;F mioj;J nrd;W> ,Wjprlq;F Kbtile;j gpd; ghisaq;Nfhl;il kj;jpa rpiwapy; milj;jpl cupa ghJfhg;G eltbf;iffs; Nkw;nfhs;s J}j;Jf;Fb khtl;l fhty; fz;fhzpg;ghsu; Nfl;Lf;nfhs;sg;gLfpwhu;."

¶2However, the learned counsel for the petitioner would submit that pursuant to the said order dated 10.04.2023, the escort police party brought the detenu to the petitioner's house in the midnight on 10.04.2023 ie, around 12 to 12.30 a.m., and the detenu was permitted to be there at the house for two hours and around 2.30 a.m., the escort party taken back the detenu to the jail. However, between 12.30 a.m., and 2.30 a.m., no last rites or funeral can be taken place and because of which, the dead body of the detenu's father has been still kept at the house of the petitioner, unless the detenu comes back at the instance of the orders passed by the 2nd respondent dated 10.04.2023, enabling him to participate in the funeral or last rites to be performed to his father, the funeral or last rites cannot be undertaken.

¶3In this context, when specifically asked by this Court, the learned Additional Public Prosecutor, on instructions, would submit that, the order dated 10.04.2023 has made it very clear that the detenu shall be permitted to go for one day leave on 10.04.2023 and the detenu shall be permitted to participate in the last rites/funeral to be taken place and after completing the last rites and funeral, then only the detenu has to be brought back to the jail. The contents of this order has already been communicated to the District Superintendent of Police, Tuticorin for giving necessary escort for the detenu. Though the said order has been communicated to the Jail Superintendent and the detenu has been permitted to go with the escort, the escort party taking note of the order passed by the District Collector dated 10.04.2023, where the detenu has been permitted to participate in the funeral function only for one day i.e., 10.04.2023 and since they reached the place i.e., residence of the detenu only in the late night of 10.04.2023 after 12.00 mid night, the police authority thought of bringing back the detenu because the District Collector's order says that it is for one day special leave on 10.04.2023 for the purpose of attending the funeral.

¶4Because of which, the detenu had been brought back to the jail in the early morning.

¶5In this context, Mr.A.Thiruvadi Kumar, learned Additional Public Prosecutor would further submit that, the Deputy Superintendent of Police and other police officials had already gathered on the spot from the evening hours to see that no untoward incident takes place as the detenu has been in jail and this is a case of double murder, which is in the investigation stage and therefore, due to the sensitivity some untoward incident may happen, therefore, strict vigil has to be taken, so the police people thought that the funeral would be taken place immediately in the late night hours on 10.04.2023 itself, but that could not be made possible, and therefore the police party thought of bringing back the detenu to the jail. Therefore, on this aspect, the action on the part of the escort party cannot be found fault with, he contended.

¶6We have considered the said submissions made by the learned counsel on either side and have taken note of the afore-stated development that has taken place last night.

¶7The very purpose of giving such a special leave for one day or 48 hours as conferred under Section 15 of the Act 14 of 1982 read with relevant Government orders referred to is only enabling the detenu to participate in the funeral or last rites to be performed for any close relatives, mother or the father of the detenu and for the very purpose, we passed the order yesterday, ie., on 10.04.2023, which has also been complied with by the District Collector, who passed a clear order and in the last paragraph of the order, it has been specifically stated that the detenu shall be permitted to participate in the last rites and till it is completed, he must be there and then only he shall be brought back to jail.

¶8In view of the aforestated, when this matter is taken up for hearing today, Mr.A.Thiruvadi Kumar, learned Additional Public Prosecutor in the afternoon session at 2.30 p.m., on instructions would submit that, as per the directions issued in the morning by this Court, the detenu has been permitted to go and attend the funeral with escort party and the escort party also accompanying the detenu has already started from the Jail concerned at 2.00 p.m. and they would reach the place of funeral around 4.00 p.m.

¶9Learned counsel appearing for the petitioner also on instructions would submit that, everybody is waiting for the arrival of the detenu and all final arrangements have been made for the funeral and it will be immediately taken place between 4.00 and 6.00 p.m. and before 6.00 p.m. everything would be over and the detenu would be no more required to stay beyond 6.00 p.m. at the funeral spot.

¶10In view of the aforestated, this Court feels that since the detenu has already been taken from the jail by the escort party at around 2.00 p.m. today he shall be permitted to attend the funeral of his father, which has already been scheduled to be conducted between 4.00 and 6.00 p.m. today and after completing the funeral i.e., after 6.00 p.m. immediately the detenu can be brought back to the jail and this must be ensured by the respondent police.

¶11In view of the aforestated, no further order is necessary in this criminal miscellaneous petition. sd/- 11/04/2023 / TRUE COPY / 11/04/2023 Sub-Assistant Registrar (C.S.) Madurai Bench of Madras High Court, Madurai - 625 023. RR/SJ TO 1 The Additional Chief Secretary to Government Home Prohibition and Excise Department Secretariat Chennai-600009. 2 The District Magistrate and District Collector Office of the District Magistrate and District Collector Thoothukudi District Thoothukudi. 3 The Superintendent of Prison Palayamkottai Central Prison Tirunelveli District. 4 The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai. ORDER IN CRL MP(MD). No.5827 of 2023

in

H.C.P. (MD) NO 1564 OF 2022 Date :11/04/2023 PKP/VR/SAR- /11.04.2023/ 5P/5C