IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 20 - 03 - 2013

CORAM

THE HONOURABLE MR.JUSTICE ELIPE DHARMA RAO

and
THE HONOURABLE MR. JUSTICE M. VENUGOPAL

Writ Petition No. 29630 of 2011

V. Senthilkumar .. Petitioner

Vs.

1. The Chief Secretary

Government of Tamil Nadu
Fort St. George
Chennai

2. The Secretary to Government of Tamil Nadu

Home Department
Government of Tamil Nadu
Chennai

3. The Secretary
Legal Aid
High Court of Madras
Chennai ..
Respondents

Petition filed under Article 226 of the Constitution of India praying for the issuance
of a Writ of Mandamus directing the respondents to take necessary action to release
on own bails without any surety throughout Tamil Nadu prisoners who are
detaining for a long time without proper procedure of Laws, Supreme Court
directions and Human Rights violation.

For Petitioner: Mr. A. Ramesh Manikandan

For RR 1 and 2 : Mr. M. Shanmugavelayudhan, PP

Assisted by
Mr. S.T.S. Moorthy, Spl. GP

ORDER
(made by ELIPE DHARMA RAO, J.)

The petitioner, claiming to be a Teacher and Secretary in Constitutional Legal

Awareness Association, has filed this Writ Petition seeking for a direction to the
respondents to take necessary action to release the prisoners, who are detained for
a long time without proper procedure of Laws, Supreme Court directions and
Human Rights violation, throughout the State of Tamil Nadu on own bails without
any surety.

2. The case of the petitioner is that though the accused, by name,

Veeraraju @ Velusamy in Crime No. 1527 of 2009 registered for the offences under
Sections 294B, 341 and 307 r/w 34 IPC on the file of Polur Police Station,
Tiruvannamalai District, applied for bail before the lower Court as well as before the
Sessions Court, yet, the same was not considered, which, according to him, is
nothing but violation of human rights. It is the further case of the petitioner that
there are number of persons, despite the bail granted, confined in various Central
Prisons in the State of Tamil Nadu.

3. Heard the learned counsel appearing for the petitioner and the
learned Public Prosecutor representing the respondents and perused the records.

4. This matter relates to accused, who, inspite of having been granted

bail, still languish in jail because of non-furnishing sureties to the satisfaction of the
concerned Court. The First Bench of this Court, by order dated 23.12.2011, called
for a report from the Director General of Police (Prisons). In compliance of the
same, the Additional Director General of Police and Inspector General of Prisons
filed a statement to the effect that most of the bail orders by the lower Courts were
not forwarded to the Prisons concerned. He also furnished the details of the
prisoners who have obtained bail and still in jail for non-furnishing sureties before
the Court, which granted bail.

5. When the matter came up for consideration on 08.01.2013, because of

the non-disclosure of complete facts by the respondents State, this Court directed
the Member Secretary, Tamil Nadu State Legal Services Authority, Chennai and all
other Member Secretaries of the various Districts, viz., Vellore, Cuddalore, Trichy,
Salem, Coimbatore, Madurai, Virudhunagar, Ramanathapuram, Periyakulam,
Palayamkottai and Pudukottai, to conduct enquiry in the Prisons located in their
area and submit report with regard to the details of the accused, who are kept in jail
even after obtaining bail orders for want of furnishing sureties and execution of bail
bonds. Accordingly, the Member Secretary filed a report stating that there are
about 272 inmates in custody in various prisons in the State for want of providing
sureties / executing bail bonds. However, since the report does not contain the
details regarding the crime number, nature of offences, etc., this Court directed to
submit report containing those particulars.

6. Thereafter, the Superintendents of various Central Prisons have filed

their counter affidavits giving details about the name of the accused, father's name,
Crime Numbers, offences registered and the jurisdictional Courts.

7. The question with regard to the power of the High Courts to enlarge a
person on his own bond without sureties was considered by the Hon'ble Supreme
Court in the decision reported in (1978) 4 SCC 47 (Moti Ram and others v. State of
Madhya Pradesh). While considering the question whether the Court, under the
Code of Criminal Procedure, can enlarge on his own bond without sureties, a person
undergoing incarceration for a non-bailable offence either as under-trial or as
convict who has appealed or sought special leave, the Hon'ble Supreme Court
observed as follows :-
"21. We have explained later that the power of the Supreme Court to enlarge
a person during the pendency of a Special Leave Petition or of an appeal is very
wide, as Order 212 Rule 27 of the Supreme Court Rules discloses. In that sense, a
consideration of the question as to whethe the High Court or the subordinate courts
have pwers to enlarge a person on his own bond without sureties may not strictly
arise. Even so, the guidelines which prevail with the Supreme Court when granting
suspension of sentence must, in a broad sense, have relevance to what the Code
indicates except where special circumstances for a different course...."
The Hon'ble Supreme Court, after analysing Sections 445, 441(2) and (3) and
389(1) of Cr.P.C., proceeded further to observe as follows :-
"The court of appeal may release a convict on his own bond without sureties.
Surely, it cannot be that an under-trial is worse off than a convict or that the power
of the court to release increases when the guilt is established. It is not the court's
status but the applicant's guilt status that is germane. That a guilty man may claim
judicial liberation pro tempore without sureties while an undertrial cannot is a
reductio ad absurdem."

8. In the light of the aforesaid decision, there is no impediment for this

Court to enlarge the prisoners who have been granted bail, on executing own bond.

9. Coming to the prisoners to be released in the case on hand, we have

gone through the various counters filed by the Superintendents of Prisons.

10. From the counter affidavits filed by the Superintendents of various

Prisons, it is seen that there are about 163 prisoners languishing in jail even after
bail orders have been granted. Out of the above 163 prisoners, considering the
gravity of the offence committed, antecedents and the number of cases pending
against the individual prisoners, we are inclined to release the following 73
prisoners, whose break-up details and list are given below separately.

------------------------------------------------------------------------------------------------
Sl. Prison Number of prisoners Number of
Prisoners
No. in Jail to be released
without on executing own
bond
furnishing surety (See the list
given below)
------------------------------------------------------------------------------------------------
1 Central Prison II, Puzhal,
Chennai 45 26
------------------------------------------------------------------------------------------------
2 Central Prison, Vellore 14 6
------------------------------------------------------------------------------------------------
3 Special Prison for Women,
Vellore 7
Rejected
------------------------------------------------------------------------------------------------
4 Central Prison, Cuddalore 2 Rejected
------------------------------------------------------------------------------------------------
5 Central Prison, Trichy 28 17
------------------------------------------------------------------------------------------------
6 Special Prison for Women,
Trichy 6 3
------------------------------------------------------------------------------------------------
7 Central Prison, Salem 19 7
------------------------------------------------------------------------------------------------
8 Central Prison, Coimbatore 13 1
------------------------------------------------------------------------------------------------
9 Central Prison, Madurai 3
Rejected
------------------------------------------------------------------------------------------------
10 Central Prison, Palayamcottai 13 6
------------------------------------------------------------------------------------------------
11 Borstal School and
District Jail Pudukkottai 6 Rejected
------------------------------------------------------------------------------------------------
12 Central Prison, Madurai 7 7
------------------------------------------------------------------------------------------------
Total 163 73
------------------------------------------------------------------------------------------------

List of Prisoners to be released

--------------------------------
on executing personal bond
--------------------------

Central Prison - II, Puzhal, Chennai:

------------------------------------

1. Velu, S/o Raja

2. Thangavel, S/o Vellai Pandiyan
3. Thangaraji, S/o Kaliyan
4. Siva, S/o Sankar
5. Idhayadullah, S/o Kamal Sheriff
6. Gnanasekaran, S/o Kothandan
7. Raji, S/o Natarajan
8. Venkatesh, S/o Muthu
9. Eagamabaram, S/o Chinnamuniyan
10. Loganathan, S/o Chandraganesan
11. Thastgir, S/o Shek Ali
12. Muthu @ Vijayan, S/o Subramani
13. Sureshkumar, S/o Arumugam
14. Jafar @ Zakairhussain, S/o Babujohn
15. Muzaffar, S/o Kaheelk Ahamed
16. Feroz, S/o Kalied
17. Ilanthamilan, S/o Palanivel
18. Babu, S/o Sababathi
19. Elumalai @ Kuttai, S/o Murugesan
20. Selvaraj, S/o Nagappan
21. Shaji @ Shajagan, S/o Yusaf
22. Kuriyagos, S/o Bally
23. Palayam, S/o Munusamy
24. Thirumoorthy, S/o Ramamoorthy
25. Kandipan, S/o Kasinathan
26. Namniath Mohandoss @ Mohandoss, S/o Appu Naiar

Central Prison, Vellore:

-----------------------

1. RP No. 632 Sabapathi @ Bagodakathar, S/o. Arunachalam

2. RP No. 956 Saravanan, S/o Nagaraj
3. RP No. 1113 Selvam, S/o Madurai
4. RP No. 1141 Ravichandran, S/o Sarangan
5. RP No. 1530 Bagiyanathan, S/o Subramani
6. RP No. 9405 Moorthy @ Krishnamoorthy, S/o. Ramakrishan
Special Prison for Women, Vellore:
---------------------------------

Rejected

Central Prison, Cuddalore

-------------------------

Rejected

Central Prison, Trichy (RP):

---------------------------

1. 5094 Anandhan, S/o Anandhan

2. 5466 Chithickraja, S/o Mohamadu
3. 6445 Khaja Husan, S/o Syedu Ahamedu
4. 4963 Mohamed Nazar, S/o Kamarudeen
5. 3705 Chandrasekar, S/o Rajendhiran
6. 2265 Ibrahim, S/o Abdulsubari
7. 5435 Gunasekaran @ Guna, S/o Uthirapathy
8. 302 Thevan, S/o Subamoopan
9. 3581 Arumugam, S/o Narayanan
10. 2129 Arumugam, S/o Ramasamy
11. 651 Punniyamoorthy, S/o Govindasamy
12. 3577 Sahul Hamedu, S/o Santhibaba
14. 113 Subramani, S/o Mahadevan
15. 3810 Govindarasu, S/o Saminathan
16. 6290 Ramesh, S/o Kaliyamoorthy
17. 6307 Arunkumar, S/o Kannan

Special Prison for Women, Trichy:

--------------------------------

1. 216 Abi @ Kalaivani, W/o Sureshkumar

2. 215 Sakiyasaleem @ Sakila, W/o Saleem
3. 2209 Lakshmi, S/o Pushparaj

Central Prison, Salem:

---------------------

1. FRP Syda Bee, W/o Muhammed Ali

2. FRP Shkilabanu, W/o Karim Ali
3. RP 82738 Manikandan, S/o Jambu
4. RP 83730 Sekar @ Boopathi, S/o Hahesh
5. RP 83117 Vinaykumar, S/o Servesh Kumar
6. RP 82581 Rathinam, S/o Veeramuthu
7. RP 82120 Senthil @ Senthilkumar, S/o Rajamanickam

Central Prison, Coimbatore:

--------------------------
RP 970 Shenbagavalli, W/o Velu

Central Prison, Madurai:

-----------------------

Rejected

Central Prison, Palayamcottai:

-----------------------------

1. RP 2710 Murugan, S/o Sudalaikannu

2. RP 6385 Venkat @ Venkatachalam, S/o Chokkalingam
3. RP 7046 Rajasingh, S/o Antony Raj
4. RP 5047 Mariappan @ Anai Mariappan, S/o Subramanian
5. RP 7620 Subramanian, S/o Madasamy
6. RP 2713 Ravi @ Karthikumar, S/o Govindan @ Selvaraj

Borstal School and District Jail, Pudukkottai:-

----------------------------------------------

Rejected

Central Prison, Madurai:

-----------------------

1. Syed Rasool, S/o Abdul Ajeesh

2. Seeni Mohamed, S/o Rowthar
3. Arjunan, S/o Govindan
4. Kuppusamy, S/o Sadayandi
5. Pushpavathy, W/o Mukran @ Babu
6. Nantheeswari, W/o Raman
7. Rakkumuthu, W/o Anbalagan

11. The respondents are directed to be release the above 73 prisoners on

executing personal bond before the concerned Judicial Magistrates.

The Writ Petition is disposed of accordingly. No costs.

gri

To
1. The Chief Secretary
Government of Tamil Nadu
Fort St. George
Chennai

2. The Secretary to Government of Tamil Nadu

Home Department
Government of Tamil Nadu
Chennai

3. The Secretary
Legal Aid
High Court of Madras
Chennai