19 April 2023 2:43 PM GMT
While dismissing a habeas corpus petition filed by the wife of a pastor who was detained under The Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Goondas, Immoral Traffic Offenders, Forest Offenders, Sand Offenders, Slum-Grabbers and Video Pirates Act, for sexually assaulting a physically and mentally challenged minor girl, the Madras High Court...
While dismissing a habeas corpus petition filed by the wife of a pastor who was detained under The Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Goondas, Immoral Traffic Offenders, Forest Offenders, Sand Offenders, Slum-Grabbers and Video Pirates Act, for sexually assaulting a physically and mentally challenged minor girl, the Madras High Court observed that the facts of the case "shocked the judicial conscience".
"The facts of this case, as revealed by the detaining authority in the detention order and connected materials, shocked the judicial conscience, how the insatiable lust for sex of the detenu leads to the indulging of penetrative sexual assault on the partially mentally retarded and physically challenged minor victim girl, as a treasury guard become a robber."
The division bench of Justice R Suresh Kumar and Justice KK Ramakrishnan added that, for invoking the Detention Act, the propensity of the act was more important than the habitual nature of the offence as the definition of “Sexual Offender” did not demand habituality.
"So, as on date, the word "habitually" was removed in the Amendment Act and hence the detaining authority has invoked the Tamilnadu Act 14 of 1982 based on the propensity of the offence in the solitary cases. Even before the amendment, the Hon'ble Supreme Court in number cases clearly stated that even in the solitary case, the detention order can be passed. Which was required is that the propensity of the act alone is enough to invoke the detention order."
In the present case, the detention order was challenged on the ground of delay in passing detention order, delay in considering representation and unclear AR copy. It was also contended that the detention order was not legally valid as it was a solitary case of POCSO offence without any habituality.
The petitioner also contended that the detention order was passed without any application of mind. It was submitted that the detaining authority was not acting as per law when they recorded that there was imminent possibility of the detenu coming out on bail when there was no bail petition pending.
The court noted that there was no time limit fixed for invoking the detention order either in the constitution or the Tamil Nadu Detention Act.
Relying upon precedents from the Supreme Court, the bench observed that delay in passing the detention order would not ipso facto lead to its quashing when there was reasonable explanation.
In the present case, though the detenu was arrested on May 11 2022, the medical examination of the victim was completed only on June 15 2022 and sponsoring affidavit was received on July 4 2022. The detention order was passed on July 9. Thus, the court noted that the delay was well explained.
With respect to bail, the court observed that the detention jurisdiction was a suspicion jurisdiction and a mere suspicion and reasonability was enough to invoke the same.
"In this case, the detaining authority passed the impugned detention order on the notion that the detenue would file bail petition in near future and likely to come out on bail. If he comes out on bail, he would act prejudicial to the public order," it said.
Regarding the contention of solitary incident, the court observed that as per facts of the case, the Pastor, who was duty bound to care for every member of the church. had committed the offence.
The court noted that this act itself had such propensity to create panic in the minds of those associated with the church and thus demanded invocation of the Detention Act action against the detenu.
"In this case, the detenu is a Pastor and his responsibility towards the entire public is placed on the high pedestrian than the ordinary man. He is dutybound to take care of every member of the Church without any greed of sex. But, it is alleged that he has committed offence under the POCSO Act, more particularly, he is alleged to be committed the penetrative sexual assault on the partially mentally retarded and physically challenged minor victim girl. So, the said act of the Pastor/detenu created panic in the locality and also the mind of the persons attending the prayer along with their female children."
Thus, finding no grounds to interfere with the order, the court dismissed the habeas corpus petition and upheld the detention order.
Case Title: Susamma Baby v. State and others
Citation: 2023 LiveLaw (Mad) 121