IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 20.3.2009 CORAM: THE HONOURABLE MR.JUSTICE ELIPE DHARMA RAO AND THE HONOURABLE MR.JUSTICE R.SUBBIAH Habeas Corpus Petition No.2126 of 2008 G.Pavendhan ... Petitioner Vs. 1.State of Tamil Nadu, rep.by its Secretary to Government, Home Department, Fort St.George, Chennai-600 009. 2.The Superintendent of Central Prison, Puzhal, Chennai-600066. 3.The Deputy Superintendent of Police, CBCID, Madurai, (Crime No.250 of 1988, St.Thomas Mount Police Station, Chennai) ... Respondents * * * Writ of Habeas Corpus filed under Article 226 of the Constitution of India, praying to direct the respondents 1 to 3 to produce the body and person of Pozhilan, aged about 46 years, who is now illegally confined in Central Prison, Puzhal-I, Chennai before this Court and set him at liberty forthwith. * * * For petitioner : Mr.N.Natarajan, Senior Counsel for Mr.R.Sankarasubbu For respondents: Mr.V.R.Balasubramanian, APP * * * https://hcservices.ecourts.gov.in/hcservices/ O R D E R ELIPE DHARMA RAO, J. The petitioner, an advocate and stated to be the State Co- ordinating Secretary of 'Thamizhaga Makkal Urimai Kazhagam', an unregistered body, stated to be espousing the cause of human rights, has filed this habeas corpus petition praying to issue the Writ of Habeas Corpus to produce the body and person of Pozhilan, who is alleged to be illegally confined in the Central Prison, Puzhal-I, Chennai before this Court. 2. From the materials placed on record, it is seen that the detenu Pozhilan is one among the 20 accused in Cr.No.250/1988 of St.Thomas Mount Police Station and Cr.No.70/88 of Kodaikanal Police Station for the offences under Section 120-B IPC r/w.Sections 3,4,5 and 6 of the Explosive Substances Act, 1908, Section 427 IPC, Section 4 of the Tamil Nadu Prevention of Damage to Public Property Act, 1984 and Section 3 r/w.24(1-B)(a) and 27 of the Indian Arms Act. It is alleged on the part of the respondents that the father of the detenu by name Perunchithiranar was the President of 'Ulaga Tamil Ina Munnetra Kazhagam', a Tamil chauvinist movement, advocating the secession of Tamil Nadu from India and the detenu Pozhilan is an active member of the said movement. It is further alleged that the detenu Pozhilan along with other accused assembled at the office of 'Ulaga Tamil Ina Munnetra Kazhagam' in Chennai on 20.3.1988 and conspired to blow up the Nehru statue at Kathipara Junction, Chennai and T.V.Relay station at Kodaikanal and the detenu purchased gelatin sticks and prepared time bombs; that the time bombs were planted at Nehru statue, Kathipara Junction. chennai on 10.4.1988, which exploded causing damage to the statue and on 11.4.2008, the detenu directed the other co-accused to go to Kodaikanal and cause devastation to the television tower in Kodaikanal; that while the co- accused were planting time bombs in T.V.tower in Kodaikanal on 11.4.1988, a time bomb exploded accidentally causing the death of an accused by name Maran on the spot besides wreaking extensive damage to the compound wall of the T.V.tower station in Kodaikanal. Both the cases were clubbed together and investigated and charge sheet was laid in the above two cases on 9.6.1991. Along with other accused, the detenu was tried in Sessions Case No.63 of 1993 by the Principal Sessions Judge, Dindigul and by the judgment dated 17.2.1997, the detenu was awarded life imprisonment for the offence under Section 3 of the Explosive Substances Act r/w.120-B IPC. Aggrieved, the detenu preferred Crl.A.No.268 of 1997 before this Court and the Division Bench of the Madurai Bench of this Court, by a common judgment dated 7.9.2007 has partly allowed the said appeal, modifying the sentence in the following terms: "Para No.26(d): The conviction of A.1 and A.2 under Sections 3,4 and 6 of https://hcservices.ecourts.gov.in/hcservices/ the Explosives Substance Act, 1908 read with 120-B IPC is confirmed, but the sentence of life imprisonment, which is the maximum sentence provided under the section is modified to a period of ten years rigorous imprisonment. The period already undergone shall be given set off." 3. Against the said judgment, the detenu preferred SLP.Crl.M.P.No.6605 of 2008 along with Crl.M.P.No.6611 of 2008 before the Honourable Supreme Court and the Honourable Supreme Court by the order dated 21.4.2008 has dismissed the said SLP in the following terms: "Heard learned counsel for the petitioner. Delay condoned. No merits. The Special Leave Petitions are dismissed." 4. In these circumstances, the wife of the detenu has filed HCP.No.757 of 2008 before the Madurai Bench of this Court seeking to reconcile the discrepancy in the award of punishment to the detenu on the ground that he could have been awarded imprisonment for the term below ten years, instead of ten years by the Division Bench of the Madurai Bench of this Court in the Criminal Appeal No.268 of 1997. The detenu has also filed Review Application (MD)SR.No.32166 of 2008 to review the judgment passed in the criminal appeal No.268 of 1997. A contemporary Division Bench of the Madurai Bench of this Court, by the order 10.9.2008 has dismissed both the HCP and the unnumbered Review Application as not maintainable. After the dismissal of the said HCP and the Review Application (SR), this HCP has been filed by the petitioner, seeking the release of the detenu. 5. The main thrust of the petitioner is that the detenu should not have been awarded the punishment of ten years imprisonment by the Division Bench of the Madurai Bench of this Court, since nowhere in the old Act it has been contemplated that the minimum period of sentence for an offence under Section 3 of the Explosive Substances Act is ten years. 6. For better appreciation of this aspect and for the sake of convenience, Section 3 of the Explosive Substances Act, 1908, prior to amendment is extracted hereunder: "3. Punishment for causing explosion likely to endanger life or property – Any person who unlawfully and maliciously causes by any explosion of a nature likely to endanger life or to cause serious injury to property shall, whether any injury to person or property has been actually caused or not, be punished with transportation for life or any shorter term, to which fine may be added, or with imprisonment for a term which may extend to ten years, to which fine may be added." Thus, there is no doubt that prior to amendment, no minimum punishment is prescribed, for the offence under Section 3 of the https://hcservices.ecourts.gov.in/hcservices/ Explosive Substances Act, 1908. 7. The Explosive Substances Act was amended and substituted by Act 54 of 2001 with effect from 1.2.2002. Section 3, after amendment, reads as follows: "3. Punishment for causing explosion likely to endanger life or property – Any person who unlawfully and maliciously causes by - (a) any explosive substance an explosion of a nature likely to endager life or to cause serious injury to property shall, whether any injury to person or property has been actually caused or not, be punished with imprisonment for life, or with rigorous imprisonment of either description which shall not be less than ten years, and shall also be liable to fine; (b) any special category explosive substance an explosion of a nature likely to endanger life or to cause serious injury to property shall, whether any injury to person or property has been actually caused or not, be punished with death, or rigorous imprisonment for life, and shall also be liable to fine." 8. Thus, under the amended provision of Section 3, the minimum punishment prescribed for the offences falling within the ambit of Section 3(a) is imprisonment for a period of ten years and the maximum sentence prescribed is life imprisonment, while for the offences falling within the ambit of Section 3(b), the punishment prescribed is either death or rigorous imprisonment for life. 9. In this backdrop, it has been argued on the part of the detenu that since no minimum sentence is prescribed under the old provision of law, under which alone the detenu has to be convicted, the appellate Court has committed an error in sentencing the detenu for a period of ten years, under the presumption that it is the minimum sentence prescribed for the offence. It is, therefore, prayed that since no minimum sentence is prescribed under the old Act, the sentence of ten years imposed on the detenu by the appellate Court is excessive and therefore, the detenu deserved to be set at liberty. 10. At the cost of repetition, we shall extract hereunder Para No.26(d) of the judgment of the Division Bench of the Madurai Bench of this Court in Crl.A.Nos.233, 234, 268, 284, 336 and 402 of 1997, dated 7.9.2007, which is also reported in (2008) 2 MLJ(Crl.)53 [EGAIARASAN @ THIAGARAJA @ KUZHANDAI AND OTHERS vs. STATE BY ITS DEPUTY SUPERINTENDENT OF POLICE, CBCID, MADURAI]. "Para No.26(d): The conviction of A.1 and A.2 under Sections 3,4 and 6 of the Explosives Substance Act, 1908 read with 120-B IPC is confirmed, but the sentence of life imprisonment, which is https://hcservices.ecourts.gov.in/hcservices/ the maximum sentence provided under the section is modified to a period of ten years rigorous imprisonment. The period already undergone shall be given set off." 11. Thus, while imposing the said sentence of ten years, nowhere the Division Bench of the Madurai Bench of this Court has indicated that the same is being imposed on the accused, since being the minimum sentence. The powers of the Court are unfettered in imposing the punishment on any accused when minimum and maximum sentences are prescribed for any offence. The Courts can impose any period sentence within the permitted periods of sentence prescribed under the Act or Code for such offence, taking into consideration the gravity of the offence, the manner in which it has been committed and such other aspects. In the case on hand, though no minimum period of sentence is prescribed and only a maximum period of sentence of life is prescribed for the offence under Section 3 under the old Act, the Division Bench of the Madurai Bench of this Court has imposed the sentence of ten years on the accused and as has already been asserted supra, nowhere it has been mentioned that it is imposing the minimum sentence prescribed for the offence. Therefore, the argument of the learned senior counsel for the petitioner that the Division Bench of the Madurai Bench of this Court has committed a legal error in imposing the sentence of ten years, as if it is the minimum sentence prescribed for the offence, falls to the ground . 12. As against the said judgment of the Division Bench of the Madurai Bench of this Court, an SLP has been preferred before the Supreme Court, which met the fate of dismissal at the hands of the Honourable Supreme Court. At this juncture, an argument has been advanced on the part of the petitioner that since the SLP having been dismissed, it cannot be construed that the judgment under appeal has been either rejected or confirmed and therefore, there is no legal bar for entertaining this petition. In support of their argument, a judgment of the Supreme Court in NARCOTICS CONTROL BUREAU vs. DILIP PRALHAD NAMADE [2004 SCC (Cri) 916] has been pressed into service, wherein it has been held as follows: ".... Further more, disposal of SLP against a judgment of the High Court does not mean that the said judgment is affirmed by such dismissal. The order passed in any SLP at the threshold without detailed reasons does not constitute any declaration of law or constitute a binding precedent. (See Union of India V. Jaipal Singh (2004) 1 SCC 121]. This Court cannot and does not reverse or modify the decree or order appealed against while deciding the petition for special leave to appeal and that too when the SLP was being dismissed. What is impugned before this Court can be reversed or modified only after granting leave and then assuming appellate jurisdiction over it. If the order impugned before this Court cannot be reversed or modified at the SLP stage obviously that order cannot also be affirmed https://hcservices.ecourts.gov.in/hcservices/ at the SLP stage (See Kunhayammed vs. State of Kerala [(2000) 6 SCC 359] and Ramnik Vallabhdas Madhvani vs. Taraben Pravinlal Madhvani [(2004) 1 SCC 497]. 14. The inevitable conclusion is that the judgment has no legal sanction." 13. There cannot be any dispute regarding the above proposition of law laid down by the Honourable Apex Court. But, in the case on hand, as could be seen from the order, dated 21.4.2008, passed by the Honourable Apex Court in the SLP, (extracted supra), the Honourable Apex Court has dismissed the SLP on the ground that there are 'no merits'. In this view of the matter, when the Honourable Apex Court has gone into the merits of the case and found 'no merits' to grant leave to file the criminal appeal, which is not the position in the case relied on by the learned senior counsel for the petitioner, the above judgment of the Honourable Apex Court cannot come to the rescue of the petitioner. 14. Further more, soon after the dismissal of the SLP, the wife of the detenu has filed HCP.No.757 of 2008 and the detenu has filed Review Application SR.Nos.32166 of 2008 before the Madurai Bench of this Court virtually on the same grounds raised herein and the Madurai Bench of this Court has dismissed both the said petitions by its detailed order dated 10.9.2008. Admittedly, the said order of the Madurai Bench of this Court has reached its finality, since being not challenged by the petitioner. While such being the position, the petitioner has again come forward to file this petition, saying that the principle of res judicata has no application to the criminal jurisprudence and whenever there are new grounds to be urged, the detenu can knock the doors of this Court under Article 226 of the Constitution. 15. In SRIKANT vs. DISTRICT MAGISTRATE, BIJAPUR AND OTHERS [(2007) 1 SCC (Cri) 385], wherein, after discussing various case laws on the subject, it has been held: "Whether any new ground has been taken, has to be decided by the court dealing with the application and no hard-and- fast rule can be laid down in that regard. But one thing is clear, it is the substance and not the form which is relevant. If some surgical changes are made with the context, substance and essence remaining the same, it cannot be said that challenge is on new or fresh grounds." 16. On an analogous reading of the entire case law on the subject, the following legal proposition could be culled out: The principle of res judicata or principles analogous thereto would not apply to a writ of habeas corpus where the petitioner prays for setting him at liberty. But, when once the habeas corpus petition filed either by the detenu or on his behalf by somebody, was dismissed by the High Court on merits and the same has not been assailed in appeal and thus https://hcservices.ecourts.gov.in/hcservices/ it has reached its finality, for filing the second habeas corpus petition, the petitioner must show that there exist new or fresh grounds to be considered by the High Court, which were not available to him while filing or deciding the earlier habeas corpus petition and that continuance of his detention is no more required in view of the changed circumstances. The fact, as to whether the grounds raised in the second habeas corpus petition are new or fresh ones, has to be decided by the court dealing with the application and no hard-and-fast rule can be laid down in that regard. But, it must be kept in mind that it is the substance and not the form which is relevant and if some surgical changes are made with the context, substance and essence remaining the same, it cannot be said that challenge is on new or fresh grounds. In the absence of any fresh or new grounds and if the petitioner fails to prove that continuance of his detention is no more required in view of the changed circumstances, it is not open to the High Court, sitting under Article 226 of the Constitution of India, to exercise a power of review or some kind of an appellate jurisdiction over the decision already rendered by it earlier regarding the very same detention order. 17. In the light of the above legal position, now we have to see whether this petition has been filed on new or fresh grounds and whether the petitioner has brought forth any changed circumstances, so as to set him at liberty, in view of such changed circumstances. Of course, it must be kept in mind, while deciding the petition as to whether the grounds now raised are fresh or new ones and no surgical changes are made with the context and that the substance and essence not remained the same. From a reading of the HCP.No.757 of 2008 and Review Application (SR) No.32166 of 2008, which were rejected by a contemporary Bench of this Court, it is crystal clear that the very same argument has been advanced before that Bench also, which met the fate of rejection. No new ground, much less the one, which was not available at the time of hearing either the criminal appeal or the HCP and the Review Application, has been brought forth before us and the so-called grounds urged herein were very well available even before the Division Bench of this Court, at the time of hearing the criminal appeal. Having allowed the order of the Division Bench of the Madurai Bench of this Court in HCP.No.757 of 2008 and the Review Application (SR) No.32166 of 2008 to reach its finality, without being challenged before the Honourable Apex Court, the petitioner has come forward to file this petition, as if he is raking up new grounds. 18. The other aspect to be pointed out is that the detenu is a convict prisoner and there cannot be any doubt that he is serving the sentence awarded against him by the Madurai Bench of this Court in the Criminal Appeal No.268 of 1997. When such being the position, at no stretch of imagination it could be said that he is in 'illegal https://hcservices.ecourts.gov.in/hcservices/ detention', as has been termed on the part of the petitioner. For all the above reasons and discussions, this HCP is dismissed as of no merits and not maintainable. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar Rao To 1.The Secretary to the Government of Tamil Nadu, Home Department, Fort St.George, Chennai-600009. 2.The Superintendent of Central Prison, Puzhal, Chennai-600066. 3.The Deputy Superintendent of Police, CBCID, Madurai, (Crime No.250 of 1988, St.Thomas Mount Police Station, Chennai) 4. The Public Prosecutor, High Court, Madras. 1 cc To Mr.R.Sankarasubbu, Advocate, SR.9368 Order in HCP.No.2126 of 2008 CK(CO) SRA(3/4/2009) https://hcservices.ecourts.gov.in/hcservices/