Aswathy v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** ## **&** ## **THE HONOURABLE MR.JUSTICE N.NAGARESH** **WEDNESDAY, THE 25TH DAY OF SEPTEMBER 2019 / 3RD ASWINA, 1941** **WP(Crl.).No.113 OF 2019** ## **PETITIONER:** **ASWATHY AGED 26 YEARS W/O. PRABITH, FLAT NO. B, RAJAJI NAGAR, SECRETARIAT WARD, THYCAUD VILLAGE, THIRUVANANTHAPURAM.** **BY ADVS. SRI.P.MOHAMED SABAH SRI.LIBIN STANLEY** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY ADDITIONAL CHIEF SECRETARY TO GOVERNMENT OF KERALA (HOME DEPARTMENT), SECRETARIAT, THIRUVANANTHAPURAM 695 001.** - **2 DISTRICT MAGISTRATE, THIRUVANANTHAPURAM DISTRICT, THIRUVANANTHAPURAM 695 001.** - **3 DEPUTY COMMISSIONER OF POLICE, (LAW AND ORDER) THIRUVANANTHAPURAM CITY, THIRUVANANTHAPURAM 695 001.** - **4 SUB INSPECTOR OF POLICE, CONTONMENT POLICE STATION, THIRUVANANTHAPURAM 695 001.** - **5 THE SUPERINTENDENT CENTRAL PRISON, VIYOOR, THRISSUR 680 010.** **WP(Crl.) No.113 OF 2019** **2** **6 THE SUPERINTENDENT, CENTRAL PRISON, THIRUVANANTHAPURAM 695 001.** **R1-6 BY ADDL.DIRECTOR GENERAL OF PROSECUTION GOVERNMENT PLEADER SRI.K.A.ANAS** **THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 16.07.2019, THE COURT ON 25.09.2019 DELIVERED THE FOLLOWING:** **WP(Crl.) No.113 OF 2019** **3** ## **[CR]** ## **J U D G M E N T** ~ ~ ~ ~ ~ ~ ~ ~ ~ _Dated this the 25[th] day of September, 2019_ ## _**Nagaresh, J.**_ Petitioner, who is wife of the detenu Mr.Prabith, S/o.Sivankutty, seeks issuance of a writ of Habeas Corpus commanding respondents 3 to 5 to produce the body of the detenu who is detained in custody in Central Prison, Viyyur and to release him. The petitioner further seeks to quash Exts.P2 and P6 orders. 2. The detenu is undergoing preventive detention ordered under Section 3(1) of the Kerala Anti-Social Activities (Prevention) Act, 2007 ('KAAPA', for short). The 3[rd] respondent - Deputy Commissioner of Police submitted a report dated 22.09.2018 to the 2[nd] respondent - District **WP(Crl.) No.113 OF 2019** **4** Magistrate and requested for an order of preventive detention of the detenu. On receipt of Ext.P1, the 2[nd] respondent passed Ext.P2 order dated 06.10.2018 ordering detention. The detenu was detained on 26.10.2018. Ext.P3 grounds for detention were served on the detenu. Ext.P2 order of detention was approved by the 1[st] respondent on 07.11.2018 as per Ext.P4. Against Ext.P2 detention order, the detenu preferred a representation before the Advisory Board constituted under KAAPA. The Advisory Board conducted a personal hearing and recommended detention. Accordingly, the detention order was confirmed as per Ext.P6 order dated 07.01.2019. 3. The petitioner submits that the 2[nd] respondent has passed four detention orders earlier, against the detenu. The first of such orders passed in the year 2007 was cancelled as the 1[st] respondent did not confirm it. Another detention order was passed in 2013 and the detenu suffered the period of detention. Yet another order of detention was passed in the **WP(Crl.) No.113 OF 2019** **5** year 2016. However, the detenu was released provisionally by the order of this Court in W.P.(Crl.) No.482/2016. Again, on 20.03.2018, another order of detention was passed. The detenu was, however, released after the hearing conducted by the Advisory Board. The detenu was acquitted by competent courts in most of the cases registered against him. The present Ext.P2 detention order was passed considering four cases which were already considered for detentions effected earlier. 4. The petitioner stated that Ext.P2 detention order is illegal, unwarranted and vitiated by legal and procedural illegalities. It is the case of the petitioner that the 3[rd] respondent is not competent to submit a report seeking preventive detention. The 1[st] respondent has not applied its mind while passing Ext.P6 order of confirmation. Had the 3[rd] respondent genuinely apprehended further anti-social activities by detenu, he would have submitted a report to the 2[nd] respondent immediately after registration of the last crime. **WP(Crl.) No.113 OF 2019** **6** The 2[nd] respondent failed to record subjective satisfaction as to how she arrived at a conclusion that detention is warranted. For all the above reasons, detention order now passed cannot stand the scrutiny of law, contended the petitioner. 5. The Public Prosecutor entered appearance and opposed the writ petition filing counter affidavits. In the counter affidavit filed on behalf of the 1[st] respondent, circumstances under which earlier orders of detention were passed, have been explained. The 1[st] respondent stated that the detenu was absconding after the last offence and surrendered before the court on 21.07.2018. However, the detenu was enlarged on bail on 14.08.2018 and hence, the authorities were forced to pass detention order on 06.10.2018. There was live link between the last prejudicial activity and the date of order of detention. 6. The 2[nd] respondent in his counter affidavit stated that the detenu is a known rowdy. He was involved as **WP(Crl.) No.113 OF 2019** **7** accused in 16 criminal cases including cases for offences under Sections 308, 307 and 302 IPC. In addition to the previous 16 cases, the detenu got involved in another criminal case soon after his release from the fourth preventive detention. The 2[nd] respondent has taken into consideration all relevant facts like crimes registered against the detenu, rowdy history sheet, initiation of security proceedings under Section 107 Cr.P.C., the earlier detention orders, bail conditions in different cases, etc. All those materials were placed before the detaining authority. The detaining authority, after examination of those materials and after proper application of mind, passed the detention order. The orders impugned are not liable to be interfered with in the larger public interest. 7. We have heard the learned counsel for the petitioner and the learned Public Prosecutor. 8. The learned counsel for the petitioner submitted that the detaining authority has not considered all the relevant **WP(Crl.) No.113 OF 2019** **8** materials in order to arrive at subjective satisfaction for ordering detention. The successive detention orders would show that the detenu is being persecuted. The 3[rd] respondent, who is the sponsoring authority, is Deputy Commissioner of Police (Law and Order). An authority below the rank of Superintendent of Police cannot be a sponsoring authority under the KAAPA. The 3[rd] respondent is incompetent to make request for preventive detention. Hence, there is violation of Section 3(1) of KAAPA. 9. The learned counsel for the petitioner further urged that there is considerable delay in passing Ext.P2 detention order dated 06.10.2018 after the last prejudicial activity which was on 09.06.2018. Therefore, the live link between the last prejudicial activity and the order of detention should be treated as snapped. The detaining authority ought to have noted that after releasing on bail on 14.08.2018, the detenu did not commit any crime and hence, the detention order is not warranted. **WP(Crl.) No.113 OF 2019** **9** 10. The learned counsel for the petitioner further argued that the last prejudicial activity, Crime No.751/2018 of the Cantonment Police Station, Thiruvananthapuram is a counter case and on this aspect, the detaining authority did not apply its mind and the detention order is liable to be set aside on that ground also. 11. One of the prime grounds urged by the petitioner is that the 3[rd] respondent - Deputy Commissioner of Police is not a competent officer under Section 3 of KAAPA to submit a report seeking preventive detention. Section 3(1) provides that detaining authority may make an order of detention, if it is satisfied that detention is necessary, on information received from a police officer not below the rank of a Superintendent of Police. This question is covered by a Division Bench judgment of this Court in _**Ranjini v. State of Kerala and others** [2009 (3) KLT 500]_ . This Court held that merely because an officer does not head a police outfit (that he is not the Commissioner of Police), it cannot be said that **WP(Crl.) No.113 OF 2019** ## **10** his report under Section 3(1) is incompetent. The only requirement is that the police officer furnishing information must not be below the rank of Superintendent of Police. As the 3[rd] respondent is not below such rank, the argument of the petitioner cannot be accepted. 12. As regards subjective satisfaction of the detaining authority, we find that the detaining authority has considered the fact that the detenu is a person against whom preventive detention orders under KAAPA, were passed earlier also. The detaining authority noted that four of the crimes registered against detenu which were considered in the earlier detention order are still subsisting and while so, the detenu has indulged in a further Crime No.751/2018 of Cantonment Police Station, for offences punishable under Sections 294(b), 323, 324, 308, 394, 451, 341, 354 and 201 read with Section 34 IPC. The detaining authority has noted that the detenu has been enlarged on bail in the said Crime and is free from any bail conditions, which are sufficient to **WP(Crl.) No.113 OF 2019** **11** prevent him from further commission of crimes. It is taking into account all the relevant information that the detaining authority has passed Ext.P2 detention order. Therefore, we are unable to agree with the argument of the petitioner that the subjective satisfaction of the detaining authority is not evident from records. 13. The counsel for the petitioner forcefully urged that there is considerable and unexplained delay in passing detention order and in view of the delay, it must necessarily be held that the live link between the last prejudicial activity and the detention order does not subsist. In this regard, the following dates are relevant:- |09.06.2018|-|Crime No.751/2018 of Cantonment Police| |---|---|---| |||Station, Thiruvananthapuram| |||(last prejudicial activity)| |21.07.2018|-|Detenu surrendered| |14.08.2018|-|Detenu enlarged on bail| |22.09.2018|-|Report of sponsoring authority| |06.10.2018|-|Ext.P2 detention order| |26.10.2018|-|Detention order executed| **WP(Crl.) No.113 OF 2019** **12** The learned Public Prosecutor pointed out that the detenu was absconding from 09.06.2018 and he surrendered only on 21.07.2018. Subsequently, on 14.08.2018, he was enlarged on bail. Soon, the sponsoring authority acted. The sponsoring authority had to ascertain the present status of the crimes pending against the petitioner and orders, if any, passed in those cases. After obtaining the requisite information, the sponsoring authority sent his report on 22.09.2018 and detention order was issued on 06.10.2018. 14. This Court in _**Rahila Nazeer v. State of Kerala and Others** [2016 (2) KLT 838]_ held that factual situation in each case is relevant to decide whether delay is inordinate so as to vitiate the order of detention and that if delay is satisfactorily explained, it cannot be held that the live link is snapped. We have considered the sequence and chronology of events as explained above and are of the opinion that there is no substantial delay on the part of the sponsoring authority in forwarding its report and the short time lag has **WP(Crl.) No.113 OF 2019** **13** been properly explained. 15. The further case of the petitioner is that all the crimes, except Crime No.751/2018 of Cantonment Police Station, were the basis of earlier detention order and it will be improper if not illegal, to base a further order on those crimes. This issue was considered by a Full Bench of this Court in _**Radhika B. v. State of Kerala and others** [2015 (2) KLT 134]_ , wherein it was held that the prejudicial activities which were reckoned for the purpose of an earlier detention order can nevertheless be counted, providing the live link to issue another order of detention against the same person. In the present case, it has to be noted that after release from the last detention, the detenu committed further offences punishable under Sections 294(b), 323, 324, 308, 394, 451, 341, 354 and 201 read with Section 34 IPC. In the circumstances, consideration of crimes, which were basis of earlier detention orders, cannot be said to be illegal or improper. **WP(Crl.) No.113 OF 2019** **14** 16. Yet another argument on behalf of the detenu is that in Ext.P2 order, the detaining authority has observed that detenu is a person involved in various offences including murder. However, none of the five cases taken into account by the detaining authority include an offence under Section 302 IPC, which would only show that the authority has passed Ext.P2 in a mechanical manner. On examination of the materials, we find that while considering the antecedents of the detenu, the detaining authority has noted that the detenu was involved in an offence under Section 302 IPC earlier. However, the detaining authority has not based its order on the said crime. 17. A reading of Section 13 of the KAAPA is necessary for clarity and guidance in this regard. Section 13 reads thus:- ## “ _**13. Revocation of detention order**_ - _(1) A detention order may, at any time, be revoked or modified by the Government._ - _(2) The revocation or expiry of a detention order_ **WP(Crl.) No.113 OF 2019** **15** _shall not be a bar for the issuance of another detention order under section 3 against the same person, if he continues to be a person falling within the definition of known rowdy or known goonda as given in section 2 (o) or section 2 (p) and if,--_ _(i) after release, he is, found to have, again involved in an offence of the nature described in section 2(o) or section 2 (p); or at least one instance; or_ _(ii) the facts, which came to the notice of the Government or the authorised officer after the issuance of the earlier detention order, considered along with previously known facts are sufficient to cause a reasonable apprehension that he is likely to indulge in or promote or abet antisocial activities; or_ _(iii) the procedural errors or omissions, by reason of which the first order was revoked, are rectified in the procedure followed with regard to the subsequent order, even if the subsequent order is based on the very same facts as the first order.”_ Though Section 13 has been captioned as 'Revocation of detention order', sub-section (2) of Section 13 provides that **WP(Crl.) No.113 OF 2019** **16** revocation or expiry of a detention order shall not be a bar for the issuance of another order against the same person, if he continues to be a person falling within the definition of known rowdy or known goonda. The title/caption given to the Section is misleading inasmuch as the provision not only deals with revocation, but also provides for issuance of further detention orders. In such circumstances, one need not place much reliance on the title/caption of the Section. Section 13(2) envisages passing of fresh detention orders, if the person continues to fall under Section 2(o) or Section 2(p). Section 13(2)(ii) enables the detaining authority to consider 'previously known facts' along with the crime/crimes committed after issuance of the earlier detention order, in order to issue another detention order under Section 3. Therefore, for an objective consideration as to whether a person falls under Section 2(o) or 2(p), the detaining authority indeed can consider the entire criminal history including all previous criminal cases in which the person is/was involved. **WP(Crl.) No.113 OF 2019** **17** Such advertence to previously known facts will not vitiate the subsequent subjective satisfaction arrived at by the authority on the requirement of passing a detention order, based on crimes which the authority takes into account for that purpose. In the present case, though the detaining authority has noted the offence under Section 302 IPC in which the detenu was involved earlier, the said crime has not anchored the detention order. The argument of the petitioner in this regard is, therefore, unsustainable. 18. The counsel finally urged that the last crime (Crime No.751/2018 of Cantonment Police Station) registered against the detenu is a counter case to Crime No.765/2018 against one Ananthu and others and this aspect was not considered by the detaining authority. In the counter affidavit filed by the 3[rd] respondent, it is stated that the said Crime No.765/2018 was registered at the instance of the petitioner. On investigation, it was revealed that it is a false case and counter allegation, and hence a refer charge sheet was **WP(Crl.) No.113 OF 2019** **18** submitted. Under such circumstances, we do not find that non-consideration of the referred counter case has vitiated the detention order. In view of the above findings, we find no merit in the writ petition warranting interference with the orders impugned. The writ petition is, hence, dismissed. Sd/- **C.T. RAVIKUMAR, JUDGE** Sd/- **N. NAGARESH, JUDGE** aks/26.07.2019 **WP(Crl.) No.113 OF 2019** **19** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE REPORT DATED 22.9.2018 SUBMITTED BY THE 3RD RESPONDENT BEFORE THE 2ND RESPONDENT. EXHIBIT P2 TRUE COPY OF THE PREVENTIVE DETENTION ORDER DATED 6.10.2018 PASSED BY THE 2ND RESPONDENT. EXHIBIT P3 TRUE COPY OF THE GROUNDS FOR DETENTION CONSIDERED BY THE 2ND RESPONDENT. EXHIBIT P4 TRUE COPY OF ORDER OF APPROVAL DATED 7.11.2018 PASSED BY THE 1ST RESPONDENT. EXHIBIT P5 TRUE COPY OF THE ARREST INTIMATION DATED 26.10.2018 GIVEN BY THE 4TH RESPONDENT. EXHIBIT P6 TRUE COPY OF THE ORDER DATED 7.1.2019 PASSED BY THE 1ST RESPONDENT. EXHIBIT P7 TRUE COPY OF THE DETENTION ORDER DATED 20.3.2018 PASSED BY THE 2ND RESPONDENT. EXHIBIT P8 TRUE COPY OF THE FIRST INFORMATION REPORT IN CRIME NO. 751 OF2018. EXHIBIT P9 TRUE COPY OF THE FIRST INFORMATION REPORT IN CRIME NO. 765 OF 2018 OF CANTONMENT POLICE STATION. EXHIBIT P10 TRUE COPY OF THE INTERIM ORDER DATED 21.02.2017 IN WP(CRL) NO.482/2016 ON** **WP(Crl.) No.113 OF 2019** **20** **THE FILE OF HIGH COURT OF KERALA. EXHIBIT P11 TRUE COPY OF THE JUDGMENT DATED 03.07.2018 IN WP(CRL) NO.482/2016 ON THE FILE OF HIGH COURT OF KERALA. EXHIBIT P12 TRUE COPY OF THE PREVENTIVE DETENTION ORDER DATED 16.4.2016 PASSED BY THE 2ND RESPONDENT.**