Jijin K.V v. The State of Kerala & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** ## **&** **THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN WEDNESDAY, THE 6[TH] DAY OF DECEMBER 2023 / 15TH AGRAHAYANA, 1945** ## **WP(CRL.) NO. 1017 OF 2023** ## **PETITIONER/S:** JIJIN K.V AGED 35 YEARS S/O LATE VARGHESE KATTALAN HOUSE, VARANTHARAPPILLY POUND DESOM VARANTHARAPPILLY VILLAGE, VELUPADAM P.O THRISSUR-, PIN - 680303 BY ADVS. RENJITH B.MARAR LAKSHMI.N.KAIMAL ARUN POOMULLI PREETHA S CHANDRAN ABHIJITH SREEKUMAR ANAND REMESH ABHIRAM.S. S.R.SREEJITH ## **RESPONDENT/S:** 1 THE STATE OF KERALA REPRESENTED BY HOME SECRETARY,DEPARTMENT OF HOME AFFAIRS SECRETARIAT, TRIVANDRUM, PIN - 695001 2 DISTRICT MAGISTRATE AND DISTRICT COLLECTOR CIVIL STATION,AYYANTHOLE, THRISSUR, PIN - 680003 3 DISTRICT POLICE CHIEF(RURAL) KATTUNGACHIRA, IRANJALAKUDA NORTH, PORATHISSERY, KERALA, PIN - 680125 4 STATION HOUSE OFFICER WP(Crl.) No.1017/2023 ..2.. VARANTHARAPPILLY POLICE STATION VARANTHARAPPILLY P.O THRISSUR RURAL KERALA, PIN - 680303 BY ADVS. ADVOCATE GENERAL OFFICE KERALA ADDL.DIRECTOR GENERAL OF PROSECUTION(AG-11) ADDL. STATE PUBLIC PROSECUTOR(AG-28) SRI.K.A.ANAS, PP THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION ON 06.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(Crl.) No.1017/2023 ..3.. ## **JUDGMENT** ## SHOBA ANNAMMA EAPEN, J. The brother of the _detenu_ has approached this Court challenging the order of detention issued under the Kerala Anti-Social Activities Prevention Act, 2007 [hereinafter referred to as, “the KAA(P)A”]. 2. Ext.P1 order of detention was passed on 16.06.2023, which was confirmed on 24.08.2023 as per Ext.P3. The following four cases were considered for initiating preventive detention; |Sl.<br>No.|Police Station|Crime No. &<br>Section|Date of<br>Occurrence|Court No. &<br>Court<br>Name/Present<br>Stage| |---|---|---|---|---| |1|Varantharappilly|545/2017<br>u/s.341,<br>452, 506,<br>427 & 294(b)<br>IPC|16/09/17|CC 2210/2017<br>of<br>JFCM,<br>Irinjalakkuda| |2|Varantharappilly|37/2019<br>u/s.341,<br>323, 324,<br>294(b),<br>506(ii),|20/01/19|SC 91/2020 of<br>Prl.Asst.<br>Sessions| WP(Crl.) No.1017/2023 ..4.. |||308 & 427<br>r/w 34 IPC||Court,<br>Irinjalakkuda| |---|---|---|---|---| |3|Varantharappilly|478/2019<br>u/s.341,<br>323, 324,<br>354, 427,<br>452,<br>294(b),<br>506(i) &<br>308 r/w 34<br>IPC|14/11/19|SC 856/2021<br>of Prl. Asst.<br>Sessions<br>Court,<br>Irinjalakkuda| |4|Varantharappilly|219/2023<br>u/s.342,<br>323, 324,<br>308, 365,<br>427,<br>506(II) r/w<br>34 IPC &<br>Sec.84 of<br>JJ Act|09/04/23|CP 45/2023 of<br>JFCM,<br>Irinjalakkuda| The last prejudicial activity as per the case details was on 09.04.2023. The preliminary report to initiate preventive action under Section 3(1) of the KAA(P)A is dated 11.05.2023. On the basis of the preliminary report, Ext.P1 detention order was issued on 16.06.2023 by the District Magistrate, Thrissur, and the _detenu_ was arrested on 21.06.2023. The confirmation order was issued WP(Crl.) No.1017/2023 **==> picture [31 x 8] intentionally omitted <==** by the Government of Kerala on 24.08.2023. 3. The learned counsel for the petitioner submitted that the detaining authority has not considered the bail order granted to the _detenu_ in the last crime registered against him and has not applied its mind on the crucial aspect as to whether the bail conditions imposed on him are sufficient to deter the _detenu_ from committing further prejudicial activities. According to the learned counsel for the petitioner, no subjective satisfaction has been arrived at, by the authorized officers before passing the detention order. It was further submitted that the authorized authorities had filed a report to cancel the bail granted to the _detenu_ in Crime No.478/2019 of Varantharappilly Police Station and while the same was pending consideration, the order of detention was passed. The learned counsel pointed out that the last prejudicial activity referred to in the detention order was WP(Crl.) No.1017/2023 **==> picture [31 x 8] intentionally omitted <==** on 09.04.2023 and the date of detention order is 16.06.2023, however, the period of delay between the date of last prejudicial activity and the date of detention order has not been explained satisfactorily; and there is no live link with all those crimes committed in the past and the grounds of detention alleged by the detaining authority. 4. The learned Public Prosecutor filed a counter affidavit, contending that the _detenu_ was continuously involved in criminal cases and preventive measures under Cr.P.C. were inappropriate to prevent him from criminal activities and hence, a preliminary report to initiate preventive action under Section 3(1) of the KAA(P)A against the _detenu_ was submitted by the sponsoring authority to the District Magistrate, Thrissur on 11.05.2023. Further, on 15.06.2023, one more report was submitted to the District Magistrate, Irinjalakkuda, explaining WP(Crl.) No.1017/2023 **==> picture [31 x 8] intentionally omitted <==** the release of the _detenu_ on bail in Crime No.219/2023 of Varantharappilly Police Station on 14.06.2023. It is further contended that the _detenu_ had been involved in 15 criminal cases since 2011, out of which, seven are under trial and only four are considered for initiating preventive action under the KAAPA and that, he is a hard core criminal involved in heinous offences; and on violation of bail conditions in Crime No.478/2019 by involving in Crime No.219/2023, a bail cancellation report against the _detenu_ was submitted before the Prl.Asst.Sessions Court, Irinjalakkuda. According to the learned Public Prosecutor, it was considering the criminal antecedents of the _detenu_ and on objective and subjective satisfaction of the detaining authority, the detention order has been passed with proper application of mind, which was approved and confirmed by the Government by orders dated WP(Crl.) No.1017/2023 **==> picture [31 x 8] intentionally omitted <==** 05.07.2023 and 24.08.2023 respectively. It is pointed out that the _detenu_ was always involved in crimes while on bail and hence, in order to ensure public peace and tranquility and to prevent his unlawful and public threat causing activities, the detention order was issued in good faith. 5. Heard the learned counsel for the petitioner and the learned Public Prosecutor. 6. In cases under KAA(P)A, preventive detention is not punitive, but, is only a precautionary measure. The object of preventive detention is not to punish a man for having done something, but, to intercept him before he does it and to prevent him from doing it. Justification for such detention is suspicion or reasonable probability and not the criminal conviction, which can only be warranted by legal evidence. In the present case, on verification of reports, it is seen that the _detenu_ had been WP(Crl.) No.1017/2023 **==> picture [31 x 8] intentionally omitted <==** involved in several cases from 2011 onwards, out of which only four cases were considered for initiating preventive action under KAA(P)A. Records further reveal that the _detenu_ had been continuously involved in heinous offences and was causing serious threat to the society by indulging in criminal and anti-social activities. On a perusal of Ext.P1 detention order, it is seen that the authorities have considered the issue in detail and had reasons to believe that the _detenu,_ if released from judicial custody, would endanger the public causing threat to the life of the people by indulging in criminal activities. The _detenu_ has already undergone detention from 21.06.2023 and the detention is for a period six months. 7. According to the learned counsel for the petitioner, sufficiency of bail conditions in the last crime has not been discussed in the detention order properly; and it was without WP(Crl.) No.1017/2023 **==> picture [37 x 8] intentionally omitted <==** considering the bail conditions, the order of detention was passed. It appears that the bail condition in Crime No.478/2019 that he shall not commit any offence while on bail was violated by the _detenu_ by involving in Crime No.219/2023. While passing the detention order, the authorities have considered the bail conditions imposed by the court and have clearly arrived at the subjective satisfaction that the _detenu_ is likely to indulge in further crimes. 8. Learned counsel for the petitioner relied on the decisions in **Sreeja Jayaprakash** v. **District Collector/District Magistrate & Others** [2019 KHC 2814], **Jancy Joseph** v. **State of Kerala** [2022 (5) KLT OnLine 1247], **Nuzhat Perween** v. **State of Allahabad** [2020 SCC OnLine All 942], **Ameena Begum** v. **State of Telangana & Others** [2023 SCC Online (SC) 1106] in support of his contentions. No doubt, there has to be a live link between the prejudicial activity and the WP(Crl.) No.1017/2023 **==> picture [37 x 8] intentionally omitted <==** decision of the competent authority. Here, the last prejudicial activity was on 09.04.2023 and the detention order was passed on 16.06.2023. The authorities have satisfactorily explained the delay in the order with due application of mind. We are unable to accept the argument that the order is vitiated for want of due application of mind on the aspect of live link to be maintained between the prejudicial activity and the detention order passed by the authorities concerned. The _detenu_ had obtained bail in the crimes registered against him and thereafter, committed further crimes, which itself shows that the bail conditions are not sufficient to prevent his activities. The detaining authority has passed the detention order after considering the criminal antecedents of the _detenu_ and on subjective and objective satisfaction of the detaining authority. Hence, it cannot be said that Exts.P1 and P3 orders are illegal, WP(Crl.) No.1017/2023 **==> picture [37 x 8] intentionally omitted <==** warranting interference. Therefore, the challenge against Exts.P1 and P3 fails; and the WP(Crl.) stands dismissed accordingly. **Sd/-** **A. MUHAMED MUSTAQUE** **JUDGE** **Sd/-** **SHOBA ANNAMMA EAPEN JUDGE** bka/- WP(Crl.) No.1017/2023 ..13.. ## **APPENDIX OF WP(CRL.) 1017/2023** PETITIONER EXHIBITS Exhibit P1 A TRUE COPY OF THE ORDER NO DCTSR/5444/2023-C1 DATED 16.06.2023 PASSED BY THE DISTRICT MAGISTRATE THRISSUR Exhibit P2 TRUE COPY OF THE REPRESENTATION FOR DETENUE DATED 26.06.2023 BEFORE THE ADVISORY BOARD KAAPA SUBMITTED BY THE PETITIONER Exhibit P3 A TRUE COPY OF THE ORDER NO G.O. (RT)NO.2412/2023/HOME DATED 24.08.2023 PASSED BY THE 1ST RESPONDENT