Lekha v. State of Kerala & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** # **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR.JUSTICE ASHOK MENON** **WEDNESDAY, THE 17TH DAY OF OCTOBER 2018 / 25TH ASWINA, 1940 WP(Crl.).No.151 of 2018** ## **PETITIONER:** **LEKHA, AGED 30 YEARS, W/O VINOD, T.C.56/1764, KULATHARA VEEDU, THALIYAL, NEDUMCAUD, MANACAUD VILLAGE, THIRUVANANTHAPURAM DISTRICT.** **BY ADVS. SRI.C.RAJENDRAN SRI.B.K.GOPALAKRISHNAN** ## **RESPONDENTS:** - **1 STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT OF KERALA, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695001.** - **2 DISTRICT MAGISTRATE, THIRUVANANTHAPURAM DISTRICT - 695001.** - **3 DEPUTY POLICE COMMISSIONER, THIRUVANANTHAPURAM CITY, THIRUVANANTHAPURAM DISTRICT - 695001.** - **4 SUB INSPECTOR OF POLICE, FORT POLICE STATION, THIRUVANANTHAPURAM DISTRICT -695023.** - **5 THE SUPERINTENDENT, CENTRAL PRISON, VIYYUR-680010.** - **6 THE SUPERINTENDENT, CENTRAL PRISON, THIRUVANANTHAPURAM-695001.** ## **BY ADVS.** **ADDL.DIRECTOR GENERAL OF PROSECUTION SRI.SURESH BABU THOMAS GOVERNMENT PLEADER SRI.K.A.ANAS.** **THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 17.10.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(Crl.) No.151 of 2018 - 2 -** ## **JUDGMENT** **Vinod Chandran, J.** **The wife of the detenu is before this Court challenging the order of detention passed by the District Magistrate, Thiruvananthapuram, produced as Exhibit P1. The detention is for a period of one year, being a subsequent order made under Section 12 of the Kerala Anti-Social Activities (Prevention) Act, 2007 [for brevity "KAA(P)A"].** **2. The learned Counsel for the petitioner submits that the detenu was first placed under preventive detention by order dated 02.10.2014 for a period of six months. Later, a subsequent order was passed under Section 12 of the KAA(P)A, ordering detention for a period of one year. The detenu was arrested on 03.03.2016 and was kept in custody, which had to be continued as per the order till 02.03.2017. However, by Exhibit P21 a Division Bench of this Court set aside the order of detention. The detenu was released pursuant to such judgment of this Court dated 12.08.2016.** **3. The first contention raised by the petitioner is that when Exhibit P21 set aside the detention order, there can be no subsequent order passed under Section 12. It is the contention that Exhibit P21 having quashed the earlier order, the said order is deemed to have been never in existence and** **- 3 -** **WP(Crl.) No.151 of 2018** **there could be no subsequent order passed detaining the detenu for one year as provided under Section 12. Immediately we pointed out to the learned Counsel that there is a prior order dated 02.10.2014, by which the detenu was placed under suspension for a period of six months under which the detenu had also suffered detention. The learned Counsel then argued that the first order was never relied on by the detaining authority and the copy was also not served.** **4. The further argument of the learned Counsel is that the crimes which led to the second detention could not have been taken note of by the authority to pass the subsequent order when the second order was quashed by this Court. It is then argued that Exhibit P1 order itself shows that the detenu was under judicial custody for reason of an order dated 13.09.2017 cancelling the bail granted in Crime No.1017/2017. There was, hence, no cause for detention of the detenu. It is also argued that in Crime No.245/2017, the Additional Sessions Court-I, Thiruvananthapuram had granted bail on conditions, as evidenced from Exhibit P14 likewise by Exhibit P18 order, bail was granted in Crime No. 417 of 2017. There was a specific condition in both the said bail orders, directing the detenu not to involve in any offences during the bail period. If at all any such offence was committed,** **WP(Crl.) No.151 of 2018 - 4 -** **the police could have moved for cancellation of the bail, is the contention. There need not have been a preventive detention ordered which is on a mere subjective satisfaction. The learned Counsel would place reliance on** _**Reshma Raj**_ **v.** _**State of Kerala & Others**_ **[** _**2014 KHC 3304**_ **] to advance the aforesaid contention.** **5. Another contention of the learned Counsel for the petitioner is that there was considerable delay in passing the detention order from the last prejudicial act, which breaks the live-link between the last prejudicial act and the detention order.** **6. The learned Government Pleader would point out that all the crimes enumerated in the order, from 1 to 9, were not relied on to pass the present order. The crime numbers were noticed only to indicate that the detenu was continuing as a “known-rowdy” as defined under Section 2(p) of the KAA(P)A prior to the first detention order and thereafter till the present detention order was made. The learned Government Pleader would rely on the decision in** _**Radhika**_ **v.** _**State of Kerala**_ **[** _**2015 (2) KHC 183**_ **] to contend that the mere setting aside of an earlier detention order would not efface prior prejudicial acts of the detenu. The Full Bench of this Court had categorically held that despite an** **WP(Crl.) No.151 of 2018 - 5 -** **earlier order having been set aside by this Court, prejudicial acts which were taken note of to pass that order could be counted again to impose another order of detention.** **7. We have meticulously gone through the order passed at Exhibit P1, which indicates almost nine crimes in which the detenu was involved. The definition of “known-rowdy” as contained in Section 2(p) of KAA(P)A, among others, require three separate instances of commission of an offence as mentioned in Section 2(t), not forming part of the same transaction in the immediately prior seven years. As was argued by the learned Government Pleader, the crimes noticed as items 1 and 2 were of the year 2012 and items 3 and 4 were respectively in the years 2013 and 2014. These were crimes which resulted in the first detention order passed on 02.10.2014. Item No.5 is Crime No.1631/2015 which led to the second detention order, which was quashed by Exhibit P21 judgment of this Court, on technical grounds of copies of documents supplied and relied upon in the grounds of detention not being readable. On technical grounds or otherwise when the order has been set aside, it is deemed to have been never in existence. But, however, the order passed now under Section 12, making it a subsequent detention order, is an order subsequent to the first order passed on** **WP(Crl.) No.151 of 2018 - 6 -** **02.10.2014. Hence, the setting aside of the second order dated 25.02.2016 does not at all matter in law.** **8. Finding so, we have to look at the next contention raised as to the first order not being relied upon. Exhibit P1 clearly indicates the first order dated 02.10.2014 as also the second one dated 25.02.2016. It is based on these two orders that the subsequent proceedings were taken. The learned Government Pleader has also produced before us the files indicating the documents supplied and the acknowledgement taken from the detenu. The records show service of the first order and the second order on the detenu, which he has acknowledged by putting his signature. A further contention was taken by the learned Counsel for the petitioner that the detenu was not informed of his right to make representation against the detention order before the Government and the Advisory Board. The learned Government Pleader hence produced, from the records, the communications issued in writing to the detenu at the time of his arrest; by the Sub Inspector and then at the time of detention in the prison; by the Superintendent of Prisons. The Sub Inspector has informed him that he could make a representation before the Government and the Advisory Board, which, the learned Counsel argues, is not sufficient since it has not been** **WP(Crl.) No.151 of 2018 - 7 -** **communicated as a definite right available to the detenu. However, we see from the communication issued by the Superintendent of Prisons that there was emphasis laid on the right available to the detenu to make a representation before the Government and the Advisory Board. We, hence, reject both the above contentions.** **9. Now we come to the argument of the petitioner with reference to Exhibits P14 and P18 bail orders and the option available to have requested for cancellation of the bail; if there was any further offence committed by the detenu. In the captioned orders, there was bail granted releasing the detenu on condition of his not involving in any offence while on bail. Obviously this did not deter him from committing further crimes as is evident from the series of offences; for commission of which the detenu was booked and charged. In** _**Reshma Raj**_ **(** _**supra**_ **), despite the order passed on 16.01.2014, the detaining authority passed the detention order on 27.01.2014, on the assumption that the detenu was still in judicial custody, even on the date of pronouncement of the order. The Division Bench found that this indicates that the detaining authority was totally unaware of Exhibit P20 order and did not consider the implications of the conditions imposed by the Court while releasing the detenu on** **- 8 -** **WP(Crl.) No.151 of 2018** **bail. The finding was that the detaining authority ought to have considered whether the conditions imposed by the Court were sufficient to prevent him from continuing the antisocial activities. We opine that there can be no such nonapplication found in the present case to vitiate the order passed.** **10. In this context, we have to notice the crimes registered against the detenu, which formed the basis of the order at Exhibit P1. Crime No.245/2017 was one registered on 16.02.2017 at Poojappura Police Station in Thiruvananthapuram. Crime No.472/2017 was one registered on 16.04.2017 before the Chavakkad Police Station. Crime Nos.625/2017 and 1017/2017, registered based respectively on a complaint dated 19.04.2017 and on the incident occurred on 07.07.2017, were both at Karamana Police Station. Exhibit P14 was passed on 30.03.2017 in Crime No. 245 of 2017 and Exhibit P18 bail order was passed on 20.06.2017 in Crime No.472/2017. It is after Exhibit P14 that Crime No. 472 of 2017 was registered on 16.04.2017; in which bail was granted by Exhibit P18. Again a further crime was committed on 07.07.2017, in which Crime No.1017/2017 was registered.** **11. The detaining authority has considered all the documents placed before it. The detaining authority has found** **WP(Crl.) No.151 of 2018 - 9 -** **that the detenu even on being released by the jurisdictional Criminal Court on bail, had been continuing with the illegal activities day-in and day-out, threatening and causing injuries to the general public, armed with weapons and being a member of a group of thugs. The charges levelled against the detenu also included demands for money from shop owners and threats levelled against construction activities carried on in the area. The bail orders were also specifically referred to and it was found that despite such conditions being imposed, the anti-social activities of the detenu continued unabated.** **12. The contention of the learned Counsel appearing** **for the petitioner is that the condition in Exhibit P18 did not come up for consideration before the detaining authority and it was never considered as to whether the option available to the police to apply for cancellation of bail granted could be a reasonable measure, which could also prevent the detenu committing further offences. The learned Government Pleader has pointed out that the said issue has been specifically considered by the detaining authority. It is submitted that after Exhibit P18 bail granted in Crime No.472/2017, the detenu had committed offences, against which Crime No.1017/2017 was registered pursuant to an incident** **WP(Crl.) No.151 of 2018 - 10 -** **that happened on 07.07.2017. In fact, after the commission of the said offence, the police had, with due diligence, moved the jurisdictional Magistrate for cancellation of bail granted in the offence subsequent to Crime No.472/2017, i.e., Crime No.625/2017. In Crime No.625/2017, statutory bail was granted to the detenu and on application filed for cancellation, the Judicial Magistrate of First Class-I, Thiruvananthapuram cancelled the bail by order dated 28.07.2017. The detenu was arrested on 03.08.2017 and further bail was granted on 13.09.2017. The entire facts were placed before the detaining authority along with the copies of the bail orders. The said documents were also served on the detenu. We also find from Exhibit P1 order that the detaining authority had specifically noticed the proposal of the sponsoring authority, which mentioned the detenu having been released on bail on 13.09.2017. It was also specifically reported that it is very difficult to restrain the proposed detenu from committing further crimes against the general public and society. The detaining authority, on a consideration of the same, has specifically stated that though in the last cases stringent conditions were made for granting bail, even then the detenu had continued his offensive streak against the public, resulting** **WP(Crl.) No.151 of 2018 - 11 -** **in registration of further crimes.** **13. We see from the records, the order dated** **28.07.2017 of Judicial First Class Magistrate-I, Thiruvananthapuram cancelling the bail on grounds also of the detenu having not even reported before the Investigating Officer, as had been directed in the order granting bail. The further commission of an offence, against which Crime No.1017/2017 was registered, was also specifically noticed in the bail order. It is on a consideration of these aspects that the detaining authority passed the impugned order. Before the operative portion of the order, there is a slight confusion insofar as the detaining authority having noticed the cancellation of bail as on 13.09.2017. This is just a mistake occurred in the language used, by the authority, due to lack of familiarity to the vernacular, which we do not think can lead to the release of the detenu. The facts are fairly clear and the repeated crimes in which the detenu was involved justify the action of preventive detention.** **14. On the aspect of delay, we notice that the last crime was on 07.07.2017, on arrest in which, the detenu was under judicial custody. Subsequently he was granted bail on 28.07.2017 and immediately thereafter the police moved for cancellation of bail in Crime No.625/2017. He was arrested on** **WP(Crl.) No.151 of 2018 - 12 -** **03.08.2017 and then released on 13.09.2017. On 28.09.2017 the sponsoring authority had requested for detaining the said person in custody under the KAA(P)A. The detention order was passed on 13.10.2017 by Exhibit P1. We do not see any delay having been occasioned and the live-link between the commission of the last offence and the requirement for detention to ensure public safety had not been broken at all; which action was initiated and completed immediately on the detenu's release on bail, by the jurisdictional court.** **In the light of the above findings, the writ petition would stand dismissed. No order as to costs.** **Sd/-** **K.VINOD CHANDRAN** ## **JUDGE** **Sd/-** **ASHOK MENON** **JUDGE** **WP(Crl.) No.151 of 2018 - 13 -** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1: A TRUE PHOTOCOPY OF THE DETENTION ORDER SERVED WITH THE DETENU DATED 13/10/2017 EXHIBIT P2: THE GROUNDS OF THE DETENTION SERVED WITH THE DETENU EXHIBIT P3: A TRUE PHOTOCOPY OF THE REPORT OF THE 3RD RESPONDENT DATED 28/9/17 EXHIBIT P4: A TRUE PHOTOCOPY OF THE ADDITIONAL REPORT OF THE 3RD RESPONDENT DATED 11/10/17 EXHIBIT P5: A TRUE PHOTOCOPY OF THE F.I.R.IN CRIME NO.923/2012 OF KARAMANA POLICE STATION EXHIBIT P6: A TRUE PHOTOCOPY OF THE FIS GIVEN BY THE ASI EXHIBIT P7: A TRUE PHOTOCOPY OF THE FIR IN CRIME NO.1678/2013 EXHIBIT P8: A TRUE PHOTOCOPY OF THE FIR IN CRIME NO.1177/2014 EXHIBIT P9: A TRUE PHOTOCOPY OF THE FIS GIVEN TO THE DETENU EXHIBIT P10: A TRUE PHOTOCOPY OF THE REPORT EXHIBIT P11: A TRUE PHOTOCOPY OF THE FIR IN CRIME NO.1631/2015 EXHIBIT P12: A TRUE PHOTOCOPY OF THE FIS IN CRIME NO.1631/2017 EXHIBIT P13: A TRUE PHOTOCOPY OF HE FIR IN CRIME NO.245/2016 EXHIBIT P14: A TRUE PHOTOCOPY OF THE BAIL ORDER IN CRIMINAL MC NO.593/2017 BEFORE THE ADDITIONAL SESSIONS JUDGE-1, THIRUVANANTHAPURAM DATED 30-3-2017 EXHIBIT P15: THE DETENU WAS GIVEN A COPY OF THE FINAL REPORT IN CRIME NO.245/2017 OF MUSEUM POLICE STATION. EXHIBIT P16: A TRUE PHOTOCOPY OF THE FIR IN CRIME** **WP(Crl.) No.151 of 2018 - 14 -** ## **NO.472/2017** **EXHIBIT P17: A TRUE PHOTOCOPY OF THE FIS IN CRIME NO.472/2017** **EXHIBIT P18: A TRUE PHOTOCOPY OF THE BAIL ORDER DATED 20/6/2017 IN CRL.MC 1082/2017 SESSIONS COURT, THRISSUR** **EXHIBIT P19: A TRUE PHOTOCOPY OF THE FIR IN CRIME NO.625/2017** **EXHIBIT P20; A TRUE PHOTOCOPY OF THE FIR IN CRIE NO.1017/2017** **EXHIBIT P21: A TRUE PHOTCOPY OF THE JUDGMENT IN WPCR 220/2016 OF THIS HONORABLE COURT DATED 12/8/2016** **EXHIBIT P22: A TRUE PHOTOCOPY OF THE APPROVAL ORDER DATED 29/11/2017 EXHIBIT P23: A TRUE PHOTOCOPY OF THE REPRESENTATION EXHIBIT P24: A TRUE PHOTOCOPY OF THE ORDER DATED 15/2/2018** **RESPONDENT'S/S EXHIBITS: EXHIBIT R1 A TRUE COPY OF THE CONFIRMATION ORDER NO. G.O(RT)NO.1385/216/HOME DATED 21/4/2016 EXHIBIT R1 B TRUE COPY OF THE ACKNOWLEDGED COPY EXHIBIT R1 C TRUE COPY OF THE NOTIFICATION AS PER S.R.O. NO.139/2017 PUBLISHED IN EXTRA-ORDINARY GAZETTE NO.517 DATED 18/3/2017** ## **Vku/-** ## **[ true copy ]**