Lissy Anto v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR** ## **&** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** **THURSDAY, THE 7TH DAY OF NOVEMBER 2019/16TH KARTHIKA, 1941** **WP(Crl.).No.348 OF 2019** ## **PETITIONER/S:** **LISSY ANTO, AGED 48 YEARS, S/O ANTO, KIZHAKKEMATTUMMAL HOUSE, NEAR ST.XAVIER'S CHURCH, WADAKKANCHERY, THRISSUR-680582.** **BY ADVS. SRI.C.A.CHACKO SMT.C.M.CHARISMA SMT.DEVI M.G.** ## **RESPONDENT/S:** - **1 STATE OF KERALA, REPRESENTED BY SECRETARY, HOME DEPARTMENT, SECRETARIAT,THIRUVANANTHAPURAM-695001.** - **2 THE ADDITIONAL CHIEF SECRETARY TO GOVERNMENT, HOME(SSA) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695001.** - **3 THE DISTRICT COLLECTOR AND DISTRICT MAGISTRATE, THRISSUR, CIVIL STATION, AYYANTHOLE, THRISSUR-680003.** - **4 THE SECRETARY, ADVISORY BOARD, KERALA ANTI SOCIAL ACTIVITIES (PREVENTION) ACT, PADOM ROAD, ELAMAKKARA, ERNAKULAM, KOCHI - 682026** - **5 THE DISTRICT POLICE CHIEF(CITY), THRISSUR, PIN-680003. R1-4 BY ADDL.DIRECTOR GENERAL OF PROSECUTION** ## **OTHER PRESENT:** **PP- SRI K.A ANAS.** **THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 07.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(Crl.).No.348 OF 2019 ..2.. ## **JUDGMENT** ## C.T. Ravikumar, J. This Habeas Corpus Writ Petition seeking quashment of Ext.P1 order of detention passed against one Arun @ Kadu and Ext.P5 order whereby it was confirmed, is filed by his mother. The facts in brief involved in the case are as follows:- The detenu had involved in seven cases committed within the previous seven years from 14.11.2018, the date of Ext.P1. Earlier, the Sponsoring Authority proposed for his preventive detention and upon perusal of the report and connected records and on arriving at objective satisfaction to classify the aforsaid Arun @ Kadu as a 'Known Rowdy' under Section 2(p)(iii) of the Kerala Anti-social Activities (Prevention) Act (for short, WP(Crl.).No.348 OF 2019 **==> picture [20 x 8] intentionally omitted <==** “KAA(P)A”) and on forming the subjective satisfaction that it is necessary to detain him immediately for preventing from committing further anti-social activities, for public safety, security and peace, he was ordered to be detained preventively for six months by the 3[rd] respondent as per order dated 23.02.2017. Later, it was confirmed by the Government vide G.O.(Rt) No.1083/2017 Home dated 28.04.2017. Accordingly, on its execution he was detained from 15.03.2017 till 14.09.2017. After the expiry of the period of detention, he was released. Again he had involved in antisocial activities, which culminated in registration of two more crimes, viz., Crime No.378/2018 of Nedupuzha Police Station registered under Sections 447, 427, 506(ii) r/w Section 34 of the IPC and Section 27 of the Arms Act; and Crime No.278/2018 of Mannuthy Police Station registered under Sections 143, 147, 148, 323, WP(Crl.).No.348 OF 2019 ..4.. 324 & 307 r/w Section 149 of the IPC. Based on the report of the 5[th] respondent and upon arriving at objective satisfaction as well as subjective satisfaction, Ext.P1 order of detention was passed against the aforesaid Arun @ Kadu under Section 3(1) r/w Section 13(2)(i) of KAA(P)A on 14.11.2018. The detenu was ordered to be detained for a period of one year. Ext.P1 order was executed on 15.11.2018. As stated hereinbefore, the said order was ultimately confirmed as per Ext.P5 order dated - 11.01.2019. It is in the said circumstances that this WP(Crl) has been filed. 2. Heard the learned counsel for the petitioner and the learned Public Prosecutor. 3. The contention of the petitioner is that Ext.P1 order of detention and Ext.P5 order of its confirmation, for detaining the detenu Arun @ Kadu for one year, are highly illegal, improper and arbitrary. The main ground of WP(Crl.).No.348 OF 2019 **==> picture [20 x 8] intentionally omitted <==** challenge against Ext.P1 is that it was passed without application of mind. The foundation of such a contention is that the _de-facto_ complainant has filed an affidavit in Crime No.278/2018 of Mannuthy Police Station to the effect that there was no occurrence as alleged and the said fact was not taken into consideration by the detaining authority. It is also pointed out that the petitioner's son moved an application for anticipatory bail in the said crime and it was allowed by Ext.P3 order, imposing certain conditions. One of the conditions therein was that he should report before the investigating officer in that crime on every Saturday between 9 am and 11 am for a period of two months or till the final report is filed. In respect of another crime, viz., Crime No.378/2018 of Nedupuzha Police Station, the detenu, Arun @ Kadu, was arrested on 08.06.2018 and thereafter, he was enlarged on WP(Crl.).No.348 OF 2019 ..6.. bail as per Ext.P4, on 07.08.2018 and was released on 10.08.2018. According to the petitioner, these aspects were not given serious consideration by the detaining authority while forming the subjective consideration. The crucial question whether the bail conditions are sufficient to prevent the detenu from continuing to indulge in antisocial activities was not considered by the detaining authority. It is also the contention of the petitioner that the live link between the last prejudicial activity and the order of detention is snapped due to unexplained delay. Respondent Nos 2 and 5 have filed separate counter affidavits. They refuted the contentions of the petitioner and contented that Ext.P1 order is an outcome of appropriate consideration and consequential formation of objective and subjective satisfactions. It is specifically contended that the allegation of WP(Crl.).No.348 OF 2019 **==> picture [20 x 8] intentionally omitted <==** non-consideration of bail conditions is bereft of basis. 4. We fill firstly consider whether the order for detention for one year from the date of detention can be said to be illegal if Exts.P1 and P5 are sustained in view of the fact that earlier the petitioner's son, Arun @ Kadu, had undergone detention for a period of six months pursuant to an order under Section 3(1) of KAA(P)A from 15.03.2017 to 14.09.2017. Going by Section 12, in respect of any person who suffered first detention under KAA(P)A, on any subsequent detention, he could be detained for a period which may extend up to a maximum of one year. Ext.P1, admittedly, is a subsequent detention order as relates the detenu. As per Ext.P1, the petitioner's son was ordered to be detained for one year. If we are sustaining Ext.P1 order, in the light of the decision of a Division Bench of this Court in **Kumaran** v. WP(Crl.).No.348 OF 2019 ..8.. ## **District Collector and District Magistrate** **Kozhikode and Others** reported in [2015 (4) KLT 911] there is no scope for reducing the period of detention. It was held therein that the High Court while exercising its jurisdiction under Article 226 of the Constitution would not be entitled to reduce period of detention fixed by Government. Here, Ext.P1 was confirmed by Government as per Ext.P5. Ext.P1 order was issued invoking the power under Section 3(1) r/w Section 13(2)(i) of KAA(P)A. We have noted that yet another grievance of the petitioner against Ext.P1 order is that the conditions contained in Exts.P3 and P4 bail orders were not taken into account while passing the same. Ext.P1 itself would belie the said contention. A perusal of Ext.P1 order would reveal that the factum of grant of bail to the detenu in Crime No.278/2018 of Mannuthy Police Station and in Crime No.378/2018 WP(Crl.).No.348 OF 2019 **==> picture [20 x 8] intentionally omitted <==** Nedupuzha Police Station was taken into consideration by the 3[rd] respondent while passing Ext.P1. As relates the contention of non-consideration of conditions in Ext.P3 bail order dated 02.06.2018, it is to be noted that the 3[rd] respondent has taken into consideration the fact that the said bail order granted in favour of the detenu was subsequently, cancelled on 12.09.2018 for non-compliance with the condition imposed thereunder. The petitioner herself would admit the fact that Ext.P3 was subsequently cancelled as per order dated 12.09.2018 in Crl.M.P.No.3020/2018 by Sessions Court, Thrissur. It is stated in Ext.P1 that subsequently the detenu, Sri.Arun @ Kadu, went in perdue and therefore, could not be arrested. Ext.P1 order would reveal that the fact that the detenu, Sri.Arun @ Kadu, was enlarged on bail in Crime No.378/2018 of Nedupuzha Police Station on WP(Crl.).No.348 OF 2019 **==> picture [26 x 8] intentionally omitted <==** 07.08.2018 by the Judicial First Class Magistrate-II as per Ext.P4 order was taken into account by the 3[rd] respondent. Ext.P4 order dated 07.08.2018 would reveal that the only condition imposed thereunder was as follows:- “Accused shall execute bond for Rs.50,000/each with two solvent sureties each for like sum.” Thus, it is obvious that no condition whatsoever which would be sufficient to prevent the detenu from indulging in anti-social activities was imposed thereunder. In fact, the petitioner also did not have any such specific case. In view of the contentions raised, it is relevant to refer to paragraph 19 of the decision in **Shajitha Suneer** v. **State of Kerala & Others** [2019 (3) KHC 453] and it reads thus:- “In the judgment in K.Vasadharaj v. State of T.N. & Another ( _supra_ ), the Apex Court observed that placing of bail application and bail order is not mandatory and such WP(Crl.).No.348 OF 2019 ..11.. requirement would depend upon facts of each case. In the judgment in M.Ahamedkutty v. Union of India and Another ( _supra_ ), the Apex Court indicated as to when such documents become relevant. If consideration of a document is likely to impair the subjective satisfaction of detaining authority, the document would be vital. The judgment in M.Ahamedkutty ( _supra_ ) was followed by the Apex Court in P.U.Abdul Rahiman v. Union of India and Others ( _supra_ ). In Pradeep Kumar v. Union of India ( _supra_ ) a Division Bench of this Court held that order of detention without considering vital bail conditions, would vitiate the order”. (Underline supplied) Considering the aforesaid facts with reference to the authorities referred to in paragraph 19 of the decision in **Shajitha Suneer** 's case ( _supra_ ), we do not find any reason to uphold the contentions raised by the petitioner founded on Exts.P3 and P4 since Ext.P4 did not contain any vital bail condition capable of preventing the detenu from indulging in anti-social activities and the very fact of non-compliance with the condition in Ext.P3 and its consequential cancellation was taken into consideration by the detaining authority. WP(Crl.).No.348 OF 2019 **==> picture [26 x 8] intentionally omitted <==** 5. As noticed herein-before, the other grievance of the petitioner is that while passing Ext.P1 order, the affidavit filed in Crime No.278/2018 of Mannuthy Police Station was not taken into account and therefore, there is non-application of mind and it would vitiate the order of detention passed against the detenu, Sri.Arun @ Kadu. To buttress the contention that non-consideration of the said affidavit would vitiate Ext.P1 order, the learned counsel for the petitioner relied on the decision of a Division Bench of this Court in **Shajitha Suneer** 's case _(supra)_ . Evidently, in that case it was held that the most important protective measure against deprivation of personal liberty extended to detenus, is application of mind by detaining authorities before arriving at their subjective satisfaction. In that case, though conditions imposed in certain bail orders were WP(Crl.).No.348 OF 2019 ..13.. taken into consideration, the detaining authority did not consider the sufficiency or otherwise of the conditions in BA No.693/2017 to prevent the detenu from further commission of any crime while passing the order of detention. As a matter of fact, it contained a condition that the accused-detenu shall not involve in any other criminal case. It is in the said circumstances that the failure to take into consideration the conditions of bail was held to be reflective of non-application of mind and on account of non-consideration of the said relevant factor the detention order was held as vitiated. 6. In such circumstances, the question is, whether non-consideration of the affidavit filed in Crime No.278 of 2018 by the _de-facto_ complainant is a relevant factor and whether it would vitiate Ext.P1 order. An order of detention is passed invoking the power under WP(Crl.).No.348 OF 2019 **==> picture [26 x 8] intentionally omitted <==** KAA(P)A to prevent a person from committing anti-social activities. KAA(P)A is enacted to prevent as well as to have effective control over anti-social activities, to protect the community or the public at large free from threat or danger by the unruly behaviour of those persons. (See the decision of a Division Bench in **Joicy** v. **State of Kerala and Others** reported in 2018 (1) KHC 37). 7. In such circumstances and in the light of the authorities referred _supra_ , we will consider whether consideration of the aforesaid affidavit is likely to impair the subjective satisfaction of the detaining authority. Needless to say that if its answer is in the affirmative, the document would be vital. The provision under Section 13(2) of KAA(P)A assumes relevance in this context. It reads thus:- - “The revocation or expiry of a detention WP(Crl.).No.348 OF 2019 ..15.. order 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) at least in 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 anti-social 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.” 8. The scope and object of S.13(2) was considered by a Division Bench of this Court in **Praseetha** - v. **State of Kerala and Others** reported in 2009 (4) KHC 382. This Court held that S.13(2) of KAA(P)A does not confer any new powers or fresh grounds of detention in addition to Section 3 thereof and it only stipulates that powers under Section 3 can be invoked and WP(Crl.).No.348 OF 2019 **==> picture [26 x 8] intentionally omitted <==** exercised even when there is a revocation of earlier order of detention under Section 13 or expiry of the period of detention under an earlier order. Section 13(2)(i) does not dispense with or substitute latter 'subjective satisfaction' required under Section 3, it was further held. 9. What is relevant as regards the facts obtained in this case is that the period of detention under earlier order dated 23.02.2017 had expired and since then, after release, the detenu had involved in two crimes, viz., Crime No. 278/2018 of Mannuthy Police Station and Crime No.378/2018 of Nedupuzha Police Station for offences punishable under Sections 447, 427 and 506(ii) read with 34 of the Indian Penal Code and Section 27 of the Arms Act. The period of detention of Sri.Arun @ Kadu under detention order dated 23.02.2017 was from 15.03.2017 to 14.09.2017. He committed the WP(Crl.).No.348 OF 2019 **==> picture [26 x 8] intentionally omitted <==** offences which led to the registration of Crime Nos.278/2018 of Mannuthy Police Station and 378/2018 of Nedupuzha Police Station respectively on 02.04.2018 and 29.05.2018. Going by Section 13(2)(i), involvement in an offence of the nature described in Section 2(o) or Section 2(p) at least in one instance is sufficient to attract the said Section and to invoke the power thereunder subject to subjective satisfaction required under Section 3 of KAA(P)A. Hence, non-consideration of the aforesaid affidavit filed in Crime No.278/2018 by itself would not and could not invalidate Ext.P1 order. ## 10.In **Prakash Chandra Mehta** v. **Commissioner and** ## **Secretary, Government of Kerala and others** reported in AIR 1986 SC 687, the Hon'ble Supreme Court held that when a detention order had been made on two or more grounds, such order of detention should be deemed to have WP(Crl.).No.348 OF 2019 **==> picture [26 x 8] intentionally omitted <==** been made separately on each ground and taking off one individual ground would not make the detention order bad. In this context, Section 7(4) of KAA(P)A also assumes relevance. It reads thus:- “The order of detention shall not be deemed to be invalid merely because one or more of the facts or circumstances cited among the grounds are vague, non-existent, irrelevant or invalid for any reason whatsoever and such order shall be deemed to have been made by the Government or the Authorised Officer after having been satisfied about the need for detention with reference to the remaining facts and circumstances, provided that the minimum conditions for being classified as a known goonda or known rowdy are satisfied.” 11.At any rate, in the circumstances obtained, the affidavit, as referred to in paragraph 4 of the writ petition and also referred to in Ext.P3 order, could not be held as a vital document as consideration of which was not likely to impair the subjective satisfaction of the 3[rd] respondent, the detaining authority. 12.Shortly stated, it cannot be said that Exts.P1 and P5 orders are illegal, warranting WP(Crl.).No.348 OF 2019 **==> picture [26 x 8] intentionally omitted <==** interference. The challenge against them must, therefore, fail. In such circumstances, this WP(Crl) has to fail and accordingly, it is dismissed. ## **Sd/-** **S.MANIKUMAR** ## **CHIEF JUSTICE** ## **Sd/-** ## **C.T.RAVIKUMAR** **JUDGE** Bka/07.11.2019 WP(Crl.).No.348 OF 2019 ..20.. ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF ORDER DATED 14/11/2018 OF 3RD RESPONDENT** **EXHIBIT P2** **TRUE COPY OF REPORT DATED 15/10/18 OF 5TH RESPONDENT** **EXHIBIT P3 TRUE COPY OF ORDER DATED 2/6/2018 OF SESSIONS COURT,THRISSUR IN CRL.M.C.NO.628/2018** **EXHIBIT P4 TRUE COPY OF ORDER DATED 7/8/18 IN CRL.M.P.NO.4822/18 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-II,THRISSUR.** **EXHIBIT P5 TRUE COPY OF GO(RT)NO.129/2019/HOME DATED 11/1/2019 ISSUED BY 3RD RESPONDENT.**