M. Babu v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI SATURDAY, THE 30TH JANUARY 2010 / 10TH MAGHA 1931 RP.No. 20 of 2010(S) -------------------AGAINST THE JUDGEMENT/ORDER IN WPCR.446/2009 DATED 17/12/2009 .................... REVIEW PETITIONER : ---------------------- M.BABU, S/O.MATHAVAN PILLAI, AMBALATHIN VILA VEEDU, CHANTHA MUKKU, PEYAD.P.O, THIRUVANANTHAPURAM. BY ADV. SRI.C.RAJENDRAN RESPONDENTS: --------------- 1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY (HOME) DEPARTMENT, GOVT.SECRETARIAT, THIRUVANANTHAPURAM. 2. DISTRICT MAGISTRATE AND DISTRICT COLLECTOR, COLLECTORATE, THIRUVANANTHAPURAM. 3. THE DEPUTY CMMISSIONER OF POLICE, THIRUVANANTHAPURAM. GOVERNMENT PLEADER SRI.P.RAVINDRA BABU THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 30/01/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **R.BASANT & M.C.HARI RANI, JJ.** ## ***************************** ## **R.P No.20 of 2010 in W.P(Crl) No.446 of 2009** ## ********************************** Dated this the 30[th] day of January 2010 ## **JUDGMENT** ## BASANT, J. This revision petition is filed to review our judgment dated 17.12.2009. The learned counsel for the review petitioner raises two specific grounds to justify his prayer for review. They are: i) Even assuming that Exts.P1 and P2 orders can be reckoned as a composite order of detention, Ext.P2 order has not been approved or confirmed under Section 3(3) and 10(4) of the Kerala Anti-social Activities (Prevention) Act, 2007 (hereinafter referred to as the `KAAPA'). The said orders of approval and confirmation refer only to Ext.P1 order and in that view of the matter, the continuation of the detention is not justified. ii) Proceedings under Section 107 Cr.P.C had been initiated against the detenu. There has been no proper application of mind to this circumstance while passing the orders of detention Ext.P1 or Ext.P2. **R.P No.20 of 2010** 2 2. We have heard the learned counsel for the petitioner and the learned Government Pleader. The learned Government Pleader argues that the prayers made are totally beyond the purview of a review petition as these contentions were not raised in the Writ Petition nor were they canvassed when the matter came up for arguments before passing the judgment dated 17.12.2009. We find merit in this contention raised by the learned Government Pleader. We are satisfied that the request made in this review petition are totally beyond the scope of the powers of review. No error apparent on the face of the record is pointed out. The points were not raised. They were not considered also and, in these circumstances, we agree that the powers of review cannot properly be invoked and this review petition cannot be allowed. 3. However, ignoring technicality we have considered the contentions on merits also. In our judgment dated 17.12.2009, we have taken note of the fact that Ext.P1 order dated 19.01.09 was executed only on 28.08.09 and before executing Ext.P1 order, the matter was considered afresh by the detaining authority and Ext.P2 order dated 27.08.09 was passed before the order of detention was executed. We took the view **R.P No.20 of 2010** 3 that Exts.P1 and P2 must be read together and that when so considered, we are satisfied that the delay in executing the order of detention cannot justify the plea of snapping of the nexus. We relied on the observations of the Supreme Court in **Bhawarlal v. State of T.N** [A.I.R 1979 S.C 541] and the Division Bench of this Court in **Assia v. State of Kerala** [2000 (1) KLT 673] to come to a conclusion that proper application of mind had taken place before the order of detention was belatedly executed. Hence we held that the advantage of the decision in **Soja Beegum v. Additional Chief Secretary to Government** [2009 (4) KLT 550] will not be available to the detenu. 4. The counsel argues now for the first time that Ext.P2 order has not been approved or confirmed. The learned counsel has taken us through Annexure-A3 order of approval under Section 3(3) and Ext.R3(b) order of confirmation under Section 10(4) to contend that these orders of approval/confirmation do not refer to Ext.P2. The argument of the learned counsel is that as the detention was under Ext.P1 read along with Ext.P2, approval/confirmation must have been there for Ext.P2 order also. Inasmuch as Ext.P2 order is neither approved nor confirmed under Annexure-A3 and Ext.R3(b), the counsel **R.P No.20 of 2010** 4 contends that the continued detention of the detenu is not justified. 5. We are unable to accept this contention. The order of detention is Ext.P1. In Ext.P2, the detaining authority applied its mind again to the new situation and changed circumstances referred to in Ext.P2 and decided that though belatedly, the order of detention has to be executed. Ext.P2 cannot be reckoned as a different, separate or unconnected order which requires separate approval/confirmation. We repeat that Ext.P1 was the order of detention. It was not executed within a reasonable time. The detaining authority by Ext.P2 considered the matter afresh in the light of the new situation and changed circumstance and decided that the detenu must be detained. Approval/confirmation was given to such detention ordered in Ext.P1. The reasons for the decision to belatedly execute the same was stated in Ext.P2. In these circumstances, the grievance that Annexure-A3 and Ext.R2(b) do not specifically approve/confirm Ext.P2 order under Section 3(3) and Section 10 (4) is found to be without any merit. The counsel attempts to build up a case on the basis of the language of Ext.P2 which suggests that it was an order of detention. We have already **R.P No.20 of 2010** 5 indicated that Exts.P1 and P2 must be reckoned as a composite order and it is the order of detention in Ext.P1 which is ordered to be executed under Ext.P2 notwithstanding the delay, after application of mind to the new situation and changed circumstances. The insistence on a separate approval/confirmation for Ext.P2 order is, in these circumstances, found to be not justified. 6. The learned Government Pleader however points out that it is not a case where the Government had not considered Exts.P1 and P2 together before passing the order of approval and the order of confirmation. The Government had taken into consideration Ext.P1 order which was belatedly executed after the passing of Ext.P2 order. Both these have been taken into consideration by the Government before passing AnnexureA3/Ext.R3(b) orders of approval/confirmation. Relevant file has been placed before us for our consideration and we find this contention of the learned Government Pleader to be absolutely justified. Review prayed for on the first ground is thus found to be not maintainable on merits also. 7. The second contention is that proceedings under Section 107 of the Cr.P.C had been initiated against the detenu **R.P No.20 of 2010** 6 earlier in Crime No.155 of 2002 and Crime No.19 of 2004. M.C.Nos.286 and 2002 and 16 of 2004 were pending before the Sub Divisional Magistrate, Trivandrum on the basis of these crimes at the time when Exts.P1 and P2 were passed. The learned counsel for the petitioner argues that the detaining authority had not pointedly applied its mind to the question whether it is necessary to pass an order of detention in the wake of such proceedings which were pending. We note that the detaining authority had applied its mind to this circumstance - that the 2 M.Cs were pending before the Sub Divisional Magistrate. They are referred to in Ext.P1 order. We are not persuaded to agree that the mere pendency of those proceedings under Section 107 Cr.P.C before the Sub Divisional Magistrate is sufficient reason to invalidate the subjective satisfaction entertained by the detaining authority or to sail to the conclusion that there has been no proper application of mind. The claim for review on the second ground must also, in these circumstances, fail. 8. We do, in these circumstances, accept the plea of the learned Government Pleader that the questions raised are beyond the scope of the powers of review vested in this Court. 7 ## **R.P No.20 of 2010** We further agree that even if the plea is considered on merits, the review petition does not deserve to be allowed. The judgment dated 17.12.2009 does not deserve to be altered or modified. 9. This Review Petition is, in these circumstances, dismissed. **(R.BASANT, JUDGE)** **==> picture [246 x 13] intentionally omitted <==** rtr/-