M. P. Hassainar Haji v. State of Kerala and Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR ``` ## **`&`** ``` THE HONOURABLE MRS. JUSTICE C.S. SUDHA ``` ``` MONDAY, THE 10[TH] DAY OF JULY 2023 / 19TH ASHADHA, 1945 WP(CRL.) NO. 572 OF 2023 ``` ## **`PETITIONER:`** ``` M. P. HASSAINAR HAJI ``` ``` AGED 72 YEARS, S/O. MUKRI ABDULLA, R/AT SHAHIDA MANZIL, BALLA KADAPPURAM, KANHANGAD (P.O.), HOSDURG TALUK, KASARAGOD DISTRICT, PIN - 671315 ``` ``` BY ADVS. RAHUL SASI NEETHU PREM ARCHANA VINOD ``` ## **`RESPONDENTS:`** - **`1 STATE OF KERALA REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY TO GOVERNMENT OF KERALA (HOME DEPARTMENT), SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001`** - **`2 THE DISTRICT COLLECTOR AND DISTRICT MAGISTRATE CIVIL STATION BUILDING, B.C. ROAD, VIDYANAGAR KASARAGOD, KERALA, PIN - 671123`** - **`3 THE DISTRICT POLICE CHIEF KASARAGOD TOWN, KASARAGOD DIST. KERALA, PIN - 671123`** - **`4 THE DEPUTY SUPERINTENDENT OF POLICE KANHANGAD, KASARAGOD DISTRICT, KERALA, PIN - 671315`** - **`5 THE INSPECTOR OF POLICE STATION HOUSE OFFICER, HOSDURG POLICE STATION, KASARAGOD DISTRICT, KERALA, PIN - 671315`** - **`BY ADVS.`** ``` K.A.ANAS, PUBLIC PROSECUTOR ``` ``` THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION ON 10.07.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` W.P(Crl) No.572 of 2023 2 ## **P.B.SURESH KUMAR & C.S.SUDHA, JJ.** ## **-----------------------------------------------** ## **W.P.(Crl) No.572 of 2023** ## **-----------------------------------------------** **Dated this the 10[th] day of July, 2023.** ## **J U D G M E N T** ## **P.B.Suresh Kumar, J.** The son of the petitioner, Jaffar M.P is detained in terms of Section 3 of the Kerala Anti-Social Activities (Prevention) Act, 2007 (the Act). Ext.P8 is the order issued by the detaining authority in this regard. Ext.P8 order is under challenge in the writ petition(Crl). 2. The detenu is accused in four cases of which three are registered under the Narcotic Drugs and Psychotropic Substances Act, 1985 (the NDPS Act) and one is registered under various provisions of the Indian Penal Code (the IPC). Though the detenu was enlarged on bail in the first two cases, he could not get bail in the last two cases. The second case in W.P(Crl) No.572 of 2023 3 sequence, in which the detenu got himself involved namely, Crime No.1404 of 2022 of Hosdurg Police Station is one registered under Sections 341, 323, 392 read with Section 34 of the IPC. The detenu was enlarged on bail in the said case subject to conditions. Ext.P12 is the order enlarging the detenu on bail in the said case. The conditions imposed while enlarging the detenu on bail in the said case were that he shall not get himself involved in any other offence and that if he violates the said condition, it would result in the cancellation of bail granted to him. As noted, despite the conditions aforesaid, the detenu got himself involved in two other cases, and an application has, therefore, been filed by the investigating officer in Crime No.1404 of 2022 for cancellation of bail granted to him. Ext.P13 is the application and the same is pending. After having instituted Ext.P13 application, a report has also been submitted by the Station House Officer, Hosdurg before the competent authority for initiation of proceedings against the detenu under Section 107 of the Code of Criminal Procedure (the Code). The case set out by the petitioner in the writ petition(Crl) is that W.P(Crl) No.572 of 2023 4 Ext.P8 order has been passed without considering the question whether the proceedings under the ordinary law of land are sufficient to keep the detenu under check and control. It is also the case of the petitioner that Ext.P8 order has been passed without considering the question whether the proceedings under Section 107 of the Code is sufficient to prevent the detenu from committing further prejudicial activities. According to the petitioner, the detention order, in the circumstances, is vitiated for want of due application of mind. 3. Heard the learned counsel for the petitioner as also the learned Government Pleader. 4. The learned counsel for the petitioner reiterated the grounds referred to in the writ petition(Crl). He relied on the decisions of this Court in **Mohanan v. State of Kerala,** 2014 KHC 3501 and in **Abidha Beevi v. State of Kerala** , 2013 (1) KHC 308, in support of his arguments. 5. We have examined the arguments and considered the decisions cited by the learned counsel for the petitioner. 6. A perusal of Ext.P8 order would show that it is W.P(Crl) No.572 of 2023 5 after duly considering the fact that the application preferred for cancellation of bail granted to the detenu in Crime No.1404 of 2022 is pending, that the order of detention has been issued. The relevant portion of Ext.P8 order reads thus: " എതിർകക്ഷിഹ ോസ്ദുർഗ്പോലീസ്സ്്േഷൻക്രൈ ം 1404/ 2022 u/s 341, 323, 392 r/w 34 IPC altered to 394 IPC കേസിൽതുടർന്നുംകുറ്റകൃത്യങ്ങളിൽ ഏർപ്പെടരുതെന്നജാമ്യവ്യവസ്ഥലംഘിചചടിയാൻതുടർന്നുംകുറ്റകൃത്യത്തിൽഏർപെട്ടതിനാൽ ടിയാന്മേൽനമ്പർകേസിൽക കോടതിഅനുവദിച്ചജാമ്യംറദദചെയ്യുന്നതിന് ബന്ധപ്പെട്ട കോടതിയിലേക റിപ്പോർട സമർപ്പിച്ചിട്ടുള്ളതും ആയത്ക കോടതിയുടെ ന .” പരിഗണനയിലുമാണെ നഹ ോസ്ദുർഗ്ഇൻസ്‌പെക്ടർറിപ്പോർടടചെയ്തിട്ടുണ Similarly, Ext.P8 order would indicate that the order of detention has been issued after considering the fact that steps have already been taken against the detenu under Section 107 of the Code. The relevant portion of Ext.P8 order reads thus: "എതിർകക്ഷിയുടെ പൊതുസമാധാനലംഘനകൃത്യങ്ങൾ നിയന്ത്രിക്കുന്നതിനും ടിയാനെ ഇത്തരത്തിലുള്ളപ്രവർത്തികളിൽനിന്നുംപിൻതിരിപ്പിക്കുന്നതിനായിഹ ോസ്ദുർഗ്പോലീസ് സ്്േഷനിൽ No 15/D1/TDR/2023 dtd 22.02.2023 തീയതിക്രിമിനൽനടപടിക്രമം 107-)o വകുപപപ്രകാരംകാഞ്ഞങ്ങാട്സബ്ഡിവിഷണൽമജിസ്‌ട്രേററമുമ്പാകെ റിപ്പോർട സമർപ്പിച്ചിട്ടുള്ളതുംആയത്കകോടതിയുടെപരിഗണനയിലുമാണ്”.” The petitioner cannot, therefore, be heard to contend that the detention order has been passed without due application of mind in the above mentioned two aspects. 7. Be that as it may, let us now consider whether the impugned decision is one conforming to the ratio in W.P(Crl) No.572 of 2023 6 **Mohanan** and **Abidha Beevi** . Reliance was placed by the learned counsel for the petitioner on paragraph 13 of the judgment in **Mohanan** to contend that the order is vitiated for want of due application of mind. Paragraph 13 of the said judgment reads thus: “13. From the judgments referred to by us, law seems to be settled that even in cases where conditions are imposed in the bail order and the detenu is enlarged on bail, detaining authority is still entitled to initiate proceedings under the Act and order detention without leaving the police to seek cancellation of the bail. But the detaining authority should consider whether in spite of the conditions imposed by the trial court enlarging the accused on bail, it is necessary to detain the detenu and whether the proceedings under the ordinary law of the land are sufficient to keep the detenu under check and control. This requirement of law should find a place in the order of detention itself, which contains the reflection of the application of mind by the detaining authority.” It is seen from the extracted paragraph that what was held by this Court in the said case is that even though the detaining authority is entitled to initiate proceedings under the Act in cases where conditions subject to which bail is granted to the person concerned are violated, it is obligatory on the part of the detaining authority to consider, despite the remedy available to the police to seek cancellation of the bail, whether such a W.P(Crl) No.572 of 2023 7 course is necessary to prevent the person concerned from committing further prejudicial activities. Paragraphs 8 and 9 of the judgment of this Court in **Abidha Beevi** read thus: “8. The proceedings under S.107 of CrPC are initiated against a person for preventing him from committing breach of peace or disturbing public tranquillity. In other words, it is intended for keeping peace and public tranquillity. KAA(P)A is also intended to prevent persons from committing anti - social activities. If proceedings initiated under S.107 of CrPC are sufficient for preventing a person from committing anti - social activities, the detention order under S.3 of KAA(P)A is not necessary. Whether the proceedings under S.107 of CrPC are sufficient or not is a question of fact depending upon various factors. In the case of certain persons, the proceedings under S.107 of CrPC may be sufficient for preventing them from committing anti - social activities causing breach of peace or disturbing public tranquillity. In respect of certain other persons, the proceedings under S.107 of CrPC may not be sufficient. One thing is quite certain. Unless the detaining authority specifically addresses the question whether the proceedings under S.107 of CrPC initiated against a person are sufficient or not in the light of the materials concerning those proceedings produced before that authority, the question whether the proceedings under S.107 of CrPC are sufficient or not cannot be decided. 9. In the case on hand, the last prejudicial activity allegedly committed by the detenu was on 06/02/2012. There is no case for the respondents that the detenu has committed anti - 8 W.P(Crl) No.572 of 2023 social activities after 06/02/2012. No documents also have been produced in order to show that the detenu has continued his anti - social activities by way of committing offences after 06/02/2012. The proceedings under S.107 of CrPC have been initiated against the detenu for the purpose of preventing him from committing breach of peace or disturbing public tranquillity. KAA(P)A is also intended to prevent persons from committing anti - social activities. If the proceedings initiated under S.107 of CrPC are sufficient for preventing the detenu from committing anti - social activities, the detention order under S.3 of KAA(P)A is not necessary. When the proceedings under S.107 of CrPC initiated against the detenu by the police on 23/05/2012 is considered in the light of the fact that the last anti - social activity allegedly committed by the detenu was on 06/02/2012, much prior to the initiation of the proceedings under S.107 of CrPC, the proceedings under S.107 of CrPC assume much relevance. The respondents could not supply any material to show that the proceedings under S.107 of CrPC initiated against the detenu were insufficient for preventing him from committing anti - social activities. A mere statement, without applying mind, as done in Ext. P1, is not sufficient for finding that the proceedings initiated against the detenu under S.107 of CrPC were not sufficient for preventing him from committing anti - social activities. The 2nd respondent should have considered the sufficiency or insufficiency of the proceedings under S.107 of CrPC initiated against the detenu with the support of relevant materials and necessary discussions in Ext. P1 order. But, he failed to do so. In the facts obtained in this case, we are of the considered view that there was no reason for the 2nd respondent to arrive at a conclusion that the proceedings W.P(Crl) No.572 of 2023 9 under S.107 of CrPC initiated against the detenu were insufficient for preventing him from committing anti - social activities. Therefore, absence of application of mind on his part is writ large in this case. This, in fact, vitiated the detention order. Hence, it is liable to be quashed.” The dictum in the said case is that, it is necessary for the detaining authority to consider, in cases where steps have been taken against the person concerned under Section 107 of the Code, whether the same is sufficient to prevent the person concerned from committing further prejudicial activities. It is also the dictum in the said case that a mere statement that such proceedings are not sufficient to deter the person concerned from committing further prejudicial activities, would not serve the requirement of law and the requirement of law is that such statements shall be supported by reasons, in order to reflect the due application of mind of the detaining authority on that question. 8. In the case on hand, Ext.P8 order indicates that the same has been issued after coming to the conclusion that the proceedings under the ordinary law of the land are not sufficient to keep the detenu under check and control. The 10 W.P(Crl) No.572 of 2023 ## relevant portion of the order reads thus: " ടിയാനെതിരെ മുൻകേസുകളിൽ നാളിതുവരെ സ്വീകരിച അറസ റിമാനറ‌, പ്രപ്രോസിക്യൂഷൻ നടപടികൾഎന്നിവയയൊക്കെ നേരിട്ടിട്ടും ടിയാൻവീണ്ടുംഗുരുതരസ്വഭാവമുള്ളകുറ്റകൃത്യങ്ങളിൽ . ഉൾപ്പെട്ടുവരികയാണ് ആയത്ടിയാനെ തുടർന്നുംകുറ്റകൃത്യങ്ങളിൽഏർപ്പെടുന്നതിൽനിന്നും തടയുന്നതിന്ടിയാനെതിരെ Cr.PC പ്രകാരമുള്ളനടപടിപര്യാപ്തമല്ലഎനനഉത്തമബ ബോധ്യം വന്നിട്ടുള്ളതാണ്.” The passage aforesaid in Ext.P8 order, according to us, satisfies the requirements of law declared by this Court in **Mohanan** and **Abidha Beevi** also. The writ petition(Crl), in the circumstances, is without merits and the same is, accordingly, dismissed. **Sd/-** ## **P.B.SURESH KUMAR, JUDGE.** **Sd/-** **C.S.SUDHA, JUDGE.** Mn W.P(Crl) No.572 of 2023 11 ## **`APPENDIX OF WP(CRL.) 572/2023`** ## **`PETITIONER EXHIBITS`** ``` Exhibit P1THE TRUE COPY OF THE FIR AND FINAL REPORT IN CRIME NO.1169 OF 2022 DATED 15.09.2022 OF HOSDURG POLICE STATION Exhibit P2THE TRUE COPY OF THE FIR ALONG WITH FIR RELATED RECORDS AND FINAL REPORT IN CRIME NO. 1404 OF 2022 OF HOSDURG POLICE STATION DATED 27.10.2022 ``` - **`Exhibit P3 THE TRUE COPY OF THE FIR ALONG WITH FIR RELATED RECORDS AND FINAL REPORT IN CRIME NO.1033 OF 2022 DATED 23.11.2022 OF CHANDERA POLICE STATION`** - **`Exhibit P4 THE TRUE COPY OF THE FIR AND RELATED RECORDS IN CRIME NO. 126 OF 2023 DATED 02.02.2023 OF HOSDURG POLICE STATION`** - **`Exhibit P5 THE TRUE COPY OF THE ORDER NO. 115/D1/TDR/2023 DATED 20.02.2023 FILED BY 3RD RESPONDENT BEFORE THE SUBDIVISIONAL MAGISTRATE TO INITIATE BOND PROCEEDINGS AGAINST THE DETENUE UNDER SECTION 107 OF CR.P.C`** - **`Exhibit P6 THE TRUE COPY OF THE ORDER DATED 22.02.2023, IN 186/KGD/2023 INCLUDED THE DETENUE IN THE LIST OF ROWDY HISTORY SHEET`** - **`Exhibit P7 THE TRUE COPY OF THE REPORT NO. 1246/SB/KSD/2023 DATED 13.03.2023 TO INITIATE PROCEEDINGS U/S 3 (1) OF THE KAAPA ACT 2017 AGAINST THE DETENUE`** - **`Exhibit P8 A TRUE COPY OF THE ORDER NO. DCKSGD/2482/2023/D1 DATED 07.04.2023`** - **`Exhibit P9 THE TRUE COPY OF THE COMPLAINT GIVEN BEFORE DISTRICT POLICE CHIEF DATED 31.03.2023`** - **`Exhibit P10 THE TRUE COPY OF THE MEMO OF LEGAL AID NOTICE DATED 17.04.2023 SERVED TO THE DETENUE`** W.P(Crl) No.572 of 2023 12 ``` Exhibit P11 ``` ``` THE TRUE COPY OF THE ORDER DATED 02.05.2023 OF THE 1ST RESPONDENT IN NO. HOME-SSA2/48/2023-HOME ``` ``` Exhibit P12THE TRUE COPY OF THE BAIL ORDER IN C.M.P. NO. 4811 OF 2022 DATED 07.11.2022 Exhibit P13THE APPLICATION FILED BY THE POLICE ON 04.02.2023 AS C.M.P NO. 4811 OF 2022 DATED 07.11.2022 FOR CANCELLATION OF BAIL ``` ``` Exhibit P14THE APPLICATION FILED BY THE POLICE AS C.M.P NO. 1298 OF 2023 FOR CANCELLATION OF BAIL ```