Mohanan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE ANTONY DOMINIC & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **WEDNESDAY, THE 9TH DAY OF APRIL 2014/19TH CHAITHRA, 1936** ## **WP(Crl.).No. 122 of 2014 (S)** **-----------------------------** ## **PETITIONER(S):** ## **--------------------------** ## **MOHANAN, AGED 50 YEARS S/O.SUNDARAN, MELE PUTHENVEEDU, KULANGARAKONAM NEMOM P.O, THIRUVANANTHAPURAM.** ## **BY ADV. SRI.SHAJIN S.HAMEED** ## **RESPONDENT(S):** - **----------------------------** **1. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM PIN CODE.695001.** **2. THE PRINCIPAL SECRETARY TO GOVERNMENT, (HOME & VIGILANCE) SECRETARIAT, THIRUVANANTHAPURAM PIN CODE695001.** **3. THE DISTRICT MAGISTRATE, THIRUVANANTHAPURAM, COLLECTORATE KUDAPPANAKKUNNU P.O. THIRUVANANTHAPURAM PIN CODE 695043.** **4. THE SUPERINTENDENT OF PRISON, CENTRAL PRISON, VIYYUR THRISSUR DISTRICT. PIN CODE 680010.** - **R1-R4 BY ADV. ADDL.DIRECTOR GENERAL OF PROSECUTION SRI.K.I.ABDUL RASHEED** **THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 09-042014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(Crl.).No. 122 of 2014 (S)** **-----------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** ## **-------------------------------------** **EXHIBIT P1 PHOTOCOPY OF THE REPORT NO 295/KAA(PA)/DCP (L&O)13 TC DATED 26-11-2013** **EXHIBIT P2 PHOTOCOPY OF THE REPORT NO 295/KAA(PA)/DCP (L&O)2013 TC DATED 12-12-2013** **EXHIBIT P3 PHOTOCOPY OF THE ORDER NOCC98/S13-101906/13/ CAMP DATED 17-122013 OF THE DISTRICT MAGISTRATE, THIRUVANANTHAPURAM** **EXHIBIT P4 PHOTOCOPY OF THE GROUNDS FOR DETENTION ISSUED BY THE 3RD RESPONDENT** **EXHIBIT P5 PHOTOCOPY OF THE ORDER NO 118434/SSA5/2013/HOME DATED 17-122013** **EXHIBIT P6 PHOTOCOPY OF THE REPRESENTATION DATED 03-01-2014 SUBMITTED BY THE DETENU THROUGH HIS COUNSEL** **EXHIBIT P7 PHOTOCOPY OFTHE ORDER NO 118434/SSA5/2013/HOME DATED 06-012014 ISSUED BY THE PRINCIPAL SECRETARY TO THE GOVERNMENT** **EXHIBIT P8 PHOTOCOPY OF THE ORDER G.O(RT) N0 557/2014/HOME DATED 18-022014** **EXHIBIT P9 CERTIFIED COPY OF THE ORDER IN NEMOM CRIME NO 1450/2013 OF THE JUDICIAL IST CLASS MAGISTRATEI, NEYYATTINKARA** **RESPONDENT(S)' EXHIBITS NIL** **---------------------------------------** ## **//True Copy//** **PA TO JUDGE** **Rp** ## **ANTONY DOMINIC & ANIL K. NARENDRAN, JJ. ============================== WP(Crl.) No. 122 of 2014** ## **====================** ## **Dated this the 9[th] day of April, 2014** ## **J U D G M E N T** ## Antony Dominic, J. Petitioner is the father of Aneesh @ Ani. Aneesh (hereinafter referred to as the 'detenu' for short) is an accused in Crime Nos.1646/12, 1734/12, 1826/12 and 1450/13 of the Nemom Police Station. On the basis that the offences alleged against the detenu warrant proceedings against him under the Kerala Anti-Social Activities (Prevention) Act , 2007, by classifying him as a “known rowdy” as provided under Section 2(p)(iii) of the Act and by detaining him under Section 3 thereof, the sponsoring authority submitted Exts.P1 and P2 reports to the 3[rd] respondent, the detaining authority under the Act. Such reports made by the sponsoring authority under Section 3(1) of the Act were considered by the detaining authority, who by Ext.P3 order dated 17/12/13 classified the detenu as a “known rowdy” and ordered that he be detained under Section 3 of the Act. Accordingly, the detenu was arrested and detained on 20/12/13 and since then, he is under detention at the Central Prison, Thiruvananthapuram. ## **W.P.(Crl.) No.122/14** **: 2 :** 2. By Ext.P5 order dated 27/12/13, the Government approved the detention as provided under Section 3(3) of the Act. The detenu submitted Ext.P6 representation through counsel to the Government, which was rejected by Ext.P7 order. The detention was thereafter confirmed by the Government by Ext.P8 order dated 18/2/14 passed under Section 10(4) of the Act. It is in this background this writ petition has been filed challenging Ext.P3 order of detention and with a prayer to set the detenu at liberty by issuing a writ of habeas corpus. 3. We heard the learned counsel for the petitioner and the learned Additional Director General of Prosecutions who appeared for the respondents. 4. The main contention urged by the learned counsel for the petitioner was that the detention order is bad for non application of mind mainly on account of the fact that there was default on the part of the sponsoring authority in placing Ext.P9 order enlarging the detenu on bail in Crime No.1450/13 and that the sponsoring authority is also guilty of not considering the bail order while passing Ext.P3 order of detention. However, learned ## **W.P.(Crl.) No.122/14** **: 3 :** Additional Director General of Prosecutions contended that the bail order and the conditions thereof were not relevant to Ext.P3 order and that at any rate, according to him, it was evident that even the conditions of the bail order could not have prevented the detenu from continuing his anti-social activities. Therefore, according to the counsel, Ext.P3 order cannot be held illegal. 5. We have considered the submissions made. 6. It is true that in this case, the detenu is an accused in four crimes registered at the Nemom Police Station. Proceedings under Section 107 of the Cr.P.C are also pending against the detenu. It was at that stage proceedings under the Act were initiated and by Ext.P3 order, the detenu was ordered to be kept under preventive detention. That order of preventive detention was passed against the detenu on 17/12/13. However, before passing that order, by Ext.P9 order passed on 28/10/13, the Judicial First Class Magistrate-I, Neyyattinkara had granted bail to the detenu subject to the conditions mentioned therein, among which one of the condition was that the detenu shall not commit any similar crime during the bail period. ## **W.P.(Crl.) No.122/14** **: 4 :** 7. It is subsequent to the bail order that Exts.P1 and P2 reports under Section 3(1) of the Act were made by the sponsoring authority on 26/11/13 and 12/12/13 respectively. These representations do not anywhere make any reference to either Ext.P9 bail order dated 28/10/13 or the conditions imposed by the trial court. Similarly, when on 17/12/13, the detaining authority passed Ext.P3 order, Ext.P9 bail order dated 28/10/13 was not made available to him by the sponsoring authority and there is no reference to that order in Ext.P3 detention order. 8. The relevance of the order passed by the trial court enlarging the detenu on bail before detention order under Section 3 is passed, has been considered by this Court on different occasions. In _**Philip v. State of Kerala and others**_ (2009(2) KLJ 715), the Division Bench of this Court has held thus; _“It need not be over emphasized in the facts and circumstances of this case that Ext.P15 is a very vital document and the same must have been considered when the requisite application of mind is made by the detaining authority under Section 3 of the KAAPA. The learned Additional Director General of Prosecutions relies on the decision in K.Varsdliaraj v._ ## **W.P.(Crl.) No.122/14** **: 5 :** _State of T.N (2002 (6) SCC 735) to contend that the significance of the document in the facts of each case will have to be considered in detail. We have no hesitation to take the view that in the facts and circumstances of this case, the bail granted under Ext.P15 subject to conditions within a period of about three months prior to the date of Ext.P1 order, is a vital document to which mind of the detaining authority must have been applied.”_ 9. Subsequently, another Division Bench in its judgment in _**Pradeep Kumar v. Union of India**_ (2012(2) KLT 229, reiterated the legal position thus; _“18. More importantly, this is a case where as noted bail was granted on 20.7.2011. One of the conditions imposed in the order granting bail is that the detenu shall not involve in any other crime while on bail. Bail order is passed on 20.7.2011. The order of detention is passed on 27.9.2011. Learned Additional D.G.P. would, after getting instructions, also submit that after the date of the bail order and after being enlarged on bail, the detenu has not committed any crime. No doubt, his case is that the detenu violated one of the bail conditions, namely, that he should report_ **: 6 :** ## **W.P.(Crl.) No.122/14** _before the police officer. But, as far as the crucial condition in the bail order that he shall not involve in any crime we can proceed on the basis that the said conditions had not been flouted by the detenu. Unlike the fact situation in Sunitha Mujeeb's case where as noted by the Bench the bail conditions were geared to secure the interests of investigation in that case, in this case the conditions include the condition that the detenu shall not involve in any crime. This condition we are of the view is germane and crucial in a proceeding under S.3 of the Act. This was indeed vital information which may have turned the case in favour of the detenu that is to say had this condition been considered by the Magistrate the Magistrate may have come to a different conclusion. Therefore this was vital information which was not placed before the Magistrate. On that score alone the order of detention is liable to be interfered with. The order of detention is liable to be interfered also on the ground that the said bail condition has not even been considered by the detaining authority. There is non application of mind to a relevant and vital aspect of the matter.”_ ## **W.P.(Crl.) No.122/14** **: 7 :** ## 10. Again in _**Nalini v. State of Kerala**_ (2014(1) KLT S.N. 22 Case No.30), it was held thus; _“The law is settled that when an accused in a criminal case, who is enlarged on bail with conditions, is sought to be detained in preventive detention, it is incumbent on the part of the detaining authority to consider whether the bail conditions are sufficient to prevent the detenu from continuing to indulge in anti-social activities and despite the conditions if the detaining authority is still satisfied that the detenu requires to be detained, the authority is still at liberty to pass an order of detention. In other words, the duty of the detaining authority is that he should pointedly consider the order passed by the court granting bail to the detenu and the conditions thereof and after due application of mind, should pass orders, either to detain or not to detain the detenu._ 11. However, the learned Additional Director General of Prosecutions relied on the Division Bench judgment of this Court in _**Sunitha Mujeeb Rehman v. State of Kerala**_ (2010(4) KLT 478) and contended that in that judgment this Court had upheld **W.P.(Crl.) No.122/14** **: 8 :** an order of detention in spite of the fact that an order enlarging the detenu on bail was not considered by the detaining authority. Reference was made to paras 26 and 27 of the judgment which read thus; _“26. We would have been happier definitely if the detaining authority had referred to the specific conditions in Ext.P13. But judicial review against an order of preventive detention cannot merely be an exercise to ascertain the level of perfection achieved by the sponsoring and detaining authorities. A constitutional court in judicial review must realistically take note of all the circumstances. Here is a case where the detaining authority was evidently aware of bail granted under Ext.P13. He was aware of the release of the accused on the strength of Ext.P13. Though the conditions imposed under Ext.P13 are not specifically referred to, it is stated very clearly in the order of detention that the detenu is not a person who can be deterred from committing anti-social activity on the strength of conditions of bail._ _27. In this context, we look at the conditions of bail again. There is not one condition in Ext.P13 order which is imposed by the court with an_ **W.P.(Crl.) No.122/14** **: 9 :** _intention to deter the detenu from indulging in crimes later. Both the conditions imposed refer to the interest of a proper investigation in the said crime. Till final report is filed or earlier directions are issued, the detenu must make himself available before the Investigating Officer - evidently for interrogation. He should not tamper with the witnesses or threaten them - again a condition to secure the interests of investigation in that crime.”_ 12. A reading of the above two paragraphs of the judgment in _**Sunitha Mujeeb Rehman's case**_ (supra) itself would show that the conditions of the bail order referred to therein were incorporated only for the smooth investigation of the case involved and not for preventing the detenu from continuing the anti-social activities and it was therefore that this Court did not attach any relevance to that condition and on that basis upheld the detention order. In our view, this judgment will not be of any assistance to the learned Additional Director General of Prosecutions to sustain Ext.P3 order. 13. From the judgments referred to by us, law seems to be settled that even in cases where conditions are imposed in the ## **W.P.(Crl.) No.122/14** ## **: 10 :** 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. 14. In so far as this case is concerned, neither the reports made under Section 3(1) nor the detention order passed under Section 3(2) of the Act contain any reference to Ext.P9 bail order passed by the trial court nor a finding that the conditions imposed therein are insufficient to prevent the detenu from continuing the anti-social activities. In other words, the detention order now impugned before us suffers from the vice of non application of mind rendering it illegal, unconstitutional and hence **: 11 :** ## **W.P.(Crl.) No.122/14** unsustainable. For these reasons, we are constrained to set aside Ext.P3 order of detention. Accordingly, the writ petition is disposed of setting aside Ext.P3 order of detention detaining Aneesh @ Ani, son of the petitioner under the provisions of the KAAPA Act and we direct that the detenu be released forthwith, unless he is required to be detained in some other case. ## Sd/- **ANTONY DOMINIC JUDGE** Sd/- **JUDGE** ## **ANIL K. NARENDRAN** Rp **//True Copy//** **PA TO JUDGE**