Nishal v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** ## **THE HONOURABLE MR. JUSTICE ASHOK MENON** **WEDNESDAY,THE 21ST DAY OF NOVEMBER 2018 / 30TH KARTHIKA, 1940** **WP(Crl.).No. 276 of 2018** ## **PETITIONER/S:** **NISHAL, AGED 32 YEARS S/O. MUHAMMED P.A @ MEHAMOOD P.A,PALLIKKAL HOUSE, ANANGUR, TIPPU NAGAR,KASABA VILLAGE, KASARAGOD TALUK, KASARAGOD.** **BY ADVS. SRI.C.RAJENDRAN SRI.B.K.GOPALAKRISHNAN** ## **RESPONDENT/S:** |**1**|**STATE OF KERALA,**| |---|---| ||**REPRESENTED BY THE CHIEF SECRETARY,GOVERNMENT OF**| ||**KERALA,GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM -695**| ||**001.**| |**2**|**THE DISTRICT MAGISTRATE,**| ||**KASARAGOD DISTRICT - 671 121.**| |**3**|**THE DISTRICT POLICE CHIEF,**| ||**KASARAGOD DISTRICT - 671 121.**| |**4**|**THE SUB INSPECTOR OF POLICE,**| ||**KASARAGOD POLICE STATION,KASARAGOD - 671 121.**| |**5**|**THE SUPERINTENDENT,**| ||**CENTRAL PRISON, KANNUR - 670 004.**| ||**BY ADVS.**| ||**SRI SURESH BABU THOMAS, ADDL.DIRECTOR GENERAL OF**| ||**PROSECUTION**| ||**SRI K A ANAS, GOVERNMENT PLEADER**| **THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 21.11.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(Crl.) 276/18 -2- ## **J U D G M E N T** ## K.Vinod Chandran, J. The petitioner, brother of a detenu is before this Court challenging the detention order, on four grounds. At first, it is alleged that there is a delay of six months from the last prejudicial act. The last crime, i.e. Crime No.521/17, was committed on 14.6.2017, while the detention order was passed on 19.12.2017. There was no offence committed by the detenu in the interregnum, thus striking down the very basis of preventive detention, which can only be for a period of six months. Then it is contended that there is total non-application of mind, insofar as no consideration having been made as to the period in which the detenu was under judicial custody, nor even as to the date on which the detenu was released. In such WP(Crl.) 276/18 -3- circumstances, the delay acquires more significance and the detention order has to be set aside on both these grounds. The further contentions are on illegible copies having been supplied as also the detenu having not been informed of the right to make a representation to the Government and to the Advisory Board. 2. On facts, it is to be noticed that the detenu was categorised as a known-rowdy as defined under Section 2(p) of the Kerala AntiSocial Activities (Prevention) Act, 2007 ('KAAPA', for short). The detenu as seen from the detention order was involved in seven crimes between 2011 and 2017. We need not look at the individual crimes, especially since there was an earlier detention order passed on 12.02.2013 wherein the detenu was kept in preventive custody for six months. There was a challenge made to the detention order by WP(Crl) No.388/2013, which was rejected by this Court on 9.10.2013. Section WP(Crl.) 276/18 -4- 13(2)(i) of the KAAPA enables subsequent detention of a person, who had already been detained under the KAAPA, for a period of one year on the commission of one single offence, in which event, the period of detention can also be up to one year. In the present case, the detenu was involved in three crimes, numbered as Crime Nos.43/11, 1009/12 and 70/13, when obviously the first detention order was passed on 12.02.2013. Subsequently, the detenu was involved in four crimes bearing Crime Nos.309/14, 641/16, 341/17 and 521/17. The offences in each of these crimes are as follows:- “With respect to Crime No.309/14, which is registered under Sections 341, 323 and 506(i) IPC at Kasaragod Police Station, the offence is that the detenu/accused had on 19.3.2014 at 18.30 hrs. at Anangoor in Kasaba village wrongfully restraint and assaulted the complainant Yousuf B. by beating with hands WP(Crl.) 276/18 -5- on the face and threatened to kill him, as the complainant had given information to the Police. The detenu was arrested on 22.3.2014. The case was charge sheeted on 30.4.2014 before the Judicial First Class Magistrate's Court, Kasaragod and numbered as CC No.2128/14 and the Court acquitted the detenu. The offence with respect to Crime No.641/16 of Kasaragod Police Station punishable under Sections 341, 323, 324 and 308 IPC was that on 20.8.2016 at 20.20 hrs. at Kasaragod Press Club Junction in Kasaba Village, the detenu/accused wrongfully restraint and caught hold on the collar of the complainant Ibrahim Shamas and beaten with hand causing injuries and made attempt to homicide due to previous enmity. In that case the Police arrested the detenu on 21.8.2016 and was WP(Crl.) 276/18 -6- charge sheeted on 29.8.2016. The matter is pending before the Judicial First Class Magistrate's Court, Kasaragod as CP No.183/2016. Crime No.341/17 of Kasaragod Police Station was registered u/s. 341, 294(b), 506(ii) r/w. 34 IPC. The offence is that on 19.04.2017 at 16.05 hrs. at Pallam Road, Jalsoor Junction in Kasaba Village, the detenu/accused and the co-accused persons threatened and attacked the complainant Kishorkumar, his wife and their relative and abused in filthy language. The detenu was arrested and granted bail by this Court. The matter is pending before the Judicial First Class Magistrate's Court, Kasaragod. The last crime, i.e. Crime No.521/17, is registered at Kasaragod Police Station under WP(Crl.) 276/18 -7- Sections 120(b), 326, 307, 201 r/w 34 IPC on the basis of the incident that on 14.6.2017 at 21.45 hrs. the detenu/accused and coaccused waiting in a car bearing Reg.No.KL- 14/T-4500 near Periyadukka Mosque in Kadlu Village had chased a motor cycle bearing Reg.No.KL-14/T-1851 ridden by one Sri.Raju, and hit the car on the backside of the motorcycle and made an attempt to kill the complainant by stabbing with knife and beating with deadly weapons. The detenu was arrested on 15.6.2017 and granted bail by this Court on 20.9.2017. The case is pending before the Judicial First Class Magistrate's Court, Kasaragod.” 3. As is seen from the above extracts, Crime No.521/17 is for the offence, _inter alia_ , under Section 307 of the Indian Penal Code. The contention taken is on the basis of the date of commission of the offence and the detention order WP(Crl.) 276/18 -8- passed, to assail the detention order. We have gone through the entire records produced before us and that produced by the learned Government Pleader across the bar. We see from the records that though on 14.6.2017 the offence was committed and an FIR registered, all the accused were not identified on the said date. After investigation, on 15.6.2017, the detenu was arrested along with some others. Since the detenu and some others were not arrayed as accused in the FIR, on 18.6.2017, Ext.P24 was filed before the jurisdictional Magistrate's Court seeking inclusion of the persons therein also as accused in the above case. The accused were then released on bail by the trial court by order dated 20.9.2017. There was a condition insofar as the accused being obliged to report themselves before the Investigation Officer on all Wednesdays and Saturdays between 10 a.m. and 11 a.m. till final report is filed. The final WP(Crl.) 276/18 -9- report in the said crime is produced as Ext.P25 which is dated 30.10.2017. 4. The sponsoring authority had recommended preventive detention on 5.12.2017 by Ext.P3 and the detention order was passed on 19.12.2017. Considering the fact that the detenu was in judicial custody, the sponsoring authority definitely would not have sought for a preventive detention at that point of time. The learned counsel for the petitioner would refer to the decision in _**(2011) 5 SCC 244 [Rekha v. State of**_ _**Tamilnadu)**_ . That was a case in which a detention order was passed against a person already in custody on the premise that in similar cases the Courts had granted bail. There was no bail application pending as on the date of order nor were the details of the so called other cases referred to in the order. Here, the sponsoring authority had not moved when the person was in custody or when he was released on conditions. WP(Crl.) 276/18 -10- Only when the final report was filed, releasing the person even of the restrictive conditions; was the steps initiated to detain the person. In such circumstances, this Court does not find any reason to set aside the order on the ground of delay. The sponsoring authority had acted with alacrity insofar as recommending the preventive detention within a little more than a month from the date on which the detenu was released on bail in the last crime i.e. Crime No.521/17, where one of the offences charged was under Section 307 of the IPC. 5. The further contention is with respect to the detaining authority having not considered the period of judicial custody suffered by the detenu with respect to crime No.521/17 and the bail granted. Ext.P2 is the grounds of detention. In Ext.P2 it is specifically stated by the detaining authority that the detenu was arrested in crime No.521/17 WP(Crl.) 276/18 -11- on 15.6.2017 and later the court had released the detenu on bail on conditions. It is also specifically noticed that the final report was filed on 30.10.2017 before the Kasaragod Judicial First Class Magistrate's Court. Then, it was pertinently observed that since the final report has been filed, as of now, there are no conditions fettering the accused in the above case. The detaining authority had also spoken on the delay occasioned and expressed satisfaction in the explanation, as is seen from Ext.P1.; on almost the same grounds as has been elaborated in Ext.P2 grounds of detention. In such circumstances, we are of the opinion that the detaining authority had considered the delay occasioned and had been satisfied that the same was reasonable and further had passed the detention order specifically referring to the fact that there are no conditions fettering the detenu after the final report was filed in the WP(Crl.) 276/18 -12- last crime in which the detenu was alleged to be involved and arrayed as an accused. 6. The further contentions are with respect to the illegible copy and also the right of representation having not been disclosed and specifically informed to the detenu. The learned Government Pleader has shown us across the Bar the communication issued by the Superintendent of the Jail in which the detenu was detained on arrest. In that communication the detenu's right to make a representation to the Government and to the Advisory Board has been categorically stated. The written communication, in the vernacular, was admittedly received by the detenu. The said communication was also showed to the learned Counsel for the petitioner. The said ground, hence, cannot be entertained. 7. As to the illegible copy, the learned counsel specifically refers to page Nos.52, 56 and 63, in the memorandum of Writ WP(Crl.) 276/18 -13- Petition. We find the pages 52 and 56 quite legible and easily readable. But as to page 63, we find that there is a bit of confusion insofar as the recitals being slightly blurred for reason of overwriting, on account of the use of carbon paper. Even then, Ext.P10 is a statement recorded under Section 161 from one Muhammed Rafi B.S. with respect to the incident that happened on 19.8.2012. We, specifically, notice that the said crime is not the ground for detention and already there was a detention suffered by the detenu on the basis of the crime so charged against him. The representations filed against that earlier were considered and rejected by the Advisory Board and the Government, and as we noticed earlier, the writ petition challenging that detention order had also been dismissed. In such circumstances, we do not think that there is any scope for making a more effective representation on a clear reading of Ext.P10, WP(Crl.) 276/18 -14- especially the crime in which the statement was made, not being the basis of the detention order. We do not think that the said ground can be a reason to set aside the detention order. The learned counsel for the petitioner then argued that the earlier detention order was not part of the records. The learned Government Pleader has specifically referred us to the sponsoring authority's order at Ext.P3, which in its last page lists out the documents enclosed and item No.10 is the order of detention passed at the earlier stage. The learned Government Pleader has also shown us the service of all the documents as seen from the sponsoring authority's order, on the detenu which have also been accepted by him as evidenced by his signature. The records of the case as available before the detaining authority produced before us across the bar also indicate the earlier detention order dated 12.2.2013. We do not, hence, find any WP(Crl.) 276/18 -15- reason to entertain any of the grounds raised to challenge the detention order. We, hence, dismiss the Writ Petition. No costs. **Sd/-** **K.VINOD CHANDRAN** **JUDGE** **Sd/ASHOK MENON JUDGE** WP(Crl.) 276/18 -16- ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT-P1 TRUE COPY OF THE DETENTION ORDER BEARING NO. D/49880/2017 DATED 19/12/2017 SERVED ON THE DETENU** **EXHIBIT-P2 TRUE COPY OF THE GROUND FOR EXHIBIT-P1 DETENTION ORDER DATED 19/12/2017 SERVED ON THE DETENU** - **EXHIBIT-P3 TRUE COPY OF THE REPORT DATED 05/12/2017 SERVED ON THE DETENU** - **EXHIBIT-P4 TRUE COPY OF THE FIR IN CRIME NO. 43/2011 OF VIDYANAGAR POLICE STATION SERVED ON THE DETENU** - **EXHIBIT-P5 TRUE COPY OF THE CONFESSIONAL STATEMENT SERVED ON THE DETENU** - **EXHIBIT-P6 TRUE COPY OF THE FINAL REPORT IN CRIME NO. 43/2011 SERVED ON THE DETENU** - **EXHIBIT-P7 TRUE COPY OF THE PIECE OF PAPER REGARDING B.A NO. 3677/2011 SERVED ON THE DETENU** - **EXHIBIT-P8 TRUE COPY OF THE NON READABLE BAIL ORDER IN B.A 3677/2011 SERVED ON THE DETENU** - **EXHIBIT-P9 TRUE COPY OF THE FIR IN CRIME NO. 1009/2012 OF KASARAGOD POLICE STATION SERVED ON THE DETENU** - **EXHIBIT-P10 TRUE COPY OF THE STATEMENT RECORDED UNDER SECTION 161 CR.P.C. MUHAMMED RAFI B.S. SERVED ON THE DETENU** - **EXHIBIT-P11 TRUE COPY OF THE NON READABLE REPORT SERVED ON THE DETENU** **EXHIBIT-P12 TRUE COPY OF THE INCOMPLETE FINAL REPORT IN CRIME NO. 1009/2012 SERVED** WP(Crl.) 276/18 -17- ## **ON THE DETENU** **EXHIBIT-P13** **TRUE COPY OF THE NON LEGIBLE COPY OF THE FIR ALONG WITH FIS IN CRIME NO. 70/2013 OF KASARAGOD POLICE STATION SERVED ON THE DETENU** - **EXHIBIT-P14 TRUE COPY OF THE FINAL REPORT IN CRIME NO. 70/2013 SERVED ON THE DETENU** - **EXHIBIT-P15** - **TRUE COPY OF THE FIR IN CRIME NO. 309/2014 OF KASARAGOD POLICE STATION SERVED ON THE DETENU** **EXHIBIT-P16** - **TRUE COPY OF THE FINAL REPORT IN CRIME NO. 309/2014 SERVED ON THE DETENU** - **EXHIBIT-P17 TRUE COPY OF THE FIR IN CRIME NO. 641/2016 OF KASARAGOD POLICE STATION SERVED ON THE DETENU** - **EXHIBIT-P18 TRUE COPY OF THE BAIL ORDER IN CRL.M.P. 3760/2016 OF THE SESSIONS COURT, KASARAGOD DATED 08/09/2016** - **EXHIBIT-P19 TRUE COPY OF THE FINAL REPORT IN CRIME NO. 641/2016** - **EXHIBIT-P20 TRUE COPY OF THE FIR ALONG WITH FIR IN CRIME NO. 341/2017 OF KASARAGOD POLICE STATION SERVED ON THE DETENU** - **EXHIBIT-P21 TRUE COPY OF THE FINAL REPORT IN CRIME NO. 341/2017 SERVED ON THE DETENU** - **EXHIBIT-P22 TRUE COPY OF THE FIR ALONG WITH FIS IN CRIME NO. 521/2017 OF KASARAGOD POLICE STATION GIVEN TO THE DETENU** - **EXHIBIT-P23 TRUE COPY OF THE STATEMENT OF RENJITH KUMAR SERVED ON THE DETENU** - **EXHIBIT-P24 TRUE COPY OF THE REPORT DATED 18/06/2017 SERVED ON THE DETENU** WP(Crl.) 276/18 -18- ## **NO. 521/2017 OF KASARAGOD POLICE STATION** **EXHIBIT-P26 TRUE COPY OF THE FIR IN CRIME NO. 325/2014 SERVED ON THE DETENU EXHIBIT-P27 TRUE COPY OF THE REPORT SUBMITTED BEFORE THE HONOURABLE SUB DIVISIONAL MAGISTRATE, KASARAGOD** **EXHIBIT-P28 TRUE COPY OF THE DETENTION ORDER DATED 12/02/2013** **EXHIBIT-P29 TRUE COPY OF THE GROUNDS FOR THE DETENTION ORDER DATED 12/02/2013** [TRUE COPY] jg