Saraswathy D v. State of Kerala and District Collector and District Magistrate, Thiruvananthapuram

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** **THE HONOURABLE MR. JUSTICE ASHOK MENON** **WEDNESDAY,THE 23RD DAY OF JANUARY 2019 / 3RD MAGHA, 1940** ## **WP(C).No. 23602 of 2018** ## **PETITIONER/S:** ## **SARASWATHY.D** **MOTHER OF SREEJITH @ UNNI AND W/O.VIJAYAKUMARAN NAIR,AGED 51 YEARS, MANKARATHALA VEEDU, TC.19/124,PUNNAKKAMUGAL, THIRUMALA VILLAGE, RESIDING AT PURAMBOK LAND, NEAR KALLARAMADAM TEMPLE, THIRUMALA VILLAGE, THIRUVANANTHAPURAM DISTRICT,PIN - 695 006.** ## **BY ADV. SRI.K.K.KARAPPANKUTTY** ## **RESPONDENT/S:** **1 STATE OF KERALA REPRESENTED BY ADDITIONAL CHIEF SECRETARY,HOME (SSA) DEPARTMENT, GOVT. SECRETARIAT,THIRUVANANTHAPURAM - 695 001. 2 THE DISTRICT COLLECTOR AND DISTRICT MAGISTRATE CIVIL STATION, KUDAPPANAKUNNU P.O.,THIRUVANANTHAPURAM - 695 043.** ## **BY ADVS.** **ADDL.DIRECTOR GENERAL OF PROSECUTION SRI.K.A.ANAS, GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23.01.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WPC23602/18 -2- ## **K.VINOD CHANDRAN & ASHOK MENON, JJ.** ------------------------------------------WP(C) No.23602 of 2018 ------------------------------------------Dated this the 23[rd] day of January, 2019 **J U D G M E N T** ## Ashok Menon, J. Petitioner is the mother of Sreejith @ Unni, a detenu under the provisions of the Kerala Anti-Social Activities (Prevention) Act, 2007 ('KAAPA' for short), who has been ordered to be detained for being a known-rowdy, vide Ext.P1 order of the District Magistrate, Thiruvananthapuram dated 03.11.2017. The order of detention was confirmed vide Ext.P2 dated 18.04.2018 and the order is for detaining the detenu for a period of one year with effect from 28.02.2018. It is stated that the detenu has been implicated in all false and frivolous cases and the detaining authority has mainly relied upon the complaint of one Sivan @ WPC23602/18 -3- Santhosh Kumar, who has allegedly hatched conspiracy with the Poojappura Police for fabrication of cases. The FIR in one such crime (Crime No.852/15) is at Ext.P3. That apart, Crime No.1078/15, the FIR of which is at Ext.P4, coming under the Explosives Substances Act is also at the instance of the aforesaid Sivan. Certain fire crackers used in the nearby temple festival have been collected to implicate the detenu. The petitioner, therefore, seeks issuance of a writ of mandamus to quash Ext.P1 order of detention and to set the detenu at liberty. The learned counsel appearing for the petitioner submits that only one of the cases against the detenu is now pending before the Sessions Court and all other criminal cases have either been acquitted or quashed. 2. The second respondent has filed a counter affidavit stating that action was taken WPC23602/18 -4- against the detenu following a report filed by the Deputy Commissioner of Police, Thiruvananthapuram City dated 30.09.2017. It is stated that Crime No.1078/15 referred to in the petition by the petitioner and Crime No.437/16 of Poojappura Police Station were not reckoned for the issuance of the impugned order of detention, since those cases were registered _suo motu_ . Five cases in which the detenu was involved were considered for the objective and subjective satisfaction of the detaining authority. It is pointed out that the same detaining authority had issued six detention orders against the detenu earlier. After his release from the last detention, he got involved in five criminal cases. Admittedly, four out of six detention orders were set aside by the Government while two were confirmed based on the opinion of the Advisory Board. He was released from his last WPC23602/18 -5- detention on 08.10.2014, and thereafter, got involved in eight more criminal cases, out of which five cases have been relied upon by the detaining authority to pass the present order of detention. In the earlier instances also, detention was ordered consequent to the detenu being declared as a known-rowdy. The offences mentioned in five cases referred to in the detention order come within the purview of Section 2(t) of the KAAPA. It is pointed out that all procedural formalities were complied with and there are absolutely no infirmity sufficient to quash the detention order. 3. A reply affidavit has been filed by the petitioner, wherein also the petitioner reiterates that criminal cases were fabricated against the detenu. Copies of the earlier detention orders pertaining to the detenu are produced as Exts.P6 to P12. The petitioner has WPC23602/18 -6- also produced the status of the cases against the detenu concerning the detention orders and it is pointed out that only one case each pertaining to the first and sixth detention orders are pending before the Sessions Court, Thiruvananthapuram and CJM's Court, Thiruvananthapuram, respectively. It is admitted that four cases pertaining to the seventh detention are pending. 4. Heard the learned counsel for the petitioner and the learned Government Pleader. 5. The main argument of the learned counsel for the petitioner is that most of the cases involving the detenu have either ended in acquittal or have been otherwise disposed of or quashed by this Court. A list giving details of the disposal of the cases is produced as Ext.P13. 6. The learned counsel for the petitioner would also argue that mere registration of an FIR WPC23602/18 -7- against the detenu is not sufficient to order his detention. In support of his argument, the learned counsel relies on a Full Bench decision of this Court in _**2017 (3) KHC 517 [Stenny Aleyamma Saju v. State of Kerala and Others]**_ . 7. The detenu has been acquitted only in one out of the five cases which were considered for the last detention order, as per Ext.P13 statement filed by the petitioner. All the other cases are admittedly pending and posted for hearing before different courts. There is no dispute that the offences mentioned therein are of the nature, sufficient to attract Section 2(t) of KAAPA. That apart, as per Section 13(2)(i) of the KAAPA, if the detenu after his release from detention is found to have again involved in an offence of the nature described in Section 2(o) or 2(p) of KAAPA, at least in one instance, and he continues to be a WPC23602/18 -8- person falling within the definition of 'known rowdy', he can be confined again. In the instant case, the detenu was involved in eight criminal cases after his release on 08.10.2014. First crime was committed on 21.06.2015, and the last prejudicial act was on 22.06.2017. Reliance placed by the petitioner's counsel on the Full Bench decision of this Court in _**Stenny Aleyamma Saju**_ ( _supra_ ) will not come to the assistance of the detenu. The Full Bench of this Court had held thus: “28. This Court does not intend to say that mere registration of FIR is enough under such circumstances. Of course, something more is necessary which is collected by the Investigating Officer during the course of investigation. If the data collected in such process is adequate enough to meet the requirements under the Statute, so as to record the 'objective' as well as 'subjective satisfaction' to the extent it is necessary, it is open for the detaining authority to have it acted upon and need not wait till completion of the investigation and submission of the WPC23602/18 -9- charge sheet under Section 173 (2) of the Cr.P.C.” This observation would indicate that mere registration of an FIR may not be enough, and that the detaining authority has to its subjective satisfaction find that it is necessary to act upon the report of the recommending officer. Submission of the charge sheet under Section 173(2) of the Code of Criminal Procedure may not be necessary to enable the detaining officer to invoke the powers under Section 3 of the KAAPA and to pass detention order. 8. We have gone through the impugned order of detention and found that the detaining authority has gone through each of the cases filed against the detenu. Out of the eight cases in which the detenue was involved, only five were considered for the detention and therefore, there is absolutely no infirmity, whatsoever, in the WPC23602/18 -10- detention order. The allegation that the cases were false and fabricated, is not something which could be enquired into by the detaining authority at this stage. It is for the court, after trial, to determine whether the cases are false or fabricated. The learned Government Pleader has relied on the decision in _**2015 (4) KLT 632 [Anithakumari v. State of Kerala]**_ in support of his argument where it is held thus by a Division Bench of this Court. “Though it is the duty of the detaining authority, namely, the Government or the officer authorised, to arrive at the objective as well as subjective satisfaction, it is not within the domain of the detaining authority to make an enquiry as to whether the person concerned has really committed the offence, whether there is sufficient evidence to arrive at a conclusion that he is guilty of the offence or whether any plausible defence is available to the accused in the particular case. Those are all matters beyond the jurisdiction of the detaining authority.” WPC23602/18 -11- In view of the above, we find no reason, whatsoever, to interfere with the detention order passed by the detaining authority. The Writ Petition is, therefore, dismissed. No costs. **Sd/-** **K.VINOD CHANDRAN** **JUDGE** **Sd/-** **ASHOK MENON JUDGE** WPC23602/18 -12- ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1: TRUE COPY OF THE ORDER OF THE DISTRICT MAGISTRATE, THIRUVANANTHAPURAM NO.S13.64137/2017 EXHIBIT P2: TRUE COPY OF THE G.O.(RT) NO.1132/2018/HOME DATED 18/04/2018 EXHIBIT P3: TRUE COPY OF THE RELEVANT EXTRACT OF FIR NO.852/15 EXHIBIT P4: TRUE COPY OF THE RELEVANT EXTRACT OF THE FIR NO.1078/15 EXHIBIT P5 COPY OF THE ORDER NO.17/KAA(P)A/DCP(L&O)/ 2017TC DATED 30.9.2017. EXHIBIT P6 COPY OF THE ORDER OF DETENTION (ORDER ISSUED UNDER SECTION 3(1) OF THE KAAPA 2007) OF THE DISTRICT MAGISTRATE, THIRUVANANTHAPURAM IN FILE NO.S13.57585/09 DATED 12.8.2009. EXHIBIT P7 COPY OF ORDER OF DETENTION (ORDER ISSUED UNDER SECTION 3(1) OF THE KAAPA ACT) OF THE DISTRICT MAGISTRATE, THIRUVANANTHAPURAM IN FILE NO.S13.46019/11 DATED 20.7.2011. EXHIBIT P8 COPY OF ORDER OF DETENTION (ORDER ISSUED UNDER SECTION 3(1) OF THE KAAPA ACT) OF THE DISTRICT MAGISTRATE, THIRUVANANTHAPURAM IN FILE NO.S13.46692/12 DATED 28.5.2012. EXHIBIT P9 COPY OF ORDER OF DETENTION (ORDER ISSUED UNDER SECTION 3(1) OF THE KAAPA ACT) OF THE DISTRICT MAGISTRATE, THIRUVANANTHAPURAM IN FILE NO.S13.102691/12 DATED 26.12.2012. EXHIBIT P10 COPY OF ORDER OF DETENTION (ORDER ISSUED UNDER SECTION 3(1) OF THE KAAPA ACT) OF** -13- ## WPC23602/18 **THE DISTRICT MAGISTRATE, THIRUVANANTHAPURAM IN FILE NO.CC83/S13/79413/13 DATED 17.10.2013. EXHIBIT P11 COPY OF ORDER OF DETENTION (ORDER ISSUED UNDER SECTION 3(1) OF THE KAAPA ACT) OF THE DISTRICT MAGISTRATE, THIRUVANANTHAPURAM IN FILE NO.CC62/S13.33341/CAMP/14 DATED 17.5.2014. EXHIBIT P12 COPY OF ORDER OF DETENTION (ORDER ISSUED UNDER SECTION 3(1) OF THE KAAPA ACT) OF THE DISTRICT MAGISTRATE, THIRUVANANTHAPURAM IN FILE NO.S13.64137/17 DATED 3.11.2017 EXHIBIT P13 COPY OF THE STATUS OF DIFFERENT CASES IN THE STATEMENT FORM. EXHIBIT P14 COPY OF THE STATEMENT SHOWING STATUS OF DETENTION AS ON 01.11.2018.** [TRUE COPY] jg