Shanthakumari v. Union of India and Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** **&** ## **THE HONOURABLE MR.JUSTICE N.NAGARESH** **WEDNESDAY, THE 24TH DAY OF JULY 2019 / 2ND SRAVANA, 1941** **WP(Crl.).No.185 of 2019** ## **PETITIONER:** **SHANTHAKUMARI AGED 67 YEARS W/O.RAMACHANDRAN, PAYYAPATTIL HOUSE, PULLARMANGALAM DESOM, LAKKIDI PEROR VILLAGE, LAKKIDI P.O., PALAKKAD DISTRICT.** **BY ADVS.** **SRI.SADCHITH.P.KURUP MANAS P.HAMEED SMT.LAKSHMI.N.KAIMAL SMT.SINDHU K.S. SRI.C.P.ANIL RAJ SRI.RENJITH B.MARAR SRI.V.KRISHNADAS (K-541)** ## **RESPONDENTS:** - **1 UNION OF INDIA,REPRESENTED BY THE SECRETARY, MINISTRY OF LAW,NEW DELHI 110 001.** - **2 STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM 695 001.** - **3 THE SECRETARY,DEPARTMENT OF HOME AFFAIRS, SECRETARIAT, THIRUVANANTHAPURAM 695 001.** - **4 THE DISTRICT MAGISTRATE/DISTRICT COLLECTOR, COLLECTORATE, PALAKKAD 678 013.** - **5 THE SUPERINTENDENT OF POLICE, OFFICE OF THE SUPERINTENDENT OF POLICE, PALAKKAD 678 010.** - **6 INSPECTOR OF POLICE, SHO, OTTAPALAM, PALAKKAD 679 101.** W.P.(Crl.) 185/2019 2 **7 THE SUPERINTENDENT CENTRAL PRISON, VIYYUR, THRISSUR 680 010.** **BY ADVS.** ## **SRI.P.VIJAYAKUMAR,CGC** **PUBLIC PROSECUTOR SRI K.A ANAS.** **THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION ON 24.07.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(Crl.) 185/2019 3 ## **JUDGMENT** Nagaresh, J. Petitioner, mother of detenu Mr.Nishil, S/o.Ramachandran, is before this Court seeking to quash Exts.P1, P2, P5, P6 and P7 orders. The petitioner has sought other incidental and consequential reliefs also. 2. The petitioner states that by Ext.P1, the fifth respondentSuperintendent of Police submitted a report seeking detention of Mr.Nishil, under the Kerala Anti- Social Activities (Prevention) Act, 2007 (for short 'KAA(P)A'). Based on Ext.P1, Ext.P6 order of detention dated 25.01.2019 was passed by the fourth respondent-District Magistrate. The detention order was executed on 31.1.2019, from which date onwards Mr.Nishil is under detention. The order of detention was confirmed on 4.4.2019. 3. The learned counsel for the petitioner urged a number of legal grounds in the writ petition. The learned Public Prosecutor has filed counter affidavit on behalf of the second respondent vehemently opposing the legal grounds and prayers in the writ petition. 4. We have heard the learned counsel for the petitioner and the learned Public Prosecutor. The learned counsel for the petitioner mainly urged on the W.P.(Crl.) 185/2019 4 following grounds to aside the detention order:- 1. Bail order in respect of Crime No.658/2018, based on which crime also the detention order was passed, was forwarded to the detaining authority by the sponsoring authority. The detaining authority did not consider the conditions in the bail order for arriving at a conclusion as to the necessity of passing detention order. 2. In respect of the crimes on the basis of which the detention order was passed, two more bail orders were existing and these orders were not at all forwarded by the sponsoring authority to the detaining authority, though the bail bonds were forwarded. And the detaining authority did not consider the earlier detention orders passed against the detenu, while deciding the issue. 3. The detenu had submitted a representation to the Advisory Board, addressed to the Government. There is considerable delay in forwarding the representation to the Government. 5. A number of other grounds were also urged and argued by the learned counsel for the petitioner. However, initially we propose to go into the issue of non-consideration of bail orders. If the conditions in bail orders are not properly considered by the detaining authority and if the Authority has not considered the sufficiency or otherwise of the bail conditions, then this Court need not go into the other grounds urged by the petitioner. We are fortified by our view in the light of the decisions in **Pradeep Kumar v.** W.P.(Crl.) 185/2019 5 **Union of India [2012 (2) KLT 229]** and **Shajitha Suneer v. State of Kerala and others [2019 (2) KLD 10 (DB)]** . In the light of these decisions, we need only to see whether the bail orders in respect of the crimes based on which the detention order was passed, were produced and whether the detaining authority has applied its mind to the bail orders and bail conditions, before arriving at the conclusion of requirement of detention. 6. The detaining authority dealt with Crime No.658/2018 in the detention order and observed that the detenu is a known rowdy and is involved in number of antisocial activities. The detaining authority further found that there are no bail conditions operating in respect of the cases which are sufficient to prevent the detenu from committing further crimes. Though such an observation is there, Ext.P6 does not show that the detaining authority has actually considered the conditions contained in the bail orders. Therefore, it cannot be said that the detaining authority has applied its mind on the bail conditions stipulated in the bail orders. This factor is not reflected in Ext.P6. 7. In respect of Crime Nos.728/2017 and 1031/2017, bail orders were not forwarded to the detaining authority though the bail bonds were made available to it. A reading of Ext.P6 order shows that conditions in respect of W.P.(Crl.) 185/2019 6 the bail orders in these crimes were not considered by the detaining authority. The non-application of mind is due to the failure of the sponsoring authority to forward the copies of bail orders to the detaining authority. The learned Public Prosecutor urged that the detaining authority has seen these bail orders before passing Ext.P6 order. We have gone through Ext.P6 order in detail. There is nothing in Ext.P6 which would reveal that the authority has looked into the bail conditions. We find that the detaining authority has not applied its mind and such application of mind is not reflected in Ext.P6. Unless such application of mind is reflected in detention order, this Court cannot presume that the detaining authority has considered the sufficiency of bail conditions before issuing a detention order. Ext.P6 contains the documents which were considered by the detaining authority. There is not even a whisper in respect of bail orders in Crime Nos.728/2017 and 10.31/2017 in the detention order. In the circumstances, the irresistible conclusion is that the detaining authority has not looked into bail orders and bail conditions before arriving at the conclusion on requirement to pass detention order against the detenu. In view of the above, the impugned orders at Exts.P6 and P7 are vitiated and therefore, we do not propose to adjudicate on the other grounds urged by the petitioner. W.P.(Crl.) 185/2019 7 In the result, this Writ Petition (Crl.) is allowed and Exts.P6 and P7 are set aside. The detenu shall be released forthwith, in case his detention is not required in connection with any other case. Registry is directed to send the gist of this judgment forthwith to the Viyyur Central Prison. **Sd/-** **C.T.RAVIKUMAR JUDGE Sd/N.NAGARESH JUDGE** W.P.(Crl.) 185/2019 8 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE REPORT AND THE RECOMMENDATION OF THE 5TH RESPONDENT DATED 9.12.2018.** **EXHIBIT P2 TRUE COPY OF THE FIR ALONG WITH THE FINAL REPORT IN CRIME NO. 728 OF 2017 OF THE OTTAPPALAM POLICE STATION.** **EXHIBIT P3 TRUE COPY OF THE FIR IN FINAL REPORT OF CRIME NO. 1031/2017 OF THE OTTAPPALAM POLICE STATION.** **EXHIBIT P4 TRUE COPY OF FIR OF FINAL REPORT IN CRIME NO. 658/2018.** **EXHIBIT P5 TRUE COPY OF THE RECOMMENDATION OF THE 5TH RESPONDENT DATED 31.12.2018.** **EXHIBIT P6 TRUE COPY OF THE ORDER DATED 25.1.2018 PASSED BY THE 4RD RESPONDENT. EXHIBIT P7 TRUE COPY OF THE ORDER DATED 4.4.2019 ISSUED BY THE 2ND RESPONDENT.** ## **RESPONDENTS' EXHIBITS:NIL** ## **spc/**