Sithara Chandran v. State of Kerala and Others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE ``` ``` & ``` ``` THE HONOURABLE MR. JUSTICE S.MANU ``` ``` WEDNESDAY, THE 29[TH] DAY OF MAY 2024 / 8TH JYAISHTA, 1946 ``` ``` WP(CRL.) NO. 442 OF 2024 ``` ## **`PETITIONER/S:`** ``` SITHARA CHANDRAN AGED 42 YEARS W/O. SUJITH KRISHNA, 'SURYAMANGALATH', TC. 91/1907(1), VAYANASALA JUNCTION, KARIKAKOM, THIRUVANANTHAPURAM, PIN - 695021 BY ADVS. R.HARIKRISHNAN (H-308) G.SUDHEER S.M.PRASANTH SMRITHI S.S. ``` ## **`RESPONDENT/S:`** ``` 1STATE OF KERALA REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY, HOME (SSA) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001 ``` ``` 2THE DISTRICT MAGISTRATE & DISTRICT COLLECTOR 2ND FLOOR CIVIL STATION BUILDING, CIVIL STATION ROAD, THIRUVANANTHAPURAM, KERALA, PIN - 695043 ``` ## W.P.(Crl.).No.442/2024 ## -:2:- - **`3 THE DEPUTY POLICE COMMISSIONER OFFICE OF COMMISSIONER OF POLICE, POLICE GROUND, CV RAMAN PILLAI RD, PANAVILA, THYCAUD, THIRUVANANTHAPURAM, KERALA, PIN - 695014`** - **`4 THE SUPERINTENDENT, VIYYUR PRISON CENTRAL PRISON AND CORRECTIONAL HOME, VIYYUR, THRISSUR, PIN - 680010`** ``` BY ADVS. ADVOCATE GENERAL OFFICE KERALA ``` ``` SR.ADV. GRASHIOUS KURIAKOSE ADDL.DIRECTOR GENERAL OF PROSECUTION(AG-11) ``` ``` THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 27.05.2024, THE COURT ON 29.05.2024 DELIVERED THE FOLLOWING: ``` ## W.P.(Crl.).No.442/2024 ## -:3:- ## **`J U D G M E N T`** ``` Dated this the 29[th] day of May, 2024 ``` ## **`A.Muhamed Mustaque, J.`** This writ petition was filed by the wife of the detenu challenging the detention order issued against her husband Sujith Krishna. The detention order was issued invoking Section 3(1) of the Kerala AntiSocial Activities (Prevention) Act, 2007 (for short, “ KAA(P)A”). 2. Detenu is involved in more than 28 crimes. Six cases were considered for issuing the detention order. Following are the 6 cases: - i. Crime No. 1612/2020 - Pettah Police Station - ii. Crime No. 1466/2020 - Poojappura Police Station - iii. Crime No. 114/2023 - Medical College Police Station iv. Crime No. 855/2023 - Fort Police Station - v. Crime No. 239/2024 - Pettah Police Station - vi. Crime No. 303/2024 - Pettah Police Station ## W.P.(Crl.).No.442/2024 ## -:4:- 3. Following are the calendar events in relation to the detention order: - i. Date of detention order: 23/3/2024 - ii. Execution of the detention order: 25/3/2024 - iii. Date of order of approval by the Government: 3/4/2024 - iv. Date of reference by the Government to the Advisory Board: 5/4/2024 4. The learned Senior Counsel appearing for the petitioner, Shri K.Ramakumar, submits that the detention order is legally flawed and erroneous. The learned Senior Counsel referred to Ext.P5 proceedings of the District Magistrate, Thiruvananthapuram, the authority competent to pass the order of detention dated 30/6/2023. In this proceeding, the District Magistrate opined that there was no ground to detain Sujith Krishna and, accordingly, the proposal was rejected. This proposal was rejected for the reason that the last prejudicial activity referred to in the proposal was on 27/12/2022 and therefore, the livelink between the last prejudicial activity and the purpose of detention is snapped. The learned Senior Counsel, pointing out to the subsequent registration of the case on 27/02/2024, would submit that the above crime cannot be reckoned to render the detenu as a known rowdy, as it W.P.(Crl.).No.442/2024 ## -:5:- arose out of a dispute with the neighbour. The learned Senior Counsel placed reliance on proviso (ii) to Section 2(p) of KAA(P)A. It is further submitted that when the detention authority has expressed its opinion that no detention can be ordered, that order cannot be reviewed by issuing another order. The learned Counsel further submitted that proceedings were initiated under Section 107 of the Criminal Procedure Code and impact of the proceedings were not considered in the impugned order. The learned Counsel further argued that if the crimes registered on 27/2/2024 are omitted from consideration, the live-link between the previous crimes and the detention order is snapped. On the other hand, the learned Additional Director General of Prosecution, Shri Grashious Kuriakose, argued that involvement of the detenu in 28 crimes itself would establish that detenu is a menace and threat to the society . The learned Additional Director General of Prosecution submits that after the commission of the crime, the detenu was involved in threatening the witnesses to restrain them from deposing against him. It is pointed out that the rowdy sheet was opened on 17/9/2020 and his activities are closely monitored. It is submitted that the detention W.P.(Crl.).No.442/2024 ## -:6:- authority considered all relevant aspects while passing orders. The learned Additional Director General of Prosecution refuted the allegation that the last crime was committed against a neighbour. It is submitted that such a dispute had no colour of a dispute between neighbours. 5. The learned Senior Counsel Shri K.Ramakumar placed reliance on the following judgments: **Kishori Mohan Bera v. The State of W. B.** (1972 KHC 647), **Abidha Beevi v. State of Kerala and Others** [2013 (1) KHC 308], **G.M. Shah v. State of J. and K.** (1980 KHC 541), **Chhagan Bhagwan Kahar v. N.L Kalna and Others** (1989 KHC 858), **Shaleer v. District Collector and District Magistrate, Kollam** (2023 KHC 169), **Prabhulla P. v. State of Kerala** (2024 KHC 1002) and **Nenavath Bujji v. State of Telangana** (2024 KHC 6164). 6. The learned Additional Director General of Prosecution placed reliance on the following precedent: **Stenny Aleyamma Saju v. State of Kerala and Others** [2017 (3) KHC 517]. 7. The foremost question that needs to be answered by us is whether the crimes alleged to have been committed by the detenu on ## W.P.(Crl.).No.442/2024 ## -:7:- 27/2/2024 should be excluded from consideration in determining the detenu as a known rowdy. Proviso (ii) to Section 2(p) of KAA(P)A states as follows: (ii) by virtue of his involvement as a neighbour or as a close relative of the neighbour in an incident which occurred due to a dispute between immediate neighbours 8. Two offences are registered on 27/2/2024. None of these offences indicate that the crimes arose consequent upon a dispute as neighbours. Crime No.239/2024, registered by the Pettah Police Station was registered on an allegation that the detenu trespassed into the shop run by the daughter of the de facto complainant in a crime registered against the detenu. This has nothing to do with the neighbouring dispute. Crime No.303/2024 is registered alleging that the detenu threatened the de facto complainant, who appears to have informed the Police about the alleged threat meted out to the person who is running a shop beside the house of the de facto complainant. This allegation also does not qualify to call it a neighbouring dispute **.** If these offences cannot be excluded, the impact of the earlier offences which were committed in the year 2020-23 would enable the authority to pass a W.P.(Crl.).No.442/2024 ## -:8:- detention order. Ext.P5 order was issued prior to the commission of the last prejudicial activity. Taking note of the lapse of time, as on the date of issuing Ext.P5 for passing a detention order, and reckoning from the last crime referred in the proposal, the District Magistrate opined that the live-link is snapped to initiate proceedings under the KAA(P)A. But that does not mean that those crimes are irrelevant for taking action based on subsequent crime registered against the detenu. All these offences are considered as relevant factors in determining whether the detenu is a threat to the society and if his activity will vitiate public order or not. In this matter, we are convinced that the detention authority applied its mind as to the nature of offence committed when passing an order under KAA(P)A to detain the detenu. The involvement of detenu in 28 offences is not something which can be overlooked by us. Although not all 28 offences were considered and relied on for passing the order, the detenu’s continued engagement in criminal activities indicates that he has not restrained himself from repeating the commission of offences and continues to pose threat to the society. It is to be noted that proceedings under Section 107 were initiated under W.P.(Crl.).No.442/2024 -:9:- Cr.P.C against the detenu. He also violated conditions of bail and these aspects were considered by the detention authority. Therefore, all relevant factors were considered by the detention authority while passing the detention order. The sponsoring authority was prompt in submitting a report immediately after registering the crime on 27/2/2024. The detention order was also passed on 23/03/24. No livelink has been snapped from the last prejudicial activity as on the date of passing of the detention order. In such circumstances, we find no reason to interfere with the impugned order. The Writ Petition (Crl) is, therefore, dismissed. ``` Sd/- ``` ## **`A.MUHAMED MUSTAQUE, JUDGE`** ``` Sd/- ``` ``` S.MANU, JUDGE ``` ``` ms ``` W.P.(Crl.).No.442/2024 ## -:10:- ## **`APPENDIX OF WP(CRL.) 442/2024`** ``` PETITIONER EXHIBITS Exhibit P1COPY OF THE DETENTION ORDER NO. DCTVM/3457/2024-S13 DATED 23.03.2024 ISSUED BY THE 2ND RESPONDENT UNDER SECTION 3 (1) OF THE KERALA ANTI-SOCIAL ACTIVITIES (PREVENTION) ACT, 2007 Exhibit P2COPY OF THE ORDER NO. HOME-SSA5/209/2024- HOME DATED 03.04.2024 ISSUED BY THE 1ST RESPONDENT UNDER SECTION 3(3) OF THE KERALA ANTI-SOCIAL ACTIVITIES (PREVENTION) ACT, 2007 APPROVING EXHIBIT P1 ORDER Exhibit P3COPY OF THE REPORT NO. 30/KAAPA/DCP(L&O)/TC/2024 DATED 20.03.2024 OF THE 3RD RESPONDENT Exhibit P4COPY OF THE REPORT NO. 30/KAAPA/DCP (L&O)/TC/2024 DATED 22.03.2024 ISSUED BY THE 3RD RESPONDENT Exhibit P5COPY OF THE ORDER NO. DCTVM/4220/2022-S13 DATED 30.06.2023 ISSUED BY THE 2ND RESPONDENT ```