Tessy Michael v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** ## **&** ## **THE HONOURABLE MR.JUSTICE N.NAGARESH** **THURSDAY, THE 05TH DAY OF SEPTEMBER 2019 / 14TH BHADRA, 1941** **WP(Crl.).No.287 OF 2019** ## **PETITIONER:** **TESSY MICHAEL, AGED 45 YEARS W/O.MICHAEL, T.C.NO.81/743, ATTUKAL HOUSE, ATTIPRA VILLAGE, THIRUVANANTHAPURAM.** **BY ADV. SRI.SHAJIN S.HAMEED** ## **RESPONDENTS:** **1 STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT, SECRETARIAT, THIRUVANANTHAPURAM, PIN CODE- 695001. 2 THE ADDITIONAL CHIEF SECRETARY TO GOVERNMENT, (HOME AND VIGILANCE), SECRETARIAT, THIRUVANANTHAPURAM, PIN CODE- 695001.** **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.** **R1-4 BY ADDL.DIRECTOR GENERAL OF PROSECUTION SRI.K.A. ANAS, PUBLIC PROSECUTOR** **THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 03-09-2019, THE COURT ON 05-09-2019 DELIVERED THE FOLLOWING:** **WP(Crl.) No.287 OF 2019** **2** ## **J U D G M E N T** ~ ~ ~ ~ ~ ~ ~ ~ ~ _Dated this the 5[th] day of September, 2019_ ## _**Nagaresh, J.**_ The petitioner, who is mother of John Paul,seeks to quash Ext.P5 order and to issue a writ of habeas corpus commanding the 4[th] respondent to produce John Paul and to set him at liberty. 2. Petitioner's son John Paul (hereinafter referred to as 'the detenu') is under detention under the Kerala Anti-Social Activities Prevention Act, 2007 (hereinafter referred to as 'the KAAPA' for brevity). The petitioner states that the detention is based on a report dated 31.12.2008 of the Deputy Commissioner of Police (Law & Order). Alleging that the detenu is a registered rowdy involved in five criminal cases, the Deputy Commissioner, as per Ext.P1, requested the District Magistrate to pass order of preventive detention **WP(Crl.) No.287 OF 2019** **3** invoking Section 3(1) of KAAPA. A supplementary report dated 21.01.2019, Ext.P2, was submitted stating that the detenu who was under judicial custody in connection with Crime No.1954/2018 was granted bail by the Court of Sessions. Yet another supplementary report dated 04.02.2019, Ext.P3, was also submitted along with a confession statement of the accused. Based on these reports, the District Magistrate on 05.03.2019 passed Ext.P5 order of detention, on grounds enumerated in Ext.P6. The order was executed on 08.03.2019. The order was approved by the Government on 18.03.2019. His case was referred to Advisory Board on 19.03.2019. The Board after hearing the detenu on 12.04.2019, reported on 29.04.2019 that there are sufficient causes to detain the person. Accordingly, as per Ext.P7, the petitioner was informed that the Government has confirmed the order of detention under Section 10(A) for a period of six months. 3. The petitioner contends that the time gap between the last prejudicial activity and the date of passing the **WP(Crl.) No.287 OF 2019** **4** detention order vitiates the order of detention. The detention order stated that the detaining authority has perused the bail order in Crime No.1954/2018 and confession statement of detenu. However, the detenu was not served with a copy of confession statement. In respect of the proceedings initiated against the detenu under Section 107 Cr.P.C., the detaining authority has not properly applied its mind. In fact, the sponsoring authority has misled the detaining authority, contends the petitioner. The sponsoring authority pressurised the detaining authority to pass Ext.P5 order. In view of the said reasons, the order of detention is vitiated. 4. Respondents 2 and 3 filed counter affidavits. The 2[nd] respondent stated that out of the five cases pointed out by sponsoring authority, the detaining authority reckoned four cases of anti-social activity, and these four cases are sufficient to conclude that detenu is a 'Known Rowdy'. The said four cases are :- _“(i) Crime No.632/2014 of Thumba Police Station registered under Sections 143, 147, 148, 149,_ **WP(Crl.) No.287 OF 2019** **5** _323, 506(ii), 447 & 427 IPC._ _(ii) Crime No.810/2015 of Thumba Police Station registered under Sections 143, 147, 148, 149, 363, 342, 323, 324, 506(ii) & 427 IPC._ _(iii) Crime No.1545/2016 of Thumba Police Station registered under Sections 143, 147, 148, 149, 323, 341, 294(b), 324 & 308 IPC._ _(iv) Crime No.1954/2018 of Valiyathura Police Station registered under Sections 143, 147, 148, 149, 323, 324 & 302 IPC.”_ There is no substantial delay in passing Ext.P5 order. The detaining authority was convinced that bail conditions stipulated in the order in Crime No.1954/2018, were not sufficient to prevent detenu's anti-social activities. Furthermore, the detenu has a history of violating bail conditions. All relevant documents including confession statement were served on the detenu. 5. The 3[rd] respondent - detaining authority in its counter affidavit pointed out that it was after starting Section 107 proceedings that the detenu was involved in a case of brutal murder. The order of detention was issued after **WP(Crl.) No.287 OF 2019** **6** properly evaluating the materials made available, with due application of mind. The preventive action is taken legally, in good faith and to protect safety of the general public. The writ petition is therefore liable to be dismissed, contended the 3[rd] respondent. 6. We heard Sri. Shajin S. Hameed, learned counsel for the petitioner and Sri.K.A. Anas, learned Public Prosecutor. 7. It will be appropriate to note the following dates and events, in order to analyse the issues involved. - _“(a) Date of order of detention : 05.03.2019 (b) Execution of the order of detention : 08.03.2019 (c) Submission of proposal to Government : 12.03.2019 (d) Date of order of approval by the Government : 18.03.2019 (e) Date of reference by the Government to the Advisory Board : 19.03.2019 (f) Date of report of the Advisory Board : 29.04.2019 (g) Date of confirmation of the order of detention : 09.05.2019 (h) Date of commission of last offence (last prejudicial activity) : 11.11.2018_ - _(i) Period between the last prejudicial activity and the date of order of the detention : 114 days (11.11.2018 - 05.03.2019)_ - _(j) Period between the date of the order of detention and its execution : 3 days (05.03.2019 - 08.03.2019)”_ **WP(Crl.) No.287 OF 2019** **7** The petitioner's prime contention is that the delay between last prejudicial activity and the order of detention would vitiate the detention order. 8. The last prejudicial activity based on which Crime No.1954/2018 of Valiyathura Police Station was registered, occurred on 11.11.2018, wherein the detenu along with his gang is alleged to have committed murder of the husband of the complainant and attempted to conceal the cruelsome act. The detention order was passed on 05.03.2019. Relying on the judgment of this Court in _**Ponnappan N.N. v. State of Kerala and others** [2018 (5) KHC 210]_ , the learned counsel for the petitioner contended that the delay of 114 days in passing detention order vitiates the order since the delay is not properly explained. It is to be noted that the detenu was arrested and remanded to judicial custody on 13.11.2018, within two days of the commission of offence. The sponsoring authority submitted his proposal on 31.12.2018. The detenu was granted bail in the said crime on 08.01.2019. In such circumstances, the detaining authority sought clarifications **WP(Crl.) No.287 OF 2019** **8** and the sponsoring authority submitted supplementary reports on 21.01.2019, 04.02.2019 and 25.02.2019. The order of detention was passed on 05.03.2019. In view of the factual situation, we find that the detaining authority was cautious and careful in calling for additional information/materials and the delay, if any, is properly explained. We do not find any reason to hold that due to the delay, the live link between the last prejudicial activity and the detention order is lost or that the impugned detention order is vitiated. 9. The further contention of the petitioner is that in view of the initiation of the proceedings against the petitioner under Section 107 Cr.P.C., the respondents ought not have invoked the provisions of KAAPA to pass a detention order and Ext.P5 order is therefore, unwarranted. According to the Public Prosecutor, Section 107 proceedings were initiated in February, 2018 as Crime No.271/2018 and on receipt of chargesheet, the Sub Divisional Magistrate had registered the case as M.C. No.1/2009. The sponsoring authority took note of the history of the detenu and reported that even if the **WP(Crl.) No.287 OF 2019** **9** detenu executes a bond under Section 107, the same will not deter the detenu from further commission of crimes. It has to be noted that it was after initiation of Section 107 proceedings that the detenu was involved in Crime No.1954/2018, which is under Sections 143, 147, 148, 149, 323, 324 and 302 IPC. Ext.P5 order would reveal that the detaining authority also has adverted to Section 107 proceedings and other crimes registered against the detenu, including the one registered after initiation of Section 107 proceedings. Furthermore, this Court has held in the judgment in _**Sakunthala v. State of Kerala and others** [2013 KHC 298]_ that pendency of Section 107 proceedings is no bar to initiate proceedings under KAAPA. We therefore, find no illegality in Ext.P5 order on that score. The counsel for the petitioner contended that the detenu was not served with any notice nor was he aware of initiation of Section 107 proceedings in February, 2018. Even if it is so, the said fact cannot have any impact on the subjective satisfaction to be arrived at by the detaining authority. **WP(Crl.) No.287 OF 2019** **10** 10. Counsel for the petitioner stated that Ext.P5 order was passed considering the confession statement also, but copy of the said statement was not served on him and that the said omission would vitiate detention order. However, the respondents in their counter affidavit, have stated that all relevant records including the confession statement in Crime No.1954/2018 were served on the detenu and he had acknowledged the same. Therefore, no interference in Ext.P5 detention order is called for on that ground also. In the circumstances of the case, we find no reason to interfere with Ext.P5 order of the 3[rd] respondent. The W.P. (Crl.) lacks merits and it is accordingly, dismissed. Sd/- **C.T. RAVIKUMAR, JUDGE** Sd/- **N. NAGARESH, JUDGE** aks/04.09.2019 **WP(Crl.) No.287 OF 2019** **11** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 PHOTOCOPY OF THE PROPOSAL NO.87/KAAPA/DCP(L&CO)/TC-2018 DATED 31.12.2018 SUBMITTED BY THE DEPUTY COMMISSIONER OF POLICE (LAW & ORDER), THIRUVANANTHAPURAM BEFORE THE 3RD RESPONDENT.** - **EXHIBIT P2 PHOTOCOPY OF THE SUPPLEMENTARY REPORT NO.87/KAAPA/DCP(L&O)/TC-2018 DATED 21.01.2019 ISSUED BY THE DEPUTY COMMISSIONER OF POLICE (LAW & ORDER), THIRUVANANTHAPURAM.** - **EXHIBIT P3 PHOTOCOPY OF THE ADDITIONAL SUPPLEMENTARY REPORT DATED 04.02.2019 OF THE DEPUTY COMMISSIONER OF POLICE (LAW & ORDER), THIRUVANANTHAPURAM.** - **EXHIBIT P4 PHOTOCOPY OF THE COMMUNICATION DATED 25.02.2019 ISSUED BY THE DEPUTY COMMISSIONER OF POLICE (LAW & ORDER), THIRUVANANTHAPURAM.** - **EXHIBIT P5 PHOTOCOPY OF THE ORDER NO.S.13-99/2019 DATED 05.03.2019 ISSUED BY THE 3RD RESPONDENT.** - **EXHIBIT P6 PHOTOCOPY OF THE GROUNDS FOR DETENTION ISSUED BY THE 3RD RESPONDENT.** **EXHIBIT P7 PHOTOCOPY OF THE ORDER G.O. (RT)NO.1245/2019/HOME DATED 09.05.2019 ISSUED BY THE 2ND RESPONDENT.**