Thara, W/o. RADHAKRISHNA PILLAI v. STATE OF KERALA

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH** ## **WEDNESDAY, THE 12TH DAY OF NOVEMBER 2014/21ST KARTHIKA, 1936** ## **WP(Crl.).No. 411 of 2014 (S)** **-----------------------------------------------** **PETITIONER(S):** **-----------------------** **THARA, W/O.RADHAKRISHNA PILLAI, KALLACHEZHATH VEETTIL, PUTHUKKAD MURI, CHAVARA VILLAGE, KARUNAGAPPALLY TALUK, KOLLAM DISTRICT.** **BY ADVS.SRI.C.RAJENDRAN SMT.R.S.SREEVIDYA** **RESPONDENT(S):** - **----------------------------** ## **1. STATE OF KERALA,** - **REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY, (SECRETARY, HOME AFFAIRS), SECRETARIAT THIRUVANANTHAPURAM, PIN-695 001.** **2. THE DISTRICT COLLECTOR AND DISTRICT MAGISTRATE, COLLECTORATE, KOLLAM-691 013.** **3. THE CITY POLICE COMMISSIONER, KOLLAM CITY, KOLLAM-691 001.** **4. THE ASSISTANT COMMISSIONER OF POLICE, KARUNAGAPPALLY, KARUNAGAPPALLY P.O., KOLLAM, PIN-690 518.** **5. THE CIRCLE INSPECTOR OF POLICE, CHAVARA, CHAVARA P.O., KOLLAM DISTRICT, PIN-691 583.** **6. THE SUB INSPECTOR OF POLICE, CHAVARA POLICE STATION, CHAVARA P.O., KOLLAM DISTRICT, PIN-691 583.** ## **7. THE SUPERINTENDENT,** - **CENTRAL PRISON, VIYYUR, THRISSUR, PIN-680 010.** **8. THE HON'BLE CHAIRMAN, THE ADVISORY BOARD, THE KERALA ANTI-SOCIAL ACTIVITIES (PREVENTION) ACT 2007, VIVEKANANDA NAGAR, PADAM ROAD, ELAMAKKARA P.O. ERNAKULAM, PIN-682026.** **R1-R7 BY SRI.TOM JOSE PADINJAREKKARA, ADDL.DIRECTOR GENERAL OF** **PROSECUTION** **THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 12-11-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **DG** **WP(Crl.).No. 411 of 2014 (S)** ## **-----------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** ## **-------------------------------------** - **P1: COPY OF THE DETENTION ORDER NO.M9-15110/2014/KAAPA DATED 8/5/2014 ISSUED BY THE 2ND RESPONDENT.** - **P2: COPY OF THE CERTIFICATE NO.UH/645/2014 DATED 9/7/2014 ISSUED BY THE ORTHOPEDIC SURGEON, UPASANA HOSPITAL, KOLLAM TO THE PETITIONER.** - **P3: COPY OF THE COMPLAINT DATED 2/4/2014 SUBMITTED BY THE PETITIONER BEFORE THE 6TH RESPONDENT.** - **P4: COPY OF THE COMPLAINT DATED 27/6/2014 SUBMITTED BY THE PETITIONER BEFORE THE POLICE COMPLAINT AUTHORITY.** - **P5: COPY OF THE COMPLAINT DATED 5/7/2014 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.** - **P6: COPY OF THE COMPLAINT DATED 17/7/2014 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT.** - **P7: COPY OF THE ORDER NO.65990/SS A5/2014/HOME DATED 23/07/2014 ISSUED BY THE 1ST RESPONDENT.** - **P8: COPY OF THE ORDER NO.65990/SSA 5/2014/HOME DATED 24/07/2014 ISSUED BY THE 1ST RESPONDENT.** - **P9: COPY OF THE JUDGMENT DATED 18/8/2014 IN S.C.NO.284/2013 OF THE ASSISTANT SESSIONS COURT, KARUNAGAPPALLY.** - **RESPONDENT(S)' EXHIBITS - NIL** - **---------------------------------------** ## **//TRUE COPY//** **P.A TO JUDGE** **'CR'** # **THOTTATHIL B.RADHAKRISHNAN & BABU MATHEW P. JOSEPH, JJ.** ----------------------------------------------------------------- W.P.(Crl.) No.411 of 2014 ------------------------------------------------------------------Dated this the 12[th] day of November, 2014 ## **J U D G M E N T** ## **Thottathil B.Radhakrishnan, J.** - 1.Heard the learned counsel for the petitioner and the learned Public Prosecutor. - 2.This writ petition is filed challenging a detention order under the provisions of Kerala Anti-social Activities (Prevention) Act, 2007, for short, 'KAAPA'. It is filed by the mother of the detenu. - 3.The learned counsel for the petitioner argued that the detention order was passed on 8.5.2014 and is shown to have been executed on 14.7.2014, though the detenu was arrested in connection with a crime on 18.6.2014. It is argued that **2** _WP(Crl.).411/14_ there is enormous delay in executing the detention order under KAAPA and, therefore, the live link did not exist to have the detention order imposed by execution on 14.7.2014. He further argued that the approval order was on 23.7.2014 and such approval is also without jurisdiction inasmuch as, according to the detenu, the impugned detention order was actually executed much earlier to 14.7.2014. The learned counsel further argued that the materials relied on by the detaining authority to arrive at the so called objective satisfaction and subjective satisfaction to pass the detention order do not cohesively continue to be in existence inasmuch as the Assistant Court of Sessions, Karunagappally had acquitted the accused in one of the cases, as is evident from Exhibit P9. Though not pleaded in the original petition, it was pointed out that the detention order speaks of earlier proceedings under Section 107 Cr.PC, though it does not disclose as to whether the detaining authority was satisfied that proceedings under Section 107 Cr.PC were insufficient to regulate the conduct of the petitioner. It is submitted that the protective covenants of the Constitution in terms of Article 22(5) and the statutory provisions in KAAPA **3** _WP(Crl.).411/14_ stand abridged by the impugned action. 4.Per contra, the learned Additional State Public Prosecutor argued that there is no inexcusable or undue delay in the matter of executing the detention order, and the police thought it appropriate to take the person into custody on 18.6.2014 from the Upasana Hospital, Kollam, where he was undergoing treatment following injuries which appear to have been the result of certain criminal transactions. He argued that having regard to the nature of the person, it may be a case where the police thought it appropriate to conclude the proceedings in relation to the criminal case in which he was wanted and, therefore, the mere fact that the detention order was executed only on 14.7.2014 does not make any difference, more peculiarly because, the criminal court had not granted him bail following the arrest from the hospital on 18.6.2014. He further argued that while it is true that the detention order speaks of earlier proceedings under Section 107 Cr.PC, it was no more relevant for consideration, having regard to the time lag of more than two years between the proceedings under Section **4** _WP(Crl.).411/14_ 107 Cr.PC and the detention order. He also said that no steps were taken in furtherance of the initiation of such proceedings by registration of a case under Section 107 Cr.PC and by including the petitioner's name in the rowdy list. He also submitted that copies of all materials relied on by the detaining authority in the detention order were served on the detenu along with the detention order with the grounds of detention and there is no reason shown to the effect that the detaining authority had not arrived at the requisite objective satisfaction and subjective satisfaction for the purpose of passing the detention order under KAAPA. - 5.The detention order takes note of all cases which were relevant to arrive at objective satisfaction and the said detention order reflects the fact that the detaining authority had arrived at subjective satisfaction that it is necessary to cover the detenu under the provisions of KAAPA. It discloses the grounds of detention. All materials relied in the grounds of detention were served on the detenu at the time of execution of the detention order. We see no ground to interfere on this point. **5** _WP(Crl.).411/14_ 6.As far as the alleged delay in execution of the detention order is concerned, we are of the view that the detenu having been taken into custody on 18.6.2014 in accordance with the provisions of the Code of Criminal Procedure governing arrest, he was under police custody and was immediately produced before the jurisdictional magistrate and then, the said person continued under judicial custody following a remand order. Thereupon, the jurisdictional police moved the Judicial Magistrate for sanction and clearance to execute the detention order under KAAPA on the detenu, since he was under judicial custody. It appears that the matter was held up before the Judicial Magistrate for about 20 days and thus, the police authorities were incapacitated from executing the preventive detention order under KAAPA. That does not really make any difference because, the detenu had not obtained any order in the criminal case in relation to which he was arrested and detained in terms of the remand order. Therefore, he was well within the protective cover to keep him away from creating any situation which would fall under KAAPA provisions. The execution of the detention order under KAAPA on 14.7.2014 **6** _WP(Crl.).411/14_ cannot, therefore, be treated as delayed or that the live link between that order and the point of time of its execution had broken. We see no ground to grant relief to the detenu on this ground as well. - 7.We are also not impressed by the plea on behalf of the petitioner that there was inordinate delay in effecting the arrest. Obviously, we cannot but visualize that the detenu was dubiously escaping from the clutches of law following the alleged commission of offence, for which he was wanted by the police, as submitted by the learned Public Prosecutor. - 8.The petitioner has raised yet another grievance. She says that she had made a complaint to the Police Complaints Authority about the conduct of some police officers. This includes allegations that there were attempts to harass her and her husband and later, her son, all aimed at the petitioner, since she had not conceded to unsolicited advances of some police persons attempting to visit her person. On our query, the learned Public Prosecutor says, on instructions, that the State **7** _WP(Crl.).411/14_ Police Complaints Authority is investigating that matter and has issued notice to the officers concerned and written statement of defence has been obtained. That proceedings will, obviously, go to its logical end. 9.The learned counsel for the petitioner argued that the representation made to the detaining authority, as also to the Government obtained, what he called a ritualistic burial for no effective consideration of the contentions raised in those representations. Having gone through the impugned decisions, we think that in such matters, it is not necessary for the detaining authority or the Government to express beyond what has now been stated, more particularly, when judicial review of the detention order does not necessarily depend upon the conclusions arrived at by the Government or the detaining authority on such representations. Since the Government has taken a decision on the representation, we are not impressed to hold that the District Magistrate, being the detaining authority, should have independently further considered the representation before confirming the detention order. **8** _WP(Crl.).411/14_ 10.The next argument on behalf of the detenu is that there is no effective cognizance by the detaining authority of the fact that proceedings were proposed to be initiated under Section 107 Cr.PC. The question whether such proceedings were initiated and carried to its hilt in terms of that provision was not looked into by the detaining authority. Even if proceedings under Section 107 Cr.PC were not carried forward after its initiation, reason if any, for not proceeding further with that action, is also not considered or reflected in the detention order. True, provisions under Section 107 Cr.PC are not to be treated as an alternative, to be always available when provisions of KAAPA are being invoked. But, the fact of the matter remains that if there was a proposal to initiate action under Section 107 Cr.PC, it is the bounden duty of the detaining authority to be aware of the fact that such proceedings were proposed and such proposal was either carried to its logical end or dropped. Whatever be the consequences of such proceedings, the question whether those proceedings would be sufficient is a relevant matter for consideration at the hands of the detaining authority. The learned Public Prosecutor points out that there is inordinate **9** _WP(Crl.).411/14_ time gap between the proceedings under Section 107 Cr.PC and the impugned detention order. That may be true. But, the fact that proceedings under Section 107 Cr.PC were dropped would not be irrelevant at that point of time. It was not found necessary that the person need not be proceeded against even under Section 107 Cr.PC. We say this because, a detaining authority exercising jurisdiction under KAAPA should necessarily be vigilant on every count to ensure that liberty of a citizen is not encroached upon, except within the strict limits prescribed in terms of the Constitution of India and KAAPA. The liberty doctrine in the Constitution should always be the guiding beacon when such exercise is carried out by the detaining authority. - 11.In the case in hand, though we do not see that any specific ground has been raised in the original petition against the detention order to put the challenge under the consideration or non-consideration of proceedings under Section 107 Cr.PC, being a matter relating to preventive detention law, we are sure that once a Court notices the existence of such a situation **10** _WP(Crl.).411/14_ emanating out of the detention order and the facts placed before the Court, it is its bounden duty to examine that as well, particularly, to find whether there was any prejudice caused to the detenu by non-consideration or non-disclosure of materials relating to that proceeding under Section 107 Cr.PC. 12.For the aforenoted reasons, we are of the view that while the detention order is not liable to be interfered with on any ground other than that referable to the proceedings under Section 107 Cr.PC as noted above, and, therefore, it calls for interference to the limited extent by ordering release of the detenu on conditions which would provide the police sufficient surveillance for the remaining period covered by the impugned detention order, that is to say, till 14.1.2015. The jurisdiction under Article 226 of the Constitution being discretionary, also includes the authority to mould relief even in such cases where it is seen that ends of justice would be satisfied by regulating the activity of the detenu after his release in such cases. See for support, **Ashraf v. Inspector General of Police [2014 (3) KLT 722]** . We also note that from the execution of the **11** _WP(Crl.).411/14_ detention order on 14.7.2014, the detenu is undergoing detention for the last about four months. For the foregoing reasons, it is ordered that the detenu covered by Exhibit P1 order shall be released, if he is not wanted in connection with any other case, on condition that he will report in the office of the 5[th] respondent, Circle Inspector of Police, Chavara, Kollam District, on every Wednesday, between 11 a.m. and 1 p.m., following his release in terms of this judgment, until 14.1.2015. The Registry is directed to send the gist of the judgment forthwith to the prison concerned, where the detenu is undergoing incarceration. ## **(THOTTATHIL B.RADHAKRISHNAN, JUDGE)** ## **(BABU MATHEW P. JOSEPH, JUDGE)** DG