Kerala High Court
Shajitha Suneer vs State Of Kerala on 11 June, 2019
Equivalent citations: AIRONLINE 2019 KER 281, 2019 CRI LJ (NOC) 581, (2019) 3 KER LJ 203, (2019) 3 KER LT 388
Bench: C.T.Ravikumar, N.Nagaresh
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR
&
THE HONOURABLE MR.JUSTICE N.NAGARESH
TUESDAY, THE 11TH DAY OF JUNE 2019 / 21ST JYAISHTA, 1941
WP(Crl.)No.154 of 2019
PETITIONER:
SHAJITHA SUNEER,
AGED 34 YEARS
W/O. SUNEER, VATTAPARAMBIL HOUSE, AKALAD P.O,
CHAVAKKAD, THRISSUR DISTRICT 680 518
BY ADVS.
SRI.VIPIN NARAYAN
SRI.VISHNU BABU
SRUTHY N. BHAT
RESPONDENTS:
1 STATE OF KERALA,
REPRESENTED BY ADDITIONAL CHIEF SECRETARY TO
GOVERNMENT, HOME DEPARTMENT, SECRETARIAT,
THIRUVANANTHAPURAM 695 001
2 THE DISTRICT COLLECTOR & DISTRICT MAGISTRATE,
COLLECTORATE, THRISSUR 680 003
3 DISTRICT POLICE CHIEF,
THRISSUR CITY, THRISSUR 680 009
4 STATION HOUSE OFFICER,
VADAKKEKKAD POLICE STATION, THRISSUR DISTRICT 679 562
5 SUPERINTENDENT,
CENTRAL PRISON, VIYYUR 680 010
BY ADV. ADDL.DIRECTOR GENERAL OF PROSECUTION
SRI. K.A ANAS, PUBLIC PROSECUTOR
THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON
07.06.2019, THE COURT ON 11.06.2019 DELIVERED THE FOLLOWING:
WP(Crl.)No.154 of 2019
2
[CR]
JUDGMENT
~~~~~~~~~ Nagaresh, J.
Wife of a detenu who is accused in as many as 14 crimes since 2015, seeks to quash Ext.P1 detention order and to produce the body and set the detenu at liberty, by issuance of a writ of Habeas Corpus.
2. The petitioner states that the 3rd respondent-District Police Chief submitted Ext.P5 report dated 17.12.2018, based on which her husband Suneer @ Noorudheen has been detained as per Ext.P1 detention order dated 15.01.2019 issued under Section 3(i) of the Kerala Anti-Social Activities (Prevention) Act, 2007 ('KAAPA', for short) . The order was executed on 17.01.2019 and the grounds of detention was served on the detenu. Ext.P1 order has been passed without due and proper application of mind, contends the petitioner. WP(Crl.)No.154 of 2019 3
3. Ext.P1 detention order would reveal that the following are the 14 cases taken into account for treating the detenu as 'Known Rowdy' as defined under Section 2(p)(ii)(iii) of KAAPA:-
1. Crime No.707/2015 under Sections 341, 323 read with Section 34 IPC of Vadakkekkad Police Station.
2. Crime No.828/2015 under Sections 341, 506(i), 294(b) read with Section 34 IPC of Vadakkekkad Police Station.
3. Crime No.996/2014 under Sections 341, 323, 324, 326, 506(ii), 427 read with Section 34 IPC of Vadakkekkad Police Station.
4. Crime No.93/2015 under Sections 341, 323, 324, 294(b) IPC of Chavakkad Police Station.
5. Crime No.1507/2015 under Sections 506(i), 308 IPC of Chavakkad Police Station.
6. Crime No.924/2015 under Sections 452, 341, 323, 506(i) IPC of Vadakkekkad Police Station.
7. Crime No.1587/2016 under Sections 341, 323, 324, 506(ii) IPC of Vadakkekkad Police Station.
8. Crime No.52/2017 under Sections 376, 406, 420 IPC of Chavakkad Police Station.
9. Crime No.753/2017 under Sections 323, WP(Crl.)No.154 of 2019 4 506(i) IPC of Chavakkad Police Station.
10. Crime No.754/2017 under Sections 451, 506(i) IPC of Chavakkad Police Station.
11. Crime No.377/2018 under Sections 354(A), 354(D) IPC of Chavakkad Police Station.
12. Crime No.605/2018 under Sections 341, 323, 324, 294(b) IPC of Chavakkad Police Station.
13. Crime No.962/2018 under Sections 294(b), 506(i) IPC of Kunnamkulam Police Station.14. Crime No.923/2015 under Section 353
IPC of Vadakkekkad Police Station.
Among the aforestated, Crime No.923/2015 of Vadakkekkad Police Station is one suo motu registered by the police.
4. The learned counsel for the petitioner Sri.Vipin Narayan argued that an order under Section 3(i) of the KAAPA is preventive in nature. The order of preventive detention being subject only to subjective satisfaction of detaining authority and not being based even on minimal appreciation of evidence, thorough application of mind by the detaining authority shall precede. Application of mind by the detaining authority is a condicio sine quo non. However, it is the WP(Crl.)No.154 of 2019 5 non-application of mind which is writ large and protruding in the detention order.
5. To drive home the point, learned counsel for the petitioner pointed out that Crime No.52/2017 of Chavakkad Police Station was in respect of an incident occurred on 18.03.2016. This Court granted bail to the detenu in B.A. No.693/2017 on 06.02.2017 with the following conditions:-
"(i) The petitioner shall be released on bail on his executing a bond for Rs.50,000/- (Rupees fifty thousand only) with two solvent sureties each for the like sum to the satisfaction of the lower court concerned.
(ii) He shall appear before the investigating officer between 10.00 a.m. and 11.00 a.m. every first and third Saturdays for two months, or till the final report is filed, whichever is earlier.
(iii) He shall not intimidate or attempt to influence the witnesses, nor shall he get himself involved in any other criminal case.
(iv) He shall surrender his passport before the lower court concerned or if he does not have one, he shall file an affidavit to that effect within five days of his release.
(v) He shall not leave the State of Kerala without the previous permission of the court of enquiry or trial court as the case may be."WP(Crl.)No.154 of 2019 6
The third condition would prevent the detenu from further commission of any crime without there needing any more preventive measures, contended counsel for the petitioner. Though copy of the said order in B.A. No.693/2017 was placed by the sponsoring authority, the detaining authority did not consider the sufficiency of the bail conditions and proceeded to order detention.
6. Learned counsel for the petitioner, with reference to Ext.P1, pointed out that the necessity of detention has been said to be based on two aspects. Firstly, in spite of initiation of proceedings under Section 107 Cr.P.C. against the detenu, further committing of crimes could not be stopped. Secondly, the bail orders already granted to the detenu did not contain conditions sufficient to prevent him from commission of further crimes. The fact that Exts.P14 and P22 bail orders contained sufficient conditions, was neither noted nor adverted to by the detaining authority, which would reveal non-application of mind.
WP(Crl.)No.154 of 20197
7. The Court of the Judicial First Class Magistrate, Kunnamkulam granted bail to the detenu in CMP No.8542/2015 in Crime No.924/2015 of Vadakkekkad Police Station, on 20.10.2015. This order also contained a condition to the effect that the accused-detenu shall not commit similar offences while on bail. The sponsoring authority did not supply a copy of the bail order to the detaining authority, who had no occasion to consider the same. This has vitiated Ext.P1 order of detention, contended the learned counsel for the petitioner.
8. It was further pointed out that in Crime No.93/2015 of Chavakkad Police Station, the Sessions Judge rejected detenu's bail application on 08.08.2017. In the said crime, this Court granted bail as per order in Crl. M.C. No.5699/2017 on 29.08.2017. The order of this Court granting bail was not sent to the detaining authority. Non-consideration of relevant documents by the detaining authority and non-application of mind on the materials before it, has vitiated the detention WP(Crl.)No.154 of 2019 8 order. The learned counsel for the petitioner relied on the judgments of the Apex Court in M.Ahamedkutty v. Union of India & another [(1990) 2 SCC 1], P.U. Abdul Rahiman v. Union of India [AIR 1991 SC 336], A. Sowkath Ali v. Union of India [AIR 2000 SC 2662] and Usha Agarwal v. Union of India & Others [(2007) 1 SCC 295] in support of his contentions. The counsel also relied on judgments of this Court reported in Pradeep Kumar v. Union of India [2012 (2) KLT 229], Prasannakumari v. State of Kerala [2012 (2) KHC 42], Nalini v. State of Kerala & Others [ILR 2014 (1) Ker. 281], Mohanan v. State of Kerala & Others [2014 KHC 3501] and Abdul Wahab v. State of Kerala [2017 (3) KLT 548] to drive home the point.
9. Sri.Vipin Narayan, learned counsel for the petitioner, further argued that Crime No.377/2018 relates to the alleged forwarding of obscene pictures by the detenu, to the de facto complainant who is a woman. The complainant herself stated that the mobile phone in which pictures were WP(Crl.)No.154 of 2019 9 sent to her, was of her husband and the mobile phone was later destroyed. Had the detaining authority read the statement of complainant made under Section 161 Cr.P.C., the authority would have concluded that the case was concocted. Similarly, the allegation of brutal attack in Crime No.962/2018 would have fallen on its face, had the detaining authority perused the wound certificate placed before her. Similarly, the detaining authority omitted to note that Crime No.923/2015 was only a counter case.
10. Lastly, it was contended that crimes listed at Sl. Nos.11 to 14 which were subsequent to Crime No.52/2017, do not in any manner tend to infringe public order and hence a detention order treating the detenu as a 'Known Rowdy' was unwarranted. The counsel relied on the judgment in Pushkar Mukherjee & Others v. The State of West Bengal [AIR 1970 SC 852].
11. Learned Public Prosecutor Sri.K.A. Anas vehemently opposed the writ petition and advanced plausible WP(Crl.)No.154 of 2019 10 arguments. The learned Public Prosecutor pointed out that the detenu was convicted in two crimes, but still he was indulging in further anti-social activities on a continuous manner and got involved in various crimes like Rape, Hurt and Molestation and became a serious threat to peaceful life of general public. Even proceedings initiated under Section 107 Cr.P.C. did not deter the detenu from committing further crimes. Again, the Sub Divisional Magistrate caused the detenu to execute a bond to keep peace, on 31.10.2018. After execution of the bond, on the same day, the detenu involved himself in further crime. If proceedings and punishments under general laws were sufficient, the detenu would not have continued his criminal activities one after another.
12. The Public Prosecutor asserted that all procedural formalities, which should precede an order under Section 3(i) of KAAPA, were strictly adhered to. All relevant documents were supplied to the detenu. As regards non-consideration of WP(Crl.)No.154 of 2019 11 bail application and bail order in Crime No.93/2015, those documents cannot be considered as important documents and the detaining authority has not relied on those documents in detention order. The sponsoring authority has not intentionally suppressed that order. So also, the sponsoring authority was not aware of any bail granted to detenu in Crime No.753/2017 of Chavakkad Police Station and there was no deliberate suppression of documents.
13. The Public Prosecutor cited the judgment of Apex court in K.Varadharaj v. State of T.N. & another [(2002) 6 SCC 735] wherein it was stated that placing of the application for bail and the order made thereon is not always mandatory. The judgment in Abdul Sathar Ibrahim Manik v. Union of India & Others [(1992) 1 SCC 1] was also relied on to contend that non-supply of documents, which are fully within the knowledge of the detenu, would not cause prejudice. The judgment in Usha Agarwal v. Union of India & Others [(2007) 1 SCC 295] was relied on to urge that when withheld WP(Crl.)No.154 of 2019 12 documents were not relevant to decide detenu's propensity to continue prejudicial activity, such withholding will not vitiate detention order. Relying on the judgment of this Court in Thahira v. State of Kerala & Others [2013 (4) KLT 626], learned Public Prosecutor argued that there is distinction between documents which form grounds of detention and documents which are merely referred to in the order of detention.
14. As regards non-consideration by detaining authority of bail conditions relating to Crime No.52/2017, the Public Prosecutor contended that non-consideration of those bail conditions was immaterial since in spite of those conditions, the detenu continued to commit crimes. It was further argued that no such conditions in fact existed as on the date of detention order since by then bail was executed and the detenu was released based on bond executed by him. Further more, the detaining authority considered only Crime Nos.377/2018, 605/2018 and 962/2018 to decide on the WP(Crl.)No.154 of 2019 13 necessity to pass the detention order. There were no bail conditions in those three cases. Non-consideration of bail conditions, if any, in other crimes is irrelevant and immaterial.
15. On the question of non-consideration of Section 161 Statement relating to Crime No.377/2018 and of the wound certificate in Crime No.962/2018, the learned Public Prosecutor argued that it is not within the domain of the detaining authority to appreciate evidence available and to come to the conclusion of guilt or otherwise of the detenu. The Public Prosecutor relied on judgments of this Court in Anithakumari v. State of Kerala & Others [2015 (4) KLT 632] and Jayalekshmi v. State of Kerala & Others [2015 (4) KLT 942]. As has been held in P.Saravanan v. State of T.N. & Others [(2001) 10 SCC 212], it is the cumulative effect from the materials placed before the detaining authority, that resulted in the order of detention. The detention order has been passed in the larger interest of public order and of the society. By his spree of crimes in spite of bail conditions and WP(Crl.)No.154 of 2019 14 Section 107 proceedings, the detenu has clearly shown his propensity to continue and commit further crimes. Ext.P1 detention order is therefore only to be upheld, strongly urged the learned Public Prosecutor.
16. We have perused the pleadings and considered the arguments advanced by the counsel on either side. The prime ground urged on behalf of the petitioner is non-application of mind with specific regard to non-consideration of bail orders and the conditions stipulated therein.
17. In Crime No.52/2017 of Chavakkad Police Station wherein the detenu was accused of offences under Sections 376, 406 and 420 IPC, he was granted bail by this Court on condition that the detenu shall not get himself involved in any other criminal case. Order in the said B.A. No.693/2017 dated 06.02.2017 of this Court formed part of the records forwarded by the sponsoring authority. But, Ext.P1 detention order would reveal that the detaining authority did not advert to the WP(Crl.)No.154 of 2019 15 bail order or the conditions stipulated therein in order to decide whether a detention order under KAAPA is warranted. The defence of the respondents is that detaining authority did consider only the last three crimes to pass Ext.P1 order and there were no conditions in the bail orders in those three crimes. Further argument is that even if there were stringent conditions in certain bail orders, since those conditions were evidently violated by the detenu subsequently, inadvertence to those bail orders is of no consequence, inasmuch as even if the bail orders were adverted to, the authority would have still passed the detention order in view of the violation of bail conditions.
18. From the pleadings and arguments, it has come out that in respect of Crime No.924/2015 of Vadakkekkad Police Station, the JFCM, Kunnamkulam passed bail order on 20.10.2015, which also contained a condition that the accused shall not commit similar offences while on bail. This bail order in CMP No.8542/2015 of JFCM, Kunnamkulam was not WP(Crl.)No.154 of 2019 16 forwarded to or placed before the detaining authority.
19. In the judgment in K.Varadharaj v. State of T.N. & another (supra), the Apex Court observed that placing of bail application and bail order is not mandatory and such requirement would depend upon facts of each case. In the judgment in M.Ahamedkutty v. Union of India & another (supra), the Apex Court indicated as to when such documents become relevant. If consideration of a document is likely to impair the subjective satisfaction of detaining authority, the document would be vital. The judgment in M.Ahamedkutty (supra) was followed by the Apex Court in P.U.Abdul Rahiman v. Union of India & Others (supra). In Pradeep Kumar v. Union of India (supra), a Division Bench of this Court held that order of detention without considering vital bail conditions, would vitiate the order.
20. The contention of the respondents is that the detaining authority though did not advert to bail conditions in Crime No.52/2017, has considered the further crimes WP(Crl.)No.154 of 2019 17 committed by the detenu, which were in fact, in violation of bail conditions. However, this Court has held in Prasannakumari (supra) that application of mind in respect of one aspect cannot excuse non-application of mind in other vital dimensions of the matter. This Court again held in Nalini v. State of Kerala & Others (supra) and in Mohanan v. State of Kerala & Othrers (supra) that when an accused is enlarged on bail with conditions, it is incumbent on the part of the detaining authority to consider whether the bail conditions are sufficient to prevent the detenu from continuing to indulge in anti-social activities.
21. We are conscious of the fact that the detenu, in spite of bail conditions to the contrary, is alleged to have committed further crimes and hence even if the bail conditions were noted by the detaining authority, still a detention order might have followed. But, this is a subjective satisfaction only the detaining authority is empowered to arrive at. This Court has held in Abdul Wahab v. State of Kerala (supra) that after WP(Crl.)No.154 of 2019 18 considering all relevant materials, it is the detaining authority who has to arrive at a finding of his own. This Court cannot assume such subjective satisfaction on the part of detaining authority.
22. After perusal of records and appreciation of arguments, we are of the considered opinion that Ext.P1 order of detention is vitiated by non-application of mind. Non-application of mind by the detaining authority at the time of passing order cannot be justified by subsequent developments in the case or conduct of the detenu. True, the detaining authority may have passed detention order even after application of mind on the bail conditions. But, it is also probable that the detaining authority might have found that it is sufficient to cancel the bail granted to detenu to prevent him from committing further crimes.
23. Preventive detention laws are intended to maintain public order without which the right to personal liberty of the general public would lose all its meaning. When the right to WP(Crl.)No.154 of 2019 19 personal liberty of large number of citizens is at stake, the State will be forced to curtail liberty of individuals who are seen disturbing public order. Such curtailment by its very nature, cannot be based on trial and conviction. It has to be based on presumptive propensity of the individuals, drawn by authorities on subjective satisfaction. It is an executive imperative. The most important protective measure against deprivation of personal liberty extended to detenus, is application of mind by the detaining authorities before arriving at their subjective satisfaction. This protective measure being a substantial right, cannot be permitted to be watered down even eventually.
24. In view of our conclusions on the issue discussed above, we do not propose to deal with other legal issues urged by the counsel.
25. In the result, this Writ Petition (Crl.) is allowed and Ext.P1 order is set aside. The detenu shall be released forthwith, in case his detention is not required in connection WP(Crl.)No.154 of 2019 20 with any other case.
Before parting with the case, we must express our concern over the lapses and lack of co-ordination on the part of the authorities in dealing with preventive detention cases, which come up before this Court. Many a time this Court is forced to quash detention orders for non-supply of clear copies of documents to detenus, for sponsoring authorities not forwarding all relevant documents to detaining authorities, for non-reflection of consideration of vital aspects in the detention orders, etc. Such seemingly minor omissions not only show the State machinery in a poor light but also pose questions on efficacy of laws on preventive detention. It is therefore necessary to ensure that the Government Officials dealing with such matters are properly informed of the legal requirements and trained in the matter on an emergent basis.
Sd/-
C.T. RAVIKUMAR, JUDGE Sd/-
N. NAGARESH, JUDGE aks/10.06.2019 WP(Crl.)No.154 of 2019 21 APPENDIX PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE ORDER OF DETENTION NO. C1-10055/2018 DATED 15-01-2019 ISSUED BY THE 2ND RESPONDENT UNDER SECTION 3(i) OF KAAPA ACT 2007 EXHIBIT P2 TRUE COPY OF THE GROUNDS OF DETENTION DATED 15-01-2019 EXHIBIT P3 TRUE COPY OF THE MEMO FOR EXECUTING ORDER OF DETENTION PASSED BY THE 2ND RESPONDENT DATED 15-01-2019 EXHIBIT P4 TRUE COPY OF THE JAIL ADMISSION AUTHORIZATION ISSUED BY THE 2ND RESPONDENT DATED 15-01-2019 EXHIBIT P5 TRUE COPY OF THE REPORT FORWARDED TO THE 2ND RESPONDENT BY THE 3RD RESPONDENT DATED 17-12-2018.
EXHIBIT P6 TRUE COPY OF THE REPORT DATED NIL OF THE 4TH RESPONDENT EXHIBIT P7 TRUE COPY OF THE FINAL REPORT WITH THE DOCUMENTS AS SUPPLIED TO THE DETENU IN CRIME NO. 996/2014 OF VADAKEKAD POLICE STATION.
EXHIBIT P8 TRUE COPY OF THE FIR AND FIS IN CRIME NO. 995/2014 OF VADAKKEKAD POLICE STATION EXHIBIT P9 TRUE COPY OF THE FINAL REPORT ALONG WITH THE DOCUMENTS AS SUPPLIED TO THE DETENU IN CRIME NO. 93/2015 OF CHAVAKKAD POLICE STATION.
EXHIBIT P10 TRUE COPY OF THE ORDER IN CRL.M.C NO.
5699/2017 OF THIS HON'BLE COURT DATED 29-08-2017 EXHIBIT P11 TRUE COPY OF THE FINAL REPORT ALONG WITH THE DOCUMENTS AS SUPPLIED TO THE WP(Crl.)No.154 of 2019 22 DETENU IN CRIME NO. 1507/2015 OF CHAVAKKAD POLICE STATION EXHIBIT P12 TRUE COPY OF THE FINAL REPORT ALONG WITH THE DOCUMENTS AS SUPPLIED TO THE DETENU IN CRIME NO. 924/2015 OF VADAKEKAD POLICE STATION EXHIBIT P13 TRUE COPY OF THE FINAL REPORT ALONG WITH THE DOCUMENTS AS SUPPLIED TO THE DETENU IN CRIME NO. 1587/2016 OF VADAKEKAD POLICE STATION.
EXHIBIT P14 TRUE COPY OF THE FINAL REPORT ALONG WITH THE DOCUMENTS AS SUPPLIED TO THE DETENU IN CRIME NO. 52/2017 OF CHAVAKKAD POLICE STATION.
EXHIBIT P15 TRUE COPY OF THE REPLY RECEIVED BY THE DETENU UNDER RTI ACT FROM THE INSPECTOR OF POLICE, CHAVAKKAD DATED 18-05-2017.
EXHIBIT P16 TRUE COPY OF THE FINAL REPORT ALONG WITH THE DOCUMENTS AS SUPPLIED TO THE DETENU IN CRIME NO. 753/2017 OF CHAVAKKAD POLICE STATION EXHIBIT P17 TRUE COPY OF THE FINAL REPORT ALONG WITH THE DOCUMENTS AS SUPPLIED TO THE DETENU IN CRIME NO. 754/2017 OF CHAVAKKAD POLICE STATION.
EXHIBIT P18 TRUE COPY OF THE FINAL REPORT ALONG WITH THE DOCUMENTS AS SUPPLIED TO THE DETENU IN CRIME NO. 377/2018 OF CHAVAKKAD POLICE STATION EXHIBIT P19 TRUE COPY OF THE FINAL REPORT ALONG WITH THE DOCUMENTS AS SUPPLIED TO THE DETENU IN CRIME NO. 605/2018 OF CHAVAKKAD POLICE STATION.
EXHIBIT P20 TRUE COPY OF THE FINAL REPORT ALONG WITH THE DOCUMENTS AS SUPPLIED TO THE DETENU IN CRIME NO. 962/2018 OF KUNNAMKULAM POLICE STATION.WP(Crl.)No.154 of 2019 23
EXHIBIT P21 TRUE COPY OF THE ORDER NO. HOME-
S.S.A1/32/2019-HOME DATED 29-03-2019.
EXHIBIT P22 TRUE COPY OF THE ORDER DATED
20/10/2015 IN CMP 8542/2015 OF THE
COURT OF THE JUDICIAL MAGISTRATE OF
KUNNAMKULAM.
RESPONDENT'S EXHIBITS:
EXHIBIT-R3(A) TRUE COPY OF THE ACKNOWLEDGEMENT.
EXHIBIT-R3(B) TRUE COPY OF THE ACKNOWLEDGMENT.