Athulya vs State Of Kerala on 27 January, 2025

[Cites 11, Cited by 0]

Kerala High Court

Athulya vs State Of Kerala on 27 January, 2025

In this Writ Petition, filed under Article 226 of the Constitution of India, the petitioner challenges the order of detention as well as the continued detention of her husband Mr. Sakesh M.K @ Kumbali, who is undergoing detention under Section 3(1) of the Kerala Anti-Social Activities (Prevention) Act, 2007 ('KAAP Act' for brevity).

2. The records available before this Court reveal that the proposal for initiating proceedings under the KAAP Act was submitted by the 3rd respondent before the 2nd respondent on 12.07.2024, and on its basis, Ext.P2 order of detention, was issued on 06.09.2024. The last prejudicial act committed by the detenu is his involvement in Crime No.451 of 2024, registered at the Elathur Police Station under Sections 324, 308, 323, 457 r/w. Section 34 of the IPC. The last prejudicial act was committed on 31.05.2024 and the crime was registered on 01.06.2024. The detenu was arrested in the said crime on 07.06.2024. He was in judicial custody in connection with the said crime till 2025:KER:6027 W.P (Crl.) No. 1309 of 2024 :4: 11.07.2024, and it was after his release that the proposal was submitted on 12.07.2024. The order of detention discloses that the detaining authority has reckoned 6 instances of anti-social activities, in which the detenu was involved for classifying him as a "known rowdy", for invoking the provisions under Section 3 of the KAAP Act. The crimes in which the detenu is involved are as under:

       Sl.                                            Date of                               Status of
               Crime No.       Police Station                     Sections involved
      No.                                           occurrence                                case


                                                                 341, 323, 332,
        1     514/2018         Elathur              10.10.2018   294(b), 506 r/w.         Pending trial
                                                                 Section 34 IPC.

                                                                 341, 308, 506, 427
             1271/2020
        2                      Chevayur         04.11.2020       r/w. Section 34 of       Pending trial
                                                                 IPC.

                                                                 341, 323, 324 r/w.       Pending trial
        3     413/2022         Nadakkav             02.05.2022
                                                                 Section 34 of IPC.


              415/2022                                                                    Pending trial
        4                      Nadakkav             02.05.2022   394 of IPC


                                                                 143, 147, 148, 341, Pending trial
        5     186/2023         Atholi           07.05.2023       323, 324 r/w. 149 of
                                                                 IPC


                                                                 324, 308, 323, 457       Under
        6     451/2024         Elathur          31.05.2024                                investigation
                                                                 r/w. 34 of IPC.




        3.       Sri. Keshavraj Nair, the learned counsel appearing for the
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petitioner submitted that the records reveal that the detenu was released on bail in Crime No. 451 of 2024 on 11.07.2024, and stringent conditions were imposed by the jurisdictional court. However, a perusal of the order would reveal that the bail order issued by the jurisdictional court was not taken note of or its conditions adverted to by the detaining authority. According to the learned counsel, the detaining authority was bound to consider, peruse, and understand the nature of the order passed by the jurisdictional court before ordering detention. It is submitted that the copy of the bail application as well as the order granting bail ought to have been placed by the sponsoring authority before the detaining authority and the copies of the same also ought to have been supplied to the detenu. In the case on hand, a perusal of the order would reveal that the detaining authority was merely informed of the conditions imposed by the jurisdictional court, and the copy of the bail application or the order was not placed before the detaining authority. This has prevented the detaining authority from arriving at the requisite satisfaction that the detention order was required to be passed as against the detenu herein. In order to substantiate his contentions, the learned counsel has referred to the observations made by this Court 2025:KER:6027 W.P (Crl.) No. 1309 of 2024 :6: in Mary Selma v. State of Kerala 1. The learned counsel would then submit by referring to the order of detention, that there was a long delay in passing the order of detention. According to the learned counsel, the last prejudicial activity was committed on 31.05.2024. However, the order of detention was issued only on 06.09.2024. There is an unexplained delay of over 3 months and 6 days in passing the order and the same would snap the live link and make the order of detention illegal and vitiated. The learned counsel would then point out, by referring to the crimes in which the detenu was involved, that all the crimes are merely offences involving the violation of law and order, and none of the crimes can be considered as offences prejudicial to public order. The learned counsel would further submit that instead of initiating steps seeking cancellation of bail, the authorities decided to invoke the stringent provisions under the KAAP Act, an action which cannot be justified.

4. In response, Sri. K.A.Anas, the learned Public Prosecutor, pointed out that none of the contentions raised by the learned counsel appearing for the petitioner can be sustained. The learned Public 1 2021 SCC ONLINE KER 896 2025:KER:6027 W.P (Crl.) No. 1309 of 2024 :7: Prosecutor would first point out that the detenu was involved in as many as 6 crimes, during the last 7 years. In all the previous crimes, prior to the last prejudicial act, the detenu was released on bail by the jurisdictional court. However, in spite of imposing stringent conditions to curtail his anti-social activities, the detenu has continued to be involved in prejudicial activities. The detaining authority has therefore reckoned that the bail conditions imposed in the earlier crimes were not sufficient to curtail the activities of the detenu. The learned Public Prosecutor submitted that the conditions imposed by the Court were also considered by the detaining authority before passing the order of detention. Insofar as the contention raised by the learned counsel that there was undue delay in passing the order, it is submitted that the detenu was in judicial custody in connection with the last prejudicial act till 11.07.2024, and on the next day itself, the proposal was submitted and the detention order was passed within a period of two months thereafter. Reliance is placed on the observations made by this Court in Rahila Nazeer v. State of Kerala and Others2, and it is urged that it is only when the delay in passing the order of detention is unexplained 2 2016 (3) KHC 189 2025:KER:6027 W.P (Crl.) No. 1309 of 2024 :8: and inordinate, can it be said that the live link between the prejudicial activity and the order of detention was said to have been snapped. The learned Public Prosecutor would also refer to the judgment rendered by this Court in Anita Antony v. State of Kerala and Others3, and it is submitted that the mere fact that the accused had diligently complied with the bail condition in the crimes he is involved, is no reason to hold that the initiation of proceedings under the KAAP Act is unwarranted. According to the learned Public Prosecutor, the contention that there has been a long delay, and the live link is snapped cannot be therefore sustained.

5. We have carefully considered the submissions advanced and have gone through the records.

6. In the case on hand, the involvement of the detenu in 6 crimes was reckoned by the detaining authority for passing the order of detention. Out of the six crimes, the final report had been filed in five, and in the last crime, the investigation was going on.



         7.     The main contention of the petitioner is that the bail


3
    2022 (4) KHC 427
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granted by the jurisdictional court in Crime No. 451 of 2024 was not considered by the detaining authority while passing the order of detention.

8. It can be noted at the outset itself that the detenu was arrested in Crime No. 451 of 2024 registered at the Elathur Police Station on 07.06.2024. He was released on bail in the said case only on 11.07.2024. In the proposal submitted by the 3rd respondent on 12.7.2024, it is stated that the detenu is still in judicial custody and that he has filed an application as Crl. M.C. No. 1213 of 2024 seeking bail and the same is pending consideration of the Court. This information is apparently incorrect as on the date of the proposal, the detenu had already been released on bail on the previous day. It appears that much later, on 29.07.2024, a report was called from the sponsoring authority as to the prospects of the detenu being released on bail. It was on receipt of the request for such information that the detaining authority was informed that the detenu had been released on bail. All that is mentioned in the detention order is that the authority was informed about the passing of the order and vaguely the conditions that had been imposed. In other words, it is apparent that the detaining authority has 2025:KER:6027 W.P (Crl.) No. 1309 of 2024 :10: not perused the bail order before passing the order of detention.

9. In Abdul Sathar Ibrahim Manik v. Union of India4, the Apex Court held that in a case where detenu is released on bail and is at liberty at the time of passing the order of detention, then the detaining authority has to necessarily rely upon them as that would be a vital ground for ordering detention. In such a case, the bail application and the order granting bail should necessarily be placed before the authority and the copies should also be supplied to the detenu.

10. In M. Ahamedkutty v. Union Of India And Another5, it was held that the bail application and the bail order were vital materials for consideration. If those were not considered, the satisfaction of the detaining authority itself would have been impaired, and if those had been considered, there would be documents relied on by the detaining authority though not specifically mentioned in the annexure to the order of detention and those ought to have formed part of the documents supplied to the detenu with the grounds of detention and without them the grounds themselves could not be said to have been complete.



4
    AIR 1991 SC 2261
5
    1990 SCC (2) 1
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          11.       In Noor Salman Makani v. Union of India and others6,

the Apex Court has made a distinction between the bail being granted before the order of detention and the bail being granted subsequent to the order of detention and has taken the view that when the detenu was already on bail before the detention order was passed, the bail order and the bail application are vital documents which are to be considered by the detaining authority.

12. In Mary Selma (Supra), after considering all past precedents, this Court had held as under:

"12. The above facts would reveal that before passing of the detention order, the Detaining Authority has not perused the bail order in Crime No.1052/2019. In this context the learned counsel for the petitioner placed reliance on Hajara v. State [1997 KHC 113]. In that case the detenu urged that bail application and the bail order were not placed before the Detaining Authority and the detaining Authority had no opportunity to consider the same and also alleged that the grounds of detenu were in English and they were not translated into Malayalam and hence the detenu had not been enabled to give a proper representation. The respondent on the other hand contended that all those were irrelevant documents and all the relevant documents were produced before the Detaining Authority and on consideration of such relevant documents, the detention order was issued. While disposing that matter this Court referred to Abdul Sathar Ibrahim Manik v. Union of India [(1992) 1 SCC 1]. In that decision it was held that failure to supply bail application and the order refusing bail will not 6 1994 AIR SC 575 2025:KER:6027 W.P (Crl.) No. 1309 of 2024 :12: cause any prejudice to the detenu. But the Court held that in a case where detenu is released on bail and is at liberty at the time of passing the order of detention then the Detaining Authority has to necessarily rely upon them as that would be a vital ground for ordering detention. In such a case bail application and the order granting bail should necessarily be placed before the Authority and the copies should also be supplied to the detenu. In that decision, Dr. Hanuman Gulam Hussain Chougle v. Union of India (Crl.W.P.1384/1991) was also quoted wherein the detenu was already on bail and certain conditions were imposed restricting the movement of the detenu, which were held to be vital facts. Ultimately it was concluded by this Court in Hajara's case that the Apex Court has made a distinction between bail being granted before the order of detention and the bail being granted subsequent to the order of detention and has taken a view that when the detenu was already on bail before the detention order was passed, the bail order and the bail application are vital documents which are to be considered by the Detaining Authority.

13. In the present case, the recommendation of the Sponsoring Authority contained a tabulation of the details of the various Crimes which indicates the detenu having been released in Crime No.1052/2019. But there is no order of Court produced subsequent to Ext.P14, which was an order declining bail in that Crime. But there is nothing from the impugned order to infer that the bail order releasing the accused was perused by the Detaining Authority and there is subjective satisfaction that the conditions in the bail order will not suffice to prevent further anti - social activities of the detenu. So that would definitely amount to non application of mind, as rightly contended by the learned counsel."

13. Based on a query by the detaining authority, the sponsoring authority had only mentioned that the detenu had been released on bail. The order proceeds on the premise that the detenu is a person who 2025:KER:6027 W.P (Crl.) No. 1309 of 2024 :13: cannot be prevented from indulging in anti-social activities, by imposing stringent bail conditions. The detaining authority had no occasion to peruse the application or the order passed by the jurisdictional court before passing the order on 06.09.2024, though the order granting bail was issued on 11.07.2024. It was just on the information passed on by the sponsoring authority that the detaining authority proceeded to pass the impugned order. But there is nothing from the impugned order to infer that the bail order releasing the accused was seen by the detaining authority and there is subjective satisfaction that the conditions in the bail order will not suffice to prevent further anti-social activities of the detenu. So, that would definitely amount to non-application of mind, thus vitiating the order. On the above ground, this Writ-Petition is liable to be allowed.

Accordingly, this Writ Petition (Criminal) is allowed and the order of detention is quashed. There will be a direction to the Superintendent of Jail, Central Prison, Kannur, to release the detenu, Sakesh M.K @ Kumbali, the husband of the petitioner, forthwith, if his detention is not required in connection with any other case.

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The Registry is directed to communicate the order to the Superintendent of Jail, Central Prison, Kannur, forthwith. Sd/-

                                                RAJA VIJAYARAGHAVAN V.
                                                        JUDGE

                                                 
                                                         Sd/-
                                                 P.V.BALAKRISHNAN
                                                       JUDGE



APM
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                     APPENDIX OF WP(CRL.) 1309/2024

PETITIONER EXHIBITS

Exhibit P1                         TRUE COPY OF THE DETENTION PROPOSAL DATED

12.07.2024 SUBMITTED BY THE 3RD RESPONDENT BEFORE THE 2ND RESPONDENT.

Exhibit P2 TRUE COPY OF THE DETENTION ORDER NO.

DCKKD/8602/2024-S2 DATED 06.09.2024 PASSED BY THE 2ND RESPONDENT.

Exhibit P3 TRUE COPY OF THE REPRESENTATION DATED 24.09.2024 PREFERRED BY THE PETITIONER BEFORE THE 1ST RESPONDENT.

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