Kerala High Court
Vishnuja vs State Of Kerala on 27 March, 2017
Author: Devan Ramachandran
Bench: P.R.Ramachandra Menon, Devan Ramachandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON
&
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
THURSDAY, THE 11TH DAY OF JANUARY 2018 / 21 ST POUSHA, 1939
WP(Crl.).No. 358 of 2017
PETITIONER:
VISHNUJA
AGED 23, D/O LATE. BINDHU,
MELE PUTHENVEEDU, AAYACODE, NEAR KULANGARAKONAM
STADIUM, PALLICHAL VILLAGE, THIRUVANANTHAPURAM.
BY ADV.SRI.SHAJIN S.HAMEED
RESPONDENTS:
1. STATE OF KERALA
REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT,
SECRETARIAT, THIRUVANANTHAPURAM.PIN-695001.
2. THE ADDITIONAL CHIEF SECRETARY TO GOVERNMENT,
(HOME & VIGILANCE), SECRETARIAT,
THIRUVANANTHAPURAM. PIN.695001.
3. THE DISTRICT MAGISTRATE
THIRUVANANTHAPURAM, COLLECTORATE,
KUDAPPANAKKUNNU PO, THIRUVANANTHAPURAM.PIN.695043.
4. THE SUPERINTENDENT OF PRISON,
CENTRAL PRISON,VIYYUR, THRISSUR DIST. PIN.680010,
R1-R4 BY GOVERNMENT PLEADER SHRI K.A. ANAS
THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 11-01-2018,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(Crl.).No. 358 of 2017 (S)
APPENDIX
PETITIONER(S)' EXHIBITS
EXHIBIT P1 PHOTOCOPY OF THE REPORT NO.54/CONFDL/17T DATED
27.3.2017 OF THE DISTRICT POLICE CHIEF,
THIRUVANANTHAPURAM RURAL.
EXHIBIT P2 PHOTOCOPY OF THE CLARIFICATION LETTER
NO.S13-25831/2017 DATED 12.4.2017 OF THE 3RD
RESPONDENT TO THE DISTRICT POLICE CHIEF,
THIRUVANANTHAPURAM.(RURAL)
EXHIBIT P3 PHOTOCOPY OF THE EXPLANATION LETTER
NO.54/CONFDL/17T DATED 20.4.2017 THE DISTRICT
POLICE CHIEF, THIRUVANANTHAPURAM RURAL ALONG
WITH THE REPORT OF THE SUB INSPECTOR OF POLICE,
NARUVAMOODU.
EXHIBIT P4 PHOTOCOPY OF THE ORDER NO.S.13.25831/2017 DATED
2.5.2017 PASSED BY THE 3RD RESPONDENT UNDER
SECTION 3(1) OF THE KAAPA.
EXHIBIT P5 PHOTOCOPY OF THE GROUNDS FOR DETENTION ISSUED
BY THE 3RD RESPONDENT.
EXHIBIT P6 PHOTOCOPY OF THE ORDER OF APPROVAL
NO.HOME-SSA5/51/2017-HOME DATED 20.5.2017 OF THE
2ND RESPONDENT.
EXHIBIT P7 PHOTOCOPY OF THE REPRESENTATION DATED 2.6.2017
SUBMITTED BY THE PETITIONER TO THE PRINCIPAL
SECRETARY TO GOVERNMENT, (HOME DEPARTMENT)
ON BEHALF OF THE DETENU.
EXHIBIT P8 PHOTOCOPY OF THE ORDER G.O(RT) NO.1780/2017/HOME
DATED 12.7.2017 OF THE GOVERNMENT OF KERALA.
EXHIBIT P9 PHOTOCOPY OF THE LETTER NO.HOME-S.S
A5/51/2017/HOME DATED 21.7.2017 SEND BY THE DEPUTY
SECRETARY ON BEHALF OF THE ADDITIONAL CHIEF
SECRETARY, GOVERNMENT OF KERALA.
EXHIBIT P10 PHOTOCOPY OF THE JUDGMENT DATED 29.4.2017 IN C.C
NO. 330/2015 OF THE JUDICIAL 1ST CLASS MAGISTRATE
TEMPORARY COURT, NEYYATTINKARA.
EXHIBIT P11 PHOTOCOPY OF THE JUDGMENT DATED 9.4.2014 IN
WP(CRL) NO.122/2014 OF THIS HON'BLE COURT.
/TRUE COPY/
P.S. TO JUDGE.
[CR]
P.R. RAMACHANDRA MENON
&
DEVAN RAMACHANDRAN, JJ.
..............................................................................
W.P(Crl.)No.358 OF 2017 .........................................................................
Dated this the 11th January, 2018 Devan Ramachandran, J.
The wife of Shri Aneesh, who has been sanctioned to be detained preventively pursuant to an order passed under the Kerala Anti Social Activities (Prevention) Act, 2007 (hereinafter referred to as the 'Act' for short) has filed this writ petition, challenging the order under which her husband was placed under detention, a copy of which has been placed on record as Ext.P4. The petitioner's case, as we can see from the pleadings and submissions made at the Bar, is that the order of detention and the subsequent orders ratifying such action by the competent Authorities are illegal and unlawful on account of infraction of imperative statutory prescriptions and also because it has been issued without proper application of mind .
2. We have heard the learned counsel for the petitioner Shri Shajin S. Hameed and the learned public prosecutor appearing on behalf of the official respondents. W.P(Crl.)No.358 OF 2017 2
3. We have examined Ext.P4 order impugned in this writ petition, which is the order issued by the District Magistrate ordering detention of Shri Aneesh under the prescriptions of Section 3 of the Act. On an examination of the said order, it would show that nine separate instances of criminal activities are detailed therein against Shri Aneesh and that his detention was requested for by the District Police Chief (Rural), Thiruvananthapuram.
4. The order, as we said above, refers to 9 different anti- social/prejudicial acts, wherein Shri Aneesh has been recorded to be an accused in very grievous offences, including murder, attempt to murder, extortion, assault and such other. It is ineluctable, going by the contents of Ext.P4, that the provisions of Sec.2(j) and 2(p) of the Act are attracted against the petitioner's husband and that he, therefore, would be deserving of the definition of 'Known Rowdy'; as has been already ordered by the competent Authorities. This is because, as per the provisions of Section 2(p), a person can be declared to be a known rowdy, if he is made guilty of one offence, which falls under sub-section (i) thereof or if found guilty of two offences W.P(Crl.)No.358 OF 2017 3 under sub-section (ii) or if he is arrayed as an accused after a proper investigation in three instances of infraction under sub- section (iii) of the said section. There is no doubt that Shri Aneesh would fall in one of these categories and, therefore, that his inclusion in the list of known rowdy cannot be found at fault and in any event, the same is not under challenge herein. The question, therefore, is whether the proceeding that led to his detention through Ext.P4 would qualify scrutiny of law going by the specific statutory mandate.
5. The petitioner specifically contends in the writ petition that the order of detention was passed only on 02.05.2017, even though the allegation against her husband is that the last prejudicial activity in which he was involved, took place on 28.08.2016, the said order is vitiated in law as it has no live link to the last prejudicial activity and, therefore, that it does not satisfy the immediate and pressing requirement of ordering his preventive detention.
6. The petitioner further asserts that the order of detention is bad because her representation, a copy of which has been produced as Ext.P7, was not properly considered within the time W.P(Crl.)No.358 OF 2017 4 permissible in law and finally that certain very relevant and pertinent documents had not been given to her husband at the time when the detention order was executed.
7. The petitioner also assails the detention on the ground that certain relevant documents were not given to the petitioner's husband at the time when he was taken into custody and according to her, this omission would vitiate the entire proceedings itself.
8. Apart from the above, the petitioner, as we see from the pleadings, also has a very specific contention that Ext.P4 order has been issued without proper application of mind and that the period of detention imposed therein is contrary to the specific statutory and applicable provisions.
9. The learned Public Prosecutor appearing for the respondents vehemently refutes each of these allegations, in tune with the counter affidavit filed on behalf of the respondents in this case. According to him, Ext.P4 order was issued based on a request made by the sponsoring authority-District Police Chief, (Rural), Thiruvananthapuram dated 27.03.2017. He concedes that the District Magistrate on receiving such requisition had W.P(Crl.)No.358 OF 2017 5 sought for a clarification, as regards the delay in initiating the proceedings and that the District Police Chief, (Rural) had answered it to the satisfaction of the detaining authority vide his letter dated 20.04.2017.
10. The learned Public Prosecutor, contends that it is after considering the reply, relating to the alleged delay, made by the sponsoring authority in its proper perspective that Ext.P4 order was issued by the District Magistrate in response to the requisition made by the former. He points out that the said order is a very detailed order, taking into account each of the criminal activity and instances of prejudicial acts detailed against Shri Aneesh and that the said order was issued particularly because eventhough Shri Aneesh was under surveillance under the provisions of Section 107 of the Code of Criminal Procedure, with effect from 30.04.2016, he had still committed himself to a violent act on 28.08.2016, leading to the registration of crime and his incarceration until 18.11.2016, when he was enlarged on bail by the competent Criminal Court. The learned Public Prosecutor continues to say that there is no delay in initiating the proceedings under the Act because the investigation into the W.P(Crl.)No.358 OF 2017 6 last prejudicial activity was being carried on by the Police and that since the petitioner's husband was admittedly in jail until 18.11.2016, in connection with the said crime, it cannot be said that there is any delay at all, particularly because the request of the sponsoring Authority leading to Ext.P4, was made less than three months thereafter. He relies on two judgments of this Court in Jayalekshmi vs. State of Kerala and others [2015 KHC 961=2015(4) KLT 942] and Rahila Nazeer vs. State of Kerala [2016 (3)KHC 189=2016(2)KLT 838] in support of this contention of his..
11. In Jayalekshmi's case(supra), the learned Public Prosecutor shows us that in paragraph 19 therein, this Court had held as follows:
18. Under the KAAPA, even if one or more of the facts or circumstances cited among the grounds are vague, non
-existent, irrelevant or invalid for any reason whatsoever, that would not make the order of detention invalid and it shall be deemed that the detaining authority made the order of detention after having been satisfied about the need for detention with reference to the remaining facts and circumstances. The only restriction placed under Sec.
7(4) of the KAAPA is that the minimum conditions for classifying the person concerned as a 'known goonda' or 'known rowdy' should exist. Even if it is found that one or W.P(Crl.)No.358 OF 2017 7 more of the cases on the basis of which the detenu is classified as a 'known goonda' or 'known rowdy' are found to be not within the purview of cases coming under clauses (o) or (p), the order of detention would not lapse or become irrelevant or stale or improper, provided sufficient number of cases to satisfy the definition of 'known goonda' or 'known rowdy', as the case may be, are still available against the detenu concerned. We are not inclined to accept the contention put forward by the learned counsel for the petitioner in this regard.b