Anju P.Anil Kumar vs State Of Kerala on 6 April, 2022

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Kerala High Court

Anju P.Anil Kumar vs State Of Kerala on 6 April, 2022

The wife of the detenu is before this Court challenging the order of detention passed under Kerala Anti-Social Activities (Prevention)Act, 2007 (for brevity KAA(P)A) on various grounds. The detention was for one year and commenced on 04.09.2021. We heard both the learned Counsel for the petitioner and the learned Government Pleader.

2. Sri.M.H.Hanis, the learned Counsel appearing for the petitioner, raises the following allegations against the detention, which he categorise as illegal. The detenu was remaining in custody from 12.06.2021 in a crime and the detention order was passed on 01.09.2021. Despite being in custody, the petitioner was taken into preventive detention only on 04.09.2021 and the delay even though of three days prejudices the detenue. It is further submitted that there is delay in forwarding the detention order, WP(Crl)No.474 of 2021 3 which has to be 'forthwith' as laid down in S.3(3) of the KAA(P)A. There is a representation made before the Advisory Board dated 10.09.2021 by the Advocate and on 14.09.2021 by the detenu through the Superintendent of Police. The representation was disposed of on 30.10.2021 after 55 days, which prejudices the petitioner. It is also submitted that the representation was disposed of after the order was confirmed, which is against the dictum in Joseph Sebstian v. State of Kerala [2018 (3) KHC 889]. On the supply of documents it was argued that the earlier detention order was not supplied to the detenu and the last two bail orders, Exts.P5 & P6 dated 05.08.2021 & 13.09.2021 were not supplied to the detenu or perused by the Detaining Authority. It is argued that the last prejudicial act was on 11.06.2021 and the detention order was passed 2 1/2 months later, breaking the live link between the prejudicial act and the detenu as held in Jimesh Jose v. State of Kerala [2013 (1) KHC 49]. The Detaining Authority had not taken into consideration S.107 proceedings on 19.02.2021 WP(Crl)No.474 of 2021 4 initiated before the Sub Divisional Magistrate, Kottayam. Finally it was argued that, many of the pages of the documents supplied to the detenu were not legible. Reliance was placed on Mary Selma v. State of Kerala [2021 KHC 127].

3. Sri Anas, learned Government Pleader would contend that the detention order was sent forthwith and after execution, approval was within 12 working days. It is pointed out that the Saturdays were holidays due to the pandemic situation. There is no delay in disposal of Ext.P2 representation which was sent only to the Advisory Board and not to the Government. The representation was received by the Government on the same being transmitted to it along with the recommendation of the Advisory Board which was dated 21.10.2021 and received by the Government on 22.10.2021. The order was confirmed on 29.10.2021 and the intimation dated 30.10.2021, regarding the rejection of the representation sent to the detenu. The decision to reject the representation was taken simultaneous to the order of confirmation. As far as WP(Crl)No.474 of 2021 5 the two bail orders alleged to have been not placed before the detaining authority, one was on 05.08.2021, the date of the recommendation of the Sponsoring Authority and the other, after the order of detention. The 107 proceedings were noticed by the detaining authority and the same found to be insufficient to restrain the detenu from committing further offences; he being a habitual offender and history sheeter. As far as service of legible copies it is argued that there were three cases after the earlier detention. Even if such irregularities arise in two such cases, the requirement is of only one case when there is an earlier order of detention. As far as the complaints being those initiated by Police Officers, it is pointed out that in one of the attacks by the detenu, the shoulder of a Police Officer was fractured. The learned Government Pleader relied on Rafiya v. State of Kerala [2019 (1) KHC 63] and Joicy v. State of Kerala [2018 (3) KHC 37].

4. The detention order at Ext.P1 was dated 01.09.2021 and the last prejudicial act on 11.06.2021. WP(Crl)No.474 of 2021 6 It is to be noticed that immediately after the last prejudicial act the detenu was taken into custody and remanded, ie: on 12.06.2021. Obviously investigation would have proceeded and since there was no final report filed, after about two months, the Sponsoring Authority recommended preventive detention by report dated 05.08.2021. This would have been fully realizing that the detenu would be released on expiry of three months, without the final report being filed. We do not find the delay as having vitiated the detention order especially since the detenu was arrested and remanded after the last prejudicial act. If the Sponsoring Authority had initiated proceedings earlier, it would have been argued that there was no necessity. The next contention is with respect to the detention order having not been forthwith forwarded as as required under S.7(3). We are told that the order dated 01.09.2021 was received by the Government only on 06.09.2021, the same having been sent by hand; which violates the mandate under S.7(3). Rafiya V State of Kerala 2019 (1) KHC 63 held that though forthwith WP(Crl)No.474 of 2021 7 does not mean instantaneous, five days would run foul of the requirement. In that case the detention order was forwarded forthwith but the other records were sent delayed. Here the entire records along with the detention order reached the Government only after five days.

5. We have already found the detention order to be vitiated, but we would address the other arguments for completion. The execution of the order was on 04.09.2021 and the delay though only of three days is assailed on the ground that even one day's delay results in unnecessary incarceration of the detenu. True the detenu was in custody on 12.06.2021. When the order on 01.09.2021 was passed merely because the detenu was remanded, the Police cannot arrest him forthwith. The detenu has been remanded to judicial custody and it is a requirement of law that permission be obtained from the Court in whose custody the detenu remains, before the preventive detention order is executed. The JFCM I Court Ettumanoor was approached immediately which permitted the execution of the WP(Crl)No.474 of 2021 8 preventive detention order, by order dated 03.09.2021 and on the next day the detenu was taken into preventive detention. We find no reason to find fault with the detention on the ground of the delay urged in executing the order. The next ground of delay is regarding the order of approval, Ext.P3, dated 22.09.2021 passed by the Government. The consideration of the above issued revolves around whether Saturdays were declared holidays. We have verified from the Registry itself and we are told that due to the pandemic situation Saturdays between April 24 and September 18 were declared holidays by the Government of Kerala, which was adopted for the High Court also. If that be so, Ext.P3 order of approval was passed within twelve working days as is required under S.7(3); excluding the weekend days and a holiday on the 21st. The next ground of delay is, disposal of Ext.P2 representation dated 10.09.2021. The representations were addressed to the Advisory Board and would have reached the Advisory Board even before the reference of the detention order by the Government WP(Crl)No.474 of 2021 9 to the Advisory Board. The Government received it only on 22.10.2021 and the same was rejected just prior to the order of conformation as we see from the files. The Communication dated 30.10.2021 is just an intimation given to the detenu and it cannot be said that the date of the said communication is the date of intimation. The grounds raised of delay, except that of the forthwith communication to the Government under Section 3(3) of the KAA(P)A having not been carried out, does not impress us and are rejected.

6. Ext.P6 is a bail order dated 13.09.2021 passed after the detention order. Definitely the said order could not have been perused by the detaining authority. There is no requirement for the sponsoring authority to place the subsequent order before the Government or the Advisory Board, since what is considered is the satisfaction of the detaining authority as on the date of order of detention. Nothing prevented the detenu who filed a representation through a Counsel to place the order before the Advisory Board or the Government as a WP(Crl)No.474 of 2021 10 mitigating factor. However, Ext.P5 is dated 05.08.2021, which, as pointed out by the learned Government Pleader, was on the date of the report of the Sanctioning Authority. True, the Sanctioning Authority would not have been aware of the bail order, on the day on which the said authority had recommended preventive detention. The recommendation was pending before the Detaining Authority and it was incumbent upon the Sponsoring Authority to inform the Detaining Authority about the subsequent order of bail. This would ensure that the Detaining Authority also considers the conditions on which the detenu has been released, and ascertain whether that would be sufficient to restrain the detenu; so as to avoid a preventive detention. Here we have to emphatically notice that when the bail order was passed on 05.08.2021 the Detaining Authority issued the detention order on 01.09.2021; between which period the issue was pending before the Detaining Authority. Non supply of bail order to the Detaining Authority vitiates the detention.

WP(Crl)No.474 of 2021

7. As far as 107 proceedings is concerned the argument of the learned Counsel is that such proceedings dated 19.07.2021 was unnecessary since the detenu was in custody. Besides the fact that the said argument could only be raised in the S.107 proceedings, we cannot but observe that herein, a person who was once detained under the KA(P)A, immediately on release, again committed three crimes. This would have motivated the Police to take up the S.107 proceedings, again fully realizing that there is possibility of the accused being released on bail. As far as the illegible copy supplied to the detenu, we desist from going through each of the pages since already we have found the detention to be vitiated. It is trite that if the copies, with reference to the relevant crimes are not legible the detention would stand vitiated. But, it is equally trite that if the copies supplied as against the number of crimes required under the KAA(P)A are legible and complete, then, the detention would not be vitiated merely because there were illegible copies supplied in the WP(Crl)No.474 of 2021 12 case of the other crimes. As far as the crimes being initiated by Police, Joicy (supra) answers the contention raised. The attack resulted in grievous injury to the Policemen and that would not stand excluded under the KAA(P)A.

8. On the grounds of the detention order, not having been forthwith communicated to the Government as provided under S.3(3) of the Kerala Anti-Social Activities (Prevention) Act, 2007 and also on the ground that Ext.P5 bail order was not put before the Detaining Authority for consideration, we are of the opinion that preventive detention cannot be sustained. The detenue shall be released forthwith from custody, if he is not required in any other case.

The Registry shall communicate this order to the concerned prison.

Sd/-

                                        K.VINOD CHANDRAN,        JUDGE


                                            Sd/-
                                         C.JAYACHANDRAN, JUDGE
sp/jma/06/04/2022
 WP(Crl)No.474 of 2021

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                  APPENDIX OF WP(CRL.) 474/2021

PETITIONER EXHIBITS
Exhibit P1              TRUE COPY OF ORDER NO.DCKTM/5588/2021/H1

DATED 01.09.2021 OF THE 2ND RESPONDENT. Exhibit P2 TRUE COPY OF THE ORDER DATED 30.10.2021 OF THE DEPUTY SECRETARY FOR AND ON BEHALF OF ADDITIONAL CHIEF SECRETARY.

Exhibit P3 TRUE COPY OF THE ORDER OF APPROVAL NO.HOME-SSA5/156/2021-HOME DATED 22.09.2021 OF THE ADDITIONAL CHIEF SECRETARY TO GOVERNMENT, Exhibit P4 GO(RT) NO.2992/2021/HOME DATED 29.10.2021 OF THE ADDITIONAL CHIEF SECRETARY TO GOVERNMENT.

Exhibit P5 TRUE COPIES OF THE BAIL ORDERS IN BA NO.5855/2021 OF THIS HON'BLE COURT.

Exhibit P6 TRUE COPIES OF THE BAIL ORDERS IN BA 6333/2021 OF THIS HON'BLE COURT.

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