Kerala High Court
Mariamma Antony vs State Of Kerala on 5 April, 2013
Author: K.T.Sankaran
Bench: K.T.Sankaran, M.L.Joseph Francis
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.T.SANKARAN
&
THE HONOURABLE MR.JUSTICE M.L.JOSEPH FRANCIS
FRIDAY, THE 5TH DAY OF APRIL 2013/15TH CHAITHRA 1935
WP(C).No. 9656 of 2013 (F)
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PETITIONER(S):
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MARIAMMA ANTONY, W/O.ANTONY, AGED 60 YEARS
KORATTY HOUSE, CHAMPAKKULAM P.O., ALAPPUZHA DISTRICT
BY ADVS.SRI.B.PRAMOD
SRI.P.SHANES
RESPONDENT(S):
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1. STATE OF KERALA
REP. BY ITS SECRETARY, HOME DEPARTMENT
SECRETARIAT THIRUVANANTHAPURAM 695 001
2. THE DISTRICT MAGISTRATE
ALAPPUZHA 688 001
3. THE DISTRICT POLICE CHIEF
ALAPPUZHA 688 001
4. THE SUB INSPECTOR OF POLICE
NEDUMUDY POLICE STATION
ALAPPUZHA DISTRICT 688503.
BY SRI.T.ASAF ALI, DIRECTOR GENERAL OF PROSECUTION
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
05-04-2013, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
WP(C).No. 9656 of 2013 (F)
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APPENDIX
PETITIONER'S EXHIBITS :
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EXT.P1 - TRUE COPY OF THE REMAND APPLICATION
RESPONDENT(S)' EXHIBITS :
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NIL
//TRUE COPY//
P.A. TO JUDGE
K.T.SANKARAN & M.L.JOSEPH FRANCIS, JJ.
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W.P.(C) No.9656 of 2013 F
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Dated this the 5th day of April, 2013
JUDGMENT
K.T.Sankaran, J.
The question involved in this Writ Petition is whether a person who apprehends arrest in execution of an order of detention under Section (3) of the Kerala Anti-Social Activities (Prevention) Act, 2007 (herein after referred to as the KAAPA) is entitled to get a copy of the order of detention by the issue of a writ of mandamus under Article 226 of the Constitution of India, to enable him to challenge the order of detention at the pre-execution stage.
2. It is stated in the Writ Petition that the son of the petitioner was arrested on 6.3.2013 in connection with Crime No.313 of 2012 of Nedumudi Police Station and he was produced before the Judicial Magistrate of the First Class- Ramankari. The son of the petitioner was remanded to judicial W.P.(C) No.9656/2013 2 custody. It is stated that he was granted bail subsequently, but he was not released on bail on account of non availability of sureties. It is averred in the Writ Petition that in Exhibit P1 remand report, it was mentioned that the District Magistrate, Alappuzha, had issued an order of detention against the son of the petitioner under Section 3(1) of the KAAPA. It is also stated that he was not arrested in execution of the detention order.
3. The relief prayed for in the Writ Petition is to issue a writ of mandamus or any other appropriate writ, order or direction to the first respondent, State of Kerala, to furnish a copy of the order of detention passed against the petitioner's son along with the report submitted by the District Police Chief, Alappuzha, and also other documents relied upon by the detaining authority. It is stated that the detention order is proposed to be challenged at the pre-execution stage, for which it is necessary to peruse the documents, copies of which are sought for.
W.P.(C) No.9656/2013 3
4. The learned counsel for the petitioner submitted that the five grounds on which an order of detention can be challenged at its pre-execution stage, as enumerated in Government of India vs. Alka Subhash Gadia (1992 Supp (1) SCC
496) and which was followed by the Supreme Court in various other decisions, has been expanded by the Supreme Court in Subhash Popatlal Dave vs. Union of India and another (2012 (7) SCC 533). The learned counsel also submitted that the Supreme Court in that case held that the grounds of detention need be supplied to the detenu only after his arrest as enshrined in Article 22(5) of the Constitution of India and therefore, the provisions of the Right to Information Act cannot be applied in respect of the grounds of detention. The learned counsel submitted that the dictum laid down in Subhash Popatlal Dave's case applies only to the grounds of detention and not to the order of detention, the supply of which is not covered by Article 22(5) of the Constitution of India.
5. The learned Government Pleader submitted that the W.P.(C) No.9656/2013 4 Supreme Court has not overruled or dissented from the decision in Alka Subhash Gadia's case and has only expressed a view that the matter requires detailed consideration. It is pointed out that various Special Leave Petitions and Writ Petitions were directed to be listed for hearing and disposal. It is submitted that so long as the decision in Alka Subhash Gadia has not been overruled, the challenge to a preventive detention order at its pre-execution stage can be made only in respect of the five grounds enumerated in Alka Subhash Gadia. The learned Government Pleader also submitted that the dictum laid down by the Supreme Court in respect of supply of copy of the grounds of detention before arrest of the person concerned would equally apply to the order of detention and the documents in support of the detention. He pointed out that under Section 7 of the KAAPA, when a person is arrested in pursuance of a detention order, the officer arresting him shall read out the detention order to him and give him a copy of such order. It is submitted that Section 7 of the KAAPA gives a clear indication that the order of detention is a document to be supplied on arrest of W.P.(C) No.9656/2013 5 the person concerned and not before his arrest.
6. In Subhash Popatlal Dave vs. Union of India and another (2012) 7 Supreme Court Cases 533, the Supreme Court held thus :
"35. If one were to read clauses (1) to (6) of Article 22 as a whole, it is more than obvious that the scheme envisaged therein provides for the protection of a person arrested in connection with an offence by providing for his production before the Magistrate within 24 hours of his arrest and also to avail the services of a lawyer, but an exception has been carved out in relation to detention effected under preventive detention laws. A detenu is not required to be treated in the same manner as a person arrested in connection with the commission of an alleged offence. On the other hand, the preventive detention laws provide for the detention of a person with the intention of preventing him from committing similar offences in future, at least for a period of one year.
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38. ...................... Since clause (5) of Article 22 provides that the grounds for detention are to be served on a detenu after his detention, the provisions of Section 3 of the RTI Act, 2005, cannot be applied to cases relating to preventive detention at the pre-execution stage. In other words, Section 3 of the RTI Act has to give way to the provisions of clause (5) of Article 22 of the Constitution. Even the provisions relating to production of an arrested or detained person, contained in clauses (1) and (2) of Article 22 of the Constitution, have in their application been excluded in respect of a person detained under any preventive detention law."
7. Article 22(5) of the Constitution of India provides that "when any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order." Clause (5) of Article 22 of the Constitution is W.P.(C) No.9656/2013 7 clear that the grounds of detention need to be supplied only when a person is detained in pursuance of an order of detention. The grounds of detention is a document which should be made available only to the detenu, that is the person against whom the order of detention is passed, and which has already been executed. Clause (3) of Article 22 of the Constitution makes it clear that the protection given to an arrested person under Clauses (1) and (2) would not be available to a person who is arrested or detained under any law providing for preventive detention.
8. Section 3(1) of the KAAPA provides for making an order of detention to prevent any known goonda or known rowdy from committing any antisocial activity within the State of Kerala in any manner. KAAPA provides for certain built in safeguards to protect the rights of the detenu. If an order is made not by the Government, but by the authorised officer, he shall report the matter to the Government or to the Director General of Police together with a copy of the order and supporting records. W.P.(C) No.9656/2013 8 Sub Section (3) of Section 3 makes it abundantly clear that no such order of detention shall remain in force for more than 12 days excluding public holidays, from the date of detention of the known goonda or known rowdy, unless, in the mean time, the order has been approved by the Government or by the Secretary of Home Department as authorised by the Government. Another safeguard under Section 9 of the KAAPA is that the matter shall be referred to the Advisory Board within three weeks from the date of detention of a person. The Advisory Board has to give its opinion within nine weeks from the date of detention of the person concerned, as provided under Section 10. The maximum period of detention under the KAAPA is six months from the date of detention, as provided under Section 12. A detention order can, at any time, be revoked or modified by the Government as provided under Section 13 of the Act.
9. Sub Sections (1) to (3) of Section 7 of the KAAPA read as follows :
"7. Grounds of order of detention to be W.P.(C) No.9656/2013 9 disclosed : - (1) When a person is arrested in pursuance of a detention order, the officer arresting him shall read out the detention order to him and give him a copy of such order.
(2) The grounds of detention, specifying the instances of offences, with copies of relevant documents, as far as practicable, on the basis of which he is considered as a "known goonda" or "known rowdy" and giving such materials-relating to his activities on the basis of which his detention has been found necessary, shall be furnished to him as soon as possible, nevertheless, in any case, within five days of detention and he shall also be informed in writing, under acknowledgment, of his right to represent to the Government and before the Advisory Board against his detention:
Provided that nothing in this section shall require any authority to disclose to the detained person any fact, the disclosure of which will reveal the identity of any confidential source or the disclosure of which will be against the interests of internal security or national security. W.P.(C) No.9656/2013 10
(3) The Superintendent of the jail where such person is detained shall afford him reasonable opportunity to consult a lawyer and reasonable assistance in making a representation against the detention order to the Government or to the Advisory Board."
Sub Section (1) of Section 7 of the KAAPA is clear and explicit that the officer arresting a person in pursuance of a detention order shall read out the detention order to the person concerned and shall give him a copy of such order. Nowhere in the Act any provision is made to furnish a copy of the order of detention, the grounds of detention or the supporting documents to the person against whom the order of detention has been made, at any point of time before execution of the order of detention. The sponsoring authority or the detaining authority is not bound to disclose to the person concerned any information in respect of the detention order, at any time before his arrest. No duty is cast on either the sponsoring authority or the detaining authority to furnish copy of any document to the person against whom an order of detention W.P.(C) No.9656/2013 11 has been made, otherwise than as provided in the KAAPA and under Article 22(5) of the Constitution of India.
10. It is well settled that a writ of mandamus will issue only when there is a right vested in a person and a corresponding duty cast on the authority concerned to do a particular thing in a particular manner and in spite of demand, the authority failed to discharge its duty. The authorities under the KAAPA are not bound to issue copy of the order of detention, grounds of detention or the documents relied on by the detaining authority to the person sought to be detained at any time before execution of the order of detention. The person sought to be detained has no right to demand copies of such documents before he is arrested. That the person sought to be arrested and detained under the KAAPA would be entitled to challenge the order of detention at its pre-execution stage on limited grounds would not mean that he has a right to get copies of the documents mentioned above. The right to challenge the order of detention doest not cast any corresponding obligation on the detaining W.P.(C) No.9656/2013 12 authority or the sponsoring authority to supply the documents mentioned above to the person sought to be arrested, before execution of the order of detention. In these circumstances, we are of the view that the petitioner is not entitled to the relief of a writ of mandamus as prayed for in the Writ Petition.
11. As held by the Supreme Court in Subhash Popatlal Dave's case, the Right to Information Act cannot be invoked in respect of the grounds of detention since the provisions of the Right to Information Act cannot override Article 22(5) of the Constitution of India.
12. In Subhash Popatlal Dave's case, the Supreme Court emphasized that the legislature has made an exception to the disclosure of information which could be contrary to the interests of the nation, after referring to clause (a) of Sub Section (1) of Section 8 of the Right to Information Act. Sub Clause (b) of Clause 3 of Article 22 of the Constitution makes it clear that clause (1) of Article 22 shall not apply to any person who is W.P.(C) No.9656/2013 13 arrested or detained under any law providing for preventive detention. Clause (1) of Article 22 of the Constitution of India mandates that no person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest. Even in respect of an arrest other than an arrest under the law providing for preventive detention, the constitutional mandate is only with respect to being informed of the grounds of arrest, only after the arrest. Even that right would not be available to a person who has been preventively detained under an order of preventive detention. Therefore, we are of the view that the rights under the Right to Information Act would not affect Sub Section (1) of Section 7 of the KAAPA since it is in tune with the constitutional guarantee under Article 22 of the Constitution of India. On the same grounds on which the Supreme Court held in Subhash Popatlal Dave's case that the person sought to be arrested in execution of an order of detention would not be entitled to invoke the provisions of Section 3 of the Right to Information Act in respect of the grounds of detention, we are of the view that the same W.P.(C) No.9656/2013 14 principles would apply in respect of the order of detention and the documents in support of the grounds of detention.
For the aforesaid reasons, the Writ Petition fails and it is accordingly dismissed.
K.T.SANKARAN JUDGE M.L.JOSEPH FRANCIS JUDGE csl