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Showing contexts for: section 110 crpc in Jayalekshmi vs State Of Kerala on 21 March, 2015Matching Fragments
2. The learned counsel for the petitioner submitted that the order of detention is vitiated on several grounds. We shall discuss hereunder the points raised by the learned counsel for the petitioner.
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3. It is stated in the order of detention that proceedings under Section 107 of the Code of Criminal Procedure were initiated against the detenu in the year 2014. Even thereafter, the detenu indulged in criminal activities which resulted in the registration of Crime No.1068 of 2014 of Kanjiramkulam Police Station and Crime No.1511 of 2014 of Kattakada Police Station. In the order of detention, the satisfaction of the detaining authority is recorded to the effect that initiation of the proceedings under Section 107 Cr.P.C. would not deter the detenu from indulging in criminal activities. The contention of the petitioner is that in the nature of the crimes registered against the detenu, the appropriate proceedings would have been under Section 110 Cr.P.C instead of Section 107 Cr.P.C. Had proceedings under Section 110 Cr.P.C. been taken against the detenu, that would have been sufficient deterrent against the detenu. The detaining authority did not advert to this aspect at all and, therefore, the subjective satisfaction is vitiated.
same time, it cannot be said that proceedings could not be initiated against the detenu under Section 107 Cr.P.C., in the facts and circumstances of the case. The narration of the events in the crimes registered against the petitioner would indicate that there are sufficient materials to arrive at a conclusion that the detenu is a person likely to commit any wrongful act that may probably occasion a breach of the peace or disturb the public tranquility. It is for the authority initiating proceedings under Section 107 or Section 110 Cr.P.C. to decide whether proceedings should be initiated against the person concerned either under Section 107 or Section 110 Cr.P.C. It is not a matter for the detaining authority to sit in judgment over the power exercised by the authority initiating proceedings under Section 107 Cr.P.C. and say that he should have initiated proceedings under Section 110 Cr.P.C. It is not within the domain of the detaining authority to consider the legality or otherwise of the proceedings taken against the person concerned under Chapter VIII of the Code of Criminal Procedure. What is relevant to be considered by the detaining authority is whether the proceedings initiated against the person concerned under Chapter VIII of the Code of Criminal Procedure would be a relevant factor in arriving at the subjective :: 5 ::
satisfaction under Section 3(1) of the KAAPA. The detenu is also not entitled to contend that the appropriate proceedings to be taken against him would be under Section 110 and not under Section 107 Cr.P.C. and, on that ground, the subjective satisfaction arrived at by the detaining authority is vitiated. The detenu is not entitled to dictate to the detaining authority on what grounds he should arrive at the subjective satisfaction or contend that the subjective satisfaction that would have been arrived at by the detaining authority would have been otherwise if proceedings under Section 110 Cr.P.C. were taken against the detenu. An order of detention cannot be quashed on the ground that the authority acting under Chapter VIII of the Code of Criminal Procedure could have taken proceedings under Section 110 Cr.P.C. instead of Section 107 Cr.P.C. against the person concerned and the detaining authority having not adverted to that aspect, the detention order is bad.
7. The learned counsel for the petitioner submitted that a less drastic step should have been taken against the detenu before passing an order of detention under Section 3(1) of the KAAPA. The sum and substance of the submission is that proceedings under :: 6 ::
Section 110 Cr.P.C. could be taken against the detenu instead of passing an order of detention under Section 3(1) of the KAAPA. It is submitted that if the bond is executed by the person concerned in a proceeding under Section 110 Cr.P.C., good behaviour of the person concerned could be ensured for a period of three years. It is submitted that the detaining authority should not have exercised its subjective satisfaction, since the appropriate proceedings, namely, proceedings under Section 110 Cr.P.C., were not initiated against the detenu. It is difficult to accept the contention put forward by the learned counsel for the petitioner in the scheme of things under the KAAPA. The authority acting under the KAAPA has the discretion either to pass an order of detention under Section 3 or to pass an order of externment under Section 15(1) of the KAAPA. It was held by a Division Bench of this Court (in which one of us was a member) in Hidayath K. v. State of Kerala and others [2014 (1) KHC 718 (DB)] that it is not necessary to pass an order under Section 15(1) of the KAAPA before deciding to issue an order of detention under Section 3(1) of the KAAPA. However, it is not within the domain of the detaining authority to consider whether the authority acting under Chapter VIII of the Code of Criminal Procedure in his wisdom could :: 7 ::