Kerala High Court
K. Vimala vs State Of Kerala on 15 July, 2025
Author: V Raja Vijayaraghavan
Bench: V Raja Vijayaraghavan
2025:KER:51601
W.P(Crl) No.598/2028 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
&
THE HONOURABLE MR.JUSTICE K. V. JAYAKUMAR
TH
TUESDAY, THE 15 DAY OF JULY 2025 / 24TH ASHADHA, 1947
WP(CRL.) NO. 598 OF 2025
PETITIONER:
K. VIMALA, AGED 47 YEARS
W/O VELAYDHAN, VITHIN NIVAS, KAREKKADU, KARINGARAPULLY
P.O, KODUNI, PALAKKAD, PIN - 678551
BY ADVS.
SHRI.M.H.HANIS
SMT.T.N.LEKSHMI SHANKAR
SMT.NANCY MOL P.
SHRI.ANANDHU P.C.
SMT.RIA ELIZABETH T.J.
SHRI.SAHAD M. HANIS
SMT.NEETHU.G.NADH
RESPONDENTS:
1 STATE OF KERALA, REPRESENTED BY THE ADDITIONAL CHIEF
SECRETARY TO GOVERNMENT, HOME AND VIGILANCE DEPARTMENT,
GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001
2 THE DISTRICT COLLECTOR & DISTRICT MAGISTRATE
CIVIL STATION, PALAKKAD DISTRICT, PIN - 678001
3 THE DISTRICT POLICE CHIEF
CIVIL STATION, PALAKKAD DISTRICT, PIN - 678001
4 THE CHAIRMAN, ADVISORY BOARD, KAAPA, SREENIVAS, PADAM ROAD,
VIVEKANANDA NAGAR, ELAMAKKARA, ERNAKULAM - 682026
5 THE SUPERINTENDENT OF JAIL
CENTRAL JAIL, VIYYUR THRISSUR DISTRICT, PIN - 670004
BY ADVS.
PUBLIC PROSECUTOR:ANAS K A
THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON
02.07.2025, THE COURT ON 15.07.2025 DELIVERED THE FOLLOWING:
2025:KER:51601
W.P(Crl) No.598/2028 2
JUDGMENT
K. V. Jayakumar Petitioner is the mother of detenu, Jithin @Jithu, who was detained in the Central Prison, Viyyur, as per detention order No.DCPKD/4461/2025-S1 dated 21.04.2025, passed by the 2nd respondent. In Ext.P1 order, he was classified as 'known rowdy' under Section 2p(iii) of the Kerala Anti-Social Activities (Prevention) Act, 2007 ['KAA(P) Act' for the sake of brevity]. 2. The records available before us would reveal that the detenu was involved in three criminal cases;
Sl. Crime No. Police Station Crime Date Offences Involved under various Present Status No. sections of the case 1 637/2022 Kasaba 23.09.2022 341, 323, 324, 308, 506(i) r/w Pending trial 34 IPC 2 355/2024 Palakkad Town 10.03.2024 341, 323, 324, 308 r/w 34 IPC Pending trial South 3 186/2025 Kasaba 01.03.2025 126(2), 115(2), 118(1), 118(2) Under and 309(6) BNS investigation 3. Sri. M. H. Hanis, the learned counsel for the petitioner, submitted that the last prejudicial act alleged against the detenu is Crime No.186/2025 of Kasaba Police Station. The date of the alleged occurrence was 01.03.2025. There is a delay of ten days in the registration of the FIR, ie., on 10.03.2025. The 2025:KER:51601 W.P(Crl) No.598/2028 3 name of the detenu is not stated in the FIR. The learned counsel submitted that the case is still under investigation. It is pointed out that no materials were produced to show any connection of the detenu with the allegations. Placing reliance on the decision in Stenny Aleyamma Saju v. State of Kerala and Others1, the learned counsel submitted that mere registration of the FIR against detenu is not enough and something more is required to arrive at both objective and subjective satisfaction for the purpose of detention. Therefore, the learned counsel argued that the above case cannot be considered for booking the detenu under KAA(P) Act. The detenu submitted Ext.P2 representation before the 1st respondent on 30.04.2025 through the 5th respondent. However, the 5th respondent, who is the Superintendent of Jail, failed to forward the representation to the 1st respondent. This delay in forwarding and the consequent non-consideration of the representation has caused serious prejudice to the detenu.
4. The petitioner, on behalf of the detenu, submitted another representation before the 4th respondent, the Chairman of the Advisory Board under the KAA(P) Act on 30.04.2025. Ext.P4 is the copy of the said representation. The petitioner had also submitted the representation to the 1st respondent via e-mail. The learned counsel for the petitioner submits that no orders have been passed on Exts. P2 to P4 representations, nor has any response been received to the e-mail communication. The non-consideration and undue 1 [2017 (3) KHC 517] 2025:KER:51601 W.P(Crl) No.598/2028 4 delay in considering Exts. P2 to P4 have caused serious prejudice to the detenu, infringing upon his right to make an effective representation against the detention. The detenu was in custody at the time of passing the detention order. 5. The learned counsel for the petitioner submitted that the very purpose of booking a person under the KAA(P) Act is the immediate prevention of anti-social activities. The learned counsel further submitted that the compelling circumstances for booking the detenu is not stated in Ext.P1. The learned counsel, in order to fortify the contentions, placed reliance on the judgments in Kamarunnissa v. Union of India and Another2 and Rekha v. State of Tamil Nadu Tr. Sec to Govt. and Another3.
6. On the other hand, Sri. Anas, the learned Public Prosecutor, submits that the name of the detenu is mentioned in the FIR. The complainant herein is an auto driver. When the complainant refused to carry ganja in the auto rickshaw, accused Nos. 1 to 5, including the detenu, attacked the de facto complainant. The alleged role of the detenu is that he assaulted the complainant using a jacky liver. The learned Public Prosecutor would further submit that the detenu was in judicial custody at the time of passing Ext.P1 order. Ext.P1 order was passed with proper application of mind and after arriving at a subjective and objective satisfaction by the detaining authority.
7. The learned Public Prosecutor submits that the principles laid down in Kamarunissa's case (supra) have been followed in its letter and spirit. The 2 1991 KHC 870 3 2011 KHC 4343 2025:KER:51601 W.P(Crl) No.598/2028 5 learned counsel pointed out that, in the order of detention, he has mentioned that the detenu was in judicial custody and that he is likely to be released on bail by the jurisdictional court. The learned Public Prosecutor would refer to the judgment rendered by the Apex Court in Abdul Sathar Ibrahim Manik v. Union of India & Others4, Union of India v. Ankit Ashok Jalan5, and Union of India and Another v. Dimple Happy Dhakad6. 8. We have carefully considered the submissions of the learned counsel for the petitioner and the learned Public Prosecutor. 9. The first contention of the learned counsel for the petitioner is that the parameters laid down in Stenny Aleyamma Saju's case (supra) were not followed in this case. Paragraph 28 of the aforesaid judgment reads thus:
"28. This Court does not intend to say that mere registration of FIR is enough under such circumstances. Of course, something more is necessary which is collected by the Investigating Officer during the course of investigation. If the data collected in such process is adequate enough to meet the requirements under the Statute, so as to record the 'objective' as well as 'subjective satisfaction' to the extent it is necessary, it is open for the detaining authority to have it acted upon and need not wait till completion of the investigation and submission of the charge sheet under S.173(2) of the Cr.P.C."
10. A perusal of the records made available to us indicates the role of the detenu in the last prejudicial activity. The name of the detenu is stated in the FIR, and he is implicated as accused No.3 in the crime. It is alleged that the 4 (1992) 1 SCC 1 5 (2020) 16 SCC 185 6 (2019) 20 SCC 609 2025:KER:51601 W.P(Crl) No.598/2028 6 detenu inflicted blows on the complainant using a jacky lever when the complainant refused to transport ganja in his auto-rickshaw. In the light of these facts, we are not persuaded by the said argument.
11. The second contention of the learned counsel for the petitioner is that the compelling circumstances under which Ext.P1 detention order was passed are not stated in Ext.P1 order. In order to buttress this contention, the counsel has placed reliance on the dictum laid down in Kamarunnissa's case (supra), Rekha's case (supra), K. Veeramani v. State Of Tamil Nadu7 and Union of India v. Paul Manickam8.
12. Paragraph 13 of the Kamarunnissa's case (supra) reads thus:
"13. From the catena of decisions referred to above it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition to question it before a higher Court. What this court stated in the case of Ramesh Yadav, (AIR 1986 SC 315) (supra) was that ordinarily a detention order should not be passed merely to pre empt or circumvent enlargement on bail in cases which are essentially criminal in nature and can be dealt with under the ordinary law. It seems to us well settled that even in a case where a person is in custody, if the facts and circumstances of the case so demand, resort can be had to the law of preventive detention. This stems to be quite clear from the case law discussed above and 7 1994 (2) SCC 337 8 (2003) 8 SCC 342 2025:KER:51601 W.P(Crl) No.598/2028 7 there is no need to refer to the High Court decisions to which our attention was drawn since they do not hold otherwise. We, therefore, find it difficult to accept the contention of the counsel for the petitioners that there was no valid and compelling reason for passing the impugned orders of detention because the detenus were in custody."
13. In Rekha's case (supra), the Apex Court observed that Article 21 is the most important fundamental right guaranteed by the Constitution of India. Liberty of a citizen is a most important right won by our forefathers after long, historic, and arduous struggles. Preventive detention is only an exception to Article 21 of the Constitution. Relevant paragraphs of this judgment are extracted hereunder:
"10. In our opinion, if details are given by the respondent authority about the alleged bail orders in similar cases mentioning the date of the orders, the bail application number, whether the bail order was passed in respect of the co-accused in the same case, and whether the case of the co-accused was on the same footing as the case of the petitioner, then, of course, it could be argued that there is likelihood of the accused being released on bail, because it is the normal practice of most courts that if a co-accused has been granted bail and his case is on the same footing as that of the petitioner, then the petitioner is ordinarily granted bail. However, the respondent authority should have given details about the alleged bail order in similar cases, which has not been done in the present case. A mere ipse dixit statement in the grounds of detention cannot sustain the detention order and has to be ignored.
11. In our opinion, the detention order in question only contains ipse dixit regarding the alleged imminent possibility of the accused coming out on bail and there was no reliable material to this effect. Hence, the detention order in question cannot be sustained.
12. Moreover, even if a bail application of the petitioner 2025:KER:51601 W.P(Crl) No.598/2028 8 relating to the same case was pending in a criminal case the detention order can still be challenged on various grounds e.g. that the act in question related to law and order and not public order, that there was no relevant material on which the detention order was passed, that there were mala fides, that the order was not passed by a competent authority, that the condition precedent for exercise of the power did not exist, that the subjective satisfaction was irrational, that there was non-application of mind, that the grounds are vague, indefinite, irrelevant, extraneous, non-existent or stale, that there was delay in passing the detention order or delay in executing it or delay in deciding the representation of the detenu, that the order was not approved by the Government, that there was failure to refer the case to the Advisory Board or that the reference was belated, etc. 13. In our opinion, Article 22(3)(b) of the Constitution of India which permits preventive detention is only an exception to Article 21 of the Constitution. An exception is an exception, and cannot ordinarily nullify the full force of the main rule, which is the right to liberty in Article 21 of the Constitution. Fundamental rights are meant for protecting the civil liberties of the people, and not to put them in jail for a long period without recourse to a lawyer and without a trial. As observed in R. v. Secy. of State for the Home Deptt., ex p Stafford [(1998) 1 WLR 503 (CA)] " ... The imposition of what is in effect a substantial term of imprisonment by the exercise of executive discretion, without trial, lies uneasily with ordinary concepts of the rule of law."
Article 22, hence, cannot be read in isolation but must be read as an exception to Article 21. An exception can apply only in rare and exceptional cases, and it cannot override the main rule.
14. Article 21 is the most important of the fundamental rights guaranteed by the Constitution of India. Liberty of a citizen is a most important right won by our forefathers after long, historical and arduous struggles. Our Founding Fathers realised its value because they had seen during the freedom struggle civil liberties of our countrymen being trampled upon by foreigners, and that is why they were determined that the right to individual liberty 2025:KER:51601 W.P(Crl) No.598/2028 9 would be placed on the highest pedestal along with the right to life as the basic right of the people of India."
14. In K. Veeramani's case (supra), it was observed as under in Paragraph Nos. 7 and 8 of the judgment:
"7. Learned counsel, however, submitted that by making a sweeping statement that the petitioner is likely to be released on bail, the detaining authority cannot pass a detention order and when there is no likelihood of his being released on bail from custody, the order of detention is illegal inasmuch as there is no proper application of mind. In this context the learned counsel also submitted that since the detenu was in actual custody in connection with the murder case, no reasonable person can arrive at the conclusion that he was likely to be released on bail and that the statement of the detaining authority in the grounds that the detenu is likely to file a bail application and to come out on bail and that he was aware that bail is usually granted by the Courts in such cases, is illogical and unsound. In this context, the learned counsel relied on an unreported judgment of this Court in Rivadeneyta Ricardo Agustin v. Government of the National Capital Territory of Delhi, (subsequently reported in 1994 SCC (Cri) 354). In that case, in the grounds it was only mentioned that there was a 'possibility' of the detenu being released in case he moves a bail application. This Court observed that since the grounds did not indicate that such release was likely or that it was imminent and that on a mere possibility the detention order could not have been passed. The Bench also examined the relevant file and observed that there was no material indicating that the release of the petitioner was likely. 8. But in the instant case what we have to mainly see is whether there was awareness in the mind of the detaining authority that the detenu is in custody and that he had reason to believe that he is likely to be released. The grounds do disclose that the detaining authority was aware that the detenu is in custody and it is further mentioned that he was also aware that bail is usually granted by the courts in such cases and it is further emphasised 2025:KER:51601 W.P(Crl) No.598/2028 10 that there is 'imminent possibility' of the detenu coming out on bail......."
15. In Paul Manickam's case (supra), the principles were reiterated, and it was held as under in paragraph No. 14 of the judgment:
"14. So far as this question relating to the procedure to be adopted in case the detenu is already in custody is concerned, the matter has been dealt with in several cases. Where detention orders are passed in relation to persons who are already in jail under some other laws, the detaining authorities should apply their mind and show their awareness in this regard in the grounds of detention, the chances of release of such persons on bail. The necessity of keeping such persons in detention under the preventive detention laws has to be clearly indicated. Subsisting custody of the detenu by itself does not invalidate an order of his preventive detention, and the decision in this regard must depend on the facts of the particular case. Preventive detention being necessary to prevent the detenu from acting in any manner prejudicial to the security of the State or to the maintenance of public order or economic stability etc. Ordinarily, it is not needed when the detenu is already in custody. The detaining authority must show its awareness to the fact of subsisting custody of the detenu and take that factor into account while making the order. If the detaining authority is reasonably satisfied with cogent materials that there is likelihood of his release and in view of his antecedent activities which are proximate in point of time, he must be detained in order to prevent him from indulging in such prejudicial activities, the detention order can be validly made. Where the detention order in respect of a person already in custody does not indicate that the detenu was likely to be released on bail, the order would be vitiated. (See N. Meera Rani v. Govt. of T.N. [(1989) 4 SCC 418] and Dharmendra Suganchand Chelawat v. Union of India [(1990) 1 SCC 746]). The point was gone into detail in Kamarunnissa v. Union of India [(1991) 1 SCC 128]. The principles were set out as follows : even in the case of a person in custody, a detention order can be validly passed : (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has a reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his release on bail, and (b) that on being released, he would in all probability indulge in prejudicial activities; and (3) if it is felt essential to detain him to prevent him from so doing. If an order is passed after recording satisfaction in that regard, the order would be valid. In the case at 2025:KER:51601 W.P(Crl) No.598/2028 11 hand the order of detention and grounds of detention show an awareness of custody and/or a possibility of release on bail."
16. The principle laid down in the aforementioned cases is that when the detenu is already in judicial custody, a detention order can be validly passed only if the detaining authority is satisfied, based on cogent material, that there is a real possibility of the detenu being released on bail, and that upon such release, he is likely to indulge in anti-social activities imminently. 17. We have perused Ext.P1 detention order, wherein it is stated that the detenu is in judicial custody and that, if released on bail, he would engage in various anti-social activities, thereby posing a threat to the life and liberty of the public. However, in the present case, there is no mention in Ext.P1 as to whether the detenu had filed any bail application or was actively pursuing the same. The detaining authority has failed to consider whether there existed a real and imminent possibility of the detenu being released on bail. A mere bald statement that, if the detenu is released on bail, he would engage in anti-social activities and the detenu is a threat to the public order, life, and the liberty of the citizen, is insufficient to pass an order under Section 3 of the KAA(P)A Act. 18. It is trite law that the order of detention must be exercised sparingly with utmost circumspection. The authority must ensure that the detention order is passed after proper application of mind and after arriving at objective and subjective satisfaction.
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W.P(Crl) No.598/2028 12
19. On a careful consideration of the available materials on record and
hearing the submissions of both sides, we are of the considered view that the writ petition is to be allowed.
In the result, (i) W.P(Crl) No. 598/2025 is allowed. (ii) Ext.P1 order of detention is set aside.
(iii) The Superintendent, Central Prison, Viyyur, is directed to release the detenu, Jithin @ Jithu, S/o.Velayudhan, Vithin Nivas, Karekkadu, Karingarapully P O, Koduni, Palakkad forthwith, if his detention is not required in connection with any other case.
The Registry is directed to communicate the order forthwith.
Sd/-
RAJA VIJAYARAGHAVAN V
JUDGE
Sd/-
K. V. JAYAKUMAR
JUDGE
Sbna
2025:KER:51601
W.P(Crl) No.598/2028 13
APPENDIX OF WP(CRL.) 598/2025
PETITIONER EXHIBITS
Exhibit P1 A TRUE COPY OF ORDER NO. DCPKD/4461/2025-SL DATED
21.04.2025 OF THE 2ND RESPONDENT
Exhibit P2 A TRUE COPY OF THE REPRESENTATION DATED
30.04.2025 SUBMITTED BY THE DETENU BEFORE THE LST RESPONDENT Exhibit P3 A TRUE COPY OF THE REPRESENTATION DATED 30.04.2025 SUBMITTED BY THE PETITIONER BEFORE THE LST RESPONDENT Exhibit P4 A TRUE COPY OF THE REPRESENTATION DATED 30.04.2025 SUBMITTED BY .THE PETITIONER BEFORE THE 4TH RESPONDENT