Kerala High Court
Anju Joy vs State Of Kerala on 25 August, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
MONDAY, THE 31ST DAY OF JULY 2023 / 9TH SRAVANA, 1945
WP(CRL.) NO. 515 OF 2023
PETITIONER/S:
RAVEENDRAN.M.VAGED 70 YEARSS/O. KANNAN NAIR, LAKSHMI NILAYAM,
THILLAMKERI.P.O., VANJERI, KANNUR., PIN - 670702
BY ADVS.
K.K.DHEERENDRAKRISHNAN
N.P.ASHA
M.P.PRIYESHKUMAR
RESPONDENT/S:
1 STATE OF KERALATHE CHIEF SECRETARY TO GOVERNMENT, SECRETARIAT,
THIRUVANANTHAPURAM. THE CHIEF SECRETARY TO GOVERNMENT, SECRETARIAT,
THIRUVANANTHAPURAM, PIN - 695001
2 THE ADDITIONAL CHIEF SECRETARY TO GOVERNMENT (HOME
&VIGILANCE)SECRETARIAT THIRUVANATHAPURAM, PIN - 695001
3 THE DISTRICT MAGISTRATECOLLECTORATE, THAVAKKARA, KANNUR., PIN -
670002
4 DISTRICT POLICE CHIEFOFFICE OF THE DISTRICT POLICE CHIEF, KANNUR.,
PIN - 670002
5 THE SUPERINTENDENT OF PRISONCENTRAL PRISON, KANNUR, KANNUR
DISTRICT, PIN - 670002
BY ADVS.
PUBLIC PROSECUTOR
ADDL.DIRECTOR GENERAL OF PROSECUTION(AG-11)
ADDL. STATE PUBLIC PROSECUTOR(AG-28)
THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 31.07.2023,
ALONG WITH WP(Crl.).512/2023, THE COURT ON 25/8/2023 DELIVERED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
MONDAY, THE 31ST DAY OF JULY 2023 / 9TH SRAVANA, 1945
WP(CRL.) NO. 512 OF 2023
PETITIONER/S:
ANJU JOY AGED 29 YEARS W/O. JIJO, KARIYIL HOUSE, THILLAMKERI.
ALAYAD.P.O., VANJERI, KANNUR., PIN - 670702
BY ADVS.
K.K.DHEERENDRAKRISHNAN
N.P.ASHA
M.P.PRIYESHKUMAR
RESPONDENT/S:
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 COLLECTORATE, THAVAKKARA, KANNUR., PIN -
670002
4 DISTRICT POLICE CHIEF OFFICE OF THE DISTRICT POLICE CHIEF, KANNUR.,
PIN - 670002
5 THE SUPERINTENDENT OF PRISON CENTRAL PRISON, KANNUR, KANNUR
DISTRICT., PIN - 670002
BY ADVS.
ADVOCATE GENERAL OFFICE KERALA
ADDL.DIRECTOR GENERAL OF PROSECUTION(AG-11)
ADDL. STATE PUBLIC PROSECUTOR(AG-28)
THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 31.07.2023,
ALONG WITH WP(Crl.).515/2023, THE COURT ON 25/8/2023 DELIVERED THE FOLLOWING:
WP(CRL.) NOS. 512/2023 & 515 OF 2023
-:3:-
J U D G M E N T
A.Muhamed Mustaque, J.
These matters are filed challenging the detention order.
2. It is appropriate to refer chronology of events leading to
detention order.
WP(Crl).No.512/2023:
1. Date of last prejudicial activity :14.02.2023
2. Report to initiate KAAPA proceedings :25.02.2023
3. Order of detention :27.02.2023
4. Date of execution of detention :27.02.2023
5. Order of detention U/s 3(3) approved by govt :10.03.2023
6. Govt confirmed detention order :05/05/2023
U/s 10(4) for period of 6 months
WP(Crl).No.515/2023:
1. Date of commission of last prejudicial activity :14.02.2023
2. District police chief report to district magistrate :25.02.2023
(report regarding involvement of criminal cases from 2016 to 2023)
3. Order of detention :27.02.2023
4. Order of detention approved by government :10.03.2023
WP(CRL.) NOS. 512/2023 & 515 OF 2023
5. Case of detenue referred to Advisory Board :15.02.2023
6. Report of Advisory Board :19.04.2023
7. Order of Addl Chief Secretary to Government
Intimation of confirmation of order of detention
u/s 10(4) for a period of 6 months :05.05.2023
3. It is also appropriate to refer the crime in which detenue is
involved:
WP(Crl).No.512/2023
DATE OF FIR NO OFFENCE
CRIME
26.03.2016 464/16 U/S 341,323,324,308 r/w 34 IPC
18.02.2016 933/2016 U/s 506 IPC
23.01.2017 30/17 U/s 341,323,326,308,506 r/w 34 IPC
14.02.2023 147/23 u/s354A(i),354A(ii),354(i),(iv),354 D, 506,294(b)IPC, 67 IT Act and
sec 120(o) of Kerala Police Act
WP(Crl).No.515/2023
Date crime no Offence
03.09.2016 151/16 U/S 143,147,148,302 r/w 149 IPC ,3&5 of ES act
23.01.2017 30/17 u/s 341,323,326,308,506r/w 149 IPC
12.02.2018 202/2018 U/S 447,341,342,326,307,302,102(B),109,201r/w 34 IPC,3&5 of ES
Act sec 4 R/W 25(1-B)(b) of Arms act
14.02.2023 211/23 u/s 153,294(b)506 IPC
14.02.2023 147/23 u/s 354A(i),354A(ii),354 D, 506,294(b)IPC, 67 IT Act and sec
120(o) of Kerala Police Act
4. A common crime is registered in both the cases. Crime
No.147/2023 registered by Muzhakkunnu Police Station. This crime has been
WP(CRL.) NOS. 512/2023 & 515 OF 2023
cited as the last prejudicial activity. Grounds of challenge raised in
both the cases are common. Pointing out to the bail conditions imposed in
some other cases and absence of bail conditions as to prevention of
commission of crime during the period on bail, it was vehemently argued
by the learned counsel Shri K.K.Deerendrakrishnan appearing for the
petitioners in both the cases that the authority failed to apply its mind
while passing the order. It was also argued that, in an unusual way, the
copy of the confirmation order was addressed to the Chief Minister of the
State. The case of the petitioners is that the detenue acted against the
present leadership of the Communist party and that resulted in invoking
proceedings under the KAA(P)A. it was also argued that there was a long
delay in passing the order after the last prejudicial activity. The
learned counsel for the petitioners relied on the following judgments.
Reshma Raj v. State of Kerala and Others [2014 KHC 3304]
Shajitha Suneer v. State of Kerala and Others [2019 (3) KHC 453]
Sreeja Jayaprakash v. District Collector/District Magistrate and Others
[2019 KHC 2814]
5. The learned Government Pleader defending the order, submitted
that the detenue was involved in many criminal cases and argued that
subjective satisfaction arrived by the detention authority cannot be
questioned when it is pointed out that the proximity of the detention
order with the prejudicial activity is qua public order. He relied on the
WP(CRL.) NOS. 512/2023 & 515 OF 2023
following judgments:
Anita Antony v. State of Kerala and Others [2022 (4) KHC 427]
Stenny Aleyamma Saju v. State of Kerala and Others [2017 (3) KHC 517]
6. We examined the matter in detail. We find there is no delay
involved in the matter to hold that livelink has been snapped. Last
prejudicial activity was on 14/2/2023. Order of detention was passed on
27/2/2023. Thus, it cannot be said that the livelink has been snapped due
to delay.
7. The next question to be considered is whether bail condition
itself would safeguard the public order or not. Going by the nature of
offence committed and the nature of involvement of the detenue, all that
we can hold is that the activity of the detenue is prejudicial to the
society and unless they are restrained by a detention order, recurrence
of the commission of offence cannot be prevented. There is no hard and
fast rule to hold that bail conditions would be sufficient to prevent a
person from committing a crime. The object of enquiry under the KAA(P)A
is to protect public order and to protect larger community interest. The
detention order has to be viewed from the larger public interest of the
society and not from the stand point of the individual whose liberty is
subjected to process of detention. The balancing exercise has to be
WP(CRL.) NOS. 512/2023 & 515 OF 2023
weighed on the scale of societal interest and liberty of the detenue, and
not on the scale of bail condition and the liberty of the individual
detenue. A co-ordinate bench has taken a similar view in Sreeja
Jayaprakash's case (supra) that the failure on the part of the detaining
authority in considering bail condition is fatal. It may be fatal in
taking note of the nature of the crime committed and nature of the last
prejudicial activity, but it cannot be said that it is a rule. If the
detaining authority had adverted to the bail granted and crime in which
the detenue are involvled, that would be sufficient, provided the
activity of the detenue continues to be a threat in the larger interest
of the society. It is the activity of the detenue in relation to the
larger public interest that had to be weighed and not the bail condition
and the order of detention. We will be missing to secure the very
objective of the detention law, if we analyse the detention order from
the perspective of bail conditions imposed while granting bail to the
detenue. Each detention order has to be considered based on the facts
involved in that case and the application of precedent will have to be
limited based on the facts of such cases.
8. We are, therefore, of the view that the arguments that bail
conditions are sufficient to safeguard the larger interest of public is
not sustainable in the light of background of these cases against the
detenue herein. On last argument that confirmation of detention order
WP(CRL.) NOS. 512/2023 & 515 OF 2023
had been addressed to the Chief Minister and detention order was as a
result of call out of the Communist party leadership, we are unable to
accept this argument for the reason that the person against whom malafide
is attributed is not in the party array. The detention order is
otherwise perfectly legal and we find no reason to interfere with that
order. We find no merit in this matter, the challenge fails and it is,
accordingly, dismissed.
Sd/-
A.MUHAMED MUSTAQUE
JUDGE
Sd/-
SOPHY THOMAS
JUDGE
ms
WP(CRL.) NOS. 512/2023 & 515 OF 2023
APPENDIX OF WP(CRL.) 512/2023
PETITIONER EXHIBITS
Exhibit P1 THE PHOTOCOPY OF THE ORDER
NO.DCKNR/2804/2023/SS1 DATED 27/02/2023 ALONG
WITH DOCUMENTS SUPPLIED TO THE DETENU ISSUED
BY THE 3RD RESPONDENT
Exhibit-P2 A TRUE COPY OF THE ORDER OF APPROVAL DATED
10.03.2023 ISSUED BY THE 2ND RESPONDENT
Exhibit-P3 TRUE COPY OF THE REPRESENTATION SUBMITTED BY
THE DETENU BEFORE THE 2ND RESPONDENT AND
ADVISORY BOARD
Exhibit-P4 THE PHOTOCOPY OF THE ORDER G.O.(RT) NO.
1161/2023/HOME DATED 05/05/2023 ISSUED BY THE
2ND RESPONDENT
WP(CRL.) NOS. 512/2023 & 515 OF 2023
APPENDIX OF WP(CRL.) 515/2023
PETITIONER EXHIBITS
Exhibit-P1 THE PHOTOCOPY OF THE ORDER
NO.DCKNR/2801/2023/SS1 DATED 27/02/2023 ALONG
WITH DOCUMENTS SUPPLIED TO THE DETENU
Exhibit-P2 A TRUE COPY OF THE ORDER OF APPROVAL DATED
10.03.2023 ISSUED BY THE 2ND RESPONDENT
Exhibit-P3 TRUE COPY OF THE REPRESENTATION SUBMITTED BY
THE DETENU BEFORE THE 2ND RESPONDENT AND
ADVISORY BOARD
Exhibit-P4 THE PHOTOCOPY OF THE ORDER G.O.(RT) NO.
1160/2023/HOME DATED 05/05/2023 ISSUED BY THE
2ND RESPONDENT
