Kerala High Court
Arifa Nizar vs State Of Kerala on 28 May, 2024
Author: A. Muhamed Mustaque
Bench: A.Muhamed Mustaque
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE MR. JUSTICE S.MANU
TUESDAY, THE 28TH DAY OF MAY 2024 / 7TH JYAISHTA, 1946
WP(CRL.) NO.408 OF 2024
PETITIONER :-
ARIFA NIZAR, AGED 38 YEARS
W/O.NIZAR, PAMPUTHOOKKIMAKKAL HOUSE,
KUMBAMKALLU KARA, KARIKKODE,
THODUPUZHA EAST, IDUKKI DISTRICT, PIN - 685 585
BY ADV AJEESH M UMMER
RESPONDENTS :-
1 STATE OF KERALA
REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT,
HOME DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM, PIN - 695 001
2 THE DISTRICT COLLECTOR & DISTRICT MAGISTRATE
IDUKKI, PIN - 685 603
3 THE STATION HOUSE OFFICER
THODUPUZHA POLICE STATION, THODUPUZHA, PIN - 688 584
4 THE DISTRICT POLICE CHIEF
IDUKKI, PIN - 685 602
5 THE CHAIRMAN
ADVISORY BOARD, KAAPA, SREENIVAS,
PADAM ROAD, VIVEKANANDA NAGAR, ELAMAKKARA,
ERNAKULAM DIST., PIN - 682 026
6 THE SUPERINTENDENT OF JAIL
CENTRAL JAIL, KANNUR, PIN - 670 004
BY ADVS.
SRI.K A ANAS, PUBLIC PROSECUTOR
THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION ON
28.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(CRL.) NO.408 OF 2024
-: 2 :-
JUDGMENT
Dated this the 28th day of May, 2024
A. Muhamed Mustaque, J.
The petitioner is the wife of the detenu. The detenu suffered a
detention order and undergone detention for a period of six months.
Thereafter, a crime was registered against him by the Pothanikad
Police on 31.05.2023 as Crime No.256/2023. The offences registered
against him are under Sections 457, 461, 380 and 201 r/w Section 34
IPC. The detenu is suspected to be involved in this crime along with
another. It is to be noted that the main allegation by the prosecution
is the commission of offence of theft. However, the detenu was not
apprehended from the scene nor there was any witness or any overt
act attributed against the detenu. Based on the circumstantial
evidence, it appears that the detenu was apprehended. Thereafter,
he was released on 13.09.2023. The detention order was passed on
21.10.2023, apparently after the release from the judicial custody.
No doubt, if a person who suffered a detention order repeats offence,
nothing prevents the Authority invoking the provisions of KAA(P) Act
to detain him again for a maximum period of one year.
WP(CRL.) NO.408 OF 2024
2. Even in this, we find that there was no application of
mind while considering the nature of offences committed by the
detenu. On a mere registration of a crime, a person cannot be
detained unless his overt act is explicit in such commission of
offence so as to suspect that his act would affect the public order.
We do not find any overt act attributed against the detenu in this
case. In such circumstances, on a solitary incident, the provisions
under the KAA(P) Act cannot be invoked against such person.
Further, we note that more than four months elapsed after the
registration of the crime. Delay was not explained. We also note
that he has already suffered seven months' detention. It is to be
noted that the statutory provision provides a maximum period of one
year. There should be application of mind while considering the
nature of offence committed by the detenu and its impact on the
society to order maximum period of detention. Absolutely, there was
no application of mind while ordering the maximum period of
detention.
3. Taking note of the facts and circumstances, we are of the
view that this is a fit case to set aside the impugned order.
Accordingly, we set aside the impugned order. The detenu shall be
WP(CRL.) NO.408 OF 2024
released forthwith, provided, if he is not otherwise required in any
other case under law.
This W.P.(Crl.) is disposed of as above.
Sd/-
A. MUHAMED MUSTAQUE
JUDGE
Sd/-
S. MANU
JUDGE
Jvt/28.5.2023
WP(CRL.) NO.408 OF 2024
APPENDIX OF WP(CRL.) 408/2024
PETITIONER EXHIBITS :-
Exhibit P1 A TRUE COPY OF THE ORDER NO DCIDK/5936/2023-E5
DATED 21.10.2023 ALONG WITH DOCUMENTS RECEIVED AS
SUCH
Exhibit P2 A TRUE COPY OF THE G.O.(RT)NO.3819/2023/HOME DATED
27-12-2023
