Kerala High Court
Geetha vs State Of Kerala on 31 May, 2024
Author: A.Muhamed Mustaque
Bench: A.Muhamed Mustaque
WP(CRL.) NO. 487 OF 2024
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE MR. JUSTICE S.MANU
FRIDAY, THE 31ST DAY OF MAY 2024 / 10TH JYAISHTA, 1946
WP(CRL.) NO. 487 OF 2024
PETITIONER/S:
GEETHA
AGED 47 YEARS
S/O. BIJU, PALLIVILA HOUSE, ULLAS NAGAR-90, PUNTHALATHAZHAM
CHERRY, VADAKKEVILA VILLAGE, KOLLAM., PIN - 691010
BY ADVS.
C.RAJENDRAN
B.K.GOPALAKRISHNAN
R.S.SREEVIDYA
MANU M.
RESPONDENT/S:
1 STATE OF KERALA
REPRESENTED BY THE ADDL. CHIEF SECRETARY (HOME), GOVERNMENT
OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001
2 THE DISTRICT MAGISTRATE
CIVIL STATION,COLLECTORATE, KOLLAM, PIN - 691013
3 DISTRICT POLICE CHIEF
OFFICE OF THE DISTRICT POLICE CHIEF KOLLAM CITY, KOLLAM,
PIN - 691001
4 THE CITY POLICE COMMISSIONER
KOLLAM CITY., PIN - 691001
5 STATION HOUSE OFFICER
ERAVIPURAM POLICE STATION, KOLLAM DISTRICT, PIN - 691011
6 THE SUPERINTENDENT
WP(CRL.) NO. 487 OF 2024
2
CENTRAL PRISON, VIYUR, THRISSUR, PIN - 680010
BY ADVS.
SRI.K.A.ANAS (GP)
THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION ON
31.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(CRL.) NO. 487 OF 2024
3
JUDGMENT
CR
Dated this the 31st day of May 2024
S.Manu, J.
This writ petition is filed seeking a writ of habeas corpus to
produce Vineeth @ Poppy, who is suffering preventive detention
under Section 3 of the Kerala Anti-Social Activities (Prevention) Act,
2007 in execution of Ext.P1 detention order issued by the 2 nd
respondent on 27.01.2024.
2. The sponsoring authority submitted report to the 2 nd
respondent considering the detenu as 'known Rowdy' citing three
criminal cases that are pending for trial and another case in which
investigation is ongoing.
. 3. The first case relied on by the 2 nd respondent is Crime
No.132/2020 of Eravipuram Police Station registered on 29.01.2020
for the offences under Sections 450, 294(b), 427, 341, 326, 307,
323, 354, 506(ii) of IPC and Section 27 of the Arms Act. The second
case relied on is Crime No.146/2022 of Kilikolloor Police Station
registered on 14.02.2022 for the offences under Sections 143, 147,
148, 447, 323, 324 r/w 149 of IPC. The third case is Crime No.
WP(CRL.) NO. 487 OF 2024
1570/2022 of Eravipuram Police Station registered on 13.11.2022
for the offences under Sections 341, 324, 308, 294(b) and Section
34 of the IPC. The 4 th case is Crime No. 1843/2023 of Eravipuram
Police Station registered on 31.10.2023 for the offences under
Sections 341, 506, 324 and 308 of IPC, in which investigation is
ongoing.
4. We have elaborately heard the arguments advanced by
Sri. C. Rajendran , learned Counsel appearing for the petitioner and
also Sri.K.A.Anas, learned Government Pleader appearing for the
respondents.
5. Several contentions have been raised in the writ petition.
The contentions emphasised by the learned Counsel for the
petitioner during the course of hearing are summarised as below:
1. The detenu submitted representation before the 1 st
respondent on 15.02.2024, but the same was not considered
promptly by the 2nd respondent, thereby defeating the
constitutional guarantee under Article 22 of the Constitution of
India.
2. The representation was considered only after receipt of the
report from the Advisory Board and the said course of action
adopted has infringed the fundamental right of the detenu.
WP(CRL.) NO. 487 OF 2024
3. There was considerable delay not only in considering the
representation, but also in communicating the decision taken on
the representation to the detenu.
6. Learned Government Pleader produced the relevant files for
perusal. The following dates are relevant for the purpose of deciding
the prime contentions raised-
Date of reference to the Advisory Board- 06.02.2024
Date of submission of representation to the 1st respondent - 15.02.2024
Date of receipt of report to the Advisory Board - 19.03.2024.
Date of decision on the representation- 08.04.2024
Date of passing of confirmation order- 11.4.2024
Date of communication of the decision on the representation -17.04.2024.
7. In view of the chronology given above, it is clear that the
detenu submitted representation to the 1st respondent on 15.02.2024,
after reference to the Advisory Board was made on 06.02.2024. The 1 st
respondent Government did not act on the representation till report of
the Advisory Board was received on 19.03.2024. Though the report
was received on 19.03.2024, decision on the representation was taken
only on 08.04.2024 as seen from the relevant files produced by the
learned Government Pleader. The Government decided to confirm the
detention order subsequently and communicated the order to the
WP(CRL.) NO. 487 OF 2024
detenu later, on 17.04.2024. Therefore, the detenu came to know
about the fate of the representation only after a lapse of two months
from the date of submission of the same.
8. We proceed further, keeping in mind the observations of the
Honourable Supreme Court in Pebam Ningol Mikoi Devi vs. State of
Manipur [2010 (9) SCC 618].
3. Individual liberty is a cherished right, one of the most valuable fundamental
rights guaranteed by the Constitution to the citizens of this country. On "liberty",
William Shakespeare, the great play writer, has observed that "a man is master
of his liberty". Benjamin Franklin goes even further and says that "any society
that would give up a little liberty to gain a little security will deserve neither and
lose both". The importance of protecting liberty and freedom is explained by the
famous lawyer Clarence Darrow as "you can protect your liberties in this world
only by protecting the other man's freedom; you can be free only if I am free".
In India, the utmost importance is given to life and personal liberty of an
individual, since we believe personal liberty is the paramount essential to human
dignity and human happiness.
9. The learned Counsel for the petitioner vehemently
submitted that the Government ought to have considered the
representation immediately on receipt of the same. In answer to the
said contention, the learned Government Pleader relied on the
judgment of the Honourable Supreme Court in Golam Biswas v.
Union of India and another [2015 (16) SCC 177] and
contended that the Government is bound to wait for the report of
the Advisory Board when it receives a representation after reference
WP(CRL.) NO. 487 OF 2024
was made to the Advisory Board.
10. The judgment of the Honourable Supreme Court in
Golam Biswas's case (supra) and other precedents were
considered later by a Bench of three Honourable Judges of the Apex
Court in Ankit Ashok Jalan vs. Union of India and others
[2020 (16) SCC 127]. The said case arose from a preventive
detention under the COFEPOSA Act, 1974. The majority view in the
said judgment is to the effect that the detaining authority under the
COFEPOSA Act, who also is competent to revoke the detention at
any time as per the provisions of the said Act need not wait for the
outcome of the proceedings before the Advisory Board and shall deal
with representations received without delay. We note at this
juncture that the designated detaining authority under KAAPA is
not vested with the power to revoke the detention and such power is
available under Section 13 of the KAAPA Act only to the
Government. However the dictum laid down in Golam Biswas's
case (supra) to the effect that the Government shall await report of
the Advisory Board, should apply to the proceedings under KAAPA
Act also. Hence we hold that the course adopted by the Government
in this case of waiting for the report of the Board without
immediately considering the representation dated 15.02.2024
submitted by the detenu after reference to the Board was made on
WP(CRL.) NO. 487 OF 2024
06.02.2024 is proper and legal.
11. As noted above, the report of the Advisory Board was
received on 19.03.2024. However, the Government has taken
decision on the representation of the detenu only on 08.04.2024.
Therefore, the Government took 19 days time to dispose the
representation. No explanation is forthcoming from the side of the
respondents for the said period of time. The bounden duty of
respondents to consider representation of the detenu sprouts up
from Article 22 (5) of the Constitution of India. There is plethora of
judgments of the Honourable Supreme Court as well as this Court
regarding the necessity to consider the representations without
delay.
12. It is true that there is no inflexible rule regarding the time
available to the Government to consider the representation.
However, the Government is bound to consider the representations
submitted at the earliest and in case of delay, the Government shall
be in a position to explain and justify the same to avoid interference
by the constitutional courts in the matter. Diligence of a very high
degree is expected from the authorities in cases of preventive
detention as it involves curtailment of some of the most precious
constitutional guarantees. Utmost expedition is essential in handling
the representations submitted by the detenus invoking their
WP(CRL.) NO. 487 OF 2024
constitutional right under Article 22 (5). Lethargy, lapses,
negligence, delay, callousness etc. on the part of the concerned
authorities in dealing with the representations shall be viewed
seriously and definitely result in interference by the Constitutional
Courts for breach of the mandate of Article 22 (5) of the
Constitution of India.
13. The Honourable Supreme Court has declared continued
detention unconstitutional, in cases involving unexplained delay in
consideration of representations extending to various periods. In
Narinder Singh Suri Vs Union Of India [1980 (2) SCC 357],
delay involved was of 20 days. In Durga Shaw vs. Union of
India[1970 (3) SCC 696] the Honourable Apex Court found fault
with the concerned authorities for causing delay of 16 days in
considering the representation. In Harish Pahwa Vs State of U.P
And Others [1981 (2) SCC 710 ], the delay involved was of 21
days. In Mahesh Kumar Chauhan Vs Union Of India And
Others [AIR 1990 SC 1455 ], the delay was of 17 days. However
delay of longer periods have been considered as not fatal in some
cases. Though delay of 119 days was raised as a ground in
D.Anuradha V. jt.Secretary and Ors ( AIR 2006 SC 3661 ) the
contention was rejected by the Apex Court holding that the delay
was properly explained.
WP(CRL.) NO. 487 OF 2024
14. The principle followed is that the authorities are not inhibited
from explaining the time taken for the disposal of the representations
and when the same is not properly explained, the time gap will be
considered as fatal delay. It is gainful to note the observations of the
Hon'ble Supreme Court in Rajammal Vs. State of Tamilnadu [ 1999
(1) SCC 417] in this regard, which is extracted below:
"7. It is a constitutional obligation of the Government to consider
the representation forwarded by the detenu without any delay.
Though no period is prescribed by Article 22 of the Constitution for
the decision to be taken on the representation, the words "as soon
as may be" in clause (5) of Article 22 convey the message that the
representation should be considered and disposed of at the earliest.
But that does not mean that the authority is pre-empted from
explaining any delay which would have occasioned in the disposal
of the representation. The Court can certainly consider whether the
delay was occasioned due to permissible reasons or unavoidable
causes. This position has been well delineated by a Constitution
Bench of this court in K.M.Abdulla Kunhi v. Union of India. The
following observations of the Bench can profitably be extracted
here.
"It is a constitutional mandate commanding the
authority concerned to whom the detenu submits his
representation to consider the representation, and
dispose of the same as expeditiously as possible. The
words 'as soon as may be' occurring in clause (5) of
the Article 22 reflects the concern of the Framers that
the representation should be expeditiously considered
and disposed of with a sense of urgency without an
avoidable delay. However, there can be no hard and
WP(CRL.) NO. 487 OF 2024
fast rule in this regard. It depends upon the facts and
circumstances of each case. There is no period
prescribed either under the Constitution or under the
detention law concerned, within which the
representation should be dealt with. The requirement,
however, is that there should not be supine
indifference, slackness or callous attitude in
considering the representation. Any unexplained delay
in the disposal of representation would be a breach of
the constitutional imperative and it would render the
continued detention impermissible and illegal. "
8. The position, therefore, now is that if delay was caused on
account of any indifference or lapse in considering the
representation, such delay will adversely affect further
detention of the prison. In other words, it is for the authority
concerned to explain the delay, if any in disposing of the
representation. It is not enough to say that the delay was very
short. Even longer delay can as well be explained. So the test
is not the duration or range or delay, but how it is explained
by the authority concerned.
15. The Hon'ble Supreme Court after referring to various
precedents on this aspect held as follows in Mahesh Kumar Chouhan's
case (supra)
16. Now the unchallengeable legal proposition that emerges
from a host of decisions, a few of which we have referred to
above, is that a representation of a detenu whose liberty is in peril
and depraved should be considered and disposed of as
expeditiously as possible; otherwise the continued detention will
render itself impermissible and invalid as being violative of the
constitutional obligation enshrined in Article 22(5) of the
WP(CRL.) NO. 487 OF 2024
Constitution and if any delay occurs in the disposal of a
representation, such delay should be explained by the appropriate
authority to the satisfaction of the court.
Keeping in mind the principles referred above , for want of any
explanation for 19 days time taken to take decision on the representation
of the detenu after receipt of the report of the Advisory Board we hold that
there is fatal delay in this case.
16. As we noted already, there is unexplained delay from the date
of receipt of the report of the Advisory Board from the date of the decision
taken on the representation on 08.04.2024 in this case. It is also to be
noted that the decision was communicated to the detenu only on
17.04.2024. The delay in conveying the decision taken on the
representations is also considerable in this case. On the said aspect also,
the Hon'ble Supreme Court has repeatedly held that the delay in
communicating rejection of the representation will also render the
continued detention illegal. We refer to the judgment of a three judge
Bench of the Hon'ble Supreme Court in Sarabjeet Singh Mokha Vs
District Magistrate [2021 KHC 6675], pointed out by the learned
Counsel for the petitioner in this connection. The Hon'ble Apex Court has
unequivocally held that the right of the detenu to make a representation
and for it to be considered expeditiously would become meaningless
without a corroborative right to the detenu to receive the decision on the
representation with utmost expeditious.
WP(CRL.) NO. 487 OF 2024
17. The following observations of the Hon'ble Supreme Court are
relevant in this regard.
"In guaranteeing a right to make a representation to the detenu,
understandably creates a corresponding duty on the State
machinery to render this right meaningful. In Section D1 of the
judgment, we have detailed this Court's settled precedent on the
detenu's right to make a representation and for it to be considered
expeditiously - failing which the detention order would be
invalidated. However, this right would ring hollow without a corollary
right of the detenu to receive a timely communication from the
appropriate government on the status of its representation - be it an
acceptance or a rejection.
18. As discussed above, we conclude that there is
unexplained delay in taking decision on the representation of the
detenu after receipt of the report of the Advisory Board as also in
communicating the decision to the detenu. The 1 st respondent ought
to have diligently and expeditiously considered the representation,
once the report of the Advisory Board was obtained and
communicated the decision to the detenu within the shortest
possible time. However, for a breach of the duty on the part of the
Government to consider the representations submitted by the
detenu after execution of the detention order, this court need not
pronounce upon the validity of the detention order as such. ( See
WP(CRL.) NO. 487 OF 2024
the law laid down in Meena Jayendra Thakur v. Union of India
[(1999) CriL J 4534], Union of India and Others v. Harish
Kumar [(2008) 1 SCC 195] and Sayed Abul Ala v. Union of
India [(2007) 15 SCC 208] )
19. Since we find the contentions highlighted during the hearing
in favour of the detenu, we need not dilate on the other grounds raised in
the writ petition.
Hence we declare that the continued detention of the detenu is
illegal. He shall be released forthwith in case his custody is not required in
any other case. Registry shall communicate the operative portion of this
judgement to the Superintendent of Central Prison, Viyyur .
Sd/
A.MUHAMED MUSTAQUE
JUDGE
sd/
S.MANU
JUDGE
jm/
WP(CRL.) NO. 487 OF 2024
APPENDIX OF WP(CRL.) 487/2024
PETITIONER EXHIBITS
Exhibit P1 A TRUE PHOTOCOPY OF THE DETENTION ORDER OF THE
2ND RESPONDENT, NO. DCKLM/15984/2023-M16 DATED
27/01/2024
Exhibit P2 A TRUE PHOTOCOPY OF THE FIR CRIME NO.132/2020
OF THE ERAVIPURAM POLICE STATION DATED
29/01/2020
Exhibit P3 A TRUE PHOTOCOPY OF THE STATEMENT GIVEN BY THE
DEFACTO COMPLAINANT TO THE POLICE DATED
29/01/2020
Exhibit P4 A TRUE PHOTOCOPY OF THE WOUND CERTIFICATE OF
THE INFORMANT BABU PILLAI DATED 29/01/2020
Exhibit P5 A TRUE PHOTOCOPY OF THE WOUND CERTIFICATE OF
THE CO-INJURED NANDU DATED 29/01/2020
Exhibit P6 A TRUE PHOTOCOPY OF THE BAIL ORDER IN CRL.MC
NO.343/2020 OF THE 1ST ADDITIONAL SESSIONS
JUDGE, KOLLAM DATED 06/03/2020
Exhibit P7 A TRUE PHOTOCOPY OF THE FIR IN CRIME NO.
146/2022 OF KILKOLLOOR POLICE STATION DATED
14/02/2022
Exhibit P8 A TRUE PHOTOCOPY OF THE FIS IN CRIME NO.
146/2022 OF KILKOLLOOR POLICE STATION DATED
14/02/2022
Exhibit P9 THE WOUND CERTIFICATE OF SYAMKUMAR DATED
14/02/2022
Exhibit P10 A TRUE PHOTOCOPY OF THE FIR RIME NO. 1570/2022
OF ERAVIPURAM POLICE STATION DATED 13/11/2022
Exhibit P11 A TRUE PHOTOCOPY OF THE FIS IN CRIME NO.
1570/2022 OF ERAVIPURAM POLICE STATION DATED
13/11/2022
WP(CRL.) NO. 487 OF 2024
Exhibit P12 A TRUE PHOTOCOPY OF THE BAIL ORDER IN CRL MC
NO.90/2023 DATED 21/01/2023
Exhibit P13 A TRUE COPY OF THE THE FIR IN CRIME
NO.1843/2023 OF THE ERAVIPURAM POLICE STATION
DATED 02/11/2023
Exhibit P14 A TRUE PHOTOCOPY OF THE COMPLAINT SUBMITTED
BEFORE THE SUB DIVISIONAL MAGISTRATE, KOLLAM
DATED 12/11/2023
Exhibit P15 A TRUE COPY OF THE APPROVAL ORDER OF THE 1ST
RESPONDENT DATED 06/02/2024
Exhibit P16 A TRUE PHOTOCOPY OF THE REPRESENTATION
SUBMITTED BY THE DETENUE DATED 15/02/2024
Exhibit P17 A TRUE PHOTOCOPY OF THE ORDER OF THE 1ST
RESPONDENT REJECTING THE REPRESENTATION DATED
17/04/2024
Exhibit P18 A TRUE COPY OF THE ORDER OF THE 1ST RESPONDENT
CONFIRMING THE DETENTION ORDER DATED 11/04/2024
