Kerala High Court
Fathama Beevi L vs State Of Kerala on 8 August, 2025
Author: A.K.Jayasankaran Nambiar
Bench: A.K.Jayasankaran Nambiar
2025:KER:59951
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE A.K.JAYASANKARAN NAMBIAR
&
THE HONOURABLE MR.JUSTICE JOBIN SEBASTIAN
FRIDAY, THE 8TH DAY OF AUGUST 2025 / 17TH SRAVANA, 1947
WP(CRL.) NO. 928 OF 2025
PETITIONER:
FATHIMA BEEVI L., AGED 34 YEARS,
W/O IRSHAD N, .KATTAKKALIL VEEDU.
THOTTUMPURATHU, KOCHALUMOODU,
KANJINADA P.O, PANGODE, NEDUMANGAD,
THIRUVANANTHAPURAM, PIN - 695609
BY ADVS.
SHRI.M.H.HANIS
SMT.T.N.LEKSHMI SHANKAR
SMT.NANCY MOL P.
SHRI.ANANDHU P.C.
SMT.NEETHU.G.NADH
SMT.RIA ELIZABETH T.J.
SHRI.SAHAD M. HANIS
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
THIRUVANANTHAPURAM DIST, PIN - 695043
3 THE DISTRICT POLICE CHIEF,
THIRUVANANTHAPURAM RURAL, PIN - 695043
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4 THE CHAIRMAN, ADVISORY BOARD, KAAPA,
SREENIVAS, PADAM ROAD, VIVEKANANDA NAGAR ,
ELAMAKKARA,ERNAKULAM DIST, PIN - 682026
5 THE SUPERINTENDENT OF JAIL
CENTRAL JAIL, VIYYUR,
THRISSUR DIST, PIN - 670004
BY ADVS.
SRI.K.A. ANAS, GOVERNMENT PLEADER
THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR
ADMISSION ON 08.08.2025, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
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JUDGMENT
Jobin Sebastian, J.
The petitioner is the wife of one Irshad ('detenu' for the sake of
brevity), and her challenge in this Writ Petition is directed against
Ext.P1 order of detention dated 26.04.2025 passed by the 2nd
respondent under Section 3(1) of the Kerala Anti-Social Activities
(Prevention) Act, 2007 ('KAA(P) Act' for brevity). After considering
the opinion of the Advisory Board, the said order stands confirmed by
the Government, vide order dated 04.07.2025, and the detenu has
been ordered to be detained for a period of one year with effect from
the date of detention.
2. The records reveal that it was after considering the
recurrent involvement of the detenu in criminal activities, a proposal
was submitted by the District Police Chief, Thiruvananthapuram
Rural, on 24.02.2025 seeking initiation of proceedings against the
detenu under Section 3(1) of the KAA(P) Act before the jurisdictional
authority, the 2nd respondent. Altogether, 19 cases in which the
detenu got himself involved have been considered by the detaining
authority while passing the impugned order of detention. Out of the
said cases, the case registered with respect to the last prejudicial
activity is crime No.54/2025 of Valiyamala Police Station, registered,
alleging commission of offences punishable under Sections 318(4) r/w
3(5) of Bharatiya Nyaya Sanhita.
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3. We heard Sri. M.H. Hanis, the learned counsel appearing
for the petitioner, and Sri. K.A.Anas, the learned Government Pleader.
4. The learned counsel for the petitioner would submit that
the impugned order was passed without proper application of mind
and on improper consideration of facts. According to the counsel,
although the detenu got bail in the case registered with respect to the
last prejudicial activity, the said fact is not adverted to in the
impugned order and the impugned order is passed by the
jurisdictional authority on an assumption that no bail has been
granted in the said case. According to the counsel, as the detenu was
on bail it was incumbent upon the jurisdictional authority to be
cognizant of the said fact and to consider the sufficiency of the bail
conditions clamped on the detenu in the bail order. He further
submits that the conditions imposed on the detenu at the time of
granting bail itself were sufficient to restrain the detenu from
involving in further criminal activities and hence, an order
preventively detaining him was not at all necessitated.
5. Per contra, Sri. K.A. Anas, the learned Government
Pleader, submitted that even in cases where the detenu is under
judicial custody, a detention order can be validly passed if the
satisfaction of the authority is properly adverted to in the order. The
learned Government Pleader further submitted that it was after
arriving at the requisite objective as well as subjective satisfaction,
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Ext.P1 order was passed, and hence no interference is warranted.
6. Before considering the contentions taken by the learned
counsel appearing for both sides, it is to be noted that out of the 19
cases considered by the jurisdictional authority, the case registered
with respect to the last prejudicial activity is crime No.54/2025 of
Valiyamala Police Station, registered, alleging commission of offences
punishable under Sections 318(4) r/w 3(5) of Bharatiya Nyaya
Sanhita. The incident which led to the registration of the said case
occurred on 23.01.2025. The detenu who was arrayed as the 2nd
accused in the said case was arrested on the same day. The District
Police Chief, Thiruvananthapuram Rural, mooted the proposal for
initiation of proceedings under KAA(P) Act on 24.02.2025 while the
detenu was under judicial custody. Anyhow, from the counter affidavit
filed from the side of the respondent it is evident the detenu was
released on bail on 26.04.2025. The impugned order was also passed
on the same date. As the petitioner was released on bail, it was
incumbent upon the jurisdictional authority to consider the sufficiency
of the bail conditions clamped on the detenu. However, the impugned
order reveals that the jurisdictional authority was not even cognizant
of the fact that the petitioner was released on bail. When the detenu
was on bail, an order of detention can be validly passed against him
only if the jurisdictional authority enters into a satisfaction that the
conditions imposed on the detenu at the time of granting bail are not
sufficient to deter him from repeating criminal activities. In the
present case, such a satisfaction is not seen arrived on and even the
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fact of release of the petitioner on bail is not adverted to in the order.
On the contrary, the jurisdictional authority passed the order under
the assumption that the petitioner was under judicial custody.
Therefore, non application of mind on the part of the jurisdictional
authority is apparent in this case and hence the impugned order is
liable to be held vitiated.
7. In the result, this Writ Petition is allowed and Ext.P1
order of detention is set aside. The Superintendent of Central Jail,
Viyyur, Thrissur, is directed to release the detenu, Sri. Irshad,
forthwith, if his detention is not required in connection with any other
case.
The Registry is directed to communicate the order to the
Superintendent of Central Jail, Viyyur, Thrissur, forthwith.
Sd/-
DR. A.K.JAYASANKARAN NAMBIAR
JUDGE
Sd/-
JOBIN SEBASTIAN
JUDGE
ncd
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APPENDIX OF WP(CRL.) 928/2025
PETITIONER EXHIBITS
Exhibit P1 A TRUE COPY OF THE ORDER
NO.DCTVM/4608/2025-S13 DATED
26.04.2025 OF THE 2ND RESPONDENT
Exhibit P2 A TRUE COPY OF THE REPRESENTATION
DATED 24,05.2025 SUBMITTED BY THE
PETITIONER BEFORE THE 4TH RESPONDENT
