Kerala High Court
Suganthi vs State Of Kerala on 8 August, 2025
Author: A.K.Jayasankaran Nambiar
Bench: A.K.Jayasankaran Nambiar
2025:KER:59865
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. 942 OF 2025
PETITIONER:
SUGANTHI, AGED 44 YEARS, W/O DINESH KUMAR,
DINESH VILASOM, CHERUTHALIKKODE DAIVAPURAM,
PERINGAMALA VILLAGE, THIRUVANANTHAPURAM
DISTRICT, PIN - 695563
BY ADVS.
SRI.P.MOHAMED SABAH
SRI.LIBIN STANLEY
SMT.SAIPOOJA
SRI.SADIK ISMAYIL
SMT.R.GAYATHRI
SHRI.ALWIN JOSEPH
SHRI.BENSON AMBROSE
RESPONDENTS:
1 STATE OF KERALA REPRESENTED BY
THE ADDITIONAL CHIEF SECRETARY TO
GOVERNMENT OF KERALA (HOME DEPARTMENT),
SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001
2 THE DISTRICT MAGISTRATE
THIRUVANANTHAPURAM, 2ND FLOOR,
CIVIL STATION BUILDING, CIVIL STATION ROAD,
THIRUVANANTHAPURAM DISTRICT, PIN - 695043
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3 THE DISTRICT POLICE CHIEF
THIRUVANANTHAPURAM RURAL, PATTOOR PMG RD,
PALAYAM, THIRUVANANTHAPURAM,, PIN - 695033
4 THE SUPERINTENDENT, CENTRAL PRISON,
VIYYUR, THRISSUR DISTRICT, PIN - 680010
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 Dinesh Kumar, ('detenu' for the
sake of brevity) and her challenge in this Writ Petition is directed
against Ext.P2 order of detention dated 22.11.2024 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 Government confirmed the said
order of detention vide order dated 22.01.2025, and the detenu was
ordered to be detained for a period of one year from the date of
detention.
2. The records reveal that a proposal was submitted by the
District Police Chief, Thiruvananthapuram Rural, on 02.11.2024,
seeking initiation of proceedings against the detenu under the KAA(P)
Act before the jurisdictional authority, the 2nd respondent. For the
purpose of initiation of the said proceedings, the detenu was classified
as a 'known rowdy' as defined under Section 2(p)(iii) of the KAA(P)
Act. Altogether, three cases in which the detenu got involved have
been considered by the detaining authority by passing the impugned
order of detention. Out of the three cases considered by the
jurisdictional authority, the case registered regarding the last
prejudicial activity is crime No.930/2024 of Palode Police Station,
alleging commission of offences punishable under Sections 126(2),
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296(b), 115(2), 118(1), 74, 75(1) (i), 76 r/w 3(5) of Bharatiya Nyaya
Sanhita (for short "BNS").
3. We heard Sri. Benson Ambrose, 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
Ext. P2 order was passed by the jurisdictional authority without
proper application of mind and without arriving on the requisite
objective as well as subjective satisfaction. According to the learned
counsel, it was after the release of the detenu on bail in the case
registered with respect to the last prejudicial activity, that the
impugned order of detention was passed. However, the jurisdictional
authority, while passing the impugned order, failed to consider the
sufficiency of the bail conditions imposed by the court at the time of
granting bail. The counsel urged that the jurisdictional authority
should have passed such an order only after being satisfied that the
said bail conditions are not sufficient to restrain the detenu from
repeating criminal activities. However, in the impugned order, there is
nothing to suggest that the same was passed by the jurisdictional
authority after being satisfied that the conditions imposed are not
sufficient to deter the detenu from criminal activities, and hence, the
order is vitiated and liable to be interfered with.
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5. In response, the learned Government Pleader submitted that
Ext. P2 order of detention was passed after complying with all the
necessary legal formalities and after proper application of mind.
According to the Government Pleader, as the jurisdictional authority
passed the order after proper appreciation of facts and arrived at the
requisite objective as well as subjective satisfaction, no interference is
warranted in the impugned order.
6. While considering the rival contentions, it is to be noted
that the case registered against the detenu with respect to the last
prejudicial activity is crime No.930/2024 of Palode Police Station,
alleging commission of offences punishable under Sections 126(2),
296(b), 115(2), 118(1), 74, 75(1) (i), 76 r/w 3(5) of BNS. The date of
occurrence of the said case was on 07.10.2024. The records further
reveal that the detenu was arrested in that case on 18.10.2024 and
released on bail on 06.11.2024. It was on 22.11.2024, the impugned
order was passed. Therefore, while passing the order, it was
incumbent upon the jurisdictional authority to take note of the fact
that the detenu was on bail in the said case and also to consider the
sufficiency of the bail conditions clamped on him by the court while
granting bail to him. Moreover, the jurisdictional authority should
have passed such an order of detention only after being satisfied that
the said bail conditions are not sufficient to restrain the detenu from
repeating the criminal activities. Keeping in mind the above while
reverting to the facts in the present case, it can be seen that in the
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impugned order, the fact that the detenu was released on bail in the
last case registered against him as crime No.930/2024 of Palode
Police Station, is specifically adverted to. However, in the impugned
order, it is nowhere mentioned that the bail conditions imposed on the
detenu at the time of granting bail are not sufficient to deter the
detenu from repeating criminal activities. There is also no reference to
any material that was available before the detaining authority to
arrive at such a finding. An order of detention under KAA(P) Act is a
drastic measure against a citizen, especially when it heavily impacts
their personal as well as fundamental rights. When an effective and
alternative remedy exists to prevent a person from repeating criminal
activities, resorting to preventive detention is neither warranted nor
permissible. Therefore, when the detenu is on bail, it is imperative for
the jurisdictional authority to consider whether there exists any bail
condition that would suffice to deter the detenu from engaging in
criminal activities further. However, in the case at hand, it is evident
that the sufficiency of bail conditions was not considered, and the
compelling circumstances that necessitated the passing of a
preventive detention order are not explained. Hence, the impugned
order is vitiated and liable to be interfered with.
7. In the result, this Writ Petition is allowed and Ext.P2
order of detention is set aside. The Superintendent of Central Prison,
Viyyur, Thrissur, is directed to release the detenu, Sri. Dinesh Kumar
forthwith, if his detention is not required in connection with any other
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case.
The Registry is directed to communicate the order to the
Superintendent of Central Prison, Viyyur, Thrissur, forthwith.
Sd/-
DR. A.K.JAYASANKARAN NAMBIAR
JUDGE
Sd/-
JOBIN SEBASTIAN
JUDGE
ncd
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APPENDIX OF WP(CRL.) 942/2025
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE REPORT DATED
02.11.2024 SUBMITTED BY THE
RESPONDENT NO.3 BEFORE THE RESPONDENT
NO.2
Exhibit P2 TRUE COPY OF THE DETENTION ORDER
DATED 22.11.2024 PASSED BY THE
RESPONDENT NO.2
Exhibit P3 TRUE COPY OF THE GROUNDS OF DETENTION
FOR PASSING EXHIBIT P2 DETENTION
ORDER DATED 22.11.2024
Exhibit P4 TRUE COPY OF THE ORDER DATED
22.01.2025 PASSED BY RESPONDENT NO.1
Exhibit P5 TRUE COPY OF THE ORDER DATED
06.11.2024 IN CRL.M.P NO.9680/2024
PASSED BY HONOURABLE JUDICIAL FIRST
CLASS MAGISTRATE COURT FOR TRIAL OF
FOREST OFFENCES CASE, NEDUMANGADU
