Kerala High Court
D Saraswathi vs State Of Kerala on 25 August, 2025
Author: A.K.Jayasankaran Nambiar
Bench: A.K.Jayasankaran Nambiar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE A.K.JAYASANKARAN NAMBIAR
&
THE HONOURABLE MR.JUSTICE JOBIN SEBASTIAN
MONDAY, THE 25TH DAY OF AUGUST 2025 / 3RD BHADRA, 1947
WP(CRL.) NO. 863 OF 2025
PETITIONER:
D SARASWATHI, AGED 58 YEARS
W/O VIJAYAKUMARAN NAIR, T.C 40/32,
MADATHOOVILA, THIRUMALA P.O,
THIRUVANANTHAPURAM, PIN - 695006
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 DISTRICT, PIN - 695043
3 THE DISTRICT POLICE CHIEF
THIRUVANANTHAPURAM RURAL, PIN - 695033
4 THE CHAIRMAN, ADVISORY BOARD, KAAPA, SREENIVAS,
PADAM ROAD, VIVEKANANDA NAGAR,
ELAMAKKARA,ERNAKULAM DIST, PIN - 682026
5 THE SUPERINTENDENT OF JAIL
CENTRAL JAIL, VIYYUR,
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THRISSUR DIST, PIN - 670004
G.P; K.A.ANAS
THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION
ON 25.08.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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JUDGMENT
Jobin Sebastian, J.
This writ petition is directed against an order of detention dated
12.06.2025 passed against one Sreejith @ Unni, the detenu, under
Section 3(1) r/w 13(2)(1) of the Kerala Anti-Social Activities
(Prevention) Act, 2007 ('KAA(P) Act' for brevity). The petitioner
herein is the mother of the detenu. The said order of detention was
confirmed by the Government vide order dated 18.08.2025, and the
detenu has been ordered to be detained for a period of one year, 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 Deputy Commissioner of Police,
Thiruvananthapuram City, on 06.05.2025 seeking initiation of
proceedings against the detenu under Section 3(1) r/w 13(2)(1) of 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.
3. In a series of detention orders passed against the detenu,
the present detention order is the 9th one passed against him. After
undergoing the period of detention in terms of the 8th detention
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order, the detenu was released from jail on 20.03.2025. Immediately
thereafter, again got involved in a criminal activity and the same led to
the forwarding of a proposal for the initiation of proceedings under
KAA(P) Act against the detenu again. The case registered with
respect to the last prejudicial activity is crime No.474/2025 of
Poojappura Police Station, alleging the commission of offences
punishable under Sections 121(1), 109(1) of Bharatiya Nyaya Sanhita
(for short "BNS").
4. We heard Sri. M.H. Hanis, the learned counsel appearing
for the petitioner, and Sri.K.A.Anas, the learned Government Pleader.
5. The learned counsel for the petitioner would submit that
the Ext.P1 order is illegal, arbitrary, and was passed without proper
application of mind. The learned counsel further urged that the
jurisdictional authority passed the impugned order of detention
without taking note of the fact that the detenu was released on bail in
the case registered with respect to the last prejudicial activity and the
conditions imposed on him at the time of granting bail itself were
sufficient to deter the detenu from being involved in further criminal
activities. According to the learned counsel, the sufficiency of the bail
conditions was not properly considered by the jurisdictional authority,
and passed the impugned order in a casual manner. The learned
counsel further submitted that there is an inordinate delay in mooting
the proposal as well as in passing the impugned order, and the said
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delay will certainly snap the live link between the last prejudicial
activity and the purpose of detention. Counsel further urged that
though the detenu had forwarded a representation to the Government,
assailing the detention order through the jail superintendent
concerned, the said representation was not considered by the
Government, and its fate was also not communicated. On these
premises, it was urged that the impugned order is liable to be set
aside.
6. In response, the learned Government Pleader asserted
that the jurisdictional authority passed Ext. P1 order after taking note
of the fact that the detenu was on bail in connection with the last
prejudicial activity and after being satisfied that the bail conditions
imposed while granting bail to the detenu are not sufficient to prevent
him from being involved in criminal activities. The learned
Government Pleader further urged that there is no delay in passing
the impugned order after the date of the last prejudicial activity and
hence the petitioner's contention that the live link between the last
prejudicial activity and the order of detention is snapped will not be
sustained. The learned Government Pleader further submitted that the
representation submitted by the detenu through the jail
superintendent was considered by the Government, and its fate was
duly communicated to the detenu and the contention of the learned
counsel for the petitioner sticking on non-consideration of the
representation is absolutely baseless.
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7. Before delving into a discussion regarding the rival
contentions raised from both sides, it is to be noted that, as evident
from the records, the present order of detention is the 9th detention
order passed against the detenu under the KAA(P) Act, In terms of the
earlier detention order, the detenu had undergone one year of
detention, and released from jail on 20.03.2025. Immediately
thereafter, on 27.03.2025, he again got involved in a criminal activity,
which actually necessitated the passing of the impugned order. The
case registered against the detenu with respect to the last prejudicial
activity after the passing of the earlier order of detention registered
against the detenu is crime No.474/2025 of Poojappura Police Station,
alleging the commission of offences punishable under Sections 121(1),
109(1) of BNS. As already noted, the incident that led to the
registration of the last prejudicial activity occurred on 27.03.2025.
After the commission of the last prejudicial activity, the detenu
absconded and subsequently surrendered before the court on
11.04.2025. In the said case, the detenu got bail on 03.05.2025.
Immediately after his released from jail, on 06.05.2025, the
sponsoring authority mooted the proposal for initiation of proceedings
under KAA(P) Act against the detenu. Thereafter, it was on
12.06.2025, the impugned order was passed. Virtually, there is only a
delay of around 2 ½ months in passing the impugned order of
detention. The said delay cannot be treated as an inordinate one.
Obviously, a reasonable time would be required for collecting the
details of the case in which the detenu was involved and for
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verification of the records. Moreover, for a considerable period, i.e.,
from 11.04.2025 to 03.05.2025, the detenu was under judicial custody
in connection with the last prejudicial activity. As he was in jail during
the said period, there was no basis for any apprehension regarding
imminent repetition of criminal activities by the detenu. Therefore,
the minimal delay occurred in this case in mooting the proposal as
well as in passing the order is justifiable.
8. Admittedly, the proposal for initiation of proceedings under
KAA(P) Act was mooted, and the impugned order of detention was
passed while the detenu was on bail in the case registered with
respect to the last prejudicial activity. Therefore, it was incumbent
upon the jurisdictional authority to consider whether the conditions
clamped on the detenu while granting bail to him in the said case will
suffice to deter the detenu from repeating criminal activities. The
learned counsel for the petitioner has a definite contention that the
sufficiency of the bail conditions was not properly considered by the
jurisdictional authority and passed the impugned order in a casual
manner.
9. While considering the above contention of the petitioner,
firstly, it is to be noted that there is no law that precludes the
jurisdictional authority from passing an order of detention against a
person who is already on bail. However, an order of detention under
the KAA(P) Act is a drastic measure against a citizen, and it heavily
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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. When a person is already on bail,
and if the bail condition imposed on him will suffice to deter him from
repeating criminal activities, an order of detention is not at all
necessary and not permissible. In other words, when a person who is
already on bail is detained, the impugned order should reflect the
compelling circumstance that necessitated the passing of such an
order. Therefore, when an order of detention is passed against a
person who is on bail, it is incumbent upon the authority to take note
of the said fact and to consider whether the bail conditions imposed
on such a person while granting bail by the court are sufficient to
restrain him from being involved in criminal activities.
10. Keeping in mind the above, while reverting to the case at
hand, it can be seen that in the impugned order itself, the fact that the
detenu was released on bail in the case registered against him with
respect to the last prejudicial activity is specifically adverted to. It is
true that the conditions imposed by the court while granting bail are
not extracted in the impugned order. But there is no requirement of
law that the bail conditions shall be extracted in the order of
detention. But what is required is that the jurisdictional authority
should consider the sufficiency of bail conditions imposed in the bail
order. In the impugned order, it is clearly mentioned that the
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antecedents of the detenu show that he is in the habit of being
involved in criminal activities, repeatedly disregarding the bail
conditions imposed on him in the earlier cases. Furthermore, in the
impugned order, it is stated that the bail conditions imposed on the
detenu are not sufficient to restrain the detenu from repeating
criminal activities. Likewise, all the proceedings already initiated
against the detenu under ordinary criminal law did not yield any
result, and the accused is involving in criminal activities again and
again, disregarding the bail conditions imposed in the earlier cases. A
holistic reading of the impugned order further reveals that the act of
the detenu violating the bail conditions and being involved in criminal
activities is one of the materials which the jurisdictional authority
relied on to enter into a subjective satisfaction to pass the detention
order. Therefore, it cannot be said that the jurisdictional authority did
not consider the sufficiency of the bail conditions imposed on the
detenu at the time of passing the impugned order. The impugned
order reveals that the antecedents of the detenu and his propensity to
be involved in criminal activities, disregarding the earlier bail orders,
persuaded the detaining authority to arrive at a subjective satisfaction
regarding the necessity of passing the detention order. Therefore, the
contention of the learned counsel for the petitioner in the above
regard will fail.
11. While considering the contention in the writ petition that
the representation submitted by the detenu was not considered by the
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Government within a reasonable time, and the fate of the
representation was not timely communicated to him, it is to be noted
that the right of a detenu to get his representation considered by the
Government is a constitutional as well statutory right. However, the
records reveal that the contention of the petitioner that the
representation of the detenu was not considered by the Government
appears to be baseless. The copy of the said representation (Ext.P3),
which is appended with the writ petition, reveals that the same is
dated 12.06.2025. Admittedly, the representation was routed through
the Jail Superintendent concerned to the Government. At this
juncture, it is significant to note that, as evident from the records,
Ext.P3 representation was received by the Government only on
02.07.2025. Prior to the receipt of the said representation, on
25.06.2025, the Government had preferred the matter to the Advisory
Board for opinion. Therefore, it is demonstrably clear that prior to the
receipt of Ext.P3 representation, the matter was referred by the
Government to the Advisory Board.
12. At this juncture, it is worthwhile to refer to the decision of
the Supreme Court in K.M.Abdulla Kunhi v. Union of India (1991 (1)
SCC 476). In the said case in paragraph 16, the Supreme Court
observed as follows;
The time imperative for consideration of representation
can never be absolute or obsessive. It depends upon the
necessities and the time at which the representation is made.
The representation may be received before the case is referred
to the advisory board, but there may not be time to dispose of
the representation before referring the case to the advisory
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board. In that situation, the representation must also be
forwarded to the advisory board along with the case of the
detenu. The representation may be received after the case of
the detenu is referred to the board. Even in this situation, the
representation should be forwarded to the advisory board,
provided the board has not concluded the proceedings. In
both the situations, there is no question of consideration of the
representation before the date of receipt of the report of the
advisory board. Nor it could not be said that the Government
had delayed the consideration of the representation,
unnecessarily awaiting the report of the board. It is proper for
the Government in such situation to await the report of the
board.
13. A similar view has been taken by the Supreme Court in
Golam Biswas v. Union of India and another (reported in 2015 KHC
5588).
14. Keeping in mind the above principle, while reverting to
the case at hand, as already noted, Ext.P3 representation was
received by the Government only on 02.07.2025. The matter had been
referred to the Advisory Board prior to the receipt of the said
representation. As the matter was already seized of by the Advisory
Board, the Government is justified in not considering the
representation immediately. The Advisory Board formed its opinion
and forwarded the same to the Government on 06.08.2025.
Thereafter, the Government confirmed the order of detention vide
order dated 18.08.2025. A perusal of the confirmation order reveals
that it was after considering Ext.P3 representation submitted by the
detenu and the opinion of the Advisory order, the detention order was
confirmed. Moreover, the fate of the representation is also duly
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communicated to the detenu. Therefore, the contention of the
petitioner that the representation submitted by the detenu was not
considered by the Government will not be sustained.
In the result, we have no hesitation in holding that the
petitioner has not made out any ground for interference. Hence, the
writ petition fails and is accordingly dismissed.
Sd/-
DR. A.K.JAYASANKARAN NAMBIAR
JUDGE
Sd/-
JOBIN SEBASTIAN
JUDGE
ncd
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APPENDIX OF WP(CRL.) 863/2025
PETITIONER EXHIBITS
Exhibit P1 A TRUE COPY OF THE ORDER
NO.DCTVM/7871/2025-C5 DATED
12.06.2025 OF THE 2ND RESPONDENT
Exhibit P2 A TRUE COPY OF THE REPRESENTATION
DATED 28.04.2025 SUBMITTED BY THE
PETITIONER BEFORE THE DISTRICT
COLLECTOR, THIRUVANANTHAPURAM
Exhibit P3 A TRUE COPY OF THE REPRESENTATION
DATED 20.06.2025 SUBMITTED BY THE
PETITIONER BEFORE THE 1ST RESPONDENT
Exhibit P4 A TRUE COPY OF THE REPRESENTATION
DATED 20.06.2025 SUBMITTED BY THE
PETITIONER BEFORE THE 4TH RESPONDENT
