[Cites 6, Cited by 0]
Kerala High Court
Rekha vs State Of Kerala on 17 December, 2025
Author: A.K.Jayasankaran Nambiar
Bench: A.K.Jayasankaran Nambiar
2025:KER:97364
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE A.K.JAYASANKARAN NAMBIAR
&
THE HONOURABLE MR.JUSTICE JOBIN SEBASTIAN
WEDNESDAY, THE 17TH DAY OF DECEMBER 2025/26TH AGRAHAYANA, 1947
WP(CRL.) NO. 1706 OF 2025
PETITIONER:
REKHA
AGED 37 YEARS
W/O SREEJITH, KALLAYIL (H) KULAMUTTAM DESAM,
MANAMBUR, THIRUVANANTHAPURAM, PIN - 695144
BY ADVS.
SRI.L.RAJESH NARAYAN
SMT.KEERTHANA SARIGA T.S.
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY, HOME
DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM
DISTRICT, PIN - 695001
2 DISTRICT MAGISTRATE
COLLECTORATE, CIVIL STATION ROAD, THIRUVANANTHAPURAM
DISTRICT, PIN - 695043
3 DISTRICT POLICE CHIEF
THIRUVANANTHAPURAM (RURAL) DISTRICT POLICE OFFICE,
PALAYAM THIRUVANANTHAPURAM DISTRICT, PIN - 695033
4 SUPERINTENDENT OF POLICE
CENTRAL PRISON AND CORRECTIONAL HOME, PUJAPURA,
THIRUVANANTHAPURAM, PIN - 695012
BY ADVS.
ADV.SRI.K.A.ANAS-PP
THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON
17.12.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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JUDGMENT
Jobin Sebastian, J.
The petitioner herein is the wife of one Sreejith ('detenu' for the
sake of brevity) and her challenge in this Writ Petition is directed
against Ext.P1 order of detention dated 31.07.2025 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 Government confirmed the detention
order vide order dated 26.09.2025, and the detenu has been ordered to
be detained for a period of six months, from the date of detention.
2. The records reveal that, on 10.07.2025, a proposal was
submitted by the District Police Chief, Thiruvananthapuram Rural,
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.
3. Altogether, four cases in which the detenu was involved have
been considered by the jurisdictional authority for passing the order of
detention. Out of the said cases considered, the case registered with
respect to the last prejudicial activity is crime No.592/2025 of
Kallambalam Police Station, alleging commission of offences punishable
under Sections 341, 118(1), 118(2), 61(2) r/w 3(5) of Bharatiya Nyaya
Sanhita (for short "BNS") and Section 3(2)(v) of SC/ST POA Act.
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4. We heard Sri. Rajesh Narayan L., the learned counsel
appearing for the petitioner, and Sri. K.A. Anas, the learned Public
Prosecutor.
5. Relying on the decision in Kamarunnissa v. Union of
India and another, [1991 (1) SCC 128], the learned counsel for the
petitioner contended that in cases wherein the detenu is in judicial
custody, in connection with the last prejudicial activity, a detention
order under preventive detention laws can be validly passed only on
satisfaction of the triple test mentioned in the said decision by the
Supreme Court. According to the counsel, as the impugned order was
passed while the detenu was in judicial custody in connection with the
last prejudicial activity, it was incumbent upon the authority to satisfy
itself that it has reason to believe, on the basis of reliable material
placed before it that, there is a real possibility of the detenu being
released on bail and that on being so released he would in all
probability indulge in prejudicial activity. According to the counsel,
though in Ext.P1 order, it is mentioned that the detenu was undergoing
judicial custody in connection with the last prejudicial activity, it is
nowhere mentioned that there is a real possibility of the detenu being
released on bail in connection with the last prejudicial activity. The
learned Counsel further urged that there is an inordinate delay in
mooting the proposal as well as passing the detention order, and hence,
the live link between the last prejudicial activity and the purpose of
detention is snapped. On these premises, the learned counsel submitted
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that the impugned order is liable to be set aside.
6. In response, the learned Public Prosecutor submitted that
Ext.P1 order of detention was passed by the jurisdictional authority
after proper application of mind and upon arriving at the requisite
objective as well as subjective satisfaction. According to the Public
Prosecutor, the impugned order of detention was passed by the
jurisdictional authority after being satisfied that a detention order
under Section 3(1) of the KAA(P) Act is the only way to deter the detenu
from repeating criminal activities. It was further contended that the
jurisdictional authority was fully aware of the fact that the detenu was
in judicial custody in connection with the last prejudicial activity, and it
was on being satisfied that there is every chance that the detenu be
released on bail, and if so released, he would in all probability indulge
in criminal activities further, the order of detenion was passed.
According to him, therefore, the order of detention will legally sustain
irrespective of the fact that the detenu was under judicial custody in
connection with the last prejudicial activity while the impugned order
was passed. According to the learned Public Prosecutor, there was no
delay in mooting the proposal as well as in passing the detention order
as claimed in the writ petition and therefore, the writ petitioner could
not be heard to say that the live link between the last prejudicial
activity and the purpose of detention is snapped. According to the
learned Public Prosecutor, none of the contentions taken by the
petitioner deserves merit and hence, no interference is warranted with
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the impugned order.
7. A perusal of the records reveals that altogether four cases
in which the detenu got involved have formed the basis for passing
Ext.P1 detention order. Out of the said cases, the case registered with
respect to the last prejudicial activity is crime No.592/2025 of
Kallambalam Police Station, alleging commission of offences punishable
under Sections 341, 118(1), 118(2), 61(2) r/w 3(5) of Bharatiya Nyaya
Sanhita (for short "BNS") and Section 3(2)(v) of SC/ST POA Act and the
detenu is arrayed as the first accused in the said case. The incident that
led to the registration of the said case occurred on 02.05.2025.
Subsequently, it was on 26.05.2025, the detenu was arrested. It was on
10.07.2025, while the detenu was under judicial custody, that the
sponsoring authority mooted the proposal for initiation of proceedings
under the KAA(P) Act against the detenu. Finally, the detention order
was passed on 31.07.2025.
8. The sequence of the events narrated above clearly reveals
that there is no unreasonable delay either in mooting the proposal or in
passing Ext.P1 order. We are not undmindful of the fact that there is a
delay of more than two months in mooting the proposal when calculated
from the date of last prejudicial activity. However, it cannot be ignored
that the detenu who is arrayed as the first accused in the said case was
arrested on 26.05.2025 and since then, he has been under judicial
custody. As the accused was under judicial custody, there was no basis
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for any apprehension regarding imminent repetition of criminal
activities by him. Therefore, the short delay that occurred in mooting
the proposal is justifiable. Notably, the detention order was passed
within twenty days of the date of the proposal. Therefore, the
contention of the petitioner that the live link between the last
prejudicial activity and the purpose of detention was snapped due to the
delay cannot be sustained.
9. From the rival contentions raised, it is gatherable that the
main question that revolves around this petition is whether an order of
detention under Section 3(1) of the KAA(P) Act can be validly passed
against a person who is under judicial custody in connection with the
last prejudicial activity. While answering the said question, it is to be
noted that, through a series of judicial pronouncements rendered by the
Apex Court as well as by this Court, it is well settled that there is no
legal impediment in passing an order of detention against a person who
is under judicial custody in connection with the last prejudicial activity.
However, an order of detention against a person who is in judicial
custody in connection with the last prejudicial activity cannot be passed
in a mechanical manner. Undisputedly, an order of detention under the
KAA(P) Act is a drastic measure against a citizen as it heavily impacts
his personal as well as his 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 detenu is in jail in connection with the last
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prejudicial activity, obviously, there is no imminent possibility of being
involved in criminal activities. Therefore, before passing a detention
order in respect of a person who is in jail, the concerned authority must
satisfy itself that there is a real possibility that the detenu is on bail,
and further, if released on bail, the material on record reveals that he
will indulge in prejudicial activity if not detained. The circumstances
that necessitate the passing of such an order must be reflected in the
order itself.
10. In Kamarunnissa's case (cited supra), the Supreme Court
made it clear that a detention order under preventive detention laws
can be validly passed even in the case of a person in custody (1) if the
authority passing the order is aware of the fact that he is actually in
custody (2) if he has reason to believe on the basis of reliable materials
placed before him (a) that there is a real possibility of his being
released on bail and (b) that on being so released he would in
probability indulged in prejudicial activity and (3) if it is essential to
detain him to prevent him from doing so. If the authority passes an
order after recording its satisfaction in this regard, such an order would
be valid.
11. A similar view has been taken by the Supreme Court in
Veeramani v. The State of Tamil Nadu [1994 (2) SCC 337] and in
Union of India v. Paul Manickam [2003 (8) SCC 342].
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12. In view of the said decisions, in cases wherein the detenu is
in judicial custody in connection with the last prejudicial activity, a
detention order under preventive detention laws can be validly passed
only on satisfaction of the triple test mentioned in the said decisions by
the Supreme Court.
13. Keeping in mind the above proposition of law laid down by
the Supreme Court, while reverting to the facts in the present case, it
can be seen that the case registered against the detenu with respect to
the last prejudicial activity is crime No.592/2025 of Kallambalam Police
Station, alleging commission of offences punishable under Sections
341, 118(1), 118(2), 61(2) r/w 3(5) of BNS and Section 3(2)(v) of SC/ST
POA Act. The detenu was arrayed as the 1st accused in the said case,
was arrested on 26.05.2025. The impugned order was passed on
31.07.2025, while the detenu was under judicial custody.
14. In Ext.P1 detention order, it is specifically stated that at the
time of passing the said order, the detenu was under judicial custody in
connection with the case registered against the detenu with respect to
the last prejudicial activity. Therefore, it is decipherable that the
detaining authority was fully cognizant of the fact that the detenu was
in custody at the time when it passed Ext.P1 order.
15. Moreover, in the impugned order, it is clearly mentioned
that all the proceedings already initiated against the detenu under
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ordinary criminal law did not yield any result, and the accused is
involved in criminal activities again and again, disregarding the bail
conditions imposed in the earlier cases. Similarly, in Ext. P1 order, it is
further recorded that there is a real possibility of the detenu being
released on bail and that, upon release, he would in all probability
indulge in prejudicial activities. Moreover, in the order, it is further
mentioned that the antecedents of the detenu suggest that if he is
released on bail, he will repeat criminal activities, and hence, an order
of detention under the KAA(P) Act is highly warranted to deter him from
repeating criminal activities. Therefore, we have no hesitation in
holding that the jurisdictional authority passed the detention order
after being satisfied of the triple test mentioned in Kamarunnissa's
case, which we have detailed above.
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
ANS
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APPENDIX OF WP(CRL.) NO. 1706 OF 2025
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE DETENTION ORDER
BEARINGNO.DCTVM/11265/2025-C1, DATED
31.07.2025 PASSED BY THE 2ND RESPONDENT
Exhibit P2 TRUE COPY OF THE ORDER OF APPROVAL
BEARING NO.HOME-SSA5/323/2025-HOME,
DATED 12.08.2025 PASSED BY THE 1ST
RESPONDENT
Exhibit P3 TRUE COPY OF THE REPRESENTATION, DATED
NIL SUBMITTED BY THE DETENUE BEFORE THE
ADVISORY BOARD THROUGH THE 4TH
RESPONDENT
Exhibit P4 TRUE COPY OF THE ORDER BEARING G.O.(RT)
NO.3344/2025/HOME, DATED
26.09.2025ISSUED BY THE 1ST RESPONDENT
Exhibit P5 TRUE COPY OF THE ORDER BEARING NO.HOME-
S.S.A5/323/2025-HOME, DATED 27.09.2025
ISSUED BY THE ADDITIONAL CHIEF
SECRETARY, HOME DEPARTMENT
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APPENDIX OF WP(CRL.) NO. 1652 OF 2025
PETITIONER EXHIBITS
Exhibit P1 A TRUE COPY OF THE ORDER NO. KAAPA-A3-
17652/2024/KR ISSUED BY THE DEPUTY
INSPECTOR GENERAL OF POLICE, KANNUR
RANGE (R2) DATED 16/12/2024
