Kerala High Court
Sindhu K vs State Of Kerala on 5 February, 2025
Author: P.B.Suresh Kumar
Bench: P.B.Suresh Kumar
2025:KER:9021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
&
THE HONOURABLE MR.JUSTICE JOBIN SEBASTIAN
WEDNESDAY, THE 5TH DAY OF FEBRUARY 2025 / 16TH MAGHA, 1946
WP(CRL.) NO. 1372 OF 2024
PETITIONER:
SINDHU K
AGED 44 YEARS
W/O UNNIKRISHNAN, CHORAKUNNIL VEEDU, VALAMPILY
MANGALAM, SREEKRISHNAPURAM, PALAKKAD, PIN - 679513
BY ADVS.
M.H.HANIS
T.N.LEKSHMI SHANKAR
NANCY MOL P.
ANANDHU P.C.
NEETHU.G.NADH
RIA ELIZABETH T.J.
SINISHA JOSHY
ANN MARY ANSEL
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,
CIVIL STATION, PALAKKAD DISTRICT, PIN - 678001
3 THE DISTRICT POLICE CHIEF,
CIVIL STATION, PALAKKAD DISTRICT, PIN - 678001
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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 SRI. K.A. ANAS, GOVERNMENT PLEADER
THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY
HEARD ON 03.02.2025, THE COURT ON 05.02.2025 DELIVERED THE
FOLLOWING:
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JUDGMENT
Jobin Sebastian, J.
This writ petition has been directed against an order of detention
dated 06.11.2024 passed against one Sreekuttan C. @ Kannan under
Section 3(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 detention order stands confirmed by the Government vide
order dated 07.01.2025 and the detenu was ordered to be detained for a
period of six months.
2. The records available before us disclose that a proposal was
submitted by the District Police Chief, Palakkad, on 01.10.2024, seeking
initiation of proceedings against the detenu under Section 3(1) of the
KAA(P) Act before the jurisdictional authority. For the purpose of initiation
of the said proceedings, the detenu was classified as a 'known rowdy' as
defined under Section 2p(iii) of the KAA(P) Act, and for passing the order
of detention the authority reckoned four cases in which the detenu got
involved. The details of the cases considered by the detaining authority
for classifying the detenu as a "known rowdy" are given below:-
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Sl. Crime Crime Offences involved Present
Police Station status of
No. No. Date under Sections
case
1 805/2022 Manjeri 395, 412 of IPC Pending
15.09.2022 trial
143, 147, 148, 447,
112/2024 294(b), 354, 324 r/w Pending
2 Sreekirshnapuram 07.03.2024 trial
149 of IPC
Kongad 395, 201 of IPC Pending
3 157/2024 18.03.2024 trial
189(2), 191(2),
191(3), 118(1) (2),
4 334/2024 Sreekrishnapuram 04.07.2024 Under
109, 351(3) r/w 190 investigation
of BNS
3. We have 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 is vitiated, as the same is passed without proper
application of mind and disregarding the procedural safeguards envisaged
in the KAA(P) Act. According to the counsel, there is inordinate delay in
mooting the proposal by the sponsoring authority and as well as in passing
the impugned order by the competent authority after the last prejudicial
activity, rendering the live link between the last prejudicial activity and the
purpose of detention snapped. The learned counsel further urged that, the
jurisdictional authority ought to have taken note of the fact that, already
proceedings have been initiated against the detenu under Section 126 of
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the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, and the same
would have been sufficient to prevent the detenu for involving in criminal
activities, particularly when no criminal activity has been reported against
the detenu after the initiation of the said proceedings. The learned counsel
for the petitioner further submitted that the investigation in the case
registered with respect to the last prejudicial activity is still under progress
and registration of FIR alone is not sufficient to classify the said case as a
qualified one to be reckoned for passing a detention order under the
KAA(P) Act. According to him, apart from the FIR registered, there are no
other materials substantiating the involvement of the detenu in the case
registered with respect to the last prejudicial activity.
5. In response, Sri. K.A. Anas, the learned Government Pleader,
asserted that there is no unreasonable delay either in submitting the
proposal or in passing Ext.P1 detention order after the last prejudicial
activity. However, some minimal delay is inevitable while passing a
detention order especially when it is the duty of the authority to ensure
adherence to the natural justice principles while passing such an order.
The learned Government Pleader further submitted that the detaining
authority passed the impugned order after being fully satisfied that there
were sufficient materials to prove the involvement of the detenu in the
W.P.(Crl.) No. 1372 of 2024 :6: 2025:KER:9021
case registered with respect to the last prejudicial activity and the decision
taken by the jurisdictional authority is not solely on the basis of the FIR
registered in that case. Similarly, the learned Government Pleader
submitted that, the impugned order was passed by the jurisdictional
authority after getting satisfied that proceedings under Section 126 of the
BNSS, would not suffice to prevent the detenu from engaging in criminal
activities. Therefore, action under 3(1) of the KAA(P) Act is the only
alternative to restrain the detenu from repeating criminal activities.
According to the learned Government Pleader, the detaining authority
passed Ext.P1 order after arriving at the requisite objective as well as
subjective satisfaction, and no interference is warranted, in the said order.
6. We have carefully considered the submissions advanced and
have perused the records.
7. The records show that the detenu was classified as a "known
rowdy", considering his recurrent involvement in four cases. While
considering the contention of the petitioner, regarding the delay that
occurred in submitting the proposal for detention and in passing the order,
it cannot be ignored that an order under Section 3(1) of KAA(P) Act has a
significant impact on the personal as well as fundamental rights of an
individual. So such an order cannot be passed in a casual manner instead
W.P.(Crl.) No. 1372 of 2024 :7: 2025:KER:9021
it can only be passed on credible materials after arriving at the requisite
objective and subjective satisfaction. Furthermore, there exists no
inflexible rule requiring a detention order to be issued within a specific
time frame following the last prejudicial act. However, when there is
undue delay in making the proposal and passing the detention order, the
same would undermine its validity particularly, when no convincing or
plausible explanation is offered for the delay.
8. Keeping in mind the above, while coming 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.334/2024 of
Sreekrishnapuram Police Station. The last prejudicial activity was
committed on 04.07.2024. From the records, it is evident that the detenu
was arrested in the said case on 08.07.2024 and released on bail, only on
07.09.2024. It was after his release from jail, the District Police Chief,
Palakkad, submitted the proposal to the competent authority for initiation
of proceedings under Section 3(1) of the KAA(P) Act on 01.10.2024.
Therefore, it is decipherable that there is only a delay of 23 days in
submitting the proposal after the release of the detenu on bail. The delay
in mooting the proposal occurred between the last prejudicial activity and
the release of the detenu from jail is justifiable since he was in judicial
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custody during that period. Similarly, the final order was passed on
06.11.2024 without much delay from the date of the last prejudicial
activity. The sequence of events narrated above clearly indicates that there
is no unreasonable delay either in forwarding the proposal or in passing
the impugned order. Some minimal delay is quite natural as some
minimum time is required to collect the details of the cases in which the
detenu is involved and for verification of records. Therefore, we cannot
concur with the contention of the learned counsel for the petitioner that
there is an unreasonable delay in mooting the proposal and passing Ext.
P1 order of detention. Therefore, it could be said that the live link between
the last prejudicial activity and the order of detention is not snapped.
9. While considering the contention of the learned counsel for
the petitioner that proceedings under Section 126 of the BNSS would have
been sufficient to restrain the detenu from repeating the criminal activities,
first of all, it is to be noted that proceedings under Section 126 of the
BNSS, and action under Section 3(1) of the KAA(P) Act operates in
different spheres. Under Section 126 of the BNSS, a person is only called
to furnish security for his good behaviour. On the other hand, under
Section 3(1) of the KAA(P) Act a person, who is having history of criminal
activities is detained so as to prevent him from repeating criminal
W.P.(Crl.) No. 1372 of 2024 :9: 2025:KER:9021
activities. Therefore, action under the KAA(P) Act is more effective. It is for
the detaining authority to decide whether action under Section 3(1) of the
KAA(P) Act is necessary against a person against whom already
proceedings under Section 126 of the BNSS, have been initiated.
Proceedings under Section 126 of the BNSS will in no way preclude the
jurisdictional authority from initiating proceedings under KAA(P) Act.
However, when a person against whom Section 126 of the BNSS
proceedings is pending, the authority passing the detention order shall be
satisfied that the said proceedings are not sufficient to prevent the detenu
from repeating criminal activities. In the case in hand in the impugned
order, it is specifically mentioned that there is every prospectus of
occurring delay in the completion of proceedings under Section 126 of the
BNSS and there is every chance of detenu getting involved in criminal
activities during the pendency of the said proceedings. Of course the said
explanation in the impugned order justifies the present detention order
passed during the pendency of proceedings under Section 126 of the
BNSS.
10. Another contention taken by the learned counsel for the
petitioner is that other than the FIR registered, there are no materials to
show the involvement of the detenu in the case registered with respect to
W.P.(Crl.) No. 1372 of 2024 :10: 2025:KER:9021
the last prejudicial activity. We do agree that something more than mere
registration of FIR is required to recokon a case, that is under
investigation, for the purpose of passing a detention order. However, in the
case in hand a perusal of the record reveals that apart from the FIR,
already sufficient materials were collected to prove the complicity of the
detenu in the case registered against him. The witness notes recorded in
the said case prima facie throw light regarding the detenu's involvement in
the commission of offence. It is apparent that it was after getting satisfied
with his involvement, that he was arrested in this case and remanded to
judicial custody. The recovery mahazar and the other documents relied
upon by the detaining authority in passing the impugned order suggest
that apart from the FIR, there are materials to connect the detenu with
the last prejudicial activity attributed against him. Though the learned
counsel for the petitioner submitted that a small portion of one of the
relied-upon documents served on the detenu is not legible, we are not
inclined to interfere with the impugned order on said ground especially
when the original document served on the detenu is not produced along
with this petition, to substantiate his contention. Moreover, the copy of the
documents produced along with the writ petition, clearly shows that the
copy of the documents relied upon is legible, except for a small portion of
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161 statement of a witness. Even in the copy of the said document the
portion which deals with the involvement of the detenu in the commission
of offence is clear and unambiguous.
11. In short, we are satisfied that all the necessary procedural
requirements before passing an order under Section 3(1) of the KAA(P)
Act have been scrupulously complied with in this case. We are further
satisfied that the competent authority passed the detention order after
thoroughly verifying all the materials placed by the sponsoring authority
and after arriving at the requisite objective and subjective satisfaction.
Therefore, it cannot be said that the order passed under Section 3(1) of
the KAA(P) Act is vitiated in any manner.
In view of the discussion above, we hold that the petitioner has not
made any case for interference. Hence, the writ petition stands dismissed.
sd/-
P.B. SURESH KUMAR
JUDGE
sd/-
JOBIN SEBASTIAN
JUDGE
DCS
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APPENDIX OF WP(CRL.) 1372/2024
PETITIONER EXHIBITS
Exhibit P1 A TRUE COPY OF ORDER NO. DCPKD/13076/2024-S1
DATED 06.11.2024 OF THE 2ND RESPONDENT
Exhibit P2 A TRUE COPY OF THE REPRESENTATION DATE
29.11.2024 SUBMITTED BEFORE THE 1ST
RESPONDENT
Exhibit P3 A TRUE COPY OF THE ACKNOWLEDGMENT CARD
EVIDENCING THE RECEIPT ON 02.12.2024 OF EXT
P2
Exhibit P4 A TRUE COPY OF THE REPRESENTATION DATE
29.11.2024 SUBMITTED BEFORE THE 4TH
RESPONDENT
Exhibit P5 A TRUE COPY OF THE ACKNOWLEDGMENT CARD
EVIDENCING THE RECEIPT ON 30.11.2024 OF EXT
P4
