Kerala High Court
Athulya vs State Of Kerala on 27 January, 2025
Author: Raja Vijayaraghavan
Bench: V Raja Vijayaraghavan
2025:KER:6027
W.P (Crl.) No. 1309 of 2024 :1:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
&
THE HONOURABLE MR.JUSTICE P. V. BALAKRISHNAN
MONDAY, THE 27TH DAY OF JANUARY 2025 / 7TH MAGHA, 1946
WP(CRL.) NO. 1309 OF 2024
PETITIONER:
ATHULYA
AGED 28 YEARS
W/O. SAKESH M. K, KEERTHI HOUSE, NARIKUM PARAMBA,
MUKKUVAR P. O, KOZHIKODE, PIN - 673303
BY ADVS.
RENJITH B.MARAR
LAKSHMI.N.KAIMAL
P.RAJKUMAR
KESHAVRAJ NAIR
BIJU VIGNESWAR
ARUN POOMULLI
ABHIJITH SREEKUMAR
ABHIRAM.S.
GAADHA SURESH
T.K.BABU
JITHY PRADEEP
AKHILA RADHAKRISHNAN
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY (HOME),
GOVERNMENT OF KERALA, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM, PIN - 695001
2025:KER:6027
W.P (Crl.) No. 1309 of 2024 :2:
2 THE DISTRICT MAGISTRATE
KOZHIKODE COLLECTORATE, CIVIL STATION P. O,
KOZHIKODE, PIN - 673020
3 DISTRICT POLICE CHIEF
THE OFFICE OF DISTRICT POLICE CHIEF,
PAVAMANI RD, TAZHEKKOD, KOZHIKODE, PIN - 673004
4 STATION HOUSE OFFICER
ELATHUR POLICE STATION, KANNUR RD, NEAR,
ELATHUR, KERALA, PIN - 673303
5 THE SUPERINTENDENT
KANNUR CENTRAL PRISON, KANNUR, PODIKKUNDU,
KERALA, PIN - 670004
BY ADVS.
SRI. K. A ANAS, PUBLIC PROSECUTOR
THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION
ON 27.01.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
2025:KER:6027
W.P (Crl.) No. 1309 of 2024 :3:
JUDGMENT
Raja Vijayaraghavan, J.
In this Writ Petition, filed under Article 226 of the Constitution of
India, the petitioner challenges the order of detention as well as the
continued detention of her husband Mr. Sakesh M.K @ Kumbali, who is
undergoing detention under Section 3(1) of the Kerala Anti-Social
Activities (Prevention) Act, 2007 ('KAAP Act' for brevity).
2. The records available before this Court reveal that the
proposal for initiating proceedings under the KAAP Act was submitted by
the 3rd respondent before the 2nd respondent on 12.07.2024, and on its
basis, Ext.P2 order of detention, was issued on 06.09.2024. The last
prejudicial act committed by the detenu is his involvement in Crime
No.451 of 2024, registered at the Elathur Police Station under Sections
324, 308, 323, 457 r/w. Section 34 of the IPC. The last prejudicial act
was committed on 31.05.2024 and the crime was registered on
01.06.2024. The detenu was arrested in the said crime on 07.06.2024.
He was in judicial custody in connection with the said crime till
2025:KER:6027
W.P (Crl.) No. 1309 of 2024 :4:
11.07.2024, and it was after his release that the proposal was submitted
on 12.07.2024. The order of detention discloses that the detaining
authority has reckoned 6 instances of anti-social activities, in which the
detenu was involved for classifying him as a "known rowdy", for invoking
the provisions under Section 3 of the KAAP Act. The crimes in which the
detenu is involved are as under:
Sl. Date of Status of
Crime No. Police Station Sections involved
No. occurrence case
341, 323, 332,
1 514/2018 Elathur 10.10.2018 294(b), 506 r/w. Pending trial
Section 34 IPC.
341, 308, 506, 427
2 Chevayur 04.11.2020 r/w. Section 34 of Pending trial
IPC.
341, 323, 324 r/w. Pending trial
3 413/2022 Nadakkav 02.05.2022
Section 34 of IPC.
415/2022 Pending trial
4 Nadakkav 02.05.2022 394 of IPC
143, 147, 148, 341, Pending trial
5 186/2023 Atholi 07.05.2023 323, 324 r/w. 149 of
IPC
324, 308, 323, 457 Under
6 451/2024 Elathur 31.05.2024 investigation
r/w. 34 of IPC.
3. Sri. Keshavraj Nair, the learned counsel appearing for the
2025:KER:6027
W.P (Crl.) No. 1309 of 2024 :5:
petitioner submitted that the records reveal that the detenu was
released on bail in Crime No. 451 of 2024 on 11.07.2024, and stringent
conditions were imposed by the jurisdictional court. However, a perusal
of the order would reveal that the bail order issued by the jurisdictional
court was not taken note of or its conditions adverted to by the
detaining authority. According to the learned counsel, the detaining
authority was bound to consider, peruse, and understand the nature of
the order passed by the jurisdictional court before ordering detention. It
is submitted that the copy of the bail application as well as the order
granting bail ought to have been placed by the sponsoring authority
before the detaining authority and the copies of the same also ought to
have been supplied to the detenu. In the case on hand, a perusal of the
order would reveal that the detaining authority was merely informed of
the conditions imposed by the jurisdictional court, and the copy of the
bail application or the order was not placed before the detaining
authority. This has prevented the detaining authority from arriving at the
requisite satisfaction that the detention order was required to be passed
as against the detenu herein. In order to substantiate his contentions,
the learned counsel has referred to the observations made by this Court
2025:KER:6027
W.P (Crl.) No. 1309 of 2024 :6:
in Mary Selma v. State of Kerala 1. The learned counsel would then
submit by referring to the order of detention, that there was a long
delay in passing the order of detention. According to the learned
counsel, the last prejudicial activity was committed on 31.05.2024.
However, the order of detention was issued only on 06.09.2024. There is
an unexplained delay of over 3 months and 6 days in passing the order
and the same would snap the live link and make the order of detention
illegal and vitiated. The learned counsel would then point out, by
referring to the crimes in which the detenu was involved, that all the
crimes are merely offences involving the violation of law and order, and
none of the crimes can be considered as offences prejudicial to public
order. The learned counsel would further submit that instead of initiating
steps seeking cancellation of bail, the authorities decided to invoke the
stringent provisions under the KAAP Act, an action which cannot be
justified.
4. In response, Sri. K.A.Anas, the learned Public Prosecutor,
pointed out that none of the contentions raised by the learned counsel
appearing for the petitioner can be sustained. The learned Public
2021 SCC ONLINE KER 896
2025:KER:6027
W.P (Crl.) No. 1309 of 2024 :7:
Prosecutor would first point out that the detenu was involved in as many
as 6 crimes, during the last 7 years. In all the previous crimes, prior to
the last prejudicial act, the detenu was released on bail by the
jurisdictional court. However, in spite of imposing stringent conditions to
curtail his anti-social activities, the detenu has continued to be involved
in prejudicial activities. The detaining authority has therefore reckoned
that the bail conditions imposed in the earlier crimes were not sufficient
to curtail the activities of the detenu. The learned Public Prosecutor
submitted that the conditions imposed by the Court were also
considered by the detaining authority before passing the order of
detention. Insofar as the contention raised by the learned counsel that
there was undue delay in passing the order, it is submitted that the
detenu was in judicial custody in connection with the last prejudicial act
till 11.07.2024, and on the next day itself, the proposal was submitted
and the detention order was passed within a period of two months
thereafter. Reliance is placed on the observations made by this Court in
Rahila Nazeer v. State of Kerala and Others2, and it is urged that it
is only when the delay in passing the order of detention is unexplained
2016 (3) KHC 189
2025:KER:6027
W.P (Crl.) No. 1309 of 2024 :8:
and inordinate, can it be said that the live link between the prejudicial
activity and the order of detention was said to have been snapped. The
learned Public Prosecutor would also refer to the judgment rendered by
this Court in Anita Antony v. State of Kerala and Others3, and it is
submitted that the mere fact that the accused had diligently complied
with the bail condition in the crimes he is involved, is no reason to hold
that the initiation of proceedings under the KAAP Act is unwarranted.
According to the learned Public Prosecutor, the contention that there has
been a long delay, and the live link is snapped cannot be therefore
sustained.
5. We have carefully considered the submissions advanced and
have gone through the records.
6. In the case on hand, the involvement of the detenu in 6
crimes was reckoned by the detaining authority for passing the order of
detention. Out of the six crimes, the final report had been filed in five,
and in the last crime, the investigation was going on.
7. The main contention of the petitioner is that the bail
2022 (4) KHC 427
2025:KER:6027
W.P (Crl.) No. 1309 of 2024 :9:
granted by the jurisdictional court in Crime No. 451 of 2024 was not
considered by the detaining authority while passing the order of
detention.
8. It can be noted at the outset itself that the detenu was
arrested in Crime No. 451 of 2024 registered at the Elathur Police
Station on 07.06.2024. He was released on bail in the said case only on
11.07.2024. In the proposal submitted by the 3rd respondent on
12.7.2024, it is stated that the detenu is still in judicial custody and that
he has filed an application as Crl. M.C. No. 1213 of 2024 seeking bail
and the same is pending consideration of the Court. This information is
apparently incorrect as on the date of the proposal, the detenu had
already been released on bail on the previous day. It appears that much
later, on 29.07.2024, a report was called from the sponsoring authority
as to the prospects of the detenu being released on bail. It was on
receipt of the request for such information that the detaining authority
was informed that the detenu had been released on bail. All that is
mentioned in the detention order is that the authority was informed
about the passing of the order and vaguely the conditions that had been
imposed. In other words, it is apparent that the detaining authority has
2025:KER:6027
W.P (Crl.) No. 1309 of 2024 :10:
not perused the bail order before passing the order of detention.
9. In Abdul Sathar Ibrahim Manik v. Union of India4, the
Apex Court held that in a case where detenu is released on bail and is at
liberty at the time of passing the order of detention, then the detaining
authority has to necessarily rely upon them as that would be a vital
ground for ordering detention. In such a case, the bail application and
the order granting bail should necessarily be placed before the authority
and the copies should also be supplied to the detenu.
10. In M. Ahamedkutty v. Union Of India And Another5, it
was held that the bail application and the bail order were vital materials
for consideration. If those were not considered, the satisfaction of the
detaining authority itself would have been impaired, and if those had
been considered, there would be documents relied on by the detaining
authority though not specifically mentioned in the annexure to the order
of detention and those ought to have formed part of the documents
supplied to the detenu with the grounds of detention and without them
the grounds themselves could not be said to have been complete.
AIR 1991 SC 2261
1990 SCC (2) 1
2025:KER:6027
W.P (Crl.) No. 1309 of 2024 :11:
11. In Noor Salman Makani v. Union of India and others6,
the Apex Court has made a distinction between the bail being granted
before the order of detention and the bail being granted subsequent to
the order of detention and has taken the view that when the detenu was
already on bail before the detention order was passed, the bail order
and the bail application are vital documents which are to be considered
by the detaining authority.
12. In Mary Selma (Supra), after considering all past
precedents, this Court had held as under:
"12. The above facts would reveal that before passing of the
detention order, the Detaining Authority has not perused the bail order in
Crime No.1052/2019. In this context the learned counsel for the petitioner
placed reliance on Hajara v. State [1997 KHC 113]. In that case the detenu
urged that bail application and the bail order were not placed before the
Detaining Authority and the detaining Authority had no opportunity to
consider the same and also alleged that the grounds of detenu were in
English and they were not translated into Malayalam and hence the detenu
had not been enabled to give a proper representation. The respondent on
the other hand contended that all those were irrelevant documents and all
the relevant documents were produced before the Detaining Authority and
on consideration of such relevant documents, the detention order was
issued. While disposing that matter this Court referred to Abdul Sathar
Ibrahim Manik v. Union of India [(1992) 1 SCC 1]. In that decision it was
held that failure to supply bail application and the order refusing bail will not
1994 AIR SC 575
2025:KER:6027
W.P (Crl.) No. 1309 of 2024 :12:
cause any prejudice to the detenu. But the Court held that in a case where
detenu is released on bail and is at liberty at the time of passing the order of
detention then the Detaining Authority has to necessarily rely upon them as
that would be a vital ground for ordering detention. In such a case bail
application and the order granting bail should necessarily be placed before
the Authority and the copies should also be supplied to the detenu. In that
decision, Dr. Hanuman Gulam Hussain Chougle v. Union of India
(Crl.W.P.1384/1991) was also quoted wherein the detenu was already on bail
and certain conditions were imposed restricting the movement of the detenu,
which were held to be vital facts. Ultimately it was concluded by this Court in
Hajara's case that the Apex Court has made a distinction between bail being
granted before the order of detention and the bail being granted subsequent
to the order of detention and has taken a view that when the detenu was
already on bail before the detention order was passed, the bail order and the
bail application are vital documents which are to be considered by the
Detaining Authority.
13. In the present case, the recommendation of the Sponsoring
Authority contained a tabulation of the details of the various Crimes which
indicates the detenu having been released in Crime No.1052/2019. But there
is no order of Court produced subsequent to Ext.P14, which was an order
declining bail in that Crime. But there is nothing from the impugned order to
infer that the bail order releasing the accused was perused by the Detaining
Authority and there is subjective satisfaction that the conditions in the bail
order will not suffice to prevent further anti - social activities of the detenu.
So that would definitely amount to non application of mind, as rightly
contended by the learned counsel."
13. Based on a query by the detaining authority, the sponsoring
authority had only mentioned that the detenu had been released on
bail. The order proceeds on the premise that the detenu is a person who
2025:KER:6027
W.P (Crl.) No. 1309 of 2024 :13:
cannot be prevented from indulging in anti-social activities, by imposing
stringent bail conditions. The detaining authority had no occasion to
peruse the application or the order passed by the jurisdictional court
before passing the order on 06.09.2024, though the order granting bail
was issued on 11.07.2024. It was just on the information passed on by
the sponsoring authority that the detaining authority proceeded to pass
the impugned order. But there is nothing from the impugned order to
infer that the bail order releasing the accused was seen by the detaining
authority and there is subjective satisfaction that the conditions in the
bail order will not suffice to prevent further anti-social activities of the
detenu. So, that would definitely amount to non-application of mind,
thus vitiating the order. On the above ground, this Writ-Petition is liable
to be allowed.
Accordingly, this Writ Petition (Criminal) is allowed and the order
of detention is quashed. There will be a direction to the Superintendent
of Jail, Central Prison, Kannur, to release the detenu, Sakesh M.K @
Kumbali, the husband of the petitioner, forthwith, if his detention is not
required in connection with any other case.
2025:KER:6027
W.P (Crl.) No. 1309 of 2024 :14:
The Registry is directed to communicate the order to the
Superintendent of Jail, Central Prison, Kannur, forthwith.
Sd/-
RAJA VIJAYARAGHAVAN V.
JUDGE
Sd/-
P.V.BALAKRISHNAN
JUDGE
APM
2025:KER:6027
W.P (Crl.) No. 1309 of 2024 :15:
APPENDIX OF WP(CRL.) 1309/2024
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE DETENTION PROPOSAL DATED
12.07.2024 SUBMITTED BY THE 3RD RESPONDENT
BEFORE THE 2ND RESPONDENT.
Exhibit P2 TRUE COPY OF THE DETENTION ORDER NO.
DCKKD/8602/2024-S2 DATED 06.09.2024 PASSED
BY THE 2ND RESPONDENT.
Exhibit P3 TRUE COPY OF THE REPRESENTATION DATED
24.09.2024 PREFERRED BY THE PETITIONER
BEFORE THE 1ST RESPONDENT.
