Lissy vs State Of Kerala
2025 Latest Caselaw 701 Ker

Kerala High Court

Lissy vs State Of Kerala on 8 July, 2025

Author: V Raja Vijayaraghavan

Bench: V Raja Vijayaraghavan

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WP.(Crl.) No. 487 of 2025


                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
       THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
                                      &
            THE HONOURABLE MR.JUSTICE K. V. JAYAKUMAR
   TUESDAY, THE 8TH DAY OF JULY 2025 / 17TH ASHADHA, 1947


                       WP(CRL.) NO. 487 OF 2025

PETITIONER:

                  LISSY​
                  AGED 68 YEARS​
                  W/O JOSE, PADAYATTIL HOUSE, KARUKUTTY P.O, KARUKUTTY,
                  ERNAKULAM, PIN - 683576


                  BY ADV SRI.AJEESH M UMMER

RESPONDENTS:

        1         STATE OF KERALA​
                  REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT,
                  HOME & VIGILANCE DEPARTMENT, GOVERNMENT SECRETARIAT,
                  THIRUVANANTHAPURAM, PIN - 695001

        2         THE DISTRICT COLLECTOR & DISTRICT MAGISTRATE,​
                  ERNAKULAM DISTRICT, PIN - 682030

        3         THE STATION HOUSE OFFICER, ​
                  ANGAMALY POLICE STATION ANGAMALY, PIN - 683572

        4         THE DISTRICT POLICE CHIEF,​
                  ERNAKULAM RURAL, PIN - 682039

        5         THE CHAIRMAN, ​
                  ADVISORY BOARD, KAA(P)A, SREENIVAS, PADAM ROAD,
                  VIVEKANANDA NAGAR, ELAMAKKARA, PIN - 682026
    ​       ​     ​      ​   ​   ​   ​    ​          2025:KER:49442
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WP.(Crl.) No. 487 of 2025


       6       THE SUPERINTENDENT OF JAIL,​
               CENTRAL JAIL, KANNUR, PIN - 670004


               BY ADVS. ​
               PUBLIC PROSECUTOR​
               ADDL.DIRECTOR GENERAL OF PROSECUTION

               ADV. K.A. ANAS, PUBLIC PROSECUTOR​


THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR FINAL
HEARING ON 01.07.2025, THE COURT ON 08.07.2025 DELIVERED THE
FOLLOWING:
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WP.(Crl.) No. 487 of 2025




                                   JUDGMENT

Raja Vijayaraghavan V, J.

​ Under challenge in this Writ Petition filed under Article 226 of the

Constitution of India is Ext.P1 order issued by respondent No. 2, under Section 3 of

the Kerala Anti-Social Activities (Prevention) Act, 2007 ('KAA(P) Act' for the sake of

brevity), as per which the son of the petitioner, Sri. Sijo @ Oothappan Sijo ("the

detenu" for the sake of brevity) has been ordered to be preventively detained.

2.​ In Ext.P1 order of detention, it has been stated that on account of his

involvement in 4 crimes, committed during the past seven years, the detenu has

acquired the qualification for being categorised as a "known rowdy". The crimes in

which the detenu got himself involved are the following:

a)​ Crime No. 419 of 2022 of the Angamaly Police Station registered under

Sections 332, 294(b) of the IPC.

b)​ Crime No. 1993 of 2023 of the Thrissur East Police Station registered

under Sections 395, 120B, 114, 115, 414, 212, 201, 465, 468, 471 of the

IPC.

c)​ Crime No. 343 of 2024 of the Angamaly Police Station registered under

Sections 448, 294(b), 323, 324, 326, 308, 201. r/w. Section 34 of the IPC.

​ ​ ​ ​ ​ ​ ​ ​ 2025:KER:49442

d)​ Crime No. 1725 of 2024 of the Angamaly Police Station registered under

Section 109(1), 115(2), 118 (1), 118(2), 189 (2), 189 (4), 190, 296(b),

351(2), 294 (b) of the Bharatiya Nyaya Sanhita.

It is also stated in the order that three crimes in which the detenu had been

involved during the past three years have not been considered, as in one case he

had pleaded guilty and in two other cases he was acquitted of all charges.

3.​ From the impugned order, it is discernible that proceedings under the

KAA(P) Act were earlier initiated against the detenu by order dated 18.09.2022, and

he was detained till 19.03.2023. After his release, the detenu got involved as

accused No. 2 in Crime No. 343 of 2024 registered on 06.02.2024 at the Angamaly

Police Station for the offences under Sections 448, 294(b), 323, 324, 326, 308, 201.

r/w. Section 34 of the IPC. He was arrested in connection with the aforesaid crime

on 23.08.2024 and was released on bail by order dated 28.10.2024. The said case

is pending trial before the Judicial Magistrate of the First Class, Angamaly as

C.P.No.30 of 2024.

4.​ Thereafter, the detenu got involved as the 1st accused in Crime No.

1725 of 2024 of the Angamaly Police Station registered on 28.07.2024 for the

offences punishable under Sections 109 (1), 115(2), 118 (1), 118 (2), 189 (2), 189

(4), 190 (2), 296 (b), 351 (2) and 249 (b) of the Bharatiya Nyaya Sanhita. He was

arrested in the aforesaid case on 23.08.2024 and was released on bail on ​ ​ ​ ​ ​ ​ ​ ​ 2025:KER:49442

28.10.2024. The case is pending as C.P.No.30/2024 on the file of the Judicial

Magistrate of the First Class, Angamaly.

5.​ It was thereafter that a report seeking initiation of proceedings under

the KAA(P) Act by classifying the detenu as a 'known rowdy' was submitted by the

District Police Chief on 04.11.2024. It is based on the said report that the detaining

authority passed the detention order on 21.11.2024.

6.​ The above order is under challenge.

7.​ Sri. Ajeesh M. Ummer, the learned counsel appearing for the

petitioner, submitted that a perusal of the allegations in Crime No. 1725 of 2024 and

Crime No. 343 of 2024 of the Angamaly Police Station would reveal that both the

crimes are related to cases involving 'law and order' and not 'public order'. It is

submitted that under Section 13 of the KAA(P) Act, after the expiry of an earlier

order of detention, involvement in one crime was enough for the initiation of

proceedings under the KAA(P) Act and under Section 12 of the said Act, the period

of detention in such cases is an enhanced period of one year. If that be the case,

there is no justification on the part of the respondents in not initiating proceedings

against the detenu immediately after his involvement in Crime No. 343 of 2024. If

the date of registration of the first crime, after the earlier order of detention is taken

note of, there is a delay of more than 10 months in initiating the proceedings. If

Crime No.1725 of 2024 is reckoned, there is a delay of more than 3 months and 7

days. Relying on the observations made by a bench of this Court in Azurudeen ​ ​ ​ ​ ​ ​ ​ ​ 2025:KER:49442

M. v. State of Kerala1, it is urged by the learned counsel that the sponsoring

authority is not required to wait till the arrest of the accused to submit the proposal

and immediately on registration of the crime, they should have moved forward with

the sponsorship and initiated proceedings under the KAA(P) Act. It is further

submitted by the learned counsel that while passing the order, the bail conditions

imposed by the court which had granted bail were not reckoned by the sponsoring

authority as well as the detaining authority to ascertain as to whether those

conditions were sufficient to deter further pernicious activities of the detenu. In order

to substantiate his contentions, the learned counsel would refer to the observations

made by the Apex Court in Joyi Kitty Joseph v. Union of India2, wherein, it was

held by the Apex Court that the efficacy of the bail conditions already imposed by a

competent court for the same offence as against the detenu shall also be reckoned

by the detaining authority prior to the passing of the order of detention.

8.​ In response to the contentions advanced by the learned counsel, Sri.

K.A. Anas, the learned Public Prosecutor, submitted that he was categorised as a

"known rowdy" and an earlier order of detention was passed on 18.09.2022, and he

had undergone detention till 19.03.2023. Thereafter, he had committed two crimes,

and this prompted the authorities concerned to initiate fresh proceedings. He would

urge that as the detenu was arrested on 23.08.2024 and was granted bail only on

28.10.2024, and the same was executed only on 11.11.2024. It is urged that in view

of the above fact scenario, it cannot be said that the live link will get snapped. In

2025 KHC OnLine 10324

[2025 KHC OnLine 6223] ​ ​ ​ ​ ​ ​ ​ ​ 2025:KER:49442

order to substantiate his contentions, the learned Public Prosecutor has referred to

the judgment of this court in Rahila Nasir v. State of Kerala3.

9.​ We have carefully considered submissions advanced and have

perused the records.

10.​ We find that, owing to his involvement in certain crimes, the detenu

was classified as a 'known rowdy,' and an earlier order of detention was passed

against him on 18.09.2022. He remained under detention until 19.03.2023.

Subsequently, the detenu became involved in Crime No. 343 of 2024 registered at

Angamaly Police Station.

11.​ Under Section 13 of the KAA(P) Act, the sponsoring authority is

empowered to initiate proceedings if a person who has previously undergone

detention is again found to be involved in offences falling under Section 2(o) or 2(p)

of the KAA(P) Act. If the true objective was to prevent the detenu from engaging in

further anti-social activities, the authorities were obligated to act with urgency and

initiate preventive steps. However, no such timely measures were taken.

12.​ Instead, the authorities awaited the registration of Crime No. 1725 of

2024 on 29.07.2024 before taking any further steps. Even after that, there was no

prompt action. It was only on 04.11.2024 that the District Police Chief submitted the

[2016(3) KHC 189] ​ ​ ​ ​ ​ ​ ​ ​ 2025:KER:49442

sponsorship report, which eventually led to the issuance of the detention order on

21.11.2024.

13.​ One of the explanations offered by the respondents is that the detenu

was arrested in the above crimes only on 23.08.2024. However, the scheme of the

Act does not mandate that action be deferred until the accused is arrested. If it is

found that a person, after undergoing preventive detention, is once again indulging

in criminal activities prejudicial to public order, the authorities are well within their

powers to initiate proceedings immediately, without waiting for an arrest to be

recorded.

14.​ In the facts and circumstances of the case, we are satisfied that the

time lag between the commission of the first offence and the passing of the

detention order is so prolonged that it severs the reasonable nexus between the

prejudicial activity and the purpose of detention. While it is true that the test of

proximity is not to be applied mechanically by merely counting the number of days

or months, the critical question is whether, at the time of passing the order, the

detaining authority could reasonably conclude that the detenu was likely to continue

his unlawful activities. Considering that a previous detention order had already been

passed against the detenu, any subsequent involvement in a criminal offence after

his release ought to have triggered immediate preventive action, if there was

genuine apprehension or bona fides on the part of the authorities.

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            15.​      In the present case, with regard to Crime No. 343 of 2024, there was

a delay of more than 10 months in the submission of the sponsorship report and a

delay of 11 months in the issuance of the detention order. Even in respect of the

second offence, there was a delay of more than 99 days between the prejudicial act

and the sponsorship report. In light of the above, we are of the considered opinion

that the subjective satisfaction recorded by the detaining authority has not been

genuinely or promptly arrived at, thereby vitiating the detention order.

16.​ Furthermore, we find that even prior to the submission of the

sponsorship report on 04.11.2024, the detenu had been released on bail in Crime

No. 343 of 2024 and Crime No. 1725 of 2024. However, the detaining authority

failed to consider the conditions imposed by the learned Magistrate at the time of

granting bail, in order to assess whether such conditions were adequate to deter

the detenu from engaging in further prejudicial activities. In Joyi Kitti v. State of

Kerala4, the Hon'ble Supreme Court categorically held that the detaining authority

is under an obligation to consider and take into account the bail conditions imposed

by the jurisdictional court in the very same cases that form the basis of the

detention. The authority must then arrive at satisfaction as to whether those

conditions are sufficient to prevent the detenu from indulging in further similar acts.

In the case at hand, no such exercise was carried out.

    [(1991) 2 S.C.C. 497]
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        17.​    In view of the discussion above, we are of the view that the petitioner

is entitled to succeed in this petition. The detention order passed against the

detenu cannot be sustained under law.

Resultantly, this petition is allowed. Ext.P1 detention order dated 21.11.2024

passed by respondent No. 2 is set aside. The Superintendent of Central Prison,

Kannur, is directed to release the detenu, Sri. Sijo @ Oothappan Sijo, forthwith if

his continued detention is not required in connection with any other case. ​​

​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ Sd/-​ ​ ​ ​ ​ RAJA VIJAYARAGHAVAN V, JUDGE ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ Sd/-​ ​ ​ ​ ​ ​ ​ ​ K.V. JAYAKUMAR, ​ ​ ​ ​ ​ ​ ​ ​ JUDGE

APM/PS/5/7/25 ​ ​ ​ ​ ​ ​ ​ ​ 2025:KER:49442

APPENDIX OF WP(CRL.) 487/2025

PETITIONER EXHIBITS

Exhibit P1 A TRUE COPY OF THE ORDER NO.

                             DCEKM/11360/2024-M7 DATED 21.11.2024 ALONG
                             WITH THE DOCUMENTS SERVED ON THE DETENU

Exhibit P2                   A TRUE COPY OF THE FIR AND FIS IN CRIME NO.
                             1725/2024 OF ANGAMALY POLICE STATION DATED
                             29.07.2024