Kerala High Court
Shalima A.S vs State Of Kerala on 20 June, 2025
Author: P.B.Suresh Kumar
Bench: P.B.Suresh Kumar
2025:KER:44046
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
&
THE HONOURABLE MR.JUSTICE JOBIN SEBASTIAN
FRIDAY, THE 20TH DAY OF JUNE 2025 / 30TH JYAISHTA, 1947
WP(CRL.) NO. 524 OF 2025
PETITIONER:
SHALIMA A.S,
AGED 22 YEARS
W/O RAJEEB, PALAYAM KOTTOOKARAN VEEDU, VETTIKKATTIL P.O,
NEDUMPURA, THALAPPALLY, THRISSUR, PIN - 679531
BY ADVS.
SHRI.M.H.HANIS
SMT.T.N.LEKSHMI SHANKAR
SMT.RIA ELIZABETH T.J.
SMT.NANCY MOL P.
SHRI.ANANDHU P.C.
SMT.NEETHU.G.NADH
SHRI.SAHAD M. HANIS
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT,
HOME AND VIGILANCE DEPARTMENT,
GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM- 695001
2 THE DISTRICT COLLECTOR & DISTRICT MAGISTRATE,
CIVIL STATION, THRISSUR - 680003
3 THE CITY POLICE CHIEF,
CIVIL STATION ROAD, THRISSSUR - 680020
4 THE CHAIRMAN,
ADVISORY BOARD, KAAPA, SREENIVAS, PADAM ROAD,
VIVEKANANDA NAGAR, ELAMAKKARA, ERNAKULAM - 682026
5 THE SUPERINTENDENT OF JAIL,
CENTRAL PRISON, KANNUR - 670004
WP(Crl.) No. 524 of 2025 :2:
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BY ADVS
SRI.K.A.ANAS, GOVERNMENT PLEADER
THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION
ON 19.06.2025, THE COURT ON 20.06.2025 DELIVERED THE
FOLLOWING:
WP(Crl.) No. 524 of 2025 :3:
2025:KER:44046
JUDGMENT
Jobin Sebastian, J.
The petitioner herein is the wife of Rajeeb, S/o. Baiju('detenu' for
the sake of brevity) and her challenge in this Writ Petition is directed
against Ext.P1 order of detention dated 06.03.2025 passed by the 2nd
respondent under Section 3(1) of the Kerala Anti-Social Activities
(Prevention) Act, 2007 ('KAA(P) Act' for brevity). The said order stands
confirmed by the Government, vide order dated 12.05.2025, after
obtaining the opinion of the Advisory Board, and the petitioner's husband
has been ordered to be detained for a period of six months with effect
from the date of detention.
2. The records reveal that a proposal was submitted by the
District Police Chief, Thrissur city, on 19.02.2025, 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 'notorious rowdy'
as defined under Section 2(p)(iii) of the KAA(P) Act.
3. Altogether, five cases in which the detenu got himself involved
have been considered by the jurisdictional authority for passing the order
of detention. Out of the five cases considered, the case registered with
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respect to the last prejudicial activity is crime No.811/2024 of
Cheruthuruthi Police Station, alleging commission of offences punishable
under Sections 103(1), 126(2), 127(2), 115(2), 118, 118(2) r/w 3(5) 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
Ext.P1 order is illegal, arbitrary, and was passed without proper application
of mind. The main contention raised by the learned counsel for the
petitioner is that, as Ext.P1 detention order is passed while the detenu was
under judicial custody in connection with the last prejudicial activity, the
jurisdictional authority who passed the impugned order should have
explained on the basis of what material it entered into a conclusion that
there is possibility of the detenu being released on bail in connection with
the last prejudicial activity. The learned counsel contended that an order
of detention can be validly passed against a person who is already under
judicial custody in connection with a case only on satisfaction of the triple
test mentioned by the Hon'ble Supreme Court in Kamarunnissa v.
Union of India and another, [1991 (1) SCC 128]. The learned
counsel further submitted that apart from registering an FIR, there are no
materials to prove the complicity of the detenu in the last prejudicial
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activity and, therefore, the said case cannot be treated as a qualified one
for being considered to pass a detention order under KAA(P) Act.
6. In response, the learned Government Pleader submitted that
Ext.P1 order of detention was passed by the jurisdictional authority after
complying all the procedural formalities and after arriving at the requisite
objective as well as subjective satisfaction. According to the Government
Pleader, the impugned order of detention was passed by the jurisdictional
authority after being satisfied that a detention order under Section 3(1) of
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 after being satisfied
that there is every likelihood of getting bail for the detenu and if bail is
granted, he would in all probability indulge in prejudicial activities, the
jurisdictional authoirty passed the detention order.
7. From the rival contentions raised, it is gatherable that the
main question that revolves around this petition is whether there was any
compelling circumstance to pass an order of detention under Section 3(1)
of KAA(P) Act against the detenu who was already under judicial custody
in connection with the last prejudicial activity while passing the detention
order. While answering the said question, it is to be noted that, by a
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series of judicial pronouncement rendered by the Hon'ble 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 under judicial custody in connection
with the last prejudicial activity cannot be passed in a mechanical manner.
The compelling circumstances that necessitate the passing of such an
order must be reflected in the order itself. In Kamarunnissa's case
(cited supra), the Hon'ble 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 a detention order can
validly be passed (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 his satisfaction in this regard such an order would
be valid."
A similar view has been taken by the Hon'ble Supreme Court in
Veeramani v. The State of Tamil Nadu [1994 (2) SCC 337] and in
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Union of India v. Paul Manickam [2003 (8) SCC 342].
8. 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
Hon'ble Supreme Court.
9. Keeping in mind the above proposition of law laid down by the
Hon'ble 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.811/2024 of Cheruthuruthi Police
Station, alleging commission of offences punishable under Sections
103(1), 126(2), 127(2), 115(2), 118, 118(2) r/w 3(5) of BNS. The date of
occurrence of the said case was on 23.12.2024. The detenu was arrayed
as the 2nd accused in the said case, and he was arrested on 25.12.2024.
He has been under judicial custody since then. 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 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
under custody at the time when it passed Ext. P1 order. Similarly, in the
impugned order, it is stated that;
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"ചെറുതുരുത്തി പോലീസ് സ്റ്റേഷൻ ക്രൈം 811/2024 u/s 130(1), 126(2),
127(2), 127(2) 115(2), 118, 118(2), 3(5) BNS കേസിലേക്ക് വേണ്ടി
25.12.2024 തിയ്യതി അറസ്റ്റ് ചെയ്ത ടിയാൻ ജുഡീഷ്യൽ കസ്റ്റഡിയിൽ
കഴിഞ്ഞുവരവെ ജാമ്യം ലഭിക്കുന്നതിനായി ബഹു. JFCM വടക്കാഞ്ചേരി കോടതി
മുൻപാകെ അപേക്ഷ സമർപ്പിച്ചിരുന്നതും, ആയത് ബഹു. JPCM വടക്കോഞ്ചേരി
കോടതി 10-01-2025 തിയ്യതി C.M.P.No.142/2025 ആയി നിരസിച്ചതിനെ
തുടർന്ന് ടിയാൻ ജുഡീഷ്യൽ കസ്റ്റഡിയിൽ കഴിഞ്ഞുവരുന്നതുമാണ്. ഇപ്രകാരം ജാമ്യ
അപേക്ഷ നിരസിച്ചിട്ടുണ്ടെങ്കിൽ തന്നെയും ടിയാൻ ജാമ്യം ലഭിക്കുന്നതിനായി ബഹു.
സെഷൻസ് കോടതിയെയോ, ബഹു. ഹൈക്കോടതിയെയോ ജാമ്യം ലഭിക്കുവാനായി
സമീപിക്കുവാൻ സാധ്യതയുളളതും, ടി കേസ്സിൽ 25-12-2024 തിയ്യതി മുതൽ ടിയാൻ
റിമാൻറിൽ കഴിഞ്ഞുവരുന്നുവെന്നതും പരിഗണിക്കുമ്പോൾ ടിയാന് ജാമ്യം
ലഭിക്കുവാനും, ടിയാൻ ജയിൽ മോചിതനാകുവാനും സാധ്യതയുളളതാണ്.
കൊലപാതകം, വധശ്രമം, കുറ്റകരമായ നരഹത്യാശ്രമം ഉൾപ്പെടെയുളള
കേസുകളിൽ പ്രതിയായ ടിയാന് മറ്റു കേസുകളിൽ ഉൾപ്പെടരുതെന്ന കർശന
വ്യവസ്ഥയോടുകൂടി പലത്തവണ ബഹു. കോടതികൾ ജാമ്യം നൽകിയിട്ടും,
ആയതിനെ ലംഘിച്ചുകൊണ്ട് കുറ്റകൃത്യങ്ങളിൽ ഏർപ്പെട്ടിട്ടുള്ള വ്യക്തിയാണ് ടിയാൻ
എന്നതിനാൽ മേൽ കേസിൽ കർശന ഉപാധികളോടു കൂടി ജാമ്യം അനുവദിച്ചാൽ
തന്നെയും ആയത് ലംഘിച്ചുകൊണ്ട് ടിയാൻ കുറ്റകൃത്യങ്ങളിൽ ഉൾപ്പെടുവാൻ
സാധ്യതയുള്ളതാണെന്ന് ടിയാൻ ഉൾപ്പെട്ട കേസുകൾ പരിശോധിച്ചതിൽ നിന്നും
വ്യക്തമാകുന്നുണ്ട്."
Therefore, it is clear that the order of detention was passed by the
jurisdictional authority after being satisfied 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 activities.
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10. The learned counsel for the petitioner vehemently contended
that as the detenu is involved in a case registered alleging commission of
offence punishable under Section 103(1) of the BNS, there is no chance of
him getting bail in the said case and therefore, a detention order under
KAA(P) Act was not at all necessitated. In order to buttress his argument
in this regard, the learned counsel invited our attention to the fact that the
bail application filed by the detenu has already been dismissed by the
Jurisdictional Magistrate. However, we cannot agree with the contention
of the learned counsel in this regard. Merely because a bail application
filed by the detenu was dismissed by the Jurisdictional Magistrate, it
cannot be inferred that there is no possibility of granting bail to him in the
future. Moreover, as rightly mentioned in the impugned order, there is
every possibility of the detenu approaching the Sessions court or this
Court seeking bail. In the impugned order, it is further mentioned that
there is every likelihood of getting bail to the detenu. Similarly, the gravity
of the offence alone is not a reason to deny bail. Therefore, we find
nothing wrong in the satisfaction entered on by the jurisdictional authority
regarding the propensity of the detenu getting bail in the last case
registered against him. Therefore, we have no hesitation to hold that the
jurisdictional authority passed the impugned order after being satisfied of
the triple test mentioned in Kamarunnissa's case(cited supra).
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11. Another contention taken by the learned counsel for the
petitioner is that apart from registering an FIR, there are no other
materials to prove the complicity of the detenu in the last prejudicial
activity, and hence, the said case should not have been considered by the
jurisdictional authority for passing the impugned order. While considering
the said contention, it is to be noted that mere registration of an FIR alone
is not sufficient to treat a case as a qualified one to initiate the
proceedings under KAA(P) Act. Now, by a series of judicial
pronouncements, it is well settled that apart from registering an FIR, there
must be 'something more' to treat a case as a qualified one for passing an
order under KAA(P) Act. However, it cannot be ignored that the
jurisdiction to pass an order under KAA(P) Act is a jurisdiction of suspicion.
Therefore, there is no legal requirement that in order to treat a case as a
qualified one, for passing an order under KAA(P) Act, a final report should
be filed in that case. However, as already stated, there must be some
material to prove the complicity of the detenu in the commission of the
offence apart from mere registration of an FIR. Keeping in mind the above
while reverting to the facts in the present case, it can be seen that in the
case registered with respect to the last prejudicial activity, the detenu is
seen arrayed as the 2nd accused. Though the learned counsel for the
petitioner submitted that apart from a feeble circumstance that it was in
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the company of the detenu, the deceased was last seen alive, there are no
other materials to link the detenu with the case registered against him
with respect to the last prejudicial activity. We cannot agree with the said
contention. A perusal of the documents which are relied upon by the
jurisdictional authority to pass Ext. P1 order of detention clearly shows
that the detenu has active involvement in the commission of the crime.
There are documents to show that the weapons of offence allegedly used
in the commission of the offence were recovered on the strength of the
disclosure statement given by the detenu. Furthermore, there are
statements of eyewitnesses showing the participation of the detenu in the
commission of the offence. Therefore, we are of the view that the detenu
could not be heard to say that, apart from registering an FIR there is no
material to prove the complicity of the detenu in the case registered with
respect to the last prejudicial activity. Hence, the contention of the
learned counsel for the petitioner in the above regard will also fail.
12. A perusal of the records further reveals that all the procedural
formalities before and after passing an order of detention have been fully
complied with in this case. Similarly, from the records as well as from the
impugned order, it is discernible that the said order has been passed by
the jurisdictional authority after arriving at the requisite subjective as well
as objective satisfaction.
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In view of the discussion above, we hold that the petitioner has
not made out any case for interference. Hence, the writ petition stands
dismissed.
Sd/-
P.B. SURESH KUMAR
JUDGE
Sd/-
JOBIN SEBASTIAN
JUDGE
ANS
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APPENDIX OF WP(CRL.) 524/2025
PETITIONER EXHIBITS
Exhibit P1 A TRUE COPY OF THE ORDER
NO.DCTSR/2984/2025-C1 DATED 06.03.2025
OF THE 2ND RESPONDENT
Exhibit P2 A TRUE COPY OF THE REPRESENTATION
SUBMITTED BY 1ST RESPONDENT ON
05.04.2025.
