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2010 DIGILAW 705 (KER)

T. P. Joseph v. State of Kerala

2010-09-16

M.L.JOSEPH FRANCIS, R.BASANT

body2010
Judgment :- Basant, J. Notwithstanding the caution administered in many binding precedents of the need of the detaining authority to properly apply its mind to the relevant facts before passing an order of preventive detention and of the need for those reasons to get reflected in the order of detention, we are again called upon in this case to consider the grievance ofthe petitioner that there has been no proper application of mind and that such application of mind is not, at any rate, reflected in the order of detention or in any contemporaneous records. We are disturbed that there is room for such contentions too frequently before us and that in spite of the several earlier precedents, the administrative executive has not still been trained and educated of the need to pass a proper order of detention before a citizen is deprived of his most sacrosanct and cherished constitutional right of personal freedom and liberty. We may repeat that if the legislative concern to protect the citizen by curbing anti-social activities of known rowdies and known goondas is to achieve its result, the wielders of administrative power will have to be trained and equipped to discharge their very solemn responsibilities under the KAAPA with clinical precision and expertise. 2. The petitioner has come to this Court with this petition for issue of a writ of habeas corpus to cause the production and direct the release of his son Binil Joseph (hereinafter referred to as ‘the detenu’) who stands preventively detained by Ext.P1 order dated 13/5/10 passed by the 2nd respondent – District Magistrate, under Sec.3 of the Kerala Anti-Social Activities (Prevention) Act, 2007 (hereinafter referred to as ‘the KAAPA’). The detenu, a young man aged 24 years, a student, was taken into custody in execution of Ext.P1 order on 17/5/10. Order of approval under Sec.3(3) of the KAAPA and order of confirmation under Sec.10(4) of the KAAPA have already been passed and the detenu will have to continue in custody till 17/11/10, it is submitted and conceded. 3. The detenu has been classified as a ‘known rowdy’. Order of approval under Sec.3(3) of the KAAPA and order of confirmation under Sec.10(4) of the KAAPA have already been passed and the detenu will have to continue in custody till 17/11/10, it is submitted and conceded. 3. The detenu has been classified as a ‘known rowdy’. It is alleged that he is involved in 6 crimes, details of which are given below in the tabular form: Sl.No Crime No. & Police Station Date of occurrence Offences U/s Rank of the detenu in the array of accused Current status of the case 10/2007 of Varappuzha Police Station 14/1/2007 143, 147, 148, 323, 324, 326, 427 r/w 149 IPC A4 Originally not named in FIR. Added as accused on 16/1/2007 Charge sheeted. Pending as C.C. 156/2008 before JFCM-1, North Paravur. 2 155/2007 of Varappuzha Police Station 25/6/2007 341, 323, 324 r/w 34 IPC A2 Charge sheeted. Pending as CC.341/2008 before JFCM-1, North Paravur 3 91/2007 of Varappuzha Police Station 15/4/2007 143, 147, 148, 323, 324, 326, 307 r/w 149 IPC & Secs.20 and 27 of Arms Act A6. Originally not named in FIR Charge sheeted. Pending as S., C.142/09 before Addl. Sessions Court (Adhoc-III), North Paravur. 4 33/2010 of Varappuzha Police Station 17/1/2010 143, 147, 148, 341, 323, 324, 308 r/w 149 IPC A7. Originally not named in FIR Charge sheeted on 31/3/10 before JFCM-1, North Paravur. No number. 5 116/2010 of North Paravur Police Station 18/1/2010 143, 147, 148, 323, 324, 307 r/w 149 IPC A2 Under investigation 6 196/2010 of Aluva Police Station. (Not taken into consideration by the Detaining Authority) 19/1/2010 225(b) of IPC Sole Accused Charge sheeted on 13/3/2010 before JFCM-1, Aluva. No number. 4. There is no contention that the detenu is not a known rowdy. As indicated in the tabular column, in Case – Sl.No.5, investigation is not complete; but following the dictum in Elizebath George v. State of Kerala (2008 (4) KLT 425), the detaining authority is justified in reckoning Case – Sl.No.5 also as relevant to include the detenu under the definition of ‘known rowdy’. Case – Sl.No.6 has not been considered by the detaining authority as that case does not fall within the sweep of Sec.2(p) of the KAAPA. Case – Sl.No.6 has not been considered by the detaining authority as that case does not fall within the sweep of Sec.2(p) of the KAAPA. It is not too significant whether Cases – Sl.Nos.5 and 6 can be included or not as Cases – Sl.Nos.1 to 4 referred above would bring the detenu squarely within the definition of ‘known rowdy’ under Sec.2(p) of the KAAPA. There is no dispute on that aspect. 5. Detailed arguments have been advanced by the learned counsel for the petitioner and the learned Government Pleader. The learned counsel for the petitioner assails the impugned order on various grounds. For the purpose of this writ petition, we are satisfied that it is necessary to consider the challenge raised on one ground alone. We shall now advert to that ground. 6. The order of detention – Ext.P1, was passed by the 2nd respondent – District Magistrate, on the basis of information furnished by the 3rd respondent under Sec.3(1) of the KAAPA. That report under Sec.3(1) of the KAAPA is dated 29/4/10. Proceedings were initiated by the 3rd respondent admittedly on a report submitted to him by the local Circle Inspector of Police. 7. The learned counsel for the petitioner contends that the detenu was involved in Crime That report is admittedly dated 23/3/10. – Sl.No.5 above, the incident in which case took place on 18/1/10. He was arrested on 3/3/10. He was ordered to be released on bail as per Ext.P3 order dated 6/4/10 passed by a learned Judge of this Court. He was actually released from custody on 8/4/10. As stated earlier, the report of the Circle Inspector of Police to the Superintendent of Police was dated 23/3/10 and the report under Sec.3(1) of the KAAPA by the Superintendent of Police (R3) to the District Magistrate (R2) was dated 29/4/10. After the report of the Circle Inspector of Police to the Superintendent of Police and before report dated 29/4/10 was submitted by the 3rd respondent to the 2nd respondent, the detenu was released on bail as per the terms of Ext.P3 order. 8. We feel it appropriate that the conditions of bail must be extracted below. We give below the four conditions imposed by this Court while granting bail under Ext.P3: “1. The petitioners shall report before the Investigating Officer between 9 a.m. and 11 a.m. on all Wednesdays. 2. 8. We feel it appropriate that the conditions of bail must be extracted below. We give below the four conditions imposed by this Court while granting bail under Ext.P3: “1. The petitioners shall report before the Investigating Officer between 9 a.m. and 11 a.m. on all Wednesdays. 2. The petitioners shall make themselves available for interrogation as and when required by the police at any time till the filing of the final report. 3. The petitioners shall not influence or intimidate the prosecution witnesses nor shall they attempt to tamper with the evidence for the prosecution. 4. The petitioners shall not commit any offence while on bail.” (The detenu was one of the petitioners who secured bail under Ext.P3.) There is no dispute that the Superintendent of Police in his report dated 29/4/10 had informed the District Magistrate that the detenu was already on bail in Case – Sl.No.5. 9. Now coming to the ground of challenge. The learned counsel for the petitioner submits that there has been no proper application of mind. The detaining authority i.e., the 2nd respondent/District Magistrate, was not even sure whether the detenu was in custody or on bail on the relevant date i.e., 13/5/10 – the date on which Ext.P1 order was passed. In Ext.P1 order of detention it is unambiguously stated at page No.2, after paragraph-5, that the detenu “was arrested and is now under judicial custody” in Crime No.116/10. Counsel contends that this is a factual inaccuracy. The detaining authority was not apprised of the real facts. At least, the detaining authority did not comprehend the fact correctly. He did not apply his mind correctly to the crucial question as to whether the detenu was in custody or not. That is indeed a very crucial aspect as the question to be decided by the detaining authority is whether the detenu must be detained or not. Later, in the grounds of detention dated 13/5/10 it is stated in page No.5 of Ext.P2 that the detenu “was released on bail on 8/4/10”. Factually, the latter statement is correct. That is indeed a very crucial aspect as the question to be decided by the detaining authority is whether the detenu must be detained or not. Later, in the grounds of detention dated 13/5/10 it is stated in page No.5 of Ext.P2 that the detenu “was released on bail on 8/4/10”. Factually, the latter statement is correct. The learned counsel argues that on such an important aspect of the matter which led to the deprivation of personal liberty of the detenu, in one portion of the detention order, it is stated that the detenu is in judicial custody; whereas in the grounds for detention which accompanied the order, it is stated that the detenu is on bail. This reveals gross callousness and non – application of mind, contends the learned counsel for the petitioner. 10. The learned Government Pleader accepts that such an error has crept in; but points out that the 2nd respondent in his counter statement has clearly stated that it was an inadvertent error while the order was dictated. It is the common case of every one that the detenu was released on bail in that crime on 8/4/10. The report of the 3rd respondent clearly shows the same. That is the very case of the petitioner and the detenu. In these circumstances, the innocuous and inadvertent error which crept in when the order was dictated and signed may not be permitted to justify the challenge against the order of detention, argues the learned Government Pleader. 11. We shall, for the sake of arguments, accept that theory about an inadvertent error creeping into Ext.P1 which led to the statement that the detenu is in judicial custody. The learned counsel for the petitioner submits that that does not solve the issue. Counsel argues that if, as a matter of fact, the District Magistrate were under the impression that the detenu was in judicial custody, he was obliged to consider whether an order of detention can or need be passed afresh against the detenu who is already in custody. The impugned order or no contemporaneous records reveals that there has been such application of mind on that crucial aspect. 12. The impugned order or no contemporaneous records reveals that there has been such application of mind on that crucial aspect. 12. The learned counsel alternatively argues that if, as a matter of fact, the detaining authority were satisfied that the detenu was on bail from 8/4/10 on the basis of Ext.P3 order, it was incumbent on the detaining authority to consider whether such order granting bail passed very recently – immediately/shortly prior to the order of detention, was sufficient to ensure the result of preventing commission of future crimes (i.e., antisocial activities). For that purpose the conditions imposed in the said recent order granting bail must have been considered by the detaining authority. The detaining authority must have pointedly considered whether the conditions imposed in that order granting bail were sufficient to achieve the result of preventing the detenu from committing anti-social activities. Of course, it was open to the detaining authority to feel that in spite of such a recent order granting bail subject to very strict conditions as indicated in Ext.P3 further preventive detention was necessary. To come to that question, mind must have been properly and pointedly applied. On that aspect, proper application of mind can never take place without and before the detaining authority peruses Ext.P3 order, considers the nature of conditions imposed and the possibility of the detenu committing offences later in spite of such conditions of bail. 13. It is significant that the detaining authority did not apply his mind to Ext.P3 order. Nay, it is not disputed that the sponsoring authority i.e., the 3rd respondent also did not forward such a crucial document to the detaining authority for his consideration. 14. The learned counsel for the petitioner contends that the decision of the detaining authority was one of moment and of great consequence so far as the detenu is concerned. His cherished sacrosanct constitutional right of personal liberty and freedom was infringed not because he committed any offence; but because the executive authority anticipated or prophesised that he may commit such offences in future and hence needs to be deterred from committing such offences. Proper application of mind is mandatory. Without and before considering Ext.P3 order and the question whether the very strict conditions 1 to 4 imposed in Ext.P3 is sufficient to deter the detenu from committing future offences, a proper application of mind cannot be said to have taken place. Proper application of mind is mandatory. Without and before considering Ext.P3 order and the question whether the very strict conditions 1 to 4 imposed in Ext.P3 is sufficient to deter the detenu from committing future offences, a proper application of mind cannot be said to have taken place. In this view of the matter, the learned counsel for the petitioner argues that there is costly, vital and fatal non-application of mind to the relevant and vital circumstances. 15. The learned counsel for the petitioner relies on a host of precedents ending with the decision in Philip v. State of Kerala (2009 (3) KLT SN 32 (Case No.35]). There is no dispute with the proposition of law that all relevant circumstances must be considered and that mind must be applied specifically and pointedly to all relevant circumstances before a valid order of detention is passed. In this case, we note that the order and the grounds of detention reveal confusion of thought in the mind of the detaining authority as to whether the detenu was on bail or in judicial custody on the relevant date i.e., 13/5/10. Even if we ignore that and accept the contention that the detaining authority knew that the detenu was on bail, the fact remains that Ext.P3 order granting bail subject to draconian conditions was not placed before the detaining authority by the sponsoring authority; nor did the detaining authority pointedly apply his mind to the question whether in spite of those conditions an order of preventive detention deserves to be passed under Sec.3 of the KAAPA. We are in agreement with the learned counsel for the petitioner that there has been no proper application of mind. 16. In the counter affidavit by the 3rd respondent, it has been mentioned that subsequent crimes have been committed notwithstanding the fact that the detenu was on bail in the previous crimes committed. That aspect was not adverted to in Ext.P1 order. No contemporaneous records have been produced to show that at the relevant time before passing Ext.P1 order there was application of mind to these aspects. 17. The learned Government Pleader points out that in the memorandum of release issued by the court which actually released the detenu on bail all these four conditions were not extracted in seriatim. That cannot be a valid reason to justify non-application of mind to the conditions enumerated in Ext.P3 order. 17. The learned Government Pleader points out that in the memorandum of release issued by the court which actually released the detenu on bail all these four conditions were not extracted in seriatim. That cannot be a valid reason to justify non-application of mind to the conditions enumerated in Ext.P3 order. The error/mistake allegedly committed by the court which sent the memorandum of release to the police (we assume that there has been such an error, though no documents have been filed before the court and there is only a reference to that in the counter statement) is too unsatisfactory a reason to justify non-application of mind to such a vital aspect. Such an error committed by the court cannot deprive the detenu of his right to insist that the detaining authority must apply its mind pointedly and specifically to all relevant and crucial aspects before choosing to deprive the detenu of his cherished right of personal freedom and liberty. 8. We do not intend to lay down an inflexible proposition of law that all bail orders in all the cases reckoned by the detaining authority must be considered or referred to by the detaining authority. We find merit in the contention of the learned Government Pleader that the importance and crucial nature of each such order will have to be considered. In this case we reckon the same as important and vital because the order granting bail is immediately prior to the impugned order of detention. In fact, even admittedly the order granting bail subject to conditions was passed and the detenu was released after the Circle Inspector of Police submitted his report dated 23/3/10 to the Superintendent of Police to initiate action. The proximity between Ext.P3 and Ext.P1 really tilts the scales in favour of the detenu in this case. We should not be reckoned as laying down a proposition that orders of bail in all the previous cases relied upon by the detaining authority to categorise the detenu as a known rowdy or known goonda must invariably be placed before the detaining authority or considered invariably in all cases. 19. We should not be reckoned as laying down a proposition that orders of bail in all the previous cases relied upon by the detaining authority to categorise the detenu as a known rowdy or known goonda must invariably be placed before the detaining authority or considered invariably in all cases. 19. The conclusion appears to be inevitable, in these circumstances, that the order of detention and the continued detention must fail for the reason that there has not been proper application of mind and Ext.P1 or contemporaneous documents do not reveal such application of mind to the vital aspects before passing Ext.P1 order. There is indication of confusion of thought in the mind of the detaining authority on the question whether the detenu was in judicial custody or not. Even assuming that the detaining authority knew that the detenu was on bail, the order of detention must fail for the reason that the sponsoring authority did not place Ext.P3 before the detaining authority for consideration and the detaining authority did not apply his mind to the crucial question as to whether an order of detention deserved to be passed notwithstanding the very strict conditions 1 to 4 imposed under Ext.P3 which was passed after initiation of proceedings under the KAAPA by the report dated 23/3/10 of the Circle Inspector of Police to the Superintendent of Police. There is nothing in Ext.P1 order or any contemporaneous documents to show that mind has been applied to that crucial aspect. The challenge succeeds. 20. In the light of the view taken by us on the above ground of challenge, we are not proceeding to consider the various other grounds raised by the learned counsel for the petitioner. 21. In the result: (a) This writ petition is allowed. (b) Ext.P1 order is set aside for the reason that there has been no proper application of mind before the same is passed. (c) It is directed that the detenu shall be released from custody forthwith by the prison authorities if his continued detention is not necessary in connection with any other case. 22. The Registry shall forthwith communicate this judgment to the prison authorities.