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2018 DIGILAW 40 (KER)

Vishnuja v. State of Kerala

2018-01-11

DEVAN RAMACHANDRAN, P.R.RAMACHANDRA MENON

body2018
JUDGMENT : Devan Ramachandran, J. 1. The wife of Shri Aneesh, who has been sanctioned to be detained preventively pursuant to an order passed under the Kerala Anti Social Activities (Prevention) Act, 2007 (hereinafter referred to as the 'Act' for short) has filed this writ petition, challenging the order under which her husband was placed under detention, a copy of which has been placed on record as Ext.P4. The petitioner's case, as we can see from the pleadings and submissions made at the Bar, is that the order of detention and the subsequent orders ratifying such action by the competent Authorities are illegal and unlawful on account of infraction of imperative statutory prescriptions and also because it has been issued without proper application of mind . 2. We have heard the learned counsel for the petitioner Shri Shajin S. Hameed and the learned public prosecutor appearing on behalf of the official respondents. 3. We have examined Ext.P4 order impugned in this writ petition, which is the order issued by the District Magistrate ordering detention of Shri Aneesh under the prescriptions of Section 3 of the Act. On an examination of the said order, it would show that nine separate instances of criminal activities are detailed therein against Shri Aneesh and that his detention was requested for by the District Police Chief (Rural), Thiruvananthapuram. 4. The order, as we said above, refers to 9 different antisocial/ prejudicial acts, wherein Shri Aneesh has been recorded to be an accused in very grievous offences, including murder, attempt to murder, extortion, assault and such other. It is ineluctable, going by the contents of Ext.P4, that the provisions of Sec.2(j) and 2(p) of the Act are attracted against the petitioner's husband and that he, therefore, would be deserving of the definition of 'Known Rowdy'; as has been already ordered by the competent Authorities. This is because, as per the provisions of Section 2(p), a person can be declared to be a known rowdy, if he is made guilty of one offence, which falls under sub-section (i) thereof or if found guilty of two offences under sub-section (ii) or if he is arrayed as an accused after a proper investigation in three instances of infraction under subsection (iii) of the said section. There is no doubt that Shri Aneesh would fall in one of these categories and, therefore, that his inclusion in the list of known rowdy cannot be found at fault and in any event, the same is not under challenge herein. The question, therefore, is whether the proceeding that led to his detention through Ext.P4 would qualify scrutiny of law going by the specific statutory mandate. 5. The petitioner specifically contends in the writ petition that the order of detention was passed only on 02.05.2017, even though the allegation against her husband is that the last prejudicial activity in which he was involved, took place on 28.08.2016, the said order is vitiated in law as it has no live link to the last prejudicial activity and, therefore, that it does not satisfy the immediate and pressing requirement of ordering his preventive detention. 6. The petitioner further asserts that the order of detention is bad because her representation, a copy of which has been produced as Ext.P7, was not properly considered within the time permissible in law and finally that certain very relevant and pertinent documents had not been given to her husband at the time when the detention order was executed. 7. The petitioner also assails the detention on the ground that certain relevant documents were not given to the petitioner's husband at the time when he was taken into custody and according to her, this omission would vitiate the entire proceedings itself. 8. Apart from the above, the petitioner, as we see from the pleadings, also has a very specific contention that Ext.P4 order has been issued without proper application of mind and that the period of detention imposed therein is contrary to the specific statutory and applicable provisions. 9. The learned Public Prosecutor appearing for the respondents vehemently refutes each of these allegations, in tune with the counter affidavit filed on behalf of the respondents in this case. According to him, Ext.P4 order was issued based on a request made by the sponsoring authority-District Police Chief, (Rural), Thiruvananthapuram dated 27.03.2017. He concedes that the District Magistrate on receiving such requisition had sought for a clarification, as regards the delay in initiating the proceedings and that the District Police Chief, (Rural) had answered it to the satisfaction of the detaining authority vide his letter dated 20.04.2017. 10. He concedes that the District Magistrate on receiving such requisition had sought for a clarification, as regards the delay in initiating the proceedings and that the District Police Chief, (Rural) had answered it to the satisfaction of the detaining authority vide his letter dated 20.04.2017. 10. The learned Public Prosecutor, contends that it is after considering the reply, relating to the alleged delay, made by the sponsoring authority in its proper perspective that Ext.P4 order was issued by the District Magistrate in response to the requisition made by the former. He points out that the said order is a very detailed order, taking into account each of the criminal activity and instances of prejudicial acts detailed against Shri Aneesh and that the said order was issued particularly because even-though Shri Aneesh was under surveillance under the provisions of Section 107 of the Code of Criminal Procedure, with effect from 30.04.2016, he had still committed himself to a violent act on 28.08.2016, leading to the registration of crime and his incarceration until 18.11.2016, when he was enlarged on bail by the competent Criminal Court. The learned Public Prosecutor continues to say that there is no delay in initiating the proceedings under the Act because the investigation into the last prejudicial activity was being carried on by the Police and that since the petitioner's husband was admittedly in jail until 18.11.2016, in connection with the said crime, it cannot be said that there is any delay at all, particularly because the request of the sponsoring Authority leading to Ext.P4, was made less than three months thereafter. He relies on two judgments of this Court in Jayalekshmi vs. State of Kerala and others [2015 KHC 961= 2015(4) KLT 942 ] and Rahila Nazeer vs. State of Kerala [ 2016 (3)KHC 189 =2016(2)KLT 838] in support of this contention of his.. 11. In Jayalekshmi's case (supra), the learned Public Prosecutor shows us that in paragraph 19 therein, this Court had held as follows: 18. Under the KAAPA, even if one or more of the facts or circumstances cited among the grounds are vague, non -existent, irrelevant or invalid for any reason whatsoever, that would not make the order of detention invalid and it shall be deemed that the detaining authority made the order of detention after having been satisfied about the need for detention with reference to the remaining facts and circumstances. The only restriction placed under Sec. 7(4) of the KAAPA is that the minimum conditions for classifying the person concerned as a 'known goonda' or 'known rowdy' should exist. Even if it is found that one or more of the cases on the basis of which the detenu is classified as a 'known goonda' or 'known rowdy' are found to be not within the purview of cases coming under clauses (o) or (p), the order of detention would not lapse or become irrelevant or stale or improper, provided sufficient number of cases to satisfy the definition of 'known goonda' or 'known rowdy', as the case may be, are still available against the detenu concerned. We are not inclined to accept the contention put forward by the learned counsel for the petitioner in this regard.” As regards Rahila Nazeer's case (cited supra) is concerned, the learned Public Prosecutor says that same principles have been adopted and he relies on paragraph 12 of the said judgment in support of his submissions, which we think is pertinent and, therefore, is extracted below: “12. It is not the delay alone that matters. If the delay in passing the order of detention is unexplained and inordinate, it could be said that the live link between the prejudicial activity and the order of detention is snapped. It is not a mechanical test that can be applied in the matter of ascertaining whether the live link is snapped. If the delay is satisfactorily explained, it cannot be held that the live link is snapped. The KAA(P) Act does not provide that if the period of six moths from the last prejudicial activity expires, no order of detention can be passed. The legislature in its wisdom did not think that an order of detention cannot be passed after the expiry of the period for which a person can be detained under Section 3, reckoning the period from the date of the last prejudicial activity to the order of detention. The period of detention under Section 3 as such cannot be a determining factor to assess whether there is inordinate and unexplained delay. The facts and circumstances of the case are relevant in each case. Reasons may be varied as to why the order of detention is passed after several months of the date of the last prejudicial activity. The period of detention under Section 3 as such cannot be a determining factor to assess whether there is inordinate and unexplained delay. The facts and circumstances of the case are relevant in each case. Reasons may be varied as to why the order of detention is passed after several months of the date of the last prejudicial activity. If the person concerned is in judicial custody and there is no likelihood of his being released shortly, the detaining authority may stay its hands for a short while and think of passing an order of detention subsequent to the release of the person concerned. It is not necessary that the person concerned should commit another crime after the expiry of his judicial custody (in the crimes already registered and pending investigation) in order to enable the detaining authority to pass an order of detention. In short, the facts situation in each case makes it relevant the question whether the delay is inordinate so as to vitiate the order of detention on the ground of lack of live nexus between the prejudicial activity and the order of detention. “The crux of the submissions of the learned Public Prosecutor is that there is no mechanical or hard and fast rule as to the period within which the proceedings have to be initiated under the Act and he says that it varies on case to case basis. According to him, the authorities will have to consider each case on the facts that are presented and will have to take a conscious decision as to whether the detention is required or otherwise. He says that in this process it is possible that a few days time may be occasioned in order to collate and to deliberate on all the relevant materials and inputs and he submits that this by itself cannot be taken or construed as unusual or unexpected delay. 12. We have considered the above submissions with great amount of care and we proceed to assess it qua the contentions raised by the petitioner. 13. There is no doubt that that last prejudicial activity alleged against Shri Aneesh was committed on 28.08.2016. However, it is also to be noted that he was immediately thereafter taken into judicial custody and that he was enlarged on bail only on 18.11.2016. 13. There is no doubt that that last prejudicial activity alleged against Shri Aneesh was committed on 28.08.2016. However, it is also to be noted that he was immediately thereafter taken into judicial custody and that he was enlarged on bail only on 18.11.2016. Obviously, the police Authorities have been investigating the crime and such proceedings would certainly take some time to be proceeded and concluded as per the law. The issue, in such perspective, is whether the request made by the District Police Chief, (Rural), Thiruvananthapuram to detain Shri Aneesh under the Preventive Detention, initiated through his letter dated 27.03.2017, was too much delayed so as to snap its live link with the prejudicial activity alleged against him. 14. We see that a counter affidavit has been placed on record by the first respondent-State of Kerala offering their explications as to how and why this delay was occasioned. The specific asseverations in this regard is available in paragraph 10 of the counter affidavit, which we deem it apposite to extract, so as to enable its reading as pleaded: “10. The last crime committed by the detenue was on 28.08.2016. The detenue was arrested in connection with this crime and he was in judicial custody till he was enlarged on bail on 18.11.2016. A proceedings u/s.107 Cr.P.C. has been initiated against the detenue in which he had executed a bond on 03.05.2016. It was after execution of the bond that the detenu got involved in the last crime. It is true that the proposal was made by the sponsoring authority only on 27.03.2017. The delay for submitting the proposal was that sponsoring authority was collecting materials regarding the involvement of the detenue in the criminal cases which are in plenty and are covering three police station limits. It is submitted that Sponsoring authority had taken adequate measures to control the criminal activities of the detenu. Despite these, the detenu continued his criminal activities including robbery, murder, attempt to commit murder and house breaking etc. In such circumstances the detaining authority had no other option, but to invoke the provisions of the Act. It is submitted that Sponsoring authority had taken adequate measures to control the criminal activities of the detenu. Despite these, the detenu continued his criminal activities including robbery, murder, attempt to commit murder and house breaking etc. In such circumstances the detaining authority had no other option, but to invoke the provisions of the Act. The proposal was made by the sponsoring authority only after it was satisfied that the detenue could not be expected to be controlled or his anti-social activities prevented through ordinary, constabulary or magisterial procedures like proceedings u/s, 107 Cr.P.C. The proposal of the Sponsoring authority culminated in the detention order dared 02.05.2017 which was duly executed on 06.05.2017. 15. We are satisfied with the explanation offered by the competent Authorities in the counter affidavit and going by the specific pleadings as above extracted, we do not think that the so called delay of three months occasioned after the petitioner's husband was released from jail on bail will be sufficient ground to release him or to question Ext.P4 order, especially in view of the two precedents that we have already referred to above. 16. That then brings us to the second contention of the petitioner, that Ext.P7 representation made by her before the Government was not disposed of in time. According to her, the said representation was given to the Government on 02.06.2017, but that it was disposed of only on 21.07.2017 and she says that this delay is fatal to the proceedings and that her husband should be released forthwith. We notice from the counter affidavit filed on behalf of the first respondent that the period or time taken to dispose of the representation has been explained in detail in paragraph 7 thereof. To avoid repetition, we extract the same as under: “7. With regard to the contention relating to the disposal of the representation, this respondent may be permitted to submit that this respondent received a representation of the petitioner on 03.06.2017. The representation along with the request for the release of the detenue, contained certain grave allegations of police atrocities against the petitioner. As such Government vide letter dated 06.06.2017 sought an urgent report from the Sponsoring Authority, the District Police Chief, Thiruvananthapuram. It was reminded on 01.07.2017. Meanwhile, Government received the opinion of the Advisory Board on 29.06.2017 and the detention order was confirmed as per G.O.(Rt.)No.1780/2017/Home dated 12.07.2017. As such Government vide letter dated 06.06.2017 sought an urgent report from the Sponsoring Authority, the District Police Chief, Thiruvananthapuram. It was reminded on 01.07.2017. Meanwhile, Government received the opinion of the Advisory Board on 29.06.2017 and the detention order was confirmed as per G.O.(Rt.)No.1780/2017/Home dated 12.07.2017. The Sponsoring Authority submitted a detailed report to the Government clarifying the grounds for detention along with remarks alleged in the petition. The report was received in Government on 14.07.2017. The fate of the representation was communicated to detenu as per letter No.Home-/SSA5/51/2017/Home dated 21.07.2017. The request in the representation was declined after a real and proper consideration of the valuable constitutional right of the detenue as laid down in Article 22(5) of the Constitution of India. Government properly, impartially, carefully and expeditiously considered the representation from the point of view of arriving at an opinion whether the order was in conformity with the relevant provisions of the Act and whether there was sufficient cause for the detention. It is submitted t hat the approval and confirmation of the order of detention is not a deterrent to consider the representation of the petitioner to release the detenu since Section 13 of the Act enshrines the Government the power to revoke or modify the detention order at any time.” 17. The representation made by the petitioner before the Government, as is clear from its contents, was not merely against the detention of the petitioner but it also had an allegation that certain police officers forced her to comply with their prurient demands and that when she refused to do so, her husband was implicated in the proceedings relating to the detention. 18. Since these allegations are severe in nature, which involves the modesty of a woman, it is only appropriate that the competent authorities consider it pointedly with reference to the accusation and that in such process, a few days were consumed. In Venugopal vs. State of Kerala and others [ 2015(4) KLT 1 ], relied upon by the petitioner, the law declared by this Court is that the representation will have to be disposed of at the earliest. The said time frame will vary case to case and will depend upon the circumstances in each case. In the present case, we do not think that the delay occasioned is so unpardonable that it becomes fatal to the proceedings itself. The said time frame will vary case to case and will depend upon the circumstances in each case. In the present case, we do not think that the delay occasioned is so unpardonable that it becomes fatal to the proceedings itself. In fact, our view is to the contrary and we think that the time involved for disposal of the representation was reasonable, taking into account the nature of the allegations contained therein. 19. As regards the contention that certain relevant documents were not given to the petitioner's husband at the time when he was taken into custody is concerned, we have been given the copy of the file maintained by the Authorities, wherein we clearly find that all the documents, which the petitioner alleges were not given to her husband, viz the bail orders in the nine crimes mentioned in Ext.P4, had, in fact, been handed over to him and there is an acknowledgment, that he had received the same, endorsed on the file in his own hand. The demonstrated facts being to the contrary, we do not deem it necessary to deal with this contention in any further detail and we, therefore, repel it as being opposed to the evidence available. 20. We now come to the contention that Ext.P4 has been issued without proper application of mind. This is a broad contention raised by the petitioner, wherein two separate heads of contentions as below are grouped together. (a) For the first, she says that the fact that her husband was earlier detained under the Act but set free by the judgment of this Court, a copy of which has been produced as Ext.P11, was not placed before the consideration of the Committee. According to her, had that been placed before the Advisory Committee for its examination, it would not have found him deserving of detention of one year. Her contention appears to be that the Committee has proceeded on the basis that this is the second detention and, therefore, that he is deserving of one year detention under the provisions of Sec.12 of the Act. Her contention appears to be that the Committee has proceeded on the basis that this is the second detention and, therefore, that he is deserving of one year detention under the provisions of Sec.12 of the Act. (b) She also contends, under this head, that the Government was enjoined in law, in terms of the specific prescriptions of the Act, to have considered the matter of detention of her husband under the statutorily cast obligations upon it, under Section 10(4) of the Act, independently and she asserts that this responsibility of the Government is not qualified by or dependent on the recommendations made by the Advisory Committee. 21. We have examined the above contentions with careful advertence to the specific provisions in the Act. 22. It is indisputable that Section 12 of the Act provides that in the case of first detention, the maximum period can only be a period of 6 months and that a period in excess of 6 months, upto one year can be imposed only in the case of subsequent detention. The question, therefore, before us is whether the petitioner's husband can be seen to be confined for the second time or whether this is his first detention as has been alleged by the petitioner. We notice that Shri Aneesh was earlier detained by an order dated 17.12.2013 which was challenged by his father by filing W.A. 122/2014, which culminated in Ext.P11 judgment. It is indubitable from the said judgment that this Court had found that, on account of certain technical violations at the hands of the authorities, the detention order was not sustainable in law and accordingly had set aside the said order and ordered to release Shri Aneesh from detention. The question is whether Ext.P11 judgment of this Court, setting aside the earlier order of detention, would render the detention invalid and void; and whether the subsequent detention, viz., the one ordered through Ext.P4 would operate as a first detention. We have no doubt in our mind that the effect of Ext.P11 judgment was that the earlier order of detention stood set aside and it was inoperative in law and therefore, the petitioner's husband cannot be now said to be a person who has suffered a detention under the Act earlier. Viewed from that perspective, it becomes clear that Ext.P4 order now passed against the petitioner's husband could operate only as a first detention. Viewed from that perspective, it becomes clear that Ext.P4 order now passed against the petitioner's husband could operate only as a first detention. 23. The above being so, we are now astricted to consider whether the present order detaining the petitioner's husband for a period of one year is legal and valid. Since the powers under Section 12 is girdled with the curb that in the case of first detention, a person can be detained only for six months and since we see no further power vested with any Authority to extend that period, we are certainly of the opinion that Ext.P8 order of the Government, passed under Section 10(4) of the Act, confirming the detention for a period of one year, even while Ext.P4 order of the detaining Authority correctly recommended only for a period of 6 months, is improper and impermissible to that extent. 24. The learned Public Prosecutor, of course, makes a fervent submission that the Government did not do anything on its own, but that it had simply followed the recommendations of the Advisory Committee. He shows us that in Ext.P8 it was specifically recorded that the Government is only approving the recommendations of the Advisory Committee to detain the petitioner's husband for a period of one year and he says that in any event under Section 10(4) of the Act, the Government is vested with the power to pass such appropriate orders at its discretion as long as the report of the Advisory Board affirms the initial order of detention. We are afraid that we cannot allow sustenance in law to this submission of the learned Public Prosecutor because Section 10(4) provides that if the Advisory Board confirms the order of detention as being validly issued, then the Government may confirm the detention order and continue the same for such time as is legally permissible and that where the Advisory Board concludes that there is no reason to detain the person concerned, the Government is obligated to revoke the detention. It, therefore, certainly does not invest unbridled power with the Government that it can even impose detention orders which are contrary to the provisions of Section 12, with respect to the extent of time to be served by the detenu, and the mandate of Section 10(4) cannot be misinterpreted by the Government to do so. It, therefore, certainly does not invest unbridled power with the Government that it can even impose detention orders which are contrary to the provisions of Section 12, with respect to the extent of time to be served by the detenu, and the mandate of Section 10(4) cannot be misinterpreted by the Government to do so. The provisions of Section 12 are plenary in nature and it cannot be varied or violated by any Authority, including the Government while acting under its provisions. We, therefore, find that Ext.P8 order, to the extent to which the detention of the petitioner's husband has been ordered for a period of one year, cannot stand scrutiny of law because this is the first detention, taking into account the conceded fact that his earlier detention was set aside through Ext.P11 judgment. 25. Finally, as regards the contention that the Government ought to have considered the detention order on its own independently under the provisions of Section 10(4) of the Act is concerned, we have already answered this substantially in the afore paragraphs while relating to the period of detention that can be ordered. Of course, the contention now appears to be that the Government is also obligated in law to independently consider the requirement of detention and make a decision as to whether it is necessary to continue the detenu under preventive detention or to let him off. We notice from Ext.P8 that the Government has independently considered each of the facts available in this case in its proper perspective, with the only exception being that it went along with the recommendations of the Advisory Committee leading to the mistake in the said order of imposing detention of one year. This does not however alter the validity of detention for the statutorily sanctioned period of six months since all the factual and forensic criterion warranting such detention has been noticed and confirmed by the Government, acting under the prescriptions of Section 10(4) of the Act. Apart from that one lapse which we see in Ext.P8, we cannot find anything else at fault with it and we are thus to confirm the same, except to the extent of the period of detention as we have said above. 26. Apart from that one lapse which we see in Ext.P8, we cannot find anything else at fault with it and we are thus to confirm the same, except to the extent of the period of detention as we have said above. 26. In summation, we find that Ext.P4 order issued by the District Magistrate invoking the power under Section 3(1) of the Kerala Anti Social Activities Prevention Act and Ext.P5 order issued by the Government confirming such detention is valid in law. However, the period shown in Ext.P8, viz., one year being in excess of the period that could have been imposed under Section 12 of the Act, we are constrained to hold it to such extent as being illegal. 27. In effect, we find that even though the detention order is valid in law and though we approve the action of the competent Authorities in placing Shri Aneesh under detention, we cannot approve the fact that he is kept under detention even beyond the period of six months. Hence, if the period of six months has elapsed from the date on which the detention order has been executed, then the petitioner's husband Shri Aneesh shall have to be immediately set at liberty, finding that he has already suffered the maximum detention that could have been passed under Section 12 of the Act. 28. Since we notice that the petitioner's husband was under detention from 06.05.2017 and, therefore, that the maximum period during which he could have been kept under detention has expired, his detention at this point of time cannot be justified or sustained. In the said circumstance, if the petitioner's husband Shri Aneesh is not required in any other case and he is not liable for detention with respect to any other crime, he shall be set at liberty forthwith by the competent authority. The Registry is directed to communicate this order to the 4th respondent, Superintendent of Prison, Central Prison, Viyyur, Thrissur forthwith so as to obtain the release of Shri Aneesh, in terms of this judgment.