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2018 DIGILAW 976 (KER)

Sreeja Jayaprakash v. District Collector

2018-11-29

ASHOK MENON, K.VINOD CHANDRAN

body2018
JUDGMENT : Ashok Menon, J. The petitioner's husband, Jayaprakash, is under detention in terms of the provisions of Kerala Anti Social Activities (Prevention) Act, 2007 ('KAAPA', for brevity). In this Writ Petition, the petitioner seeks a writ of habeas corpus against the respondents to produce the detenu before this Court and release him, for the reasons mentioned in the petition and argued before us. The detenu is allegedly involved in three crimes during the last seven years. The first crime, i.e. Crime No.1045/2013 of Mundakkayam Police Station, was registered against the detenu for offences punishable under Sections 452, 323, 341, 506(ii) read with Section 34 of Indian Penal Code for an incident that happened on 30.11.2013. The second incident which occurred on 26.11.2014 was for offences punishable under Sections 143, 144, 147, 148, 450, 307, 326, 324, 511, 364 read with Section 149 IPC, for which crime No.1295/2014 was registered against the detenu. The last prejudicial activity for which Crime No.1875/2017 was registered at Mundakkayam Police Station, was allegedly committed on 25.12.2017 and the offences were punishable under Sections 294(b), 308, 326, 323, 341, 506(ii) read with Section 34 IPC. The accused (detenu) was also earlier proceeded against under Section 107 of the Code of Criminal Procedure for which MC No.4/2014 was registered against him before the Sub Divisional Magistrate's Court and he was made to execute a bond for a period of one year on 09.05.2014. 2. As per the order of the Deputy Superintendent of Police, Kanjirappally dated 24.08.2009, a rowdy history sheet was opened against the detenu. Following a request made by the District Police Chief on 19.06.2018 for detention of the detenu, the impugned Ext.P1 order was made by the District Magistrate. As per Ext.P2, representation was made before the Advisory Board. Ext.P3 was the representation made before the Secretary, Home and Vigilance Department. The Advisory Board advised detention of the detenu and accordingly, the order of detention was approved by the Government as per Ext.P4. 3. The order of detention is challenged by the petitioner merely on four grounds. Firstly, that the last prejudicial act was not against the public and that the incident had happened in front of the detenue's own house on 25.12.2017 at about 1.30 a.m. The incident is that the complainant was restrained, abused and assaulted by the detenu causing severe injuries to the complainant. 4. Firstly, that the last prejudicial act was not against the public and that the incident had happened in front of the detenue's own house on 25.12.2017 at about 1.30 a.m. The incident is that the complainant was restrained, abused and assaulted by the detenu causing severe injuries to the complainant. 4. The second ground is that the relatives of the detenu were not informed consequent to his arrest, as contemplated under Article 22(1), (2) and (3) of the Constitution of India. Thirdly, that the records given to the detenu were not complete, and lastly that there was a delay of seven months from the last prejudicial act in passing the detention order. It is further urged that the detenu was released on bail on the condition that he shall not get involved in any other case during the period the bail is in effect and also that he shall not enter the jurisdiction of the Police Station in which the crimes were committed. It is submitted that these bail conditions and its sufficiency were not considered by the detaining authority in Ext.P1 order. 5. The learned Government Pleader and the learned counsel for the petitioner were heard. 6. Regarding the allegation that the detenu had committed the last offence in front of his house at a very odd time is not a reason for him to be exonerated from the crime and there is absolutely no mitigating circumstances extenuating the crime. The learned Government Pleader has produced before us copy of the arrest memo, which indicates that the notice of arrest was informed to a relative of the detenu and the memo has been signed by that relative as well as the detenu and therefore, the argument that there is violation of Article 22 of the Constitution of India is not acceptable to us. 7. The learned Government Pleader has produced documents, which would show that all the essential records pertaining to the order of detention were handed over to the detenu and he had not been able to place his finger on any particular document, which was not handed over to him, so as to result in any prejudice to the detenu. 8. The delay of seven months from the last prejudicial activity for passing the detention order is also not of much consequence because the detenu was granted bail after he was absconding for about two months. 8. The delay of seven months from the last prejudicial activity for passing the detention order is also not of much consequence because the detenu was granted bail after he was absconding for about two months. He was in judicial custody till 05.05.2018 and the final report was filed on 15.05.2018. The sponsoring authority had made a report on 19.06.2018 and consequent to that, Ext.P1 order is seen made on 20.07.2018, which by any means cannot be said to be delayed to the prejudice of the detenu. 9. However, it is pertinent to note that there was a bail condition imposing certain restrictions on the detenu passed by the Magistrate while granting bail. The accused in that crime was directed not to enter the jurisdiction of the court until further orders. He was also directed to appear before the Investigation Officer on every Monday and Saturday between 10 a.m. and 1 p.m. till the filing of the final report, which he religiously complied till 15.05.2018, when the final report was filed. There was also a direction to the accused to notify his place of residence and phone number. He was also cautioned not to commit any offence while he is on bail. In 2014 KHC 3304 : 2014 Cri.L.J. 3000 (Reshma Raj v. State of Kerala), it is held as follows by a Division Bench of this High Court: “7. Insofar as this case is concerned, materials available before this Court show that in crime Nos. 872/2013 and 70/2013 mentioned above the detenu was granted bail by Exts. P19 and P20 orders and the detenu was released from judicial custody on 16.01.2014. Further in Ext. P20 order a condition that the detenu shall not involve in any offence while he is on bail was also imposed by the Court. However despite this order passed on 16.01.2014 that the detaining authority passed Ext.P1 order of detention on 27.01.2014 on the assumption that the detenu was still in judicial custody even on that date. This therefore establishes that the detaining authority was totally unaware of Ext. P20 order and did not consider the implications of the conditions imposed by the Court while releasing the detenu on bail and also whether the conditions imposed by the Court were sufficient to prevent him from continuing the anti - social activities if any. This therefore establishes that the detaining authority was totally unaware of Ext. P20 order and did not consider the implications of the conditions imposed by the Court while releasing the detenu on bail and also whether the conditions imposed by the Court were sufficient to prevent him from continuing the anti - social activities if any. In such circumstances, the contention of the learned counsel for the petitioner that Ext.P1 order of detention is unconstitutional deserves to be accepted. Accordingly, we set aside Ext.P1 order of detention.” 10. The sufficiency of the bail conditions has not been discussed in Ext.P1 detention order at all. This would definitely question the sufficiency of the subjective satisfaction that the detaining authority had while passing Ext.P1 order. We are of the opinion that the detaining authority should have considered the bail condition that was imposed by the Court and given an explanation that why that was not sufficient to prevent the detenu from getting involved in any further crime. It is also to be noted that consequent to the last prejudicial act, the detenu has not been involved in any other crime. This failure on the part of the detaining authority would be sufficient to set aside the order of detention and hence, we are of the opinion that the detenu is to be released from detention. Hence, the detention order at Ext.P1 is set aside as unsustainable. 11. In the result, the Writ Petition is allowed. The detenu - Jayaprakash, S/o. Kochu Nanu, Puthuparambil House, Karinilam Kara, 96 Kavala Bhagam, Erumeli North Village, Kottayam District, shall be released forthwith, if he is not wanted in connection with any other crime. Registry shall communicate this gist of judgment directing release of the detenu immediately to the Superintendent, Central Prison, Viyyur. The Superintendent, Central Prison, Viyyur shall comply with our directions expeditiously.