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2024 DIGILAW 933 (KER)

Raju F/O Anandhu @ Kichu v. State Of Kerala

2024-07-30

G.GIRISH, RAJA VIJAYARAGHAVAN V.

body2024
JUDGMENT : G.Girish, J. Aggrieved by Ext.P7 order of the District Magistrate, Thiruvananthapuram, in respect of the preventive detention of the son of the petitioner, which was confirmed by Ext.P11 order, the petitioner is here before this Court with this petition under Article 226 of the Constitution of India for a writ of habeas corpus. 2. Ext.P7 order is the outcome of the report dated 06.04.2024 of the District Police Chief, Thiruvananthapuram Rural about three crimes in which the son of the petitioner is involved, which were sufficient to classify him as a ‘known rowdy’ under the Kerala Anti-Social Activities (Prevention) Act, 2007 [for short ‘KAA(P)A’]. The aforesaid three crimes are shown in the table below: Sl.No. Crime No. Offences Present Status 1 1275/2022 of Kilimanoor Police Station /s 294(b), 308, 323, 324, 341, 427 and 34 IPC Crime registered on 26.11.2022 now pending as S.C.No.312/2023 of Assistant Sessions Court, Attingal 2 24/2024 of Kilimanoor Police Station u/s 323, 324, 326, r/w 34 of IPC Registered on 04.01.2024, with respect to an incident taken place on 30.12.2023, which is now pending trial before JFMC-IV Attingal 3 420/2024 of Kilimanoor Police Station u/s 294(b), 341, 324, 307, r/w 34 of IPC Registered on 12.03.2024 and final report not filed and is undergoing judicial detention from 16.03.2024 onwards. 3. After analysing the case records in the aforesaid three crimes, and the report of the District Police Chief, Thiruvananthapuram Rural referred above, the Detaining Authority (District Magistrate, Thiruvananthapuram) came to the conclusion that the petitioner’s son would come under the definition of ‘known rowdy’ under KAA(P)A and hence his preventive detention is highly necessary for the maintenance of public order. Accordingly, the Detaining Authority passed Ext.P7 order on 30.04.2024. Though the detenu challenged Ext.P7 order before the Advisory Board constituted under the KAA(P)A, the above authority recommended the detention of the detenu, leading to Ext.P11 order of the Government directing the preventive detention of the petitioner’s son for a period of six months with effect from the date of detention. Accordingly, the Detaining Authority passed Ext.P7 order on 30.04.2024. Though the detenu challenged Ext.P7 order before the Advisory Board constituted under the KAA(P)A, the above authority recommended the detention of the detenu, leading to Ext.P11 order of the Government directing the preventive detention of the petitioner’s son for a period of six months with effect from the date of detention. Aggrieved by the aforesaid order, the petitioner has approached this Court with the present petition assailing Exts.P7 and P11 orders upon the following grounds: i) The Sponsoring Authority (District Police Chief, Thiruvananthapuram Rural) suppressed material facts relating to the registration of a counter case to Crime No.420/2024 of Kilimanoor Police Station which has been dealt with as the last prejudicial activity of the detenu. Ext.P7 order passed by the Detaining Authority, without looking into the aforesaid counter case registered at the instance of the detenu, has to be termed as one passed without applying mind. ii) The fact that the detenu was remaining in judicial custody was not brought to the notice of the Detaining Authority, and thus an erroneous order happened to be passed by the Detaining Authority without ascertaining the true facts. iii) The third and last crime relied on by the Detaining Authority for passing Ext.P7 order, is still under investigation, and there were no relevant records considered by the Detaining Authority to hold that the detenu had committed the offence mentioned in the said case. iv) There was a delay of six days in the execution of Ext.P7 order notwithstanding the fact that the detenu was remaining in judicial custody in connection with the last prejudicial activity. 4. Heard Adv.Sri.Latheesh Sebastian, the learned counsel for the petitioner and Sri.K.A.Anaz, the learned Senior Government Pleader representing the respondents. 5. Relying on the decisions of this Court in Pradeep Kumar v. Union of India [ 2012 (2) KHC 160 ] and Sujitha v. State of Kerala [ 2015 (5) KHC 877 ], it is argued by the learned counsel for the petitioner that the failure on the part of the Sponsoring Authority to report the registration of a counter case at the instance of the detenu, in respect of Crime No.420/2024 of Kilimanoor Police Station, would amount to withholding crucial information to the Detaining Authority, which would, in turn, vitiate the order of detention. 6. 6. In Pradeep Kumar (supra), the Sponsoring Authority had omitted to report the fact that the detenu was granted bail by the Sessions Court subject to conditions which included the non-involvement of the detenu in any other crime while on bail. The above bail order was passed on 20.07.2011, and thereafter, the detenu did not get himself involved in any crime. The Detaining Authority passed the order of detention on 27.09.2011, without taking note of the fact that the aforesaid bail order was in force at the time when the detenu was ordered to be kept under preventive detention. It is the aforesaid aspect, which this Court considered in Pradeep Kumar (supra), to hold that the order of detention was liable to be interfered due to withholding crucial information by the Sponsoring Authority, and the non-consideration of bail condition by the Detaining Authority. The facts of the present case relating to the non-disclosure of the registration of a counter case to the last prejudicial activity attributed to the detenu, cannot be termed as one similar to the suppression of crucial information and the non-consideration of a material aspect, which this Court had taken serious note of in Pradeep Kumar (supra). 7. In Sujitha v. State of Kerala (supra), the Sponsoring Authority made a misrepresentation before the Detaining Authority that the detenu suffered full term of detention in a second order of detention dated 11.11.2011, while in fact the aforesaid order of detention was interfered with and the detenu was directed to be released forthwith, as per the judgment dated 14.02.2012 in W.P(Crl.)No.18 of 2012 of this Court. As a result of the above suppression of material fact by the Sponsoring Authority, the Detaining Authority had no occasion to consider the judgment rendered by this Court terminating the second order of detention and directing the release of the detenu forthwith. It is in such a situation that this Court frowned upon the course adopted by the aforesaid Authorities, which was termed as absolute non-application of mind vitiating the order of detention. The factual situation in Sujitha (supra), is also totally different from the facts and circumstances of this case. It is in such a situation that this Court frowned upon the course adopted by the aforesaid Authorities, which was termed as absolute non-application of mind vitiating the order of detention. The factual situation in Sujitha (supra), is also totally different from the facts and circumstances of this case. It is not possible to compare the omission on the part of the Sponsoring Authority to report about a counter case to one of the crimes attributed to the detenu as akin to the misrepresentation in Sujitha (supra), which resulted in a detention order passed, without knowing the implications of the judgment rendered by this Court directing the release of the detenu terminating the second order of detention. 8. The learned Government Pleader has brought to our notice the decision of this Court in Aswathy v. State of Kerala & Ors. [ 2019 (5) KHC 436 ], wherein there was a similar allegation levelled against the Detaining Authority for not considering the registration of a counter case at the instance of the detenu. In the said case, this Court has held that the non-consideration of the aforesaid counter case in which a refer charge sheet was submitted, would not vitiate the detention order. It is true that in the present case, the respondents are having no contention that the counter case registered at the instance of the detenu was found to be false on investigation. But still, it is not possible to conclude that the non-disclosure of the registration of the aforesaid counter case would have prejudicially affected the mind of the Detaining Authority leading to the promulgation of a detention order without application of mind. This is because of the reason that the truth or falsity of the complaint constituting the crimes registered against the detenu, are beyond the scope of adjudication of the District Magistrate dealing with the matter relating to the preventive detention of the detenu for the maintenance of public order. Once it is revealed from the records relied on by the Investigating Officer that a crime which could be reckoned for classifying the detenu as a ‘known rowdy’ has been made out, the question whether there is a counter case registered at the instance of the detenu or not, pales to insignificance. 9. It has been held by the Apex Court in Haradhan Shah v. State of West Bengal & Anr. 9. It has been held by the Apex Court in Haradhan Shah v. State of West Bengal & Anr. [ (1975) 3 SCC 198 ] that the power of preventive detention is qualitatively different from punitive detention and that it is a precautionary power exercised in reasonable anticipation. It is further held thereunder that the proceedings in that regard do not overlap with prosecution even if, it relies on certain facts for which prosecution may be launched or may have been launched. It is also observed by the Apex Court that an order of preventive detention may be made with or without prosecution and in anticipation or after discharge or even acquittal. The aforesaid dictum laid down by the Hon’ble Supreme Court would also point to the parameters to be looked into by the Detaining Authority, which are at variance from the aspects dealt with in a regular prosecution in respect of the crimes attributed to the detenu. 10. In view of the discussions aforesaid, we are not inclined to accept the challenge of the petitioner that the non-disclosure of the registration of a counter case at the instance of the detenu, would amount to withholding crucial information to the Detaining Authority leading to the promulgation of order without application of mind. 11. As regards the second ground stated by the petitioner about the non-disclosure of the fact relating to the continuance of judicial custody of the detenu in the last crime attributed to him, it has to be stated that the contention in the above regard is factually incorrect. The report of the Sponsoring Authority contains clear indication that the detenu is still in judicial custody, as per the orders of the Judicial First Class Magistrate-IV, Attingal in Crime No.420/2024 of Kilimanoor Police Station. The said aspect is also mentioned in Ext.P7 order of the Detaining Authority. 12. The third ground relied on by the petitioner about the absence of material particulars before the Detaining Authority in Crime No.420/2024 of Kilimanoor Police Station, which is under investigation, is also baseless since it is seen from Ext.P7 order that the Detaining Authority had taken into account all the records relating to the three cases reckoned for classifying him as a ‘known rowdy’. That being so, it is not possible to conclude that the Detaining Authority went wrong in relying on the last prejudicial activity attributed to the detenu in connection with the commission of Crime No.420/2024 of Kilimanoor Police Station. 13. The last ground highlighted by the petitioner about the delay of six days in executing the order of detention, cannot be considered as one of serious implications prejudicially affecting the rights of the detenu. The aforesaid period of six days cannot be termed as an inordinate delay displaying the laxity or lethargy on the part of the authorities concerned. Therefore, Exts.P7 and P11 orders are not liable to be interfered for that reason as well. 14. As a conclusion to the aforesaid discussions, we are of the view that there are absolutely no grounds to interfere with Exts.P7 and P11 orders, which are under challenge in this writ petition. Resultantly, the petition stands dismissed.