D. Saraswathi W/o Vijayakumaran Nair v. State of Kerala
2025-08-25
A.K.JAYASANKARAN NAMBIAR, JOBIN SEBASTIAN
body2025
DigiLaw.ai
JUDGMENT : JOBIN SEBASTIAN, J. 1. This writ petition is directed against an order of detention dated 12.06.2025 passed against one Sreejith @ Unni, the detenu, under Section 3 (1) r/w 13(2)(1) of the Kerala Anti-Social Activities (Prevention) Act, 2007 (‘KAA(P) Act’ for brevity). The petitioner herein is the mother of the detenu. The said order of detention was confirmed by the Government vide order dated 18.08.2025, and the detenu has been ordered to be detained for a period of one year, from the date of detention. 2. The records reveal that, it was after considering the recurrent involvement of the detenu in criminal activities, a proposal was submitted by the Deputy Commissioner of Police, Thiruvananthapuram City, on 06.05.2025 seeking initiation of proceedings against the detenu under Section 3 (1) r/w 13(2)(1) of 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 'known rowdy’ as defined under Section 2 (p)(iii) of the KAA(P) Act. 3. In a series of detention orders passed against the detenu, the present detention order is the 9th one passed against him. After undergoing the period of detention in terms of the 8th detention order, the detenu was released from jail on 20.03.2025. Immediately thereafter, again got involved in a criminal activity and the same led to the forwarding of a proposal for the initiation of proceedings under KAA(P) Act against the detenu again. The case registered with respect to the last prejudicial activity is crime No.474/2025 of Poojappura Police Station, alleging the commission of offences punishable under Sections 121 (1), 109(1) 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 the Ext.P1 order is illegal, arbitrary, and was passed without proper application of mind. The learned counsel further urged that the jurisdictional authority passed the impugned order of detention without taking note of the fact that the detenu was released on bail in the case registered with respect to the last prejudicial activity and the conditions imposed on him at the time of granting bail itself were sufficient to deter the detenu from being involved in further criminal activities.
According to the learned counsel, the sufficiency of the bail conditions was not properly considered by the jurisdictional authority, and passed the impugned order in a casual manner. The learned counsel further submitted that there is an inordinate delay in mooting the proposal as well as in passing the impugned order, and the said delay will certainly snap the live link between the last prejudicial activity and the purpose of detention. Counsel further urged that though the detenu had forwarded a representation to the Government, assailing the detention order through the jail superintendent concerned, the said representation was not considered by the Government, and its fate was also not communicated. On these premises, it was urged that the impugned order is liable to be set aside. 6. In response, the learned Government Pleader asserted that the jurisdictional authority passed Ext. P1 order after taking note of the fact that the detenu was on bail in connection with the last prejudicial activity and after being satisfied that the bail conditions imposed while granting bail to the detenu are not sufficient to prevent him from being involved in criminal activities. The learned Government Pleader further urged that there is no delay in passing the impugned order after the date of the last prejudicial activity and hence the petitioner’s contention that the live link between the last prejudicial activity and the order of detention is snapped will not be sustained. The learned Government Pleader further submitted that the representation submitted by the detenu through the jail superintendent was considered by the Government, and its fate was duly communicated to the detenu and the contention of the learned counsel for the petitioner sticking on non-consideration of the representation is absolutely baseless. 7. Before delving into a discussion regarding the rival contentions raised from both sides, it is to be noted that, as evident from the records, the present order of detention is the 9th detention order passed against the detenu under the KAA(P) Act, In terms of the earlier detention order, the detenu had undergone one year of detention, and released from jail on 20.03.2025. Immediately thereafter, on 27.03.2025, he again got involved in a criminal activity, which actually necessitated the passing of the impugned order.
Immediately thereafter, on 27.03.2025, he again got involved in a criminal activity, which actually necessitated the passing of the impugned order. The case registered against the detenu with respect to the last prejudicial activity after the passing of the earlier order of detention registered against the detenu is crime No.474/2025 of Poojappura Police Station, alleging the commission of offences punishable under Sections 121 (1), 109(1) of BNS . As already noted, the incident that led to the registration of the last prejudicial activity occurred on 27.03.2025. After the commission of the last prejudicial activity, the detenu absconded and subsequently surrendered before the court on 11.04.2025. In the said case, the detenu got bail on 03.05.2025. Immediately after his released from jail, on 06.05.2025, the sponsoring authority mooted the proposal for initiation of proceedings under KAA(P) Act against the detenu. Thereafter, it was on 12.06.2025, the impugned order was passed. Virtually, there is only a delay of around 2 ½ months in passing the impugned order of detention. The said delay cannot be treated as an inordinate one. Obviously, a reasonable time would be required for collecting the details of the case in which the detenu was involved and for verification of the records. Moreover, for a considerable period, i.e., from 11.04.2025 to 03.05.2025, the detenu was under judicial custody in connection with the last prejudicial activity. As he was in jail during the said period, there was no basis for any apprehension regarding imminent repetition of criminal activities by the detenu. Therefore, the minimal delay occurred in this case in mooting the proposal as well as in passing the order is justifiable. 8. Admittedly, the proposal for initiation of proceedings under KAA(P) Act was mooted, and the impugned order of detention was passed while the detenu was on bail in the case registered with respect to the last prejudicial activity. Therefore, it was incumbent upon the jurisdictional authority to consider whether the conditions clamped on the detenu while granting bail to him in the said case will suffice to deter the detenu from repeating criminal activities. The learned counsel for the petitioner has a definite contention that the sufficiency of the bail conditions was not properly considered by the jurisdictional authority and passed the impugned order in a casual manner. 9.
The learned counsel for the petitioner has a definite contention that the sufficiency of the bail conditions was not properly considered by the jurisdictional authority and passed the impugned order in a casual manner. 9. While considering the above contention of the petitioner, firstly, it is to be noted that there is no law that precludes the jurisdictional authority from passing an order of detention against a person who is already on bail. However, an order of detention under the KAA(P) Act is a drastic measure against a citizen, and it heavily impacts their personal as well as fundamental rights. When an effective and alternative remedy exists to prevent a person from repeating criminal activities, resorting to preventive detention is neither warranted nor permissible. When a person is already on bail, and if the bail condition imposed on him will suffice to deter him from repeating criminal activities, an order of detention is not at all necessary and not permissible. In other words, when a person who is already on bail is detained, the impugned order should reflect the compelling circumstance that necessitated the passing of such an order. Therefore, when an order of detention is passed against a person who is on bail, it is incumbent upon the authority to take note of the said fact and to consider whether the bail conditions imposed on such a person while granting bail by the court are sufficient to restrain him from being involved in criminal activities. 10. Keeping in mind the above, while reverting to the case at hand, it can be seen that in the impugned order itself, the fact that the detenu was released on bail in the case registered against him with respect to the last prejudicial activity is specifically adverted to. It is true that the conditions imposed by the court while granting bail are not extracted in the impugned order. But there is no requirement of law that the bail conditions shall be extracted in the order of detention. But what is required is that the jurisdictional authority should consider the sufficiency of bail conditions imposed in the bail order. In the impugned order, it is clearly mentioned that the antecedents of the detenu show that he is in the habit of being involved in criminal activities, repeatedly disregarding the bail conditions imposed on him in the earlier cases.
But what is required is that the jurisdictional authority should consider the sufficiency of bail conditions imposed in the bail order. In the impugned order, it is clearly mentioned that the antecedents of the detenu show that he is in the habit of being involved in criminal activities, repeatedly disregarding the bail conditions imposed on him in the earlier cases. Furthermore, in the impugned order, it is stated that the bail conditions imposed on the detenu are not sufficient to restrain the detenu from repeating criminal activities. Likewise, all the proceedings already initiated against the detenu under ordinary criminal law did not yield any result, and the accused is involving in criminal activities again and again, disregarding the bail conditions imposed in the earlier cases. A holistic reading of the impugned order further reveals that the act of the detenu violating the bail conditions and being involved in criminal activities is one of the materials which the jurisdictional authority relied on to enter into a subjective satisfaction to pass the detention order. Therefore, it cannot be said that the jurisdictional authority did not consider the sufficiency of the bail conditions imposed on the detenu at the time of passing the impugned order. The impugned order reveals that the antecedents of the detenu and his propensity to be involved in criminal activities, disregarding the earlier bail orders, persuaded the detaining authority to arrive at a subjective satisfaction regarding the necessity of passing the detention order. Therefore, the contention of the learned counsel for the petitioner in the above regard will fail. 11. While considering the contention in the writ petition that the representation submitted by the detenu was not considered by the Government within a reasonable time, and the fate of the representation was not timely communicated to him, it is to be noted that the right of a detenu to get his representation considered by the Government is a constitutional as well statutory right. However, the records reveal that the contention of the petitioner that the representation of the detenu was not considered by the Government appears to be baseless. The copy of the said representation (Ext.P3), which is appended with the writ petition, reveals that the same is dated 12.06.2025. Admittedly, the representation was routed through the Jail Superintendent concerned to the Government.
However, the records reveal that the contention of the petitioner that the representation of the detenu was not considered by the Government appears to be baseless. The copy of the said representation (Ext.P3), which is appended with the writ petition, reveals that the same is dated 12.06.2025. Admittedly, the representation was routed through the Jail Superintendent concerned to the Government. At this juncture, it is significant to note that, as evident from the records, Ext.P3 representation was received by the Government only on 02.07.2025. Prior to the receipt of the said representation, on 25.06.2025, the Government had preferred the matter to the Advisory Board for opinion. Therefore, it is demonstrably clear that prior to the receipt of Ext.P3 representation, the matter was referred by the Government to the Advisory Board. 12. At this juncture, it is worthwhile to refer to the decision of the Supreme Court in K.M. Abdulla Kunhi v. Union of India, 1991 (1) SCC 476 . In the said case in paragraph 16, the Supreme Court observed as follows: The time imperative for consideration of representation can never be absolute or obsessive. It depends upon the necessities and the time at which the representation is made. The representation may be received before the case is referred to the advisory board, but there may not be time to dispose of the representation before referring the case to the advisory board. In that situation, the representation must also be forwarded to the advisory board along with the case of the detenu. The representation may be received after the case of the detenu is referred to the board. Even in this situation, the representation should be forwarded to the advisory board, provided the board has not concluded the proceedings. In both the situations, there is no question of consideration of the representation before the date of receipt of the report of the advisory board. Nor it could not be said that the Government had delayed the consideration of the representation, unnecessarily awaiting the report of the board. It is proper for the Government in such situation to await the report of the board. 13. A similar view has been taken by the Supreme Court in Golam Biswas v. Union of India and another, 2015 KHC 5588 . 14.
It is proper for the Government in such situation to await the report of the board. 13. A similar view has been taken by the Supreme Court in Golam Biswas v. Union of India and another, 2015 KHC 5588 . 14. Keeping in mind the above principle, while reverting to the case at hand, as already noted, Ext.P3 representation was received by the Government only on 02.07.2025. The matter had been referred to the Advisory Board prior to the receipt of the said representation. As the matter was already seized of by the Advisory Board, the Government is justified in not considering the representation immediately. The Advisory Board formed its opinion and forwarded the same to the Government on 06.08.2025. Thereafter, the Government confirmed the order of detention vide order dated 18.08.2025. A perusal of the confirmation order reveals that it was after considering Ext.P3 representation submitted by the detenu and the opinion of the Advisory order, the detention order was confirmed. Moreover, the fate of the representation is also duly communicated to the detenu. Therefore, the contention of the petitioner that the representation submitted by the detenu was not considered by the Government will not be sustained. In the result, we have no hesitation in holding that the petitioner has not made out any ground for interference. Hence, the writ petition fails and is accordingly dismissed.