Detention; Beji Vs. State of Kerala [Kerala High Court, 18-06-2012]

Anti- Social Activities (Prevention) Act, 2007 (Kerala) – Ss. 3 & 10(4) – Judicial Custody – the detenu is in judicial custody, does not by itself take away the jurisdiction of the detaining authority to make an order of detention under the KAAPA.

Detention

Criminal P.C. 1973 – S.173(2) – Final Report – to found an order of detention on the ground that the person concerned is a “known-rowdy”, it is not necessary that the final report should be filed in the cases concerned. It is sufficient, if investigation is pending and on investigation made by the Investigating Officer, he is satisfied that the person concerned has committed the offence.

2012 (3) KLT 255 : 2012 (3) KLJ 171 : 2012 (3) KHC 363

IN THE HIGH COURT OF KERALA AT ERNAKULAM

K.T. Sankaran & M.L. Joseph Francis, JJ.

W.P.(C) No. 160 of 2012

Beji Vs. State of Kerala

Dated this the 18th day of June, 2012

For Petitioner:- C.K. Pavithran; For Respondents:- T. Asaf Ali, Director General of Prosecutions

J U D G M E N T

K.T. Sankaran, J.

1. Henry Jose, the husband of the petitioner was detained under the

Kerala Anti-Social Activities (Prevention) Act, 2007

hereinafter referred to as ‘the KAAPA’. The order of detention was issued on 17-12-2011. The detenu was arrested on 21-12-2011. In exercise of the powers under Sec.10(4) of the KAAPA, the Government confirmed the order of detention. The Advisory Board opined that there was sufficient cause for the detention of the detenu. It is not in dispute that the detenu was detained under the KAAPA on an earlier occasion, as per the order of detention dated 05-11-2009.

2. The learned counsel for the petitioner submitted that the order of detention is bad in law and therefore, the continued detention of the detenu is illegal. The counsel raised two points;

(1) In Crime No.1096/11 referred to in the order of detention, the detenu was in judicial custody at the time when the detention order was issued. Though the detaining authority mentioned in the order of detention that the detenu was in judicial custody on the date of issue of the order, it was further necessary for the detaining authority to satisfy as to whether there was any possibility for the detenu to get bail and if so, whether there was any likelihood of the detenu indulging in similar criminal activities; and

(2) Three of the crimes mentioned in the order of detention were under investigation and no final report was filed by the Police in those cases. If so, sub-clause (iii) of clause (p) of Sec. 2 of KAAPA would not be attracted.

3. The points raised by the learned counsel for the petitioner are discussed below.

Point No.1

4. The order of detention reveals that the detenu was involved in six crimes, of which three cases were pending trial and the other three cases were pending investigation. The detaining authority was satisfied that the detenu would again indulge in prejudicial activities which may adversely affect the public safety, if he is released from judicial custody. The order of detention further shows that the detaining authority was aware of the fact that the bail application filed by the detenu was dismissed by the Sessions Court on 12-12-2011. Still, the detaining authority came to the satisfaction that if the detenu were to be enlarged on bail, he would again indulge in similar anti-social activities.

5. The learned counsel for the petitioner relied on the decision of the Supreme Court in

Kamarunnissa Vs. Union of India & Anr., (1991) 1 SCC 128

and the decision of the Kerala High Court in

Jameela Vs. State of Kerala & Ors., 2008 (1) KHC 5 (DB)

In Kamarunnissa’s case (supra), the Supreme Court held thus :

“13. From the catena of decisions referred to above it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition to question it before a higher Court. What this court stated in the case of Ramesh Yadav, (AIR 1986 SC 315) (supra) was that ordinarily a detention order should not be passed merely to pre-empt or circumvent enlargement on bail in cases which are essentially criminal in nature and can be dealt with under the ordinary law. It seems to us well settled that even in a case where a person is in custody, if the facts and circumstances of the case so demand, resort can be had to the law of preventive detention.”

The ingredients mentioned in paragraph 13 of the judgment in Kamarunnissa’s case have been satisfied in the present case. The detaining authority applied its mind to all the relevant aspects mentioned in Kamarunnissa’s case.

6. The counsel also relied on the decision in

Jameela Vs. State of Kerala & Ors., 2008 (1) KHC 5 (DB)

in support of the contention that if the detaining authority did not consider the fact that the detenu was already in custody, the order of detention would be vitiated. In Jameela’s case (supra), the order of detention did not mention whether the detenu was on bail or whether he was under judicial custody. The case in

Jameela Vs. State of Kerala & Ors., 2008 (1) KHC 5 (DB)

is clearly distinguishable since in the present case all the relevant details regarding the judicial custody of the detenu, his filing of an application for bail, the dismissal of the same, the likelihood of the detenu being granted bail and the satisfaction of the detaining authority that if the detenu is released on bail, he is likely to indulge in similar criminal activities, have been specifically dealt with and considered. That the detenu is in judicial custody, does not by itself take away the jurisdiction of the detaining authority to make an order of detention under the KAAPA. However, it must be established that the detaining authority was aware of the fact that the detenu was in judicial custody, but in the facts of the particular case, his detention under the KAAPA became necessary. We are fortified by the decision of the Supreme Court in